Riverside Storage and Recycling Center, LLC et al v. City of Federal Heights, The et al
Filing
175
ORDER granting in part and denying in part 152 Motion to Exclude; denying 159 Motion to Exclude. By Judge Christine M. Arguello on 10/31/2017. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-02325-CMA-NYW
RIVERSIDE STORAGE AND RECYCLING CENTER, a Colorado Limited Liability
Corporation,
CRAIG SHRIVER,
KEVIN COX,
JOHN HOOD, and
KIMBERLY HILLS, foreign limited liability company,
Plaintiffs,
v.
THE CITY OF FEDERAL HEIGHTS, a Colorado Municipal Corporation,
Defendant.
______________________________________________________________________
ORDER ON PRETRIAL MOTIONS TO EXCLUDE EXPERTS
______________________________________________________________________
This matter is before the Court on two motions: (1) Defendant’s Motion to
Exclude Plaintiffs’ Experts Stephen Thomas, Craig Shriver, and Ken Essex Pursuant to
Rule 702 (Doc. # 152), and (2) Plaintiffs’ Motion to Exclude Defendant’s Experts Chris
Tremaine and Kelly Spence Pursuant to Rule 702 (Doc. # 159). For the reasons
outlined below, the Court denies in part and grants in part Defendant’s motion and
denies in full Plaintiffs’ motion.
I.
BACKGROUND
In September 2013, the City of Evans experienced significant floods, which
devastated mobile home parks in the city. The mobile homes in these parks were
flooded for at least six days. After contracted inspectors surveyed the damaged homes,
pursuant to the authority of the Colorado Department of Public Health and
Environment 1, Evans’ building official declared the homes to be “Tier 1 debris,”
dangerous, and in need to be destroyed.
Plaintiffs are individuals and entities active in the mobile home industry. Plaintiff
Craig Shriver (“Plaintiff Shriver”) owns and manages Plaintiff Riverside Storage and
Recycling Center (“Plaintiff Riverside”). In the spring of 2015, Plaintiff Shriver and
Plaintiff Riverside contracted with two mobile home parks in Evans to clean up and take
possession of mobile homes impacted by the flooding. Of the mobile homes that had
been identified by Evans to be destroyed, Plaintiff Shriver removed and destroyed some
but removed and rehabilitated others. Also in early 2015, Plaintiff Riverside contracted
with Plaintiff Kimberly Hills to bring fifty mobile homes to Kimberly Hills’ mobile home
park in the City of Federal Heights (“Defendant City”) in return for a $6,000 per home
incentive payment.
Plaintiff Shriver applied for set permits 2 so that he could move the rehabilitated
mobile homes into the Defendant City at Plaintiff Kimberly Hills’ mobile home park.
Although Plaintiff Shriver disclosed to the Defendant City that the homes had been
affected by a flood, he did not disclose their Tier 1 designation by Evans. Unaware of
1
The Colorado Department of Public Health and Environment defines Tier 1 building materials
as “[a]ny and all building materials that have been displaced or dislodged as a result of heavy
rains and flooding. This includes, for example debris from demolished homes that may have
washed away.”
2
Defendant City issues set permits to allow the placement of homes in the City, which
Defendant City then inspects to determine any requisite repairs. Defendant City then orders
completion of the requisite repairs within a time limit. On July 9, 2014, Plaintiff Shriver owned
only one of these homes, but he applied for two permits for himself and also for others who
purchased homes impacted by the Evans flooding.
2
the Tier 1 designation by Evans, Defendant City issued the set permits to Plaintiff
Shriver.
On July 24, 2014, after having inspected the homes for which set permits had
been issued, Defendant City wrote a letter to the mobile home parks and setters stating
that it had come to its attention that certain flood-affected mobile homes were being
brought into the City. Defendant City attached its “Used Manufactured Home Set
Inspection Policy,” which requires certain disclosures, repairs, and inspections for flooddamaged homes. On August 19, 2014, Defendant City learned of the Evans’s Tier 1
designation of these mobile homes through VIN numbers lists kept by a Colorado state
agency.
Plaintiffs allege that Defendant City then voided the mobile home set permits,
removed occupancy insignias, and ordered Plaintiffs to remove the homes. (Doc. # 78.)
Plaintiffs assert procedural due process violations 3 by Defendant City in violation of 42
U.S.C. § 1983. (Id.)
On September 16, 2016, Plaintiffs filed their expert disclosures pursuant to Fed.
R. Civ. P. 26(a)(2). (Doc. # 152-1.) Relevant here, Plaintiffs identified retained expert
witness Steve Thomas and non-retained expert witness Craig Shriver (Plaintiff Shriver).
On October 14, 2016, Defendant City filed its expert disclosures, which included Chris
Tremaine and Kelly Spence of Tremaine Enterprises, Inc. as retained expert witnesses.
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Plaintiffs also asserted substantive due process claims. (Doc. # 78.) The Court granted
Defendant City’s Renewed Motion for Summary Judge (Doc. # 150) as to the substantive due
process claims on October 2, 2017. (Doc. # 166.) Additionally, the Court granted Defendant’s
Renewed Motion for Summary Judgment (Doc. # 150) as to two initial plaintiffs, Kevin Cox and
John Hood. (Doc. # 166.) Thus, the only remaining claims are Plaintiff Riverside’s, Plaintiff
Shriver’s, and Plaintiff Kimberly Hills’s procedural due process claims against the Defendant
City.
3
(Doc. # 159-13.) Tremaine and Spence’s report (the “TEI Report”) was attached. (Doc.
# 159-3–5.)
On October 25, 2016, Plaintiffs filed their expert rebuttal disclosures. (Doc.
# 152-4.) In addition to previously-identified retained expert witness Thomas and nonretained expert witness Plaintiff Shriver, Plaintiffs also identified a new non-retained
rebuttal expert witness, Ken Essex. (Id.) Defendant City’s expert rebuttal disclosures
are not relevant to the instant motions.
Defendant City filed its Motion to Exclude Plaintiffs’ Experts Stephen Thomas,
Craig Shriver, and Ken Essex Pursuant to Rule 702 on August 14, 2017. (Doc. # 152.)
Plaintiffs filed their Motion to Exclude Defendant City’s Experts Chris Tremaine and
Kelly Spence Pursuant to Rule 702 on August 24, 2017. (Doc. # 159.) The parties
timely filed responses and reply briefs on each motion. (Doc. ## 161, 162, 164, 165.)
II.
LEGAL STANDARD
Under Daubert, the trial court acts as a “gatekeeper” by reviewing a proffered
expert opinion for relevance pursuant to F.R.E. 401, and reliability pursuant to F.R.E.
702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–95 (1993);
see also Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir.
2000). The proponent of the expert must demonstrate by a preponderance of the
evidence that the expert’s testimony and opinion is admissible. United States v.
Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009; United States v. Crabbe, F. Supp. 2d
1217, 1220–21 (D. Colo. 2008); F.R.E. 702 advisory comm. notes. This Court has
discretion to evaluate whether an expert is helpful, qualified, and reliable under F.R.E.
4
702. See Goebel, 214 F.3d at 1087; United States v. Velarde, 214 F.3d 1204, 1208–09
(10th Cir. 2000).
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule
702 provides that a witness who is qualified as an expert by “knowledge, skill,
experience, training, or education” may testify if:
(a)
(b)
(c)
(d)
the expert's scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of
the case.
F.R.E. 702.
In determining whether expert testimony is admissible, the Court generally
employs a three-step process. First, it must first determine whether the expert is
qualified “by knowledge, skill, experience, training, or education” to render an opinion.
Nacchio, 555 F.3d at 124. Second, if the expert is sufficiently qualified, the Court must
determine whether the proposed testimony is sufficiently “relevant to the task at hand,”
such that it “logically advances a material aspect of the case.” Norris v. Baxter
Healthcare Corp., 397 F.3d 878, 884, 884 n.2 (10th Cir. 2005). “Doubts about whether
an expert’s testimony will be useful should generally be resolved in favor of admissibility
unless there are strong factors such as time or surprise favoring exclusions. The jury is
intelligent enough to ignore what is unhelpful in its deliberations.” Robinson v. Mo. Pac.
R.R. Co., 16 F.3d 1083, 1090 (10th Cir. 1994) (quotation omitted).
Third, the Court examines whether the expert’s opinion “has ‘a reliable basis in
the knowledge and experience of his [or her] discipline.’” Id. (quoting Daubert, 509 U.S.
5
at 592). In determining reliability, a district court must decide “whether the reasoning or
methodology underlying the testimony is scientifically valid.” Id. (quoting Daubert, 509
U.S. at 592–93). In making this determination, a court may consider: “(1) whether a
theory has been or can be tested or falsified, (2) whether the theory or technique has
been subject to peer review and publication, (3) whether there are known or potential
rates of error with regard to specific techniques, and (4) whether the theory or approach
has general acceptance.” Norris, 397 F.3d at 884 (citing Daubert, 509 U.S. at 593–94).
The Supreme Court has made clear that this list is neither definitive nor exhaustive;
accordingly, a trial court has broad discretion to consider other factors. Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 150 (1999).
The requirement that testimony must be reliable does not mean that the party
offering such testimony must prove “that the expert is indisputably correct.” Bitler v.
A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2004) (quoting Mitchell v. Gencorp
Inc., 165 F.3d 778, 781 (10th Cir. 1999)). Rather, the party need only prove that “the
method employed by the expert in reaching the conclusion is scientifically sound and
that the opinion is based on facts which sufficiently satisfy Rule 702's reliability
requirements.” Id.
Guided by these principles, this Court has “broad discretion” to evaluate whether
an expert is helpful, qualified, and reliable under F.R.E. 702. Velarde, 214 F.3d at
1208–09.
III.
A.
ANALYSIS
DEFENDANT CITY’S MOTION
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1.
Stephen Thomas
Plaintiffs allege that Defendant City did not correctly apply applicable legal codes,
including the International Residential Code (“IRC”), the International Property
Maintenance Code (“IPMC”), and its own municipal code. (Doc. # 78.) In support of
these allegations, Plaintiffs designated Stephen Thomas of Colorado Code Consulting,
LLC, as a retained expert witness. (Doc. # 152-1.) Thomas prepared a ten-page report
for Plaintiffs. (Doc. # 152-2.) Thomas opined in his report that the Defendant City failed
to follow their own codes and standards, including the IRC and IPMC, which Defendant
City had adopted by reference. (Id.)
Defendant City moves that the Court preclude Thomas “from testifying as to
whether [Defendant City] should have followed the [IPMC] instead of the [IRC] and that
the [Defendant City] violated the Notice provision of the IPMC.” (Doc. # 152.)
According to Defendant City, this testimony “attempts to invade the province of the
[C]ourt to instruct the jury on the law.” (Id.)
The Court disagrees and concludes that Thomas’s testimony is admissible.
Contrary to Defendant City’s characterization, Thomas’s primary conclusion is not that
Defendant City followed the incorrect code by applying the IRC. In fact, at the outset of
his report, Thomas stated that the applicable codes include the IRC, the IPMC, and the
municipal code. See (Doc. # 152-2 at 3.) The specific point that the IPMC, not the IRC,
was the correct code was in the context of a single point of analysis—the revocation of
permits that did not exist. See (id. at 6.) The Court agrees with Plaintiffs that Thomas’s
testimony “does not improperly instruct the jury on the law, but rather applies
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[Thomas’s] knowledge of what building code applies in any given circumstance to
assess [Defendant City’s] actions and conclude that it did not follow proper code
requirements.” (Doc. # 162.) Thomas’s opinion in this part of his report is focused on a
specific question of fact. See United States v. Buchanan, 787 F.2d 477, 483 (10th Cir.
1986). Thomas has not “invade[d] the court’s authority by discoursing broadly over the
entire range of the applicable law.” See Specht v. Jensen, 853 F.2d 805, 809 (10th Cir.
1988).
A witness “may refer to the law in expressing an opinion without that reference
rendering the testimony inadmissible.” Id. Because Thomas’s opinion does no more
than “aid the jury in understanding the facts in evidence even though reference to those
facts is couched in legal terms,” see id., the Court DENIES Defendant City’s Motion to
Exclude Plaintiffs’ Expert Thomas.
2.
Craig Shriver
Plaintiffs initially designated Plaintiff Shriver as a non-retained expert witness and
summarized his experience and his opinions. (Doc. # 152-1.) Plaintiffs also identified
Shriver as a non-retained expert for rebuttal purposes. (Doc. # 152-4.) Plaintiffs’ expert
rebuttal disclosure was identical to their initial disclosure, save for one four-sentence
addition about Shriver’s testimony. 4
Defendants assert that Shriver’s opinions are unreliable and include an improper
4
“Mr. Shriver will testify that the standard in the industry is not the remediation protocol provided
in Defendants’ expert report. Furthermore Mr. Shriver will testify that the labor rates reflected in
Defendants’ expert report do not reflect the actual labor wages paid by himself or Mr. Shriver
when remediating/remodeling used manufactured homes. Instead labor is hired between 10-20
dollars per hour. Also Mr. Shriver will testify that he personally performs a large amount work at
no additional cost.” (Doc. # 152-4 at 6.)
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legal opinion. (Doc. # 152.) Defendants also argue that Shriver’s opinions “are
improper ‘rebuttal’ opinions and should have been included in Plaintiffs’ initial expert
disclosures.” (Id.)
The Court is not persuaded and concludes that Shriver’s testimony is admissible.
First, Shriver’s opinions meet the reliability requirement of F.R.E. 702. The text of
F.R.E. 702 “expressly contemplates that an expert may be qualified on the basis of
experience,” and “[i]n certain fields, experience is the predominant, if not sole, basis for
a great deal of reliable expert testimony.” F.R.E. 702 advisory comm. notes (2000).
Plaintiffs sufficiently allege that Shriver has a great deal of pertinent experience. 5 (Doc.
# 152-1.) Any weaknesses in Shriver’s testimony from not having worked exclusively
with flood-damaged homes go to the weight of his testimony, not its admissibility. As
long as an expert stays within the “reasonable confines of his subject area,” “a lack of
specialization does not affect the admissibility of [the expert opinion], but only its
weight.” Compton v. Subaru of America, Inc., 82 F.3d 1513, 1520 (10th Cir. 1996),
overruled on other grounds, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); see
also Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 (10th Cir. 2001).
Second, the Court rejects Defendant City’s contention that Shriver’s testimony
includes an improper legal opinion. Though Defendant City challenges the entirety of
Shriver’s testimony, it takes particular issue with the indication that Shriver “will testify
5
“Mr. Shriver has 15 years’ experience in set up, construction, refurbishing, remodeling, tear
down, demolition, recycling, moving and transport of manufactured/mobile homes. Mr. Shriver
has personally moved over 1000 mobile homes. Mr. Shriver also has 25 years’ experience in
renting, selling and leasing of properties and 18 years specifically with manufactured homes.”
(Doc. # 152-1.)
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that once a building permit is signed off and a [certificate of occupancy (‘CO’)] issued,
the house is safe for occupancy” and characterizes this as an improper legal opinion.
(Doc. # 152 at 10 (quoting Doc. # 152-1 at 2.)) Provided that Plaintiffs limit Shriver’s
opinion as they assert in their response to “the process leading up to the final certificate
of occupancy and what—based on his experience with the permitting and inspection
process—the certificate is meant to convey,” Shriver is not opining on the legal effect of
a CO. (Doc. # 162 at 10) (emphasis added.)
Third, Shriver’s opinions are not improper rebuttal opinions. Defendant City
notes that the summary of Shriver’s opinions in Plaintiffs’ rebuttal disclosures differs by
only four sentences from Plaintiffs’ initial disclosures. (Doc. # 152.) Defendant City
argues that these four additional sentences “are clearly not rebutting or contradicting
Defendant’s experts” and thus “should have been disclosed as part of Plaintiffs’ Initial
Expert Disclosures.” (Id.) The Court disagrees. Defendant City’s expert report, the TEI
Report, stated that Plaintiffs did not follow the proper remediation protocol and
underestimated the costs of remediation, and concluded that Plaintiffs would not have
made a profit. (Doc. # 159-3.) Plaintiff’s rebuttal disclosures as to Shriver’s testimony
responded directly the TEI Report. The opinions thus are proper rebuttal opinions
pursuant to F.R.E. 702.
For these reasons, the Court DENIES Defendant City’s Motion to Exclude
Plaintiffs’ Expert Shriver.
3.
Ken Essex
When Plaintiffs filed their expert rebuttal disclosures, they identified a new non10
retained rebuttal expert witness, Ken Essex. (Doc. # 152-4.) Plaintiffs’ summary of
Essex’s testimony is identical to Plaintiffs’ summary of Shriver’s testimony. (Id.)
Plaintiffs merely inserted Essex’s name in place of Shriver’s name. (Id.)
The Court agrees with Defendant City that because the opinions are identical,
Essex’s testimony is needlessly cumulative. See (Doc. # 152.) The cumulative nature
of Essex’s opinion substantially outweighs any probative value it may have. Pursuant to
F.R.E. 403, the Court therefore GRANTS Defendant City’s Motion to Exclude Plaintiffs’
Expert Essex.
B.
PLAINTIFFS’ MOTION
1.
Chris Tremaine and Kelly Spence, and the TEI Report
Defendant City identified Tremaine and Spence as retained expert witnesses and
included their report, the TEI report, in its initial disclosures. (Doc. # 159-13); see also
(Doc. # 159-3–5.)
Plaintiffs argue that Tremaine and Spence’s testimony should be excluded for
three reasons: (1) they “are not qualified to opine on the intermediary conclusions in the
TEI Report;” (2) their testimony is based on “insufficient review of applicable evidence,
[and] improper reliance on inapplicable evidence,” and is not based on any “particular or
supported methodology;” and (3) their opinions are “unhelpful because they do not
address the reality of [Plaintiff] Shriver’s planned remediation approach.” (Doc. # 159.)
First, the Court concludes that Tremaine and Spence have sufficient knowledge,
skill, experience, training, and education to testify as experts. See F.R.E. 702. As the
Court explained above, “an expert may be qualified on the basis of experience.” F.R.E.
11
702 advisory comm. notes (2000). Defendant City attached to its initial disclosures
Tremaine’s and Spence’s resumes. (Doc. # 159-7.) These resumes reflect decades of
experience in adjusting property claims, in consulting on claims, and in general
contracting and construction. See (id.) In the Court’s view, Tremaine and Spence have
the “extensive and specialized experience” necessary to opine as experts. See Kumho,
526 U.S. at 156. Any weaknesses in their testimony concerning interpreting of law,
identifying mold from photographs, or opining on the rental market for mobile homes go
to the weight to be accorded to their testimony, not its admissibility. See Compton, 82
F.3d at 1520.
Second, the Court rejects Plaintiffs’ contention that Tremaine and Spence did not
base their opinions on proper evidence. Plaintiffs imply that to present expert
testimony, Tremaine and Spence needed to have first-hand knowledge of the particular
mobile homes at issue in this case. See (Doc. # 159.) However, nothing in the
Daubert-Kumho line of cases “requires an expert to ‘visit the scene,’ so to speak, in
order to offer or support an opinion on a contested technical issue.” Rankin v. Union
Pacific R. Co., No. 04-cv-00372-OES-PAC, 2005 WL 6000492, at *4 (D. Colo. Sept. 29,
2005). Experts may testify “from the reports, diagrams, depositions, or other evidence
that has been gathered in a case.” Id. The Tremaine Report suggests that Tremaine
and Spence are doing just that.
Third, the Court is not persuaded that Tremaine and Spence’s testimony about
the cost of remediation is unhelpful because it “ignores the reality that [Plaintiff Shriver]
had a different remediation plan in place.” See (Doc. # 159.) The Court agrees with
12
Defendant City that this argument goes to the weight of the evidence, not its
admissibility. See (Doc. # 161.)
The Court therefore DENIES Plaintiffs’ Motion to Exclude Defendant’s Experts
Chris Tremaine and Kelly Spence.
IV.
CONCLUSION
Based on the foregoing, it is ORDERED that:
1. Defendant’s Motion to Exclude Plaintiffs’ Experts (Doc. # 152) as to Stephen
Thomas and Craig Shriver is DENIED;
2. Defendant’s Motion to Exclude Plaintiffs’ Experts (id.) as to Ken Essex is
GRANTED; and
3. Plaintiffs’ Motion to Exclude Defendant’s Experts Chris Tremaine and Kelly
Spence (Doc. # 159) is DENIED.
DATED: October 31, 2017
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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