SAMS HOTEL GROUP, LLC v. ENVIRONS, INC. et al

Filing 174

ORDER on Parties' Motions In Limine - The Court now DENIES Environs' Motions in Limine (Dkt. No. 153) and DENIES SAMS' Motion in Limine (Dkt. No. 158). Signed by Judge Tanya Walton Pratt on 6/22/2011. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SAMS HOTEL GROUP, LLC d/b/a
HOMEWOOD SUITES HOTEL,
Plaintiff,
v.
ENVIRONS, INC.
Defendant.

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CASE NO. 1:09-cv-0930-TWP-TAB

ORDER ON PARTIES’ MOTIONS IN LIMINE
Before the Court are Plaintiff’s SAMS Hotel Group, LLC d/b/a Homewood Suites
Hotel’s (“SAMS”), Motions in Limine (Dkt. No. 158) and Defendant Environs, Inc.’s
(“Environs”) Motions in Limine (Dkt. No. 153). Environs seeks to limit the testimony of
SAMS’ expert witness Steven Robinson (“Robinson”), and limit the scope of SAMS’ witness,
James L. McClain (“McClain”). SAMS moves this Court to exclude evidence and testimony
relating to alleged non-party fault.
District courts have broad discretion in ruling on evidentiary questions presented before
trial on motions in limine and evidence should be excluded in limine only where it is clearly
inadmissible on all potential grounds. See, Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664
(7th Cir.2002).

“Unless evidence meets this high standard, evidentiary rulings should be

deferred until trial so that questions of foundation, relevancy and potential prejudice may be
resolved in proper context.” Hawthorne Partners v. AT & T Techs., Inc., 831 F.Supp. 1398,
1400 (N.D.Ill.1993). Thus, the party moving to exclude evidence in limine has the burden of
establishing that the evidence is not admissible for any purpose. Id. In addition, where, as here,

the proceeding is a bench trial, the court has leeway to provisionally admit testimony or evidence
and to disregard later if, upon reflection, it should have been excluded.
Where the gatekeeper and the factfinder are one and the same – that is, the judge – the
need to make such decisions prior to hearing the testimony is lessened. See United States v.
Brown, 415 F.3d 1257, 1268-69 (11th Cir.2005). With respect to the exclusion of testimony of
experts, the scientific reliability requirements are not lessened; however, the court can hear the
evidence and make its reliability determination during, rather than in advance of, trial. Thus,
where the factfinder and the gatekeeper are the same, the court does not err in admitting the
evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the
standard of reliability established by Rule 702.
There is less need for the gatekeeper to keep the gate when the gatekeeper is
keeping the gate only for himself. Under this sensible approach, the judge in a
bench trial may choose to allow the presentation of borderline testimony, subject
the testimony to the rigors of cross-examination, and decide later whether the
testimony is entitled to some consideration or whether it should be excluded as
irrelevant, unreliable, or both.
Mintel Intern. Group, Ltd. V. Neergheen, 636 F.Supp2d 677 (N.D.Ill. 2009).
The issues have been fully briefed. For the reasons set forth below, the Court now
DENIES Environs’ Motions in Limine (Dkt. No. 153) and DENIES SAMS’ Motion in Limine
(Dkt. No. 158).
1.

Environs’ Motion in Limine to limit testimony of Steve Robinson
Through its Motion, Environs ask this Court to limit the testimony of SAMS’ expert

witness Robinson to opinions stated in his July 1, 2010 Fed. R. Civ. P. 26(a)(2)(B)(i) expert
report.

Environs contends that specific statements from Robinson, relating to the “good

practice” and “standard of care” within the profession, relate to SAMS’ prior negligence claim,
and that they are now no longer at issue and irrelevant. SAMS opposes Environs’ Motion on

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several grounds. SAMS first asserts that Environs’ Motion is untimely – citing to the December
1, 2010 deadline to limit or preclude expert testimony. SAMS further asserts that the testimony
Environs seeks to preclude relates to more than industry practice and Environs’ deviation, but
speaks to Environs’ breach of their implied promise to have the skill and ability to do the job as
required by the contract. SAMS asserts that this breach – in not involving a structural engineer
– resulted in the “absence of critical elements of structural design.” The Court agrees with
SAMS that Robinson’s testimony is relevant to the question of whether Environs breached the
duty implied in every contract to provide services in a “workmanlike” manner. Environs will
have opportunity to object if they believe SAMS goes beyond the scope of permitted testimony.
The Motion in Limine is therefore DENIED.
2.

Environs’ Motion in Limine to exclude testimony of Jim McClain
Environs requests that this Court limit the testimony of SAMS’ witness McClain to that

of a fact witness only. This is not the first time that the testimony of McCain has been
challenged. In a motion to preclude expert testimony, Environs previously moved this Court to
intervene regarding McClain’s testimony. In its March 15, 2011 Order, the Magistrate Judge
found that McClain was not retained or employed to testify and that no export report was
required. (Dkt. 153 at 3.) The court continued its discussion by addressing the factors necessary
to exclude an undisclosed expert witness.
In determining whether to exclude an undisclosed expert, courts consider (1) the
prejudice or surprise to the party against whom the evidence is offered; (2) that party’s ability to
cure any prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness
involved in not disclosing the evidence at an earlier date. David v. Caterpillar, Inc., 324 F.3d
851, 857 (7th Cir. 2003). This Court found insufficient rationale to exclude the testimony of the

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undisclosed witness, but found that the proper scope of McCain’s testimony would ultimately be
an issue for the trial judge. Id. The Court agrees with the reasoning of the Magistrate Judge.
The evidence suggests that not only was Environs privy to the information to be discussed by
McClain prior to litigation through pre-litigation negotiation, initial disclosures and produced
documents, but that Environs was provided an opportunity to depose McClain. Further, the
Court has not been directed to anything within the record that would support a finding that
SAMS acted in bad faith.
Therefore, the Court will not exclude McClain’s testimony through the vehicle of a
Motion in Limine. McClain may testify as a fact witness and may testify as to his opinions
formed during his work investigating and proposing a remediation plan for the hotel project.
McClain however may not testify as a traditional expert, specifically retrained for trial. Environs
will have opportunity to object to McClain’s testimony if it feels that it is beyond the scope of
permitted testimony. Environs’ Motion in limine (Dkt. No. 153) is DENIED.
3.

SAMS’ Motion in Limine
Through its Motion, SAMS seeks to exclude expert and lay testimony relating to other

causes of building defects. This is not the first time this issue has been before the Court. The
issue of comparative causation came before the Court through SAMS’ motion to exclude the
expert reports of Environs’ experts Timothy Specht and William Norman relating to the other
possible causes of defects in the building. In this motion, Environs argued that information
relating to other causes of defects in the building were relevant to determining whether the
alleged breach of contract was “the” substantial factor. Environs now comes before the Court
limiting its argument specifically to the causation issue in a breach of contract case.

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Both the Seventh Circuit and Indiana Courts have discussed the law regarding causation
in contract law. “As in tort law, so in contract law, causation is an essential element of liability.”
Wisc. Knife Works v. Nat'l Metal Crafters, 781 F.2d 1280, 1289 (7th Cir. 1986). “A plaintiff
must prove that the alleged breach of contract was a cause in fact of his loss, which requires a
showing that the breach was a substantial factor in bringing about the plaintiff's damages.” See
generally Lincoln Nat'l Life Ins. Co. v. NCR Corp., 772 F.2d 315, 320 (7th Cir.1985) (emphasis
added); see also Fowler v. Campbell, 612 N.E.2d 596, 602 (Ind. Ct. App. 1993) (“[T]he test of
causation in common law contract actions is not whether the breach was the only cause, ... but
whether the breach was a substantial factor in bringing about the harm.”); Thor Elec., Inc. v.
Oberle & Ass., Inc., 741 N.E.2d 373, 381 (Ind. Ct. App. 2000); Rollins Burdick Hunter of Utah,
Inc. v. Board of Trs. of Ball State Univ., 665 N.E.2d 914, 922 (Ind. Ct. App. 1996). All the
plaintiff must do to establish liability under a breach of contract claim is to establish one causal
factor sufficient for a reasonable jury to conclude that it is more likely than not the cause in fact
of plaintiff’s damages. Coachmen Industries, Inc., at *16.
Ultimately, “while there may be other contributing causes and more than one factor
operating, the trier of fact may determine that one cause predominates over another in bringing
about the harm.” Coachmen Industries, Inc. v. Kemlite, 2008 WL 4858385, at *16 (N.D.Ind.
November 10, 2008) (quoting Fowler v. Campbell, 612 N.E.2d 596, 602 (Ind. Ct. App. 1993));
see also Thor Elec., 741 N.E.2d at 381; see also Parke State Bank v. Akers, 659 N.E.2d 1031,
1034 (Ind. 1995). Considering that the cause in fact is proven by establishing that the breach
was a substantial factor, rather than the only factor, the Court will allow information related to
other contributing factors in order to preserve Environs’ ability to assert as a defense that the
damages were caused entirely by other factors and not in any part due to Environs’ alleged

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breach or that Environs’ alleged breach was not a cause in fact. Environs, however, may not
argue that while it is partially responsible for SAMS’ damages, its liability is alleviated because
others are responsible too. Fowler v. Campbell, 612 N.E.2d 596, 602 (Ind. Ct. App. 1993).
SAMS’ Motion in limine (Dtk. No. 158) is DENIED.

SO ORDERED.

6/22/2011
________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Michael Paul Bishop
COHEN GARELICK & GLAZIER
[e-mail]

Brett E. Nelson
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

John Michael Bowman
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

George M. Plews
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

Colin Edington Connor
PLEWS SHADLEY RACHER & BRAUN
[e-mail]
Frederick D. Emhardt
PLEWS SHADLEY RACHER & BRAUN
[e-mail]
M. Edward Krause III
COHEN GARELICK & GLAZIER
[e-mail]
Donna C. Marron
PLEWS SHADLEY RACHER & BRAUN
[e-mail]

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