Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 114

Filed 05/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-MEH

LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. REPLY IN SUPPORT OF DEFENDANT'S MOTION TO LIMIT L.J. MOTT'S TESTIMONY AND TO EXCLUDE WITNESS TESTIMONY BY ANY OTHER LEPRINO FOODS COMPANY REPRESENTATIVE (DOCUMENT 98)

Feldmeier Equipment, Inc., by and through counsel, submits its Reply in Support of Defendants' Motion to Limit L.J. Mott's Testimony and to Exclude Witness Testimony by any Other Leprino Foods Company Representative (Document 98) as follows: REPLY Plaintiff concedes that its expert reports were due October 1, 2004. Plaintiff further concedes that its sole expert, L.J. Mott issued only one report, which was never supplemented, on October 1, 2004. Mr. Mott's October 1, 2004 report was written in conformance with Fed. R. Civ. P. 26(a)(2)(B) and therefore, all his opinions must have been disclosed therein. Thereafter, Defendant filed its expert reports in response to Mr. Mott's October 1, 2004 report. Defendant's experts limited themselves to responding to opinions set forth in the October 1, 2004 report. Defendant's experts did not attempt to rebut opinions and theories that Mr. Mott

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

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propounded in the underlying State Court Action if they were not included in the October 1, 2004 report. Plaintiff argues Defendant should have anticipated that all of Mr. Mott's various and ever-changing opinions asserted in the State Court Action were also going to be asserted in this action. Defendant could not so anticipate and did not attempt to do so. To this day, Defendant does not know specifically what other opinions Leprino wants Mr. Mott to testify to. If Mr. Mott is permitted to testify as to new opinions and theories that were not included in his October 1, 2004 report, Defendant will be greatly prejudiced as it has not had an opportunity to submit a rebuttal report to address whatever additional opinions/theories Mr. Mott may now have. Accordingly, the Court must limit Leprino to Mr. Mott's October 1, 2004 report. WHEREFORE, Feldmeier respectfully requests the Court issue an Order limiting Leprino to expert testimony as set forth in the one and only expert report ever submitted by it in this case, i.e., Mr. Mott's October 1, 2004 report. Respectfully submitted this 8th of May, 2006. FOWLER, SCHIMBERG & FLANAGAN, P.C.

s/ Catherine A. Tallerico Catherine A. Tallerico 1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603 ATTORNEYS FOR DEFENDANT

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

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of May, 2006, I caused a true and correct copy of the foregoing REPLY IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO PREVIOUSLY SETTLED MATTER BY PLAINTIFF (DOCUMENT 100) to be was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

Michael G. Bohn, Esq. [email protected] Mr. Jake Feldmeier [email protected]

s/ Michelle Rocke