Colorado River Water Conservation District's Response to Motion in Limine Case No. 02CW38

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District Court, Water Division 4, Colorado Case No. 02CW38; Application of Upper Gunnisoa River Water Conservancy District, m Gunnison Coimty, Co]nrado Colorado River VVater Conservaflon Distr'rt's Response to Motion in Limme Page 2 o f 6 and "compact development", (3) Mr. Kuhn will not provide expert test:imony on scientific matters, but rather opinion testimony based on his specialized knowledge of factual matters that are at issue in this case, and (4) W. Kuhn's anticipated testimony is not cumulative because the River District can provide the Court with a unique perspective on disputed matters at issue. A. The River District's Ezpert Disclosure Complies with C.RC.P. 26(a)(21. 1. The CWCB and Engineers argue that Mr. Kuhn's expert testimony should be excluded because the River District failed to comply with the requirements of C.R.C.P. 26(a)(2)(B)(1). The CWCB and Engineers argument is based on the wrong section of Rule 26(a)(2). Subsection (B)(I) of that rule is not applicable to expert testimony offered by W. Kuhn because Mr. Kuhn is not an expext witness who is "retained or specially employed to provide expert testirnony" or "whose duties as an employee of the party regularly involve giving expert testimony." 2. Mr. Kuhn is an employee of the River District. He has been employed by the River District for 22 years, and he has served as the River District's General Manager for the past seven years. Although Mr. Kuhn is an expert in the subject matters identified in the River District's disclosures, he was not retained or specially employed to provide expert testimony nor do lus duties as an employee of the River District regularly involve giving expert testimony. For this reason, the less-detailed provisions of C.R.C.P. 26(a)(2)(B)(In applyto the River District's disclosure of Mr. Kuhn's expert testimony, not C.R.C.P. 26(a)(2)(B)(1) as argued by the CWCB and Engineers. 3. C.R.C.P. 26(a)(2)(BxII) raquires a report or summary of the expert's testimony, includi.ng the expert's qualifications and a statement describing the substance of all opinions to be expressed and the basis and reasons therefor. An expert report is not required. See Gall v. Jamison, 44 P.3d 233, 235 (Colo. 2002). The River DistricYs C.R.C.P. 26(a)(2) Disclosure filed on June 23, 2003 substantially complies with all applicable reqirirements. 4. The River District's C.R.C.P. 26(a)(2) Disclosure includes a statement of Mr. Kuhn's qualifications and a summary of Mr. Kuhn's anticipated testimony and the bases therefor. In addition, the Disclosure indicates that the substance of Mr. Kuhn's testimony will be substantially the same as the testimony he provided at the CWCB's hearing one year ago, on September 10, 2002. The Attomey General signing the Motion in Limine and at least two of the CWCB's expert witnesses in this case were present at the CWCB hearing. Furthermore, a transcript of the CWCB heari.ng was