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 Case No. 01-CV-02163-PAC-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ PLAINTIFFS' EXPEDITED MOTION UNDER FED.R.CIV.P. 37(C) TO EXCLUDE TESTIMONY OF DEFENDANT'S PREVIOUSLY UNDISCLOSED EXPERT WITNESS ART O'HAYRE ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby file this Expedited Motion Under Fed.R.Civ.P. 37(c) to Exclude Testimony of Defendant's Previously Undisclosed Expert Witness Art O'Hayre. In support, Plaintiffs state as follows: 1. PROCEDURAL AND FACTUAL BACKGROUND Under Federal Rule of Evidence 702, this Court has scheduled an evidentiary hearing on October 3 and 4, 2006 to determine the admissibility of expert witness opinions previously disclosed in this case. The Court has ordered the parties to file a Joint Statement setting forth the expert witness opinions to be offered at trial and the basis for any objection to these opinions. The deadline in this case for designating "all experts" and providing the opposing party with "all information" specified in Fed.R.Civ.P. 26(a)(2) was June 20, 2002. See, Scheduling 1

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Order, p. 7 attached hereto as Exhibit 1. The deadline in this case for designating "all rebuttal experts" and providing the opposing party with "all information" specified in Fed.R.Civ.P. 26(a)(2) was July 20, 2002. The only expert witness and rebuttal expert witness designated by

Defendants under Rule 26(a)(2) was Robert Brogden. This Court recently recognized that Defendant identified Robert Brogden as its sole expert witness. [#195, p. 5]. Now, on September 13, 2006--a mere three weeks before the Rule 702 hearing and six weeks before trial ­via email the Defendant for the first time informed Plaintiffs that they intend to call a previously undisclosed expert witness, Art O'Hayre, "as rebuttal witnesses to Dr. Maest" ­ Plaintiff's previously disclosed expert witness. See, Exhibit 2 hereto, p. 1. To date, Defendant has failed to disclose: a) a written report prepared and signed by Mr. O'Hayre containing a complete statement of all rebuttal opinions to be expressed and the basis and reasons therefore; b) the data or other information considered by Mr. O'Hayre in forming his opinions; c) any exhibits to be used as a summary of or support for the opinions; d) the compensation to be paid for the study and testimony; and, e) a listing of other cases in which Mr. O'Hayre has testified as an expert at trial or by deposition within the preceding four years--all of which are required by Fed.R.Civ.P. 26(a)(2). 2. a) LEGAL BACKGROUND The Federal Rules of Civil Procedure and Evidence

As noted above, Fed.R.Civ.P. 26(a)(2) requires witnesses who are retained "to provide expert testimony in the case" be disclosed to the opposing party along with a written report stating the opinions to be offered and the basis for the opinions. Federal Rule of Civil Procedure 2

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37(c)(1) outlines the appropriate remedy for failure to make disclosures under Rule 26(a)(2), unless such non-disclosure is substantially justified or harmless. This specified remedy is to prohibit the party from using "at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1) (emphasis added). b) Caselaw

The Tenth Circuit has squarely ruled that Fed.R.Civ.P. 26(a)'s disclosure requirements apply to expert testimony sought to be introduced in a Fed.R.Evid. 702/Daubert hearing, such that any new or previously undisclosed expert testimony is properly excluded from consideration at such a hearing under Fed.R.Civ.P. 37(c)(1). Miller v. Pfizer, Inc., 356 F.3d 1326 (10th Cir. 2004). In construing Fed.R.Civ.P. 37(c)(1), the 10th Circuit has held that: [a] district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose. Nevertheless, the following factors should guide its 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. Hirpa v. IHC Hospitals, Inc., 50 Fed.Appx. 928, 932 (10th Cir. 2002)(quoting Woodworker's Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). 3. ARGUMENT

Defendants are attempting to ambush the Plaintiffs by designating a previously undisclosed expert witness just three weeks before the Rule 702 hearing and six weeks before trial. To make matters worse, Defendant has completely failed to provide any of the information that is required to be disclosed under Fed. R.Civ.P. 26(a)(2). As a result, Plaintiffs have no idea 3

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what expert opinions Mr. O'Hayre will offer at the Rule 702 hearing, the basis for those opinions, the facts and information considered by Mr. O'Hayre in reaching those opinions, the exhibits or summaries Mr. O'Hayre might use at the hearing, or whether Mr. O'Hayre has ever previously provided testimony as an expert in a deposition or trial. Defendants' Rule 702 strategy is purely "trial by surprise." Defendant's tactics are exactly what Federal Rule of Civil Procedure 26(a)(2) was intended to eliminate. Further, this Court previously ruled that "all rebuttal experts" must be designated by July 20, 2002 along with "all information" required by Fed.R.Civ.P. 26(a)(2)(B). See, Exhibit 1 hereto, p. 7. Defendants failed to comply with this deadline, failed to exchange the required information, and failed to seek leave from the court to identify a new expert witness. Further, the Scheduling Order clearly states that there shall be "no exception to the requirements of Fed.R.Civ.P. 26(a)(2)(B)" unless approved by the Court. As noted in their e-mail correspondence to Plaintiffs, Defendant will argue that the disclosure requirements of Fed. R.Civ.P. 26(a)(2) do not apply to rebuttal expert witnesses to be called solely to testify at a FRE 702 hearing. See, Exhibit 2 hereto. Instead, Defendant argues that the disclosure requirements only apply to rebuttal expert witnesses "who may be used at trial." Defendants then argue that a FRE 702 hearing is not a "trial" and thus they are not bound by the disclosure requirements of Fed.R.Civ.Pro. 26(a)(2) in a FRE 702 hearing. This argument

is directly refuted by the 10th Circuit's recent holding in Miller v. Pfizer and the plain language of the Federal Rules of Civil Procedure.

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In Miller, the Tenth Circuit applied the disclosure requirements of Fed.R.Civ.P. 26(a)(2) to exclude expert testimony intended to address the reliability of an expert's methodology and analysis within the context of a Daubert hearing under Rule 702. 356 F.2d at 1334. Indeed, in Miller, the court excluded expert testimony that had not been disclosed by the plaintiffs in that action in accordance with Fed.R.Civ.P. 26 even though the witness had been identified as an expert. In so ruling, the court considered the fact that the plaintiffs had ample time to identify additional expert testimony in a timely fashion, but had not identified the proferred testimony until the 11th hour. Id. As such, the testimony was properly stricken. The issue here is analogous. Defendant has had ample time to identify its experts and any relevant expert testimony. Indeed, based on Defendant's own representations, it had known about its newly identified expert witness as early as 2002, yet made no attempt to disclose the possibility that he might be called as an expert in this case, as unambiguously required by the Court's scheduling order in this case and Rule 26(a)(2). See, Exhibit 2 hereto. With regard to Defendant's apparent reading of the Federal Rules of Civil Procedure, the assumption that a Rule 702 hearing is not a "trial" proceeding is incorrect. The purpose is to determine admissibility of expert witness opinions at trial. As such, it is part of a trial proceeding and the disclosure requirements of Fed. R.Civ.P. 26(a)(2) are applicable to FRE 702 proceedings. In any case, Fed.R.Civ.P. 26(a)(2) expressly applies to expert witnesses used "to present evidence under Rules 702...of the Federal Rules of Evidence." Fed.R.Civ.P. 26(a)(2). Further, the requirements of Fed.R.Civ.P. 26(a)(2) apply to any witness who will "provide expert testimony in the case." This language directly contradicts Defendant's argument that the 5

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disclosure requirements of Fed.R.Civ.P. 26(a)(2) are limited to expert witnesses testifying only at trial. Lastly, Fed.R.Civ.P. 37(c) clearly states that failure to make complete expert witness disclosures prevents the party from eliciting testimony of the witness "at a trial, at a hearing, or on a motion." Fed.R.Civ.P. 37(c). This language also makes clear that the disclosure requirements of Fed.R.Civ.P. 26(a)(2) prevent an undisclosed expert witness from offering testimony in any proceeding--not just at trial. Finally, as a practical matter, Defendant's argument would render useless the disclosure requirements of Fed.R.Civ.P. 26(a)(2) for rebuttal witnesses because it would encourage parties not to disclosed rebuttal experts and opinions, lie in wait until a Rule 702 hearing, and then attack the expert witness with previously undisclosed rebuttal expert witnesses and opinions. Defendant's tactics in this case are a perfect example--it is impossible for Plaintiffs to effectively prepare for the Rule 702 hearing because they have no idea what O'Hayre might opine, the basis for his opinions, or the facts and documents he considered in reaching his opinions. The Rules of Civil Procedure were specifically revised to prevent the injustice Defendant seeks to inflict on Plaintiffs in this case. Defendant's email communication also contends that they should be allowed to designate Mr. O'Hayre at this time because they did not know what opinions Dr. Maest would be offering at trial. This is nonsense. Unlike Mr. O'Hayre, Dr. Maest submitted a written expert report on June 20, 2002 identifying her expert opinions to be offered at trial. These same expert opinions are being offered in the Rule 702 hearing. Thus, Defendant has been fully informed for 4 years of the expert opinions to be offered at trial (or in a Rule 702 hearing) by Dr. Maest. Moreover, 6

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Defendants have failed to seek leave of the Court to disclose a new expert witness at this late date in the proceeding. In summary, this Court should exclude any testimony from Mr. O'Hare in the Rule 702 hearing or at trial. 4) REMEDIES SOUGHT BY PLAINTIFFS The remedies sought by Plaintiffs in this motion are as follows: 1) 2) An expedited ruling on this motion; A ruling excluding any expert witness testimony or opinions of Mr. O'Hayre at the October 3 and 4, 2006 Rule 702 hearing, at trial, or by motion. Defendant has not sought leave of the Court to properly disclose all information required by Fed.R.Civ.P. 26(a)(2) for Mr. O'Hayre as is required by the Scheduling Order. As such, the appropriate remedy under Fed.R.Civ.Pro. 37(c) is to exclude his testimony in this case. 3) If this motion is not resolved by September 19, 2006, Plaintiffs request a postponement of filing of the Joint Statement for FRE 702 Hearing scheduled to be filed on September 19, 2006. Plaintiffs cannot effectively identify all witnesses who might testify at the FRE 702 hearing until this motion is resolved. If this motion is granted, the only experts to testify at the Rule 702 hearing will be Dr. Maest for Plaintiffs and Mr. Brogden for Defendant--both of whom were properly disclosed by the June/July 2002 deadlines set forth in the Scheduling Order. 7

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II. CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1A The undersigned certifies that he consulted with Defendant's counsel and Defendant opposes this Motion. See, Exhibit 2 hereto.

Respectfully submitted by, September 15, 2006 s/ John Barth _________________________ John M. Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738 COUNSEL FOR PLAINTIFFS CERTIFICATE OF SERVICE I do hereby certify that on this 15th day of September 2006 a true and accurate copy of PLAINTIFFS EXPEDITED MOTION UNDER FED.R.CIV.PRO. 37(C) TO EXCLUDE TESTIMONY OF DEFENDANT'S PREVIOUSLY UNDISCLOSED EXPERT WITNESS ART O'HAYRE was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris Merrill Anderson & Harris 8

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20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ John Barth __________________________ John Barth

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