Free Motion to Strike - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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Filed 09/11/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-00413-JLK-BNB M.D. MARK, INC., Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants.

D EFENDANTS ' M OTION T O S TRIKE P LAINTIFF ' S S UPPLEMENT T O 2003 E XPERT R EPORT
Defendants Kerr-McGee Corporation and Oryx Energy Company ("Oryx" or, collectively, "Kerr-McGee") 1 respectfully moves the Court to strike Plaintiff's "Supplement" to its expert report, which Plaintiff now files more than 2 years after discovery has closed and nearly 3 years after the expert himself was deposed.

R ELEVANT F ACTS
1. On September 8, 2006, Plaintiff filed its so-called "Supplement" to a

report of John Moye ("Moye"), a corporate attorney hired by Plaintiff as an expert. Plaintiff has appended Moye's expert report to its opposition to summary judgment.

Oryx ceased to exist on February 26, 1999, at which time it became Kerr-McGee as a result of a statutory corporate merger.

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2.

The factual record in this case is voluminous. Discovery commenced in

September 2001 and closed in May 2004. The parties took 36 depositions, and served 125 document requests, 73 interrogatories, and 12 requests for admission. 3. Moye tendered his expert report on November 14, 2002 and was deposed

in January 2003. 4. On April 14, 2006, the Court scheduled oral argument on the summary

judgment issues. 5. On June 8, 2006, Plaintiff moved the Court to permit live testimony at the

summary judgment hearing, which request was denied by the Court on June 22, 2006.

T HE C OURT A GAIN S HOULD D ENY P LAINTIFF ' S A TTEMPT T O S UPPLEMENT A 5-Y EAR O LD R ECORD
6. At the eleventh hour, 5 days before the summary judgment hearing,

Plaintiff attempts to plug holes in its argument with a so-called "Supplement" to Moye's expert report. This is improper. 7. Moye's expert report is dated November 14, 2002; he was deposed in January

2003. Discovery in this case closed in May 2004, nearly a year-and-a-half after Moye submitted his report. The record in this case is gigantic. 8. 2004. 9. At no time has Plaintiff moved to reopen discovery or otherwise sought Kerr-McGee filed its motions for summary judgment in October 2003 and June

leave to expand its expert record or report.

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10.

Now, having failed to move to reopen discovery, and having been denied

the opportunity to present live testimony at the summary judgment hearing, Plaintiff has resorted to a "Supplement" to Moye's 4 year-old expert report. 11. The Court should deny this attempted end-run around the discovery cut-

off as well as the Court's June 22 Order denying live testimony. Plaintiff should not be permitted to cloak additional development of the record, days before the summary judgment hearing, as a "Supplement." The record in this case closed two years ago.

P LAINTIFF ' S L AWYER /E XPERT U SURPS T HE R OLE O F T HE C OURT
12. Even if timely, the "Supplement" is improper because it contains

conclusory opinions on ultimate legal issues in the case, including corporate law, the law of mergers, and contract interpretation. 13. As the Court will note, most substantive content of the "Supplement"

either explains corporate law, or applies Moye's interpretation of corporate law to his understanding of the facts. For example, "the transfer of assets of Sun Exploration to Sun Operating was prohibited by the license agreements in effect in 1985." Suppl. ¶ 2.a. "Under Delaware law," opines Moye, a wholly owned subsidiary not a party to a merger agreement somehow is left out of the merger. Id. ¶ 3, 3.a. "If, in connection with a merger transaction, one of the constituent corporations transfers some or all of its assets to an entity not party to the merger, that transfer is not by operation of law." Indeed, he goes so far as to say that "if that transfer involved Plaintiff's seismic data, it

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would be prohibited by Plaintiff's license agreements. Id. ¶ 3.b. 2 He concludes by interpreting the PGI Agreements and holds that they "specifically [do] address the consequence of a merger." Id. ¶ 4. 14. Plaintiff's "Supplement," like Moye's underlying report, is improper

primarily for two reasons. First, it is an opinion on ultimate questions of law in this case and violates Tenth Circuit precedent, which holds that "[i]n no instance can a witness be permitted to define the law of the case." Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir. 1988). cert. denied, 488 U.S. 1008 (1989). The law simply does not "permit an attorney, called as an expert witness, to state his views of the law which governs the verdict and opine whether the defendants' conduct violated the law." Id. at 806. 15. Second, and most troubling, Moye's legal opinions are improper because

they opine on the meaning of lay contracts, which contain no scientific, technical, or otherwise highly specialized or arcane terms justifying expert guidance. Moye simply interprets the contracts according to his own understanding of the English language. This is not permitted. See, e.g., Questar Pipeline Co. v. Grynberg, 201 F.3d 1277, 1288 (10th Cir. 2000) (expert's contradicting "plain language" of contract "should not have been allowed"). The Court should strike the "Supplement." Of course, the Texas appellate courts twice have disagreed with Moye's "opinion" in two lawsuits initiated by Plaintiff in that state. TXO Prod. Co. v. M.D. Mark, Inc., 999 S.W.2d 137 (Tex. Ct. App. 1999); M.D. Mark, Inc. v. Nuevo Energy Co., 988 S.W.2d 463 (Tex. Ct. App. 1999). In so holding, the Texas courts were construing Texas law which, like Delaware law, is premised upon the Model Business Corporation Act.
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Dated September 11, 2006. Respectfully submitted,

s/Gregory E. Goldberg____________________ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 (303) 295-8000 A TTORNEYS F OR D EFENDANTS

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C ERTIFICATE O F S ERVICE
I hereby certify that, on September 11, 2006, I electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] Harlan P. Pelz, Esq. Dan Bonifazi, Esq. Pelz & Associates 1873 S. Bellaire Street, Suite 1401 Denver, CO 80222

s/ Gregory E. Goldberg ________________ H OLLAND & H ART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8000 Fax: (303) 295-8261 A TTORNEYS F OR D EFENDANTS

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