Free Motion to Strike - District Court of Arizona - Arizona

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Brett Duke, Texas Bar # 24012559 The Law Offices of Brett Duke, P.C. 4157 Rio Bravo El Paso, Texas 79902 915-875-0003 915-875-0004 (facsimile) [email protected] Attorney for Plaintiff, Cheryl Allred Leon Schydlower, Texas Bar # 00795639 Attorney at Law 210 N. Campbell St. El Paso, Texas 79901 915-532-3601 915-532-2041 (facsimile) [email protected] Attorney for Plaintiff, Cheryl Allred IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred NO. CIV 03-2343 PHX-DGC Plaintiff, v. Corrections Corporation of America, Inc., and Bruno Stolc, Defendants. Defendants contend that Phillip Esplin is an expert. Plaintiff filed a Motion to Strike the Testimony of Phillip Esplin (Doc. # 137). On January 3, 2006, defendants transmitted by facsimile "Appendix A to Dr. Esplin's Expert Report, `Changes in Statement Over Time'" and "Appendix B. to Dr. Esplin's Expert Report, `Summary Timeline'" ("appendices"). The appendices are attached to this motion as Exhibit "A." Plaintiff objects to these appendices and asks the Court to strike these appendices from the previous report of Phillip Esplin because these appendices are very untimely and not permissible. The admission of such appendices and any PLAINTIFF'S MOTION TO STRIKE APPENDICES

Case 2:03-cv-02343-DGC

Document 154

Filed 01/09/2006

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testimony by Phillip Esplin concerning the matters within the appendices would not be harmless. Untimeliness The original deadline for the defendants to file a report from Phillip Esplin was November 19, 2004. (Case Management Order, Doc. #19). After various motions, hearings, and prior orders regarding Phillip Esplin, on March 11, 2005, the Court entered an order (Doc. # 104) that the defendants shall disclose Phillip Esplin's Rule 26(a)(2)(B) report on or before April 15, 2005 and that the parties complete the deposition of Dr. Esplin on or before May 13, 2005. On April 15, 2005, the defendants produced such report. On May 10, 2005, counsel for the Plaintiff deposed Phillip Esplin. On January 3, 2006, defendants served the appendices, more than one year after the original deadline and more than six months after the extended deadline for the disclosure of the report. Plaintiff's object to the appendices and request the Court strike the appendices for defendants' failure to comply with the Court's order that the defendants disclose the report of Phillip Esplin on or before April 15, 2005. Additionally, defendants significantly delayed in providing such appendices to the prejudice of the Plaintiff. On September 23, 2004, through a request for

production, the Plaintiff sought all invoices and billing material for Phillip Esplin. On January 6, 2006, for the first time, the defendants produced an invoice for Phillip Esplin. A copy of such invoice is attached to this motion as Exhibit "B." Upon review of this invoice, Plaintiff believes that page two of this invoice indicates that Phillip Esplin prepared such appendices on August 31, 2005. However, defendants failed to produce such until January 6, 2006.

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Additionally, the defendants failed to identify these appendices in their proposed list of exhibits. Impermissible As specified in the Plaintiff's Motion to Strike the Testimony of Phillip Esplin (Doc. # 137), the testimony of Phillip Esplin should be stricken because the defendants hired Phillip Esplin to present factual material to the jury, because his opinions and testimony are not the result of scientific, technical, or other specialized knowledge, and his testimony will not assist the trier of fact to understand the evidence or to determine a fact in issue. The untimely appendices further

demonstrate that Phillip Esplin is not qualified as an expert. Prayer For these reasons the Plaintiff asks the Court to strike the untimely appendices from any previously submitted report from Phillip Esplin, prohibit any testimony about matters contained in these appendices from Phillip Esplin, strike the testimony of Phillip Esplin, limine these appendices, and deny the admission into evidence these appendices. DATED this 9th day of January, 2006. The Law Offices of Brett Duke, P.C. s/Brett Duke Brett Duke 4157 Rio Bravo El Paso, TExas 79902 Attorney for Plaintiff, Cheryl Allred ORIGINAL/COPY of the foregoing served this 9th day of January, 2006 to: Leon Schydlower Law Office Of Leon Schydlower 210 North Campbell Street El Paso, Texas 79901

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Daniel P. Struck / Rachel Halvorson Jones, Skelton & Hochuli, P.L.C. 2901 N. Central Ave. Suite 800 Phoenix, Arizona 85012 s/Brett Duke

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