Mueller v. Swift et al

Filing 192

ORDER Granting in Part Defendants' 154 MOTION in Limine. ORDERED by Judge William J. Martinez on 07/20/2017. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-1974-WJM-KLM
DAVID MUELLER,
Plaintiff,
v.
TAYLOR SWIFT,
Defendant and CounterClaimant,
and
FRANK BELL, and
ANDREA SWIFT a/k/a Andrea Finlay,
Defendants.

ORDER GRANTING IN PART DEFENDANTS’ MOTION IN LIMINE

In this 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 DefendantCounterClaimant 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’ “Motion”).)
The 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.

I. PLAINTIFF’S TESTIMONY REGARDING FUTURE LOST PROFITS
Defendants 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
1–8.)
“Under 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 (Colo.App.1993)).
Generally, “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 W ater Comm'rs,
199 P.3d 742, 746 (Colo. 2009). “[A]” plaintif f 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)).
Here, Defendants argue that Plaintiff “should be excluded from testifying about
potential opportunities for recovery outside the terms of his [employment] contract,”

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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.
As to 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) (ent ering 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

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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 testimony.
In 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).)
Accordingly, 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 opportunities.
However, 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

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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 selfexecuting 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.
II. LIMITING IMPROPER EXPERT TESTIMONY
Defendants 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 lay opinion under
Rule 701, because he “is not qualified” to do so. (ECF No. 154 at 8.)
It is frequently true that “the dividing line between lay and expert testimony is not
entirely clear.” SolidFX, LLC v. Jeppesen Sanderson, Inc., 2014 WL 983507, at *2 (D.
Colo. Mar. 13, 2014). However, Defendants’ Motion on this point does not seek relief
which can be granted before trial, or separate and apart from simply asking the Court to
enforce the Federal Rules of Evidence and controlling authorities regarding the
admissibility of expert and lay testimony at trial. The cases cited by Defendants as to

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the necessity of expert testimony regarding industry standards or practices arose in
contexts where such testimony was used or required to prove a relevant standard of
care, and they do not support a pre-trial order excluding any portion of Plaintiff’s
testimony in the circumstances here. (See ECF No. 154 at 8.) Plaintiff has not been
disclosed or endorsed as an expert witness, and will not be permitted to offer expert
opinions or other testimony that is admissible only under Rule 702. He may offer lay
opinion testimony only if the foundational requirements of Rule 701 are met. The Court
cannot determine before trial whether any particular testimony will or will not constitute
improper expert testimony or be inadmissible under Rule 701, or on any other grounds.
Accordingly, Defendants’ Motion is DENIED to the extent it seeks a pre-trial
exclusionary order barring any portion of Plaintiff’ testimony under Federal Rules of
Evidence 701 or 702.
III. Conclusion
For the reasons set forth above, Defendants’ Motion In Limine (ECF No. 154) is
GRANTED IN PART and DENIED IN PART as described above.
Dated this 20th day of July, 2017.
BY THE COURT:

_________________________
William J. Martínez
United States District Judge

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