Free Motion in Limine - District Court of Arizona - Arizona

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John A. Weil, Bar No. 005621 Lori A. Butler, Bar No. 016139 W EIL & W EIL, PLLC 1600 S. Fourth Avenue, Suite C Yuma, Arizona 85366-1977 Tel: (928) 783-2161 Fax: (928) 783-6082 Attorneys for Defendants Curtis UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 Defendants, Glen G. Curtis, Trustee of Curtis Family Trust and Sam Perricone, v. 192.019 Acres of Land, more or less, located in Yuma County, State of Arizona; Glen G. Curtis, Trustee of Curtis Family Trust; Sam Perricone, Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone and M ary Louise Perricone; et al., Defendants. DEFENDANTS' MOTION IN LIMINE (REVISED APPRAISAL REPORT) United States of America, Plaintiff, CIV-03-2006-PHX-SRB

19 Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone 20 and Mary Louise Perricone ("Defendants Curtis"), herein move in limine to exclude 21 from trial the Revised Appraisal Report prepared by John Dorchester. This motion is 22 supported by the attached Memorandum of Points and Authorities. 23 24 25 26 27 28 By: /s/ John A. Weil John A. Weil Attorney for Defendants DATED this 10th day of July, 2006. WEIL & WEIL, PLLC

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Memorandum of Points and Authorities INTRODUCTION Defendants Curtis move the Court, in limine, for an order prohibiting the

4 introduction of evidence by Plaintiff, or reference in any manner during the course 5 of trial, to the Revised Appraisal Report prepared by John Dorchester. 6 7 FACTUAL BACKGROUND This is a condemnation action for the acquisition by the United States of the

8 Property described in the Complaint and previously owned by Defendants Curtis in 9 Yuma, Arizona. 10 The issue to be determined at trial is the just compensation to be paid by

11 United States to Defendants Curtis for all of their interest in the Property. 12 On June 15, 2004, the Court issued the Rule 16 Scheduling Order. The Rule

13 16 Scheduling Order states: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 "G. The parties are required to finally supplement all discovery, including material changes in expert witness opinions and disclosure, pursuant to Fed.R.Civ.P. 26(a)(3), of all exhibits to be used and all witnesses to be called at trial, on or before May 2, 2005. The parties are reminded that this order governs and supercedes the 30 days before trial disclosure deadline contained in Fed.R.Civ.P. 26(a)(3). Therefore, (1) failure to timely supplement Rule 26(a) disclosures, including witnesses and exhibits for trial, (2) failure to timely supplement responses to any valid discovery requests, and (3) attempts to include witnesses or exhibits in the Proposed Final Pretrial Order that were not previously disclosed in a timely matter may result in the exclusion of such evidence at trial or the imposition of other sanctions pursuant to Fed.R.Civ.P. 37, the Local Rules of the District Court, and the inherent power of the court." (Emphasis added.) The pretrial schedule was modified several times. The final modification of pretrial schedule was ordered by the Court on January 6, 2006. This Order states:

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"That the completion of all discovery . . . and supplementation of all discovery, including changes to expert witness opinions and disclosures as required by 26(a)(3), Fed. R. Civ. P., and disclosure of all exhibits and witnesses, be extended to March 31, 2006." Plaintiff presented the Appraisal Report of John Dorchester, dated February 25, 2005, to Defendants Curtis. Mr. Dorchester's Appraisal Report indicated that the Property that is the subject of this eminent domain proceeding is included in the Accident Potential Zone of the Yuma airport. One critical issue on just compensation in this case concerns valuation of property included in an Accident Potential Zone. Property that lies within an Accident Potential Zone is subject to certain restrictions on use. In Yuma County certain restrictions arise under the zoning ordinances or the Joint Land Use Plan, a plan developed jointly by the City of Yuma and County of Yuma. If a parcel of property is in an Accident Potential Zone, and therefore has certain restrictions upon it, its property value is reduced. Defendants Curtis determined that the Property is not in an Accident Potential Zone. This conclusion, with documentation to support the conclusion, was disclosed in discovery responses to Plaintiff several times, including in response to interrogatories and in response to production of documents. Plaintiff had notice of this critical issue from at least June 2005, the date of the response to interrogatories. Mr. Dorchester was not available for deposition until March 22, 2006. Immediately prior to this deposition Mr. Dorchester amended his original Appraisal Report.. Mr. Dorchester corrected numerous errors that appeared in the original reports, making substantial revisions. This amended report was not

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renamed and was not given a new date; it is also dated February 25, 2005. Based upon the first Appraisal Report, and the amended and modified second Appraisal Report, John A. Weil deposed Mr. Dorchester on March 22-23, 2006. During the deposition Mr. Weil directed Mr. Dorchester to specific pages and paragraphs in his report. Mr. Dorchester read the provisions, quoted the provisions by page and paragraph and discussed them. Mr. Dorchester acknowledged numerous mistakes in his appraisal, including the error that a portion of the Property lies within an Accident Potential Zone. Thereafter, Defendants Curtis prepared for trial in reliance on Mr. Dorchester's original and modified appraisal reports, including his valuation based upon inclusion of land within the Accident Potential Zone and his testimony at his deposition. The deadline for completion of all discovery, including supplementation of all discovery and changes to expert witness opinions, was March 31, 2006. Well after this deadline, Mr. Dorchester prepared a Revised Appraisal Report. The Revised Appraisal Report is dated April 22, 2006 (although this is not the date it was provided to Defendants Curtis). In the section captioned "Supplemental Report ­ Explanations", it states: "This supplemental report contains the following: 1. Corrections and additions in the text of the appraisal report. These are contained in the report of which the supplement is an integral part. The previous report is rescinded and only the current report within which this Supplemental Statement is contained should be used in this matter." Revised Appraisal Report, Supplemental Statement, p. i (emphasis added.) The Revised Appraisal Report is two inches thick and over 360 pages. There is no provision by which to track what changes were made from the original report or the amended report. It is impossible to determine whether new tables, exhibits or arguments are presented without comparing the three appraisal reports 4

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page by page and line by line, an extremely time-consuming exercise to say the least. In sum, although Mr. Dorchester provides a ten page explanation of why changes were made, he neglects to provide what pages, paragraph, statements, exhibits, tables or analysis has actually been modified. Despite this failure to disclose what changes were made, Defendants Curtis have determined that Mr. Dorchester corrected his original statement that a portion of the Property was in an Accident Potential Zone, which it is not. Revised Appraisal Report, Supplemental Report ­ Explanations, p.i. Mr. Dorchester did not change the valuation of the Property even though he has now determined it is outside the Accident Potential Zone. Defendants Curtis have been prejudiced by this untimely presentation of evidence. Defendants Curtis do not have adequate time to scrutinize the report for changes from the original report and the modified report. Defendants Curtis do not have adequate time for their expert witness to thoroughly review the revised report. Defendants Curtis are unable to depose Mr. Dorchester regarding these changes, as the discovery deadline passed months ago. Significant effort was made by Mr. Weil at the deposition to tie Mr. Dorchester down to specific provisions in his Appraisal Report, by page number and paragraph and specific language. By untimely submitting the third revised appraisal report Plaintiff improperly seeks to avoid the ill effects of Mr. Dorchester's deposition testimony. Furthermore, if Plaintiff is allowed to utilize this third amended report at trial, there will be great confusion for the jury. The jury will be forced to review provisions in three different appraisal reports. The jury will need to refer to deposition testimony pointing to a specific page and paragraph but then will need to refer to different appraisal reports to determine what provisions are being 5

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discussed. The pages will be different, the paragraphs will be different, and significantly, the language will be different. Defendants Curtis are faced with the situation where Plaintiff's most significant witness has rescinded the original appraisal reports ­ the reports by which all discovery has been conducted, including the expert witness deposition. Now, Plaintiff intends to rely on a revised report and there is no opportunity to depose Mr. Dorchester on the changes, including the critical issue of valuation based on (now) exclusion from the Accident Potential Zone. Defendants Curtis have been prejudiced by this new, untimely evidence and therefore, Defendants Curtis respectfully request exclusion of the Revised Appraisal Report. LEGAL ANALYSIS The Revised Appraisal Report should be excluded from trial. The Revised Appraisal Report does not supplement the original report or the amended report, rather, it completely replaces them. By submitting the Revised Appraisal Report well after the discovery deadline, Plaintiff failed to comply with the Court's Orders, thereby causing prejudice to Defendants Curtis. Expert discovery, including deposition, has been closed and the trial of this eminent domain proceeding approaches. The critical changes to the reports, combined with the timing of the submission, shows bad faith. For these reasons Defendants Curtis request the Court strike the Revised Appraisal Report in its entirety. Rule 26(a)(2)(B), Federal Rules of Civil Procedure, requires an expert to submit an expert report that contains all the expert's opinions, the data considered by the expert, any exhibits to be used to summarize or support the opinions, the expert's qualifications, the expert's compensation for the testimony, and a listing of the expert's involvement in related cases. Wechsler v. Hunt Health Systems, Ltd., 381 F.Supp.2d 135, 155 (S.D.N.Y. 2003). 6

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Rule 26(e) requires a party to supplement or correct an expert report to include information thereafter acquired if the party learns that in some material respect the information disclosed is incomplete or incorrect. Id. (As stated, Plaintiff had notice as of June 2005 that the appraisal reflected incorrect information regarding the Accident Potential Zone. Mr. Dorchester in fact amended his appraisal, but neglected to correct this error.) In the instant case, the Court issued an order requiring all expert witness opinions to be supplemented on or before March 31, 2006. Plaintiff has violated the Court's order by submitting the Revised Appraisal Report after this deadline. The Court's Rule 16 Scheduling Order warned the parties of sanctions for failure to comply with the discovery deadlines: evidence may be excluded at trial. Although the exclusion of evidence because of a party's failure to meet a timing requirement is a harsh remedy, such exclusion is necessary to avoid the prejudicial effect on Defendants Curtis. See Praxair v. ATMI, Inc., 231 F.R.D. 457, 463 (D. Del. 2005)(exclusion of evidence is harsh remedy; however, sometimes such exclusion is necessary); see United States v. 68.94 Acres of Land, 918 F.2d 389, 396 (3d Cir. 1990)(as sanction for failure to comply with scheduling order the court is authorized to exclude evidence proffered by the disobedient party). And, such exclusion is authorized by Rule 37, Federal Rules of Civil Procedure. When determining whether to exclude evidence, a court may consider: "(1) the prejudice or surprise in fact of the party against whom the excluded witness would have testified, (2) the ability of that party to cure the prejudice . . . and (4) bad faith or willfullness in failing to comply with the district court's [scheduling] order." Wechsler, 381 F.Supp.2d at 155-56 (quoting In re Kreta Shipping, S.A., 181 F.R.D. 273, 277 (S.D.N.Y. 1998)). 7

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Defendants Curtis have been prejudiced because they have prepared for trial over the last year based on discovery and analysis of what is now a rescinded expert report. They are unable to conduct additional discovery concerning the Revised Appraisal Report and they are unable to depose John Dorchester regarding the revisions. Defendants Curtis are faced with analysis of a 360 page document, without the benefit of enough time for their own expert to review it comprehensively. Defendants have no information on what has been changed, other than the 10 page summary explanation provided in the new appraisal, and must spend an inordinate amount of time comparing the original report and revised report simply to determine what was modified. Furthermore, referring the jury to provisions cited at the deposition will be immensely confusing because those provisions will not reflect the page number, paragraph number or specific language in the untimely amended report. Plaintiff is unable to cure this prejudice. There is insufficient time before trial to allow for cure. Lastly, as stated above, the critical changes to the revised report, combined with the timing of the submission, shows bad faith on the part of the Plaintiff. CONCLUSION Based on the foregoing, Defendants Curtis respectfully request the Court strike the Revised Appraisal Report and exclude this evidence from trial. DATED this 10th day of July, 2006. WEIL & WEIL, PLLC

23 24 By: 25 26 27 28 8 /s/ John A. Weil John A. Weil Attorneys for Defendants

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