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Riverside Storage and Recycling Center, LLC v. City of Federal Heights

United States District Court, D. Colorado

October 31, 2017

RIVERSIDE STORAGE AND RECYCLING CENTER, a Colorado Limited Liability Corporation, CRAIG SHRIVER, KEVIN COX, JOHN HOOD, and KIMBERLY HILLS, foreign limited liability company, Plaintiffs,
v.
THE CITY OF FEDERAL HEIGHTS, a Colorado Municipal Corporation, Defendant.

          ORDER ON PRETRIAL MOTIONS TO EXCLUDE EXPERTS

          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on two motions: (1) Defendant's Motion to Exclude Plaintiffs' Experts Stephen Thomas, Craig Shriver, and Ken Essex Pursuant to Rule 702 (Doc. # 152), and (2) Plaintiffs' Motion to Exclude Defendant's Experts Chris Tremaine and Kelly Spence Pursuant to Rule 702 (Doc. # 159). For the reasons outlined below, the Court denies in part and grants in part Defendant's motion and denies in full Plaintiffs' motion.

         I. BACKGROUND

         In September 2013, the City of Evans experienced significant floods, which devastated mobile home parks in the city. The mobile homes in these parks were flooded for at least six days. After contracted inspectors surveyed the damaged homes, pursuant to the authority of the Colorado Department of Public Health and Environment[1], Evans' building official declared the homes to be “Tier 1 debris, ” dangerous, and in need to be destroyed.

         Plaintiffs are individuals and entities active in the mobile home industry. Plaintiff Craig Shriver (“Plaintiff Shriver”) owns and manages Plaintiff Riverside Storage and Recycling Center (“Plaintiff Riverside”). In the spring of 2015, Plaintiff Shriver and Plaintiff Riverside contracted with two mobile home parks in Evans to clean up and take possession of mobile homes impacted by the flooding. Of the mobile homes that had been identified by Evans to be destroyed, Plaintiff Shriver removed and destroyed some but removed and rehabilitated others. Also in early 2015, Plaintiff Riverside contracted with Plaintiff Kimberly Hills to bring fifty mobile homes to Kimberly Hills' mobile home park in the City of Federal Heights (“Defendant City”) in return for a $6, 000 per home incentive payment.

         Plaintiff Shriver applied for set permits[2] so that he could move the rehabilitated mobile homes into the Defendant City at Plaintiff Kimberly Hills' mobile home park. Although Plaintiff Shriver disclosed to the Defendant City that the homes had been affected by a flood, he did not disclose their Tier 1 designation by Evans. Unaware of the Tier 1 designation by Evans, Defendant City issued the set permits to Plaintiff Shriver.

         On July 24, 2014, after having inspected the homes for which set permits had been issued, Defendant City wrote a letter to the mobile home parks and setters stating that it had come to its attention that certain flood-affected mobile homes were being brought into the City. Defendant City attached its “Used Manufactured Home Set Inspection Policy, ” which requires certain disclosures, repairs, and inspections for flood-damaged homes. On August 19, 2014, Defendant City learned of the Evans's Tier 1 designation of these mobile homes through VIN numbers lists kept by a Colorado state agency.

         Plaintiffs allege that Defendant City then voided the mobile home set permits, removed occupancy insignias, and ordered Plaintiffs to remove the homes. (Doc. # 78.) Plaintiffs assert procedural due process violations[3] by Defendant City in violation of 42 U.S.C. § 1983. (Id.)

         On September 16, 2016, Plaintiffs filed their expert disclosures pursuant to Fed.R.Civ.P. 26(a)(2). (Doc. # 152-1.) Relevant here, Plaintiffs identified retained expert witness Steve Thomas and non-retained expert witness Craig Shriver (Plaintiff Shriver). On October 14, 2016, Defendant City filed its expert disclosures, which included Chris Tremaine and Kelly Spence of Tremaine Enterprises, Inc. as retained expert witnesses. (Doc. # 159-13.) Tremaine and Spence's report (the “TEI Report”) was attached. (Doc. # 159-3-5.)

         On October 25, 2016, Plaintiffs filed their expert rebuttal disclosures. (Doc. # 152-4.) In addition to previously-identified retained expert witness Thomas and non-retained expert witness Plaintiff Shriver, Plaintiffs also identified a new non-retained rebuttal expert witness, Ken Essex. (Id.) Defendant City's expert rebuttal disclosures are not relevant to the instant motions.

         Defendant City filed its Motion to Exclude Plaintiffs' Experts Stephen Thomas, Craig Shriver, and Ken Essex Pursuant to Rule 702 on August 14, 2017. (Doc. # 152.) Plaintiffs filed their Motion to Exclude Defendant City's Experts Chris Tremaine and Kelly Spence Pursuant to Rule 702 on August 24, 2017. (Doc. # 159.) The parties timely filed responses and reply briefs on each motion. (Doc. ## 161, 162, 164, 165.)

         II. LEGAL STANDARD

         Under Daubert, the trial court acts as a “gatekeeper” by reviewing a proffered expert opinion for relevance pursuant to F.R.E. 401, and reliability pursuant to F.R.E. 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-95 (1993); see also Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). The proponent of the expert must demonstrate by a preponderance of the evidence that the expert's testimony and opinion is admissible. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009; United States v. Crabbe, F.Supp.2d 1217, 1220-21 (D. Colo. 2008); F.R.E. 702 advisory comm. notes. This Court has discretion to evaluate whether an expert is helpful, qualified, and reliable under F.R.E. 702. See Goebel, 214 F.3d at 1087; United States v. Velarde, 214 F.3d 1204, 1208-09 (10th Cir. 2000).

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides that a witness who is qualified as an expert by “knowledge, skill, experience, training, or education” may testify if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...

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