United States District Court, D. Colorado
ORDER REGARDING PLAINTIFFS' REQUEST FOR
SUPPLMENTAL EXPERT REPORTS
P. Gallagher, United States Magistrate Judge
matter comes before the Court on Plaintiffs' request for
supplemental expert reports (ECF #376) (which was
referred to this Magistrate Judge (ECF #381)), Aspen
Highland's amended response (ECF #375), the Marriott
Defendants' opposition (ECF #377), and Marriott's
restricted documents (ECF #378). The Court has reviewed each
of the aforementioned documents, responses, replies, and any
attachments. The Court has also considered the entire case
file, the applicable law, and is sufficiently advised in the
premises. The Court ORDERS as follows DENYING the
and procedural background:
“On October 26, 2018, Plaintiffs served reports from
experts with whom they had been working for over a year:
Chekitan Dev, a professor and hospitality industry
“branding” expert who addresses so-called
“halo” and “horn” effects of the MVC
Affiliation, and Jonathan Simon, a supposed hospitality
industry financial expert who purports to quantify the
alleged “halo” effect. On December 28, 2018, the
Marriott Defendants submitted rebuttal expert reports from
Ceridwyn King, a hospitality industry branding expert who
rebuts the Dev report, and Mark Israel, an economist who
rebuts both the Dev and Simon reports. Id. ¶ 3.
As part of their rebuttal of the supposed halo/horn effect,
King and Israel cite data from Sales and Marketing Surveys
taken from 2013 to 2018.
response (ECF #377, pp. 1-2) (internal citations removed).
The Sales and Marketing Surveys (SMS) are yet another set of
surveys in a case chock full of surveys. In the SMS, Marriott
asks various individuals, e.g., owners who have purchased,
owners who have not purchased, non-owners who have purchased
and non-owners who have not purchased, to identify important
factors in their decision making. See surveys (ECF
#378). Not surprisingly, one of the factors queried is
regarding owner availability to utilize a Ritz-Carlton Club.
determining to utilize the SMS for expert rebuttal, Marriott
then disclosed the existence of the SMS on 12/28/2018. This
led to some consternation and disagreement between the
parties over the topic, landing us here.
believe that the SMS and associated documents justify
Plaintiffs retaining a new expert, to analyze and opine on
the data and that Plaintiffs are justified in their need and
timing of that need pursuant to Federal Rules of Civil
Procedure 16(b)(4) and 6(b)(1)(B). Marriott opposes (ECF
#377). Aspen Highlands does not oppose so long as they are
not affected. See Aspen Highland's amended
response (ECF #375).
Before delving into-if I get there- the various arguments for
and against allowing Plaintiffs another expert to address
this topic, the first issue is whether Plaintiffs and Marriot
entered into an agreement to informally resolve this
conflict-thus precluding the Court's involvement.
Marriott asserts that, while it disputed Plaintiffs'
position that the SMS survey needed to be provided prior to
December 28, 2018, Marriott wanted to avoid another
protracted discovery dispute and thus entered into an
agreement to address and move beyond the issue. See
Marx declaration (ECF #377-1). Plaintiffs do not dispute that
there was an agreement touching on this issue but do dispute
the contours of that agreement, in particular as to whether
the agreement precluded Plaintiffs from designating a new
expert on the topic. See Plaintiffs' request
(ECF #376, p. 7).
outlines what is believed were the specifics of an agreement
in a letter from Counsel Marx to Plaintiffs' Counsel on
January 11, 2019. The terms of the proposed agreement are:
In terms of additional documents, we will produce on or
before Tuesday, January 15, the backup data and documents
that were used to prepare the SMS Reports.
We will agree to make Messrs. Peters and Sonberg available
for deposition in our Orlando offices (we can arrange a video
conference if you wish) on the following dates (we propose
that they be done on the same day): January 28, February 1,
4, 5, 7 or 8. Their depositions will be limited to the
template SMS Survey and the SMS Reports (Peters) and the MVC
Points pricing spreadsheets (Sonberg).
We will agree that your experts Simon and Dev (but not
Robinson) may submit amended affirmative reports on or before
14 days after the depositions of Messrs. Peters and Sonberg
are completed; however, such amendments must be limited to
the SMS Survey, SMS Reports and the MVC Points pricing
spreadsheets. Our experts King and Israel (but not Dunec or
Tantleff) will submit similarly limited rebuttal reports
within 14 days of receiving your amended reports.
We will agree to defer the deadline for completion of expert
depositions for 45 days after the service of ...