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

Case 1:04-cv-01099-JLK-DW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1099- JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

WOLF CREEK'S REPLY IN SUPPORT OF MOTION TO EXCLUDE JOINT VENTURE'S NEW EXPERTS AND RELATED TESTIMONY OR, IN THE ALTERNATIVE, FOR ALLOWING WOLF CREEK LIMITED DISCOVERY AND REBUTTAL EXPERTS

Wolf Creek Ski Corporation, Inc. ("Wolf Creek"), through its undersigned counsel, respectfully submits this Reply in Support of its Motion to Exclude Joint Venture's New Experts and Related Testimony and states as follows: 1. It is undisputed that Dr. Blauer and Messrs. Phelps, Murphy, Malish, Roe and

Poole are trained professionals and have specialized knowledge. Without addressing the obvious question ­ what could or would these individuals testify about that does not require the specialized knowledge that the Joint Venture retained them for -- the Joint Venture's Response argues that the Court should defer any decision until the Joint Venture designates witnesses at a later date. However, Wolf Creek is attempting now to avoid the inevitable surprise and delay that would ensue should the Joint Venture designate any of these six newly-identified persons as

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trial witnesses. Discovery closed some time ago, and the Joint Venture sandbagged Wolf Creek with these newly-identified witnesses who were not previously identified in any Rule 26 disclosure, nor were they identified by any fact witnesses in depositions as persons having facts relevant to this lawsuit ­ instead, they have emerged only in the context of expert damages issues. Depending on the Court's ruling, Wolf Creek will seek discovery of these individuals and possibly the opportunity to designate rebuttal experts, as Wolf Creek would be unfairly prejudiced in the event these persons with specialized knowledge were to testify without rebuttal. 2. Federal Rule of Evidence 701 provides that unless designated as an expert, no

person shall provide testimony "based on scientific, technical, or other specialized knowledge [falling] within the scope of Rule 702." This rule was amended in 2000 to "ensure[] that a party will not evade the expert witness disclosure requirements set forth in Fed. R. Civ. P. 26 . . . by simply calling an expert witness in the guise of a lay person." Fed. R. Evid. 701, Adv. Comm. Notes (2000 Am.). 3. The comments to the amendment cited United States v. Figueroa-Lopez, 125 F.3d

1241 (9th Cir. 1997), as does the Joint Venture in its Response. In that case, the ninth circuit held that testimony regarding whether the actions of the defendant were consistent with an experienced narcotics trafficker was not lay testimony; rather, it was expert testimony because the testimony was based on specialized knowledge. This is so, notwithstanding that the testimony was based on the first-hand observations of the witness: The testimony in this case is precisely the type of `specialized knowledge' governed by Rule 702. A holding to the contrary would encourage the Government to offer all kinds of specialized opinions without pausing first properly to establish the required qualifications of their witnesses. The mere percipience of a 2
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witness to the facts on which he wishes to tender an opinion does not trump Rule 702. Otherwise, a layperson witnessing the removal of a bullet from a heart during an autopsy could opine as to the cause of the decedent's death. Surely a civilian bystander, or for that matter a raw DEA recruit would not be allowed to interpret for the jury Lopez's behavior in the parking lot . . . as that of an "experienced" trafficker merely because that person was an eyewitness to the same. Id. at 1246 (emphasis supplied). 4. There can be no doubt that any testimony the six experts could provide would be

based on specialized knowledge rather than lay observations. Perhaps most telling is that the Joint Venture's Response fails to identify any potential testimony that these persons might provide that does not require specialized knowledge. As set forth in Wolf Creek's Motion to Exclude, and as the Joint Venture does not deny, these individuals were hired by the Joint Venture for their expertise. These individuals are going to testify about the costs of the EIS, the Snowshed Road, and the lynx mitigation ­ which is exactly what they were hired to do. Even if asked simply about the cost was of the work they performed, they (rather than Mr. Honts, for example) would be called because they alone can attempt to defend the reasonableness of such costs based on their specialized knowledge. Only a person with specialized knowledge can explain why the EIS, Snowshed Road, traffic studies, and lynx mitigation were necessary, and why costs were incurred and reasonable. No lay witness could testify as to whether an EIS was necessary, how a road could or should be built, the specifics of lynx mitigation and wildlife issues, or whether the traffic analyses performed in this case reveal that, under CDOT regulations, the Joint Venture is required to obtain an access permit from the state. See Motion to Exclude at 4. These are the types of observations that lay witnesses cannot provide because they are based 3
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on specialized knowledge and training rather than the type of observations common in everyday life (e.g., observations such as "the gun was black", or "the defendant appeared to be frightened"). 5. The Joint Venture's contention that the six experts were disclosed merely to

comply with Fed. R. Civ. P. 26(e) is belied by the timing of their disclosure. Response at 3. The six experts appeared in the Joint Venture's Supplemental Disclosures long after new counsel took over the case, and shortly after the deposition of the Joint Venture's damages expert, Ms. Lisa Meer. It was through Ms. Meer's document production (shortly before her deposition) and during her deposition when it became clear that Ms. Meer herself qualified for her own benefit Dr. Blauer and Messrs. Phelps, Murphy, Malish, Roe and Poole as persons having specialized knowledge, and that she relied upon the six experts to provide expert opinions regarding causation related to key issues in this case such as the need for an EIS, the need for traffic studies and their relation to CDOT requirements, various road construction and placement issues, and the need to undertake lynx mitigation measures. See Motion to Exclude at 4-6. As just one example (others are referenced in the Motion to Exclude at 4-6), the following questions and answers occurred in the Meer deposition regarding damages calculations concerning the Tranquility Road: Q: [You] don't intend to independently verify whether or not the road is in the right location or whether the road needs additional work; is that correct? [Objection to form] A: Prior to trial, I would have subsequent conversations with Murfee Engineering to talk about the placement of the existing road, get more information about the possible need and costs associated with rebuilding the entire road if in fact we would use a 2300-foot estimate in our damage calculation. Q: In fact, the reason you talked to Murfee is because . . . they have more expertise than you on the issue of road construction, correct? 4
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A: Yes. Q: . . . Why was that important: to receive a resume-type document [from Murfree Engineering]? A: We requested this type of material from all third-party consultants or contractors that had provided cost estimates: one, so that we could get a handle on exactly what they do, the types of clients that they service, and just so we'd have a greater understanding for report-documentation purposes of the services provided by their firm. Q: You also wanted to see if they were qualified? A: No question. That's a good summary. Q: Now, are you aware of any opinion Mr. Murfree has issued in this case as an expert? A: Well, indirectly ­ Q: In terms of a report. A: Not in terms of a report. Q: But indirectly through you? A: Yes. (Meer dep. at 122:11-124:6), attached as Exhibit 1. Later, on questioning regarding the Snowshed Road, a similar colloquy occurred: Q: . . . You don't know whether [the plans for the Snowshed Road] looks like [a monorail at Disney World] or whether it looks like a road in most ski areas or what, do you? A: My assumption for my report . . . is that the estimate for the road as provided by Murfee was for a road that was of a reasonable qualitative nature for the circumstances; that it was not a Disney World, overblown, six-lane highway with rest stops along the way. . . . So I will obtain more qualitative information since that questions was asked, so I'll have a better answer. Q: Okay. The problem here, Ms. Meer, is at trial, when I start asking you questions about whether or not certain girders should or shouldn't have been used and whether or not certain footings should have been placed and in what location, you're not going to be able to answer those questions, are you? [Objection to form] A: No. And I presumed you wouldn't want me to, as I'm not qualified in those engineering, road construction . . . . Q: And what expert are you aware of that's going to testify to that in this case? A: I don't know counsel's strategy. (Meer dep. at 158:21-160:3), attached as Exhibit 2. 5
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Only weeks later, the Joint Venture filed the supplemental disclosure naming Murfee and the other witnesses. Of course, there is similar testimony regarding the specialized knowledge of each of these witnesses. It is clear that the six experts were suddenly disclosed to provide the Joint Venture with witnesses qualified to testify about the construction and engineering costs and requirements for various roads, the need for an EIS, the necessity of a CDOT permit, and the causes underlying the Lynx mitigation measures undertaken by the Joint Venture. 5. The supplemental disclosure identifying these individuals was filed after the close

of discovery. While the parties are permitted to wrap-up certain specific discovery issues previously identified for the Court, it is Wolf Creek's understanding that no additional document or deposition discovery is permitted without leave of the Court. Wolf Creek has been prejudiced by not being able to obtain documents from these individuals, by not being able to depose them, and by not being able to identify rebuttal witnesses with expertise to counter the testimony of these persons with specialized knowledge. The disclosure rules are meant to afford "opposing parties . . . a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Fed. R. Civ. P. 26(a)(2) Adv. Comm. Notes (1993 Am.). Wolf Creek did not have these opportunities in this case, and the Joint Venture cannot be permitted to gain from its failure to abide by the dictates of the rules. For the reasons stated above, Wolf Creek again respectfully requests, pursuant to F.R.C.P. 26, 37 and the orders of this Court, that this Court prohibit the Joint Venture from using the testimony of Randall J. Phelps, Dr. Mark Blauer, George Murphy, David Malish, Nick Roe, or Kim Poole at trial unless the Joint Venture can identify specific testimony on which no specialized knowledge or expertise is required or anticipated. Wolf Creek also requests the 6
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opportunity to seek documents from these individuals and, if they are to testify in any capacity, to take depositions. Further, if the Court allows the Joint Venture the opportunity to designate these six additional experts (which it should not), Wolf Creek requests that it be allowed to identify rebuttal experts. Dated this 3rd day of July, 2006. HOGAN & HARTSON L.L.P.

By:

s/Andrew R. Shoemaker Andrew R. Shoemaker Denise D. Riley Jacqueline S. Cooper 1470 Walnut Street, Suite 200 Boulder, Colorado 80302 [email protected] [email protected] [email protected] (720) 406-5300 telephone (720) 406-5301 facsimile Attorneys for Wolf Creek Ski Corporation, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of July, 2006, I electronically filed the foregoing WOLF CREEK'S REPLY IN SUPPORT OF MOTION TO EXCLUDE JOINT VENTURE'S NEW EXPERTS AND RELATED TESTIMONY OR, IN THE ALTERNATIVE, FOR ALLOWING WOLF CREEK LIMITED DISCOVERY AND REBUTTAL EXPERTS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: George V. Berg: [email protected] Kimberly A. Tomey: [email protected] Sally P. Berg: [email protected]

s/Andrew R. Shoemaker

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