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Gerawan Farming, Inc v. Rehrig Pacific Company

May 13, 2013

GERAWAN FARMING, INC.,
PLAINTIFF,
v.
REHRIG PACIFIC COMPANY, DEFENDANT.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ON THE PARTIES' MOTIONS IN LIMINE (Docs. 110-112, 114-128)

In accordance with the Court's preliminary pretrial order, Plaintiff Gerawan Farming, Inc. ("Plaintiff") and Defendant Rehrig Pacific Company ("Defendant") filed motions in limine on April 25, 2013. The parties filed oppositions to the motions in limine on April 30, 2013. Having read and considered the parties' submissions, the Court rules on the motions in limine as follows.

A. Plaintiff's Motions in Limine

1. Motion in Limine No. 1 -- Exclusion of Jim Nau

Plaintiff moves to exclude Jim Nau from testifying at trial pursuant to Federal Rule of Civil Procedure 37(c)(1). Plaintiff argues that Defendant never disclosed Mr. Nau as a fact witness, which Defendant is required to do under Federal Rule of Civil Procedure 26(a) and (e) if Defendant intends to have Mr. Nau testify at trial.

This motion in limine is GRANTED. It is undisputed that Defendant did not disclose Mr. Nau as a fact witness under Rule 26(a) or (e). Therefore, Defendant may not call Mr. Nau as a fact witness at trial. See Fed. R. Civ. P. 37(c)(1) ("If a party fails to . . . identify a witness as required by Rule 2 26(a) or (e), the party is not allowed to use that . . . witness to supply evidence . . . at a trial, unless the 3 failure was substantially justified or is harmless). Nothing in this order, however, precludes Defendant 4 from calling Mr. Nau on rebuttal solely for impeachment purposes. See Fed. R. Civ. P. 26(a)(1)(A)(i) 5 (no disclosure requirement if the person is used solely for impeachment). 6

2. Motion in Limine No. 2 -- Limiting Expert Opinions to Expert Reports

Plaintiff moves to preclude Defendant from offering any expert opinions that have not already 8 been disclosed. Specifically, Plaintiff argues that the trial testimony of Defendant's expert witnesses, 9 Suzanne Heinemann and William Apps, should be limited to what the experts provided in their initial disclosures and expert reports. Plaintiff insists that any other opinions should be excluded pursuant to Federal Rule of Civil Procedure 37(c)(1).

This motion in limine is GRANTED IN PART and DENIED IN PART. First, with respect to Mr. Apps, his expert opinions, to the extent that he provides any, shall be confined to whatever he has disclosed under Federal Rule of Civil Procedure 26(a)(2)(C). Second, with respect to Ms. Heinemann, her expert opinions shall be limited to her expert report and her deposition testimony regarding Larry Gorman's supplemental expert reports. Although Plaintiff suggests that Ms. Heinemann's deposition testimony should be excluded because she failed to provide a written supplemental report on the issue, whatever prejudice was caused by the lack of a written report was insignificant in light of the fact that Plaintiff fully deposed Ms. Heinemann on the issue. Moreover, as later explained in connection with Defendant's motion in limine number 1, Ms. Heinemann must be permitted to testify on matters that were discussed in her deposition to remedy the prejudice caused by Plaintiff's untimely submission of Larry Gorman's supplemental expert report.

3. Motion in Limine No. 3 -- Limitation on Experts

Plaintiff moves to preclude Defendant from offering expert opinions from anyone other than Suzanne Heinemann and William Apps. Plaintiff argues that Ms. Heinemann and Mr. Apps were the only experts Defendant disclosed pursuant to Federal Rule of Civil Procedure 26(a)(2)(A). Plaintiff therefore insists that Federal Rule of Civil Procedure 37(c)(1) precludes Defendant from introducing expert opinions from anyone else.

This motion in limine is GRANTED. Both parties are precluded from offering expert opinions 2 from any witness who has not been properly disclosed as an expert pursuant to Rule 26(a)(2)(A). See 3 Fed. R. Civ. P. 37(c)(1). 4

4. Motion in Limine No. 4 -- Profits, Losses, Costs, and Deductions

Plaintiff moves to preclude Defendant from introducing any evidence of costs associated with 6 manufacturing the Second Generation Harvest Tote. Plaintiff argues that it requested such information 7 during discovery but Defendant failed to respond. 8

This motion in limine is GRANTED IN PART and DENIED IN PART. Although Defendant's 9 responses are deficient, it appears that Defendant did produce some documents relating to costs of the Second Generation Harvest Tote. Moreover, the existence of certain costs such as resin appear to be undisputed. Therefore, while Defendant may not offer any evidence not produced during discovery, Defendant will not be precluded from offering evidence on this matter altogether.

5. Motion in Limine No. 5 -- Advertising and Marketing

Plaintiff moves to preclude Defendant from offering any evidence of advertising and marketing by Defendant regarding the Harvest Tote and the Second Generation Harvest Tote. Plaintiff maintains that Bill Bloch was the person most knowledgeable about the subject, yet Defendant refused to make Mr. Bloch available for deposition. Plaintiff stresses that Defendant instead had Cory Phillips and Jon Kalin deposed on the issue, despite the fact that neither witness was adequately prepared to testify on advertising or marketing.

This motion in limine is GRANTED IN PART and DENIED IN PART. Precluding Defendant from offering any evidence of advertising and marketing is not warranted, as there is no basis for such a sweeping prelusion. However, while Mr. Kalin and Mr. Phillips will be allowed to testify at trial on the issue of Defendant's advertising and marketing efforts, neither witness will be allowed to expand or change their deposition testimony. As for Mr. Bloch, he is precluded altogether from testifying at trial. In refusing to make Mr. Bloch available for deposition, Defendant represented to Plaintiff that Mr. Bloch was ill and that Defendant would not call Mr. Bloch to testify at trial. The Court will hold Defendant to that representation.

6. Motion in Limine No. 6 -- Authority to Develop and Sell the Second Generation Harvest Tote

Plaintiff moves to preclude Defendant from offering evidence as to why it believed it had the 4 authority to develop and sell the Second Generation Harvest Tote. Plaintiff maintains that it requested 5 this information by way of interrogatory, but Defendant failed to respond. 6

This motion in limine is GRANTED IN PART and DENIED IN PART. It appears that while Defendant did not respond to Plaintiff's Interrogatory Number 22, Defendant did suggest the basis for 8 its belief that it had the authority to develop and sell the Second Generation Harvest Tote in its other 9 discovery responses. Therefore, Defendant will not be completely precluded from offering evidence on the issue. However, Defendant will be confined to the reasons that were set forth in its discovery responses, including (1) Defendant's response to Plaintiff's Interrogatory Number 14; (2) Defendant's ...


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