Free 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 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.

PLAINTIFF' OPPOSITION TO BIG-D' MOTION IN LIMINE NO. 5 REGARDING S S PRECLUDING EXPERT TESTIMONY

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Plaintiff Leprino Foods Company ("Leprino") states as follows in opposition to the Big-D Defendants'("Big-D") Motion in Limine No. 5 ("Motion"): I INTRODUCTION Big-D claims that Leprino may attempt to introduce expert testimony and/or evidence at trial that it did not disclose pursuant to Federal Rule of Civil Procedure 26(a) and (e). Big-D seeks to prevent Leprino from offering portions of its expert testimony pursuant to F.R.C.P. 37. Big-D' motion lacks any substance that would allow the court to grant the relief requested. s The essence of Big-D' motion centers around its receipt of four binders provided to Big-D by s Mr. Groves on the day of Mr. Groves'deposition. Big-D claims the fourth binder referred to an alternative methodology and alternative opinions, but fails to explain how. Leprino gave Big-D two full days to depose Mr. Groves. Big-D claims it was prejudiced by receipt of the Mr. Groves' fourth binder on the day of his deposition however, Big-D, with its expert in attendance for Mr. Groves' deposition, had ample opportunity to question Mr. Groves on the back up data contained in his binders. Big-D chose to depose Mr. Groves only one of the two days offered and Big-D has not made any further request to depose Mr. Groves. Apparently, Big-D believes lying in the weeds and then asking for the ultimate sanction is a means of cleverly contorting the federal rules for an advantage where Big-D has none. The Motion should be denied because the facts recited by Big-D are untrue, making the cited law inapplicable.

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II ARGUMENT This motion is resolved by Rule 26 and the court' sound discretion. Big-D is asking this s court for an order that its expert opinions cannot be challenged, although Mr. Groves has challenged and discredited those opinions in his report, the back up documents and in his 8 hour deposition. Big-D' basis for its motion is that Mr. Groves produced a binder containing back up s documents to his rebuttal report on the day of his deposition, rather than Leprino attaching the voluminous document to the e-mailed report.1 If this is truly the grounds for excluding

testimony, then Leprino must insist that the Court preclude testimony of Big-D' expert, Paul s Regan as he also produced his back up binders for the first time at his deposition.2 A. Big-D Has Not Shown How the Opinions at the Deposition Differed From the Report. Big-D asserts that Mr. Groves produced a fourth binder at his deposition that contained opinions and analysis in addition to, and distinct from, the opinions offered in his affirmative expert disclosure. Big-D provides no facts that support its assertion and fails to demonstrate any differences between Mr. Groves'opinions. The facts are Mr. Groves' opinions in his original report contradicted opinions by Phil Gudgel, Big-D' expert. Mr. Groves addressed new matters submitted by UMM expert, Mark s Berry, in his rebuttal report. At his deposition, Mr. Groves assembled documents that further supported his initial opinions and explained why Gudgel' opinion was wrong. Counsel had set s aside 16 hours for Mr. Groves' deposition in his offices in San Francisco; however, Big-D and UMM chose to limit his deposition to one day. At his deposition, Mr. Groves responded to all of
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Affidavit of Patrick Markham. Affidavit of Patrick Markham.

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opposing counsels' questions, extended his thinking on expressed opinions, and explained why and how his opinions differed from Phil Gudgel' opinions. s Big-D asks this court to impose an ultimate sanction on the grounds, ostensibly, that the disclosures made by Mr. Groves fail to refute its expert, but Big-D fails to say that or say how anyone can reach that conclusion. Accordingly, Big-D' motion is devoid of supporting facts s and the Court should deny the motion. Big-D Failed to Demonstrate Prejudice. Not only has Big-D failed to show how Mr. Groves' opinions differed at his deposition from his report, Big-D has failed to demonstrate prejudice. Big-D asserts that the production of the fourth binder containing supporting documentation at Mr. Groves' deposition caused it prejudice. However, Big-D offers the court no facts that support its conclusion.. 1. Big-D Has Shown No Prejudice or Surprise.

Big-D states it is prejudiced by production of the fourth binder at Mr. Groves'deposition, because it is now forced to speculate whether additional opinions by Mr. Groves (beyond the data in the binders, report and deposition) will be offered at trial.3 According to Big-D and its expert, they were unable to solve this issue during the 8 hour deposition of Mr. Groves, and deposing Mr. Groves for a second day would not have solved the issue. Notwithstanding these claims, there is nothing in the motion that helps us understand how this is so. Again, one wonders how the unnamed opinions and data from the so-called fourth binder causes this type of uncertainty when no one reading the motion has any idea what was in this binder or how it was inconsistent with the other three binders given the day of Mr. Groves'deposition.

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MIL.5, page 9.

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Big-D also claims that it did not have a chance to look at the binder produced at Mr. Groves' deposition causing it prejudice. Big-D claim is completely false. Big-D had the chance to review (with its expert) all four binders, to depose Mr. Groves and depose him a second day. Big-D chose to limit the deposition to one day. During the deposition, Big-D indicated they would ask to re-open the deposition, but never did so.4 Big-D makes grave misrepresentation to this court when it states that "Leprino essentially pressured Big-D to complete an examination of Leprino' lead witness, on the sole day Mr. Groves was offered for deposition... "5 and for that s Big-D should be sanctioned. The fact is Leprino offered Mr. Groves for two days worth of deposition, but Big-D chose to end the deposition in one day.6 Moreover, despite claiming prejudice Big-D has never asked for a second day since the deposition, preferring to lie in the weeds and make this motion. 2. The Ability of the Party to Cure the Prejudice.

Big-D states it cannot cure the prejudice because it cannot offer a rebuttal report since the time to do so has passed. However, Big-D fails to tell the court what this report will say, how it will refute unidentified opinions or why Big-D' expert did not address the issues in his s subsequent deposition. Again, the lack of any facts in the motion (as opposed to conclusions) makes responding impossible. What Big-D seems to be describing happens every day: Mr. Groves' initial report rebutted Mr. Gudgel' report, therefore, no further rebuttal was required. s Mr. Groves provided his back up data to his 100 page report at his deposition (the same procedure followed by Big-D' expert), and Big-D proceeded to depose Mr. Groves. Big-D' s s

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Affidavit of Patrick Markham. MIL.5, page 9. 6 Affidavit of Patrick Markham.
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counsel flushed out matters described in Mr. Groves'report in deposition questions, and Big-D is now trying to exclude those flushed out opinions before trial instead of having Mr. Gudgel address them at trial. Essentially Big-D is asking the Court to enforce a rule (refuting a rebuttal report in deposition is not permitted and such testimony is inadmissible) that does not exist. Big D has not demonstrated that it sustained any prejudice by the production of back-up documentation of Mr. Groves' opinion on the day of his deposition. Even if the court were to assume Big-D suffered prejudice, Big-D could have cured any so-called prejudice by not opting out of Mr. Groves'second day of deposition. 3. Big-D Failed to Address the Third and Fourth Factor

Big-D cited four factors in the Jacobsen analysis, but failed to address the third or fourth regarding the extent offering such testimony would be disruptive to the trial and the moving party' bad faith. Leprino cannot address these issues since Big-D' motion failed to do so. s s Suffice it to say, Leprino provided its expert disclosures timely, and appropriately provided Mr. Groves' voluminous back up data at his deposition. Furthermore, prior to the deposition counsel for Leprino offered to make all documents reviewed and considered by Mr. Groves available in his office for inspection and review.7 Neither Big-D nor UMM availed themselves of this opportunity. Leprino gave Big-D two days to depose Mr. Groves, and Big-D failed to utilize the opportunity to the full extent. In addition, Big-D asked during Mr. Groves'deposition to re-open it, but never made such a request to Leprino' counsel or Mr. Groves. Leprino has not tried to s hide any opinion or information, and has acted with good faith. On the other hand Big-D lacks good faith in its motion by implying Leprino did no timely exchange disclosures, accusing Mr.

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Affidavit of Patrick Markham.

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Groves of differing his opinions and his data and falsely stating that Leprino forced Big-D to a one day deposition of Mr. Groves. In short, Big-D claims prejudice with deceiving conclusions and no supporting facts. II CONCLUSION The Court should deny Big-D' motion in limine regarding unknown differing opinions s and conclusions of prejudice. Big-D did not provide any facts that demonstrate how the fourth binder produced at Mr. Groves' deposition contained opinions and analysis in addition to, and distinct from, the opinions offered in his affirmative expert disclosure. Furthermore, Big-D failed to explain why it could not have cured the alleged prejudice by taking Mr. Groves' deposition the second day or convening to another day. Big-D completely fails to support how Mr. Groves' fourth binder effects its reference to desiring to add to its expert opinion (in some unknown way). The court and counsel should not be left to guess the basis of Big-D' motion. s The motion lacks factual support, the remedy requested by Big-D is unwarranted, and the opinions expressed by Mr. Groves' at his deposition were adequately explored in the 8 hours used by Big-D and UMM. Accordingly, Big-D' Motion in Limine No. 5 should be denied. s Respectfully submitted this ______ 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

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[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]

CERTIFICATE OF SERVICE I hereby certify that on the 20th day of March 2006, I electronically filed the foregoing PLAINTIFF' OPPOSITION TO BIG-D' MOTION IN LIMINE NO. 5 REGARDING S S PRECLUDING EXPERT TESTIMONY 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

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