United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS IN LIMINE
WILLIAM J. MARTÍNEZ, District Judge.
This action is set for an eight-day jury trial commencing April 7, 2014. Before the Court are the parties' Motions in Limine. (ECF Nos. 242 & 243.) For the reasons set forth below, the Motions are granted in part and denied in part.
I. PLAINTIFF'S MOTION IN LIMINE
Plaintiff moves to exclude the following evidence: (1) non-disclosed expert opinions from Rick Ellerbrock; (2) exhibits containing non-disclosed expert opinions; and (3) a portion of Dr. Jonathan Arnold's testimony. (ECF No. 242.) Each of these categories of evidence will be discussed in turn below.
A. Non-Disclosed Expert Opinions from Rick Ellerbrock
Rick Ellerbrock is an employee of Defendant and was involved with securing authorization from the Federal Aviation Administration ("FAA") for Defendant's electronic software applications. During his deposition, Mr. Ellerbrock expressed his belief that, based on his experience in the field, it would have been difficult, if not impossible, for Plaintiff to get its proposed iPad app authorized by the FAA. ( See ECF No. 242-2.) Mr. Ellerbrock was not disclosed as an expert. (ECF No. 242-1.)
Plaintiff moves to exclude any portion of Mr. Ellerbrock's testimony at trial which would constitute an expert opinion under Federal Rule of Evidence 702. (ECF No. 242 at 5.) Plaintiff contends that Mr. Ellerbrock's opinions regarding regulatory authorization procedures and requirements that would have applied to its products are not within the realm of an ordinary person's knowledge, and are therefore expert opinions. ( Id. ) In opposition to the Motion, Defendant contends that it intends to call Mr. Ellerbrock to testify at trial only as a fact witness, and does not intend to elicit opinion testimony. (ECF No. 276 at 3.) Defendant argues that any opinion offered by Mr. Ellerbrock during his deposition came about as a result of Plaintiff's counsel's questioning, but that Mr. Ellerbrock will not offer such opinions at trial. ( Id. )
The Court has previously given the parties guidance as to its view on the line between lay witness opinion testimony governed by Rule 701, and expert witness opinion testimony which is subject to Rule 702. ( See ECF No. 270.) Given Mr. Ellerbrock's training and experience, it is likely that any opinion testimony he offered would fall within Rule 702. Because he was not disclosed as an expert witness, the Court will not permit him to offer such opinion testimony at trial. See Fed.R.Civ.P. 37© (barring testimony is appropriate sanction for non-disclosure). However, the Court will not preclude Mr. Ellerbrock from offering testimony as a fact witness, even about matters of a specialized nature.
Accordingly, the Court excludes any opinion testimony offered by Mr. Ellerbrock that would fall within Rule 702, but otherwise allows his testimony.
Plaintiff moves to exclude Defendant's exhibits A70, A77, A79-A83, A85, A87, and A90-A91, which are presentations discussing the process and procedures concerning the regulatory authorization of terminal chart applications. (ECF No. 242 at 6; ECF Nos. 242-3, 242-4, & 244-246.) Plaintiff contends that these exhibits are hearsay and that Defendant should not be permitted to insert expert opinions into presentation form and have them admitted as substantive evidence. (ECF No. 242 at 7.)
Defendant contends that these presentations are not hearsay because they fall within the business records exception. (ECF No. 276 at 4-5.) The Court disagrees. Even assuming Defendant could show that they were prepared in the ordinary course of business, the mere fact that a document was creased in the course of employment does not render it a business record. The presentations are not records of any act, transaction, occurrence or event, as required by Rule 803(6). They are also not the sort of document that bears sufficient indicia of reliability to qualify as a business record. Rather, the Court finds that these presentations are akin to training manuals and lesson plans, which are not covered by the business records exception. See In re Nassau Cnty., 742 F.Supp.2d 304, 319 (E.D.N.Y. 2010) (lesson plan prepared for training was not business record); Gonzalez v. City of Garden Grove, 2006 WL 5112757 (C.D. Cal. Dec. 4, 2006) (training manuals are not business records); 12A Fed. Proc. L.Ed. 33:445 ("Although the scope of Rule 803(6) is broad, it is not unlimited; for example, it does not embrace operating or procedural manuals, which are not records of any act, transaction, occurrence, or event as required by the Rule.").
Defendant also contends that these presentations are not hearsay because they are not being offered for the truth of the matter asserted. (ECF No. 276 at 5.) Defendant argues that the presentations are "a reflection of the efforts and resources that Jeppesen has undertaken with respect to the regulatory authorization process." ( Id. ) Assuming that this is the purpose for these exhibits, the Court finds that they should be excluded under Rule 403. If they are not being offered for the truth of the matter asserted, these exhibits have little relevance to the case. Defendant will already offer testimony from Mr. Ellerbrock about the steps taken by Defendant to get regulatory authorization for its products, and can question Mr. Ellerbrock or other witnesses about steps taken to educate customers. The Court fails to see how introducing the actual presentations into evidence materially adds to this testimony.
Rather, the Court finds that introduction of these exhibits has the potential to confuse the jurors about the issues in this case because these presentations contain a lot of information that is highly technical. The Court also agrees with Plaintiff's assertion that there are a lot of opinions in these presentations, and Plaintiff will not have the opportunity to question those opinions if the exhibits are admitted into evidence. Even if Defendant is not offering the exhibits for the truth of the matter asserted therein, there is a real possibility that the jurors could fail to draw this technical distinction, which would unfairly prejudice the Plaintiff because it will not have the opportunity to cross-examine the author of the opinions.
In sum, the Court finds that the presentations contained in exhibits A70, A77, A79-A83, A85, A87, and A90-A91 do not fall within the business records exception and, if not offered for the truth of the matter asserted, are barred by Rule 403. Accordingly, the Court excludes admission of these exhibits.
C. Dr. Arnold's Testimony
Dr. Arnold is Jeppesen's economic expert. Plaintiff does not move to exclude his testimony generally, but argues for exclusion of any portion of Dr. Arnold's opinion which assumes that Plaintiff would not have been able to gain regulatory authorization for its proposed iPad app. (ECF No. 242 at 7-8.) Specifically, Plaintiff challenges Dr. Arnold's opinion that Plaintiff has failed to establish any damages because it has not shown that it would have been able to obtain regulatory authorization for its proposed product. ( Id. ) Plaintiff argues that, as an economist, Dr. Arnold is not qualified to offer an opinion on Plaintiff's ability to obtain regulatory authorization.
Defendant states that it does not intend to have Dr. Arnold testify about whether Plaintiff would have obtained the necessary regulatory approval for its apps. (ECF No. 276 at 5.) Defendant points out that Dr. Arnold's report states only that Plaintiff has not submitted evidence showing that it would have obtained regulatory approval. ( Id. )
The Court sees no reason to exclude any portion of Dr. Arnold's opinions. As an economic expert, he is free to make certain assumptions, and then testify about the effect those assumptions would have on any economic issues. Utility Trailer Sales of Kan. City, Inc. v. MAC, 267 F.R.D. 368, 372 (D. Kan. 2010) (assumptions by economic expert do not make opinions inadmissible). The assumptions underlying an expert opinion go to the weight that should be ...