Allina Health System v. County of Washington
| Decision Date | 13 July 2021 |
| Docket Number | 82-CV-18-2029 |
| Parties | Allina Health System, Petitioner, v. County of Washington, Respondent. |
| Court | Tax Court of Minnesota |
This matter came on for hearing before the Honorable Jane N Bowman, Judge of the Minnesota Tax Court, on petitioner Allina Health System's motion to exclude expert testimony.
Nicholas A. Furia, Law Offices of Nicholas A. Furia, PLLC represents petitioner Allina Health System.
Stuart V. Campbell, Assistant County Attorney, represents respondent Washington County.
ORDER ON PETITIONER'S MOTION IN LIMINE
Allina Health System moves the court to exclude the expert testimony of Gary Cavett as untimely and prejudicial. Washington County opposes the motion, arguing Mr. Cavett's testimony characterized as rebuttal evidence, is admissible under the proper standard. The court, upon all the files, records, and proceedings herein, now makes the following:
1. Allina Health System's motion in limine is granted.
2. Washington County is precluded from offering Mr. Gary Cavett's expert testimony at trial.
IT IS SO ORDERED.
This case concerns Allina's claim-in part-that its Stillwater facility was exempt from property tax as of January 2, 2017, as a public hospital and a purely public charity as defined in article X section 1 of the Minnesota Constitution and Minnesota Statute section 272.02.[1] The court filed a Scheduling Order on April 15, 2019, which set many deadlines in this matter, including for the disclosure of expert witnesses (no later than November 29, 2019), the exchange of expert reports (February 10, 2020), and the filing of witness and exhibit lists (June 29, 2020).[2] In July 2020, Washington County filed a witness list, naming as fact witnesses a commercial assessor, an environmental specialist, and any and all witnesses identified in Allina's witness list.[3] The County also "reserve[d] the right to … call rebuttal witnesses as necessary." [4] The County's witness list did not include anyone providing expert testimony.
In January 2021, after all pretrial deadlines had passed and the matter had long been trial-ready, Washington County moved to consolidate this case with one concerning the subsequent year and to amend the Scheduling Order, asking that all pretrial deadlines-including the discovery and the expert report exchange deadlines-be revived and extended into 2022.[5] Allina Health Sys. v. Cnty. of Washington, No. 82-CV-19-905, 2021 WL 1288267, at *2 (Minn. T.C. Apr. 2, 2021). The basis for the County's motion was that a new lawyer had taken over the case and wished to pursue a different legal strategy, one that involved further developing the record for summary judgment. Id. In April 2021, the court denied the County's motion, owing to the Scheduling Order's express provision that a change in counsel does not constitute good cause to extend deadlines. Id.
Approximately seven weeks later, Washington County filed an Amended Witness List noting that it might call Gary Cavett, a CPA and healthcare industry consultant, as an expert witness at trial.[6] Allina subsequently brought the current motion to exclude Mr. Cavett's testimony, arguing Washington County had noticed its expert testimony far beyond the deadline set forth in the Scheduling Order.[7] Washington County opposes the motion, arguing that Mr. Cavett's testimony will be rebuttal evidence, which is not governed by the Scheduling Order.[8] The County further argues Mr. Cavett's testimony should not be precluded under the standard set forth in Dennie v. Metropolitan Medical Center, 387 N.W.2d 401 (Minn. 1986).[9] In reply, Allina argues that expert testimony from Mr. Cavett is not correctly characterized as "rebuttal evidence," that allowing undisclosed and late-noticed expert testimony would be highly prejudicial to Allina, and-in any event-that exclusion is warranted under pertinent Dennie factors.[10] See id. The parties argued their respective positions at a remote hearing on June 28, 2021.[11] The court grants Allina's motion.
To properly analyze Allina's motion, the court must first accurately characterize the testimony anticipated from Mr. Cavett.
Washington County claims the testimony of Mr. Gary Cavett, a CPA and healthcare industry consultant, will be rebuttal.[12] Farmers Union Grain Terminal Ass'n v. Indus. Elec. Co., 365 N.W.2d 275, 277 (Minn.App. 1985) (citing Van Tassel v. Patterson, 235 Minn. 152, 160, 50 N.W.2d 113, 117 (1951)). Rebuttal testimony is typically presented after both parties have introduced their cases-in-chief. See Minn. Stat. § 546.11(1)-(3) (2020).
The court concludes that Mr. Cavett's anticipated testimony is not rebuttal evidence. Instead, Mr. Cavett's testimony is properly categorized as evidence that should have been proffered as part of Washington County's case-in-chief. Indeed, the County candidly acknowledges that it does not anticipate rebutting any of Allina's factual evidence.[13] Thus, the County seeks to introduce the expert testimony of Mr. Cavett to "review documents disclosed by Allina in discovery and to listen to the testimony of Allina's witnesses at trial and to place those factual predicates in context based on his expert knowledge of the healthcare industry." [14] In other words, the County seeks to introduce Mr. Cavett's expert testimony, not to rebut facts, but to advance its own theory of the case. This is exactly the type of testimony properly contained in a case-in-chief, which requires prior notice and disclosure of a report under the governing Scheduling Order.
We will not allow Washington County to mischaracterize its proposed case-in-chief expert testimony as rebuttal. To allow otherwise would eviscerate the distinction between primary and rebuttal witnesses.
Having determined Mr. Cavett's testimony is properly categorized as case-in-chief evidence, the next question is whether it should be excluded. Trial courts are cautioned that "expert testimony should be suppressed for failure to make a timely disclosure of the expert's identity only where 'counsel's dereliction [in failing to make the disclosure] is inexcusable and results in disadvantage to [the] opponent.'" Dennie, 387 N.W.2d at 405. Courts should exclude expert testimony only in "the most compelling circumstances" and after considering the following factors:
Id. at 406. The Minnesota Supreme Court has recognized that "[s]ome of the Dennie factors are context specific, which means that certain factors will apply in some cases but not others," and has approved tailoring their use to the particular matter presented. Macy's Retail Holdings, Inc. v. Cnty. of Hennepin, 899 N.W.2d 451, 459 (Minn. 2017).[15]
i. When the party calling the expert notified the opposing party, when the attorney controlling the case assumed control of the case, and whether a party intentionally and willfully failed to disclose the existence of a trial expert
The County's obvious purposes (1) to circumvent in several respects the Court's Scheduling Order, and (2) to evade the Court's recent determination that a change of counsel did not warrant altering the deadlines set forth in the Scheduling Order are the dominant considerations in the present case.
After the case was filed on April 27, 2018, the Washington County Attorney's Office took up the defense, see Minn. Stat. § 278.05, subd. 2 (2020), formulated its strategy, and completed all pretrial filings. As relevant here, the County determined that it would proceed with fact witnesses only and, accordingly, did not identify an expert witness by the November 29, 2019 deadline for doing so. The County completed its pretrial filings in July 2020. The County's current counsel, also of the County Attorney's Office, took control of the case during August 2020.[16]Contrary to his predecessor, current counsel concluded that the County should retain the services of an expert.[17]
Counsel's first attempt to formally change course emerged when he asked the court to revive and extend certain deadlines into 2022, including the expert notice deadline and the report exchange deadline. Allina Health Sys., 2021 WL 1288267, at *2. The court declined to do so, owing to the County's failure to establish good cause to extend those deadlines. Id. The Court specifically noted that the Scheduling Order expressly provides that a change of counsel does not establish good cause for schedule changes. Id.
Now with the expert notice and report exchange deadlines having expired approximately 18 months ago, the County is again attempting to bypass those deadlines-and this court's prior refusal to revive and extend them-by belatedly noticing Mr. Cavett's so-called rebuttal testimony (and, thus, simultaneously placing the burden on Allina to bring the current motion in limine). This candid attempt to defeat two separate orders of the court-standing alone-virtually compels exclusion of Mr. Cavett's testimony.[18]...
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