Southcrest, L.L.C. v. Bovis Lend Lease, Inc. et al

Filing 518

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 496 Motion to Strike Document(s) (jcm, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
SOUTHCREST, L.L.C.,
Plaintiff,
vs.
BOVIS LEND LEASE, INC., and
DELTA/UNITED SPECIALTIES, INC.,
Defendants.
______________________________
BOVIS LEND LEASE, INC.,
Third Party Plaintiff,
v.
DELTA/UNITED SPECIALTIES,
PROFESSIONAL WATERPROOFING
AND ROOFING, INC., AND RUSSELL
PLUMBING HEAT & AIR COMPANY
D/B/A RUSSELL MECHANICAL
CONTRACTORS,
Third Party Defendants,
______________________________
DELTA UNITED SPECIALTIES,
Fourth-Party Plaintiff,
v.
SOUTHERN PLASTERING, INC.,
Fourth-Party Defendant.

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OPINION AND )ORDER
Fourth Party Defendant Southern Plastering, Inc.’s Motion to Strike Documents and
Brief in Support, [496], is before the court for decision. The motion has been fully briefed,
[506, 512], and a hearing was held on August 17, 2012.
The first issue raised by the motion is whether the Joint Pretrial Disclosures and
Final Witness and Exhibit Lists of Bovis Lend Lease, Inc. and Delta/United Specialties, Inc.
(Bovis and Delta) should be stricken because they were filed after the deadlines in the
Scheduling Order. The Joint Pretrial Disclosures were filed four days late and the Witness
and Exhibit Lists were one day late. Southern Plastering has not established any prejudice

from the late filings. The motion is therefore denied as to a complete striking of the Joint
Pretrial Disclosures and Final Witness and Exhibit Lists. Ehrenhaus v. Reynolds, 965 F.2d
916, 932 (10th Cir. 1992)(outlining factors to consider for issuance of extreme sanctions).
The next issue concerns the substitution of SouthCrest’s expert witnesses for Bovis
and Delta’s expert witnesses on the final witness list. During the case Bovis and Delta
disclosed their experts, provided expert reports, and depositions of the experts were
conducted. When SouthCrest settled with Bovis and Delta SouthCrest began asserting
Bovis and Delta’s claims. SouthCrest was not satisfied with Bovis and Delta’s experts. As
a result, SouthCrest caused Bovis and Delta to list SouthCrest’s experts on behalf of Bovis
and Delta in the final witness list. The substitution creates a problem. When SouthCrest
was still in the case Southern Plastering, Inc. filed Daubert motions challenging
SouthCrest’s experts. When SouthCrest settled all of its claims and was dismissed from
the case those motions were found moot. If Bovis and Delta are now permitted to use
SouthCrest’s experts then in fairness, the Daubert motions will have to be reinstated,
briefed, and resolved. That course would disrupt the attorney’s pre-trial preparation and
possibly cause a delay in the trial.
A better course is to strike SouthCrest’s experts and permit Bovis and Delta to list
and call the experts they have relied on throughout the case. This course will not prejudice
either Bovis and Delta or Southern Plastering and will allow the case to proceed in an
orderly fashion. In saying Bovis and Delta will not be prejudiced the court recognizes that
SouthCrest would prefer to assert Bovis and Delta’s claims through SouthCrest’s own
experts. But since SouthCrest is attempting to step into the shoes of Bovis and Delta it is
not unreasonable to require SouthCrest to walk in those shoes as it finds them.

The final issue raised by the motion is Southern Plastering’s objection to the
introduction of the deposition testimony of Mr. Remmele by Bovis and Delta. Bovis and
Delta did not designate Mr. Remmele’s testimony pursuant to the scheduling order.
However, Southern Plastering did designate Mr. Remmele’s testimony.

Southern

Plastering will not be prejudiced if Bovis and Delta are allowed to introduce the same
testimony.
Fourth Party Defendant Southern Plastering, Inc.’s Motion to Strike Documents [496]
is GRANTED in part and DENIED in part as set forth herein.
DATED this 20th day of August 2012.