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Hibu Inc. v. Peck

United States District Court, D. Kansas

January 11, 2018

HIBU, INC., Plaintiff,
CHAD PECK, Defendant.



         This 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.

         I. Legal Standards

         “The 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).

         II. Defendant's Motion in Limine as to Plaintiff's Experts

         Plaintiff 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 experts.

         “Under 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).

         Plaintiff 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.

         The 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.

         III. Defendant's Motion in Limine on Liability

         Defendant 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 ...

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