United States District Court, W.D. Wisconsin
PATRICIA A. WESTMORE and DWIGHT R. WESTMORE, Plaintiffs,
DAVID HYDE and DEPUTY TERRI L. PROVOST, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
This case is set for jury trial commencing May 23, 2016. In advance of the final pretrial conference scheduled May 17, 2016, the court issues the following opinion on the parties’ respective motions in limine. (Dkts. ##64, 72, 78, 103.)
I. Plaintiffs’ Motions in Limine
A. MIL to exclude expert opinion testimony ((dkt. #72) ¶ 1)
First, plaintiffs move to exclude any expert opinion testimony from Lesley Szenay, Heidi Jahnke, Callae Hyde and David Hyde, all of whom defendants named as experts under Federal Rule of Civil Procedure 26(a)(2)(C), Having already denied plaintiffs’ motion to strike affidavits and exhibits prepared by those same four witnesses on summary judgment, since plaintiffs failed to demonstrate that they were Rule 26(a)(2)(B) witnesses who were required to provide a more detailed expert report (5/6/16 Op. & Order (dkt. #93)), there is little more to the pending motion. Still, in addition to citing Rule 26(a)(2) and Rule 37, plaintiffs argue that the four witnesses should not be permitted to offer expert opinion testimony under Federal Rules of Evidence 602, 701 and 702.
The gist of plaintiffs’ “new” argument is essentially the same as the last: the expected opinion testimony of the four witnesses is inadmissible “because it is not based on personal knowledge, does not qualify as lay opinion, and is not qualified by knowledge, skill, experience, training or education.” (Pls.’ Br. (dkt. #72) at 2.) Plaintiffs even acknowledge that the grounds for this motion in limine are more fully set forth in their now-rejected motion to strike, going so far as to incorporate expressly the arguments made in that motion by reference.
With respect to both their motion in limine and motion to strike, plaintiffs do not challenge the scientific or specialized knowledge of defendants’ experts, and while plaintiffs’ arguments regarding the reliability of the experts’ opinions based on the BCS system are appropriate for the jury, they fall short of establishing a basis to exclude those opinions altogether. Since plaintiffs have presented no reason to exclude opinion testimony from defendants’ experts wholesale, beyond those already rejected by this court on summary judgment, their motion will be DENIED.
B. MIL to exclude testimony from late-disclosed witnesses and untimely discovery ((dkt. #72) ¶ 2)
Next, plaintiffs move to exclude testimony from witnesses that defendants did not disclose in their Rule 26 initial disclosures, as well as any evidence gathered from depositions defendants noticed after the close of discovery. In response, defendants represent that no depositions will be taken after the discovery deadline, rendering that portion of plaintiffs’ motion moot.
Defendants further acknowledge their failure to identify by name in their initial disclosures four witnesses they now intend to call at trial, but argue that the court should nevertheless allow those witnesses to testify. As an initial matter, defendants argue that plaintiffs have long been aware of two of the witnesses, Jim Mineau and Lance Goetlich, by category, if not by name, since defendants listed as potential witnesses in their initial disclosures “unknown neighbors” who “may have been present on Plaintiffs’ farm on December 27, 2013 and/or other dates and could have relevant information related to these proceedings.” (Defs.’ Rule 26 Initial Disclosures (dkt. #10-1) at 5.) Furthermore, with respect to Mineau and Goetlich, plaintiff Patricia Westmore referenced them by name in a Facebook post on December 22, 2013, and again mentioned both of them at her deposition.
Even assuming that plaintiffs were generally aware of their neighbors, including Mineau and Goetlich, defendants offer no good reason for failing to provide any supplemental notice informing plaintiffs that defendants now viewed those specific individuals as potential witnesses for trial, or at least a more detailed description than is in defendants’ initial disclosures regarding the roles unnamed neighbors played in the material facts surrounding this lawsuit. Given the defendants lack of explanation, the court agrees with plaintiffs that defendants use of Mineau and Goetlich as trial witnesses would violate both the letter and spirit of Rule 26. See Fed. R. Civ. P. 26(a)(1) advisory committee’s note to 2000 amendment (“The disclosure obligation attaches both to witnesses and documents a party intends to use and also to witnesses and to documents the party intends to use if -- in the language of Rule 26(a)(3) -- ‘the need arises.’”). Accordingly, this portion of plaintiffs’ motion will be GRANTED.
Defendants also argue that they adequately disclosed Deputy Bruce Joanis as a witness in their initial disclosures by attaching Callae Hyde’s incident report, which states that Joanis explained to Patricia Westmore on January 16, 2014, that she needed to “listen . . . so she could change her situation to be in accordance with the law.” (Defs.’ Opp’n Br. (dkt. #90) at 4 (alteration in original).) The court disagrees that a reference to Joanis in Callae Hyde’s incident report is sufficient alone to excuse their failure to identify him as a potential witness, especially since they had full knowledge of his name and role at the time of their initial disclosures. Moreover, defendants only assert that Joanis’s testimony would be relevant to Patricia Westmore’s retaliation claim, on which the court granted summary judgment in defendant’s favor. (5/6/16 Op. & Order (dkt. #93).) Even if the court were to excuse defendants’ failure to disclose Joanis, therefore, his testimony is no longer relevant to any of the issues remaining in this case. Accordingly, this portion of plaintiffs’ motion will also be GRANTED.
Finally, defendants do not even argue that plaintiffs were (or should have been) aware that they may call Deputy Jon Pillath as a witness at trial. Instead, defendants assert that Pillath would only be offered to rebut expected testimony from plaintiffs that a photo of Blacky, plaintiffs’ horse that died after being seized, was an accurate depiction of the horse’s condition at the time plaintiffs retrieved its body. Since Blacky’s death is not relevant to defendants’ liability, but arguably relevant to damages, see discussion, infra, II.H., this portion of plaintiffs’ motion will be GRANTED as to the liability phase, but the court will RESERVE as to the damages phase.
C. MIL to exclude all evidence of defendants’ observations of the conditions of plaintiffs’ animals ...