Free Pretrial Order - 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 FINAL LIST OF WITNESSES A. Non-expert Witnesses: 1. Jack Livingood Chairman of the Board Big-D Construction Corp.

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404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000 The general substance of Mr. Livingood' testimony will include, but not necessarily be s limited to: a. The negotiation, understanding and interpretation of the Prime Contract and general conditions; b. Increased project staffing, including without limitation, reasons for the increase, the quantification of increases, and discussion with Jim Leprino; and c. Percipient observations, opinions and comments on actions, inactions, performance, lack of performance, conduct, waiver and estoppel, abandonment, scheduling, estimating, claims and communications by (1) LFC and its consultants, contractors, vendors, agents and employees (2) UMM and its agents, subcontractors, suppliers vendors and employees; and (3) Big -D its subcontractors, suppliers, agents, consultants and employees; d. Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Livingood intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and cost-tracking procedures, Big-D' s actual and planned Project costs, and the causes and impacts of Project delays. e. His testimony will be in person. 2. Rob Moore President Big-D Construction Corp.-California 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000 The general substance of Mr. Moore' testimony will include, but not necessarily s be limited to:

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a. b.

The topics discussed in his deposition; The negotiation, understanding and interpretation of the Prime Contract and general conditions; Increased project staffing, including without limitation, reasons for the increase, the quantification of increases, and discussions with Leprino representatives; and Percipient observations, opinions and comments on actions, inactions, performance, lack of performance, conduct, waiver and estoppel, abandonment, scheduling, estimating, claims and communications by (1) LFC and its consultants, contractors, vendors, agents and employees; (2) UMM and its agents, subcontractors, suppliers vendors and employees; and (3) Big -D its subcontractors, suppliers, agents, consultants and employees;

c.

d.

e.

Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Moore intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and costtracking procedures, Big-D' actual and planned Project costs, and the s causes and impacts of Project delays. f. 3. His testimony will be in person.

Larry Worrell Chief Financial Officer Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000 The general substance of Mr. Worrell' testimony will include, but not s

necessarily be limited to: a. b. The topics covered in his deposition; Big-D project costs;

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c. d. e. f. g. h. i. j.

Big-D general condition costs; Big-D' internal response to UMM' REA/Lawsuit; s s Sufficiency of the cost records received from UMM, and standard construction cost accounting documentation; Costs claimed by UMM including without limitation, home office overhead and labor burden; Premiums and other material regarding mechanics lien release Bond; Response to LFC expert report concerning Big-D corporate structure; Issues relating to piercing the corporate veil; and Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Worrell intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and costtracking procedures, Big-D' actual and planned Project costs, and the s causes and impacts of Project delays. His testimony will be in person.

k. 4.

Forrest McNabb Senior Vice President Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. McNabb' testimony will include, but not necessarily be s limited to: a. Those topics covered in his deposition; b. Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. McNabb intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial

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projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and cost-tracking procedures, Big-D' s actual and planned Project costs, the work of Big-D' subcontractors on the s Project, and the causes and impacts of Project delays. c. 5. His testimony will be in person.

Mark Sheanshang, P.E. Vice President Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Sheanshang' testimony will include, but not necessarily be s limited to: a. b. The topics covered in his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Sheanshang intends to offer may include, but not necessarily be limited to, the standard of care for general contractors, including the performance of the work, owner communications and responsibilities, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and cost-tracking procedures, Project close-out procedures, the causes and impacts of Project delays, and Big-D' entitlement s to compensation for unapproved change order work; and His testimony will be in person.

c. 6.

Jeff Jorgensen Senior Estimator Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Jorgensen' testimony will include, but not necessarily be s

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limited to: a. b. The topics covered in his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Jorgensen intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, the project pricing, estimating, bidding and costtracking procedures, Big-D' actual and planned Project costs, and the s causes and impacts of Project delays; and His testimony will be in person.

c. 7.

Kerry Arnold Senior Project Manager Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Arnold' testimony will include, but not necessarily be s limited to: a. b. The topics covered in his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Arnold intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and cost-tracking procedures, Big-D' s actual and planned Project costs, the work of Big-D' subcontractors on the s Project, UMM' requests for compensation, and the causes and impacts of s Project delays; and His testimony will be in person.

c.

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8.

Kenton J. Wall Senior Project Manager Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Wall' testimony will include, but not necessarily be s limited to: a. b. The topics covered in his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Wall intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and costtracking procedures, Big-D' actual and planned Project costs, the work of s Big-D' subcontractors on the Project, and the causes and impacts of s Project delays; and His testimony will be in person.

c. 9.

Rick Williams Big-D Former Project Manager/Superintendent

The general substance of Mr. Williams'testimony will include, but not necessarily be limited to: a. b. The topics covered at his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Williams intends to offer may include, but not necessarily be limited to, available project delivery mechanisms, the customs and practices for the construction of large industrial projects, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight,

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project pricing, estimating, bidding and cost-tracking procedures, Big-D' s actual and planned Project costs, the work of Big-D' subcontractors on the s Project, and the causes and impacts of Project delays; and c. 10. His testimony will be in person.

Michael Dearden Project Superintendent Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Dearden' testimony will include, but not necessarily be s limited to: a. b. The topics covered in his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Dearden intends to offer may include, but not necessarily be limited to, the standard of care for general contractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, the work of Big-D' subcontractors on the Project, s and the causes and impacts of Project delays; and His testimony will be in person.

c. 11.

Bruce Gantenbein Former Superintendent 3937 Highway 81 South Jonesborough, Tennessee 37659 Telephone: (423) 753-5359

The general substance of Mr. Gantenbein' testimony will include, but not necessarily be s limited to: a. The topics covered in his deposition; b. Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Gantenbein intends to offer may include, the standard of care for general contractors and MERP subcontractors, including the performance of

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the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and cost-tracking procedures, Big-D' actual and planned Project costs, the work of Bigs D' subcontractors on the Project, his review and analysis of UMM' s s Change Estimates and claims for additional compensation, and the causes and impacts of Project delays; and c. His testimony will be in person/or possibly by deposition. 12. David E. Evans Superintendent Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Evan' testimony will include, but not necessarily be s limited to: a. b. The topics covered in his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Evans intends to offer may include, but not necessarily be limited to, the standard of care for general contractors and MERP subcontractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and cost-tracking procedures, Big-D' actual and planned s Project costs, the work of Big-D' subcontractors on the Project, his review s and analysis of UMM' Change Estimates and claims for additional s compensation, and the causes and impacts of Project delays; and His testimony will be in person.

c. 13.

Bill Hendrickson Project Manager Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

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The general substance of Mr. Hendrickson' testimony will include, but not necessarily s be limited to: a. Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Hendrickson intends to offer may include, but not necessarily be limited to, the standard of care for general contractors and MERP subcontractors, including the performance of the work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project pricing, estimating, bidding and cost-tracking procedures, Big-D' actual and planned s Project costs, the work of Big-D' subcontractors on the Project, the s underground work; his review and analysis of UMM' Change Estimates and s claims for additional compensation, and the causes and impacts of Project delays; and His testimony will be in person.

b. 14.

Bart Howell Project Superintendent Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Howell' testimony will include, but not necessarily be s limited to: a. Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Howell intends to offer may include, but not necessarily be limited to, the underground work, owner communications and owner responsibilities for design-related issues, project management and coordination, including project scheduling, workforce supervision, and subcontractor oversight, project p r i c i n g , estimating, bidding and cost-tracking procedures, Big-D' actual and planned Project costs, the s work of Big-D' subcontractors on the s Project, and the causes and impacts of Project delays; and b. His testimony will be in person.

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15.

Darwin Morrison Superintendent Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Morrison' testimony will include, but not necessarily be s limited to: a. b. The topics covered in his deposition; Based on his education and experience in the construction industry and with the Lemoore West Project, the opinions that Mr. Morrison intends to offer may include, but not necessarily be limited to, owner communications and owner responsibilities for design-related issues, including document processing procedures, the work of Big-D' subcontractors on the Project, s including but not limited to the work of Rising Sun, and the causes and impacts of Project delays; and His testimony will be in person/possibly by deposition.

c. 16.

James Arnold Office Assistant Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

Mr. James Arnold will be produced for foundational purposes only. Will only appear at trial if required to authenticate trial exhibits prepared for purposes of litigation. 17. David Shankel Former Leprino Foods Company Project Manager

The general substance of Mr. Shankel' testimony will include, but not necessarily be s limited to: a. b. Issues and testimony addressed in his deposition; As LFC' former employee and based on his education and experience in s the construction industry and with the Lemoore West Project, the opinions

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c. 18.

that Mr. Shankel may be called to offer may include, in addition to those topics discussed at his deposition, but not necessarily be limited to, owner communications and owner responsibilities at the Project, project management and coordination, including project scheduling, workforce supervision, project pricing and cost-tracking procedures, the work of BigD and its subcontractors on the Project, the work of LFC own design team and other independent contractors on the Project, and the causes and impacts of Project delays; and Testimony may be in person, or possibly by deposition video/transcript

Alan Burrows Former Leprino Foods Company Project Manager 10958 W. Rio Vista Lane Avondale, AZ 85323 Telephone: 602-567-1379

The general substance of Mr. Burrow' testimony will include, but not necessarily be s limited to: a. b. Issues and testimony addressed in his deposition; As LFC' former employee and based on his education and experience in s the construction industry and with the Lemoore West Project, the opinions that Mr. Burrows may be called to offer may include, in addition to those topics discussed at his deposition, but not necessarily be limited to, owner communications and owner responsibilities at the Project, project management and coordination, including project scheduling, workforce supervision, project pricing and cost-tracking procedures, the work of BigD and its subcontractors on the Project, the work of LFC' own design s team and other independent contractors on the Project, and the causes and impacts of Project delays; and Testimony may be in person, or possibly by deposition video/transcript

c. 19.

Charles Schneider Big-D Project Engineer Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Schneider' testimony will include, but not necessary be limited s to:

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a.

Mr. Schneider' experiences and knowledge of the Project, its schedule, and s the performance of Big-D' subcontractors; and Testimony in person.

b. 20.

Blake Hall Big-D Assistant Project Manager Big-D Construction Corp. 404 West 400 South South Lake City, Utah 84101 Telephone: (801) 415-6000

The general substance of Mr. Hall' testimony will include, but not necessary be limited to: s a. Mr. Hall' experiences and knowledge of the Project, its schedule, s and the performance of Big-D' subcontractors; and Testimony in person.

b. 21.

Ron Weaver Global Industry Contractors Superintendent

The general substance of Mr. Weaver' testimony will include, but not necessary be limited s to: a. The topics covered in his deposition; and b. Testimony will be by deposition. 22. Marshall Paul Russ GIC Estimator

The general substance of Mr. Russ'testimony will include, but not necessary be limited to: a. b. 23. The topics covered in his deposition; and Testimony will be by deposition.

UMM Deposition Witnesses. In the event that favorable testimony is not adduced

during direct or cross-examination, Big-D intends to utilize certain deposition testimony from the following UMM witnesses, and/or some deposition testimony may be used from the following

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witnesses in any event: a. b. c. d. e. f. g. h. i. j. k. l. 24. John Ellis Jay McEntire Dan Kennedy Lou Beck Bob Marlin Ray Marlin Dave Stewart Dennis Owen Jerry Beatty Dan Chin Terry Kvochak Mark Berry

LFC Deposition Witnesses. In the event that favorable testimony is not adduced during

direct or cross-examination, Big-D intends to utilize certain deposition testimony from the following LFC witnesses and/or some deposition testimony may be used from the following witnesses in any event: a. b. c. d. e. f. g. Jack Towle Joel Krein Jim Leprino Doug Jay Jim Reidy Robert Garcia Bob Delong

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h. i. j. k. l. m. n. o. p. q. r. 25.

Steve McCormick Tim Hutcheson, former Leprino employee Robert Groves (LFC retained expert) Brian Hall (LFC retained expert) Leslie Stout, EA Bonelli Scott Savage, EA Bonelli Rich Fitterer, SJO Gerald Daily, SJO Todd Bee David Kielsmeyer Carl Buell

Subcontractor Witnesses. The following additional witnesses may be requested by

Big-D to appear in person at trial if necessary to testify regarding specific delays, change orders, or other issues on the Project impacting their respective scopes of work: a. Joel Hancock; Superintendent GSL Electric (Big-D Electrical Subcontractor) Ron Williams; Superintendent Harder Mechanical, Inc. (Big-D Mechanical Subcontractor) Monty Clifton; Superintedent Rex Moore Electric (Big-D Electric Subcontractor) Nicholas Ruba; Project Manager Adams & Smith (Big-D Phase II Steel Subcontractor) Bill Sario, Owner Rising Sun (Big-D Concrete Subcontractor) Tad Rasmussen; Project Manager Tech Steel, Inc. (Big-D Steel Fabricator) Ron Weaver

b.

c.

d.

e. f.

g.

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h. B.

Global Industrial Contractors (Leprino Waste Water Pre-treatment Contractor; via deposition testimony only)

Expert Witnesses: 26. Phillip M. Gudgel Executive Vice President WGK & Associates, Inc. 6600 West 95th Street Overland Park, Kansas 66212 Telephone: (913) 648-0096

The general substance of Mr. Gudgel' testimony will include those subjects set forth in s his expert report, including but not limited to, opinions, issue and subjects covered in his deposition, contained in his report and supporting binders, and information concerning industry customs and practices. 27. D. Paul Regan, CPA, CFE President and Chairman Hemming Morse, Inc. 160 Spear Street, #1900 San Francisco, CA 94105 Telephone: (415) 836-40000

The general substance of Mr. Regan' testimony will include those subjects set forth in his s expert report, including but not limited to, opinions, issues and subjects covered in his deposition and contained in his report and supporting binders; and industry customs regarding damages, lost profits, and the calculation thereof.

28.

Fred Clark, P.G. The Source Group, Inc. 501 Marin Street, Suite 112B Thousand Oaks, CA 91360 Telephone: (805) 373-9063

The general substance of Mr. Clark' testimony will include those subjects set forth in his s

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expert report, including but not limited to, the opinions, issues and subjects covered in his deposition and contained in his report and supporting binders. 29. Ron Schumway RLS Consulting, LLC 1805 North Carson Street, Suite 3C Carson City, Nevada 89701-1216 Telephone: (510) 654-4020

The general substance of Mr. Schumway' testimony will include, a general introduction s on fundamental construction issues such cost-plus contracts, guaranteed maximum price contracts, mechanics'liens, change orders, and fast track projects. It is unlikely that Big-D will call Mr. Schumway, unless a motion to change the order of proof is granted.

Respectfully submitted this 22nd day of March, 2006. s/ Francis J. Hughes Francis J. Hughes Miller, Morton, Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, California 95110 Telephone: (408) 292-1765 FAX: (408) 4368272 E-mail: [email protected] Attorneys for Defendant Big-D Construction Corp.- California and Big-D Construction Corp.

:NewLitigationLibrary:9113.1UNITED

STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 22, 2006, I electronically served the foregoing named document: DEFENDANTS BIG-D CONSTRUCTION CORP-CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.' S FINAL LIST OF WITNESSES -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A

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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 T. Markham [email protected] [email protected] John David Mereness [email protected]

Patrick Quinn Hustead [email protected] Peter J. Ippolito [email protected]

Richard Carl Kaufman [email protected] [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]

And, I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participant' s name:

s/ Kathleen Marie Dolce Kathleen Marie Dolce