Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; BIG-D CORPORATION, a Utah corporation; BIG-D CAPITAL CORP., a Wyoming corporation; and Does 1-100, inclusive, Defendants/Counterclaimants, BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, 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, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants.

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PLAINTIFF' RESPONSE IN OPPOSITION TO BIG-D DEFENDANTS' MOTION IN S LIMINE NO. 8: TO PRECLUDE TESTIMONY FROM PARTY WITNESSES REGARDING CONSTRUCTION DELAYS UNLESS SAID WITNESSES ARE FIRST QUALIFIED AS EXPERTS Plaintiff Leprino Foods Company ("LFC") states as follows in opposition to the Big-D Defendants'("Big-D") Motion in Limine No. 8 ("Motion"): I INTRODUCTION Big-D' Motion, arguing that Leprino' Director of Engineering & Construction may not s s testify about Big-D' construction delays unless he has been qualified as an expert witness, is legally s baseless and defies common sense. Leprino' claim arises out of a construction project that was s completed ten (10) months later than the scheduled completion date. The ultimate question in the case is whether Big-D, the contractor, is liable for the delay. For Big-D to argue that only "expert" scheduling consultants may testify that Big-D caused delays in the project, and to attempt to exclude such testimony from the only percipient witness who was essentially on this project from its commencement to conclusion, would only allow testimony on project delay to be provided y by hired guns. At its core, Big-D' Motion advances the patently ridiculous argument that, upon the advent of s "expert" scheduling consultants in the arena of construction litigation, the project manager, who has lived the project on a daily basis and managed it from commencement to conclusion, is no longer to be considered competent to give testimony on a contractor' delayed completion of a construction s project.

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II ARGUMENT A. Big-D fails to present any legal authority for its request.

Big-D asserts that "[b]ecause such opinions require an expert foundation," no one should be permitted to testify regarding Project impacts and delays, or to provide "ultimate conclusions as to whether a Project activity or event impacted or delayed the Project' completion," unless he or she is s "qualified as an expert in the field of construction scheduling analysis." (Big-D Motion in Limine No. 8, at 3.) Big-D specifically suggests that such a ruling should exclude the testimony of Jack Towle, Leprino' project manager. (Big-D Motion in Limine No. 8, at 3.) s Jack Towle is the Director of Engineering & Construction for Plaintiff Leprino Foods Company. Mr. Towle began working in construction in high school and, throughout his 40-year career, has overseen and managed general contractors (and in certain instances has acted as the general contractor) on numerous new construction and remodeling of processing plants. Mr. Towle spent more time on the Lemoore West project than did any other single witness involved in this case, and Mr. Towle, unlike any other witness, was involved in the project practically from its commencement to its completion. Mr. Towle had input into Big-D' preparation of the LE-05 s project schedule and its update over the course of the project. Mr. Towle had direct contact with both the Big-D field personnel as well as the Big-D office management. Mr. Towle provided direction and oversight to Big-D with respect to its adherence or failure to adhere to the project schedule, and the activities in which Big-D was required to engage to remedy its failure to comply with the project schedule. There is no other single witness involved on this project that had the same length of time and depth of experience as that of Mr. Towle on this project. It is laughable, and a

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perversion of the fact-finding process, to suggest that "expert" scheduling consultants retained for litigation are the only persons qualified to testify on the delays and other scheduling issues encountered on this project, or could better inform the court as to the facts of the situation. Big-D argues that "Only a qualified expert should be permitted to opine as to: (1) the activities or events that caused delay; (2) the duration of delay caused by these activities or events; (3) whether a particular instance of delay was recovered; and (4) analysis or understanding of the Project schedule(s) and the Project' critical path." (Big-D Motion in Limine No. 8, at 6.) Big-D adds that s "It is important to note that such a requirement will not preclude non-expert witnesses from offering their opinion as to when particular construction activities actually started or were actually completed. Nor does it preclude non-expert witnesses from offering testimony regarding their understanding of circumstances or events that transpired during [the] Project." (Id.) Big-D fails to present any legal authority for the proposition that it is entitled to an in limine Order precluding a lay witness who has spent the last 40 years overseeing construction projects from testifying to the fundamental question of whether a contractor' performance complied with the s construction schedule. In fact, the only case law Big-D cites is Iacobelli Construction, Inc. v. County of Monroe, 32 F.3d 19 (2nd Cir. 1994), and Wilner v. United States, 26 Cl. Ct. 260 (1992), neither of which advances Big-D' argument. Iacobelli merely suggests that construction expert witnesses are s not necessarily the kind of "junk science" consultants that Daubert would exclude from testifying. (See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). Wilner stands for the proposition that a critical path analysis is necessary to support a claim arising out of a project utilizing critical path method scheduling. Wilner neither states nor implies that qualification as a construction scheduling expert is necessary for one to testify with respect to a 4

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delayed construction project. In fact, in Wilner, the president of the plaintiff contractor was allowed to testify in support of plaintiff' claim without being qualified as an expert and, despite its failure to s provide a critical path analysis in support of its claim, plaintiff was allowed a recovery on its claim. The other purported "authority" cited by Big-D in support of its argument that percipient witnesses should not be allowed to testify on construction scheduling issues unless qualified as an "expert" scheduling consultant includes impressive language referring to the "technical nature of construction," the "subtleties of managing construction," the "intricacies" of scheduling, and the "complex interrelationships" involved in the "scientific and professional effort" of proving a delay claim. All of these are quotes taken from books written by persons who make their living providing services as "expert" scheduling consultants ­ not state or federal legal opinions or other helpful judicial precedent or even secondary source material. Before the advent of the coat-and-tie-wearing "expert" scheduling consultant, who provided and still usually provides the necessary testimony as to a contractor' delayed completion of a project? The project manager with muddy boots. Cases are s legion in which the owners' project managers testified, at great length and in a highly technical manner, regarding contractors'failure to meet their scheduled completion dates, with no questions raised as to the propriety of this testimony. See, e.g., Westphal GmbH & Co. KG v. West, No. 971121, slip op. at *12, 1998 U.S. App. LEXIS 1847 (Fed. Cir. Feb. 11, 1998); Thalle Construction Co. v. The Whiting-Turner Contracting Co., 39 F.3d 412, 415 (2nd Cir. 1994); Tyger Construction Co. v. Pensacola Construction Co., 29 F.3d 137, 141 (4th Cir. 1994); Mergentime Corp. v. Washington Metropolitan Area Transportation Authority, Civ. No. 89-1055 (TFH), slip op. at *79, 2006 U.S. Dist. LEXIS 9771 (D.D.C. Feb. 22, 2006); Aetna Casualty & Surety Co. v. The George Hyman Construction Co., Civil Action No. 93-CV-4750, slip op. at *90, 1998 U.S. Dist. LEXIS 5

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22627 (E.D. Pa. May 15, 1998). Based on the foregoing, Plaintiff Leprino respectfully suggests that Mr. Towle should be allowed to testify as a percipient witness, without need for qualification as an expert witness, as to the acts or omissions of Defendant Big-D that constituted delay in the work or that led to delayed completion of the project. B. Federal Rule of Evidence 701 permits Jack Towle' testimony. s

Conversely, if the Court believes that testimony relating to a contractor' delayed completion s of a construction project constitutes something more than percipient evidence, Plaintiff Leprino respectfully suggests that Fed. R. Evid. 701 provides the appropriate analytic framework. Rule 701, amended effective December 1, 2000 to add the italicized language, states as follows: Rule 701. Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Here, Mr. Towle' testimony as to Big-D' delay in completion of the project is based upon s s his own knowledge of what occurred and failed to occur on the project, will be helpful to the jury, and does not constitute scientific, technical, or other specialized knowledge. If it did constitute scientific, technical, or other specialized knowledge (for which a witness must be qualified under Rule

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702), the prior cases cited would not have allowed project managers to testify as percipient witnesses as to contractors'delayed completion of projects. The Advisory Committee' Notes to the amended Rule 701 cite Asplundh Manufacturing s Division v. Benton Harbor Engineering, 57 F.3d 1190 (3d Cir. 1995), for the proposition that the amendment is not intended to affect the "prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences." Asplundh itself cited a number of cases in which persons with expertise developed from years of working in particular fields were allowed to give lay opinions arising out of those years of experience, not unlike Mr. Towle' situation in the instant matter. s The Notes go on to observe that "most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiffs owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the dayto-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis." Similarly, Mr. Towle has developed particularized knowledge relating to a contractor' timely or untimely performance on a construction project. s

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One of the most recent cases decided since the 2000 amendment to Rule 701 is Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir. 2003), in which the Eleventh Circuit Court of Appeals found no abuse of discretion on the part of the U.S. District Court for the Middle District of Florida' rejection of the defendant' motion in limine seeking to exclude s s testimony offered by the plaintiff' employees and/or officers. The Eleventh Circuit found that the s offered testimony was of the type traditionally and properly considered lay witness testimony, as it was not based upon specialized knowledge subject to Rule 702. The plaintiff' witnesses testified s based upon their particularized knowledge developed after years of experience within the field. Given the level of deference to be afforded the district court's evidentiary rulings, the Eleventh Circuit found no basis for holding that the District Court had abused its discretion III CONCLUSION Big-D erroneously argues that no one except "expert" scheduling consultants qualified as such under Federal Rule of Evidence 702 should be allowed to opine as to Big-D' failure to complete this s project in conformance with the contractually-required completion dates; specifically suggesting that Jack Towle, Leprino' project manager, be barred from providing testimony on this issue. To the s contrary, Mr. Towle is the single most qualified percipient witness available to testify on this issue, similar to scores of project managers who have been allowed to testify on similar issues in a legion of reported construction cases ­ there is absolutely no legal or equitable basis for Big D' argument that s he must be qualified as an expert witness under F.R.E. 702. That said, to the extent any qualification to opine on Big-D' delayed completion of the project is necessary, Mr. Towle should be allowed to s

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provide such opinions as a lay witness pursuant to F.R.E. 701. Accordingly, Big-D' Motion in s Limine No. 8 should be denied. Respectfully submitted this 20th day of March 2006. LEPRINO FOODS COMPANY

By:

/s/ Michael G. Bohn Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] Patrick T. Markham Jacobson & Markham 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on the 20th day of March 2006, I electronically filed the foregoing PLAINTIFF' RESPONSE IN OPPOSITION TO BIG-D DEFENDANTS' MOTION IN S LIMINE NO. 8: TO PRECLUDE TESTIMONY FROM PARTY WITNESSES REGARDING CONSTRUCTION DELAYS UNLESS SAID WITNESSES ARE FIRST QUALIFIED AS EXPERTS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Christopher J. Hersey at [email protected] Francis (Frank) J. Hughes at [email protected] Patrick Quinn Hustead at [email protected] Peter J. Ippolito at [email protected] Richard Carl Kaufman at [email protected] John David Mereness at [email protected] C. Michael Montgomery at [email protected] Daniel James Nevis at [email protected] Laurence R. Phillips at [email protected] N. Kathleen Strickland at [email protected] s/ Cori Atteberry Cori Atteberry, Legal Assistant

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