United States District Court, W.D. Washington, Seattle
D.T., by and through his parents and guardians, K.T. and W.T., individually, on behalf of similarly situated individuals, and on behalf of the NECA/IBEW Family Medical Care Plan, Plaintiff,
NECA/IBEW FAMILY MEDICAL CARE PLAN, THE BOARD OF TRUSTEES OF THE NECA/IBEW FAMILY MEDICAL CARE PLAN, SALVATORE J. CHILIA, ROBERT P. KLEIN, DARRELL L. MCCUBBINS, GEARY HIGGINS, LAWRENCE J. MOTER, JR., KEVIN TIGHE, JERRY SIMS, AND ANY OTHER INDIVIDUAL MEMBER OF THE BOARD OF TRUSTEES OF NECA/IBEW FAMILY MEDICAL CARE PLAN, Defendants.
ORDER ON MOTIONS IN LIMINE
Honorable Richard A. Jones, United States District Judge.
Honorable Richard A. Jones This matter is before the Court on
the parties' motions in limine (Dkt. ## 109,
115). For the following reasons, the Court GRANTS in
part and DENIES in part the
matter is set for a bench trial on January 13, 2020. The
details of the Class's allegations are set forth in the
Order on the parties' motions for summary judgment and
will not be repeated here. See Dkt. # 142.
may file motions in limine before or during trial
“to exclude anticipated prejudicial evidence before the
evidence is actually offered.” Luce v. United
States, 469 U.S. 38, 40 n. 2 (1984). To decide on the
motions in limine, the Court is generally guided by
Federal Rules of Evidence 401 and 403. Specifically, the
Court considers whether evidence “has any tendency to
make a fact more or less probable than it would be without
the evidence, ” and whether “the fact is of
consequence in determining the action.” Fed.R.Evid.
401. However, the Court may exclude relevant evidence if
“its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
Court notes that the findings and conclusions in this order,
like all rulings in limine, are preliminary and can
be revisited at trial based on the facts and evidence as they
are actually presented. See, e.g., Luce v.
United States, 469 U.S. 38, 41 (1984) (explaining that a
ruling in limine “is subject to change when
the case unfolds, particularly if the actual testimony
differs from what was contained in the proffer. Indeed even
if nothing unexpected happens at trial, the district judge is
free, in the exercise of sound judicial discretion, to alter
a previous in limine ruling.”). Subject to
these principles, the Court issues these rulings for the
guidance of the parties.
Plaintiff Class's Motions in Limine
Plaintiff's Motion in Limine No. 1
first seeks to bar testimony from witnesses not previously
disclosed in discovery. Dkt. # 109 at 10-11. Rule 26(a)
requires that “a party must, without awaiting a
discovery request, provide to the other parties”
certain identifying information about “each individual
likely to have discoverable information-along with the
subjects of that information-that the disclosing party may
use to support its claims or defenses.” Fed.R.Civ.P.
26(a)(1)(A). The failure to comply with Rule 26(a) disclosure
requirements may result in the imposition of sanctions
pursuant to Rule 37.
argues that Defendants did not disclose Christi Piti (Chief
Executive Officer, Sav-Rx) as a potential witness until well
after the close of discovery. Dkt. # 109 at 10. However,
failure to disclose a witness is harmless where the
witness's identity, position, location, and the subject
of the information he possesses are made known to the
opposing party well ahead of the discovery deadline. Van
Maanen v. Youth With a Mission-Bishop, 852 F.Supp.2d
1232, 1237 (E.D. Cal. 2012); see also HB Dev., LLC v. W.
Pac. Mut. Ins., 86 F.Supp.3d 1164, 1173-74 (E.D. Wash.
2015) (same). Here, Sav-Rx was identified as a provider of
prescription benefits under the Plan in documents and
deposition testimony during discovery. Dkt. # 131 at 3-4.
Plaintiff could have sought discovery from Sav-Rx but chose
not to. Therefore, the Court finds that Defendants'
failure to include Ms. Piti in their initial disclosures was
harmless. Plaintiff's motion is DENIED.
Plaintiff's Motion in Limine No. 2
next seeks to limit the testimony of Defendants' expert
witnesses to only those opinions disclosed in their expert
reports. Plaintiff argues that Defendants' expert, Mark
Fish, should be precluded from testifying regarding any
damages calculation or analysis because Mr. Fish was never
disclosed as a damages expert in his prior expert reports or
deposition testimony. Dkt. # 109 at 5-6. Defendants argue
that Mr. Fish opined on damages in both his deposition
testimony and in a rebuttal report to the initial report of
Plaintiff's damages expert, Dr. Frank Fox. Dkt. # 13 at
5. The Court agrees that it would be manifestly unfair to
allow Mr. Fish to testify regarding damages calculations that
were not disclosed during discovery. Accordingly, to the
extent Defendants seek to introduce expert testimony not
disclosed prior to trial, Plaintiff's motion is
GRANTED. However, Mr. Fish will be permitted
to testify as a damages expert, to the extent that his
testimony is limited to the scope of his prior deposition
testimony and rebuttal of Plaintiff's damages analysis.
also argues that Dr. Maki should be precluded from testifying
as an expert in “statistical analysis” because
this subject was never disclosed in the expert reports or
deposition testimony. Dkt. # 109 at 6-7. Defendants represent
that they have no intention of asking Dr. Maki to testify
regarding any ...