Free Motion in Limine - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ EL PASO'S MOTION IN LIMINE TO EXCLUDE EXHIBITS AND TESTIMONY NOT DISCLOSED PURSUANT TO FED. R. CIV. P. 26 ______________________________________________________________________________ El Paso Properties, Inc. ("El Paso"), by counsel, respectfully moves the Court for an order excluding from evidence certain of Plaintiffs' trial exhibits and barring Ann Maest, PhD from testifying about matters not contained within her June 2002 report. Plaintiffs did not disclose these exhibits or this testimony in compliance with FED. R. CIV. P. 26. Plaintiffs have designated Dr. Maest to testify regarding aqueous geochemistry and pollutant fate and transport. Plaintiffs' Trial Exhibit 21 at ¶ 1. Plaintiffs provided Dr. Maest's report to El Paso on June 20, 2002. Plaintiffs attached thirty-seven documents to Dr. Maest's report, which concludes that "zinc and other contaminants are being discharged into Cripple Creek from the Roosevelt Tunnel." Id. at ¶ 8. Dr. Maest's report states "I may be asked to review additional documents related to this case at a later date and may also conduct an inspection of the Roosevelt Tunnel or the El Paso Mine. I therefore reserve the right to revise or supplement this report in the future." Id. at 4. Dr. Maest has never supplemented or revised her report.

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On July 8, 2002, El Paso requested that Plaintiffs provide information and documents in connection with Dr. Maest's work for this case. See Exhibit 1 to Defendant's Trial Brief [Doc # 227]. Specifically, El Paso requested any drawings, exhibits or graphics that were created by Dr. Maest or that Plaintiffs intended to use at trial. Id. at 2. Plaintiffs did not produce any work product of Dr. Maest in response to this request and stated "[t]o date, Ms. Maest has not prepared any material other than her expert report." See Exhibit 3 to Defendant's Trial Brief at 4 [Doc # 227]. On September 14, 2006, El Paso's counsel e-mailed the following request to Plaintiffs' counsel: I also note that Dr. Ann Maest described her preparation of spreadsheets and graphs of element ratios for the Roosevelt Tunnel on lines 3 through 20 of page 106 of the transcript of proceedings on August 24, 2005 in Consolidated Civil Actions Nos. 00-cv-2325 MSK and 01-cv-2307-MSK. I do not believe you have provided these documents to us. I would appreciate receiving this information at your earliest convenience. Exhibit 2 to Defendant's Trial Brief [Doc # 227]. Plaintiffs produced nothing in response and stated "[p]lease send me the letter and transcript you are referring to and I will consider your request." Id. Plaintiffs did not produce a single page of Dr. Maest's work product other than her June 2002 report until the December 12, 2006 exchange of trial exhibits. On December 12, 2006, Plaintiffs produced eighteen trial exhibits which were not attached to Dr. Maest's report or otherwise disclosed to El Paso including: Plaintiffs' Exhibits
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54, 77, 78, 81, 84, 85, 86, 87, 88, 106, 107, 108, 109, 110, 113, 114, 115 and 117. These exhibits appear to be documents Plaintiffs may offer into evidence through Dr. Maest's testimony. Rule 26 requires a testifying expert to provide a written report containing "a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; [and] any exhibits to be used as a summary of or support for the opinions; . . . ." FED. R. CIV. P. 26(a)(2)(B) (emphasis supplied). Rule 26(a)(1)(B) requires a party to disclose "a copy of any documents, data compilations, and tangible things . . . the disclosing party may use to support its claims or defenses." The Advisory Committee Notes accompanying the 1993 amendment to Rule 26 make clear that an expert report must "state[] the testimony the witness is expected to present during direct examination together with the reasons therefore." The Notes recognize "that a party will not ordinarily be permitted to use on direct examination any expert testimony not so disclosed" under Rule 37(c)(1). A party must supplement its disclosures if it "learns that in some material respect the information disclosed is incomplete or incorrect." FED. R. CIV. P. 26(e)(1). "Rule 26(e) envisions supplementation when a party's disclosures happen to be defective in some way so that disclosure was incorrect or incomplete and, therefore, misleading." Freeman v. White, No. 05cv-00164-EWN-CBS (D. Colo.), March 10, 2006 Memorandum Opinion and Order at 11 (internal quotations omitted), attached hereto as Exhibit 1. Supplemental disclosures that "seek to `strengthen' or `deepen' opinions expressed in the original expert report exceed[] the bounds
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of permissible supplementation and [are] subject to exclusion by Rule 37(c)." Cook v. Rockwell Int'l. Corp., No. 90-cv-00181-JLK (D. Colo.), December 12, 2006 Memorandum Opinion and Order at 170, attached hereto as Exhibit 2. Permissible supplementation includes "correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure." Id. El Paso anticipates that Plaintiffs may seek to elicit trial testimony from Dr. Maest concerning matters beyond the scope of her June 2002 report. Plaintiffs' newly identified exhibits were not attached to Dr. Maest's initial report and on their face do not contain corrective information or newly acquired information intended to supplement an incomplete report. Rather, these exhibits appear to be intended to strengthen or deepen the opinions stated in Dr. Maest's June 20, 2002 report. Since the exhibits were not disclosed in Dr. Maest's initial report and do not even purport to supplement her report, Plaintiffs should be barred from offering the exhibits or any testimony relating to them at trial. Under FED. R. CIV. P. 37(c)(1), a "party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) is not, unless such failure is harmless, permitted to use as evidence at trial...any witness or information not so disclosed." The determination of whether a failure to disclose "is justified or harmless is entrusted to the broad discretion on the trial court." Woodworker's Supply, Inc. v. Principal Mut. Life Ins., Co., 170 F.3d 985, 993 (10th Cir. 1999). In the Tenth Circuit, "[a] district court need not make explicit findings concerning the existence of a
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substantial justification or the harmlessness of a failure to disclose." Id. However, the following factors should guide the court's discretion: (1) the prejudice or surprise to the party against whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such testimony would disrupt the trial; and (4) the moving party's bad faith or willfulness. Id. Plaintiffs' failure to disclose the exhibits until December 2006 was neither justified nor harmless. The deadline for providing expert reports in this case was June 20, 2002 and the deadline for providing rebuttal expert reports was July 20, 2002. February 20, 2002 Scheduling Order at 7 [Doc # 9]. Plaintiffs first disclosed these exhibits four years after expert disclosures were filed and discovery closed. Obtaining these documents for the first time less than two months before trial surprised El Paso and will prejudice it in trial. Gallegos v. Swift & Co., Civil Action No. 04-cv-01295-LTB-CBS (D. Colo.) January 25, 2007 Memorandum Opinion and Order at 5 (providing new information after discovery closed and less than three months before trial constitutes prejudice because the other party does not have time to analyze the new information, conduct discovery relating to the new information or otherwise prepare for trial without disrupting the trial schedule), attached hereto as Exhibit 3; see also Exhibit 2 at 175 (an attempt to supplement and expand an expert's testimony seven years after the expert's report was disclosed and six years after the expert was deposed constituted prejudice). Plaintiffs' new exhibits do not provide sufficient information for El Paso to determine what data they are based upon or how the exhibits relate to Dr. Maest's testimony. El Paso has
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had no opportunity to obtain information about the exhibits through depositions or other discovery to prepare for trial. El Paso's experts have not had a reasonable opportunity to analyze, understand and respond to the newly disclosed exhibits. Any effort to cure the prejudice caused by Plaintiffs' failure to comply with Rule 26 will disrupt the current trial schedule. The only effective cure would be to postpone trial and re-open discovery to allow El Paso an opportunity to conduct discovery and depose Dr. Maest regarding the new exhibits. This cure would effectively foreclose the parties from trying this case as scheduled. See Exhibit 3 at 5 (postponing trial and reopening discovery less than three months before trial is an untenable option); Exhibit 2 at 175 (re-opening expert discovery at a late stage in trial preparation was not a "just or viable option" and would cause a lengthy delay in the case). Plaintiffs acted in bad faith by waiting to disclose these exhibits until less than two months before trial despite the fact that El Paso had requested exactly this type of information on July 8, 2002 and September 14, 2006. Plaintiffs do not claim that the new documents are based upon information that was not available when Dr. Maest's report was prepared. Plaintiffs did not purport to supplement Dr. Maest's report when disclosing the exhibits. Regardless of Plaintiffs' motives, however, the Court can and should find that the exhibits and any testimony based upon them are inadmissible under Rule 37(c)(1). Jacobsen v. Deseret Book Co., 287 F.3d 936, 954 (10th Cir. 2002) (good faith alone is not enough to overcome the other factors set forth in Woodworker's).
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Since receiving Plaintiffs' newly disclosed exhibits and testimony into evidence would prejudice El Paso in a manner that cannot be cured without disrupting the scheduled trial, the Court should exercise its discretion to exclude the exhibits and any testimony relating to them. WHEREFORE, El Paso respectfully requests that the Court issue an Order excluding from evidence Plaintiffs' trial exhibits 54, 77, 78, 81, 84, 85, 86, 87, 88, 106, 107, 108, 109, 110, 113, 114, 115, and 117 and prohibiting Plaintiffs from eliciting from Dr. Maest any testimony beyond the scope of her June 2002 report. COMPLIANCE WITH D.COLO.LCivR 7.1(A) On January 31, 2006, counsel for El Paso conferred with Plaintiffs' counsel by electronic mail in a good faith effort to resolve the issues presented in this motion. Plaintiffs had not responded to El Paso's communication by the time of the filing of this Motion. Respectfully submitted this 1st day of February, 2007.

_s/ Stephen D. Harris________ James L. Merrill, #9466 Stephen D. Harris, #24178 Michael J. Gustafson, #37364 MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, CO 80903-3300 Telephone: (719) 633-4421 Facsimile: (719) 633-4759 Counsel for El Paso Properties, Inc.
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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing EL PASO'S MOTION IN LIMINE TO EXCLUDE EXHIBITS AND TESTIMONY NOT DISCLOSED PURSUANT TO FED. R. CIV. P. 26 was sent electronically via ECF this 1st day of February, 2007, to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 Roger Flynn, Esq. Jeffrey C. Parsons, Esq. 2260 Baseline Road, Suite 101A Boulder, Colorado 80302

__s/ Sarah D. White__ Sarah D. White, Staff Assistant

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