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D.T. v. Neca/Ibew Family Medical Care Plan

United States District Court, W.D. Washington, Seattle

January 6, 2020

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,
v.
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

          The Honorable Richard A. Jones, United States District Judge.

         The 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 motions.

         I. INTRODUCTION

         This 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.

         II. DISCUSSION

         Parties 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.

         The 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.

         A. Plaintiff Class's Motions in Limine

         i. Plaintiff's Motion in Limine No. 1

         Plaintiff 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.

         Plaintiff argues that Defendants did not disclose Christi Piti (Chief Executive Officer, Sav-Rx) as a potential witness until well after the close of discovery.[1] 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.

         ii. Plaintiff's Motion in Limine No. 2

         Plaintiff 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.

         Plaintiff 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 ...


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