The Weitz Company, LLC v. MacKenzie House, L.L.C. et al

Filing 404

ORDER granting 348 motion to strike a portion of the expert testimony of Lin Heath. Signed by District Judge Ortrie D. Smith on 11/19/2009. (Will-Fees, Eva)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION THE WEITZ COMPANY, L.L.C., ) ) Plaintiff/Third-Party Plaintiff ) ) vs. ) ) MacKENZIE HOUSE, L.L.C. and ) MH METROPOLITAN, L.L.C., ) ) Defendants/Counterclaimants, ) ) ARROWHEAD CONTRACTING, INC., ) CONCORDE CONSTRUCTION ) COMPANY, INC., POLAR AIRE ) HEATING AND COOLING SERVICE, ) INC., CONSTRUCTION BUILDING ) SPECIALTIES, INC. and FIDELITY ) DEPOSIT COMPANY OF MARYLAND, ) ) Third-Party Defendants. )

Case No. 07-0103-CV-W-ODS

ORDER AND OPINION GRANTING DEFENDANTS' MOTION TO STRIKE A PORTION OF THE EXPERT TESTIMONY OF LIN HEATH Third-Party Defendant Arrowhead Contracting, Inc. ("Arrowhead") has designated Lin Heath as an expert witness. Defendants have filed a motion to strike (Doc. # 348), which targets paragraph 11 of Heath's report. Arrowhead has not responded, and the time for doing so has passed. Defendants' motion is granted. In paragraph 11, Heath purports to interpret sections 4.7 and 4.71 of the A111 between Plaintiff and Defendants. The Court has previously ruled these provisions are ambiguous and their meaning will have to be determined by a jury. Heath ­ an expert in construction matters ­ does not have any expertise enabling him to testify about the parties' understanding and intent. The Court agrees that Heath should not be allowed to offer his interpretation of the ambiguous contract language. IT IS SO ORDERED. DATE: November 19, 2009 /s/ Ortrie D. Smith ORTRIE D. SMITH, JUDGE UNITED STATES DISTRICT COURT