Continental Casualty Company v. F Star Property Management Inc.

Response in Opposition to Motion

W.D. Tex.April 21, 2011

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION CONTINENTAL CASUALTY COMPANY, ) ) Plaintiff and Counter-Defendant, ) ) v. ) EP-10-CA-00102- KC ) F-STAR PROPERTY MANAGEMENT, INC., ) ) Defendant and Counterclaimant. ) F-STAR PROPERTY MANAGEMENT, INC.’S RESPONSE IN OPPOSITION TO CONTINENTAL CASUALTY COMPANY’S MOTION TO STRIKE NON-RETAINED EXPERT WITNESS DESIGNATIONS Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 1 of 20 ii TABLE OF CONTENTS Page STATEMENT OF ISSUES ........................................................................................................... iii ARGUMENT ...................................................................................................................................1 F-Star’s evidence in support of response .............................................................................1 CNA’s motion should be denied ............................................................................................1 REQUEST FOR RELIEF ................................................................................................................4 CERTIFICATE OF SERVICE ........................................................................................................4 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 2 of 20 iii STATEMENT OF ISSUES 1. Whether F-Star’s timely filed non-retained expert witness designations are sufficient to comply with F. R. Civ . P. 26(a)(2)(C). 2. If F-Star’s non-retained expert witness designations are insufficient, whether F-Star should be allowed to supplement them, rather than suffer the harsh sanction of altogether striking them. Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 3 of 20 - 1 - Defendant and Counterclaimant F-Star Property Management, Inc. (“F-Star”) responds to the motion by Plaintiff and Counter-Defendant Continental Casualty Company (“CNA”) seeking to strike F-Star’s non-retained expert designations and says: 1. In support of this response, F-Star relies upon: F-STAR’S EVIDENCE IN SUPPORT OF RESPONSE a. F-Star’s designation of testifying experts with respect to claims for affirmative relief, dated March 8, 2011 [Dkt. #18]; b. F-Star’s supplemental designation of testifying experts, dated April 20, 2011 [Dkt. #32]; and c. CNA’s notices to depose F-Star’s non-retained experts Rick Armendariz, Tim McAuley, Rick Given and Henry Ng1. 2. Discovery is scheduled to close in this case on May 27, 2011. CNA’S MOTION SHOULD BE DENIED 3. On April 19 and 20, 2011, by agreement, without subpoena served upon the witnesses and pursuant to the notices attached as Exhibit “1”, CNA took the videotaped oral depositions of F-Star’s non-retained experts Rick Armendariz, Tim McAuley, Rick Given and Henry Ng. Additional documents responsive to such notices and in the possession of the deponents were produced by F-Star prior to the depositions of Rick Armendariz, Tim McAuley and Rick Given, and CNA’s counsel took full depositions of all four (4) witnesses, unimpeded by a single objection from F-Star’s counsel and unhampered in the scope of questions which CNA’s counsel chose to ask. During those depositions, none of those witnesses attempted to extend the scope of their testimony beyond the information provided in their designations. 1 Copies of these notices are attached to this response collectively as Exhibit “1”. Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 4 of 20 - 2 - 4. The depositions of F-Star’s other non-retained expert witnesses, which have been requested by CNA to date, have been scheduled by agreement between counsel for the parties. Those depositions are scheduled for dates during the weeks of May 2, 2011 and May 9, 2011, in Phoenix, Arizona and in El Paso, Texas. F-Star anticipates that CNA’s counsel will once more take full depositions of those witnesses, and that none of those witnesses will attempt to extend the scope of their testimony beyond the information provided in their designations. To the extent that those witnesses have additional documents responsive to any notices for their depositions that CNA may serve, F-Star will endeavor to obtain and produce those documents in advance of those depositions, too, just as it did with the ones already taken. 5. Without citing a single authority in support of its argument, without seeking any prior relief or ruling from this Court on the issue of sufficiency of F-Star’s non-retained expert witness designations, and without alleging or showing any harm or prejudice it has suffered as a result of such alleged deficiencies, CNA seeks to altogether strike F-Star’s non-retained expert witness designations. By doing so, CNA seeks to leave F-Star unable to defend the claims asserted against it by CNA, which are an unprecedented2 2 See Exhibits 1 and 2 to F-Star’s response in opposition to CNA’s motion for partial summary on time element losses. [Dkt. #30-1]. , pre-emptive effort to defeat F-Star’s rights to recover under its policy of insurance. Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 5 of 20 - 3 - 6. F-Star has made a good faith effort to comply with the rules requiring the designation of non-retained experts, which are less rigid that the rules for retained experts, and deservedly so. F-Star does not have control over these witnesses, and is limited in some instances by the amount of information and documents it can obtain from these witnesses3. As shown by their reports, none of them had any agreement with F-Star to be compensated for giving their opinions.4 7. F-Star believes that its non-retained expert designations comply with the rules, and F-Star has not made any effort to conceal any information from CNA in such designations, or to delay or interfere with CNA’s efforts to depose those witnesses. To the extent that the Court finds that such designations are in any manner deficient, instead of summarily striking those designations in this suit filed against F-Star by its own insurer, F-Star requests leave of this Court for the opportunity to promptly cure whatever deficiencies the Court may determine to exist. 3 As an example, the videotaped oral deposition of F-Star non-retained expert Martin Elmquist was scheduled to be taken by CNA by agreement and notice on April 20, 2011. Mr. Elmquist had provided a written report of his opinions, dated March 8, 2011, which had been disclosed to CNA’s counsel. The morning of that deposition, Mr. Elmquist’s employer called F- Star’s counsel and refused to allow Mr. Elmquist to be produced for deposition, contending that he had not been properly served with a subpoena by CNA compelling the witness to appear. F- Star’s counsel had agreed to produce such witness voluntarily, and the witness himself had agreed to appear without a subpoena. 4 At his April 20, 2011 deposition, Henry Ng testified that he intended to charge F-Star for his time in giving his deposition, but admitted that he had no agreement with F-Star allowing him to do so. Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 6 of 20 - 4 - For the reasons set forth in this response, F-Star asks that this Court deny CNA’s motion in its entirety. REQUEST FOR RELIEF Dated: April 21, 2011. Randy Lee Attorney at Law 3300 North A Street, Building 2-104 Midland, TX 79705 Telephone: (432) 638-0895 Fax: (432) 224-1044 ______________/s/_______________ Randy Lee Texas Bar No. 12074600 Attorney for F-Star Property Management, Inc. CERTIFICATE OF SERVICE I certify that April 21, 2011, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF System, which will send notification of such filing to Todd M. Tippett, attorney for CNA, at Zelle, Hofmann, Voelbel & Mason, L.L.P., 901 Main Street, Suite 400, Dallas, TX 75202-3975. ______________/s/_______________ Randy Lee Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 7 of 20 EXHIBIT “1” Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 8 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 9 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 10 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 11 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 12 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 13 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 14 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 15 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 16 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 17 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 18 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 19 of 20 Case 3:10-cv-00102-KC Document 33 Filed 04/21/11 Page 20 of 20