Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 03-cv-02669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation, et al. Defendants/Counterclaimants, ________________________________________________________________________ BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1 - 1 00, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant. ________________________________________________________________________ MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. ­ CALIFORNIA, et al. Counterdefendant/Third Party Defendants.

DEFENDANTS BIG-D CONSTRUCTION CORP-CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE NO. 8 TO PRECLUDE TESTIMONY FROM PARTY WITNESSES REGARDING CONSTRUCTION DELAYS UNLESS WITNESSES ARE FIRST QUALIFIED AS EXPERTS

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I.

INTRODUCTION Big-D has respectfully requested an Order in limine from this Court ruling that any party-

affiliated, non-retained witnesses expected to testify regarding the cause or ultimate impact of any construction delays on the Project first be qualified to offer such opinion testimony. In opposition to this request, Leprino undertakes a vigorous, although ultimately misguided and admittedly insufficient, defense of the qualifications of its Director of Engineering and Construction, Jack Towle. The crux of Big-D's Motion is not to exclude lay witnesses from explaining to the jury their contemporaneous observations of events that occurred on the construction project. This is, however, a far cry from permitting lay witnesses from offering opinions regarding complex and scientifically, based concepts, such as critical path scheduling or, for example, the ultimate effect that a delay experienced by one subcontractor in month one on the Project had on another subcontractor's work or the ultimate completion of the Project twenty months later. This type of testimony, as Mr. Towle himself admitted in deposition, is beyond the scope of lay-opinion testimony contemplated by Federal Rule of Evidence 701, and should necessarily be excluded. II. ARGUMENT A. Testimony Regarding Construction Scheduling and the Ultimate Cause or Effect of Project Delays Is Admittedly Technical in Nature and Requires a Level of Expertise

The crux of Big-D's motion is that any party intending to elicit testimony from witnesses regarding the cause or ultimate impact of a specific event on the Project's schedule must first establish that witness as qualified under Federal Rule of Evidence § 702. Neither Leprino (nor Mr. Towle in his deposition testimony, cited below) dispute that construction scheduling is a

1.

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complex, scientifically-based process. In order to credibly testify that one event on a construction project necessarily impacted, disrupted, or delayed other events that occurred weeks, months, or even years later, the witness must have a specific basis of knowledge. That knowledge, however, must not be restricted to the witness's contemporaneous observations about each discrete event that occurred, but must necessarily include some level of expertise in identifying causal relationships, such that the witness can testify, for example, that Subcontractor A's failure to commence the underground work on a specific date necessarily caused Subcontractor B's work to run behind schedule at some future pointing time. Consequently, BigD has not sought an order excluding testimony from Mr. Towle (or any other persons present during the construction of the Project) from relating to the jury their contemporaneous observations or impressions as to the events that occurred during the construction process. As Leprino's Director of Engineering and Construction, Mr. Towle may have been aware that the process equipment work in Area 500 of the Project did not commence on the day anticipated and set forth on the Project schedule. However, his ability to testify that this late start was caused by events that may have occurred months earlier, or that this event specifically resulted in the late completion of the entire Project, is naturally subject to dispute.

B.

Leprino's Director of Engineering and Construction, Jack Towle, Testified that He Did Not Perform Contemporaneous Schedule Analyses During the Project and that Such an Analysis Would Have to be Performed by a Project Scheduler

Leprino asserts that the 40+ years of experience of its Director of Engineering and Construction, Jack Towle, necessarily qualifies him to offer lay-opinion testimony as to the specific delays experienced on the Project. While Mr. Towle's time on the Project may qualify

2.

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him to testify regarding the status of the construction work at a particular point in time, Mr. Towle himself admitted in deposition that he had not performed contemporaneous schedule analyses regarding specific delays on the Project. See, Affidavit of Christopher Hersey, ¶ 3, Ex. "A" (Deposition of Jack Towle) at 578:1-17; 750:21-751:5. More significantly, Mr. Towle also specifically admitted during deposition that in order to quantify the impact to the completion of the Project caused by the alleged lack of completion of the building structure by Big-D and its subcontractors, a specific analysis would have to be performed by a project scheduler--analysis that Mr. Towle never personally attempted to do: "Q. (By Mr. Ippolito) My question is to you. Did Jack Towle ever try to quantify what the impact is to the completion of this project brought about by the lack of completion of the building? I didn't quantify it in days, or anything, but it had a significant impact in the completion of the ­ or the start date to cheese make, yes. If you were going to quantify what the impact was, how would you go about doing it? I would probably get a scheduler to go back through all of the documents and back into the dates. It's a huge amount of work. Sure. But it can be done. So you get a scheduler. What do you do with the scheduler? What does he do? He goes through all the records. Okay. Does what with them? Factual with them. Goes through all of Big-D's records, goes through all of our records, marries them, puts them together, and essentially ascertains where the critical benchmarks were, where they weren't made, and what impact they had on the next piece. 3.

A.

Q.

A.

Q. A. Q.

A. Q. A.

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Q.

Let's see if I understand it. Let me ask you this. Would you ask the scheduler, if you were going to hire one yourself ­ again, I'm not talking about any experts. I'm talking about you. You hire an expert. What schedule would you ask him to look at to determine how this project was impacted by the failure of Big-D to complete on time? You'd start with LEO5 and take it forward. All right. So you ask him to look at the created schedules, the schedules that Big-D created, and then you try to ascertain events that impacted the completion of that schedule, and you determine the impact on that schedule of these events? Is that how you do it? I didn't do that. ***

A. Q.

A.

Q.

Mr. Towle, you know that Leprino has made a claim in this litigation that the job was delayed and that they want 25 million dollars related to that delay? Do you know that? Correct. Now, again, and I want to caution you, because I'm really not interested in any conversations you have had with the attorneys or people working for the attorneys. That's not my goal. What I want to know is, have you been asked to review the claim submitted by Leprino to Big-D in this case?

A. Q.

A.

No."

See, Towle Deposition at 608:17-610:24. Thus, by Mr. Towle's own admission, he neither performed a contemporaneous analysis of the ultimate impact on the Project of specific delays, nor, to his knowledge, did anyone at Leprino. Furthermore, according to him, this type of analysis would necessarily involve a significant amount of work that he himself would have performed by a professional scheduler.

4.

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III.

CONCLUSION For the reasons stated above, Big-D respectfully requests an Order that witnesses

intending to testify regarding the ultimate cause or impact of Project delays first be qualified as expert witnesses under Federal Rule of Evidence 702, or that the party proffering such testimony show a specific basis for the witness's lay opinions pursuant with the requirements Federal Rule of Evidence 701. Respectfully submitted this 30th day of March, 2006. S/ Christopher J. Hersey Christopher J. Hersey Miller, Morton, Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, California 95110 Telephone: (408) 292-1765 FAX: (408) 436-8272 E-mail: [email protected] Attorneys for Defendant Big-D Construction Corp.- California and Big-D Construction Corp.
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5.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 30, 2006 I electronically filed the foregoing named document: DEFENDANTS BIG-D CONSTRUCTION CORP-CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S REPLY BRIEF IN SUPPORT OF MOTION IN LIMINE NO. 8 TO PRECLUDE TESTIMONY FROM PARTY WITNESSES REGARDING CONSTRUCTION DELAYS UNLESS WITNESSES ARE FIRST QUALIFIED AS EXPERTS -ANDCERTIFICATE OF COMPLIANCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Michael Gerard Bohn [email protected] [email protected] Bret Matthew Heidemann [email protected] [email protected] Francis (Frank) J. Hughes [email protected] [email protected] Patrick Quinn Hustead [email protected] Peter J. Ippolito [email protected] Richard Carl Kaufman [email protected] [email protected] Patrick T. Markham [email protected] [email protected] John David Mereness [email protected] C. Michael Montgomery [email protected] [email protected] [email protected] Daniel James Nevis [email protected] [email protected] N. Kathleen Strickland [email protected] [email protected] Laurence R. Phillips [email protected] [email protected]

s/ Joan R. Kester Joan R. Kester