Walnut Creek Manor, LLC v. Mayhew Center, LLC et al

Filing 126

ORDER ON MOTIONS IN LIMINE. Motions terminated: 91 MOTION in Limine filed by Walnut Creek Manor, LLC, 108 MOTION in Limine Correction to Document # 86 filed by Dean Dunivan.. Signed by Judge CLAUDIA WILIKEN on 5/6/09. (scc, COURT STAFF) (Filed on 5/6/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As discussed at the final pre-trial conference, the Court rules on the parties' motions in limine as follows: Walnut Creek Manor's Motions in Limine No. 1: Exclude superior court's decision of WCM's writ petition No. 2: Exclude MC's groundwater migration theory No. 3: Exclude soil vapor results as evidence of contamination source No. 4: Exclude MC's post-lawsuit photographs of the WCM property No. 5: Exclude evidence of diesel underground storage tank formerly on WCM property Granted Denied Denied v. WALNUT CREEK MANOR, LLC, Cross-Defendant. ____________________________________/ MAYHEW CENTER, LLC; and DEAN DUNIVAN, Cross-Claimants, v. MAYHEW CENTER, LLC; and DEAN DUNIVAN, Defendants. WALNUT CREEK MANOR, LLC, Plaintiff, No. C 07-05664 CW ORDER ON MOTIONS IN LIMINE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Denied Granted

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

No. 6: Exclude evidence of potential use by WCM residents of household cleaning products that may have contained PCE No. 7: Exclude evidence of vehicle repair at WCM as a potential source of PCE release No. 8: Exclude evidence regarding the existence of total petroleum hydrocarbons (TPH) in the WCM soil. No. 9: Exclude testimony that the amount of PCE "spilled" in this case does not exceed two gallons No. 10: Exclude evidence of "data gaps" on WCM property No. 11: Exclude soil data derived from unlicensed sampling collected by Dean Dunivan No. 12: Exclude expert testimony of William Wick No. 13: Exclude expert testimony of Walter Ricci regarding diminution of MC's property value No. 14: Exclude testimony of undisclosed expert witnesses No. 15: Exclude Jan Schutze's testimony on chemicals used by Etch-Tek No. 16: Exclude Christopher Vais' testimony regarding source of PCE release or PCE migration patterns No. 17: Exclude Vais' opinion that PCE on the MC property is inconsistent with a release from an industrial user No. 18: Exclude evidence of MC's estimated remediation costs as tort damages 2

Denied

Denied

Denied

Granted as moot because MC's experts will not testify to this fact; however, Schultze may testify as to the estimated quantity of the spill Denied Denied

Granted Denied

Granted, but Scott Seyfried and John Mateo may testify as fact witnesses. Denied, however Schutze cannot testify that Etch-Tek did not use PCE Granted as moot because Vais' testimony will not be offered for this purpose Denied

Denied

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Mayhew Center's Motions in Limine No. 1: Exclude Robert Kuykendall's expert opinion No. 2: Exclude Michael Williams' expert opinion No. 3: Exclude Joseph Odencrantz No. 4: Admit WCM's declaration that it hired Joseph Odencrantz for purposes of litigation No. 5: Exclude Scott Warner from testifying about issues not previously disclosed to MC No. 6: Exclude reference to the fact that MC's counsel previously retained Scott Warner No. 7: Exclude evidence of the Concord site contamination No. 8: Exclude evidence that Etch-Tek was "known to have used PCE" No. 9: Exclude fire department safety notices and related letters issued to Etch-Tek No. 10: Exclude the Etch-Tek floor plan No. 11: Exclude reference to MC's failure to develop a health and safety plan No. 12: Prohibit WCM from introducing evidence of diminution of its property value IT IS SO ORDERED. Dated: 5/6/09 CLAUDIA WILKEN United States District Judge Denied if offered as a proper rebuttal witness Denied, however Williams cannot testify as to the credibility of the Beards' testimony Denied if offered as a proper rebuttal witness Denied

Granted, only to the extent that Warner will testify on issues not previously disclosed Denied; Walnut Creek Manor may raise this on redirect Denied Granted

Granted

Denied Denied

Denied

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