Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02461-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02461-MSK-MEH LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' S S MOTION TO LIMIT EXPERT L.J. MOTT' TESTIMONY AND TO EXCLUDE S WITNESS TESTIMONY BY ANY OTHER LEPRINO FOODS COMPANY REPRESENTATIVE (Document 92)

Plaintiff Leprino Foods Company (" Leprino" states as follows in opposition to ) Defendant' "Motion to Limit Expert L.J. Mott' Testimony and to Exclude Witness s s Testimony by Any Other Leprino Foods Company Representative" (" Motion" ): I. INTRODUCTION Defendant's Motion seeks an order precluding Leprino from presenting expert testimony from any expert that has not provided an expert report, and limiting Leprino's expert witness, L.J. Mott, to opinions contained in his October 1, 2004 report. Defendant's Motion, as it pertains to Mr. Mott's potential testimony at trial is improper and must be denied.

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II. ARGUMENT A. Limitation Of The Trial Testimony Of Leprino's Expert Witness, L.J. Mott Is Improper, And Defendant's Motion Must Be Denied. Defendant's argument to limit Mr. Mott's trial testimony to the opinions expressed in his October 1, 2004 report is merely an attempt to compensate for not deposing Mr. Mott in this litigation. Mr. Mott was, however, deposed by Defendant in the State Court Action. Leprino acknowledges that its Rule 26(a)(2) disclosure did not specifically state that Mr. Mott would testify consistent with (a) his deposition taken in Denver District Court Case No. 02-CV-8036 and (b) his trial testimony in the Denver case, although the Final Pretrial Order listed both of those topics as potential areas about which Mr. Mott would testify at trial. However, limiting Mr. Mott's testimony to just the opinions

expressed in his October 1, 2004 report would be improper. Fed. R. Civ. P. 37(c)(1) states, in pertinent part, as follows: A party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at a trial . . . information not so disclosed. Fed. R. Civ. P. 37(c)(1) (emphasis added). For purposes of Rule 37(c)(1), a party's failure to disclose is harmless when there is no prejudice to the party entitled to the disclosure. Nguyen v. IBP, Inc., 162 F.R.D. 675, 680 (D. Kan. 1995). There is no prejudice to Defendant in allowing Mr. Mott to discuss opinions and issues raised in his deposition taken in the State Court Action and his trial testimony in the State Court Action. Defendant listed its own "experts" to discuss the very issues

implicated by Mr. Mott's deposition taken in the State Court Action and his trial testimony in the State Court Action. Even Defendant would have to admit that it has full 2

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knowledge of all of the opinions expressed by Mr. Mott in his deposition in the State Court Action and in his trial testimony in the State Court Action. Since the failure of Leprino to list all of the areas of Mr. Mott's testimony in the Rule 26(a)(2) disclosure that were listed in the Final Pretrial Order was harmless to Defendant, the Court should properly allow Mr. Mott to testify concerning all of the matters listed in the Final Pretrial Order. See, e.g., Ajay Sports, Inc. v. Casazza, 1 P.3d 267, 274 (Colo. Ct. App. 2000) (Court allowed expert witness to testify to all matters listed in the trial management order even though not all of the matters were contained in the Rule 26(a)(2) disclosure because, among other things, the allegedly aggrieved party was aware the undisclosed matters would be contested issues at trial and had listed his own expert witnesses to testify about the same undisclosed matters). If the Court believes that Mr. Mott's testimony should be limited to the opinions expressed in his October 1, 2004 report, Defendant's three Rule 26(a)(2) witnesses (John Daily, Robert Feldmeier, and Jake Feldmeier) should likewise be limited to only their written reports and/or only their explicit opinions that are actually set forth in Defendant's Rule 26(a)(2) disclosure. B. Leprino's Unnamed Expert Witnesses. Leprino's Rule 26(a)(2) disclosure endorsed "One or more representatives of Lerpino Foods Company who possess skill, knowledge and experience to testify concerning certain matters in the case including, but not limited to, quality control standards in the manufacture of dairy/food products, manufacturing equipment operation, specifications, etc." Leprino hereby withdraws this expert witness

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designation of unnamed representatives, except to the extent that lay opinions pursuant to Fed. R. Evid. 701 can be elicited from such representatives of Leprino. III. CONCLUSION Defendant's Motion to limited the testimony of Mr. Mott, Leprino's expert witness, to his October 1, 2004 report must be denied. Leprino, by this response, withdraws the expert witness endorsement of unnamed expert witnesses. Respectfully submitted this 28th day of April 2006. CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC

By:

s/ Bret M. Heidemann Michael G. Bohn Bret M. Heidemann 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] ATTORNEYS FOR PLAINTIFF LEPRINO FOODS COMPANY

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CERTIFICATE OF SERVICE I hereby certify that on the 28th day of April 2006, I electronically filed the foregoing PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' MOTION S S TO LIMIT EXPERT L.J. MOTT' TESTIMONY AND TO EXCLUDE WITNESS S TESTIMONY BY ANY OTHER LEPRINO FOODS COMPANY REPRESENTATIVES (Document 92) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Catherine A. Tallerico, Esq. at [email protected]

s/ Cori Atteberry Cori Atteberry, Legal Assistant

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