Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE Der KEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP., Defendants. ______________________________________________________________________________ DEFENDANTS SHARRYN E. ROSS AND ROSS, MARTEL & SILVERMAN, LLP'S RESPONSE TO PLAINTIFF'S MOTION FOR ORDER CLARIFYING SCOPE OF EXPERT TESTIMONY OF BART CHAVEZ ______________________________________________________________________________ Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP (collectively, "Ross") by and through their attorney, John E. Bolmer, II of Hall & Evans, L.L.C., submit the following Response to Plaintiff's Motion for Order Clarifying Scope of Expert Testimony of Bart Chavez: I. Background and Status.

This matter is set for trial commencing October 2, 2006. The deadlines for all expert reports allowed under the current scheduling order have now passed, as has the deadline for expert discovery. Plaintiff's claims against Defendant Ross are based on an alleged attorney-client relationship between the two. Defendant Ross moved for summary judgment arguing, among other things, there is no evidence to support the existence of an attorney-client relationship between Ms. Ross and Plaintiff. That motion is fully briefed and pending. Plaintiff now seeks to

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have her designated expert opine regarding the existence of this attorney-client relationship. (Plaintiff's motion, ¶16). II. Nature of Relief and Standard Applicable.

Plaintiff's motion is designated as one to "clarify" the scope of her expert's testimony. Plaintiff attaches Mr. Chavez' report to her motion. At paragraph 10 of the motion, Plaintiff states that while Chavez' report "does not expressly state that an attorney-client relationship existed between Plaintiff and Ross, it assumes and is based on its existence." Plaintiff now seeks the ability to have her expert testify regarding the existence of an attorney-client relationship, despite the fact that this opinion is not evident from the report Plaintiff filed. Because Mr. Chavez' report "assumes" the existence of a relationship, the report does not state the opinions Plaintiff now wishes him to state at trial, and does not set out the bases and reasons for any such opinions. Thus, the testimony Plaintiff seeks to elicit at trial regarding the existence of an attorney-client privilege has not been properly endorsed pursuant to Fed.R.Civ.P. Rule 26(a)(2). This Court cannot "clarify" that Mr. Chavez' report includes opinions and their bases when those items are not in the report on file. Plaintiff's alternative request, seeking leave to amend Mr. Chavez prior report, is the only relief which seems logically possible. The request for leave to amend the report is a request to alter the expert endorsement deadline of Rule 26(a) and the current scheduling order.1 As such, the matter is one requiring a showing of good cause, pursuant to Fed.R.Civ.P. Rule 16(b).

1. Although not explicitly requested in Plaintiff's motion, the alternative relief sought would also necessitate resetting deadlines for endorsement of rebuttal expert testimony and for expert discovery.

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III.

Good Cause Has Not Been Shown to Allow the Amendment

Ms. Ross was deposed prior to the time she was joined as a party, and prior to her representation by counsel. Following her deposition, she submitted a change sheet to the court reporter. Plaintiff in essence argues that this change sheet was the first notice that Ross was challenging the existence of the relationship. Plaintiff represents the court reporter did not send out the change sheet (and Ross has no information to dispute that representation), and that Plaintiff's first knowledge of the changes followed Ross' September 12, 2005 motion for summary judgment. On April 18, 2005, well before the motion for summary judgment was filed and well before Mr. Chavez' report was filed, Ross filed her answer in this action. In that answer, Ross denies paragraph 112 and other portions of the amended complaint alleging the existence of an attorney-client relationship. Ross' defense #13 notes: "Defendants owed Plaintiff no duty under any statute or at common law upon which Plaintiff's claims may be based." Ross' position was apparent from the pleadings well before Chavez' report was filed. If Ross' position that she disputes the existence of the attorney-client privilege was not clear from her answer, it was certainly clear from her motion for summary judgment. Plaintiff's motion for clarification was filed three months after filing of the motion for summary judgment.

IV.

Existence of the Relationship is Not a Proper Area for expert testimony.

If this Court allows amendment of Mr. Chavez' report, Ross will seek to re-depose Mr. Chavez to explore the bases for any additional opinions. Thereafter, Ross may file a motion in limine pursuant to the Daubert line of cases, if such motion appears warranted by the additional

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discovery obtained. While it is therefore premature to fully determine whether opinions on the existence of an attorney-client relationship should be allowed, this Court can nonetheless make a preliminary examination of that issue in determining whether good cause for amendment of the current report exists. (See, Conrad v. Imatani, 724 P.2d 89 (Colo. App. 1986), cert. den. (a court does not abuse its discretion in denying a motion to amend a complaint which is futile.)). As indicated in Ross' motion for summary judgment, existence of an attorney-client relationship flows from the parties' express or implied agreement on the essential terms of the relationship. (International Tele-Marine, 845 F. Supp. 1427, 1431 (D. Colo. 1994); Schmidt v. Frankewich, 819 P.2d 1074, 1079 (Colo. App. 1991), cert. den.)). To establish this relationship, "there must be a showing that a person sought and received legal advice from the attorney concerning the legal consequences of the person's past or contemplated action." (Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1311 (Colo. App. 1998)). Existence of an attorney-client relationship must be proven by facts. But these are not facts beyond the comprehension of the trier of this issue. Expert testimony is admissible "only when the subject matter is such that a jury cannot be expected to draw correct inferences from the facts." (People v. Mulligan, 568 P.2d 449, 456 (Colo. 1977) (en banc), quoting McNelley v. Smith, 368 P.2d 555 (Colo. 1968); People v. Williams, 790 P.2d 796, 798 (Colo. 1990)). None of the cases cited by Plaintiff to support the argument that experts should be allowed to testify regarding the existence of a relationship applied Colorado law. Under Colorado law, the existence of a duty and the scope of that duty are questions of law to be determined by the Court prior to the jury's determination as to whether any duties have been

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breached. (Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1311 (Colo. App. 1998), citing Glover v. Southard, 894 P.2d 21 (Colo. App. 1994)). In a legal malpractice action, as in any negligence action, the court determines as a matter of law whether a duty of care exists in the circumstances. ... See Miami Int'l Realty Co. v. Paynter, 841 F.2d 348, 352-53 (10th Cir. 1988)(under Colorado law, expert witness provides testimony as to conduct required of practitioners in the community within general standard of care imposed by law). (Federal Dep. Ins. Corp. v. Clark, 768 F. Supp. 1402, 1407 (D. Colo. 1989), affirmed as to other issues, 978 F.2d 1541 (10th Cir. 1992)).

V.

Is Chavez Qualified to Give These Opinions?

Chavez' expert report includes his opinions regarding duties of care owed by lawyers to their immigration clients. Chavez' resume reflects his experience in immigration law and his familiarity with practices common to immigration lawyers in the United States. But Plaintiff now seeks to move Mr. Chavez' testimony beyond opinions relating to whether a standard of care was breached into the new area of whether a relationship was formed from which a duty of care flowed. Plaintiff's claims against Ross allege violation of Colorado common law. Formation of the attorney-client relationship is a matter of Colorado law. (Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1311 (Colo. App. 1998)). Mr. Chavez' resume reflects no experience practicing law in Colorado. His qualifications do not appear to make him qualified to opine as to whether certain facts do or do not create duties under Colorado law. Assuming for the sake of argument this is an area where any expert testimony is appropriate, Ms. Chavez does not appear to be an expert in this field.

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WHEREFORE, Defendant Ross requests that this Court deny Plaintiff's motion and grant such instructions and orders as are consistent with the foregoing argument.

DATED this 5th day of January 2006. HALL & EVANS, L.L.C. By: _____________/s/_________________ John E. Bolmer, II David E. Leavenworth Suite 600 1125 Seventeenth Street Denver, Colorado 80202 (303) 628-3366 ATTORNEYS FOR DEFENDANTS SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP CERTIFICATE OF SERVICE I hereby certify that on this 5th day of January, 2006, a true and correct copy of the foregoing DEFENDANTS SHARRYN E. ROSS AND ROSS, MARTEL & SILVERMAN, LLP'S RESPONSE TO PLAINTIFF'S MOTION FOR ORDER CLARIFYING SCOPE OF EXPERT TESTIMONY OF BART CHAVEZ was served electronically on the following: Joel C. Maguire, Esq. Dietz and Davis, P.C. Suite 400 2060 Broadway Boulder, Colorado 80302 Dan S. Cross, Esq. The Overton Law Firm 1080 Kalamath Street Denver, Colorado 80204 /s/ Glenda J. York ___________________________________ Served Electronically

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