United States District Court, D. Vermont
DONNA BROWE, TYLER BURGESS, BONNIE JAMIESON, PHILIP JORDAN, LUCILLE LAUNDERVILLE, and THE ESTATE OF BEVERLY BURGESS, Plaintiffs,
CTC CORPORATION and BRUCE LAUMEISTER, Defendants.
AND ORDER GRANTING IN PART PLAINTIFFS' MOTION IN LIMINE
TO EXCLUDE THE OPINIONS OFFERED BY TIMOTHY VOIGT AND JAMES
HERLIHY AND CONDITIONALLY DENYING PLAINTIFFS' MOTION IN
LIMINE TO EXCLUDE TESTIMONY FROM ARTHUR WOLFE (DOCS. 162
Christina Reiss, Chief Judge.
Donna Browe, Tyler Burgess, Bonnie Jamieson, Philip Jordan,
Lucille Launderville, and the Estate of Beverly Burgess
(collectively, "Plaintiffs") bring this action
under the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. §§ 1001-1191c,
against Defendants CTC Corporation ("CTC") and
Bruce Laumeister (collectively, "Defendants").
Plaintiffs allege that Defendants failed to adequately fund
and wrongfully denied them pension benefits owed under
CTC's deferred compensation plan and that Defendants
breached various fiduciary duties to them. Defendants
counterclaim that Plaintiff Lucille Launderville should be
held jointly and severally liable for Plaintiffs' claims
and indemnify Defendants for her share of their liability, if
any, under ERISA.
before the court are Plaintiffs' motion in
limine to exclude from trial opinions given by
Defendants' experts Timothy Voigt and James Herlihy (Doc.
162) and Plaintiffs' motion in limine to exclude
from trial testimony from Defendants' expert Arthur Wolfe
(Doc. 163). Plaintiffs filed their motions on October 27,
2017 and October 30, 2017, respectively. Defendants opposed
both motions on November 28, 2017 and November 10, 2017,
Stasny, Esq. and Patrick J. Bernal, Esq. represent
Plaintiffs. A. Jay Kenlan, Esq. represents Defendants.
Factual and Procedural Background.
Defendants' Expert Declarations from Timothy Voigt and
assert that CTC's December 1990 deferred compensation
plan (the "1990 Plan"), which was amended and
superseded in 1997 (the "1997 Plan") (collectively,
the "Plan"), is a "top hat" plan exempt
from the vesting, 29 U.S.C. §§ 1051-61, funding,
id. §§ 1081-86, and fiduciary
responsibility, id. §§ 1101-14,
requirements of ERISA. In support of their position,
Defendants disclosed expert witness declarations by Timothy
Voigt and James Herlihy on May 20, 2016 and February 16,
2017, respectively. In their expert declarations, Mr. Voigt
and Mr. Herlihy opine that both the 1990 and 1997 Plans are
"non-qualified 'Top-Hat' plans, exempt from the
reporting and disclosure, participation and vesting, funding,
and fiduciary responsibility applicable to qualified ERISA
plans." (Doc. 162-1 at 11, ¶ 15); (Doc. 162-2 at 9,
¶ 12.) Mr. Herlihy bases his opinion on his
"regular and extensive experience with legal advisors in
the area of nonqualified plan and 409(A) compliance"
(Doc. 162-1 at 6, ¶ 7), whereas Mr. Voigt bases his
opinion on his "regular and extensive experience with
IRS and Dept. of Labor regulatory requirements[.]" (Doc.
162-2 at 6, ¶ 7.) Neither witness claims to have
personally drafted a "top hat" plan.
Defendants' Disclosure of Expert Arthur Wolfe.
19, 2016, Plaintiffs disclosed Richard Heaps as an expert
economist. Accompanying Plaintiffs' disclosure was a
report prepared by Mr. Heaps in which he calculated and
estimated the funding and fund growth provisions of the Plan
as of May II, 2016. Mr. Heaps was qualified as an expert and
testified during the court's May 23, 2016 writ of
attachment hearing. According to the parties' Stipulated
Discovery Order, the deadline for deposing Plaintiffs'
expert witnesses was August 11, 2017. Defendants did not
depose Mr. Heaps.
to the Stipulated Discovery Order, Defendants were required
to disclose their expert reports on or before July 14, 2017,
with depositions of Defendants' expert witnesses
completed by August 11, 2017. On September 12, 2017, the
court held a pretrial conference in which the parties stated
that they were trial-ready. Defendant did not disclose an
intention to call an additional expert witness. The court
scheduled a bench trial beginning on December 6, 2017.
to Fed.R.Civ.P. 26(e), on October 10, 2017, Plaintiffs
supplemented their expert disclosure of Mr. Heaps. The
disclosure included a revised report from Mr. Heaps, which
updated his estimates of the Plan's fund values as of
September 18, 2017. Plaintiffs allege, and Defendants do not
dispute, that "[t]he only material difference between
the [initial and revised] reports" is that the revised
report updates the calculations, "given the passage of
time between the May 2016 hearing and the anticipated trial
date of December 2017." (Doc. 163 at 3.)
October 20, 2017, Defendants provided a list of witnesses and
exhibits which, for the first time, identified economist
Arthur Wolfe as an expert witness that Defendants may call at
trial to rebut the testimony of Mr. Heaps. After Plaintiffs
moved to exclude Mr. Wolfe on October 30, 3017, Defendants
disclosed an expert report for him on November 10, 2017.
Conclusions of ...