Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:04-cv-01099-JLK-DW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-1099-JLK-DLW WOLF CREEK SKI CORP., INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant. DEFENDANT'S SUPPLEMENTAL MOTION RE: PLAINTIFF'S DAUBERT MOTION TO EXCLUDE IN PART THE TESTIMONY AND REPORT OF DEFENDANT'S EXPERT JOHN A. MONTGOMERY Pursuant to this Court's Order of April 3, 2008, Defendant hereby provides the following Supplemental Motion Re: Plaintiff's Daubert Motion to Exclude in Part the Testimony and Report of Defendant's Expert John A. Montgomery. Defendant

respectfully requests this Court not to bar the testimony at issue pursuant to Fed. R. Civ. P. 37(c)(1) as the testimony has in fact been disclosed.

A.

John A. Montgomery's Report Contains all of the Opinions Challenged by Plaintiff in its Reply Brief In response to Plaintiff's Daubert motion regarding John Montgomery, Defendant

filed a Response Brief, in which it voluntarily agreed to limit Mr. Montgomery's testimony by striking the two areas that Plaintiff was concerned about. Specifically, Defendant confirmed that Mr. Montgomery would not testify regarding: 1) whether Wolf Creek's failure to deliver the access road caused certain problems and damages to the

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Joint Venture; and 2) whether the problems and damages incurred by the Joint Venture in turn caused the Joint Venture's investment in the Village to be financially at risk. As a matter of clarity, and to avoid further disputes, Defendant then listed in its Response Brief, a general summary of some of1 the remaining topics and opinions that Mr. Montgomery would offer. By way of summary, so that Defendant would not have to repeat each and every specific point and opinion contained in Mr. Montgomery's report, Defendant listed as one of the topics, the term, "the reasonableness, necessity and value of the Joint Venture's financial commitments, to the Village project, including expenses incurred in the approval and planning process." This term clearly related to topics and opinions already included in Mr. Montgomery's report, and it is a disingenuous parsing of words for Plaintiff to now argue that Mr. Montgomery's report does not contain these opinions, merely because he does not use the specific term, "the reasonableness, necessity and value of the Joint Venture's financial commitments, to the Village project, including expenses incurred in the approval and planning process." The chief point of Mr. Montgomery's report is that it is reasonable for the Joint Venture to be fully committed to the Village project, because it has a likelihood of being very financially successful. This commitment includes, among things, incurring

expenses for the approval and planning of the project. Specifically, Mr. Montgomery's report contains the following specific topics, conclusions and opinions, which directly

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Indeed, Defendant's Response Brief stated that Mr. Montgomery would testify, "regarding all other opinions and issues contained in his report, including, but not limited to . . . ." Defendant's Response to Plaintiff's Daubert Motion re: John Montgomery, p. 2. (emphasis added).

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fall within the description of topics which Plaintiff alleges were never disclosed: DEVELOPER COMMITMENT Developer commitment is critical to the success of a typical resort development project. Examples of this type of commitment would consist of the following: 1. willingness to get involved with a real estate project; 2. ability to see the opportunity that exists with a specific project; 3. willingness to spend the time to "see the project through"; 4. willingness to continually invest in a project; 5. willingness to invest the dollars to develop business and marketing plans; and 6. the financial "ability" to see the project through completion (a project that may take years to complete). It is our belief that the Joint Venture has shown extreme developer commitment to this project. They have significant dollars tied up in this project. In addition, they continue to show this commitment by investing time and dollars in research, studies, business plans (1999 and 2005) and other analyses that define/support this project. In addition, it is our understanding that the Joint Venture is willing and has the financial wherewithal to see this project to completion. Where many developers may have given up due to the complex, expensive and time consuming approval/planning process involved in typical mountain resort development, the Joint Venture has stayed the course illustrating their commitment to this project. John A. Montgomery Report, Exhibit A, p. 6 (emphasis added). Mr. Montgomery's report also contained numerous other statements, opinions and conclusions, all of which either support or directly fall within the opinions Plaintiff claims were not disclosed. Specifically, the report states:

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Based on the above, we believe that there are very few ski and summer resorts in the United States that offered, and continue to offer, the opportunities that The Village at Wolf Creek development does. (John A. Montgomery Report, Exhibit A, p. 3) ... What makes this development unusual is the size of the acreage, the fact that it is all contiguous and that it is not "influenced" by surrounding development. (John A. Montgomery Report, Exhibit A, p. 4) ... [S]ki resort acreage immediately adjacent to the ski area itself garners a premium. (John A. Montgomery Report, Exhibit A, p. 4) ... Residential, lodging, timeshare, etc. units with "ski-in/skiout" capabilities are the type of units that are most in demand. Often these units can capture a "premium" in terms of price in excess of 24 to 50 percent more than a unit without that advantage. A significant number of the proposed units at The Village at Wolf Creek will offer "ski-in/ski-out" opportunities. Uniqueness of Project ­ Developers are particularly interested in resort projects that are distinctive and thus may have greater marketability/opportunity for financial success. Developers are also extremely interested in proposed resort developments that appear to not need long periods of time for the entitlement (approval) process. (John A. Montgomery Report, Exhibit A, p.4) ... In addition, a major factor in looking at the uniqueness of this specific resort project is that the proposed development has, in place, many of the approvals and entitlements necessary to develop this project. (John A. Montgomery Report, Exhibit A, p. 4)(emphasis added). ... It appears that The Village at Wolf Creek is a project that, if developed in a timely and professional manner, could

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offer a great deal of upside for he proposed development team. (John A. Montgomery Report, Exhibit A, p. 5) ... As noted above, we believe that this proposed project has many of the positive "development factors" (noted on pages 4 and 5) that a resort developer or resort development team is looking for when considering a resort project. In addition, the Joint Venture appears to have the dedication, determination and financial wherewithal to complete this project. (John A. Montgomery Report, Exhibit A, p. 7)(emphasis added) ... As noted, resort development is a complex, time consuming, and expensive proposition. There is intensive planning and engineering, approvals and other obstacles that must be completed even before the first ground is broken. The Joint Venture and the Ski Corporation appear to have been successfully navigating this process, including supporting the PUD and obtaining the necessary PUD approval, until such point that the lack of the complete access road caused a series of unanticipated issues for the Joint Venture. (John A. Montgomery Report, Exhibit A, p. 8)(emphasis added). As a result, all of these statements, topics and opinions were fully disclosed, and all of them are admissible as they do not venture into the territory of opinions voluntarily withdrawn by Defendant. B. Mr. Montgomery Will Not Address Specific Details Regarding Expenses Plaintiff's chief concern seems to be that by testifying that it was reasonable for the Joint Venture to incur expenses "in the approval and planning process", it opens the door for him to testify regarding all of the specific details of those expenses and related invoices. Plaintiff's Reply in Support of Daubert Motion re: John Montgomery, p. 2. Defendant confirms that Mr. Montgomery will not testify regarding the specific details of these expenses or the related invoices. He did not get into such detail in his report, and

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thus it is beyond the scope of his testimony. However, the fact that he did not examine or give opinions regarding these invoices and expenses in detail, does not limit his ability to testify, as detailed in his report, that it was reasonable for the Joint Venture to incur expenses in the planning and approval process.

Conclusion The exclusion of critical evidence under Rule 37(c)(1) is an extreme sanction, not imposed absent a showing of willful deception and flagrant disregard by the proponent of the evidence. Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 905 (3d Cir. 1977). Here, there is no allegation that Defendants acted in bad faith or with the intent to mislead Plaintiff. Further, all of the opinions challenged by the Plaintiff were clearly disclosed by Defendant in Mr. Montgomery's report. See Forest Laboratories, Inc. et al v. Ivex Pharmaceuticals, Inc. et al, 237 F.R.D. 106, 110 (D.Del. 2006)(overruling party's objection to expert testimony which had been sufficiently disclosed in his report).

WHEREFORE, Defendant respectfully requests this Court to allow Mr. Montgomery to testify regarding all of the topics and opinions contained in his report, with the exception of the two areas stipulated to by the parties. Specifically, Defendant requests this Court to allow Mr. Montgomery to testify, consistent with his report, to "the reasonableness, necessity and value of the Joint Venture's financial commitments, to the Village project, including expenses incurred in the approval and planning process."

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Respectfully submitted this 17th day of April 2008.

s/ David W. Krivit David W. Krivit (#25916) MORIARTY LEYENDECKER ERBEN PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 (303) 495-2658 Tel (713) 528-1390 Fax Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 17th day of April 2008, I electronically filed and served the foregoing DEFENDANT'S SUPPLEMENTAL MOTION RE: PLAINTIFF'S DAUBERT MOTION TO EXCLUDE IN PART THE TESTIMONY AND REPORT OF DEFENDANT'S EXPERT JOHN A. MONTGOMERY to the following: Andrew Ryan Shoemaker Hogan & Hartson, LLP-Boulder 1470 Walnut Street, #200 Boulder, CO 80302 Email: [email protected] Cynthia A. Mitchell Hogan & Hartson, LLP-Boulder 1470 Walnut Street, #200 Boulder, CO 80302 Email: [email protected] Denise D. Riley Hogan & Hartson, LLP-Denver 1200 Seventeenth Street, #1500 Denver, CO 80202 Email: [email protected] Jacqueline S. Cooper Hogan & Hartson, LLP-Denver 1200 Seventeenth Street, #1500 Denver, CO 80202 Email: [email protected] Kim Arquette Tomey Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 Email: [email protected] Melissa M. Heidman Berg Hill Greenleaf & Ruscitti, LLP 1712 Pearl Street Boulder, CO 80302 Email: [email protected] Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Plaintiff

Attorney for Defendant

Attorney for Defendant

s/ Christina J. Kim Christina J. Kim, Paralegal MORIARTY LEYENDECKER ERBEN PC

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