Free Motion in Limine - 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 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 1-100, 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, et al., Counterdefendant/Third Party Defendants. AFFIDAVIT OF FRANCIS J. HUGHES IN SUPPORT OF BIG-D CONSTRUCTION CORP.--CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S MOTION IN LIMINE NO. 5 TO PRECLUDE EXPERT TESTIMONY AND/OR EVIDENCE NOT PREVIOUSLY PROVIDED IN ACCORDANCE WITH FED.R.CIV.P 26(a) [FED.R.CIV.P. 37(c)]

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I, FRANCIS J. HUGHES, testify: 1. I am one of the attorneys of record for Defendants Big-D Construction Corp.--

California, Big-D Construction, Big-D Corp., and Big-D Capital Corp. (hereinafter collectively "Big-D") and I am licensed to practice law before the United States District Court for the District of Colorado. 2. I make this Affidavit in Support of Big-D's Motion in Limine No. 5 to preclude

expert testimony and/or evidence not previously provided in accordance with Fed.R.Civ.P. 26(a) [Fed.R.Civ.P. 37(c)]. I have personal knowledge of all facts stated in this Affidavit and would competently testify under penalty of perjury thereto if called as a witness. 3. This action arises from a series of disputes stemming from the construction of a

cheese processing facility located in Lemoore, California (the "Project.") Plaintiff Leprino Foods Company ("Leprino"), as owner, entered into a general contract with Big-D to construct the Project. In turn, Big-D contracted with numerous subcontractors, including Third-Party Defendant Marelich Mechanical Co. ("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. 4. That I was present at the recent deposition of Leprino's lead expert, Robert

Groves, on February 13, 2006. At that deposition, Big-D discovered, for the first time, that Mr. Groves had prepared an alternative binder that contains additional expert opinion or analysis

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different from the opinions and analysis provided by Mr. Groves in his Fed.R.Civ.P. 26(a) expert disclosure. 5. Pursuant to this Court's Third Amended Scheduling Order, the last day for the

parties to exchange affirmative expert disclosures was December 23, 2005 and the last day for the parties to exchange rebuttal expert disclosures was January 18, 2006. By way of stipulation, the parties informally agreed to extend the affirmative expert disclosure deadline to January 27, 2006 without modifying the rebuttal expert disclosure deadline of February 5, 2006. 6. On January 27, 2006, per the parties' stipulation, Leprino provided its affirmative

expert disclosures, including the affirmative expert disclosure of Robert Groves, Leprino's lead expert with respect to its analysis and opinions concerning construction delays. Similarly, on that same day Big-D provided its affirmative expert disclosures, including the affirmative expert disclosure of Phil Gudgel, Big-D's lead expert with respect to its analysis and opinions concerning construction delays. Although the parties stipulated that rebuttal expert disclosures could be submitted by February 5, 2006, Leprino has offered no rebuttal expert opinion or disclosure regarding the opinions offered in any of Big-D's affirmative expert reports. 7. On February 13, 2006, Big-D took the deposition of Robert Groves, who Leprino

identified as its retained expert with respect to issues of construction delays and project sequencing. During the deposition, Mr. Groves produced four (4) binders of documents that had not been previously provided to Big-D or its counsel. Three of the four binders contained supporting documents and data that Mr. Groves used to generate the opinions and analysis offered in his January 27th affirmative expert report. These three binders did not include any new analysis or opinion from Mr. Groves. The fourth binder, however, contained new opinions

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and analysis that were not previously included in Mr. Groves' affirmative expert report. Specifically, the fourth binder offered an alternative methodology for calculating the construction delays and alternative opinions with respect to the cause(s) of delays. Again, unlike the other three binders, which contained back-up data and documentation that had been previously disclosed to Big-D, this fourth binder, and the new analysis contained therein, was not provided to Big-D or its counsel at any time prior to Mr. Groves' deposition. 8. Here, as in Jacobsen, Big-D will suffer prejudice in the event Leprino is permitted

to offer the additional expert opinions of Mr. Groves. The fourth binder, which included numerous opinions, analyses and documentation not previously included in Mr. Groves' original expert disclosure, makes it impossible for Big-D to determine the extent of testimony Mr. Groves intends to offer at trial. Big-D should not be forced to speculate as to whether the opinions in the fourth binder constitute the only additional information Mr. Groves intends to offer. Big-D should further not be compelled to prepare for trial on the assumption that the contents of the binder will indeed be offered at trial or whether Leprino intends to comply with Rule 26(a)'s requirement and limit its expert testimony to the original expert report. 9. Big-D is further prejudiced because it did not have an opportunity to review

Mr. Groves' additional opinions in preparation for deposition. By presenting the additional evidence during deposition, Leprino essentially pressured Big-D to complete an examination of Leprino's lead witness, on the sole day Mr. Groves was offered for deposition, regarding documents and opinions Big-D was not previously provided. 10. Big-D cannot cure the prejudice it shall suffer merely by offering a rebuttal report,

as it is now precluded from offering any expert disclosures in this matter. As previously noted,

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the deadline by which the parties had to offer a rebuttal report was February 5, 2006. Big-D was not made aware of the fact that Mr. Groves had additional information until February 13, 2006 and could therefore not have anticipated having to rebut any evidence that was not contained in Mr. Groves' initial disclosure. Even supposing that the additional information was made known to Big-D prior to the rebuttal report deadline, the fact remains that Leprino's disclosure, which was required to contain a complete statement of its intended expert opinions, was the only document Big-D was permitted to rebut. See, Rule 26(a)(2)(C). 11. Additionally, even if Big-D still had the opportunity to offer a rebuttal report, it

would still suffer prejudice in light of the fact that Leprino has not supplemented its expert disclosures as required under Rule 26(e)(1), thereby preventing Big-D from offering a rebuttal report as to any information not specifically contained in Leprino's initial expert disclosure. See, Rule 26(a)(2)(C). Pursuant to Rule 26(e)(1), Leprino was required to provide supplemental disclosures on or before the deadline for the party's pre-trial disclosures under Rule 26(a)(3). The parties' pre-trial disclosures were due on February 28, 2006, however Leprino failed to provide a supplemental or corrected expert disclosure by that time. Thus, Leprino, like the rest of the parties, is now precluded from amending its expert reports. // // //

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I declare under penalty of perjury under federal law and under the laws of the States of Colorado and California that the foregoing is true and correct and that this Declaration was executed this 1st day of March, 2006, at San Jose, California.

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) 436-8272 E-mail: [email protected] Attorneys for Defendant Big-D Construction Corp.- California and Big-D Construction Corp.

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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: AFFIDAVIT OF FRANCIS J. HUGHES IN SUPPORT OF BIG-D CONSTRUCTION CORP.--CALIFORNIA, BIG-D CONSTRUCTION, BIG-D CORP., AND BIG-D CAPITAL CORP.'S MOTION IN LIMINE NO. 5 TO PRECLUDE EXPERT TESTIMONY AND/OR EVIDENCE NOT PREVIOUSLY PROVIDED IN ACCORDANCE WITH FED.R.CIV.P.26(a) [FED.R.CIV.P.37(c)] 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]

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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

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