United States District Court, D. Colorado
ORDER GRANTING IN PART DEFENDANTS' MOTION IN
William J. Martínez United States District Judge
tort action pending under the Court's diversity
jurisdiction, 28 U.S.C. § 1332, Plaintiff pursues claims
against all Defendants for tortious interference with his
employment contract and with related business expectancies,
while Defendant-CounterClaimant Taylor Swift
(“Swift”) pursues counterclaims for the torts of
assault and battery. Now before the Court is Defendants'
Motion In Limine (ECF No. 154 (Defendants'
Court has set out the factual background of this case and the
parties' claims in some detail in prior orders, and
familiarity with that background is presumed. (See
ECF Nos. 137, 190.) For the reasons explained below,
Defendants' Motion is granted in part.
PLAINTIFF'S TESTIMONY REGARDING FUTURE LOST
first move to exclude Plaintiff's own testimony
“about earnings after the expiration of his contract,
” or more generally regarding his claims of future lost
profits, claimed as damages arising from his claims for
tortious interference with his employment contract and with
related business expectancies. (See ECF No. 154 at
Colorado law, a plaintiff may recover damages for intentional
interference with contract, but only if the injuries are
reasonably to be expected to result from the
interference.” Jones v. Wells Fargo Bank,
N.A., 2014 WL 3906297, at *1 (D. Colo. Aug. 7, 2014)
(citing, inter alia, Westfield Dev. Co. v. Rifle
Inv. Associates, 786 P.2d 1112, 1121 (Colo.1990)).
“To recover damages, a plaintiff must show an injury
and produce evidence sufficient to permit a reasonable
estimation of damages.” Id. (citing Hauser
v. Rose Health Care Sys., 857 P.2d 524, 531
“lost profits are recoverable only if they can be
proven with reasonable certainty.” Denny Const.,
Inc. v. City & Cty. of Denver ex rel. Bd. of Water
Comm'rs, 199 P.3d 742, 746 (Colo. 2009).
“[A]” plaintiff seeking future damages must
provide the trier of fact with ‘(1) proof of the fact
that damages will accrue in the future, and (2) sufficient
admissible evidence which would enable the trier of fact to
compute a fair approximation of the loss.'”
Id. (quoting Pomeranz v. McDonald's
Corp., 843 P.2d 1378, 1381-82 (Colo.1993)).
Defendants argue that Plaintiff “should be excluded
from testifying about potential opportunities for recovery
outside the terms of his [employment] contract, ”
because, Defendants argue, Plaintiff's own testimony on
these issues is too speculative to meet the minimum standard
for recovering lost future profits under controlling case
law, including Denny Construction. Defendants
further argue that Plaintiff's supporting testimony
regarding his claims for loss of specific business
opportunities is predicated on inadmissible hearsay.
the Plaintiff's testimony to support his claims for
damages in general, the Court concludes that Defendants'
argument goes to the weight or sufficiency of Plaintiff's
testimony as evidence supporting his claims, but does not
make it inadmissible. For the most part, the cases cited by
Defendants have addressed the sufficiency of particular
evidence submitted and considered, not the admissibility of
that evidence. See, e.g., SolidFX, LLC v. Jeppesen
Sanderson, Inc., 2014 WL 2891575, at *4 (D. Colo. June
26, 2014) (granting in part motion for judgment as a matter
of law), rev'd in part, 841 F.3d 827 (10th Cir.
2016); Jones v. Wells Fargo Bank, N.A., 2014 WL
3906297, at *1 (D. Colo. Aug. 7, 2014) (denying default
judgment for lack of sufficient evidence); JDB Med., Inc.
v. The Sorin Grp., S.p.A., 2008 WL 10580039, at *8 (D.
Colo. June 11, 2008) (granting summary judgment in part);
Master Palletizer Sys., Inc. v. T.S. Ragsdale Co.,
725 F.Supp. 1525, 1535 (D. Colo. 1989) (entering findings of
fact and judgment following bench trial); Denny
Construction, 99 P.3d at 751 (reversing jury verdict);
W. Cities Broad., Inc. v. Schueller, 849 P.2d 44, 45
(Colo. 1993) (affirming jury verdict); Wojtowicz v.
Greeley Anesthesia Servs., P.C., 961 P.2d 520, 522
(Colo.App. 1997) (reversing in part declaratory judgment).
None of these authorities stand for the proposition that
evidence regarding future damages is inadmissible simply
because it is weak. Defendants also cite Underground
Vaults & Storage v. Cintas Corp., 2013 WL 6150764,
at *3 (D. Kan. Nov. 22, 2013), but there the district court
excluded proposed expert opinion testimony as insufficiently
reliable under Federal Rule of Evidence 702 and Daubert
v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Since Plaintiff has not been endorsed as an expert witness,
Underground Vaults does not call for excluding his
short, the Court concludes that Defendants' argument, as
well as all of their cited authorities, bear on the
sufficiency of Plaintiff's evidence to support his
claims, but not on its admissibility. Accord Ryskin v.
Banner Health, Inc., 2010 WL 4873671, at *1 (D. Colo.
Nov. 23, 2010) (“Defendants' arguments concerning
Plaintiff's subsequent job history goes to weight and
impeachment, but not admissibility.”) However, a motion
in limine “shall not be a veiled motion for
summary judgment.” WJM Revised Practice Standards
III.F.2. It is too late for Defendants to move for summary
judgment on this issue, and too early to move for judgment as
a matter of law. (ECF No. 62 at 13; see generally
Fed. R. Civ. P. 56 & 50(a)(1).)
Defendants' Motion is DENIED to the extent it seeks a
blanket pretrial order excluding all of Plaintiff's
testimony regarding future lost profits or lost business
Defendants' Motion also raises a separate and more
discrete evidentiary objection as to specific statements that
Plaintiff reported other unidentified persons made to him, to
the effect that Plaintiff had been promised specific
opportunities for future promotional appearances while he was
an on-air radio personality (e.g., at a water park,
a tire center, and a barbeque restaurant). (See ECF
No. 154 at 7.) Plaintiff claims these opportunities were lost
as a result of Defendants' conduct, supporting his claims
for damages for tortious interference with business
opportunities. The Court agrees with Defendants that
Plaintiff's deposition testimony on these points, as
quoted in Defendants' Motion (id.) constitutes
inadmissible hearsay. Accordingly, Defendants' Motion is
GRANTED to the extent that Plaintiff cannot offer equivalent
testimony at trial. Of course, the Court's Order on this
point is not self-executing and Defendants still must still
raise contemporaneous objections if Plaintiff attempts to
offer similar hearsay testimony at trial. See
generally Fed. R. Evid. 103(a), 801(c), 802.
LIMITING IMPROPER EXPERT TESTIMONY
next argue that they “anticipate Plaintiff will attempt
to provide testimony akin to expert or lay testimony on the
radio industry, and on-air talent in particular, including
hiring patterns and the effect of terminations, ” and
that he should be precluded from offering an expert opinion
under Rule 702, or a ...