Black & Veatch Corporation v. Aspen Insurance (UK) LTD et al

Filing 430

ORDER re 394 MOTION to Exclude Testimony of Stephen P. Warhoe filed by Black & Veatch Corporation. Signed by District Judge Kathryn H. Vratil on 10/7/2019. See order for details. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BLACK & VEATCH CORPORATION,

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)
Plaintiff,
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v.
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)
ASPEN INSURANCE (UK) LTD., et al.,
)
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Defendants.
)
______________________________________________)

CIVIL ACTION
No. 12-2350-KHV

MEMORANDUM AND ORDER
This matter is before the Court on the parties’ memoranda which the Court requested
after two hearings that addressed Black & Veatch Corporation’s Partial Motion To Exclude
Testimony Of Stephen P. Warhoe (Doc. #394) filed July 22, 2019.

At a hearing on

September 23, 2019, the Court ordered the parties to file memoranda on the limited issue
whether Black & Veatch (“B&V”) is bound by certain statements that its witnesses made with
regard to damages to Fiberglass Reinforced Plastic (“FRP”). Specifically, the Court directed the
parties to address whether certain witnesses made binding admissions that B&V “would not be
claiming any damages for defective FRP and all FRP was defective.” Transcript Of Motion
Hearing [On September 23, 2019] (Doc. #424) filed September 25, 2019, at 30; see also
Transcript Of Motion Hearing [On September 3, 2019] (Doc. #423) at 56-57 (substantive issue
whether B&V bound by deposition testimony “to the effect that all FRP was defective and
should be excluded”); id. at 61 (Warhoe supplemental report likely fails unless individuals from
B&V made “binding admissions that all of the FRP was defective”).
Except for two fleeting references in footnotes, defendants’ initial memorandum is
completely silent on the issues that the Court asked the parties to address. See Defendants’

Memorandum On Defective FRP (Doc. #425) filed September 26, 2019. Defendants’ reply is
somewhat more relevant to the issues which the Court asked the parties to brief.

See

Defendants’ Reply In Support Of Its Supplemental Briefing On Defective FRP (Doc. #428) filed
October 4, 2019. Because defendants’ arguments did not appear until their reply, however,
B&V has not had an opportunity to respond to them. In effect, defendants’ original brief is an
unauthorized surreply in opposition to Black & Veatch Corporation’s Partial Motion To Exclude
Testimony Of Stephen P. Warhoe (Doc. #394). Accordingly, the Court disregards that brief in
its entirety.

Furthermore, the Court will not consider arguments and authorities which

defendants first raise in their reply brief. Defendants’ Reply In Support Of Its Supplemental
Briefing On Defective FRP (Doc. #428); see Mondaine v. Am. Drug Stores, Inc., 408 F. Supp.
2d 1169, 1202-03 (D. Kan. 2006); see also Mike v. Dymon, Inc., No. 95-2405-EEO, 1996 WL
427761, at *2 (D. Kan. July 25, 1996) (in fairness and to ensure proper notice, court generally
summarily denies or excludes all arguments and issues first raised in reply briefs).
In short, for purposes of evaluating Black & Veatch Corporation’s Partial Motion To
Exclude Testimony Of Stephen P. Warhoe (Doc. #394), the Court will disregard any arguments
that agents and employees of Black & Veatch made admissions (in pleadings, discovery
responses, deposition testimony or otherwise) which preclude it from seeking damages for FRP.1
IT IS SO ORDERED.

1

Instead of addressing the limited issues on which the Court ordered briefing,
defendants focus on so-called “evidentiary” admissions that allegedly support the opinions of
Stephen Warhoe. The Court is not familiar with “evidentiary” admissions – especially evidentiary
“admissions” which are not binding but (as defendants argue) go to “weight not admissibility.”
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Dated this 7th day of October, 2019 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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