United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART PLAINTIFF'S MOTIONS IN LIMINE
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on "Plaintiff's Motions in Limine." Dkt. # 219. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:
1. Stark Law and Other Anti-Kickback Laws
Plaintiff argues that all references to the Stark Law or other anti-kickback laws should be excluded because there is no admissible evidence that any of these laws were violated or that plaintiff was in any way concerned about the legality of the Diagnos-Techs operations, making the information irrelevant and unduly prejudicial. How plaintiff viewed Diagnos-Techs at the time of sale is probative regarding both his willingness to sell and the valuation of the assets. The memoranda suggest that plaintiff was both aware of and concerned about potential illegalities associated with Diagnos-Techs' relationship with Taylor Medical Group. This information is relevant and not unduly prejudicial. Plaintiff's first motion in limine is DENIED.
2. Undisclosed Experts
Plaintiff asserts that three of defendant's experts should be precluded from testifying because they did not provide expert reports by the date specified in the case management order and because the testimony of Hannah McFarland is not relevant to any issue in the case.
Although defendant has not provided a copy of the reports generated by Ms. McFarland and Matthew B. Ingalls, it appears that they were timely produced on November 7, 2012. Decl. of Michael A. Patterson (Dkt. # 234), Ex. D. Defendant has not, however, produced the report of his rebuttal valuation expert, Kevin L. Grambush. Defendant argues that it properly withheld its expert's opinions because plaintiff's valuation expert stamped his report "Preliminary." This argument is untenable and would, if accepted, promote gamesmanship, cause disruption in pretrial preparations, and result in the type of surprise at trial that the rules of discovery are designed to avoid. Although exclusion of the witness is the best way to mitigate these adverse impacts, defendant shall have three days from the date of this Order to produce Mr. Grambush's rebuttal report. If plaintiff believes it is necessary to depose Mr. Grambush, he shall serve a notice of deposition on or before May 8, 2014, and the deposition shall be scheduled forthwith based on plaintiff's and the witness' schedules. The deposition shall occur no later than May 20, 2013. Mr. Grambush's report and testimony shall be limited to rebutting or contradicting Mr. Kessler's valuation opinions. He may not put forth his own theories or opinions regarding the valuation of Diagnos-Techs or other assets transferred from plaintiff to defendant. The proper valuation of the assets has long been part of this litigation, and if defendant had expert testimony that would support a given value, that testimony should have been disclosed in a report on November 7, 2012, so that plaintiff would have an opportunity to develop rebuttal testimony. Having foregone the opportunity to submit an initial expert report, the testimony of Mr. Grambush will be limited to explaining why the theories and opinions offered by plaintiff's expert are unsound.
Ms. McFarland was offered as a certified document examiner who will give opinions regarding plaintiff's claim that his signature was forged on two documents. Plaintiff has retracted his allegations of forgery. Nevertheless, Ms. McFarland's testimony is relevant to defendant's counterclaim for defamation.
Plaintiff's second motion in limine is GRANTED in part. Should defendant fail to timely provide the required rebuttal report or make Mr. Grambush available for deposition upon request, his testimony will be excluded from trial.
3. Domestic Violence Reports and Evidence of Divorce
Plaintiff has agreed that he will not allege or attempt to prove that his separation and divorce were caused by defendant and therefore argues that evidence related to those events has no probative value and is unduly prejudicial. The Court agrees with regards to the 2003 and 2004 reports of domestic violence. If, however, plaintiff testifies or intimates that defendant drove plaintiff's wife from the house or otherwise interfered in their relationship in order to gain dominion and control over plaintiff, he will have opened the door and defendant will be permitted to show alternative causes of the dissolution.
With regards to evidence regarding the divorce and property distribution, the evidence may be relevant to issues regarding the valuation of plaintiff's assets. The Court reserves ruling on the admissibility of individual exhibits until offered at trial.
Plaintiff's third motion in limine is ...