United States District Court, D. Kansas
MEMORANDUM AND ORDER ON MOTIONS IN LIMINE
matter is before the court on the parties' motions in
limine filed in anticipation of the upcoming trial. Defendant
filed a motion in limine as to experts (Dkt. 312) and another
motion in limine on liability (Dkt. 313). Plaintiff filed
seven separate motions in limine concerning its corporate
history, employment agreements defendant claims he signed,
hearsay statements, and other matters that are inadmissible
under the federal rules of evidence (Dkts. 314-20). For the
reasons stated below, defendant's motion regarding
plaintiff's experts is denied. Defendant's motion
regarding liability is granted in part and taken under
advisement until trial. Plaintiff's motions are granted
in part, denied in part without prejudice, and taken under
advisement until trial.
purpose of an in limine motion is to aid the trial process by
enabling the Court to rule in advance of trial on the
relevance of certain forecasted evidence, as to issues that
are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” Altman v. New Rochelle
Pub. Sch. Dist., No. 13 CIV. 3253 (NSR), 2017 WL 66326,
at *5 (S.D.N.Y. Jan. 6, 2017) (quoting Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996)). A motion in
limine “seeking to prohibit generic, unspecified
‘prejudicial' testimony [is] not useful, and is
properly denied.” United States v. Enns, No.
15-10045-JTM, 2015 WL 8770006, at *1 (D. Kan. Dec. 14, 2015).
Defendant's Motion in Limine as to Plaintiff's
has designated its Chief Financial Officer, Bryan Turner, and
other officers and managers, Chris Hett, Kevin Jasper, Tod
Pike, and Jeff Johanns, as potential witnesses on damages.
Defendant moves to exclude expert testimony from
plaintiff's employees regarding plaintiff's damages.
Defendant claims plaintiff failed to comply with Federal Rule
of Civil Procedure 26(a), which is required for employee
Rule 26(a), a party seeking to call an expert witness must
provide the opposing party with a written report, prepared
and signed by the expert witness, that outlines, in pertinent
part, the opinions that will be expressed at trial by the
expert witness, the facts or data considered by the expert
witness in forming those opinions, the expert witness's
qualifications, the cases in which the expert witness has
testified within the last four years, and the compensation to
be paid the expert witness for his work and testimony in the
case.” ClearOne Commc'ns, Inc. v. Biamp
Sys., 653 F.3d 1163, 1176 (10th Cir. 2011) (citing
Fed.R.Civ.P. 26(a)(2)(B)(i)-(vii). However, these
requirements apply only to expert witnesses, not fact
witnesses. Super Film of Am., Inc. v. UCB Films,
Inc., 219 F.R.D. 649, 658 (D. Kan. 2004). “The
Comment to the 2010 amendment to Rule 26 (a)(2)(C) explains,
A witness who is not required to provide a report under Rule
26(a)(2)(B) may both testify as a fact witness and also
provide expert testimony under Evidence Rule 702, 703, or
705. Frequent examples include physicians or other health
care professionals and employees of a party who do not
regularly provide expert testimony. Parties must identify
such witnesses under Rule 26(a)(2)(A) and provide the
disclosure required under Rule 26(a)(2)(C).”
Ledford v. Kinseth Hosp. Cos., No. 15-1156-GEB, 2017
WL 2556020, at *5 (D. Kan. June 13, 2017).
claims that its designated officers and employees are lay
witnesses under Fed.R.Evid. 701, not expert witnesses. It
argues that Turner's damage testimony is not expert
testimony, but is a lay opinion because he is plaintiff's
CFO. Its only expert is Steve Browne, who is designated as a
rebuttal expert on damages.
designated officers and employees are employed with plaintiff
and are not retained or specially employed to provide expert
testimony. Nor do these witnesses regularly provide expert
testimony. Therefore, plaintiff was not required to comply
with Fed.R.Civ.P. 26(a)(2)(B). Furthermore, these witnesses
were deposed and there is no prejudice to defendant.
Defendant's motion as to plaintiff's officers'
and employees' testimony on damages is denied.
Defendant's Motion in Limine on Liability
moves for an order precluding plaintiff from presenting
evidence or argument on the following matters:
1) claims that were granted summary judgment in
defendant's favor pursuant to the court's November
15, 2017 Memorandum and Order: defendant violated the 2006
Employee Agreement during the restricted period by soliciting
plaintiff's customers; competing or preparing to compete
with plaintiff; and soliciting plaintiff's ...