National Railroad Passenger Corporation v. Burton Olson Trucking Company et al

Filing 108

ORDER on Motions in Limine of Plaintiff National Railroad Passenger Corporation, signed by Judge Oliver W. Wanger on 4/7/2011. (Kusamura, W)

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LOMBARDI, LOPER & CONANT, LLP

B. CLYDE HUTCHINSON, State Bar No. 037526 [e-mail] JOHN W. RANUCCI, State Bar No. 184801 [e-mail] LIZA SIU MENDOZA, State Bar No. 242493 [e-mail] LOMBARDI, LOPER & CONANT, LLP Lake Merritt Plaza 1999 Harrison Street, Suite 2600 Oakland, CA 94612-3541 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff NATIONAL RAILROAD PASSENGER CORPORATION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ­ FRESNO DIVISION

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Lake Merritt Plaza 1999 Harrison Street, Su ite 2600 Oakland, CA 94612 -3541

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NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff,

Case No. 1:09-CV-01190-OWW-SKO ORDER ON MOTIONS IN LIMINE OF PLAINTIFF NATIONAL RAILROAD PASSENGER CORPORATION Trial Date: Time: Courtroom: Judge: March 30, 2011 9:00 a.m. 3, 7th Floor Oliver W. Wanger

15 v. 16 17 18 Defendants. 19 20 21 22 23 24 25 26 27 IT IS ORDERED: 1. BURTON OLSON TRUCKING COMPANY, JOSÉ MARTINEZ, E. M. THARP, INC.

All parties having appeared before the Honorable Oliver W. Wanger for a hearing on Motions in Limine on March 22, 2011, and the Court having considered the papers and arguments submitted in support of and in opposition to the motions, and good cause appearing,

Regarding Amtrak's Motion in Limine No. 1 To Limit or Exclude Any Testimony

That the Braking Performance of the Subject Tractor-Trailer Exceeded the USDOT Standards, the Court reserves ruling on the motion subject to further briefing on the issue.

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[PROPOSED] ORDER ON MOTIONS IN LIMINE OF PLAINTIFF AMTRAK

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2.

Regarding Amtrak's Motion in Limine No. 2 To Limit or Exclude Opinion

Testimony From E.M. Tharp's Expert Ashley Dunn Regarding the Negligence of The TractorTrailer Operator (Martinez) and the Owner (Burton Olson) and That Their Negligence was the "Cause" of the Accident, the court rules that Dr. Dunn cannot testify regarding such matters if such testimony is without foundation or is based on speculation without supporting evidence. Dr. Dunn will not be allowed to testify regarding the effect of pumping the brakes beyond what was stated in his expert report and deposition testimony. The court defers its ruling further until Dr. Dunn is called as a witness, at which time the court will conduct a voir dire examination of Dr. Dunn outside the presence of the jury and the court will then rule further on the motion. 3. Regarding Amtrak's Motion in Limine No. 3, To Limit or Exclude Testimony

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Lake Merritt Plaza 1999 Harrison Street, Su ite 2600 Oakland, CA 94612 -3541

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From E.M. Tharp's and Burton Olson Trucking's Damages Expert Douglas Morgan, the Court ruled: the motion to exclude E.M. Tharp's and Burton Olson Trucking's Damages Expert Douglas Morgan was GRANTED in part. Mr. Morgan will not be permitted to offer opinions on plaintiffs' "loss of use" damages. Amtrak's challenge to Douglas Morgan's opinions regarding the "excessiveness" of Amtrak's repair damages were not considered by the Court and Amtrak requests that this aspect of the motion in limine be addressed prior to the commencement of trial.

20 21 22 23 24 25 26 27 From Offering Opinions Not Contained in Their Reports, the motion is GRANTED reciprocally. 28
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4.

Regarding Amtrak's Motion in Limine No. 4, To Limit or Exclude Opinion

Testimony From E.M. Tharp's Expert Lew Grill, the court DEFERS ruling until Mr. Grill is called as a witness, at which time the court will conduct a voir dire examination of Mr. Grill outside the presence of the jury, and the court will then examine the foundation for Mr. Grill's testimony and rule on the motion. 5. Regarding Amtrak's Motion in Limine No. 5, To Preclude E.M. Tharp's Experts

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Regarding Amtrak's Motion in Limine No. 6, To Exclude Expert Testimony of

E.M. Tharp's Undisclosed Experts, the motion is GRANTED. No undisclosed experts, including E.M. Tharp employees, will be permitted to offer opinions of the standard of care or other expertrelated matters.

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7.

Regarding Amtrak's Motion in Limine No. 7, To Preclude E.M. Tharp From

Calling Witnesses Other Than Those Produced in Response to Amtrak's 30(b)(6) Deposition Notices to Testify to Designated Topics, the motion is GRANTED.

10 DATED: March 30, 2011
Lake Merritt Plaza 1999 Harrison Street, Su ite 2600 Oakland, CA 94612 -3541

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/s/ Oliver W. Wanger HONORABLE OLIVER W. WANGER

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