The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge
ORDER RE: MOTIONS IN LIMINE
(Docket Nos. 84, 85, 86, and 92) 242.93
The United States has filed three motions in limine: (1) to exclude all evidence "allegedly supporting David Wick's opinion of value;" (2) to exclude all evidence of possible future takings over the subject property; and (3) to exclude all evidence of comparable sales relied on by Defendants. The Defendants have also filed a motion in limine to exclude the expert testimony of the United States' appraiser, Stephen Roach, and evidence supporting his opinion. For the reasons stated below, the United States' motion in limine No. 1 is granted. The United States' motions in limine Nos. 2 and 3 are denied. The Defendants' motion in limine is denied.
On May 25, 2010, the United States filed a Complaint and Declaration of Taking condemning a temporary, non-exclusive, right to enter Defendants' property for twelve months. At trial, both parties will present evidence going to the value of the taking.
I. United States Motion in Limine No. 1.
The United States moves to exclude evidence supporting the valuation opinion testimony of Mr. David Wick. Wick's opinion was to be offered by the Defendants. However, this Court has excluded the expert opinion of Wick. The United States now moves to exclude some 40 documents that Wick produced at his second deposition. These documents evidence property transactions that the Defendants seek to identify as comparable leases. The United States argues that these documents/leases should be excluded along with Wick's opinion testimony. The United States also argues that these documents/leases should be excluded because they were first produced by the Defendants long after the close of discovery.
The Court agrees. Since Wick will not be permitted to offer opinion testimony, the documents and leases supporting his opinion testimony will be excluded, unless a sufficient foundation is laid for each document or lease by another qualified witness. "[T]here is a distinction between admitting a comparable sale as direct proof of a property's value and allowing an expert to refer to the comparable sales in explaining his/her own valuation of a property." United States v. 87.89 Acres of Land, Case No. Civ. F03-6064 AWILJO, 2005 WL 2810641, *18 (E.D. Cal. Oct. 25, 2005) (citing United States v. Johnson, 285 F.2d 35, 40-41 (9th Cir. 1960)). These excluded documents are identified as exhibits lettered: "H" through "Z", and, "AA" through "AU."
Moreover, while Defendants point out that 32 of the 40 documents were also produced prior to the discovery cutoff, at least eight of these 40 documents were not disclosed until well after the discovery deadline. As a discovery sanction under FRCP Rule 37, these eight documents may not be introduced by the Defendants for any reason. These eight documents are identified by the Defendants as exhibits lettered: "O," "AA," "AE," "AM," "AN," "AO," "AP," and "AU."
II. United States Motion in Limine No. 2.
The United States anticipates that the Defendants will attempt to use evidence of possible future takings as evidence to prove damages to the subject property. The Defendants have responded saying that is not the ...