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Motion in Limine: Case No. 02CW38
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Motion in Limine: Case No. 02CW38
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Last modified
1/26/2010 4:41:46 PM
Creation date
7/30/2009 1:08:44 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8230.2B2
Description
Discovery
State
CO
Basin
Colorado Mainstem
Water Division
4
Date
8/29/2003
Author
Ken Salazar, Susan J. Schneider, Lori J. Coulter
Title
Motion in Limine: Case No. 02CW38
Water Supply Pro - Doc Type
Court Documents
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P.2d 217, 221 (Colo.App. 1977). A motion in limine allows the trial court to consider the <br />exclusion of evidence that may be logically, but not legally, relevant. Id. Because a <br />motion in limine shortens trial, simplifies issues, and reduces the possibility of mistrial, <br />its function is not unlike the pre-trial conference, and it may accomplish similar ends. Id. <br />Rule 26(a)(2) requires a testifying expert to produce before trial a written report <br />or summary of the expected testimony, including "a complete statement of all opinions to <br />be expressed and the basis and reasons therefor; the data or other information considered <br />by the witness in forming the opinions; any exhibits to be used as a summary of or <br />support for the opinions; the qualifications of the witness, including a list of a11 <br />publications authored by the witness within the preceding ten years; the compensation <br />for the study and testimony; and a listing of any other cases in which the witness has <br />testified as an expert at trial or by deposition within the preceding four years." C.R.C.P. <br />26(a)(2)(B)(I) (2002). The scope of discovery requires an expert to disclose material <br />"considered" by him, not just "facts known" and "opinions held", as the old rule required. <br />Gall ex rel. Gall v. Jamison, 44 P.3d 233, 235 (Colo. 2002). <br />The CRWCD completely failed to comply with any requirements of 26(a)(2). <br />The CRWCD filed a 26(a)(2) listing Mr. Kuhn as an expert in water rights administration <br />and in the State of Colorado's entitlement to beneficially use the waters of the Colorado <br />River and its tributaries and stating that Mr. Kuhn's opinions will ultimately concern the <br />legal definitions of "maximum utilization" and "compact impairment." The CRWCD has <br />never filed a written report or summary containing any statements of the opinions to be <br />expressed by Mr. Kuhn and the basis and reasons therefor; the data or other information <br />considered by him in forming the opinions; any exhibits to be used as a summary of or <br />support for the opinions; and Mr. Kuhn's qualifications and compensation. <br />Rather, CRWCD's 26(a)(2) disclosures stated that the opinions to be expressed <br />may be found in the transcript of the CWCB's hearing regarding the Upper Gunnison <br />River Water Conservancy District's RICD application. However, nothing in that 220- <br />page transcript resembles a written report or summary containing statements of the <br />opinions to be expressed by Mr. Kuhn and the basis and reasons therefor; the data or <br />other information considered by him in forming the opinions; any exhibits to be used as a <br />summary of or support for the opinions or Mr. Kuhn's qualifications and compensation. <br />Even if the relevant information were found within the 220-page transcript from the <br />hearing before the Colorado Water Conservation Board, the CRWCD has still failed to <br />meet the specific requirements of C.R.C.P. 26(a)(2). Expert witnesses for the State and <br />the Applicant also appeared at that hearing, but nonetheless met the disclosure <br />requirements of C.R.C.P. 26(a)(2) instead of inerely stating that the substance of their <br />testimony could be found somewhere in the 220-page transcript. <br />Failure to disclose the opinions of experts or failure to supplement the expert's <br />responses to discovery when additional information becomes known, can result in the <br />imposition of sanctions, including an order limiting the scope of an expert's testimony at <br />trial. Locke v. Vanderark 843 P.2d 27, 29 (Colo.App. 1992); Daniels v. Rapco Foam, <br />Inc., 762 P.Zd 717 (Colo. App. 1988); Great Western Sugar Co. v. Northern Natural Gas
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