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GQ Sand, LLC v. Conley Bulk Services, LLC

United States District Court, W.D. Wisconsin

June 20, 2016

GQ SAND, LLC, Plaintiff and Counterclaim Defendant,
v.
CONLEY BULK SERVICES, LLC, Defendant, Counterclaim Plaintiff and Crossclaim Defendant, RANGE MANAGEMENT SYSTEMS, LLC, and Defendant and Counterclaim Plaintiff NEJGID, LLC, Defendant, Counterclaim Plaintiff and Crossclaim Plaintiff.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         This case is set for a jury trial commencing June 27, 2016. In advance of the final pretrial conference scheduled for June 21, 2016, the court issues the following opinion and order on the parties’ motions in limine. (Dkt. ##180, 184, 194-195, 198, 204-208.)

         OPINION

         I. Plaintiff GQ Sand’s Motions in Limine

         A. MIL No. 1: Limiting Expert Opinion Testimony (dkt. #204)

         GQ Sand seeks an order excluding defendant CBS’s expert Holly Bellmund from offering testimony about the length of time it would take for rail cars to move from one position to another. GQ Sand posits two independent bases for its motion. First, GQ Sand argues that Bellmund’s disclosure as a rebuttal expert renders her opinion on the timing of train travel untimely. Bellmund was only disclosed as rebuttal expert, but she acknowledged at her deposition that her testimony on timing was independent from any opinion offered by GQ Sand’s expert Michael Wick. In other words, the timing of train travel opinion was not in response to Wick’s opinions. From this, GQ Sand argues that Bellmund should have been disclosed as an expert on October 16, 2015, the date on which the parties were to disclose any experts for which they were proponents. (5/28/15 Pretrial Conf. Order (dkt. #27) ¶ 2.) In response, CBS argues that Bellmund’s testimony directly counters Wick’s opinion regarding CBS’s reasons for terminating the Sand Supply Agreement. (CBS’s Opp’n (dkt. #225) 4.) Specifically, Bellmund’s testimony about the timing of rail transportation being a reason why CBS terminated the Agreement responds to Wick’s testimony about the downturn in the fracking sand industry being the reason for the termination.

         The court agrees with CBS that Bellmund’s testimony is proper rebuttal testimony. Moreover, the serving of Bellmund’s report by the “respondent” deadline identified in the preliminary pretrial conference order is entirely consistent with the court’s treatment of the use of the term “proponent” in the pretrial conference order to mean the party who bears the burden of proof on a particular claim (or element of a claim), whereas “respondent” refers to the party who does not bear the burden of proof. Even if this view were somehow in error, the court also agrees that CBS’s serving of Bellmund’s report by the respondent deadline was substantially justified under Federal Rule of Civil Procedure 37(c) to deny GQ Sand’s request to strike her testimony on this topic.

         Second, GQ also seeks exclusion of this testimony on the basis that it is unreliable under Federal Rule of Evidence 702. Specifically, GQ Sand challenges the factual basis for Bellmund’s testimony, as well as her qualifications and experience to render such an opinion. Here, too, CBS adequately responds to GQ Sand’s challenge. In addition to relying on GQ Sand Quisling’s testimony, Bellmund also testified that she relied on information obtained from rail lines and sand mines. Moreover, Bellmund described her experience with the rail industry during her deposition. (CBS’s Opp’n (dkt. #225) 7.) While GQ Sand’s challenges may, of course, be addressed through cross-examination, they do not serve as a basis for striking her opinions. Accordingly, GQ Sand’s motion in limine no. 1 is DENIED.

         B. MIL No. 2: Other GQ Sand Contract or Potential Frac Sand Contracts (dkt. #205)

         GQ Sand seeks an order excluding testimony, evidence or argument about “any potential deals and/or completed contracts or agreements to which GQ Sand was a party other than those at issue in this case.” (GQ Sand’s Mot. (dkt. #205) 1.) Specifically, GQ Sand mentions a deal it made with K3 Prop, LLC in the summer of 2014, which is the subject of another lawsuit pending in this court. In support of its motion, GQ Sand contends that other business relationships or contracts are not relevant to the claims presented in this case, and that, even if relevant, should be excluded under Rule 403.

         In response, CBS argues that evidence of GQ Sand’s prior transactions is probative of GQ Sand’s ability to perform under the Agreement. Specifically, CBS argues that this evidence will support its defense that GQ Sand was not able to perform under the Agreement. (CBS’s Opp’n (dkt. #227) 2-3.) While the court agrees that such evidence may be relevant to CBS’s defense, such evidence also could be prejudicial and confusing. As such, the court will RESERVE ruling on this motion, pending argument at the final pretrial conference on the specific evidence and lines of testimony CBS seeks to admit.

         C. MIL No. 3: Excluding Settlement Negotiations (dkt. #206)

         Next, GQ Sand seeks an order excluding “specific terms of settlement negotiations for the release and settlement of the Sand Supply Agreement.” (GQ Sand’s Mot. (dkt. #206) 1.) Specifically, GQ Sand seeks to exclude a document authored by CBS, titled “Release and Hold Harmless.” (Watt Third Decl., Ex. A (dkt. #210-1).) GQ Sand contends that such evidence should be excluded under Federal Rule of Evidence 408.

         In its response, CBS agrees that such evidence constitutes a settlement negotiation under Rule 408, but argues that CBS seeks to introduce such evidence for purposes other than to prove liability, the amount of the parties’ claims or to impeach with a prior inconsistent statement. In its summary judgment opinion, the court viewed the release and related materials as falling outside of the confines of Rule 408 because it did not contemplate the specific “claim” at issue here. (6/10/16 Op. & Order (dkt. #221) 15 n.12.) As such, the court will RESERVE on this motion, and will hear ...


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