Watson et al v. Dillon Companies, Inc. et al

Filing 725

ORDER. ORDERED that the Kroger Defendants' request for leave to file a motion in limine regarding the admissibility of the Innova Model 1312 Photoacoustic Multi-Gas Monitor and related testing is DENIED by Chief Judge Wiley Y. Daniel on 06/22/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 08-cv-00091-WYD-CBS
WAYNE WATSON and
MARY WATSON,
Plaintiffs,
v.
DILLON COMPANIES, INC., d/b/a/
KING SOOPERS, also d/b/a
INTER-AMERICAN PRODUCTS, INC., et al.,
Defendants.

ORDER

THIS MATTER came before the Court as part of a status conference held on June
13, 2012. For reasons stated on the record at the June 13, 2012 conference and set
forth below, I deny the Kroger Defendants’ request to file a motion in limine regarding the
testing conducted in Plaintiff’s home using the Innova Model 1312 Photoacoustic
Multi-Gas Monitor.1
The Kroger Defendants claim that Dr. Martyny and National Jewish Hospital failed
to calibrate and maintain the Innova Model 1312 Photoacoustic Multi-Gas Monitor prior to
conducting various tests at Plaintiff’s home. They seek to file a motion in limine pursuant
to Fed. R. Civ. P. 403 excluding this evidence at trial. However, since this is an
evidence-driven issue, I believe pretrial briefing is both unnecessary and a waste of
resources. Instead of reviewing the parties’ opposing arguments pretrial, I find that this
1

There have been numerous orders entered in this matter detailing both the procedural and factual
background of this case. Those orders are incorporated by reference herein.

issue requires consideration of the specific evidence offered and received in the context
of the trial. Therefore, should the Kroger Defendants seek to renew this request at trial,
they may do so at an appropriate time outside the presence of the jury. I will hear
testimony and receive admissible evidence regarding the reliability of the Innova Model
1312 Photoacoustic Multi-Gas Monitor and determine whether this evidence is
admissible at trial under the governing rules. Accordingly, until I have made a ruling on
this issue, no party shall mention this evidence in front of the jury at any phase of the trial.
Based on the foregoing, it is
ORDERED that the Kroger Defendants’ request for leave to file a motion in limine
regarding the admissibility of the Innova Model 1312 Photoacoustic Multi-Gas Monitor
and related testing is DENIED. It is
FURTHER ORDERED that at trial, no party shall mention the Innova Model 1312
Photoacoustic Multi-Gas Monitor or the related test results in front of the jury until I have
resolved this issue outside the presence of the jury.
Dated: June 22, 2012

BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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