Free Motion in Limine - District Court of Federal Claims - federal

Case 1:96-cv-00408-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ INNOVAIR AVIATION LIMITED, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

DOCKET NO. 96-408C (Senior Judge Loren A. Smith)

PLAINTIFF INNOVAIR AVIATION LIMITED'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF CHARLES MCKEE AND REID PIXLER Pursuant to RCFC 16, Plaintiff Innovair Aviation Limited ("Innovair") respectfully submits this motion in limine to exclude the trial testimony of Charles McKee and Reid Pixler. McKee, the Vice President for Marketing of Air Canada, cannot serve as a fact witness because he has no personal knowledge of any matters in dispute and he cannot serve as an expert witness because he was not identified by the Government as an expert as required by RCFC 26(a)(2) and the Court's Scheduling Order and did not submit a report setting forth his opinions and the bases therefore. Pixler is an Assistant United States Attorney who represented the Government in connection with the seizure of the Technology License Agreement ("TLA") and the Government's subsequent, and unsuccessful, forfeiture proceeding. Pixler's intended testimony relates to issues already decided by this Court and thus

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is completely irrelevant to any issue before the Court. Moreover, as an attorney for the Government who served in that capacity in litigation related to this case, it would be improper for Pixler to testify as a fact witness.1/ Unlike Defendant's cry of prejudice with respect to Plaintiff's expert's brief Supplemental Report, the late in the day identification of these two witnesses looks like "a game of blind man's bluff" rather than "a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). I. MCKEE CANNOT TESTIFY AS A FACT WITNESS AND HAS NOT BEEN PROPERLY IDENTIFIED AS AN EXPERT. Charles McKee was first identified in the Defendant's Witness List provided to Plaintiff's counsel at the Meeting of Counsel. He is described as "Vice President for Marketing, Air Canada." Ex. 1, Defendant's Witness List at 7. McKee has no known connection to the facts of this case and has not been identified as an expert witness as required by RCFC 26(a)(2) and the Court's Scheduling Order. To the best of Plaintiff's or Plaintiff's counsel's knowledge, McKee has never been associated with Innovair or Basler Turbo Conversions, Inc. ("BTC"), and has no known connection to any facts relevant to determining the value of the TLA. There is nothing to suggest that McKee has any personal knowledge of any of the matters in dispute at this stage of the litigation and nothing in the Defendant's description of McKee or his expected testimony suggests otherwise.
1/ The first identification of both of these proposed witnesses was on the Government's witness list provided to Innovair on August 9, 2007. Shortly after receipt the government's witness list, Innovair requested that the Government permit Innovair to depose these and other witnesses, which request the Government refused.

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According to Defendant, McKee will testify about the barriers to potential Innovair profits in the Asian market under the distribution agreement between Innovair and UTC, due to (1) higher costs than anticipated because of the expectation by those doing business in Asia to share in the profits through various joint venture arrangements, and (2) lower sales than anticipated because of (a) the lack of a market for the BT67 in various countries, (b) the protectionist policies of many countries in Asia, and (c) the low capitalization of existing DC-3 operators. Id. By the very description of McKee's expected testimony, it appears obvious that the government intends to offer opinion rather than fact testimony. According to McKee's biography on the Air Canada website, McKee has held various management positions in marketing at Air Canada, and formerly held management positions at "Europe's largest on-line travel company focused on last minute retailing" and "with a major British airline[.]" See Ex. 2, Air Canada McKee Biography. Federal Rule of Evidence 702 defines expert testimony as testimony that will "assist the trier of fact to understand the evidence or to determine a fact in issue" through "scientific, technical, or other specialized knowledge." McKee's testimony apparently relates to his purported specialized knowledge of business practices and policies in Asian countries affecting the major passenger airline industry. The trial in this case, however, relates to the value of Innovair's TLA ­ the exclusive license to, inter alia, distribute technology for the converted DC-3 aircraft outside the United States, the market for which has no connection to major international passenger airlines. For that reason, it is difficult to conceive that McKee's testimony would even have relevance in this action. 3
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Moreover, McKee should be precluded from testifying here because the Government did not identify McKee as an expert witness in accordance with the Court's Scheduling Order nor did it tender an expert report or identify McKee as an expert as required by RCFC 26(a)(2) and the Court's Scheduling Order. See Scheduling Order (March 12, 2007). This Court should not allow Defendant to skirt the clear requirements of Rule 26 and should exclude McKee from testifying at trial. 2/ See RCFC 37(c)(1) ("A party that without substantial justification fails to disclose information required by RCFC 26(a) or 26(e)(1), or to amend a prior response to discovery as required by RCFC 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed."); Sexton v. Uniroyal Chemical Co., Inc., 62 Fed.Appx. 615, 616 n.1 (6th Cir. 2003) ("This circuit has established that Rule 37(c)(1) mandates that a trial court sanction a party for discovery violations in connection with unless the violations were harmless or were substantially justified."); James v. Patton, 2007 WL 404748, at *5 (E.D.Okla. Jan. 31, 2007) (excluding expert testimony when no expert report was served upon opposing counsel). The springing of an unheard of expert witness on Innovair at this late stage in the litigation prejudices Innovair and unjustifiably frustrates and obstructs Innovair's trial preparation. 3/

2/ If the Government can provides some credible basis to assert that McKee has relevant personal knowledge concerning the value of the TLA, then to avoid prejudice to Innovair, Innovair should be given the opportunity to depose him prior to trial. Defendant's attempt to slip McKee onto their witness list cannot be compared to Art 3/ Cobb's Supplemental Report, about which the Government has filed an Emergency Motion

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II.

PIXLER CAN PROVIDE NO RELEVANT TESTIMONY AND, AS GOVERNMENT COUNSEL IN THE UNDERLYING ACTION, WOULD BE AN IMPROPER WITNESS . Reid Pixler, the Assistant United States Attorney who prosecuted the

underlying forfeiture action, should not be allowed to testify at trial because he only has knowledge of matters concerning issues already decided by this Court and the Ninth Circuit and thus his testimony is not relevant to any issue remaining for trial. Moreover, as an attorney who represented the Government in an earlier iteration of this dispute, Pixler's appearance as a fact witness would be improper. A. Pixler's Testimony Is Irrelevant.

According to the Government, Pixler will testify about the seizure of the TLA, negotiations with BTC and Innovair about the Substitute Res Bond, and the release of the TLA to BTC. Ex. 1, Def.'s Witness List at 3. 4/ Pixler's testimony concerning the seizure of the TLA and subsequent activities in connection with the

As explained in Innovair's Opposition to Defendant's Emergency Motion, Defendant will suffer no prejudice from the short supplement to Cobb's initial report, particularly because the brief report responds to defense themes developed and disclosed only after Cobb's initial report and deposition and serves as an adjunct to his initial report, using the same methodology and much of the same information as the initial report. Moreover, Cobb was timely disclosed to the Government as a testifying expert and timely provided the Government with his initial expert report, and the Government took the opportunity to depose him. Furthermore, Innovair has given its consent to a supplemental deposition of Cobb in order to avoid any prejudice to the Government. The Government describes Pixler's expected testimony as follows: "Mr. Pixler will 4/ testify about his responsibilities as an Assistant United States Attorney, the seizing of the TLA, the negotiations with representatives from BTC and Innovair regarding the posting of the substitute res bond, and he will testify concerning the documents he prepared and received in the course of his responsibilities relating to the seizure of the TLA, the release of the TLA to BTC, and events stemming from these activities. Mr. Pixler will testify about the documents he prepared, reviewed, signed, or received in the course of his responsibilities as Assistant United States Attorney." Ex. 1, Def.'s Witness List at 3.

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Substitute Res Bond Agreement are plainly irrelevant to the determination of just compensation now before the Court. First, and most obviously, this Court has already held that the Government effected a taking of Innovair's TLA without just compensation. Innovair Aviation, Ltd. v. United States, 72 Fed. Cl. 415, 416 (2006). In reaching that determination, this Court also held that the amount of the Substitute Res Bond did not represent a valuation of the TLA. Id. at 424, 425. There, the Court expressly rejected the government's argument that Innovair received just compensation for the TLA in the Substitute Res Bond, the value of which was set to protect the Government's asserted interest. Id. at 424, 425 (also referring to Substitute Res Bond and noting that "there never was a valuation of Innovair's interest in the TLA," Id. at 424) Therefore, this Court's findings that the Government's seizure of the TLA constituted a taking, that Innovair has not received just compensation, and that Innovair's interest in the TLA has never been valued all constitute the law of the case and should not be disturbed during the damages phase. See Design and Prod., Inc. v. United States, 18 Cl. Ct. 168, 193 (1989) ("Indeed the Court of Claims has prescribed that: `the general rule is that a decision by the court on a point in a case becomes the law of the case unless or until it is reversed or modified by a higher court.'") (citing Raylaine Worsteds, Inc. v. United States, 137 Ct. Cl. 54, 58 (1956)). Because the government raised and lost the argument that the Substitute Res Bond and related proceedings encompassed a determination of the value of the TLA or Innovair's interest in it, testimony by

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Pixler on such topics is irrelevant. In seeking to present Pixler's testimony at the upcoming trial on just compensation, the Government apparently seeks only to relitigate matters already decided by this Court's prior decision. B. Pixler's Testimony Would be Improper.

Pixler's involvement as an attorney for the Government who prosecuted earlier iterations of this dispute make him an improper fact witness at the upcoming trial. Pixler prosecuted the unsuccessful forfeiture proceeding against the TLA, conducted negotiations with BTC and with Innovair over the Substitute Res Bond, and otherwise represented the United States in its lengthy legal dispute against Innovair's property. It is improper for a Government lawyer who worked as such in the pending matter to testify as a fact witness. Courts and the legal profession have long recognized the perils of attorneys testifying as fact witnesses in matters in which they have been involved. See Fed. Deposit Ins. Corp. v. U.S. Fire Ins. Co., 50 F.3d 1304, 1311 (5th Cir. 1995) ("During the nineteenth century, the prohibition against lawyer-witnesses became a matter of professional ethics. Bar associations in the United States included the rule among their earliest standards of professional behavior."). The American Bar Association's Model Rules of Professional Conduct, adopted by this Court as its Code of Professional Responsibility, caution that "[c]ombining the roles of advocate and witness can prejudice the tribunal and the opposing party." See Model Rules of Prof'l Conduct R. 3.7 cmt. (2002); RCFC 82.3(c). These disciplinary rules are designed to prevent

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"situations in which others might think the lawyer, as witness, is distorting the truth for his client." In re American Cable Publ'ns. Inc., 768 F.2d 1194, 1196 (10th Cir. 1985); see also Int'l Elecs. Corp. v. Flanzer, 527 F.2d 1288, 1295 (2d Cir. 1975). These concerns are no less significant if the attorney represents the Government rather than a private litigant, as the Second Circuit has made clear: It was been widely recognized that lawyers representing litigants should not be called as witnesses in trials involving those litigants if such testimony can be avoided consonant with the end of obtaining justice. We believe that this prohibition is applicable to the United States Government and its attorneys as well as to private litigants and their attorneys. It is obvious that the opportunity for tailoring a witness's testimony to the needs of the Government's case is maximized if recourse is permitted to the testimony of an experienced attorney who is interested in the successful presentation of that case. United States v. Alu, 246 F.2d 29, 34-35 (2d Cir. 1957) (internal footnote omitted). To eliminate the possibility that Pixler may tailor his testimony to aid in the Government's defense in litigation in which he was involved for over a decade as well as the potential that his testimony might create the appearance that he is "distorting the truth for the sake of the client," Pixler's testimony should be excluded from trial. See In re American Cable Publ'ns. Inc., 768 F.2d at 1196. 5/

5/ Innovair could not have anticipated that the Government would attempt to call one of its own attorneys as a witness at trial. Despite Innovair's attempt to learn the identities of the Government's intended fact witnesses, the Government declined to identify its witnesses in response to an interrogatory. Consequently, the first time Innovair learned of the Government's intention to call Pixler as a fact witness was when the Government served its witness list on August 9, 2007. Innovair then sought to depose Pixler, a request which the Government denied. See supra n.1. If the Court denies this motion to exclude, to avoid prejudice to Innovair, Innovair should be permitted to depose Pixler prior to trial.

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CONCLUSION For the foregoing reasons, this Court should exclude the testimony of Charles McKee and Reid Pixler. Respectfully submitted, s/ Ty Cobb_________________________ Ty Cobb HOGAN & HARTSON L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5681 (direct) (202) 637-5910 (facsimile) Attorney of Record for Plaintiff Innovair Aviation Limited Of Counsel: H. Christopher Bartolomucci Audrey E. Moog HOGAN & HARTSON L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5810 (202) 637-5910 (facsimile) Dated: September 21, 2007

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of September, 2007, I filed the foregoing Plaintiff Innovair Aviation Limited's Motion in Limine to Exclude Testimony of Charles McKee and Reid Pixler using the Court of Federal Claims' Electronic Court Filing system, which automatically caused notice to be sent to counsel of record for the parties. s/ Ty Cobb_________________________ Ty Cobb Counsel for Innovair Aviation Limited

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