Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-02504-REB-CBS PETER HORNICK, an individual, Plaintiff, vs. GARY BOYCE, and JOANNE BOYCE, individuals Defendants/Counterclaimants

DEFENDANTS' BENCH BRIEF RE EXCLUSION OF OPINION TESTIMONY FROM ROBERT BRUCE

Defendants Gary Boyce and Joanne Boyce (the "Boyces"), through the undersigned counsel, submit this Bench Brief regarding expert opinion testimony from Robert J. Bruce ("Bruce"), Hornick's former attorney. I. PROCEDURAL BACKGROUND 1. On December 21, 2004, Hornick served his initial disclosures pursuant to

Fed. R. Civ. P. 26(a)(1). Bruce was not identified as a person with knowledge under Fed. R. Civ. P. 26(a)(1)(A). Hornick did not provide the requisite privilege log identifying documents withheld from disclosure. 2. On January 4, 2005, the Court entered the Scheduling Order in this case,

which set June 1, 2005, as the deadline for disclosures pursuant to Fed. R. Civ. P. 26(a)(2). 3. On May 14, 2005, Hornick served responses to Defendants' First Set of

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Interrogatories, Requests for Production and Requests for Admission. Again, Hornick did not provide the requisite privilege log identifying documents withheld from production. 4. The June 1, 2005, deadline for disclosing expert testimony passed without

Hornick designating any expert witnesses. 5. On September 23, 2005, Hornick identified Bruce for the first time as a fact

witness with knowledge "concerning the option, closing events and preparation for the closing." See Amended Pretrial Order, Exhibit 1 ("Hornick's Witness List"). Notably, Hornick omitted any reference to any opinion testimony Bruce might proffer. 6. On July 28, 2006, at the Court's Pretrial Conference, the undersigned

expressed concern that Bruce might be asked to present opinion-based testimony on Hornick's behalf regarding the commercial reasonableness of the Boyces' Assignment and the Brupbacher Assignment. Hornick's counsel stated, however, that he was "not

prepared" to address the scope of Bruce's potential testimony at that time. 7. On August 3, 2006, Hornick filed his Trial Brief stating for the very first time

that Bruce would present opinion testimony regarding "whether or not documents proposed were reasonable." Hornick's Trial Brief, p. 2. 8. On Friday, August 4, 2006, the last business day before trial and long past

the deadline for disclosing trial exhibits, Hornick identified for the first time exhibits on which he intends to rely at trial and provided a privilege log.

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II

ARGUMENT Having conducted absolutely no discovery in this lawsuit, Hornick, at the eleventh

hour, seeks to cobble together a case by presenting previously undisclosed expert opinion testimony and documents. These last ditch efforts, to present "new" evidence and theories through the proffered (but not previously disclosed) opinions of his former attorney, disregards the Rules of Civil Procedure, this Court's Scheduling Order and related procedural requirements, and may significantly prejudice the Defendants. A. Opinion Testimony By Bruce Was Not Disclosed Pursuant to Fed. R. Civ. P. 26(a)(2) and Must Be Excluded

Hornick disclosed for the first time in his Trial Brief that Bruce may provide what Hornick describes as "lay opinion testimony." Hornick's attempt to cloak Bruce's expert, legal analysis as a "lay opinion" is an ill-disguised attempt to circumvent Fed. R. Civ. P. 26(a)(2), Fed. R. Evid. 701 & 702, and this Court's own Scheduling Order. Fed. R. Evid. 701addresses opinion testimony by lay witnesses: [W]itness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701 (emphasis added). 1

Rule 702 addresses testimony by experts and provides that: 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. 3

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Fed. R. Evid. 701 was amended to include clause (c) in 2000 in order to eliminate the risk that the reliability requirements set forth in Rule 702 and the disclosure requirements set forth in Fed. R. Civ. P. 26 and Fed. R. Civ. P. 16 could be evaded by proffering an expert in lay witness clothing. Fed. R. Evid. 701 advisory committee notes (2000). In considering the admissibility of evidence in the form of lay or expert opinion testimony, the Court should consider whether the opinion "results from a process of reasoning familiar in everyday life or a process of reasoning which can be mastered only by specialists in the field." Id. "In other words, `a person may testify as a lay witness only if his opinions or inferences do not require any specialized knowledge and could be reached by any ordinary person.'" Lifewise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004) (quoting Doddy v. Oxy USA, Inc., 101 F.3d 448, 460 (5th Cir.1996)). The work performed by lawyers clearly requires "scientific, technical, or other specialized knowledge within the scope of Rule 702." In Sach, Miller, Rosendin, LLP v. General Refractories Co., Case No. C 03-00880 JSW, 2004WL2324048, at *3 (N.D. Cal. Oct. 13, 2004), the defendant attempted to admit, under Rule 701 as a "lay opinion," testimony by attorneys regarding the quality of the plaintiff's legal work. The court barred the evidence, however, stating that it was based on "scientific, technical or other specialized knowledge within the scope of Rule 702" and therefore was not admissible under Fed. R. Evid. 701. Id. Accord Lifewise, 374 F.3d at 929 (CEO could testify generally about damages which involved basic arithmetic but could not opine regarding damages

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that required accounting model to prove). Here, Hornick attempts to do precisely what Rule 701, as amended, prohibits: admit the undisclosed expert opinion testimony of Bruce under the guise of lay testimony. Bruce apparently intends to offer testimony that, in his opinion, the Boyce Assignment was not commercially reasonable and that the Brupbacher Assignment was. See Hornick's Trial Brief, pp 1-2 ("[H]is opinion on this issue of whether or not documents proposed were reasonable is opinion testimony given pursuant to Fed. R. Evid. 701."). Hornick believes he can circumvent Rule 702 because Bruce's opinions will be based upon "his perception" of the post-closing settlement negotiations between the parties. Hornick's position is without merit. Bruce is an attorney. He received specialized knowledge and training and has practiced law for almost 20 years. The documents at issue here relate to the transfer of a membership interest in a limited liability company with extensive real estate holdings and invoked the requirements of the Colorado Securities Act. Bruce's opinion regarding the reasonableness of any legal document in this case must rely upon the knowledge he acquired as an attorney and certainly could not be reached by "any ordinary person." See Lifewise, 374 F.3d at 929. Indeed, Hornick concedes that Bruce "gave [Hornick] advice concerning the document used at closing" and that he "used his legal expertise in so giving advice." Hornick's Trial Brief, p 1. As such, Bruce's opinion is expert testimony subject to Fed. R. Evid. 702 and the disclosure requirement in Fed. R. Civ. P. 26(a)(2).

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B.

Hornick Is Barred from Admitting Bruce's Opinion Testimony or Untimely Disclosed Documents Pursuant to Fed. R. Civ. P. 37

Rule 37 mandates that: A party without substantial justification fails to disclose information required by Fed. R. Civ. P. 26(a) ... is not, unless such failure is harmless, permitted to use as evidence at trial ... any witness or information not so disclosed.2 The non-moving party has the burden to show either compliance with the rule or that the non-disclosure was substantially justified. See, e.g., Harvey v. United States, Case No. 04CV00188-WYD-CBS, 2005WL3164236, at *7 (D. Colo. Nov. 28, 2005). Here, Hornick's disclosure of Bruce was inadequate and untimely. The deadline for expert witness disclosures passed on June 1, 2005, and Hornick made no effort on that date or since to identify Bruce as an expert consistent with Fed. R. Civ. P. 26(a)(2). Hornick also delivered for the first time on August 4, 2006, a privilege log identifying relevant documents improperly withheld since discovery began. Hornick cannot claim any justification for his tardiness. Plainly, Hornick has known about Bruce's role in the failed closing and the documents concerning that for some time ­ indeed, considering the fact that Bruce initially represented Hornick as counsel in this case, Hornick is charged with knowledge of Bruce's documents from the very inception of the case. Nothing can excuse Hornick's failure to disclosure the expert nature of Bruce's testimony or the significantly overdue privilege log. In short, Hornick's untimely disclosures

The Court's own Practice Standards echo Rule 37, providing that "exhibits not timely exchanged before the hearing or trial will not be admitted." REB Civ. Practice Standard III.D.1. 6

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are the epitome of unjustified. Finally, Defendants are plainly prejudiced by Hornick's untimely disclosures. Defendants became aware of the potentially expert nature of Bruce's testimony on August 3, 2006 ­ just two business days before trial ­ and were provided the attending exhibits only on August 4, 2006, just one business day before trial. Hornick never prepared a Rule 26(a)(2) report summarizing Bruce's opinions or provided the other information required by that Rule. In addition, the Boyces have been denied the opportunity to designate a rebuttal expert. Defendants simply cannot appropriately prepare for Bruce's testimony or present rebuttal testimony. Accordingly, Hornick should be barred from using any opinion testimony from Bruce. III. CONCLUSION Bruce intends to offer expert witness testimony admissible only under Fed. R. Evid. 702. Hornick failed to timely disclose Bruce as an expert witness by the deadline imposed in the Court's Scheduling Order, and such testimony should therefore be excluded. In addition, both Bruce's testimony and all untimely documents should be excluded pursuant to Fed. R. Civ. P. 37, due to Hornick's failure to properly disclose them, and the prejudice his untimely production creates for Defendants.

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Respectfully submitted this 7th day of August, 2006.

HALE FRIESEN LLP /Original signature on file/

Allan L. Hale, Reg. No. #14885 Hale Friesen, LLP 1430 Wynkoop Street, Suite 300 Denver, Colorado 80202 Telephone: (720) 904-6000 Counsel for Defendants and Counterclaimants Gary Boyce and Joanne Boyce

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CERTIFICATE OF SERVICE I certify that on the 7th day of August, 2006, the foregoing DEFENDANTS'/COUNTERCLAIMANTS' BENCH BRIEF REGARDING THE PRECLUSION OF EXPERT TESTIMONY PURSUANT TO F.R.E. 701 and 702 was served on all parties and other interested persons by HAND DELIVERY: Erich Schwiesow, Esq. Helen Sigmond, Esq. 311 San Juan Avenue P.O. Box 1270 Alamosa, CO 81101-7195

___/s/ Chris Hyland_________________

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