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

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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. 5 TO PRECLUDE EXPERT TESTIMONY AND/OR EVIDENCE NOT PREVIOUSLY PROVIDED IN ACCORDANCE WITH FED.R.CIV.P. 26(a) [FED.R.CIV.P. 37(c)]

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I.

INTRODUCTION Defendants Big-D Construction Corp ­ California, Big-D Construction Corp, Big-D

Capital Corp. and Big-D Corp. (collectively referred to herein as "Big-D") have respectfully moved the Court for an Order in limine to preclude Plaintiff Leprino Foods Company ("Leprino") from introducing opinion testimony from its retained expert, Robert Groves, that was not properly disclosed pursuant to Federal Rules of Civil Procedure, Rules 26(a) and 37(c). The Federal Rules regarding the disclosure of expert information are unambiguous. Parties who, without substantial justification, fail to disclose complete statements of all opinions to be expressed by a retained expert, including the data and other information considered by the expert in forming his or her opinions, shall not be permitted to use that expert's undisclosed opinions or information at trial. Leprino admits that it failed to disclose or to provide significant information and supporting documentation for the opinions formed by its retained expert, Mr. Groves, at the time those opinions and supporting documentation were required to be exchanged on January 27, 2006. Rather, despite repeated requests by Big-D that Leprino produce all of the schedulerelated documents considered by Mr. Groves in forming his opinions, Leprino took the position that it was not required to provide these opinions or the supporting documentation until the morning of Mr. Groves' deposition. At that time, and as is set forth below in exacting detail, it became obvious that Mr. Groves' opinion, as expressed in his deposition and in the supporting documentation that he provided for the first time that morning, were substantially different from the opinions expressed in Mr. Groves' written report. This left inadequate time for Big-D and its own expert witness, Phil Gudgel, to consider Mr. Groves' "true" opinions, or to properly prepare

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for Mr. Groves' deposition. By the time Leprino disclosed Mr. Groves' "true" opinions regarding the cause of the construction delays to the Project, the deadline for the exchange of expert reports and rebuttal reports had already passed, and there was no opportunity to continue the deposition because Mr. Gudgel's deposition had already been scheduled for the next day. Leprino therefore denied Big-D the opportunity to properly prepare for Mr. Groves' deposition, and prejudiced Big-D by limiting the ability of Big-D's expert, Mr. Gudgel, to respond to Mr. Groves' new opinions, either in his own deposition testimony or rebuttal report. Leprino's conscious decision to withhold Mr. Groves' opinions until the day of his actual deposition should not be without consequences. Pursuant to the Federal Rules of Civil Procedure, the proper and mandatory remedy is to prohibit Leprino from offering into evidence those opinions or supporting documents that were not properly produced as a part of Mr. Groves' expert report on January 27, 2006. II. ARGUMENT A. Leprino Does Not Dispute the Requirement In F.R.C.P. 26 that Expert Opinions Must be Disclosed, Nor Does It Deny that the Sanction for Failing to Disclose Expert Opinions Is the Exclusion of Testimony

In its Opposition to Big-D's Motion, Leprino makes no argument disputing the applicability of Rule 26(a)(2)(B), which provides: "Shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions...." Fed.R.Civ.P. 26(a)(2)(B) [Emphasis added.] Similarly, Leprino does not dispute the mandatory evidentiary sanction for failing to comply with the disclosure requirements, as provided in Rule 37(c):

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"A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c). The only questions before the Court, therefore, are (1) Whether Leprino properly disclosed all of Mr. Groves' opinions; and (2) The extent of the prejudice suffered by Big-D. B. The Opinions and Documents Produced by Mr. Groves at His Deposition on February 13, 2006 Were Substantially Different Than Those Opinions Offered in Mr. Groves' Written Expert Report on January 27, 2006

On January 27, 2006, Leprino produced to Big-D the narrative portion of Mr. Groves' expert report regarding his opinions as to the causes of the delays experienced on the Lemoore West Project. Contrary to the requirements of F.R.C.P., Rule 26(a)(2)(B), however, Leprino's disclosure of Mr. Groves' report did not contain any of the supporting information or documents that Mr. Groves had considered in forming his opinions. With specific regard to the cause of the construction delays experienced on the Project, Mr. Groves' expert report concluded that of the 263 calendar days of delay experienced on the Project, Big-D and its subcontractors, including UMM, may be responsible for 251 of those calendar days. See, Affidavit of Francis J. Hughes, ¶ 3, Ex. A (Expert Report of Robert R. Groves) (hereinafter "Groves Report"), at p. 9. In calculating these values, Mr. Groves reported that he, "Analyzed Big-D's `As-Planned' Schedules, analyzed Big-D's `As-Built' Schedule data, quantified schedule delays and evaluated the causes of project delays." See, Groves Report at p. 7. As described, this comparison between the As-Planned and As-Built Construction //

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Schedules was included in excerpted form in Mr. Groves' written report. Specifically, on page 14 of his report, Mr. Groves set forth the following As-Planned Schedule summary:

As seen above, according to Mr. Groves' As-Planned Schedule analysis, Leprino's process equipment/piping/testing work was supposed to commence in the Cheese Make area of Building 100 on August 28, 2001. Mr. Groves' opinion was that, because of delays caused by Big-D and its subcontractors, work in this area did not actually begin until September 18, 2001. In support of this opinion, Mr. Groves provided the following As-Built Schedule summary in his expert report:

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As seen on the As-Built Schedule summary, the process equipment/piping work in the Cheese Make area of Building 100 did not actually commence until September 18, 2001 (e.g., approximately 20 days behind the As-Planned Schedule shown above). According to Mr. Groves, this entire period of time in August and September 2001, corresponds to what he labeled in his expert report as "Review Period 1B," encompassing the delays experienced between February 26, 2001 through November 26, 2001. See, Groves Report at pp. 26-28. His ultimate conclusion was that although the process equipment and piping work commenced twenty (20) days after the time it was originally scheduled, due to other mitigating factors, the Project ultimately only experienced seven (7) total days of delay during Review Period 1B. See, 5.

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Groves Report at pp. 22, 26-28. These delays were incurred, according to Mr. Groves, because of the twenty (20) day late start to the process equipment work, thirteen (13) days of which were actually recaptured. This story dramatically changed, however, at Mr. Groves' deposition. When placed under oath, Mr. Groves' opinion became not just that the Project experienced delays during Review Period 1B because of the late start of the process equipment and piping work, but rather that once that work actually commenced, the duration of that work actually took longer than originally planned. The difference in Mr. Groves' testimony and those opinions contained in his expert report are subtle, although critical. Whereas in his written expert report, Mr. Groves opined that the late start of the process equipment and piping work was recaptured and only resulted in seven (7) total days of delay, his deposition testimony was that once the work started, the durations were actually extended. To support this apparent change in opinion, Mr. Groves directed counsel for Big-D to the schedules he had prepared and brought with him for the first time to his deposition. See, Affidavit of Francis J. Hughes, ¶ 4, Ex. "B" (Deposition testimony of Robert Groves), at 87:8-106:25. In this testimony, Mr. Groves admits that his analysis of the construction delays is now based on the durations of the various construction activities, as opposed to the start date for those activities. Additionally, he admitted that his analysis was only documented in the binders only produced to Big-D on the morning of Mr. Groves' actual deposition. See, Groves Deposition at 87:21-92:25. // // //

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C.

Despite Numerous Requests From Big-D for Mr. Groves' Supporting Documentation, Leprino Intentionally Chose Not to Produce His Supporting Materials Until the Day of His Actual Deposition

The decision by Leprino not to produce all of the documents considered by Mr. Groves in forming his opinions was not one of inadvertence. Rather, in spite of numerous requests from Big-D's counsel, Leprino intentionally chose not to provide Big-D and its counsel with the documents Mr. Groves would be relying upon until the actual morning of his deposition. Attached to the accompanying Affidavit of Francis J. Hughes, Big-D's attorney, are a series of electronic correspondence between counsel for Big-D and Leprino. See, Affidavit of Francis J. Hughes, ¶ 5, Ex. "C." The first two correspondence, both dated January 27, 2006, confirm the parties' electronic exchange of the expert reports. Hard-copies of all exhibits and supporting documents were then supposed to be sent that same day via overnight mail. See, Affidavit of Francis J. Hughes, ¶ 5, Ex. "C." Beginning on January 30, 2006, however, and continuing through February 8, 2006, are a series of additional correspondence detailing Big-D's repeated and insistent requests that Leprino produce the schedules that Mr. Groves had prepared and upon which he was relying when he formed his expert opinions. Ultimately, this exchange ended without the production of the relevant schedules by Leprino until the day of Mr. Groves' deposition. D. Big-D Was Prejudiced by Leprino's Intentional Decision to Withhold Mr. Groves' Documents

There is no dispute that Mr. Groves' deposition testimony and the back-up documentation that he provided for the first time at his deposition were substantially different than the opinions offered in his written expert report on January 27, 2006. Moreover, there is no dispute that Leprino chose not to provide this information to Big-D until Mr. Groves was placed

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under oath on February 13, 2006. Leprino does not dispute the relevant law in this area, and therefore has the burden of proof to substantially justify why it failed to comply with the disclosure requirements set forth under Rule 26 and to demonstrate that its failure to comply with those disclosure requirements did not cause harm or any other undue prejudice to Big-D. See, Fed.R.Civ.P., Rules 26, 37(c); Jacobsen v. Deseret Book Co. (10th Cir. 2002) 287 F.3d 936, 952954. Leprino's only argument in this regard is that Big-D had the opportunity to cure any prejudice by continuing Mr. Groves' deposition for a second day. Leprino's attempt to shift the burden to Big-D falls short for several reasons. First, Leprino's counsel admits that on the day Big-D was surprised with Mr. Groves' new opinions and documents, the deposition schedule had already been changed. Big-D's expert witness, Phil Gudgel, had already flown from Kansas City to California, and was scheduled to be deposed the next day, on February 14, 2006. See, Affidavit of Patrick T. Markham, ¶ 5. Second, Leprino's half-hearted offer to permit Big-D to continue Mr. Groves' deposition on a day that had already been scheduled for another deposition in this case, would not have alleviated the prejudice to Big-D even if the offer were accepted. As indicated in Big-D's Motion, by February 14, 2006, the deadline for the preparation and exchange of rebuttal expert reports had already passed, and Mr. Gudgel had already traveled from Kansas City for his deposition the following day. Big-D and its primary retained expert, therefore, had no opportunity to prepare to rebut Mr. Groves' new opinions and his newlyproduced written materials prior to the deadline for the exchange of expert reports or prior to Mr. Gudgel's own deposition. Leprino therefore had the benefit of deposing Big-D's expert //

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without Mr. Gudgel having the opportunity to understand the claims of Leprino's expert, Mr. Groves. III. CONCLUSION Leprino offers no justifiable explanation for its failure to disclose Mr. Groves' actual opinions or his supporting documents on January 27, 2006, when the exchange of expert witness information was required. Conversely, Big-D was prejudiced by its inability to prepare for deposition or to submit a rebuttal expert report. As such, Big-D respectfully requests that Leprino be precluded from offering Mr. Groves' expert testimony regarding delays caused by the duration of various construction activities (as opposed to the start date of those construction activities), as those opinions were not contained in his expert report.1 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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In its Opposition, Leprino makes an informal request that the Court consider the documentation provided by one of Big-D's other retained experts, Paul Regan, at his deposition. This request is not only procedurally improper, as Leprino did not submit a Motion in limine, but is also devoid of any factual basis for the requested relief. Mr. Regan's written expert report, produced by Big-D to Leprino on January 27, 2006 (see, Affidavit of Francis J. Hughes, ¶ 5, Ex. "C") referenced all documents considered by Mr. Regan. Additionally, unlike the present Motion by Big-D, there is no allegation by Leprino that the opinions expressed by Mr. Regan in his written report differed from those opinions or materials provided at his deposition.

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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. 5 TO PRECLUDE EXPERT TESTIMONY AND/OR EVIDENCE NOT PREVIOUSLY PROVIDED IN ACCORDANCE WITH FED.R.CIV.P. 26(a) [FED.R.CIV.P. 37(c)] -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

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