Great Northern Insurance Company et al v. NGL Warehouse, LLC

Filing 224

ORDER granting in part and denying in part 176 Defendant NGL Warehouse LLCs Motion in Limine to Exclude Improper Testimony by Lay Witness Charles Reed. By Judge Philip A. Brimmer on 1/17/17. (pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-03233-PAB-NYW
GREAT NORTHERN INSURANCE COMPANY and
UNIQUE HOME DESIGNS, INC.,
Plaintiffs,
v.
NGL WAREHOUSE, LLC,
Defendant.

ORDER

This matter comes before the Court on Defendant NGL Warehouse LLC’s Motion
in Limine to Exclude Improper Testimony by Lay Witness Charles Reed [Docket No.
176], wherein NGL Warehouse, LLC (“NGL”) seeks to prevent plaintiffs from introducing
certain opinion testimony of witness Charles Reed at trial. On November 16, 2015, Mr.
Reed was deposed as a Fed. R. Civ. P. 30(b)(6) witness. NGL claims that, during the
deposition, plaintiffs asked Mr. Reed to express his opinions on a number of topics,
including the cause of the fatal accident, for which Mr. Reed has no qualifications to
express expert opinions. Id. at 2. NGL has identified thirteen passages of Mr. Reed’s
deposition to which it objects on this basis. NGL has also attached a declaration from
Mr. Reed stating that, although he was personally involved in a “root cause analysis” of
John Valdez’s death with the intent of formulating “an opinion as to what may have
caused Mr. Valdez’s death,” he does not have training, education, or experience in

forensic investigation, human factors, or engineering and did not enlist an expert in
those fields to conduct such analysis. Docket No. 176-2.
In response, plaintiffs make three arguments. First, they claim that NGL’s motion
is untimely because the deadline to object to experts was on November 7, 2016, see
Docket No. 135 at 1, and NGL did not file its motion until December 23, 2016. Plaintiffs’
argument is misconceived. As NGL notes, no party designated Mr. Reed as an expert
witness. Thus, the deadline for parties to object to expert testimony does not apply to
NGL’s motion in limine.
Second, plaintiffs argue that “Charles Reed’s testimony as a managing agent
pursuant to Fed. R. Civ. P. 32(a)(4)1 and as NGL’s Fed. R. Civ. P. 30(b)(6) designee
included NGL’s admissions regarding the Root Cause Analysis it performed, how that
analysis was performed, what was examined and the conclusions NGL reached at the
conclusion of that process in 2013.” Docket No. 184 at 2. Plaintif fs also contend that
“NGL’s position and contentions regarding various issues might or might not have been
the subject for which an expert could render assistance, but the fact that NGL reached
those conclusions and how it arrived at them are matters of corporate knowledge
constituting factual testimony and admissions of a party.” Id. at 2-3. Plaintiffs do not cite
any rule of evidence or any case law that makes these alleged admissions admissible,
any analysis of why the challenged portions of Mr. Reed’s depositions constitute
“admissions” not otherwise subject to Fed. R. Evid. 702, or why opinions formed in the
course of an internal investigation become “corporate knowledge” or “factual testimony”
1

The Court has already found that Mr. Reed is not a “managing agent” under
Rule 32(a)(4). See Docket No. 223.
2

rather than inadmissible expert testimony. The analysis of these issues can be
complicated, see, e.g., Aliotta v. Nat. R.R. Passenger Corp., 315 F.3d 756, 763 (7th Cir.
2003); In re Mirena IUD Products Liability Litigation, --- F. Supp. 3d ----, 2016 WL
4059224, at *7-*12 (S.D.N.Y. July 28, 2016), appeal filed, Aug. 19, 2016, and the Court
declines, in the absence of explication or analysis from plaintiffs, to guess as to their
reasoning. As a result, the Court finds that plaintiffs fail to show that the challenged
portions of the deposition of Mr. Reed are admissions, factual testimony, or corporate
knowledge not subject to Rule 702 analysis.
The Court rules as follows as to challenged portions of Mr. Reed’s deposition:
Page:Line

Ruling

58:13-16

Overruled. Does not require specialized knowledge. Proper Rule
701 testimony.

59:2-25

Overruled. Does not require specialized knowledge. Proper Rule
701 testimony.

60:10-13

Overruled. Does not require specialized knowledge. Proper Rule
701 testimony.

161:23-162:11

As to 161:1-3, overruled. Proper Rule 701 testimony. As to 161:411, sustained. Calls for specialized knowledge beyond the
qualifications and training of the witness to testify as to such
opinions.

198:17-200:12

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

200:19-201:7

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

201:24-202:11

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

226:17-227:1

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

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227:13-20

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

228:12-229:9

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

238:22-240:13

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

281:25-282:5

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

290:17-21

Sustained. Calls for specialized knowledge beyond the qualifications
and training of the witness to testify as to such opinions.

Wherefore, Defendant NGL Warehouse LLC’s Motion in Limine to Exclude
Improper Testimony by Lay Witness Charles Reed [Docket No. 176] is granted in part
and denied in part.

DATED January 17, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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