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Edward P. Morse and Morse Family LLC v. Seg Us 95

February 28, 2011

EDWARD P. MORSE AND MORSE FAMILY LLC , PLAINTIFFS,
v.
SEG US 95, LLC,
DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

#1

ORDER RE: PLAINTIFFS' MOTION FOR RELIEF FROM PRETRIAL ORDER MEMORANDUM DECISION AND (Docket No. 16) SEG US LLC'S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY (Docket No. 19)

Currently pending before this Court are the following: (1) Plaintiffs' Motion for Relief from Pretrial Order (Docket No. 16); and (2) SEG US LLC's Motion in Limine to Exclude Expert Testimony (Docket No. 19).*fn1 Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. BACKGROUND

The two at-issue Motions speak to same subject matter - specifically, the extent of Bruce Jolicoeur's expert opinion at trial. Mr. Jolicoeur, a professional real estate appraiser, is one of Plaintiffs' experts.

Pursuant to the Court's January 14, 2010 Scheduling Order, "[t]he Plaintiffs shall disclose expert witnesses and the expected testimony of those witnesses on or before July 1, 2010. The Defendant shall disclose expert witnesses and the expected testimony of those witnesses on or before August 2, 2010. All rebuttal experts shall be disclosed on or before September 1, 2010." See 1/14/10 Sched. Order, p. 1 (Docket No. 12). Although retained before July 1, 2010,*fn2 due to his work schedule, Mr. Jolicoeur "was unable to undertake an appraisal of the subject property for the purpose of offering particular damage valuation testimony" ahead of the disclosure deadline. See Pls.' Motion for Relief from Pretrial Order, p. 1 (Docket No. 16).

Recognizing a potential issue with respect to the timing of Mr. Jolicoeur's opinions vis A vis the Scheduling Order, on June 15, 2010, Plaintiffs' counsel emailed Defendant's counsel to request an extension of time to accommodate Mr. Jolicoeur's schedule:

I have an expert witness disclosure in this case due at the end of the month. I am working on it, but am going to need an additional 30 days for my appraiser disclosure. Will this be acceptable? In the meantime, it makes sense to have the mediation date deadline put out 30 days. Will this be acceptable? If so, I'll prepare a stipulation.

See 6/15/10 emails, Ex. 1 to Ramsden 8/25/10 Aff. at ¶ 4 (Docket No. 17).*fn3 Later that day, Defendant's counsel responded: "I tried to call, but they said you're out. I hate to interrupt your vacation, but we should speak about this." See id.*fn4 Finally, Plaintiffs' counsel responded:

"Well, if you can't agree fine. I'll comply with the pretrial order." See id. On July 1, 2010, Plaintiffs served their expert witness disclosures, identifying Mr. Jolicoeur and two other expert witnesses. See Ex. 1 to Nelson 9/3/10 Dec. at ¶ 2 (Docket No. 21). Mr. Jolicoeur's July 1, 2010 correspondence to Plaintiffs' counsel - his "written report" - was attached to Plaintiffs' expert witness disclosures.

Mr. Jolicoeur's 3-page report identifies his professional background, his scope of work, a description of the property involved in this action, and, "based on [his] preliminary analysis," only "[a description of] potential damages." See id., Ex. 2 at ¶ 3; see also Ealy 8/25/10 Aff. at ¶ 4 (Docket No. 18) ("[A]lthough Mr. Jolicoeur's July 1, 2010, Expert Witness Statement sets forth a bullet outline of those matters upon which he anticipates offering expert testimony following the completion of his appraisal work, the statement sets forth no specific damage valuation testimony."). Consistent with the fact that the report contains no opinion testimony as to any actual damages, Mr. Jolicoeur goes on to state:

After collecting and analyzing these data, I will develop the appropriate appraisal analyses and form my final opinions of value. The results of my research and analysis will be summarized in a written appraisal report to be delivered upon its completion at a future date.

See Ex. 2 to Nelson 9/3/10 Dec. at ¶ 3 (Docket No. 21).

Mr. Jolicoeur was deposed on July 29, 2010.*fn5 At his deposition, Mr. Jolicoeur confirmed the preliminary nature of his July 1, 2010 report, explaining that his damage valuation testimony would necessarily be dependent upon him completing an appraisal. See Ealy 8/25/10 Aff. at ΒΆ 5 (Docket No. 18). Still, it is undisputed that as of the July 1, 2010 expert disclosure deadline (and, even, as ...


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