United States District Court, D. Colorado
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on Defendant's Renewed
Motion in Limine to Exclude Testimony and Evidence Related to
Damages Claims [#130] (the “Motion”).
Plaintiff filed a Response [#136], and Defendant filed a
Reply [#138]. The Court has reviewed the briefing, the entire
case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Motion [#130] is DENIED.
previously filed a Motion in Limine to Exclude Testimony and
Evidence Related to Untimely Disclosed Damages [#94] on
November 22, 2017. Defendant argued that Plaintiff newly
disclosed nearly $9 million worth of damages on the day
before the discovery cut-off. The Court found that it lacked
sufficient information to rule on the merits of
Plaintiff's damages, and that resetting the trial and
allowing additional discovery was the only way to cure
potential prejudice to Defendant. Order [#110] at
6-7. The Court first ordered Plaintiff to provide a finalized
computation of damages pursuant to Rule 26, and then
permitted Defendant to tender to Plaintiff five
interrogatories and five requests for admission, as well as
the opportunity to take three depositions, and to endorse an
additional expert regarding damages. Minute Order
[#119] at 1-2. The Court also ordered Defendant to file any
renewed motion to exclude testimony and/or evidence related
to damages on or before February 1, 2018. Id. at 2.
February 1, 2018, Defendant filed the present Motion [#130]
requesting that the Court preclude Plaintiff from presenting
testimony and evidence related to two categories of damages
at trial. Motion [#130]. Defendant seeks to exclude
Plaintiff's Category 3 (“Cost of Redesign of the
Sole 4”) and Category 6 (“Lost Profits”)
purpose of a motion in limine is to aid the trial process by
enabling the Court to rule in advance of trial on the
relevance of certain forecasted evidence, as to issues that
are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” Martensen v.
Koch, No. 13-CV-02411-REB-CBS, 2015 WL 514913, at *2 (D.
Colo. Feb. 6, 2015) (quoting Mendelsohn v. Sprint/United
Management Co., 587 F.Supp.2d 1201, 1208 (D. Kan. 2008),
aff'd, 402 Fed.Appx. 337 (10th Cir. 2010)).
Although motions in limine can save time when ruled on prior
to trial, “a court is almost always better situated
during actual trial to assess the value and utility of
Damage Categories Are “Outside the Scope” of the
first argues that the “Lost Profits” and
“Redesign Costs” categories of damages should be
excluded because they are outside the scope of the
allegations in the Complaint. Motion [#130] at 6-10.
Defendant contends that the Complaint [#2] solely pertains to
the OmniTouch 7 (also referred to as the “Sole
7”) device, yet Plaintiff's new “Lost
Profits” category relates to lost sales of the Sole 3
and Sole 4, in addition to the OmniTouch 7. Id. at
7. Similarly, Plaintiff's new “Redesign of the Sole
4” category also pertains to a device not named in the
Complaint [#2]. Lastly, Defendant contends that the Complaint
[#2] only alleges one relevant customer, Leviton, whereas the
basis of the “Lost Profits” damages category is
contracts lost with other potential customers. Id.
Defendant argues that these damages, which it contends are
outside the scope of the Complaint [#2], constitute new legal
theories and that Plaintiff should have sought leave to amend
its pleadings to seek these categories of damages.
Id. at 9.
support of Defendant's argument regarding the scope of
the Complaint [#2], Defendant cites to Zokari v.
Gates, 561 F.3d 1076 (10th Cir. 2009). Defendant relies
in particular on the following language from Zokari:
In this circuit when a plaintiff attempts to add a new theory
- a new cause of action - late in the game, the issue has not
been whether the legal theory should be read into the
complaint, but whether an amendment to the complaint should
Plaintiff argues, however, Zokari dealt with whether
a party could add a new cause of action, as opposed to a new
category of damages, without amending the
pleadings. See Response [#136] at
2-3. Defendant does not cite to any other legal authority
supporting its argument that Plaintiff was required to amend
its Complaint [#2] in order to seek new categories of
damages. Furthermore, on considering whether to strike these
categories previously, the Court determined that Fed.R.Civ.P.
26(a)(1)(A)(iii) applied, as it is the rule providing for
“computation of each category of damages claimed by the
disclosing party.” See Order [#110] at 2.
Pursuant to Rule 26, the Court determined that
Plaintiff's late disclosure of the computation of each
category of damages would prejudice Defendant if trial went
forward as planned. Id. at 4. To cure the prejudice,
the Court reset the trial and gave Defendant the opportunity
to conduct further discovery related to damages. Id.
Given that Defendant has not provided on-point legal
authority to support its position, and that the Court
previously determined that Rule 26 applies to timeliness of
disclosures related to damages, the Court declines to exclude
Plaintiff's damages categories on these grounds.
initial matter, Plaintiff argues that Defendant has already
attempted the argument that Plaintiff's “lost
profit” damages are speculative, and that the Court
ruled that there was a material issue of fact precluding
summary judgment. Response [#136] at 5. However, as
Defendant contends, the Court's ruling issued before
Plaintiff clarified the damages that it seeks, and also
before Defendant engaged in discovery on those issues.
Reply [#138] at 4. Defendant was permitted to file
this Motion [#130] after conducting discovery. Minute
Order [#119]. Thus, the Court will consider
Defendant's substantive arguments.
plaintiff must provide the following evidence to the trier of
fact in order to seek lost profits: “(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.”
Denny Const., Inc. v. City & Cty. of Denver ex rel.
Bd. of Water Comm'rs, 199 P.3d 742, 746 (Colo. 2009)
(quoting Pomeranz v. McDonald's Corp., 843 P.2d
1378, 1382 (Colo. 1993)). “A claim for future profits
may not be sustained by evidence which is speculative,
remote, imaginary, or impossible of ascertainment.”
Roberts v. Holland & Hart, 857 P.2d 492, 496-97
(Colo.App. 1993) (citing Lee v. Durango Music, 355
P.2d 1083 (1960)). While documentary evidence of damages is
preferred, “[d]amages can . . . be awarded based on
undocumented testimony by the plaintiff or other
witnesses.” Gibbons v. Ludlow, 304 P.3d 239,
246 (Colo. 2013). Lost profits damages can be precluded as a
matter of law if they are based on mere speculation.
Id. at 248-49 (entering summary judgment against
party because speculative evidence was insufficient to
support lost profits damages). Nonetheless, “[a]
plaintiff is not barred from recovery because the amount of
damages cannot be established with mathematical certainty
once the fact of damage has been established.”
Roberts, 857 P.2d at 496-97 (citations omitted).
contends that Plaintiff's “lost profits”
damages theory is based on the following assumptions: (1) the
chips failed; (2) if the chips had not failed, Plaintiff
would have sold additional Sole 3, Sole 4, and Sole 7
devices; and (3) Plaintiff would have made a profit on the
Sole 3, Sole 4, and Sole 7 devices. Motion [#130] at
11. Defendant first argues that Plaintiff's theory is
speculative and unsupported because it has not provided any
evidence regarding the number of devices that would have been
sold, or the net profits it would have earned on lost sales.
Id. Specifically, Plaintiff's Rule 30(b)(6)
designee, Wilfried Streicher (“Streicher”),
testified that no Sole 3 or Sole 4 devices had ever been
sold, and ...