Cedar Lodge Plantation, LLC et al v. CSHV Fairway View I, LLC et al

Filing 370

RULING AND ORDER: Denied 229 Motion in Limine to Exclude Evidence and Testimony Regarding the Alleged Cost to Drain the Pond. Defendants' may renew their objection to introduction of cost-to-drain evidence (as appropriate) at trial. Signed by Judge Brian A. Jackson on 12/22/2023. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CEDAR LODGE PLANTATION, LLC,
ET AL.

CIVIL ACTION

VERSUS
CSHV FAIRWAY VIEW I, LLC, ET
AL.

NO. 13-00129-BAJ-EWD

RULING AND ORDER
Before the Court (again) is Defendants’ Motion In Limine To Exclude
Evidence And Testimony Regarding The Alleged Cost To Drain The Pond
(Doc. 229). Plaintiff opposes Defendants’ Motion, contending that such evidence is
relevant to its calculation of damages because “draining the pond is necessary in
order to restore the pond’s health to the original condition.” (Doc. 244 at 4).
Six years ago, the Court granted Defendants’ Motion, citing two reasons. First,
Plaintiff’s only evidence of such costs came from its proposed environmental expert,
Suresh Sharma, but the Court previously excluded Mr. Sharma from trial,
determining that he was not qualified to offer reliable expert testimony in this case.
Second, the Court ruled that such evidence was no longer relevant, due to having
previously dismissed Plaintiff’s claim for restoration damages. (Doc. 271 at 29-30).
The United States Court of Appeals for the Fifth Circuit took a different view
on appeal, holding that Mr. Sharma is qualified to testify regarding restoration
damages (including the cost to drain the pond), and that, if Plaintiff satisfies the jury
that Defendants are liable for polluting the pond, the jury “is also to determine

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whether to award any damages for the cost of draining the pond.” (Doc. 279 at 15).
On this basis, the Circuit vacated this Court’s ruling excluding “the cost-to-drain
evidence,” and remanded “for reconsideration.” (Id.). Rather than wait for trial to relitigate their objection to this evidence, Defendants now insist that their original
Motion must be decided anew. (Doc. 342 at 17-19). This order follows.
It is well settled that motions in limine are disfavored. Motions in limine
are frequently made in the abstract and in anticipation of some
hypothetical circumstance that may not develop at trial. An order in
limine excludes only clearly inadmissible evidence; therefore, evidence
should not be excluded before trial unless it is clearly inadmissible on
all potential grounds. Instead, courts should reserve evidentiary rulings
until trial so that questions as to the evidence may be resolved in the
proper context.
Thibodeaux v. T-H Marine Supplies, LLC, No. 21-cv-00443, 2023 WL 3562975, at *1
(M.D. La. May 19, 2023) (Jackson, J.) (quotations marks and citations omitted);
Griffin v. REC Marine Logistics LLC, No. 20-00092, 2023 WL 1965428, at *1 (M.D.
La. Feb. 13, 2023) (Jackson, J.) (same).
Heeding the general rule that evidentiary issues should be resolved at trial,
id., and the Fifth Circuit’s guidance on remand, the Court determines that the better
course this time around is to deny Defendants’ Motion. First, despite Mr. Sharma
being designated as Plaintiff’s only witness capable of providing testimony regarding
the cost of “remediation and restoration of the pond,” (Doc. 342 at 73), there is
considerable doubt regarding whether Mr. Sharma will even appear at trial. (See Doc.
325-1 at 6). Indeed, since the Circuit rendered its decision reversing this Court’s
original ruling, Mr. Sharma has submitted a declaration stating that “[i]n the spring
of 2020, I informed [Plaintiff] that I no longer wanted to act as an expert in this
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litigation” due to “personal and professional reasons.” (Doc. 325-2 ¶ 6). Even further,
Mr. Sharma stated unequivocally that due to plans to travel to India, he will not make
himself available “to participate in the preparation of this matter or for trial.” (Id.
¶ 15). Should Mr. Sharma maintain his position that he no longer wants to
participate in this case, and skip the current trial date, there will be no evidence of
the cost to drain the pond, obviating the need for an evidentiary ruling.
On the other hand, if Mr. Sharma relents and appears at trial, and if the jury
renders a liability verdict against Defendants, the cost of draining the pond may yet
be relevant to the jury’s determination of damages. (Doc. 279 at 15). But again, this
scenario depends on multiple hypotheticals. Better then to reserve a ruling on the
admissibility of cost-to-drain evidence pending review of the full evidentiary record.
Accordingly,
IT IS ORDERED that Defendants’ Motion In Limine To Exclude
Evidence And Testimony Regarding The Alleged Cost To Drain The Pond
(Doc. 229) be and is hereby DENIED.
Defendants’ may renew their objection to introduction of cost-to-drain evidence
(as appropriate) at trial.
Baton Rouge, Louisiana, this 22nd day of December, 2023

_____________________________________
BRIAN A. JACKSON, JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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