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 - 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 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)] -ANDCERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A

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Defendants Big-D Construction Corp ­ California, Big-D Construction Corp, Big-D Capital Corp. and Big-D Corp. (collectively referred to herein as "Big-D") respectfully move the Court for an Order in limine to preclude the parties, their witnesses and their attorneys from referring to and/or presenting expert testimony and/or evidence that was not previously disclosed pursuant to Federal Rules of Civil Procedure, Rule 26. This motion is supported by the Declaration of Francis J. Hughes, attached hereto. 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. //

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Leprino might attempt to introduce expert testimony and/or evidence at trial that was not previously disclosed pursuant to Federal Rule of Civil Procedure 26(a) and (e). During the recent deposition of Leprino's lead expert, Robert Groves, Big-D discovered, for the first time, that Mr. Groves had prepared an alternative binder that contains additional expert opinion or analysis different from the opinions and analysis provided by Mr. Groves in his Fed.R.Civ.P. 26(a) expert disclosure. Big-D seeks a motion in limine to preclude Leprino from offering expert testimony and/or evidence that Leprino has failed to disclose pursuant to the mandatory sanctions afforded under Fed.R.Civ.P. 37(c).1 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. Expert Testimony That Has Not Been Disclosed Pursuant to Federal Rule of Civil Procedure 26(a) and (e) Must Not be Offered at Trial

Pursuant to Rule 26(a)(2), each party must disclose the identity of any person who may be used at trial to present evidence typically characterized as "expert" testimony under Federal Rules of Evidence 702, 703 or 705. Each party must also, with respect to //
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All statutory references in this Motion in limine shall be made to the Federal Rules of Civil Procedure, unless otherwise noted.

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each expert identified, disclose "a written report prepared and signed by the [expert] witness." Rule 26(a)(2)(B). In turn, each written report: "Shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions..." Fed.R.Civ.P. 26(a)(2)(B) [Emphasis added.] Each party is obligated under the Federal Rules to supplement an expert witness disclosure in the event the original disclosure is ascertained to be incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Fed.R.Civ.P. 26(e)(1). If a party seeks to add additional or corrective information to its expert disclosure, it must do so by the time the party's disclosures under Rule 26(a)(3) are due. Fed.R.Civ.P. 26(e)(1). A party's failure to comply with the expert disclosure requirements set forth in Rule 26(a) results in an automatic and mandatory sanction; namely the party is prevented from using at trial any witness or information not properly disclosed. See Fed.R.Civ.P. 37(c). Rule 37(c) states, in pertinent part: "A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.P. 37(c). Rule 37(c) essentially provides the ultimate incentive for parties to follow the disclosure requirements set forth in Rule 26(a)(2)(B) and 26(e)(1) and serves to insure that parties offer full and meaningful disclosure of all of the expert evidence they intend to offer at trial. As the Federal Rules Advisory Committee specifically notes, without the //

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threat of Rule 37(c), parties are prone to provide incomplete disclosures in an attempt to hide the ball and thwart opposing counsel's ability to prepare for deposition and trial: "Paragraph (2)(B) requires that persons retained ... to provide expert testimony ... must prepare a detailed and complete written report, stating the testimony the witness is expected to present during direct examination, together with the reasons therefor. The information disclosed under the former rule ... was frequently so sketchy and vague that it rarely dispensed with the need to depose the expert and often was even of little help in preparing for a deposition of the witness. Revised Rule 37(c)(1) provides an incentive for full disclosure; namely, that a party will not ordinarily be permitted to use on direct examination any expert testimony no so disclosed." Fed.R.Civ.P. 26, Advisory Committee Notes, 1993 Amendment, Paragraph (2). C. Leprino Has Failed to Comply With the Requirements of Rule 26(a) and (e) by Untimely Providing Additional Expert Information and, Pursuant to Rule 37(c), Should be Barred From Introducing Its Additional Expert Information at Trial

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. 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,

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Leprino has offered no rebuttal expert opinion or disclosure regarding the opinions offered in any of Big-D's affirmative expert reports. 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 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. As previously mentioned, pursuant to Rule 26(a)(2)(B), a party's affirmative expert report must contain a complete statement of all opinions to be expressed by the expert on direct examination. The fact that Mr. Groves produced a fourth binder containing opinions and analysis in addition to, and distinct from, the opinions offered in his affirmative expert disclosure, evidences the fact that the contents of the fourth binder are additional information, as that term is defined under Rule 37(c). As such, Leprino //

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should not be allowed to present testimony or other evidence at trial related to the opinions and/or analysis contained in the fourth binder. D. Leprino's Failure to Disclose Its Additional Expert Information Was Without Substantial Justification and Has Caused Unfair Prejudice to Big-D

Leprino may argue that its failure to disclose Mr. Groves' entire opinion and analysis was somehow justified and that Big-D has suffered no harm as a result of the untimely disclosure. To be sure, although Rule 37(c) provides a safe harbor for parties who fail to comply with the disclosure requirements set forth in Rule 26(a)(2)(B), in the instant case, Leprino's failure to properly disclosure its expert reports is not justified and has constituted unfair prejudice and material harm to Big-D. A party that has failed to disclose or amend expert information in accordance with Rule 26(a) or (e), is still allowed to present the additional expert evidence if it can substantially justify why it failed to comply with the disclosure requirements set forth under Rule 26 and demonstrate that its failure to comply with the disclosure requirements did not cause harm to another party. Fed.R.Civ.P. 37(c); Jacobsen v. Deseret Book Co. (10th Cir. 2002) 287 F.3d 936, 952-954. The Tenth Circuit looks to four factors in determining whether a party's failure to comply with Rule 26 disclosure requirements is substantially justified or has caused harm to another party: (1) The prejudice or surprise to the party against whom the testimony is offered; The ability of the party to cure the prejudice; The extent to which introducing such testimony would disrupt the trial; and

(2) (3)

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(4)

The moving party's bad faith or willfulness."

See Jacobsen v. Deseret Book Co., 287 F.3d at 953. In Jacobsen the Tenth Circuit was asked to determine whether a defendant's expert was permitted to testify at trial despite the fact that his expert disclosure was admittedly incomplete. Id. at 952. The Tenth Circuit, citing to Rule 37(c)'s mandatory exclusion of additional expert testimony, conducted an analysis of the four factors listed above. Id. at 953. With respect to the first factor (prejudice or surprise), the Tenth Circuit determined that in order to avoid prejudice, the plaintiff needed to be certain that the information intended to be presented at trial was contained in the defense's expert report. Id. The Court found that the defense expert reports indicated that certain analysis and review had not been completed at the time the reports were drafted and, thus, plaintiff could not be certain that the experts would not have additional testimony at the time of trial. Id. As for the second factor (ability of the prejudiced party to cure the prejudice), the Tenth Circuit reasoned that, in light of the fact that the defense expert reports did not contain all of the information the defense's experts anticipated discussing at trial, there was nothing plaintiff could have done to cure the prejudice suffered. Id. Indeed, the Court considered and shot down the notion that plaintiff could have filed a rebuttal report to alleviate his harm because, the Court reasoned, a rebuttal report could not have anticipated the additional information the defense experts were planning to present at trial. Id. //

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In regards to the third and fourth factors (disruption of trial and the bad faith of the moving party) the Tenth Circuit determined that there was no threat that the additional testimony would have disrupted trial and further found that the defense did not necessarily act in bad faith in providing incomplete expert reports. Id. at 954. But the Court nevertheless found that the absence of these factors did nothing to alleviate the prejudice suffered by plaintiff: "Assuming, however, [the defense] acted in good faith, their good faith alone would not be enough to overcome the other factors. If the experts are allowed to testify on the basis of their incomplete reports, [plaintiff] will be prejudiced." Id. Upon determining that the Rule 37(c) factors constituted sufficient grounds to preclude the additional expert testimony, the Tenth Circuit ruled that the lower court had committed error in denying plaintiff's motion to strike the defense's expert reports. The Court granted the District Court discretion to either strike the expert reports or allow the defense the opportunity to provide supplemental expert disclosures under Rule 26(e). Id. The Tenth Circuit qualified its decision however by recommending to the lower court that if it chose to allow the defense an opportunity to supplement its expert reports, then it must also allow plaintiff thirty (30) days thereafter to file a rebuttal report under Rule 26(a)(2)(C). 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

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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. 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. 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, 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). 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

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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 pretrial 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. III. CONCLUSION Mr. Groves' fourth binder notwithstanding, Big-D is in no position to speculate as to the extent or nature of Leprino's additional expert information and would suffer considerable prejudice in the event Leprino is permitted to offer this, or any information, not specifically contained in its expert disclosures, at trial. As such, Big-D respectfully requests that Leprino be precluded from offering any expert testimony or other evidence not specifically included in its expert disclosure, in accordance with Rule 37(c). Respectfully submitted this 1st day of March, 2006 s/ Daniel J. Nevis Daniel J. Nevis 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: DEFENDANTS 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)] -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]

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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 nonparticipant's name:

s/ Kathleen Marie Dolce Kathleen Marie Dolce
:NewLitigationLibrary:8161.1

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