Free Motion in Limine - District Court of Colorado - Colorado

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

Document 249

Filed 03/01/2006

Page 1 of 9

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, 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' MOTION IN LIMINE NO. 8 TO PRECLUDE TESTIMONY FROM PARTY WITNESSES REGARDING CONSTRUCTION DELAYS UNLESS SAID WITNESSES ARE FIRST QUALIFIED AS EXPERTS -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A

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

Document 249

Filed 03/01/2006

Page 2 of 9

Defendant Big-D Construction Corp ­ California ("Big-D") respectfully moves the Court for an Order in limine to preclude the parties from offering testimony regarding whether construction events or activities impacted or delayed the Project unless the party's witness offering such testimony is first qualified as an expert witness in the field of construction scheduling analysis. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A, the parties have met and conferred with respect to the contents of this Motion In Limine and, after having met and conferred, it is Big-D's understanding that Plaintiff Leprino Foods Company ("Leprino") and ThirdParty Defendant Marelich Mechanical Co. ("UMM") object to the relief requested herein. I. INTRODUCTION This action arises from a series of disputes stemming from the construction of a cheese processing facility located in Lemoore, California (the "Project.") Leprino, as owner, entered into a general contract with Big-D to construct the Project. In turn, Big-D contracted with numerous subcontractors, including UMM, to perform various works on the Project. Leprino contends that Big-D and its subcontractors delayed completion of the Project and seeks damages which it claims to have suffered as a result of the Project delays. Big-D and UMM deny that they are responsible for causing the Project delays. In addition, Big-D seeks its remaining contract balance and its additional and extended general conditions, while UMM seeks additional compensation for its work on the Project.

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

Document 249

Filed 03/01/2006

Page 3 of 9

Big-D brings this motion in limine to exclude testimony and other evidence that the parties intend to offer with regard to ultimate conclusions as to whether a Project activity or event impacted or delayed the Project's completion. Because such opinions require an expert foundation, Big-D seeks an order in limine requiring that all parties who intend to present testimony regarding Project impacts and delays to first make a showing that the witness(es) through which they intend to offer such testimony be qualified as an expert in the field of construction scheduling analysis. In effect, Big-D believes this test will exclude certain testimony from Leprino witnesses, including the testimony of Leprino's project manager, Jack Towle. II. ARGUMENT A. The Court has the authority to issue pre-trial orders barring evidence.

Although not expressly authorized by the Federal Rules of Civil Procedure or the Federal Rules of Evidence, "motions in limine are well recognized in practice and by case law." Rutter Group Practice Guide: Federal Civil Trials & Evidence (TRG), section 4.322. As with all rulings on evidence, a ruling on a motion in limine is given wide deference and will typically only be reviewed for an abuse of discretion. Den Hartog v. Wasatch Academy, (10th Cir. 1997) 129 F.3d 1076, 1092. B. Testimony regarding construction scheduling and delay is highly technical and requires expert testimony under Federal Rules of Evidence 702.

Federal Rule of Evidence 702 sets forth the standard for the type of evidence that is typically qualified as "expert" evidence:

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

Document 249

Filed 03/01/2006

Page 4 of 9

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Federal Rules of Evidence 702.

In construction litigation, experts are typically used to provide expertise in a particular technical field "due to the technical nature of construction and the subtleties of managing construction." Bramble & Callahan, Construction Delay Claims, Third Edition, §5.06[D]. The opinions of construction experts have been found to rise above the specter of "junk science", as construction litigation often involves voluminous and highly technical data. Iacobelli Construction, Inc. v. County of Monroe, (2nd Cir 1994) 32 F.3d 19. In particular, schedule and delay analysis is widely regarded as a technical process that requires a level of sophistication that even many contractors and engineers do not possess: "Simply being licensed as an engineer or general contractor ... does not mean that an individual possesses the knowledge, skill and experience necessary to create and maintain schedules or develop delay analyses, let alone testify as an expert on scheduling. A combination of both general construction experience and actual scheduling background may be required." Toomey & Berry, The Scheduling Expert: A Primer on Preparing Direct and Cross, 15 Construction Law 64 (Apr. 1995). There are numerous ways in which a schedule can be used to measure delays and to demonstrate disruptions, ranging from simplistic to complex. It is often found that the methods that are the easiest to explain often suffer from simpleminded logic that distorts reality whereas the most complex methods are the most accurate, yet perhaps the most

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

Document 249

Filed 03/01/2006

Page 5 of 9

difficult to understand and to explain. Bramble & Callahan, Construction Delay Claims, Third Edition, §11.07. As such, individuals with expertise in the field of construction schedule analysis are employed to translate to the trier of fact the complex processes often used in determining the most accurate analyses of impact and delay: "The best schedule analysis, however, will fail if it cannot be explained. Once the intricacies of the network diagramming process and field construction have been incorporated into the schedule analysis, the complex interrelationships must be communicated so that the judge, jury, or arbitrator can understand the results of the analysis. Using a [scheduling analysis] to prove delay is ... a scientific and professional effort ..." Bramble & Callahan, Construction Delay Claims, Third Edition, §11.08. Schedule analysis is said to underlie the basis of one's opinion regarding construction delays and impacts. Callahan & Hohns, Construction Schedules, Third Edition, §7-2(e). Thus, the accuracy of the underlying schedule analysis provides the basis to either support or challenge the opinion. Id. At least one court has commented that a party's failure to employ a schedule analysis expert significantly impacts the trier of fact's ability to determine the cause and effect of construction delays. Wilner v. United States, (Claims Ct. 1992) 26 Cl.Ct. 260. C. The parties in this case anticipate offering competing analyses of impacts and delays to the Project.

As previously mentioned, the central dispute in this case concerns Leprino's allegation that the Project was delayed approximately ten (10) months. Not surprisingly, Leprino and Big-D have each retained experts to analyze the impacts and delay to the Project. The parties' experts have produced competing theories, each based upon a method for scheduling analysis, as to the significant causes and effects of the Project delays.

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

Document 249

Filed 03/01/2006

Page 6 of 9

D.

Any witness that offers an opinion that certain construction events or activities impacted or delayed the Project must first be qualified as an expert in the field of construction schedule analysis.

In light of the fact that analysis of construction delays is widely considered to require expert opinion and, in further recognition of the parties' intent to offer competing theories of schedule and delay analysis, any witness that offers an opinion regarding how certain construction events or activities delayed completion of the Project should first be qualified as someone capable of offering an accurate opinion; i.e. as an expert in the field of construction schedule analysis. 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. Not does it preclude non-expert witnesses from offering testimony regarding their understanding of circumstances or events that transpired during Project. All that Big-D seeks is an order in limine precluding non-expert witnesses from offering opinions regarding the impact certain activities and events had on the Project schedule and ultimate completion of the Project. In other words, 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's critical path. Thus, Big-D respectfully requests that before any witness is allowed to offer his or her opinions regarding an analysis of the Project schedule(s),

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

Document 249

Filed 03/01/2006

Page 7 of 9

Project critical path, or causes and impact of delay, they first be qualified as an expert witness in the field of construction schedule analysis.

III CONCLUSION For the aforementioned reasons, Big-D respectfully requests an Order in limine precluding non-expert witnesses from offering testimony regarding an analysis of the Project schedule(s), Project critical path, or causes and impact of delay. Respectfully submitted this 1st day of March, 2006

BIG-D CONSTRUCTION CORP ­ CALIFORNIA By: /s/Daniel J. Nevis Daniel J. Nevis Miller Morton Caillat & Nevis, LLP 25 Metro Drive, 7th Floor San Jose, CA 95110 Telephone: (408) 292-1765 Facsimile: (408) 436-8272 [email protected]

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

Document 249

Filed 03/01/2006

Page 8 of 9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on March 1, 2006, I electronically filed the foregoing named document: DEFENDANTS' MOTION IN LIMINE NO. 8 TO PRECLUDE TESTIMONY FROM PARTY WITNESSES REGARDING CONSTRUCTION DELAYS UNLESS SAID WITNESSES ARE FIRST QUALIFIED AS EXPERTS -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A 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]

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

Document 249

Filed 03/01/2006

Page 9 of 9

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 nonparticipant's name:

s/ Kathleen Marie Dolce Kathleen Marie Dolce

:NewLitigationLibrary:8285.1