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

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Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7854 [email protected] Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Robert Gant and Betty Gant, husband and wife, Plaintiffs, v. Roger Vanderpool, Sheriff of Pinal County; Pinal County, a political subdivision; John Does and Jane Does I-X; ABC Corporations IX; and XYZ Partnerships I-X, Defendants. NO. CV 03-2077-PHX-EHC DEFENDANTS' REPLY IN SUPPORT OF MOTION IN LIMINE RE: INFORMATION RELIED UPON BY EXPERT TESTIMONY BY JAY FINKELMAN AFTER HE WROTE HIS REPORT

Plaintiffs' Response to Defendants' Motion in Limine regarding Jay Finkelman misconstrues Defendants' objection to information Dr. Finkelman is anticipated to testify about at trial. Defendants are not raising a Daubert objection. Rather, Defendants assert that Plaintiffs' failure to comply with the mandatory disclosure requirements precludes them from presenting expert testimony beyond that which has already been disclosed. Rules 26(a)(2)(B), 26(e)(1), and 37(c)(1), Fed.R.Civ.P. Plaintiffs' Response discusses the Daubert standard of reliability under Rule 702, Fed.R.Evid. and the need for the "methodology" used by the exert to be proper. That discussion is irrelevant. Regardless of what "methodology" Dr. Finkelman used,

Plaintiffs were required to disclose the substance of Dr. Finkelman's opinions and "the
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basis and reasons therefor." Fed.R.Civ.P. 26(a)(2)(B). Dr. Finkelman's expert opinions are based on and confined to the 38 documents listed in his November 12, 2005 report and testified to during his January 4, 2006 Deposition. (See "Materials Reviewed" section of November 12, 2005 Report, attached as Exhibit 1.) Plaintiffs never supplemented the expert disclosure to include additional information that Dr. Finkelman may have reviewed or relied upon to testify at trial. In their Response, Plaintiffs concede that they "have not provided Dr. Finkelman with any new information since he prepared his report and since he testified at his deposition, and Plaintiffs have not asked Dr. Finkelman to update his report or modify his deposition testimony." (See Plaintiffs' Response, p. 1.) Thus,. by their own concession, Dr. Finkelman's trial testimony must be limited to the documents he listed and opinions provided in his November 12, 2005 report. Defendants do not know if Dr. Finkelman intends on providing an expanded opinion at trial based on any new information he may have received between now and trial. If Dr. Finkelman attempts to provide trial testimony that either expands his opinions as authored in his report, or relies on any newly reviewed documents, such testimony must be excluded. Plaintiffs' admitted failure to supplement their disclosure with the additional documents that Dr. Finkelman may have relied upon violates Rule 37(c)(1). Additionally, Plaintiffs have failed to meet their burden of showing justification or harmlessness to Defendants. The reason Plaintiffs have not justified the failure to supplement the expert disclosure nor proven harmlessness is because they simply can not. Because Plaintiffs have not disclosed any additional information Dr. Finkelman has relied upon or supplemented his expert opinion, Dr. Finkelman's trial testimony must be restricted to the opinions rendered and documents specified in his November 12, 2005 report. To hold otherwise would materially prejudice the Defendants in the defense of this litigation.
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RESPECTFULLY SUBMITTED this 24th day of July, 2006. JONES, SKELTON & HOCHULI, P.L.C.

BY /s/ Lori L. Voepel (for) Georgia A. Staton 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants, Pinal County and Roger Vanderpool as Sheriff of Pinal County Original e-filed and copies of the foregoing mailed this 24th day of July, 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. 1920 South Alma School Road Suite A-115 Mesa, AZ 85210 Attorney for Plaintiffs 480-839-4711 FAX: 480-452-1753 E-mail: [email protected] /s/ Rose Crutcher

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