Free Motion in Limine - District Court of Arizona - Arizona

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Georgia A. Staton, 004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 (602) 263-1752; (602) 263-7365 [email protected] Attorneys for Defendants

5 UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA 7 8 9 v. 10 11 12 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 (Assigned to the Honorable Earl H. Carroll) Defendants move for an order in limine precluding any testimony by Plaintiffs' expert Jay Finkelman regarding any information reviewed after his report. Such evidence must be excluded as undisclosed. Fed.R.Civ.P 26 and 37(c). I. BACKGROUND Plaintiffs' "human resources" expert is Jay Finkelman. Dr. Finkelman's disclosed opinions, and the information on which he based those opinions, are specified in a November 12, 2005 report. See Exhibit 1 hereto. Dr. Finkelman's deposition was taken on January 4, 2006. M ultiple times during his deposition, Dr. Finkelman referred to information he did not possess or had not reviewed. For example, when asked whether he knew who had conducted a relevant internal affairs investigation, Dr. Finkelman replied that he did not. (Finkelman Depo. p. 58, lines 16-18, attached as Exhibit 2.) Nor could he identify who was interviewed as part of the investigation. (Finkelman Depo. p. 57, Case 2:03-cv-02077-EHC Document 88 Filed 06/08/2006 Page 1 of 4 Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations I-X; and XYZ Partnerships I-X, INFORMATION RELIED UPON BY EXPERT TESTIMONY BY JAY FINKELMAN AFTER H E WROTE HIS REPORT Robert Gant and Betty Gant, Husband and Wife, NO. CV 03-2077-PHX-EHC

Plaintiffs, DEFENDANTS' MOTION IN LIMINE RE:

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line 25, p. 58, lines 1-4, attached as Exhibit 2.) He also claimed that there were white sergeants that had been promoted to lieutenant without having one year as Sergeant, but could not name such individual, nor had he seen documentation substantiating that claim. (Finkelman Depo. p.81 lines 5-25, p. 82 lines 1-5, attached as Exhibit 2.) Following the deposition, Plaintiffs served no supplemental disclosure statement specifying additional information Dr. Finkelman reviewed after the deposition. And, even if he had, he should not be allowed to rely on such information in supporting his opinions.

II.

ARGUMENT Rule 26 (a)(2)(B) requires that parties timely disclose the substance of their

experts' opinions. Fed.R.Civ.P. 26. Rule 26(e) requires that those expert reports must be supplemented if "the party learns that the earlier information is inaccurate or incomplete." Fed.R.Civ.P. 26. Rule 37(c)(1) "gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) [and 26(e)(1)] that is not properly disclosed." Yeti by Molly LTD v. Deckers Outdoor Corporation, 259 F.3d 1101, 1106 (9th Cir. 2001). Rule 37 is a "self-executing, automatic sanction to provide a strong inducement for the disclosure of material." Id. citing Fed.R.Civ.P. 37 advisory committee's note (1993). Courts have been justified in ordering this sanction even when a party's entire case rested on the excluded testimony. Id. Further, there is no requirement that there be a record of bad faith or wilfulness. Id. Rule 37(c)(1) provides two exceptions to the sanction of exclusion, neither of which are present in this case. If the failure to disclose is substantially justified or harmless, the Court may allow its introduction. Fed.R.Civ.P. 37(c)(1). It is the Plaintiffs' burden to show any such justification or harmlessness. Yeti by Molly, at 1107. There can be no justification for Plaintiffs' failure to disclose any information supplied to or

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relied upon by Dr. Finkelman's report and deposition. Six months have passed since the deposition, giving Plaintiffs and Dr. Finkelman ample time to supplement the report and/or disclose additional information. They did not. Further, Defendants, like the injured party in Yeti by Molly, have not been given the opportunity to properly prepare for trial by deposing Dr. Finkelman again and questioning him as to any new information he has received. Any new information obtained by Dr. Finkelman should have been disclosed to Defendants in time for them to re-depose Dr. Finkelman. Furthermore, "a party may not use a `non-opinion' as a placeholder to spring a `supplemental opinion' in the eleventh hour that squarely addresses the issues in a case." White v. Cinemark USA, Inc., 2005 WL 1865495, *3 (E.D. Cal.). Dr. Finkelman's report is a "non-opinion" to the extent that it relies upon information that he did not possess at the time of the report. He cannot now spring new information or opinions on the Defendants. See also Keener v. United States, 181 F.R.D. 639 (D.Mont. 1998)(expert precluded from testifying to information relied upon after initial report and not timely disclosed). Plaintiffs have not disclosed anything regarding Dr. Finkelman's report or testimony since his deposition. Therefore, his testimony at trial should be restricted to those matters contained in his reports or discussed at his deposition. He should not be permitted to testify regarding new information he reviewed or new opinions he developed since that time. Allowing such testimony would severely prejudice Defendants since they have had no opportunity to probe any newly-acquired information through deposition. III. CONCLUSION The testimony of Plaintiffs' expert, Dr. Jay Finkelman, should be limited to the opinions stated in his November 15, 2005 report and January 4, 2006 deposition.

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He should not be allowed to rely on any information reviewed after his deposition. Such testimony should be precluded under Rule 37, Fed.R.Civ.P. RESPECTFULLY SUBM ITTED this 8TH day of June, 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Georgia A. Staton Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants ORIGINAL of the foregoing e-filed this 8th day of June, 2006 with: Clerk of the U.S. District Court District of Arizona COPY of the foregoing mailed this 8th day of June, 2006, to: Hon. Earl H. Carroll United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 602-322-7530 Robert M. Gregory, Esq. LAW OFFICE OF ROBERT M. GREGORY, P.C. 1930 South Alma School Road Suite A-115 Mesa, AZ 85210 480-839-4711 Attorney for Plaintiffs s/Gwen Coon

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Case 2:03-cv-02077-EHC