Mullin v. Hyatt Residential Group, Inc. et al

Filing 61

ORDER granting in part and denying in part 54 Motion to Exclude. By Judge William J. Martinez on 3/27/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2348-WJM-NYW
IAN MULLIN,
Plaintiff,
v.
HYATT RESIDENTIAL GROUP, INC., a Delaware corporation f/k/a HYATT VACATION
OWNERSHIP, INC., and
HYATT RESIDENTIAL MARKETING CORPORATION, a Florida corporation,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF ERIN TOLL

Plaintiff Ian Mullin brings this action against Defendants Hyatt Residential Group,
Inc. and Hyatt Residential Marketing Corporation (together “Defendants”) for wrongful
discharge in violation of public policy. (ECF No. 22.) This matter is before the Court on
Defendants’ Motion in Limine to Exclude Testimony of Erin Toll (“Motion”). (ECF No.
54.) On March 6, 2015, Plaintiff filed its Response to the Motion, and Defendant has
declined to file a Reply.1 (ECF No. 58.) For the reasons set forth below, the Motion is
granted in part and denied in part.

1

This Court’s practice standards distinguish between motions under Federal Rule of
Civil Procedure 702, like the instant Motion, and motions in limine seeking other evidentiary
rulings. Only the latter prohibits a Reply. See WJM Revised Practice Standards III.F.

1

I. BACKGROUND
The Hyatt Grand Aspen (“HGA”) is a luxury condominium resort owned by Grand
Aspen Holdings, LLC, a four-member limited liability corporation (“the Ownership
Group”). (ECF No. 27 at 3-4.) In 2004, Defendants contracted with the Ownership
Group to act as its timeshare marketing and sales agent at HGA. (Id. at 4.) In June
2010, Plaintiff, a licensed Colorado real estate broker, was hired by Defendants to act
as the director of sales and marketing for timeshares at HGA. (Id. at 3-4.) Plaintiff
asserts that, as a licensed real estate broker, he had a statutory duty to ensure that all
purchase offers were disclosed to the Ownership Group. (ECF No. 30 at 13.)
However, Plaintiff eventually became aware that Defendants had not communicated
every offer to the Ownership Group. (Id. at 14.) In response, Plaintiff disclosed some
of the withheld purchase offers to the Ownership Group which allegedly resulted in his
termination. (ECF No. 22.)
II. DISCUSSION
A district court has “wide latitude . . . in exercising its discretion to admit or
exclude expert testimony,” and Federal Rule of Evidence 702 requires courts to act as
gatekeepers to ensure the reliability and relevancy of such testimony. Bitler v. A.O.
Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004); see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999).
In their Motion, Defendants seek to exclude the testimony of Plaintiff’s expert,
Erin Toll. (ECF No. 54.) Defendants argue that Ms. Toll’s opinions are inadmissible
legal conclusions that will not be helpful to the jury. (Id. at 5-7.) Defendants seek

2

exclusion of Ms. Toll’s supplemental report on the alternative basis that Plaintiff failed to
comply with the Scheduling Order in this matter. (Id. at 8.) The Court addresses each
argument below.
A. The Admissibility of Ms. Toll’s Opinions
Defendants argue that the entirety of Ms. Toll’s expert report consists of
inadmissible legal arguments regarding the parties’ compliance with Colorado law. (Id.
at 2.) “[T]estimony on the ultimate factual questions aids the jury in reaching a verdict;
testimony which articulates and applies the relevant law, however, circumvents the
jury’s decision-making function by telling it how to decide the case.” Specht v. Jensen,
853 F.2d 805, 808 (10th Cir. 1988). Thus, an expert witness may not attempt to “define
the legal parameters within which the jury must exercise its fact-finding function” by
opining as to ultimate legal issues. Id. at 809-10; see also Marx & Co., Inc. v. Diners’
Club Inc., 550 F.2d 505, 509-10 (2d Cir. 1977) (holding that “[i]t is not for witnesses to
instruct the jury as to applicable principles of law, but for the judge”). Yet the line
between permissible and impermissible expert testimony regarding the law is a narrow
one. An expert may refer to the law in offering an opinion without that reference
rendering the testimony inadmissible. Specht, 853 F.2d at 809.
The Court has reviewed Ms. Toll’s report and agrees with Defendants that her
opinions primarily reflect legal conclusions. (ECF No. 54-2.) The thrust of Ms. Toll’s
report is the following: (1) Colorado’s brokerage statutes reflect important public policy
goals; (2) Plaintiff was a transaction-broker as defined by Colorado law; (3) Plaintiff
complied with his statutory duties as a transaction-broker; (4) Defendants instructed

3

Plaintiff to disregard the law governing brokers; (5) Defendants or their agents violated
the law; and (6) Plaintiff was terminated for complying with the law. (See generally id.)
The majority of Ms. Toll’s opinions would improperly instruct the jury on the applicable
law. However, excluding Ms. Toll’s testimony entirely is too drastic a remedy; rather,
the Court finds that any of her proposed testimony which impermissibly intrudes on the
proper role of the jury can be cured by limiting Ms. Toll’s testimony to her opinions as to
those practices which are generally acceptable in the real estate industry.
By way of example only, the Court would permit Ms. Toll to testify that, under
generally accepted real estate practices, Plaintiff’s presentation of the allegedly
withheld purchase offers to the Ownership Group was proper, and that Defendants’
withholding of those offers was improper. Ms. Toll may also testify that Plaintiff would
commonly be referred to as a transaction-broker in the real estate industry based on his
role with Defendants, and that transaction-brokers are generally expected to comply
with certain duties, including the duty to timely disclose all offers to the property owner.
These opinions would fall within the ambit of acceptable expert testimony in this Circuit.
See Zuchel v. City and County of Denver, Colorado, 997 F.2d 730, 742-43 (10th Cir.
1993) (holding testimony admissible where, in an excessive force trial, expert testified
that the police officer's use of deadly force was inappropriate not based on state or
constitutional law, but rather "based on [his] understanding of generally accepted police
custom and practice in Colorado and throughout the United States”).
Ms. Toll may not, however, opine that the parties’ conduct was either lawful or
unlawful, that Colorado law required the parties to take or refrain from taking any
particular action, or that Plaintiff’s status as a transaction-broker is statutorily derived.
4

Nor may Ms. Toll testify that the Colorado brokerage statutes are sufficient to form the
basis of a claim for wrongful discharge in violation of public policy, which the Court has
already addressed in its Order Denying Defendants’ Motion for Summary Judgment.
(ECF No. 60.) Lastly, Ms. Toll may not testify as to why Plaintiff was terminated, or that
Defendants had either implicitly or explicitly insisted that Plaintiff disregard his duties as
a broker. Such matters would be beyond Ms. Toll’s personal or professional knowledge
and experience. Kumho Tire, 526 U.S. at 150 (noting that “the relevant reliability
concerns [for expert testimony] may focus upon personal knowledge or experience”).
This ruling is not intended to be an exhaustive list of all proper and improper
testimony. It should instead guide the parties as to the boundaries of Ms. Toll’s
opinions and how those opinions should be framed during trial. Because the Court
finds that careful compliance with this Order should cure any evidentiary defects in Ms.
Toll’s opinions, and that her opinions, properly expressed, will be helpful to the jury, it
declines to strike Ms. Toll as a witness in this matter.
B. The Admissibility of Ms. Toll’s Supplemental Report
Defendants argue that Ms. Toll’s June 6, 2014 supplemental report (“Report”)
(ECF No. 54-4) was not timely disclosed and should be excluded. (ECF No. 54 at 8.)
United States Magistrate Judge Boyd N. Boland issued a Minute Order amending the
Scheduling Order in this matter, which designated March 24, 2014 as the deadline f or
all initial expert designations and all disclosures under Federal Rule of Civil Procedure
26(a)(2), and April 23, 2014 as the deadline f or all rebuttal expert designations and the
disclosure of any remaining Rule 26(a)(2) information. (ECF No. 26.) The Report is
thus untimely based on the clear terms of the Scheduling Order as amended. Plaintiff
5

responds by arguing that Defendants delivered the report of their rebuttal expert on
April 23, 2014, which referenced several previously undisclosed documents. (ECF No.
58 at 3-4.) Plaintiff then requested and received these documents on May 1, 2014, and
gave notice to Defendants of his intent to supplement Ms. Toll’s expert report. (Id. at
4.) Therefore, according to Plaintiff, the Report was a “supplement” under Federal Rule
of Civil Procedure Rule 26(a)(2)(E), which renders it timely pursuant to the pre-trial
disclosure deadlines. (Id.) The Court disagrees.
Rule 26(a)(2)(E) states that “the parties must supplement [expert] disclosures when
required under Rule 26(e).” Rule 26(e)(1) provides that a party must supplement its
response if “the party learns that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process or in writing.” With
respect to expert witness reports, “[a]ny additions or changes to this information must be
disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Fed. R.
Civ. P. 26(e)(2). Unless the court orders otherwise, those pretrial disclosures “must be
made at least 30 days before trial.” Fed. R. Civ. P. 26(a)(3)(B).
Judge Boland did not specify a deadline for Rule 26(a)(3) pretrial disclosures.
(See ECF Nos. 17, 26, & 45.) Thus, since trial in this matter is set for June 8, 2015,
Plaintiff’s June 6, 2014 Report was timely disclosed if it was a “supplement” as
described in Rule 26(e). The Court must therefore determine the definition of
“supplement” under Rule 26(e), and whether the Report falls within that definition.
Expert reports must contain “a complete statement of all opinions the witness will
express and the basis and reasons for them,” and are required to be disclosed within
6

the time allotted by the Court. Fed. R. Civ. P. 26(a)(2)(B)(i) (emphasis added). While
Rule 26(e) imposes a duty to supplement expert disclosures, it cannot be used to
circumvent the Scheduling Order to file what is, essentially, a sur-rebuttal report. The
Court agrees with the District of Kansas in its interpretation of the duty to supplement:
Rule 26(e)(1) places a duty on parties to supplement information provided
during discovery, i.e., to correct misleading or false information. It does
not give them a right to disclose information in an untimely fashion. Rule
26 does not . . . bestow upon litigants unfettered freedom to rely on
supplements produced after a court-imposed deadline, even if the rule’s
pretrial time limit is satisfied. . . .
Supplementation under the Federal Rules of Civil Procedure means
correcting inaccuracies, or filling the interstices of an incomplete report
based on information that was not available at the time of the disclosure.
Rebuttal evidence is evidence intended solely to contradict or rebut
evidence on the same subject matter identified by another party in its
expert disclosures.
Aid for Women v. Foulston, 2005 WL 6964192, *3 (D. Kan. July 14, 2005) (internal
quotation marks and citations omitted) (emphasis added). A side-by-side review of Ms.
Toll’s Report and Defendants’ rebuttal expert’s report indicates that the Report is not a
true supplement, but rather a sur-rebuttal. Specifically, the Report is entirely directed at
responding to Defendants’ expert’s assertion that Plaintiff was a seller’s agent and not a
transaction-broker. (Compare ECF No. 30-4, with ECF No. 54-4.) Because the Report
does not serve to correct any inaccurate information or fill in the gaps of a previously
incomplete report, it is not a true supplement under Rule 26(e).
The Court accordingly finds that the Report was untimely disclosed and thus the
opinions therein are inadmissible. Plaintiff will, of course, have ample opportunity to
cross-examine Defendants’ expert during trial. But “the [C]ourt will not permit Plaintiff to
disclose rebuttal expert disclosures responsive to Defendant[s’] rebuttal expert
7

disclosures. The [C]ourt finds that Federal Rule 26(a)(2) permits affirmative expert
disclosures and rebuttal expert disclosures; it does not permit parties to further rebut
rebuttal expert disclosures.” Rothenberg v. Standard Ins. Co., 2012 WL 2126846, *2
(D. Colo. June 12, 2012). 2 Ms. Toll’s June 6, 2014 Report is therefore stricken.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion in Limine to Exclude Testimony of Erin Toll (ECF No. 54) is
GRANTED IN PART and DENIED IN PART;

2.

Erin Toll may testify at trial as outlined in, and consistent with, this Order; and

3.

Erin Toll’s June 6, 2014 Report (ECF No. 54-4) is STRICKEN.
Dated this 27th day of March, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

2

The Court acknowledges that there is an exception for Rule 26(a) violations if the
violation is harmless or justified. Fed. R. Civ. P. 37(c)(1); see also Woodworker’s Supply, Inc.
v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). However, Plaintiff fails to
raise this argument or any other argument that the Report is admissible. (ECF No. 58.)
Moreover, Federal Rule of Civil Procedure 37(c)(1) states that “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Here, the information at issue, a sur-rebuttal
report, is not “required” to be disclosed by Rule 26(a) or (e), and the Court has in fact found that
sur-rebuttals are impermissible under Rule 26. The exception is therefore inapplicable here.

8