United States District Court, D. Montana, Billings Division
P. WAITERS UNITED STATES DISTRICT JUDGE
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.
factual underpinnings of the indictment, see the Court's
order denying the Defendants' five motions to dismiss the
indictment. (Doc. 80).
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).
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
Defendants filed the present motions in limine, arguing the
OSHA analysts and the regulatory compliance experts should be
excluded in full.
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)).
The OSHA analysts, findings, underlying data, and additional
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
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.
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