Escobar v. European Aeronautic Defence and Space Company et al

Filing 324

ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT'S MOTION IN LIMINE NO. 6 TO PRECLUDE PLAINTIFF FROM RELYING ON OR REFERRING TO EVIDENCE AND/OR THEORIES NOT PREVIOUSLY DISCLOSED (ECF No. 216 ). Signed by U.S. DISTRICT JUDGE HELEN GILLMOR on 10/7/2016. (afc)WRITTEN ORDER follows hearing held September 29, 2016 on Defendant Airbus Helicopters SAS Motion in Limine No. 6. Minutes of hearing: doc. no. 294 .CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
VIOLETA ESCOBAR, also known as
VIOLETA ESCOBAR CLINE,
Individually and as Personal
Representative for the ESTATE
OF NATHAN CLINE, Deceased,
Plaintiff,
vs.
AIRBUS HELICOPTERS SAS,
Defendant.

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Civil No. 13-00598 HG-RLP

ORDER GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT’S MOTION
IN LIMINE NO. 6 TO PRECLUDE PLAINTIFF FROM RELYING ON OR
REFERRING TO EVIDENCE AND/OR THEORIES NOT PREVIOUSLY DISCLOSED
(ECF No. 216)

I.

Defendant’s Motion in Limine No. 6 (ECF No. 216)
Defendant’s Motion in Limine No. 6 (ECF No. 216) was filed

on September 13, 2016.

Defendant’s Motion No. 6 seeks to

preclude Plaintiff from presenting “any evidence, argument and/or
theories at trial that depart from or attempt to supplement what
is in Plaintiff’s expert reports.”

(Def.’s Motion at p. 1, ECF

No. 216).
Plaintiff filed an Opposition on September 20, 2016.
No. 269).

(ECF

Plaintiff objects to Defendant’s Motion to the extent

that it precludes her from introducing or relying on documents in
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the possession of Defendant.
II.

Federal Rule of Civil Procedure 26(a)

Rule 26 of the Federal Rules of Civil Procedure requires the
parties to disclose the identities of each expert and, for
retained experts, requires that the disclosure include the
experts’ written reports.

Fed. R. Civ. P. 26(a)(2).

The Parties

must make their expert disclosures pursuant to the Court’s
scheduling order.

Fed. R. Civ. P. 26(2)(D).

Rule 26(a)(2)(B)(i) requires that the experts’ written
reports contain a complete statement of all opinions the witness
will express and the basis for them.

Hambrook v. Smith, Civ. No.

14-00132 ACK-KJM, 2016 WL 4084110, *2-*3 (D. Haw. Aug. 1, 2016)
(citing Estate of Bojcic v. City of San Jose, 358 Fed. Appx. 906,
907 (9th Cir. 2009) and Ciomber v. Coop. Plus, Inc., 527 F.3d
635, 641 (7th Cir. 2008)).
The Ninth Circuit Court of Appeals has explained that the
Court’s scheduling order and deadlines imposed by the Federal
Rules of Civil Procedure are “to be taken seriously.”

Janicki

Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994).

Timely

and careful compliance with expert disclosure requirements is
essential both as a matter of fairness to litigants and as a
matter of orderly procedure.

Suzuki v. Helicopter Consultants of

Maui, Inc., Civ. No. 13-00575JMS-KJM, 2016 WL 3753079, *6 (D.

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Haw. July 8, 2016).
Expert witnesses may expand upon, supplement, elaborate, and
explain their theories at trial, but the expert generally may not
testify as to new opinions not contained in the expert report.
Durham v. Cnty. of Maui, No. Civ. 08-00342 JMS-RLP, 2011 WL
2532423, at *7 (D. Haw. June 23, 2011); Bojcic, 358 Fed. Appx. at
907; Chiriboga v. Nat’l R.R. Passenger Corp., 2011 WL 2295281, at
*5-*6 (N.D. Ill. June 9, 2011).
III. Analysis
A.

The Portion of Defendant’s Motion in Limine that
Requests the Court Preclude Introduction of New
Theories is Granted

The Parties agree that neither party may introduce new
theories at trial that were not previously disclosed.

Plaintiff

stated in her Opposition that “[t]o the extent that Airbus
Helicopters argues that Plaintiff’s experts should be precluded
from relying on theories not previously disclosed, Plaintiff
agrees that both parties’ experts should be precluded from doing
so.”

(Pla.’s Opp. at p. 6, ECF No. 269).
Defendant’s Motion in Limine No. 6 to preclude Plaintiff

from relying on theories that were not previously disclosed is
GRANTED.
Both Parties are precluded from relying on new theories at
trial that were not previously disclosed.

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B.

The Portion of Defendant’s Motion in Limine that
Requests the Court Preclude Plaintiff from Relying on
or Referring to Evidence in Possession of the Defendant
is Denied

Plaintiff may introduce and rely on the documents disclosed
by the Defendant after the discovery deadline to the extent the
documents are otherwise admissible.

Reliance on such evidence in

this instance is substantially justified and harmless.

Lanard

Toys Ltd. v. Novelty, Inc., 375 Fed. Appx. 705, 713 (9th Cir.
2010).
Defendant cannot be prejudiced or surprised by introduction
of evidence that it had in its exclusive possession for an
extended period of time.

Melczer v. Unum Life Ins. Co. of Am.,

259 F.R.D. 433, 436 (D. Ariz. 2009) (The purpose of disclosures
is to prevent unnecessary surprise and to streamline litigation.
Where Defendants were already aware of all of the documents,
which they undoubtedly were, since they were the ones to
originally disclose them, any failure by Plaintiff to “redisclose” the documents back to Defendants would be harmless).
Defendant’s Motion in Limine No. 6 to preclude Plaintiff
from referring to evidence that does not propose new theories or
opinions is DENIED.
Plaintiff is not precluded from referring to or introducing
evidence that was disclosed by the Defendant after the discovery
deadline.
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CONCLUSION
Defendant’s Motion in Limine No. 6 (ECF No. 216) is GRANTED,
IN PART, AND DENIED, IN PART.

IT IS SO ORDERED.
Dated: October 7, 2016, Honolulu, Hawaii.

Violeta Escobar, also known as Violeta Escobar Cline,
Individually, and as Personal Representative for the Estate of
Nathan Cline, Deceased v. Airbus Helicopters SAS, Civil No. 1300598 HG-RLP; ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT’S MOTION IN LIMINE NO. 6 TO PRECLUDE PLAINTIFF FROM
RELYING ON OR REFERRING TO EVIDENCE AND/OR THEORIES NOT
PREVIOUSLY DISCLOSED (ECF No. 216)
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