Alamar Ranch, LLC v. County of Boise

Filing 169

MEMORANDUM DECISION AND ORDER on Motions in Limine Re: Defendant's Experts Peter Butler and Michael Jones, and Plaintiffs' Expert Charles Wilhoite, granting in part and denying in part 103 Motion in Limine; granting in part and denying in part 106 Motion in Limine; granting in part and denying in part 114 Motion in Limine. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

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Alamar Ranch, LLC v. County of Boise Doc. 169 UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO A L A M A R RANCH, LLC, an Idaho lim ite d liability company; and YTC, L L C , an Idaho limited liability company, P la in tif f s , v. C O U N T Y OF BOISE, a political s u b d iv is io n of the State of Idaho, D e f e n d a n t. C a s e No. 1:09-cv-004-BLW M E M O R A N D U M DECISION AND O R D E R ON MOTIONS IN LIMINE R E : DEFENDANT'S EXPERTS P E T E R BUTLER (Dkt. 103) AND M I C H A E L JONES (Dkt. 106), AND P L A I N T I F F S ' EXPERT CHARLES W I L H O I T E (Dkt. 114) B e f o re the Court are Plaintiffs' Motions in Limine (Dkts. 103, 106) re: D e f e n d a n t's experts Peter J. Butler and Michael Jones, and Defendant's Motion in L im in e (Dkt. 114) re: Plaintiffs' expert Charles Wilhoite. The motions have been fully b rie f e d . The Court being familiar with the record and pleadings shall grant the motions in p a rt and deny the motions in part, as set forth in this decision. BACKGROUND P la in tif f s filed this lawsuit alleging that Defendant Boise County discriminated a g a in s t potential handicapped residents ­ in violation of the Fair Housing Act (FHA) ­ in d e n yin g , or constructively denying, Plaintiffs' application for a conditional use permit to ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 1 Dockets.Justia.com construct Alamar Ranch, a residential treatment center. Determination of the damages f ro m this denial requires analysis of the potential profit of such facility, and potential m itig a tio n of damages. Experts for Plaintiffs and Defendant will address both potential p ro f it and damage-mitigation, as well as ­ to some extent ­ the issue of Defendant's lia b ility. Now before the Court are the parties' motions to limit the testimony and o p in io n s of the opposing parties' experts. A N A L Y S IS 1. R u le 702 Standard W h e th e r and to what extent Butler, Jones, and Wilhoite may testify at trial is a d d re s s e d under the well-known standard first enunciated in Daubert and its progeny, but n o w set forth in Rule 702 of the Federal Rules of Evidence. Rule 702 establishes several re q u ire m e n ts for permitting expert opinion. First, the evidence offered by the expert must a s s is t the trier of fact either to understand the evidence or to determine a fact in issue. P rim ia n o v. Cook, ­ F.3d ­ , 2010 WL 1660303, *3 (9th Cir. 2010)(amending 598 F.3d 5 5 8 ); Fed. R. Evid. 702. "The requirement that the opinion testimony assist the trier of f a c t goes primarily to relevance." Id. at *4 (Internal quotations and citation omitted). Additionally, the witness must be sufficiently qualified to render the opinion. Id. a t *3. If specialized knowledge will assist the trier of fact to understand the evidence or d e te rm in e a fact in issue, a witness qualified by knowledge, skill, experience, training or e d u c a tio n may offer expert testimony where: (1) the opinion is based upon sufficient facts ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 2 or data, (2) the opinion is the product of reliable principles and methods; and (3) the w itn e s s has applied those principles and methods reliably to the facts of the case. Fed. R. E v id . 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993); Kumho T ir e Co. v. Carmichael, 526 U.S. 137, 147 (1999). The inquiry is a flexible one. Primiano, 2010 WL 1660303, *4 (9th Cir. 2010). U ltim a te ly, a trial court must "assure that the expert testimony both rests on a reliable f o u n d a tio n and is relevant to the task at hand." Id. (Internal quotation and citation o m itte d ). 2. P la in tiffs' Motion to Exclude or Strike Portions of Report and Testimony of P e te r Butler P la in tif f s here seek to limit testimony at trial by Defendant's expert Peter Butler, a n d to exclude parts of Butler's report. In support, Plaintiffs assert that Butler has re n d e re d opinions for which he lacks qualification, that were based on speculation, that la c k reliable basis or methodology, are irrelevant, are contrary to law, and were not timely d is c lo s e d . A. B u tle r's Testimony And Opinion On Risky Business Decisions In Project D e v e lo p m e n t And On Mitigation Of Damages In Opinion 1 of his report, Butler states that Plaintiffs were reckless in deciding to p u rc h a s e and develop land for Alamar Ranch before Boise County had either approved th e facility, or indicated whether there were restrictions to which approval was subject. Butler Report, Dkt. 140-2 at 4-5. Butler also asserts, in Opinion 2, that Plaintiffs could ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 3 have mitigated damages by building the Alamar Ranch project elsewhere. Id. at 6. P la in tif f s attack these opinions on various grounds, including: that Butler has not d e m o n s tra te d expertise as to the risks of land development or getting approval from m u n ic ip a l zoning boards (as to Opinion 1); that Butler's Opinion 2 ­ on mitigation of d a m a g e s ­ is purely speculative and without factual basis; and that both opinions are c o n tra ry to law, and thus impermissible. The Court disagrees that Butler lacks the n e c e s s a ry expertise to offer such an opinion or that the opinions are speculative. However, for the reasons set forth below, the Court is persuaded that they lack relevance a n d should therefore be excluded. O p in io n s 1 and 2 both suggest that Alamar's damages should be limited or e x c lu d e d because Alamar failed to properly anticipate that it might be precluded from o b ta in in g approval of its project. In challenging them as contrary to law, Plaintiffs c o n te n d that Butler's Opinions 1 and 2 validate a forced relocation ­ in violation of the F H A ­ and assert that Plaintiffs "should have known that Defendant was likely to u n la w f u lly deny their permit or unlawfully reduce the number of beds," Pl. Mot., Dkt. 1 0 3 -1 at 17. The best way to evaluate Plaintiff's argument is to consider how Butler's opinions w ill arise in the context of the trial itself. If the jury concludes that Defendant d is c rim in a te d against Plaintiffs in violation of the FHA, treated Plaintiffs disparately, or u n la w f u lly interfered with Plaintiffs' effort to provide housing to handicapped individuals ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 4 ­ then it would seem that Butler's opinion amounts to an argument that the Plaintiff's s h o u ld have anticipated that the Defendants would act unlawfully. To permit a reduction o f damages based on such a contention would clearly be inappropriate. In other words, a ju ry's finding that Defendants engaged in unlawful discrimination against Plaintiffs p re c lu d e s any reduction in those damages based upon a claim that the Plaintiffs should h a v e anticipated that discrimination. If, on the other hand, the jury returns a verdict for D e f e n d a n ts , no damages will be assessed and Butler's contention that the Plaintiffs acted re c k le ss ly or failed to mitigate damages would be irrelevant. The Court concludes that Butler's opinion regarding the Plaintiffs' efforts to limit risk or otherwise mitigate damages will not assist the trier of fact either to understand the e v id e n c e or to determine a fact in issue. Primiano v. Cook, ­ F.3d ­ , 2010 WL 1660303, * 3 (9th Cir. 2010)(amending 598 F.3d 558). Accordingly, Butler's testimony and O p in io n s 1 and 2, regarding mitigation of damages will be precluded at trial. Plaintiffs m o tio n s on this issue are granted. As with virtually all decisions on motions in limine, the Court's conclusions are te n ta tiv e ­ based only on the arguments of counsel and without the benefit of context that m ig h t be provided at trial. Accordingly, Defendant will be permitted to re-raise the issue a t trial, and the Court will reconsider its ruling if the context provided by the trial te s tim o n y suggests that it should. B. B u tle r's Opinion 5, That Wilhoite's Projections Were Too Aggressive ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 5 Butler asserts in Opinion 5 that Plaintiffs' expert Wilhoite made projections that w e re overly aggressive. Butler Report, Dkt. 140-2 at 9-16. Plaintiffs seek to exclude this o p in io n as lacking "quantification, research, or relevant `comparators.'" Pl. Mot., Dkt. 1 0 3 -1 at 7. Plaintiffs further argue that Opinion 5 is speculative, without any factual b a s is . Plaintiffs contend that, because Butler failed to inquire as to Plaintiffs' financial s itu a tio n , this Court should exclude Butler's opinion that Plaintiffs were overly confident in their ability to secure funding for Alamar Ranch. In response, Butler asserts that O p in io n 51 was based on analysis of comparator data set forth in Wilhoite's report, and th a t no other data was needed to draw the conclusions for Butler's report. The Court finds that, although there may be minor problems with Butler's Opinion 5 , exclusion would be inappropriate at this time. The Court will wait to hear Wilhoite's te s tim o n y, to place Plaintiffs' objections in context. The objections to Opinion 5 are th e re f o re reserved until trial. C. B u tle r's Opinion 6, Employing the Butler Pinkerton Calculator P la in tif f s challenge Butler's use of a business-valuation methodology ­ the Butler P in k e rto n Calculator ­ that Butler created with a colleague. Plaintiffs assert that this m e th o d o lo g y has not been tested, peer reviewed, nor accepted in the business-valuation c o m m u n ity, thus rendering it unreliable under Rule 702 and Daubert. See also Cooper v. In his affidavit, Butler misidentifies Opinion 5 as Opinion 3; the text of the affidavit, responding to Plaintiffs' Motion in Limine (Dkt. 103), makes clear that Butler is indeed addressing Opinion 5. Butler Aff., Dkt. 140-1, ¶ 7. MEMORANDUM DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 6 1 Brown, 510 F.3d 870, 880 (9th Cir. 2007). In response, Butler identifies 16 examples of peer commentary on use of the c a lc u la to r. As the Ninth Circuit noted in Primiano, peer reviewed literature may not be a v a ila b le for a number of reasons, including that the issue may be too new, or lack s u f f ic ie n tly wide interest. Primiano, 2010 WL 1660303, *5 (citation omitted). Reiterating the importance of flexibility in applying the Daubert factors, the Court in Primiano found that the factors "may or may not be pertinent in assessing reliability, d e p e n d in g on the nature of the issue, the expert's particular expertise, and the subject of h is testimony." Id. (citing White v. Ford Motor Co., 312 F.3d 998, 1007 (9th Cir. 2002)). Where the knowledge on which the expert's opinion is based has "a valid connection to th e pertinent inquiry . . . [and] a reliable basis in the knowledge and experience of the re le v a n t discipline," the expert opinion testimony is relevant. Id. (citing U.S. v. SandovalM e n d o z a , 472 F.3d 645, 654 (9th Cir. 2006)). T h e Court finds there is no basis to exclude Butler's use of the Butler Pinkerton C a lc u la to r at this time. D. D e fe n d a n t's Retracted Or Unrendered Opinions, And Opinions In V io la tio n of Rule 26 P la in tif f s challenge various unrendered opinions in Butler's report as irrelevant. The Court finds that such challenges go to the weight of the evidence rather than its a d m is sib ility. As such, the Court will permit presentation of the opinions at trial for the ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 7 jury to assess. Plaintiffs also seek to exclude opinions retracted by Butler as irrelevant. The Court presumes that any retracted opinions will not be offered at trial; however, w h e re a formerly retracted opinion is re-offered, the Court will determine its admissibility o n consideration of the contextual evidence established at trial. Also, Plaintiffs ask the C o u rt to exclude documents and other references to which Butler testified in his d e p o s itio n , but that were not included in his initial report, citing violation of Rule 26. Opinions given in response to questions at depositions after a deadline to disclose expert re p o rts are rendered at the invitation of the party taking the deposition, and are thus p ro p e rly disclosed. At this time, the Court will deny Plaintiffs' motion to exclude o p in io n s raised at deposition on the basis of a Rule 26 violation. 3. P la in tiffs' Motion to Exclude The Expert Opinions And Testimony Of M ic h a e l Jones P la in tif f s here move to exclude from trial, most portions of Jones' expert opinions a n d testimony for lack of qualification, irrelevance, prejudice, and waste of time.2 The C o u rt finds that exclusion of some opinions by Jones due to lack of qualification is w a rra n te d at this time. As to other opinions, the Court will reserve ruling until trial, and d ire c t Defendant to establish a foundation for Jones to provide his opinion, or to establish th e relevance of such opinion. P la in tif f s argue that Jones lacks the necessary experience, training, and knowledge 2 Jones' Report is in the record at Dkt. 104-5, Exh. 15. ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 8 to support a number of the opinions offered in his report. Plaintiffs note that Jones' p ro f e ss io n a l experience has been in the field of non-profit rather than for-profit R e sid e n tia l Treatment Centers, and his experience in the Conditional Use Permit process is limited to four instances. Plaintiffs also assert that Jones' opinions lack adequate u n d e rlyin g data to support their reliability. Defendant responds that Jones has a Master of A rts in Clinical Psychology, and nearly four decades of experience working in executive (a n d also staff) positions with residential treatment centers for adolescents, primarily the Id a h o Youth Ranch. Def. Opp., Dkt. 143 at 1-2. This background and experience, D e f e n d a n t argues, makes him well qualified to testify as to all opinions offered in his re p o rt. Defendant further contends that, where Plaintiffs question the weight of Jones' te s tim o n y, they can do so on cross-examination. A. T o p ic s On Which Jones Will Be Precluded From Testifying O n the evidence before it, the Court finds there is no basis for Jones to offer expert o p in io n to rebut economic analyses performed by Plaintiffs' expert Dr. Peter Crabb. Jones acknowledged that he is not an expert on economic impact analysis; because o p in io n s rebutting those of Crabb are outside of Jones' expertise, he will not be permitted to testify on this subject. S im ila rly, Jones has demonstrated no expertise with respect to property values of s u rro u n d in g areas affected by development of Alamar Ranch, nor what a prospective b u ye r night be willing to pay. Such questions would be subjects for an appraiser. MEMORANDUM DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 9 According to Plaintiffs, Jones testified that his opinion regarding property values around th e proposed Alamar Ranch area is based on his opinion as "Joe Home Buyer." Banducci D e c ., Exh. 11 at 97:9-18, Dkt. 104-4. The Court finds that Jones lacks the qualifications to testify on this topic, and will thus grant Plaintiffs' motion accordingly. T h e Court also finds that Jones is neither an economist nor a business valuation e x p e rt. Jones' opinions regarding the impact of economic recession, and opinions c h a lle n g in g Plaintiffs' expert, Charles Wilhoite, are outside his area of expertise. Accordingly, the Court will grant Plaintiffs' motion to exclude Jones' testimony on those to p ic s. F in a lly, Jones stated in his report that Plaintiffs should have been aware of the risk th a t their conditional use permit (CUP) application would not be granted. Plaintiffs a rg u e , and the Court agrees, that this opinion is outside of Jones' expertise. A g a in , the Court notes that its conclusions are tentative ­ based only on the a rg u m e n ts of counsel and without the benefit of context that might be provided at trial. Accordingly, Defendant will be permitted to re-raise the issue at trial, and the Court will re c o n s id e r its ruling if the context provided by the trial testimony suggests that it should. B. T o p ic s For Which Defendant Will Need To Establish A Foundation For J o n e s ' Testimony At Trial T h e Court finds that, at this time, there is insufficient showing that Jones is q u a lif ie d to testify on the following topics: ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 10 1. T h a t a reduced bed count in a for-profit residential treatment center (RTC) w ill result in fewer runaways and other incidents requiring police, fire, or m e d ic a l assistance. T h e expectations or preferences of referring parents for smaller, for-profit re s id e n tia l treatment centers. T h a t a 24-bed for-profit RTC can be financially viable, and even return a p ro f it. T h a t the number of unplanned discharges at the proposed for-profit facility w o u ld be 2 per 12 bed residences per year. T h a t "there is an extremely limited market in Idaho for high-end RTCs such a s Alamar proposed." T h a t "[a] few health insurance companies will cover a portion of the costs o f residential treatment if the RTC is accredited by JCAHO or one of the o th e r nationally recognized accrediting bodies." T h a t" [ p ]a re n ts want and look for experience, a long and solid track record, s a f e ty, competence, credentials, accreditation, trustworthiness and a f f o r d a b i l i t y. " 2. 3. 4. 5. 6. 7. D e f e n d a n t will be required to establish what experience Jones has, and why he w o u ld be qualified to testify as to these topics, given that his experience has been limited to non-profit operations, where adolescents were primarily placed in RTCs by courta p p o in tm e n t, rather than parent referral. The Court is mindful that many of the concerns id e n tif ie d by Plaintiffs can be addressed on cross-examination of Jones. However, the C o u rt will need to see more evidence of a foundation for Jones' opinions on these topics b e f o re it will permit his testimony on the topics. C. R e le v a n c e , Confusion, Prejudice, Waste Of Time, And Untimely ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 11 Disclosure of Jones' Opinions P la in tif f s challenge a number of Jones' statements as irrelevant, confusing, p re ju d ic ia l, a waste of time, and untimely disclosed per Rule 26. Where Plaintiffs c h a lle n g e the relevance of Jones' statements, the Court generally finds that Plaintiffs' c o n c e rn s go to the weight of the evidence rather than its admissibility, and can be a d d re s s e d through cross-examination. However, the Court is concerned that some of P la in tif f 's concerns are warranted. As to Jones' opinion about staffing levels, the Court finds that such testimony is n o t relevant; the merits of Plaintiffs' treatment plan is not before the jury. As to the f o llo w in g two opinions, the Court will require Defendant to make an offer of proof as to th e ir relevance: (1) Jones' opinion on the growth and change in adolescents and their f a m ilie s , and on youth who do not succeed in settings such as proposed by Alamar; (2) th a t every RTC with which Jones is familiar has a strong emphasis on family in v o lv e m e n t; the Court will reserve ruling on the admissibility of these opinions until D e f e n d a n t establishes their relevance at trial. A s to Plaintiffs' concerns regarding confusion and prejudice, the Court will deny th e motion at this time, but permit Plaintiffs to re-raise their objections at trial when the c o n te x t of such testimony is more fully developed. As noted by Defendant, Plaintiffs' c h a ra c te riz a tio n s of Jones' opinions may not fully capture how Defendant intends to use th e m . Thus preclusion, absent context, would be premature at this time. ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 12 With respect to the timeliness of Defendant's disclosures, Plaintiffs' challenges a p p e a r to concern a response offered by Jones in his deposition taken by Plaintiffs, and te s tim o n y about which Plaintiffs could have addressed at Jones' deposition. The Court f in d s that exclusion is not warranted under Rule 26. C o n c e rn in g all other opinions in Jones' report not addressed herein, the Court will d e n y Plaintiffs motion at this time, but permit Plaintiffs to re-raise their objections at trial w h e n the context of such testimony is more fully developed. 4. D e fe n d a n t's Motion to Exclude Testimony of Charles Wilhoite D e f e n d a n t moves to exclude testimony at trial of Plaintiffs' expert Charles W ilh o ite .3 Defendant asserts that Wilhoite's opinions lack reliability because he has not s h o w n they were formed using an objective, independent methodology. Defendant also o b je c ts to Wilhoite's alleged reliance on a conversation with educational consultant Lon W o o d b u ry, after the deadline for disclosure of expert opinions and experts' sources. According to Plaintiff, Wilhoite's conversation with Woodbury confirmed Wilhoite's a lre a d y developed conclusions. T h e Court is troubled by Wilhoite's conversation after the deadline for expert d is c lo s u re s . The Court finds that any opinions by Wilhoite for which he relies on in f o rm a tio n obtained after the deadline for expert disclosures will be excluded. However, w ith respect to opinions in Wilhoite's report, timely disclosed, the Court finds that 3 Wilhoite's Report is in the record at Dkt. 118-4, Exh. C. ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 13 Defendant's challenges are best addressed at trial through cross-examination. Defendant h a s failed to demonstrate a basis to exclude Wilhoite's testimony at this time. Thus, with th e exception noted herein, Defendant's motion will be denied. ORDER I T IS ORDERED: 1. P la in tif f s ' Motion in Limine regarding Defendant's expert Peter Butler (D k t.1 0 3 ) is DENIED in part, GRANTED in part. Butler will not be p e rm itte d to testify as to mitigation of damages or limitation of risk by P la in tif f s in developing Alamar Ranch. All other objections are deferred u n til trial. 2. P la in tif f s ' Motion in Limine regarding Defendant's expert Michael Jones (D k t. 106) is DENIED in part, GRANTED in part. a. D e f e n d a n t will be precluded from offering Jones' expert testimony: (1 ) rebutting opinions of Crabb, (2) regarding property values, (3) re g a rd in g the impact of the economic recession, (4) challenging the b u s in e ss valuation opinions of Wilhoite, (5) regarding the risk that P la in tif f s ' CUP would be denied. b. D e f e n d a n t will be required to establish a foundation for admission of te stim o n y or evidence from Jones: (1) that a reduced bed count w o u ld result in fewer runaways, (2) regarding the preferences of ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 14 referring parents, (3) that a 24 bed RTC can return a profit, (4) that A la m a r Ranch could have expected 2 unplanned discharges per 12b e d residences per year, (5) that Idaho has an extremely limited m a rk e t for high-end RTCs, (6) regarding coverage by health in s u ra n c e companies, (7) on what parents look for in an RTC. c. A ll other objections are denied at this time, but may be reasserted at tria l when Jones' testimony and opinions can be assessed in context. 3. D e f e n d a n t's Motion in Limine regarding Plaintiffs' expert Charles Wilhoite (D k t. 114) is DENIED in part, GRANTED in part. Wilhoite is precluded f ro m testifying concerning information obtained after the deadline for e x p e rt disclosures. As to all other testimony and opinions, Defendant's o b je c tio n s are denied at this time, but may be reasserted at trial when W ilh o ite 's testimony and opinions can be assessed in context. D A T E D : December 3, 2010 B. LYNN WINMILL C h ie f U.S. District Court Judge ME M O R A N D U M DECISION & ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS BUTLER (DKT. 103) AND JONES (DKT. 106), AND PLAINTIFFS' EXPERT WILHOITE (DKT. 114) - 15

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