MOTION in Limine to Limit Expert L.J. Mott's Testimony and to Exclude Witness Testimony by any Other Leprino Foods Company Representative by Defendant Feldmeier Equipment, Inc.. (Attachments: # (1) Exhibit A# (2) Exhibit B# (3) Exhibit C# (4) Exhibit C# (5) Exhibit C)(Tallerico, Catherine)
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Case 1:03-cv-02461-MSK-MEH Document92 _ Filed 04/11/2006 Page1of5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-MEH LEPRINO FOODS COMPANY, Plaintiff, Vv.
FELDMEIER EQUIPMENT, INC.,
Defendant.
MOTION TO LIMIT EXPERT L.J. MOTT’S TESTIMONY
AND TO EXCLUDE WITNESS TESTIMONY BY ANY OTHER
LEPRINO FOODS COMPANY REPRESENTATIVE
Defendant Feldmeier Equipment, Inc., by and through counsel, Fowler, Schimberg & Flanagan, P.C., hereby move to limit expert L.J. Mott’s testimony and to exclude witness testimony by any other Leprino Foods Company representative, as follows:
RELIEF REQUESTED
Feldmeier seeks an Order from the Court precluding Plaintiff, Leprino Foods Company (“Leprino”) from presenting testimony from any expert that has not provided an expert report _and limiting L.J. Mott’s testimony to that provided in his October 1, 2004 Report, the only report he has issued in this case.
RELEVANT BACKGROUND
Plaintiff endorsed L.J. Mott, GES Tech Group, Inc., to testify at trial as an expert witness on behalf of the Plaintiff. Plaintiff disclosed Mr. Mott’s expert report on October 1, 2004. (Disclosure and Report attached as Exhibit A).
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Case 1:03-cv-02461-MSK-MEH Document92 _ Filed 04/11/2006 Page2of5
In the Final Pretrial Order of September 9, 2005, however, Plaintiff indicated Mr. Mott’s area of testimony, stating that he would testify consistent with the report previously provided on October 1, 2004, “and his deposition taken in Denver District Court Case No. 02-CV-8036 (“hereinafter referred to as the “State Court Action’), and his trial testimony in the Denver case.” Mr. Mott’s previous endorsement did not contain the information regarding the State Court Action.
In the State Court Action, the Denver District Court found that Plaintiff failed to prove a design defect. Exhibit B (Findings and Conclusions dated January 6, 2004). Mr. Mott’s testimony in the State Court Action was much broader than it is in this case. In this case, Mr. Mott has expressed two opinions: (1) the Uniform Plumbing Code demonstrates that venting and overflow piping cannot handle the amount of liquids specified, and (2) Drain Design principles demonstrate the same. See Mott Report in this action attached as Exhibit A. In the State Court Action, however, Mr. Mott testified to many additional thesis such as: there was corrosion in the tanks, that the corrosion was caused by use of defective product (not 304 stainless steel), that the corrosion problem was also caused by defective metal working processes, and that certain tanks that had imploded were caused by design defects, including cavitation. See Mott Reports in State Court Action, attached as Exhibit C. During the State Court Action, Mott also testified regarding fluid-dynamic issues that are not presented in his October 1, 2004 Report and issues regarding the importance of a “tri-clover” valve. Id.
ARGUMENT
Feldmeier requests the Court to limit Mr. Mott to his testimony as described in the
October 1, 2004 Report. Fed. R. Civ. Pro. 26(a)(2)(B) specifically states that that the disclosure
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Case 1:03-cv-02461-MSK-MEH Document92_ Filed 04/11/2006 Page3of5 must be:
“[A|ccompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the date or other information considered by the witness in forming his opinion; any exhibits to be used as a summary of or support for their opinion; ....” The only written report disclosed in this civil action was that of Mr. Mott disclosed on October 1, 2004. As such, Mr. Mott must be limited to the testimony set forth in that expert report.
Additionally, in the Final Pretrial Order, Leprino designates as ‘“‘may call” experts: “One or more representatives of Leprino Foods Company who possesses skill, knowledge and experience to testify concerning certain matters in the case including, but not limited to, quality control standards in the manufacturer of dairy/food products, manufacturing equipment operation, specification, etc.” The above-referenced designation of unknown Leprino Foods Company representatives does not meet the requirements of Fed. Rule Civ. Pro. 26(a)(3)(A), as Leprino has not provided the names of these representatives, their qualifications, their resume, or their opinions.
CERTIFICATE OF COMPLIANCE
Pursuant to D.C.Colo.LCivR. 7.1, the undersigned has conferred with opposing counsel to resolve the disputed matter. The undersigned and opposing counsel had a conference call on April 11, 2006 to discuss these issues. The parties were not able to reach a resolution and Plaintiff opposes this Motion.
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Case 1:03-cv-02461-MSK-MEH Document92 _ Filed 04/11/2006 Page4of5
WHEREFORE, Defendant requests that this Court limit Leprino’s expert testimony to that of Mr. Mott as set forth in his October 2004 Report.
Respectfully submitted this 11" day of April, 2006.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
s/Catherine A. Tallerico Catherine A. Tallerico Timothy J. Flanagan
1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603
ATTORNEYS FOR DEFENDANT
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Case 1:03-cv-02461-MSK-MEH Document92_ Filed 04/11/2006 Page5of5
CERTIFICATE OF SERVICE
I hereby certify that on this 11" day of April, 2006, I caused a true and correct copy of the foregoing MOTION TO LIMIT EXPERT L.J. MOTT’S TESTIMONY AND TO EXCLUDE WITNESS TESTIMONY BY ANY OTHER LEPRINO FOODS COMPANY REPRESENTATIVE to be was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:
Michael G. Bohn, Esq.
mbohn@campbellbohn.com
Mr. Jake Feldmeier jake@feldmeier.com
s/Michelle Rocke
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PlainSite Cover Page
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Case 1:03-cv-02461-MSK-MEH Document92 _ Filed 04/11/2006 Page1of5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-2461-MSK-MEH
LEPRINO FOODS COMPANY,
Plaintiff,
Vv.
FELDMEIER EQUIPMENT, INC.,
Defendant.
MOTION TO LIMIT EXPERT L.J. MOTT’S TESTIMONY
AND TO EXCLUDE WITNESS TESTIMONY BY ANY OTHER
LEPRINO FOODS COMPANY REPRESENTATIVE
Defendant Feldmeier Equipment, Inc., by and through counsel, Fowler, Schimberg &
Flanagan, P.C., hereby move to limit expert L.J. Mott’s testimony and to exclude witness
testimony by any other Leprino Foods Company representative, as follows:
RELIEF REQUESTED
Feldmeier seeks an Order from the Court precluding Plaintiff, Leprino Foods Company
(“Leprino”) from presenting testimony from any expert that has not provided an expert report
_and limiting L.J. Mott’s testimony to that provided in his October 1, 2004 Report, the only report
he has issued in this case.
RELEVANT BACKGROUND
Plaintiff endorsed L.J. Mott, GES Tech Group, Inc., to testify at trial as an expert witness
on behalf of the Plaintiff. Plaintiff disclosed Mr. Mott’s expert report on October 1, 2004.
(Disclosure and Report attached as Exhibit A).
PDF Page 3
Case 1:03-cv-02461-MSK-MEH Document92 _ Filed 04/11/2006 Page2of5
In the Final Pretrial Order of September 9, 2005, however, Plaintiff indicated Mr. Mott’s
area of testimony, stating that he would testify consistent with the report previously provided on
October 1, 2004, “and his deposition taken in Denver District Court Case No. 02-CV-8036
(“hereinafter referred to as the “State Court Action’), and his trial testimony in the Denver case.”
Mr. Mott’s previous endorsement did not contain the information regarding the State Court
Action.
In the State Court Action, the Denver District Court found that Plaintiff failed to prove a
design defect. Exhibit B (Findings and Conclusions dated January 6, 2004). Mr. Mott’s
testimony in the State Court Action was much broader than it is in this case. In this case,
Mr. Mott has expressed two opinions: (1) the Uniform Plumbing Code demonstrates that
venting and overflow piping cannot handle the amount of liquids specified, and (2) Drain Design
principles demonstrate the same. See Mott Report in this action attached as Exhibit A. In the
State Court Action, however, Mr. Mott testified to many additional thesis such as: there was
corrosion in the tanks, that the corrosion was caused by use of defective product (not 304
stainless steel), that the corrosion problem was also caused by defective metal working
processes, and that certain tanks that had imploded were caused by design defects, including
cavitation. See Mott Reports in State Court Action, attached as Exhibit C. During the State
Court Action, Mott also testified regarding fluid-dynamic issues that are not presented in his
October 1, 2004 Report and issues regarding the importance of a “tri-clover” valve. Id.
ARGUMENT
Feldmeier requests the Court to limit Mr. Mott to his testimony as described in the
October 1, 2004 Report. Fed. R. Civ. Pro. 26(a)(2)(B) specifically states that that the disclosure
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Case 1:03-cv-02461-MSK-MEH Document92_ Filed 04/11/2006 Page3of5
must be:
“[A|ccompanied by a written report prepared and signed by the witness. The
report shall contain a complete statement of all opinions to be expressed and the
basis and reasons therefore; the date or other information considered by the
witness in forming his opinion; any exhibits to be used as a summary of or
support for their opinion; ....”
The only written report disclosed in this civil action was that of Mr. Mott disclosed on
October 1, 2004. As such, Mr. Mott must be limited to the testimony set forth in that expert
report.
Additionally, in the Final Pretrial Order, Leprino designates as ‘“‘may call” experts:
“One or more representatives of Leprino Foods Company who possesses skill,
knowledge and experience to testify concerning certain matters in the case
including, but not limited to, quality control standards in the manufacturer of
dairy/food products, manufacturing equipment operation, specification, etc.”
The above-referenced designation of unknown Leprino Foods Company representatives
does not meet the requirements of Fed. Rule Civ. Pro. 26(a)(3)(A), as Leprino has not provided
the names of these representatives, their qualifications, their resume, or their opinions.
CERTIFICATE OF COMPLIANCE
Pursuant to D.C.Colo.LCivR. 7.1, the undersigned has conferred with opposing counsel
to resolve the disputed matter. The undersigned and opposing counsel had a conference call on
April 11, 2006 to discuss these issues. The parties were not able to reach a resolution and
Plaintiff opposes this Motion.
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Case 1:03-cv-02461-MSK-MEH Document92 _ Filed 04/11/2006 Page4of5
WHEREFORE, Defendant requests that this Court limit Leprino’s expert testimony to
that of Mr. Mott as set forth in his October 2004 Report.
Respectfully submitted this 11" day of April, 2006.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
s/Catherine A. Tallerico
Catherine A. Tallerico
Timothy J. Flanagan
1640 Grant Street
Denver, Colorado 80203
Telephone: 303.298.8603
ATTORNEYS FOR DEFENDANT
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Case 1:03-cv-02461-MSK-MEH Document92_ Filed 04/11/2006 Page5of5
CERTIFICATE OF SERVICE
I hereby certify that on this 11" day of April, 2006, I caused a true and correct copy of
the foregoing MOTION TO LIMIT EXPERT L.J. MOTT’S TESTIMONY AND TO
EXCLUDE WITNESS TESTIMONY BY ANY OTHER LEPRINO FOODS COMPANY
REPRESENTATIVE to be was filed with the Clerk of the Court using the CM/ECF system,
which will send notification of such filing to the following email addresses:
Michael G. Bohn, Esq.
mbohn@campbellbohn.com
Mr. Jake Feldmeier
jake@feldmeier.com
s/Michelle Rocke
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