Free Response to Motion - District Court of Colorado - Colorado

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

Document 288

Filed 03/20/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 03-cv-02669-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.

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

Document 288

Filed 03/20/2006

Page 2 of 5

PLAINTIFF LEPRINO FOODS COMPANY' OPPOSITION TO S UMM' MOTION IN LIMINE TO PRECLUDE EVIDENCE OF S ITS CLAIM HISTORY AND LITIGOUSNESS

Plaintiff Leprino Foods Company (" Leprino" through its attorneys, hereby ), opposes University Marelich Mechanical' (UMM' motion in limine regarding its prior s s) claims history and conduct. UMM contends Leprino and Big-D intend to offer evidence related to its custom and practice of low bidding jobs and then over charging on the job changes. Leprino contend such evidence is relevant and admissible as follows: 1. UMM' expert was questioned in deposition regarding prior claims. He s worked on many prior claims for UMM. This raises issues of (1)

inconsistent treatment of claims raising questions of credibility, (2) the number of claims UMM' expert worked on will show bias-eg the experts s desire to do repeat work for this regular client, (3) whether UMM is incapable of accurately bidding a project, (4) UMM' custom and habit of s low bidding to get work and then holding the owner hostage with overpriced change estimates. This will be supported by testimony of at least four witnesses that contend UMM overpriced its CE' Also, UMM s. contends the method it used to price the CE' was unrealistic. This is not s unlike typical questions to a physician regarding how often he testifies for plaintiff versus defense and the number of times he favored on or the other to show bias.

2

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

Document 288

Filed 03/20/2006

Page 3 of 5

2.

UMM' executive Vice President Lou Beck testified he worked on five s major projects and made a claims on every one. UMM has a history of making claims on virtually every project it has worked. The in limine

motion is premature because Leprino will seek to show this is a custom and habit and a pre-planned method of doing business. 3. The relief requested regarding UMM expert Mark Berry is unclear. UMM acknowledges Mark Berry is retained on many UMM projects. UMM in the second to last paragraph of its motion on page 4 states the inquiry " should be limited to Mr. Berry' retention by UMM for work on other projects, but s not the details. However, the details such as his regular finding in every job that the owner and contractor somehow cause UMM the same damage is relevant to show bias because he gets paid for the work and because he always reaches similar conclusions. The jury can draw an inference regarding why Mr. Berry never finds UMM to be at fault. Again, this is the same inference drawn at trial everyday on experts that regularly testify for the same client (or attorney) and always render the same finding. UMM cited a single case to support this motion in limine. The criminal case out of a Utah state court has no precedential value in this action. The action involved the introduction of character evidence to show the propensity to commit a crime. Evidence of an expert' work for the same client does not fall remotely into this set of facts. UMM s may be arguing evidence of prior claims should not be admitted to show the propensity

3

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

Document 288

Filed 03/20/2006

Page 4 of 5

to due the same prior bad act here. However, the issue here first relates to bias of the expert. This is always admissible. The fact that Mr. Berry routinely works for UMM, gets paid millions of dollars and always makes the same determination ­ the owner and general contractor owe more money ­ is relevant to bias. The cited authority adds nothing to the legal analysis. The nature and extent of other claims (beyond those handled by Berry) demonstrates UMM is unable to accurately bid a job-this is an element of proof of their claim here. The notion of a " mini trial" is misplaced since the legal authority does not relate in any way to the concept. For the reasons set forth above, and the reasons offered by other parties, UMM' s motion should be denied. Respectfully submitted this 20th day of March 2006. LEPRINO FOODS COMPANY

By:

s/ Michael G. Bohn One of Its Attorneys 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, Esq. Jacobson & Markham 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected]

4

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

Document 288

Filed 03/20/2006

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on the 20th day of March 2006, I electronically filed the foregoing PLAINTIFF LEPRINO FOODS COMPANY' OPPOSITION TO UMM' S S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF ITS CLAIM HISTORY AND LITIGOUSNESS 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 of [email protected] Francis (Frank) J. Hughes of [email protected] Patrick Quinn Hustead of [email protected] Peter J. Ippolito of [email protected] Richard Carl Kaufman of [email protected] John David Mereness of [email protected] C. Michael Montgomery of [email protected] Daniel James Nevis of [email protected] Laurence R. Phillips of [email protected] N. Kathleen Strickland of [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

5