United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
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.)
Plaintiff GQ Sand’s Motions in Limine
MIL No. 1: Limiting Expert Opinion Testimony (dkt.
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.
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.
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.
MIL No. 2: Other GQ Sand Contract or Potential Frac Sand
Contracts (dkt. #205)
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
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.
MIL No. 3: Excluding Settlement Negotiations (dkt.
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.
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 ...