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Juan Salazar v. A&J Construction of Montana

September 17, 2012

JUAN SALAZAR,
PLAINTIFF,
v.
A&J CONSTRUCTION OF MONTANA, INC., DEFENDANT.



The opinion of the court was delivered by: Carolyn S. Ostby United States Magistrate Judge

ORDER ADDRESSING MOTIONS IN LIMINE

This Order addresses the parties' motions in limine and a recently-filed motion to strike a supplemental expert report. See DKTs 143, 145, 147, 149, 151, 152, 179, and 221.

I. BACKGROUND

The parties are familiar with the underlying facts and their arguments related to each motion. The Court will recite such facts and arguments only as necessary to explain its rulings.

II. LEGAL STANDARD

In BNSF Railway Co. v. Quad City Testing Laboratory, Inc., 2010 WL 4337827 at *1 (D. Mont. 2010) (Cebull, C.J.), this Court described the legal standard for motions in limine. Motions in limine are procedural devices to obtain an early and preliminary ruling on the admissibility of evidence. Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). But a motion in limine should not be used to resolve fact disputes or weigh evidence. C & E Services, Inc., v. Ashland Inc., 539 F.Supp.2d 316, 323 (D. D.C. 2008). To exclude evidence on a motion in limine "the evidence must be inadmissible on all potential grounds." Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004); Kiswani v. Phoenix Sec. Agency, Inc., 247 F.R.D. 554, 557 (N.D. Ill. 2008); Wilkins v. K-Mart Corp., 487 F.Supp.2d 1216, 1218-19 (D. Kan. 2007). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partners v. AT & T Tech, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). This is because although rulings on motions in limine may save "time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence." Wilkins, 487 F.Supp.2d at 1219.

It is settled law that rulings on motions in limine are provisional. Such "rulings are not binding on the trial judge [who] may always change [her] mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce v. United States, 469 U.S. 38, 41 (1984). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded."' Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d at 846.

With these general standards in mind, the Court addresses below each pending motion in limine and the motion to strike.

III. DISCUSSION

A. A&J's Motion in Limine Re: Exclusion of Evidence of James and Diane Foster's Personal Assets

The Court will grant this motion. A&J seeks exclusion of "evidence of James and Diane Foster's personal assets and 2005 bankruptcy filing." DKT 143. James and Diane Foster, although principals of A&J, are not parties to this action. Salazar has offered neither evidence nor persuasive argument that would allow him to reach the Foster's personal assets should he prevail on his claims against A&J. Thus, at this juncture, their personal assets are irrelevant to any claim or defense at issue and would not tend to make a fact more or less probable than without such evidence. Fed. R. Evid. 401. In the course of trial, should Salazar choose to attempt to introduce such evidence, his counsel must make an offer of proof outside of the jury's presence before attempting to introduce any such evidence and before making any reference to it.

B. A&J's Motion in Limine Re: Exclusion of Opinion Evidence by Salazar's Expert John Macdonald

The Court will grant this motion. A&J seeks exclusion of three opinions by John Macdonald ("Macdonald"), Salazar's safety expert, respecting: (1) immigration law; (2) whether Salazar's fall and injury were caused by his Hispanic descent; and (3) whether Salazar was an independent contractor or employee under Montana law. A&J's Mtn. Re: Macdonald's Opinion (DKT 145) at 2.

1. Expert Witness Legal Standard

Federal Rule of Evidence 702, governing receipt of expert witness testimony, provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Rule 702 requires that the trial court act as a "gatekeeper" by excluding evidence that does not meet standards of reliability and relevance. The Supreme Court articulated general guidelines for Rule 702's application in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Daubert focused on scientific testimony. Kumho held that Daubert's principles apply to "technical and other specialized knowledge" as well. Kumho, 526 U.S. at 141. In Kumho, 526 U.S. at 149, the Supreme Court held that if an expert testimony's "factual basis, data, principles, methods, or their application are called sufficiently into question, ... the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of [the relevant] discipline."

The Ninth Circuit has held that the admissibility of expert opinion testimony generally turns on the following preliminary legal determinations by the trial judge:

*Whether the opinion is based on scientific, technical, or other specialized knowledge;

*Whether the expert's opinion would assist the trier of fact in understanding the evidence or determining a fact in issue;

* Whether the expert has appropriate qualifications-i.e., some special knowledge, skill, experience, training or education on that subject matter;

* Whether the testimony is relevant and reliable;

* Whether the methodology or technique the expert uses "fits" the conclusions (the expert's credibility is for the jury);

* Whether its probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, or undue consumption of time.

United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000) (citations omitted). The Hankey court explained that "not only must the trial court be given broad discretion to decide whether to admit expert testimony, it 'must have the same kind of latitude in deciding how to test an expert's reliability.' " Id. (emphasis in original) (citing Kumho, 119 S.Ct. at 1176).

A Daubert hearing is not required before ruling on a motion to exclude expert testimony. See United States v. Lopez-Martinez, 543

F.3d 509, 514 (2008) (finding that a hearing is not required under Supreme Court precedent or Ninth Circuit case law). The Court determines here that the parties have thoroughly briefed the issues and presented sufficient materials to allow the Court to reach a determination without a Daubert hearing.

2. Analysis

First, the Court will grant A&J's motion to the extent it seeks to prohibit Macdonald from rendering any opinions about immigration law. Neither Macdonald's final expert witness report nor anything else presently in the record establishes his expertise to render such an opinion. DKT 160-1 at 3-11. Any opinion he may render about immigration law would be unreliable. Also, it is the Court's duty, not the duty of an expert witness, to instruct the jury on the law. United States v. Vreeken, 803 F.3d 1085, 1091 (10th Cir. 1986). There is no basis for Macdonald to testify regarding immigration law.

Second, the Court will grant A&J's motion to the extent it seeks to prohibit Macdonald from testifying about whether Salazar fell because of his Hispanic descent. Salazar notes in his response to A&J's motion that Macdonald does not intend to testify that Salazar fell because of his Hispanic descent and notes that "[t]he statement that Juan Salazar fell because of his Hispanic descent is outrageous." Salazar's Resp. Br. (DKT 160) at 5. He argues that Macdonald never made the statement in his expert report or deposition. Id. Because there is no dispute that Macdonald is not going to testify that Salazar's Hispanic descent caused him to fall, the Court will grant A&J's motion to the extent it seeks to exclude such testimony.

Third, the Court will grant A&J's motion to the extent it seeks to preclude Macdonald from rendering an opinion about whether Salazar was an independent contractor or an employee under Montana law. As with the above discussion concerning whether Macdonald may testify respecting immigration law, there is no basis in the record for Macdonald to testify about whether Salazar was an independent contractor or an employee under Montana law.

Finally, the Court notes that its ruling on this motion is limited to the precise subjects discussed above. In contesting A&J's motion, Salazar asks the Court to allow Macdonald to testify concerning: (1) "the heightened danger associated with undocumented immigrants working on a construction site[,]" DKT 160 at 6; (2) "what Jay Foster, owner of A&J, should have known as an employer[,]" id.; (3) whether Foster should have obtained immigration forms to confirm the citizenship status of all employees on the construction site, id.; and (4) Salazar's status as an employee on the construction site if the Court first finds that Salazar was an independent contractor, id. at 5-6.

The Court declines to rule at this juncture on the admissibility of Macdonald's testimony concerning the issues Salazar proposes. In line with the authority detailed above, at this point in the proceedings the Court cannot determine specifically how, or even if, Macdonald will attempt to testify concerning the issues identified above. Thus, the Court will deny Salazar's pretrial request that it rule that Macdonald may testify as to those specific issues.

C. A&J's Motion in Limine Re: Exclusion of Opinions of Economist Stan Smith and Salazar's Motion in Limine to ...


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