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American Property Construction Company v. Sprenger Lang Foundation

March 14, 2011

AMERICAN PROPERTY CONSTRUCTION COMPANY, PLAINTIFF/COUNTER-DEFENDANT,
v.
SPRENGER LANG FOUNDATION, ET AL., DEFENDANTS/COUNTER-PLAINTIFFS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This action involves a relatively straightforward contract dispute about construction services. Plaintiff/Counter-Defendant American Property Construction Company ("APCC") commenced suit against Defendants Paul Sprenger ("Sprenger"), Jane Lang ("Lang"), and the Sprenger Lang Foundation (the "Foundation") (collectively, "Defendants"), asserting claims for breach of express and implied contract based upon Defendants' alleged failure to remit full payment for construction services provided by APCC. Sprenger and Lang ("Counter-Plaintiffs"), in turn, assert a counterclaim for breach of implied contract based upon APCC's alleged failure to perform and complete those services in a timely and satisfactory manner. Presently before the Court is APCC's [38] Combined Motion to Exclude Testimony/Discovery and for Partial Summary Judgment ("Motion to Exclude"), pursuant to which APCC seeks an order imposing sanctions upon Defendants/Counter-Plaintiffs based upon their alleged discovery-related failures.*fn1 Based upon the parties' submissions, the attachments thereto, the relevant authorities,

and the record as a whole,*fn2 the Court shall GRANT-IN-PART and DENY-IN-PART APCC's [38] Motion to Exclude, as set forth in greater detail below.

I. BACKGROUND

APCC commenced this action on July 2, 2009, asserting claims against Defendants/Counter-Plaintiffs for breach of express and implied contract. See Compl., Docket No. [1]. From APCC's perspective, this action is a "straightforward collection case." Pl.'s Mem. at 3. APCC alleges that it was engaged by Defendants/Counter-Plaintiffs to provide general contracting services on an office building located at 1614 20th Street, N.W., Washington, D.C. 20009 (the "Property"). Compl. ¶ 9. APCC contends that, despite satisfactorily performing the agreed-upon work, Defendants/Counter-Plaintiffs have failed to make full payment. Id. ¶¶ 10-15. Through the instant action, APCC seeks monetary damages in the amount of $339,727.50, exclusive of interest, as recompense for services rendered. Id. ¶¶ 14, 18.

Defendants/Counter-Plaintiffs responded to the Complaint on July 27, 2009. See Answer of Def. the Sprenger Lang Foundation, Docket No. [7]; Answer of Defs. Jane Lang and Paul Sprenger ("Indiv. Defs.' Answer"), Docket No. [8]. In addition to responding to the allegations set forth in the Complaint, Counter-Plaintiffs asserted a single counterclaim for breach of implied contract based upon APCC's alleged failure to perform and complete the services for which it was engaged in a timely and satisfactory manner. Indiv. Defs.' Answer at 7-8. The Foundation did not assert a counterclaim of its own.

An Initial Scheduling Conference was held on September 16, 2009, at which time a discovery schedule was set. See Scheduling & Procedures Order, Docket No. [13]. Discovery was initially scheduled to close on March 24, 2010. Id. at 6. Upon APCC's motion, the discovery deadline was later extended to April 23, 2010. Min. Order (Mar. 18, 2010). Subsequently, discovery was further extended until May 7, 2010 for the limited purpose of completing Defendants/Counter-Plaintiffs' depositions. Mem. Order (Apr. 26, 2010), Docket No. [33], at 11. With that sole exception, discovery otherwise remained closed effective April 23, 2010. Id.

Following the close of discovery, Defendants/Counter-Plaintiffs filed motions for summary judgment. See Mot. for Summ. J. by the Sprenger Lang Foundation, Docket No. [36]; Mot. for Summ. J. by Jane Lang and Paul Sprenger, Docket No. [37]. Those motions have been resolved by the Court, see Am. Property Constr. Co. v. Sprenger Lang Found., __ F. Supp. 2d __, 2011 WL 810092 (D.D.C. Mar. 9, 2011); Am. Property Constr. Co. v. Sprenger Lang Found., __ F. Supp. 2d __, 2011 WL 791321 (D.D.C. Mar. 8, 2011), and the Court assumes familiarity with those opinions.

II. LEGAL STANDARDS AND DISCUSSION

Through the present motion, APCC raises a series of complaints pertaining to Defendants/Counter-Plaintiffs' alleged discovery-related failures. The Court addresses each complaint in turn.

A. Defendants/Counter-Plaintiffs' Hybrid Fact/Expert Witnesses

Defendants/Counter-Plaintiffs have identified four individuals whom they propose to call to provide some form of expert testimony at the trial in this action, only three of whom are immediately relevant here-Eamon Seidel ("Seidel"), of Case Design/Remodeling, Inc.,*fn3 Shane Lilly ("Lilly"), of J&R Roofing, and Douglas Clark ("Clark") of Specialty Pool & Fountain, Inc.*fn4

Defs.' Expert Identification at 2-3. APCC contends that Seidel, Lilly, and Clark should all be precluded from testifying at trial due to Defendants/Counter-Plaintiffs' admitted failure to produce written expert reports for any of these witnesses. However, because these witnesses are not required to prepare expert reports, they cannot be precluded from testifying at trial on this basis. Nevertheless, because Defendants/Counter-Plaintiffs have represented that all three witnesses will be called in a particular capacity and their testimony offered for a limited purpose, their testimony at trial must not exceed the metes and bounds identified herein.

Under the Federal Rules of Civil Procedure, a written expert report is not required of all witnesses expected to provide expert testimony, but only those that are "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." Fed. R. Civ. P. 26(a)(2)(B) (2008) (emphasis added).*fn5 The line between an expert retained to provide expert testimony and an expert retained for some other purpose, while perhaps clear in the abstract, is often muddled in practice. The issue most often arises where, as here, a party seeks to introduce the testimony of a so-called "hybrid fact/expert witness"-that is, someone whose testimony turns in part on scientific, technical, or other specialized knowledge, but who ...


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