Free Motion in Limine - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Dan W. Goldfine (#018788) Richard G. Erickson (#019066) SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Facsimile: (602) 382-6070 [email protected] [email protected] Attorneys for Plaintiffs and Grant Woods, Esq. (#006106) GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Telephone: (602) 258-2599 Facsimile: (602) 258-5070 [email protected] Attorneys for Plaintiffs and Counterdefendants and Third Party Defendants

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Snell & Wilmer L.L.P.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, et al., Case No. CV-04-0384-PHX-ROS Plaintiffs, v. Ricky Lee Hancock, et al., Defendants. AND RELATED COUNTERCLAIMS AND THIRD PARTY CLAIMS Plaintiffs move to exclude only limited portions of Eugene Cole's anticipated testimony. Mr. Cole is Defendant Greg Hancock's damages expert. Although Plaintiffs do not challenge Mr. Cole's qualifications or the admissibility of his methodology employed as part of his opinions,1 they nevertheless challenge the admissibility of certain While Plaintiffs do not challenge admissibility generally, they will seriously challenge the probative value, validity, accuracy, completeness and bias of Mr. Cole's opinions at trial.
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PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE LIMITED PORTIONS OF EUGENE COLE'S TESTIMONY (Assigned to the Honorable Roslyn O. Silver)

Case 2:04-cv-00384-ROS

Document 525

Filed 08/29/2007

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

opinions not disclosed in compliance with the Federal Rules of Civil Procedure and this Court's Order, parroting of facts largely provided by Defendant Hancocks' counsel, opinions beyond his scope of expertise, and opinions offered beyond the expressed scope of his opinions in this case. I. Failure to Disclose

This Court ordered Defendant Hancock to disclose his expert report and opinions pursuant to the Federal Rules of Civil Procedure and by September 28, 2005, see September 2, 2005 Order at 1:26 (Item #210),2 and the close of fact discovery (but for exceptions that are inapposite) on May 31, 2006, see February 23, 2006 Order at Section F (Item # 277). Nevertheless, Defendant Greg Hancock disclosed for the first time right before and during the middle of Mr. Cole's deposition, September 20, 2006, that Mr. Cole had prepared additional expert opinions with respect to matters available to Mr. Cole for a year and available at the time of his initial reports and was offering those opinions in the instant case. See, e.g., Cole Depo. at 31:25 to 33:10, 51:5 to 65:8, 208:10 to 224:15 and Exhibits 3 and 4 thereto. Indeed, Mr. Cole provided Exhibit 3 to

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Snell & Wilmer L.L.P.

Defendants' counsel on January 18, 2006, but they inexplicably withheld that document for nine months. See id. at 31:25 to 33:10 and Exhibit 3. Accordingly, Meritage

respectfully requests an order in limine barring Mr. Cole from testifying about opinions derived from Exhibits 3 and 4 to Mr. Cole's deposition.3 II. Parroting Facts

In addition, as Mr. Cole explained in his deposition, many of the points he made in his Reports were nothing more than mere factual observations. See, e.g., 226: to 227:7, 237:2-14, and 238:8 to 245:19. Such testimony, effectively substituting an expert for the role of the presentation of facts by fact witnesses and documents and the role of the fact 2 Parties stipulated to extend Defendant Hancock's expert disclosure to November 30, 2005. See October 27, 2005 Stipulation (Item # 216).
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The only exception to this order in limine is Section I of Exhibit 3 to Mr. Cole's deposition in which he opines that Meritage's calculations of the earn-outs is accurate and that any difference from his calculation is due strictly to the fact that Defendants' counsel had instructed Mr. Cole to assume that Meritage had terminated Greg Hancock for cause.
Document 525- 2 - Filed 08/29/2007

Case 2:04-cv-00384-ROS

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

finder is outside the permitted role of experts. Fed. R. Evid. 702. Accordingly, Meritage respectfully requests an order in limine barring Mr. Cole from testifying about what the facts are. (Of course, to the extent he is able to, he can identify the facts on which his opinions are based.) III. Opinions about the Statutory Scope of Damages

Next, Mr. Cole acknowledged (a) that he is simply a forensic accountant and not an expert on the Lanham Act and (b) that the Lanham Act expressly permits the recovery of the tortfeasor's actual profits as damages, but he nevertheless offered opinions on how to interpret that theory of damages. See Cole Depo. at 137:16 to 140:24. Such an opinion is an issue of law reserved for the Court. Accordingly, Meritage respectfully requests an order in limine barring Mr. Cole from testifying how the fact finder should interpret the statutory measure of damages or testifying beyond his scope of expertise as a forensic accountant. IV. Beyond the Expressed Scope of His Opinions

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Snell & Wilmer L.L.P.

Finally, Mr. Cole testified that he was not offering any opinions on liability or causation and that his opinions were limited to critiquing Mr. Curry's opinions with respect to the amount of damages. See, e.g., Cole Depo. at 197:25 to 199:7. He

nevertheless testifies, without offering so much of a calculation, that in his opinion Meritage should have mitigated its damages. See, e.g., id. at 191:10 to 196:6. Mitigation is, by its nature, an issue of causation. Accordingly, Meritage respectfully requests an

Case 2:04-cv-00384-ROS

Document 525- 3 - Filed 08/29/2007

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

order in limine barring Mr. Cole from testifying that Meritage should have mitigated its damages. RESPECTFULLY SUBMITTED this 29th day of August, 2007. SNELL & WILMER L.L.P. By s/ Dan W. Goldfine Dan W. Goldfine Richard G. Erickson Snell & Wilmer, L.L.P. One Arizona Center 400 E. Van Buren Street Phoenix, Arizona 85004-2202 Attorneys for Meritage and

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Case 2:04-cv-00384-ROS

Snell & Wilmer L.L.P.

By s/ Grant Woods Grant Woods, Esq. GRANT WOODS, P.C. 1726 North Seventh Street Phoenix, Arizona 85006 Attorneys for Meritage

Document 525- 4 - Filed 08/29/2007

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on August 29, 2007, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Robert M. Frisbee Frisbee & Bostock, PLC 1747 East Morton Avenue Suite 108 Phoenix AZ 85020 Attorneys for Greg Hancock Kenneth J. Sherk Timothy J. Burke Fennemore Craig, P.C. 3003 N. Central Ave. Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Defendant Snell & Wilmer, L.L.P. in State Court Action s/ Deborah Yanazzo
2036295

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Case 2:04-cv-00384-ROS Document 525- 5 - Filed 08/29/2007 Page 5 of 5

Snell & Wilmer L.L.P.