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Mullin v. Hyatt Residential Group, Inc.

United States District Court, District of Colorado

March 27, 2015

IAN MULLIN, Plaintiff,


William J. Martínez United States District Judge

Plaintiff Ian Mullin brings this action against Defendants Hyatt Residential Group, Inc. and Hyatt Residential Marketing Corporation (together “Defendants”) for wrongful discharge in violation of public policy. (ECF No. 22.) This matter is before the Court on Defendants’ Motion in Limine to Exclude Testimony of Erin Toll (“Motion”). (ECF No. 54.) On March 6, 2015, Plaintiff filed its Response to the Motion, and Defendant has declined to file a Reply.[1] (ECF No. 58.) For the reasons set forth below, the Motion is granted in part and denied in part.


The Hyatt Grand Aspen (“HGA”) is a luxury condominium resort owned by Grand Aspen Holdings, LLC, a four-member limited liability corporation (“the Ownership Group”). (ECF No. 27 at 3-4.) In 2004, Defendants contracted with the Ownership Group to act as its timeshare marketing and sales agent at HGA. (Id. at 4.) In June 2010, Plaintiff, a licensed Colorado real estate broker, was hired by Defendants to act as the director of sales and marketing for timeshares at HGA. (Id. at 3-4.) Plaintiff asserts that, as a licensed real estate broker, he had a statutory duty to ensure that all purchase offers were disclosed to the Ownership Group. (ECF No. 30 at 13.) However, Plaintiff eventually became aware that Defendants had not communicated every offer to the Ownership Group. (Id. at 14.) In response, Plaintiff disclosed some of the withheld purchase offers to the Ownership Group which allegedly resulted in his termination. (ECF No. 22.)


A district court has “wide latitude . . . in exercising its discretion to admit or exclude expert testimony, ” and Federal Rule of Evidence 702 requires courts to act as gatekeepers to ensure the reliability and relevancy of such testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

In their Motion, Defendants seek to exclude the testimony of Plaintiff’s expert, Erin Toll. (ECF No. 54.) Defendants argue that Ms. Toll’s opinions are inadmissible legal conclusions that will not be helpful to the jury. (Id. at 5-7.) Defendants seek exclusion of Ms. Toll’s supplemental report on the alternative basis that Plaintiff failed to comply with the Scheduling Order in this matter. (Id. at 8.) The Court addresses each argument below.

A. The Admissibility of Ms. Toll’s Opinions

Defendants argue that the entirety of Ms. Toll’s expert report consists of inadmissible legal arguments regarding the parties’ compliance with Colorado law. (Id. at 2.) “[T]estimony on the ultimate factual questions aids the jury in reaching a verdict; testimony which articulates and applies the relevant law, however, circumvents the jury’s decision-making function by telling it how to decide the case.” Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). Thus, an expert witness may not attempt to “define the legal parameters within which the jury must exercise its fact-finding function” by opining as to ultimate legal issues. Id. at 809-10; see also Marx & Co., Inc. v. Diners’ Club Inc., 550 F.2d 505, 509-10 (2d Cir. 1977) (holding that “[i]t is not for witnesses to instruct the jury as to applicable principles of law, but for the judge”). Yet the line between permissible and impermissible expert testimony regarding the law is a narrow one. An expert may refer to the law in offering an opinion without that reference rendering the testimony inadmissible. Specht, 853 F.2d at 809.

The Court has reviewed Ms. Toll’s report and agrees with Defendants that her opinions primarily reflect legal conclusions. (ECF No. 54-2.) The thrust of Ms. Toll’s report is the following: (1) Colorado’s brokerage statutes reflect important public policy goals; (2) Plaintiff was a transaction-broker as defined by Colorado law; (3) Plaintiff complied with his statutory duties as a transaction-broker; (4) Defendants instructed Plaintiff to disregard the law governing brokers; (5) Defendants or their agents violated the law; and (6) Plaintiff was terminated for complying with the law. (See generally id.) The majority of Ms. Toll’s opinions would improperly instruct the jury on the applicable law. However, excluding Ms. Toll’s testimony entirely is too drastic a remedy; rather, the Court finds that any of her proposed testimony which impermissibly intrudes on the proper role of the jury can be cured by limiting Ms. Toll’s testimony to her opinions as to those practices which are generally acceptable in the real estate industry.

By way of example only, the Court would permit Ms. Toll to testify that, under generally accepted real estate practices, Plaintiff’s presentation of the allegedly withheld purchase offers to the Ownership Group was proper, and that Defendants’ withholding of those offers was improper. Ms. Toll may also testify that Plaintiff would commonly be referred to as a transaction-broker in the real estate industry based on his role with Defendants, and that transaction-brokers are generally expected to comply with certain duties, including the duty to timely disclose all offers to the property owner. These opinions would fall within the ambit of acceptable expert testimony in this Circuit. See Zuchel v. City and County of Denver, Colorado, 997 F.2d 730, 742-43 (10th Cir. 1993) (holding testimony admissible where, in an excessive force trial, expert testified that the police officer's use of deadly force was inappropriate not based on state or constitutional law, but rather "based on [his] understanding of generally accepted police custom and practice in Colorado and throughout the United States”).

Ms. Toll may not, however, opine that the parties’ conduct was either lawful or unlawful, that Colorado law required the parties to take or refrain from taking any particular action, or that Plaintiff’s status as a transaction-broker is statutorily derived. Nor may Ms. Toll testify that the Colorado brokerage statutes are sufficient to form the basis of a claim for wrongful discharge in violation of public policy, which the Court has already addressed in its Order Denying Defendants’ Motion for Summary Judgment. (ECF No. 60.) Lastly, Ms. Toll may not testify as to why Plaintiff was terminated, or that Defendants had either implicitly or explicitly insisted that Plaintiff disregard his duties as a broker. Such matters would be beyond Ms. Toll’s personal or professional knowledge and experience. Kumho Tire, 526 U.S. at 150 (noting that “the relevant reliability concerns [for expert testimony] may focus upon personal knowledge or experience”).

This ruling is not intended to be an exhaustive list of all proper and improper testimony. It should instead guide the parties as to the boundaries of Ms. Toll’s opinions and how those opinions should be framed during trial. Because the Court finds that careful compliance with this Order should cure any evidentiary defects in Ms. Toll’s opinions, and that her opinions, ...

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