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

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Wayne Gill, Esq. (Fla Bar. No. 114953) WALTON LANTAFF SCHROEDER & CARSON LLP 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401 Telephone: (561) 689-6700 Facsimile: (561) 689-2647 Steven Plitt, Esq. (State Bar No. 007481) Daniel Maldonado, Esq. (State Bar No. 018483) KUNZ PLITT HYLAND DEMLONG & KLEIFIELD 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1092 Telephone: (602) 331-4600 Facsimile: (602) 331-8600 Attorneys for Defendant/Counter-Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA U-Haul International, Inc.; U-Haul Company Of Pennsylvania; U-Haul Company Of Florida; and Republic Western Insurance Company, Plaintiffs, vs. Lumbermens Mutual Casualty Company, Defendants. No. CIV 04-0662 PHX DGC (Maricopa County Superior Court Cause No. CV 2004-002438) DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO EXCLUDE TESTIMONTY OF DOUGLAS M. BELL (Assigned to the Honorable David G. Campbell)

Defendant, Lumbermens Mutual Casualty Company ("LMC") by and through its
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undersigned counsel, hereby files its Reply to Plaintiff's response opposing Defendant's motion to exclude the testimony of Douglas Bell regarding Loss Adjustment Expenses (LAE).
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The case relied upon by U-Haul, In Re First Alliance Mortgage Co. v. Lehman Commercial Paper, Inc., 471 F.3d 977 (9th Cir. 2006), is distinguishable because in that case, discovery was not officially closed according to footnote 10 of the opinion.

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Additionally, the opinion notes that the witness disclosures were made more than 60 days prior to trial. The most important and distinguishing factor between First Alliance and the case at hand is that here there was a direct and incorrect representation to defendant as to

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what was the scope of the subject matter on which a 30(b)(6) witness was being presented to testify at deposition. Mr. Bell was not disclosed as a witness until plaintiffs presented him for deposition as one of their two 30(b)(6) witnesses. Counsel for plaintiffs specifically represented to defendant's counsel during Mr. Bell's deposition

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that Mr. Bell would not testify as to LAE payments because testimony regarding LAE payments would be given by plaintiffs' other 30(b)(6) witness, Mr. Matush. Therefore Mr. Bell was not questioned about LAE at his deposition. This last minute disclosure is prejudicial to Lumbermens because there has been no opportunity to question Mr. Bell about his proposed knowledge of LAE. Further, discovery of non-experts closed on March 1, 2005. Counsel for Plaintiff waited almost two years to disclose the change in testimony/witnesses, and has provided no legitimate excuse for doing so.

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CONCLUSION 1. For the reasons stated above and in its Motion to exclude the testimony of

Bell, defendant, Lumbermens Mutual Casualty Company, respectfully requests the court
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to exclude, as a sanction under Federal Rule 37(c), any testimony of Douglas M. Bell regarding plaintiffs' damages claim and Republic Western's LAE and indemnity payments.

DATED this 7th
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day of March, 2007. WALTON LANTAFF SCHROEDER & CARSON LLP Wayne Gill, Esq. 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD, P.C.

By: s/ Daniel Maldonado Steven Plitt Daniel Maldonado 3838 N. Central Avenue, Suite 1500 Phoenix, AZ 85012-1902 Attorneys for Defendant

ORIGINAL electronically filed with the USDC this 7th day March, 2007, and a Copy delivered to Judge Campbell;

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and a COPY electronically served/mailed to: Gerald Gaffaney, Esq. David J. Ouimette, Esq. MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central, Suite 200 Phoenix, Arizona 85012 Attorneys for Plaintiff Bruce Friedman, Esq. Mark S. Fragner, Esq. RUBIN, FIORELLA & FRIEDMAN, LLP 292 Madison Avenue, 11th Floor New York, New York 10017 Attorneys for Plaintiff

s/ Tracey Barnes

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