United States District Court, D. Montana, Billings Division
ROCKY MOUNTAIN PSI, LLC, and SAGE ENVIRONMENTAL CONSULTING, LP, Plaintiffs/Counter-Defendants,
THOMAS M. THAYER, Defendant/Counter-Claimant.
ORDER ON DEFENDANT'S MOTION IN LIMINE
CAROLYN S. OSTBY, Magistrate Judge.
Plaintiffs Rocky Mountain PSI, LLC ("RMPSI") and Sage Environmental Consulting, LP ("Sage") bring this action against Defendant Thomas M. Thayer ("Thayer"). Now pending is Thayer's motion in limine to exclude or limit the opinions and testimony of Plaintiffs' damages expert Aaron Beckman. ECF 58. The motion will be denied for the following reasons.
The action arises out of a March 2008 Asset Purchase Agreement ("APA") between Thayer and Plant Services Incorporated ("PSI") as sellers and RMPSI as purchaser. Thayer started PSI, an environmental consulting and refinery services company, in 2003. Prior to executing the APA, Sage created RMPSI specifically to purchase certain assets of PSI. Sage is party to the APA as guarantor of RMPSI's obligations. Also in March 2008, RMPSI and Thayer entered into an employment contract and a non-competition agreement. The parties accuse each other of not performing as required.
Thayer's pending motion in limine challenges the admissibility of Plaintiffs' expert, Aaron Beckman. According to Beckman's resume, he has a Bachelor of Science degree and a Master of Science degree, both in Agricultural Economics. ECF 59-1 at 9. He has 23 years of lending experience at banks and credit services companies. He also has worked for both Sage and RMPSI. In 2001-2002, he was Chief Financial Officer of Sage Environmental Consulting in Dallas, Texas. From December 2009 to July 2012, the was Chief Financial Officer of RMPSI. And from February 2013 to the present, he has been Chief Operating Officer at "Sage Environmental Consulting and Family of Companies" in Austin, Texas. Id . at 6-8.
Thayer seeks to prevent Beckman from testifying on either damages or liability. Thayer argues that Beckman erroneously uses Plaintiffs' debt as an estimation of damages and that Beckman may not offer his opinions on liability because he has no experience in the construction industry. Plaintiffs respond that Beckman's testimony is proper and relevant both to Plaintiffs' damages and to Thayer's liability.
The Court notes that Beckman's expert report offers not only expert opinions but also fact testimony based on his employment experiences with the plaintiff companies. For example, in the "Expense Review" portion of his report, he states:
Of special note, Mr. Thayer's projected labor costs as a percent of total revenue are only nominally lower as compared to RMPSI's historical average. Mr. Thayer previously would argue (in discussions with myself and Steve Probst) that RMPSI could not be profitable due to inflated personnel and labor costs under RMPSI's operating model. Based on his own forecasting, he assumes total labor costs as a percent of sales to be less that 3.0% less than what historically was experienced by RMPSI. This is only a nominal difference which suggests he didn't agree with his own assessments made in the past as President of RMPSI.
Id . at 59-1 at 11 (emphasis added).
II. LEGAL STANDARD
Motions in limine are procedural devices to obtain pretrial rulings on the admissibility of evidence. Judges have broad discretion when ruling on motions in limine but a motion in limine should not be used to resolve factual disputes or weigh evidence. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); 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." Indiana Ins. Co. v. General 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). 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.
Also, it is settled 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. Indiana Ins. Co., 326 F.Supp.2d at 846.
A. Beckman's Opinions ...