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Browe v. CTC Corp.

United States District Court, D. Vermont

December 1, 2017

DONNA BROWE, TYLER BURGESS, BONNIE JAMIESON, PHILIP JORDAN, LUCILLE LAUNDERVILLE, and THE ESTATE OF BEVERLY BURGESS, Plaintiffs,
v.
CTC CORPORATION and BRUCE LAUMEISTER, Defendants.

         OPINION 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 & 163)

          Christina Reiss, Chief Judge.

         Plaintiffs 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.

         Pending 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, respectively.

         John D. Stasny, Esq. and Patrick J. Bernal, Esq. represent Plaintiffs. A. Jay Kenlan, Esq. represents Defendants.

         I. Factual and Procedural Background.

         A. Defendants' Expert Declarations from Timothy Voigt and James Herlihy.

         Defendants assert that CTC's December 1990 deferred compensation plan (the "1990 Plan"), which was amended and superseded in 1997 (the "1997 Plan") (collectively, the "Plan"), is a "top hat" plan exempt from the vesting, 29 U.S.C. §§ 1051-61, funding, id.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.

         B. Defendants' Disclosure of Expert Arthur Wolfe.

         On May 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.

         Pursuant 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.

         Pursuant 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.)

         On 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.

         II. Conclusions of ...


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