Free Motion to Exclude - 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 MOTION TO EXCLUDE JOINT VENTURE'S NEW EXPERTS AND RELATED TESTIMONY OR, IN THE ALTERNATIVE, FOR ALLOWING WOLF CREEK LIMITED DISCOVERY AND REBUTTAL EXPERTS

Pursuant to F.R.C.P. 26, 37, and the Court's amended scheduling order of January 7, 2005, Plaintiff Wolf Creek Ski Corporation ("Wolf Creek" or "Plaintiff"), through its undersigned counsel, respectfully submits this Motion to Exclude Experts and Testimony or, in the Alternative, for Allowing Wolf Creek Limited Discovery and Rebuttal Experts, and states as follows: CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1 On May 22, 2006 counsel for Wolf Creek, Andrew R. Shoemaker conferred by telephone with Kathleen M. Morgan, counsel for the Joint Venture, regarding the substance of this motion. Mr. Shoemaker also informed Ms. Morgan of Wolf Creek's intention to file this motion and the grounds therefor by letter dated April 10, 2006. Ms. Morgan informed Mr. Shoemaker that the Joint Venture intends to oppose this motion.

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I. INTRODUCTION Recently, on April 3, 2006, Defendant Leavell-McCombs Joint Venture ("Defendant" or "Joint Venture") served what it labeled as "supplemental disclosures" in which the Joint Venture identified six new individuals retained by the Joint Venture who will testify based on their expertise. None of these expert witnesses were disclosed previously, despite the fact that the deadline to disclose expert expired well over a year ago. Rather than waiting until the eve of trial to move to exclude such testimony, Wolf Creek is moving now so that it will know whether it must engage in lengthy and costly additional discovery relating to six new experts, and whether Wolf Creek must retain rebuttal experts. The Joint Venture claims that it is merely supplementing its Rule 26 disclosures by identifying additional fact witnesses. These are unquestionably experts who will testify as to current facts and opinions and deliver opinions as to future events and costs, yet they were never disclosed previously. After being denied previously an extension to the expert deadline, the Joint Venture is once again attempting to circumvent a court-ordered deadline and improperly re-open discovery to introduce what are clearly new experts. Simply because these individuals are involved in the Village's development and were not retained solely for testimony does not immunize them from the expert disclosure requirements. To the contrary, the issue turns on whether the witness will be testifying based on specialized knowledge pursuant to Fed. R. Evid. 702. These individuals are working for the Joint Venture precisely because of their expertise. Courts routinely bar undisclosed experts, regardless of whether or not they were involved in the facts, from testifying.

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Wolf Creek has been severely prejudiced by the late disclosure of these experts. Even if the Court were to permit Wolf Creek to conduct discovery as to these new experts (which would be necessary if the Court were to permit the Joint Venture to designate new experts at this late date), it will significantly delay the litigation by adding six expert depositions, related document discovery, and additional depositions of Wolf Creek rebuttal experts. As such, it would cost Wolf Creek enormous additional expenses (rewarding the well-funded Joint Venture for its strategy of wearing down this family-owned Ski Area) and signal that the Court's deadlines may be ignored. II. BACKGROUND

The expert disclosure deadlines set forth in the Scheduling Order expired well over a year ago. On January 7, 2005, after granting several extensions for the purpose of facilitating settlement discussions, the Court set the expert report deadline at February 28, 2005 and the rebuttal expert report deadline at April 15, 2005. See Findings and Order re: Defendant's Motion to Amend Scheduling Order, Doc. 116, at 3. Later, the Joint Venture requested further extensions when it moved to amend the scheduling order and add new parties, but that motion was denied and the disclosure deadlines have not changed since. Id. at 3-4. Discovery closed long ago except for a few depositions. The Joint Venture, however, has continued to attempt to re-open discovery. Since the parties submitted their initial disclosures, numerous individuals (beyond those initially designated by the parties) have been identified through documents and depositions as having relevant information. Strangely, the Joint Venture recently issued a "supplemental" disclosure statement that did not identify all such individuals, but instead focuses on a number of 3
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professionals the Joint Venture hired to assist in the development of the Village at Wolf Creek project ("Village" or "Development") and who were relied upon by their damages expert, Ms. Lisa Meer, in connection with her expert report. See Defendant/Counterclaimant's Supplemental Disclosures ("Disclosures"), attached hereto as Exhibit 1. Indeed, the Disclosures identifying these six professionals were filed shortly after Ms. Meer's deposition, during which she was asked by undersigned counsel as to which of the Joint Venture's previously-designated experts would provide the testimony supporting her many assumptions on critical matters such as to the causation behind the EIS and issues relating to traffic engineering, road construction, and lynx mitigation. Deposition of Lisa A. Meer ("Meer Depo.") at 63:13-65:2; 98:3-99:15; 115:12-25, attached hereto as Exhibit 2. The Disclosures appear to answer these questions by listing six individuals with expertise in these fields. The Joint Venture has treated the six professionals listed in the Disclosures -- Randall J. Phelps, Dr. Mark Blauer, George Murphy, David Malish, Nick Roe, and Kim Poole -- and the firms they work for as experts throughout the development of the Village at Wolf Creek project. They were hired for their expertise. Each of these six experts has performed services for the Joint Venture based on their scientific, technical, or specialized knowledge and training: · Mr. Phelps is a professional engineer who works for Kimley-Horn and Associates, a civil engineering firm that provides consulting services for largescale public and private developments and specializes in complex transportation systems. See Kimley Horn website, http:// http://www.kimleyhorn.com/kha/disciplines.asp?MenuID=41. Kimley Horn conducted detailed traffic studies for the Joint Venture to assist them in obtaining a construction permit from the USFS and Colorado Department of Transportation. Dr. Blauer is a nuclear chemist with years of experience in NEPA projects. See Resume of H. Mark Blauer, Ph.D., attached hereto as Exhibit 3. He is the project manager at Tetra Tech responsible for the Village EIS. Before his 4

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involvement with the Village project, Dr. Blauer served as project manager for at least five EIS and EA projects. Id. Dr. Blauer has an intimate knowledge of all aspects of the EIS, and Ms. Meer relied extensively on his opinions with respect to the need for the EIS. See Meer Depo., Ex. 2, at 63:13-64:21, 67:15-19; 68: 8-69:15. · George Murphy and David Malish are professional engineers who have performed numerous services for the Joint Venture in connection with engineering planning for the proposed Village. Their firm, Murfee Engineering Company, Inc., provides engineering services for large-scale developments including drainage and utility improvements, design of water and wastewater systems, and roadway design. See Resume of David Malish, P.E. at L-M11630, attached hereto as Exhibit 4. Murphee Engineering, Inc. had designed and opined as to the cost of construction of sections of the Tranquility Road and Snowshed Road (the latter of which makes up the majority of the damages claim by the Joint Venture). Nick Roe and Kim Poole are consultants with Iris Environmental Systems, Inc., a company that provides environmental consulting services in connection with, among other things, ski area and other resort developments. See Iris Environmental Systems, Inc. website, http://www.irisenvironmental.ca/ english/fset.htm. Mr. Roe and Ms. Poole conducted biological studies related to lynx habitat in connection with the EIS, and the Joint Venture seeks the cost of these studies as damages in this lawsuit.

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These six experts and their firms have provided professional services to the Joint Venture based on their respective areas of expertise. In recognition of these services, the Joint Venture's damages expert, Ms. Lisa Meer, relied on these the opinions of these six experts, and even went so far as to obtain resumes from them to ensure that they qualified as experts in their respective fields, to support her own expert opinions regarding damages. See Meer Depo., Ex. 2, at 123:924. For example, Ms. Meer explained that she consulted Mr. Murphy and Mr. Malish in connection with her analysis of the Tranquility and Snowshed road damages because she herself does not have any technical knowledge of road building. Meer Depo., Ex. 2, 115:12-25; 119:1020; 123:9-124:14. These experts provide the basis for her assumption that the roads are 5
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necessary, must be designed and constructed in a certain manner, and will therefore cost many millions of dollars. Likewise, Ms. Meer consulted with representatives of Kimley-Horn to provide expertise in traffic engineering, and she relied on the Biological Opinion prepared by Iris Environmental Systems to support her damages calculations regarding lynx mitigation. Meer Depo., Ex. 2, at 98:7-99:15; 142:2-7. In summary, Ms. Meer explained that because she lacked expertise in any of these areas, she relied on these experts and their representations regarding the work they performed for the Joint Venture in calculating and verifying her damage calculations. Meer Depo. , Ex. 2, at 123:9-24; 124:7-15. Counsel for Wolf Creek wrote to counsel for the Joint Venture objecting to the Disclosures as an obvious attempt to designate previously undisclosed experts. In response, counsel for the Joint Venture claimed that the six experts "would be testifying as fact witnesses, not expert witnesses." Letter from Kathleen M. Morgan to Andrew R. Shoemaker (April 17, 2006), attached hereto as Exhibit 5. II. ARGUMENT A. Mssrs. Phelps, Blauer, Murphy, Malish, Roe and Poole Are Experts under Fed. R. Evid. 702 and Should have been Disclosed prior to the Expert Discovery Cut-Off Under F.R.C.P. 26(a)(2)(A), a party must disclose "the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." Such disclosures must be made "at the times and in the sequence directed by the court." F.R.C.P. 26(a)(2)(C). In this case, the deadline for disclosing expert witnesses was February 28, 2005. A person may present evidence under Federal Rule of Evidence 702 if he or she is "a witness qualified as an expert by knowledge, skill, experience, training, or education." 6
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Fed. R. Evid. 702; see also Cook v. Rockwell Int'l Corp., 223 F.R.D. 598, 601 (D. Colo. 2005) ("Cook I"). Such experts regularly include individuals with technical skills and specialized knowledge comparable to those of the six experts listed in the Disclosures. See, e.g., Dillon Companies, Inc. v. Hussmann Corp., 163 Fed. Appx. 749 (10th Cir. 2006) (engineer); One Beacon Ins. Co. v. Broadcast Development Group, Inc., 147 Fed. Appx. 535 (6th Cir. 2005) (engineer); Rondout Valley Central School Dist. v. Coneco Corp., 321 F. Supp. 2d 469 (N.D.N.Y. 2004) (same); Environment Now! v. Espy, 877 F. Supp. 1397 (E. D. Cal. 1994) (wildlife habitat expert). A party who, without substantial justification, fails to disclose information required by Rule 26(a) may not present such information at trial. See F.R.C.P. 37(c)(1); see also Cook I, 223 F.R.D. at 600; Cook v. Rockwell Int'l Corp., 2006 WL 13171 *1 (D. Colo. 2006) ("Cook II"). The Joint Venture's contention that the individuals listed in its Disclosures would testify as lay rather than expert witnesses is untenable. Whether an individual has personal knowledge of the subject on which he or she will testify is not determinative of whether he or she will testify as a lay or expert witness. Cook I, 223 F.R.D. at 601. Rather,"`[t]he distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field.'" Id. (quoting Fed. R. Evid. 702 Adv. Comm. Notes (2000 Am.)). In Cook II, the Defendants attempted to call an expert witness at trial whom they had failed to disclose in accordance with Rule 26(a)(2)(C). The witness was a health physicist who had been hired by the Defendants in connection with reconstruction at Rocky Flats, in part to assess the environmental effects of a fire that had occurred several decades before. The district court held that the Defendants were barred from presenting the expert testimony at trial pursuant 7
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to Rule 37(c)(1) because they offered no justification for their failure to disclose the expert earlier, and the court rejected the contention that the witness' testimony could be characterized as fact or lay testimony. Cook II, 2006 WL 13171 at *1-2. In particular, the court observed that the witness had been hired by the Defendants "specifically because of his scientific expertise in relevant fields," and that his knowledge of the case was "based entirely on the paid scientific work he performed for [Defendants]" rather than any independent involvement with the case. Id. at *2. Thus, the court found that the witness' testimony could only be characterized as expert and the court granted the Plaintiffs' motion to exclude his testimony. See also In re Illusions Holdings, Inc., 189 F.R.D. 316 (S.D.N.Y. 1999) (excluding testimony of witnesses who were hired by Defendants because of their knowledge and experience with scuba diving because they were "persons qualified by `knowledge, skill, experience, training or education'" rather than lay witnesses, and, as such, they should have been disclosed pursuant to Fed. R. Civ. P. 26(a)(2)(A)). As in Cook II, the individuals listed in the Disclosures derived their knowledge of the issues in this case solely from the specialized, technical work they performed for the Joint Venture. None of them were involved in the Village project before they were hired by the Joint Venture to perform work for which they are uniquely qualified, and any testimony they would provide at trial would be based entirely on the paid, specialized work each individual performed. Moreover, these individuals would testify on the basis of their specialized knowledge and expertise rather than knowledge or reasoning "familiar in everyday life." There can be no doubt that these individuals would present evidence under Fed. R. Evid. 702 and should have been disclosed prior to the February 28, 2005 disclosure deadline. As the Joint Venture failed to meet this deadline and has presented no justification whatsoever for its 8
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failure, the Joint Venture should be barred from calling these witnesses at trial or using their testimony in any way at trial. See Fed. R. Civ. P. 37(c)(1). Any other result would be highly prejudicial to Wolf Creek, as it would allow the Joint Venture to slip in no less than six expert witnesses well over a year after Wolf Creek's rebuttal expert deadline has passed. B. It Would be Inappropriate and Highly Prejudicial to Wolf Creek to Re-Open Discovery at this Stage in the Proceedings The Joint Venture's Disclosures can only be read as an attempt to circumvent the courtordered deadlines set forth in the Scheduling Order and improperly re-open discovery. To allow the Joint Venture to re-open discovery in this manner would be unfair and highly prejudicial to Wolf Creek because it would entail considerable time and expense and further delay trial setting. In fact, the Joint Venture has repeatedly used the fact that there is no trial date to justify its attempts to delay and seek additional discovery which has in turn prevented Wolf Creek from obtaining a trial date. Wolf Creek will never get a trial date until discovery is closed, and the Joint Venture continues to use the "no trial date yet" argument to support its attempts to wear down the Ski Area and fish for new evidence and themes (after its initial search for evidence of conspiracy yielded nothing). The Joint Venture's latest disclosures are just another example of its pattern of delay. As addressed in prior argument before this Court, new counsel and new theories are not good cause to amend the discovery deadlines set forth in this Court's Scheduling Order. See Marcin Engineering, LLC v. Founders at Grizzley Ranch, LLC, 219 F.R.D. 516, 521 (D. Colo. 2003). "That new counsel is dissatisfied with the state of the case it inherited is not grounds . . . for reopening discovery long after the court-ordered deadlines have passed." Id. Rather, to show 9
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good cause, the party seeking the extension must demonstrate it was diligent in its discovery efforts yet could not meet the court-ordered deadline. Id. In this case, the Joint Venture has made no such showing. Indeed, its Disclosures can be understood as nothing other than a late-breaking change in strategy because the Joint Venture is dissatisfied with its current experts as it made quite clear in its motion to amend the Scheduling Order. Indeed, there can be no reason for the Disclosures other than to alert Wolf Creek of the Joint Venture's intention to call the six experts at trial, and the Joint Venture is aware that Wolf Creek has not obtained reports from the six experts, taken their depositions, requested documents, or designated rebuttal experts. If the Court were to allow testimony from these six experts, the Court would have to allow Wolf Creek to conduct limited discovery of these new experts and designate rebuttal experts. Therefore, if the Court were to deny Wolf Creek's Motion to Exclude, Wolf Creek requests additional limited discovery and the right to designate rebuttal experts as an alternate remedy. However, this remedy does not resolve the significant prejudice to Wolf Creek and the Court in terms of delay and cost. Additional discovery of six experts at this late date, along with the designation and retention of traffic, highway, and wildlife experts, would entail significant time and expense, which would be highly inappropriate considering the Joint Venture's failure to provide any justification whatsoever for its failure to timely designate these experts. Put simply, the Joint Venture has failed to establish any cause ­ let alone good cause ­ to permit it to re-open discovery at this late date.

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IV. CONCLUSION For the reasons stated above, Wolf Creek 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. 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 conduct additional discovery and identify rebuttal experts. Dated this 22nd day of May, 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 22nd day of May, 2006, I electronically filed the foregoing WOLF CREEK'S 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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