ORA's Assertion that Pacific's Supplemental Rebuttal Testimony Relies on Facts Not in Evidence

ORA moves to strike Answer 5 of Dr. Harris's supplemental rebuttal testimony on the grounds that it relies on facts not in evidence. In Answer 5, Dr. Harris asserts that the Sanchez deposition "proves conclusively that Mr. Sanchez does not understand the concept of retroactive ratemaking, much less offer support for his claim that ORA's recommendation would not constitute retroactive ratemaking." ORA states that because Pacific never asked Mr. Sanchez during the deposition about his understanding of retroactive ratemaking, there is no basis for Dr. Harris's statement in Answer 5.

Pacific responds that Answer 5 is based on Mr. Sanchez's responses to questions during the deposition regarding retroactive ratemaking. Pacific also argues that it is unreasonable for Pacific to have to ask ORA's witness whether the witness understands the subject matter of his testimony.

ORA's motion to strike is denied. Answer 5 is a conclusionary statement that is clearly related to the Sanchez deposition. The validity of the statement is, at least in part, a factual issue that should be decided after the parties have had an opportunity to develop the record through evidentiary hearings and present arguments in post-hearing briefs that reflect the evidentiary record.