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United States v. Woody's Trucking, LLC

United States District Court, D. Montana, Billings Division

February 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WOODY'S TRUCKING, LLC, and DONALD E. WOOD, JR., Defendants.

          ORDER

          SUSAN P. WAITERS UNITED STATES DISTRICT JUDGE

         Before the Court are three motions in limine filed by Defendants Woody's Trucking and Donald E. Wood, Jr. (Docs. 45, 76, and 78). For the foregoing reasons, the Court denies the motions but extends the deadline for the Defendants to supplement their expert reports.

         I. Background

         For the factual underpinnings of the indictment, see the Court's order denying the Defendants' five motions to dismiss the indictment. (Doc. 80).

         The Defendants were indicted on November 16, 2017. (Doc. 1). On December 7, 2017, the Defendants were arraigned. (Docs 8-9). The same day, the Court issued its scheduling order. (Doc. 13). The scheduling order set a discovery deadline of December 11, 2017. (Doc. 13 at 2). The Court provided the Defendants with a reciprocal discovery deadline of January 5, 2018. (Doc. 26).

         In its initial discovery disclosure, the government stated it would likely call several regulatory compliance experts in its case in chief. (Doc. 46-2 at 4). The government stated it did not intend to call scientific experts. (Doc. 46-2 at 4). However, the government's initial disclosure included the findings of two OSHA analysts, who analyzed samples taken from the truck involved in the explosion. Sometime after December 11, 2017, and continuing up until January 5, 2018, the government provided further disclosures, including the underlying data of the OSHA findings, the analysts' qualifications, and certain emails. Additionally, the government notified the Defendants it no longer anticipated calling regulatory compliance experts in its case in chief, and would instead call such experts in rebuttal, if necessary. The government did not provide full expert disclosures for the regulatory compliance experts.

         The Defendants filed the present motions in limine, arguing the OSHA analysts and the regulatory compliance experts should be excluded in full.

         II. Law

         Rule 16 requires the government to disclose, at the defendant's request, a summary of any expert witness testimony the government intends to use during its case-in-chief as well as "the bases and reasons for those opinions, " the data and scientific reports supporting the opinions, and other expert documents. United States v. W.R. Grace, 526 F.3d 499, 513 (9th Cir. 2008) (citing Fed. R. Crim. P. 16(a)(1)(E-G)). District courts may enforce discovery deadlines with appropriate orders, including the exclusion of untimely produced evidence. W.R. Grace, 526 F.3d at 513 (citing Fed. R. Crim. P. 16(d)(2)).

         III. Discussion

         A. The OSHA analysts, findings, underlying data, and additional documents

         Defendants argue the OSHA analysts and supporting material should be excluded for two reasons. First, Defendants argue the government failed to timely designate and disclose the OSHA analysts and supporting materials. Second, Defendants argue they suffered prejudice because their own experts were not able to consider the untimely disclosures. The government responds it did not need to produce expert disclosures for the OSHA analysts because the OSHA analysts are fact witnesses, not experts. The government states that nevertheless, it provided the OSHA analysts' findings in its initial disclosure, has since made further disclosures, and that, if ordered, it will produce the appropriate expert disclosures.

         As a preliminary matter, the Court must determine whether the government was required to produce expert disclosures for the OSHA analysts, which in turn depends on whether the OSHA analysts will provide lay or expert testimony.

         In the context of an opinion, the difference between lay and expert testimony is whether the opinion is based on scientific or other specialized knowledge. Compare Fed. R. Evid. 701 with Fed. R. Evid. 702. The proposed testimony of the OSHA analysts includes collecting samples and testing those samples. That testimony is, indisputably, based in scientific knowledge. The government contends that, although scientific, the testimony concerns facts and observations, not opinions, and is thus admissible as non-opinion lay testimony. The government is correct that the rules, on their face, do not prohibit non-opinion lay testimony based in science or specialized knowledge. By its plain language, Rule 701 bars only lay opinions based in science or specialized knowledge. The rules thus leave open the possibility that ...


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