Free Reply in Support of Motion - District Court of Arizona - Arizona

l LAw OFFICES
DoY1.E BERMAN
2 GALLENSTEIN, P.C. 5
3300 NORTH CENTRAL AvENuE, Sum; 1600
3 Puoamx, ARIZONA 85012-2524
(602) 240-6711 TELEPHONE NUMBER
4 (602) 240-6951 FACSIMILE NUMBER
[email protected]
5 ARIZONA BAR NUMBER William H. Doyle, #007285 I
Gary L. Popham, Ir., #022260 ,
6 ATTORNEYS FOR _ Defendant Market Finders Insurance Corporation
7 UNITED STATES DISTRICT COURT
1:;
8 DISTRICT OF ARIZONA
9 SCOTTSDALE INSURANCE No. CV04-118-PHX-SMM I I
10 COMPANY, an Ohio corporation, Q
DEFENDANT MARKET FINDERS 1
11 Plaintiff, INSUIMNCE CORPORATION’S
REPLY IN SUPPORT OF ITS
12 vs. MOTION TO STRIKE PLAINTIFF’S S
EXPERT(S) OR, IN THE
13 MARKET FINDERS INSURANCE ALTERNATIVE, DEFENDANT’S _
· CORPORATION, a Kentucky MOTION TO EXTEND ‘
14 corporation, DEFENDANT’S EXPERT DEADLINE .
1 5 Defendant.
16 (Assigned to the Honorable A
. Stephen M. McNamee)
17 .
Defendant Market Finders, by and through the undersigned counsel, hereby submits Q
is if
its Reply in support of its motion to strike Plaintiff Scottsdale Insurance Company’s expert
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disclosure and to preclude Plaintiff from calling expert(s) to testify at trial based upon F
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Plaintiff` s failure to comply with Rule 26(a)(2), Federal Rules of Civil Procedure, and this
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Courts Order, dated November I6, 2006. Defendant’s motion to strike should be granted
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and an Order striking Plaintiff` s expert disclosure and precluding Plaintiff from calling
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expert(s) to testify at trial pursuant to Rule 37, Federal Rules of Civil Procedure, should be (
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entered because Plaintiff failed and continues to fail to comply with Rule 26(a)(2) and this l
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court’s prior order regarding expert disclosure. Furthermore, Plaint1ff’ s counsel appears to
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have misrepresented to the court and to counsel undersigned that there was a prior agreement gi
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Case 2:O4—cv—OO118—SIVIIVI Document 97 Filed O2/22/2007 Page 1 of 4

1 in place limiting expert disclosure pending mediation or otherwise allowing the parties to
2 deviate from the requirements of Rule 26(a) and the court’s November 16, 2007 Order
3 regarding expert disclosure.
4 I. THERE WAS NO AGREEMENT BETWEEN COUNSEL TO LIMIT EXPERT
DISCLOSURE PENDING THE OUTCOME OF MEDIATION
5 Despite the representations by Plaintiff s counsel to the court in Plaintiff s Brief in
6 opposition to Defendant’s Motion to Strike and in counsel’s attached Affidavit (attached as
7 Exhibit A to Plaintiffs Brief) and the representations by Plaintiffs counsel to counsel
8 undersigned in the exchange following filing of Defendant’s Motion to Strike, there,
9 according to Roger Sherman, Esq. (prior counsel for Defendant Market Finders), was no
10 agreement to limit expert disclosure pending mediation. See, attached hereto at Exhibit D
11 ("Ex. D"), the Affidavit of Roger M. Shennan, Esq., p.2, il 4. Mr. Sherman’s expectations
12 were that Plaintiff would "comply with Rule 26(a), Federal Rules of Civil Procedure, and
ii the Court’s expert disclosure deadline .... " See, Ex. D, p. 2, ‘\l 4.
II. PLAINTIFF SHOULD HAVE BEEN IN A POSITION T O DISCLOSE THE IQ
15 OPINIONS OF ITS PURPORTED EXPERTS
16 This cou1’t’s Order setting forth the latest expert disclosure deadlines has been in place ·
17 since November 17, 2006. Plaintiff s argument that the disclosure of the opinions of
18 Plaintiff s purported experts could not be accomplished by 1:00 p.m. on Friday, January 26,
19 2007, as requested by the undersigned counsel, following Plaintiff s January 15, 2007 expert
20 disclosure deadline is disingenuous at best. At the very least, Plaintiff should have been able
21 to produce by that time the background and qualifications of each purported expert and a
A 22 summary of each expert’s opinions. Not even such minimal expert disclosure has been
23 provided by Plaintiff.
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Case 2:04-cv-OO118-SIVIIVI Document 97 Filed O2/22/2007 Page 2 of 4

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1 III. PLAINTIFF’S NON-DISCLOSURE IS DISADVANTAGEOUS TO
DEFENDANT AND IS PREJUDICIAL
2 Plaintiff argues that Defendant’s Motion to Strike should not be granted because
3 Defendant was able to comply with the court’s expert disclosure deadline and provide expert
4 disclosure that complies with Rule 26(a). Defendant has been disadvantaged by Plaintiff` s
5 non-disclosure.
6 Plaintiffhas the burden of proof and, in this case, was obligated to come forward with
7 expert opinions to support its claim that Defendant was negligent. Without the benefit of
8 receiving Plaintiff’ s expert opinions prior to Defendant’s expert disclosure deadline, i
9 Defendant was unable to consider and respond to issues raised by Plaintiff` s purported
10 experts and! or to explore/evaluate a potential resolution before incurring additional expert
1; costs in light of Plaintiff` s expert opinions. Plaintiff, on the other hand, now has the benefit
of having first received Defendant’s expert disclosure and, if Defendant’s motion is denied, i
13 is in a position to provide expert opinions merely rebutting the opinions of Defendant’s
14 expert. Even if Defendant is permitted to respond to the rebuttal opinions of Plaintiffs
15 purported experts, Defendant is subjected to additional expert costs due directly to Plaintiff’ s
16 non-disclosure;
17 IV. CONCLUSION
18 For all of the foregoing reasons and for all of the reasons set forth in Defendant’s
19 Motion to Strike and Supplemental Memorandum in support of Defendant’s Motion,
20 Defendant’s Motion to strike should be granted and an Order striking Plaintiff s expert
21 disclosure and precluding Plaintiff from calling expert(s) to testify at trial, pursuant to Rule
ii 37, Federal Rules of Civil Procedure, should be entered.
24 . . .
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26 . . .
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Case 2:04-cv-OO118-SIVIIVI Document 97 Filed O2/22/2007 Page 3 of 4

1 DATED this 22nd day of February, 2007.
2 DOYLE BERMAN GALLENSTEIN, P.C.
3 :
4 By /s/ Gary L. Popham, Jr. I
William H. Doyle
5 Gary L. Popham, Jr. j
3300 N. Central Ave, #1600 ;_
6 - Phoenix, Arizona 85012-2524 2
Attorney for Defendant Market Finders ,
7 Insurance Corporation

8
10 CERTIFICATE OF SERVICE
11 I hereby certify that on the 22nd day of February, 2007, I electronically transmitted the
attached documents to the clerl<’s office using the CM/ECF system for filing and transmittal
12 of a notice of electric filing to the following CM/ECF registrants:
13 Kathleen L. Beiermeister
MEAGHER & GEER, P.L.L.P.
14 8800 North Gainey Center Drive
Suite 261
15 Scottsdale, Arizona 85258
Attomeys for Plaintiff
16
17
I hereby certifiy that on the 23rd day of February, 2007, I served the attached document by .
18 mail on the fo lowing who are not participants of the CM/ECF system;
19 Honorable Stephen M. McNamee
401 West Washington
20 Phoenix, Arizona 85003
22 By /s/ Gary L. Popham, Ir.
23
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J:\EDS1SS\DOCS\PAUL\980\PLEAD\D63187.WPD 4 Finalizcd February 22, 2007
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