Pending before the Court are defendants' (Simon) motion to modify the October 10, 2006, order to permit Simon to present independent expert testimony and other evidence at the Rule 706 expert hearing, Simon's motion for a hearing to take testimony with respect to the report of Porter Brownlee, and Simon's motion to permit depositions of Court-appointed expert's assisting experts. Basically, Simon wants to conduct additional discovery beyond that of taking the deposition of the Court's appointed expert, Porter Brownlee, and to offer additional evidence in response to Brownlee's report. Plaintiffs oppose any request by Simon to conduct additional discovery or offer additional evidence.
Simon states that it needs to introduce its own witnesses and evidence to respond to Brownlee's meaning of "good and tenantable condition." "Good and tenantable condition" has been at issue since the beginning of this action. Simon has had ample opportunity to present its own expert testimony regarding the issue.
The Court will grant Simon's request that the Court schedule a hearing at which Brownlee can be examined by the parties. See Federal Trade Com'n v. Enforma Natural Prods., 362 F. 3d 1204, 1214 (9th Cir. 2004) (court-appointed expert should have been subject to cross examination about information relied upon in forming his opinions).
The Court will not alter its October 10th Order to allow Simon to proffer additional evidence. Furthermore, the Court denies Simon's request to depose those professionals who worked with Brownlee. The Court is not of the opinion that additional discovery of those assisting Brownlee is warranted, particularly as Simon's request will unnecessarily prolong and burden the proceedings. The basis of Brownlee's opinion can be adequately probed further at a hearing during which Simon will have an opportunity to examine Brownlee.
Therefore, a hearing at which Brownlee can be examined is set for December 20, 2006 at 1:30 p.m.
Accordingly, the motion to modify the October 10, 2006, order to permit Simon to present independent expert testimony and other evidence at the Rule 706 expert hearing is denied; the motion for a hearing to take testimony with respect to the report of Porter Brownlee is granted; and the motion to permit depositions of Court- appointed expert's assisting experts is denied. The Clerk is directed to provide a copy of this Order to Porter Brownlee, 1501 N. Pierce, Little Rock, AR 72207.
IT IS SO ORDERED this 30th day of November, 2006.
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