Free Response to Motion - District Court of Colorado - Colorado

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

Document 290

Filed 03/11/2008

Page 1 of 3

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 RESPONSE TO PLAINTIFF'S DAUBERT MOTION TO EXCLUDE IN PART THE TESTIMONY AND REPORT OF DEFENDANT'S EXPERT JOHN A. MONTGOMERY Defendant Leavell-McCombs Joint Venture ("Joint Venture"), by its undersigned counsel, hereby responds to Plaintiff's Daubert Motion to Exclude in Part the Testimony and Report of Defendant's Expert John A. Montgomery as follows: Plaintiff's motion does not seek to strike the testimony or report of John A. Montgomery in their entirety. Instead, Plaintiff only seeks to limit two areas of Mr. Montgomery's testimony: 1) whether Wolf Creek's failure to deliver the access road caused certain problems and damages to the 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. Defendants confirm that Mr. Montgomery will not offer testimony on either of these two issues, and to that extent, do not object to Plaintiff's motion.

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

Document 290

Filed 03/11/2008

Page 2 of 3

Mr. Montgomery, however, is fully qualified to testify regarding all other opinions and issues contained in his report, including, but not limited to: 1) the key factors that resort developers consider when planning and investing in a potential development; 2) the specific beneficial development factors maintained by the Village; 3) the general opportunity for profit to developers that the Village provided; and 4) 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. Plaintiff's motion does not object to Mr. Montgomery testifying upon any of these issues. Pursuant to F.R.E. 702, such testimony is admissible as it will assist the jury to understand the evidence and the issues surrounding the reasonableness and necessity of the expenses incurred by the Joint Venture in pursuing the governmental permits necessary to complete an access road to the Village. Respectfully submitted this 11th day of March 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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Case 1:04-cv-01099-JLK-DW

Document 290

Filed 03/11/2008

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 11th day of March 2008, I electronically filed and served the foregoing DEFENDANT'S RESPONSE TO 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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