Walker et al v. Williamson et al

Filing 498

ORDER granting in part, deferring in part and denying in part 486 Motion in Limine; granting in part, deferring in part and denying in part 488 Motion in Limine. Signed by District Judge Keith Starrett on 4/18/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SCOTT WALKER, et al.
v.

PLAINTIFFS
CIVIL ACTION NO. 1:14-CV-381-KS-MTP

JIMMY WILLIAMSON, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion In Limine [486] filed by Defendants Jimmy
Williamson, individually and/or as Director and President of Jimmy Williamson, P.C.
(“Williamson”) and Cyndi Rusnak and Cyndi Rusnak, PLLC (collectively “Rusnak”) and the
Motion In Limine [488] filed by Defendant Michael A. Pohl, individually and d/b/a The Law
Office of Michael A. Pohl (“Pohl”). After considering the submissions of the parties, the record,
and the applicable law, the Court finds that both motions should be granted in part, denied in part,
and deferred in part.
I. BACKGROUND
The current action was commenced on October 18, 2014, by Plaintiffs Scott Walker,
individually and d/b/a Maxwell & Walker Consulting Group, LLC, and/or d/b/a Precision
Marketing Group, LLC (“Walker”); Kirk D. Ladner, individually and d/b/a The Ladner Group
and/or d/b/a Precision Marketing Group, LLC (“Ladner”); Seymour; and Precision (collectively
“Plaintiffs”) against Defendants Williamson and Pohl. Plaintiffs claim that Pohl and Williamson
joined together in a joint venture or partnership in order to represent Mississippi clients in their
claims against British Petroleum (“BP”) in connection with the 2010 Deepwater Horizon oil spill.
The two then contracted with Plaintiffs to provide marketing and public relations services for this

joint venture. Plaintiffs also claim that Pohl contracted with them to provide marketing and public
relations services in connection with claims for automobile rollover accidents.
Plaintiffs bring suit for breach of contract, conscious or negligent bad faith/breach of good
faith and fair dealing, quantum meruit/unjust enrichment, and fraud/fraudulent inducement/
fraudulent misrepresentation. On May 12, 2015, Precision filed a Notice [75] stating that Walker,
Seymour, and Ladner had assigned their chose of action and/or interests in this action to Precision.1
Plaintiffs filed amended complaints2 in March 2016, alleging that Defendant Rusnak was part of
the joint venture between Pohl and Williamson as well.
II. DISCUSSION
The Court begins its analysis of the pending motions in limine by clarifying its previous
rulings regarding the legality of the contracts at issue. The Court has not, as parties appear to
believe, ruled that the contracts are legal and enforceable. Rather, it has ruled that Defendants
have not yet shown that they are illegal and unenforceable. In its Order [103] addressing Pohl’s
Motion to Dismiss [25], the Court ruled that Pohl had not shown that the contract was illegal on
the face of the pleadings. (See Order [103] at pp. 23-24.) Similarly, in addressing subsequent
Motions to Dismiss [173][192], the Court held that Defendants had not shown, on the facts alleged
in the Amended Complaint [179], that the conduct required by the contracts was illegal. (See
Order [252] at pp. 4-5.) Finally, in its Order [475] denying Rusnak’s Motion for Summary
Judgment [109], the Court found that Rusnak had failed to point to specific evidence showing that
that contract was unenforceable. The Court has not, however, affirmatively ruled that the contracts
are legal and enforceable. The Court remains skeptical of the legality of the contracts, and the

1

Given this notice, the Court is confused as to why they remain active participants in this action.
Plaintiffs Walker, Ladner, and Seymour filed their Second Amended Complaint [166] on March 2, 2016, and Plaintiff
Precision filed its Amended Complaint [179] on March 16, 2016.
2

2

issue is a question of law3 that must be decided at trial.4 With that in mind, the Court now turns
to the motions in limine. Parties are reminded that any issue herein denied may be re-urged at trial
if appropriate.
A.

Williamson and Rusnak’s Motion in Limine [486]

Williamson and Rusnak ask the Court to exclude “any comments, testimony, arguments or
other evidence that refers to or relates in any way to barratry, prior lawsuits, the illegal or unethical
nature of soliciting clients directly or splitting fees with non-lawyers, and/or the fact that any
attorney in this matter was reported to any State Bar.” (Motion In Limine [486] at p. 6.) This
evidence, they contend, is properly excluded under Federal Rule of Evidence 403 because its
potential prejudicial effect substantially outweighs its probative value.
1.

Barratry

Williamson and Rusnak have asked the Court to exclude all references to barratry. Insofar
as they request the Court exclude any comments by Plaintiffs’ attorneys or testimony by any
witness as to what does or could constitute barratry, the motion will be granted to this extent, as
the Court instructs the jury as to the law. However, testimony that conduct constituted barratry
may be admissible for another purpose, such as motive or knowledge, but could also unfairly
prejudice Williamson and Rusnak. See Fed. R. Evid. 403. Finding that this issue is better decided
in the context of trial, it will be deferred until such an appropriate time. However, evidence as to
the underlying conduct itself will not be excluded, and the motion will be denied as to this
evidence.

3

Because it is a question of law, it will be decided by the Court, not the jury.
It is also remains an open question whether quantum meruit, an equitable cause of action, is available to Plaintiffs if
the contracts are held to be illegal and unenforceable.
4

3

2.

Prior lawsuits

Prior lawsuits in which Williamson or Rusnak were involved have little relevancy to
Plaintiffs’ case-in-chief.

However, these lawsuits may still have limited relevancy as

impeachment. Because the Court does not know the nature of these lawsuits and cannot say if any
prejudicial effect may outweigh their probative value, the Court will grant the motion in that they
will be excluded from Plaintiffs’ case-in-chief but will deny the motion in that they will be allowed
for the purposes of impeachment.
3.

Illegality of contracts and fee-splitting

As stated above, the legality of the contracts and fee-splitting arrangement is a question of
law for the Court to decide. Witnesses are not allowed to testify to legal conclusions. See United
States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999) (citing Owen v. Kerr-McGee Corp., 698 F.2d
236, 240 (5th Cir. 1983)). Similarly, it is not proper for an attorney to instruct the jury as to what
the law is. That is the province of the Court. However, as with the barratry issues, although what
the parties believed as to the legality of their actions may be relevant for purposes such as motive
or knowledge, the Court finds that these issues’ potential for unfair prejudice may substantially
outweigh their probative value if presented before the jury. See Fed. R. Evid. 403. As such, the
issue of their admissibility will be deferred to the appropriate time at trial. Notwithstanding its
ruling as to this issue, the Court will allow such evidence to be presented to it outside the presence
of the jury if it is relevant to the determination of the contracts’ legality. Williamson and Rusnak’s
motion will therefore be granted in part and deferred in part as to this issue.
4.

State Bar grievances

Although it is readily apparent to the Court that state bar grievances filed against
Williamson in connection to the underlying events of this action might have relevance, either to

4

Plaintiffs’ case-in-chief or for impeachment purposes, it is also easy to see that such evidence
would cause a wealth of unfair prejudice against him. See Fed. R. Evid. 403. As such, any
evidence dealing with state bar proceedings will be excluded, and Williamson and Rusnak’s
motion will be granted as to this issue.
B.

Pohl’s Motion In Limine [488]
1.

Comments as to Applicable Law

No party will be allowed to instruct the jury as to what the applicable law is in this case.
Furthermore, though the issue of whether Plaintiffs may question Defendants as to their beliefs
concerning the legality of their actions has been deferred until trial, Plaintiffs will not be allowed
to offer any testimony as to what the law is nor make any comment in an attempt to convince the
jury that the underlying conduct in contracting with Plaintiffs was unlawful. That question is not
before the jury to decide, and such evidence or comments would unfairly prejudice the jury and
potentially confuse the issues before them. See Fed. R. Evid. 403. Therefore, this point of Pohl’s
motion will be granted.
2.

Comments About Rules of Professional Conduct

Plaintiffs argue that if they are disallowed from arguing that, under the applicable rules of
professional misconduct, Pohl could not agree to split fees with them, “a jury will wonder why the
parties didn’t sign a contract to split fees if that was the actual agreement.” (Response [494] at p.
13.) As the Court held in its previous Order [475], the contracts at issue were contracts to split
fees. (See Order [475] at pp. 8-9.) Furthermore, as the Court has already stated, no party will be
allowed to comment as to what the applicable law is. The Court will instruct the jury on the law
pertaining to the issues that they must decide. The Court does not think it appropriate for Plaintiffs
or their witnesses to attempt to comment or to testify to what the rules of professional misconduct

5

of any jurisdiction state. Pohl’s motion will be granted to this extent. However, as with the
barratry and legality issues presented in Williamson and Rusnak’s motion, whether Plaintiffs can
use what Defendant’s believed to be the rules of professional misconduct and how they applied to
the current case in order to show motive or knowledge or in order to impeach, is an issue that will
be deferred until trial.
3.

References to Estimated Value of Underlying Claims

By agreement, Pohl’s motion will be granted as to this issue and any valuation estimate
or appraisal of underlying claims will be excluded.
4.

Merits of Disputes between Pohl and Third Parties

Pohl asks that the alleged merits of any disputes between him and third-parties be excluded.
Plaintiffs do not object to this except for those disputes involving Heather Wilson/Super Limo and
Terry Robinson. Without more information as to these disputes, the Court’s ruling as to their
admissibility will be deferred until the appropriate time at trial.
5.

Any Payment to D’Iberville City Attorney

Pohl asks that evidence of any payment to the D’Iberville City Attorney be excluded.
Plaintiffs object, calling this payment a bribe that it relevant to their case. With this type of
accusation before it, the Court finds that it needs more information to conclusively rule on this
issue. It will therefore be deferred until the appropriate time at trial.
6.

Statements that Plaintiffs’ Employee Threatened by Third Parties

Plaintiffs argue that they should not be precluded from presenting evidence that their
employees were threatened by third-parties, contending that it goes to the hardships they endured
and that the measure of recovery for their quantum meruit claim is “what is deserved.” Plaintiffs,
however, neglect to consider the Court’s previous Order [475], where it held that their recovery

6

under quantum meruit is their “reasonable expectation of compensation” and found that to be
limited to the attorney’s fees percentages of the contract. (Oder [475] at p. 9.) The fact that their
employees may have been threatened by third-parties, then, is not relevant to this issue. Because
the Court does not find such threats to be relevant, they will be excluded under F.R.E. 401 and
402, and Pohl’s motion will be granted as to this issue.
7.

Statements by Magdalena Santana

Pohl requests without explanation that the Court preclude any statements or testimony from
Magdalena Santana. Without further argument by Pohl, the Court will deny this request.
8.

Comments on Witnesses Not Called

Pohl asks the Court to prevent Plaintiffs from commenting on the fact that certain witnesses
were not called or from speculating as to what their testimony may have been. The Court will
grant this request to the extent it deals with the speculation of what testimony may have been.
However, it will be denied in that Plaintiffs may point out the weaknesses of Pohl’s defense,
including his failure to call witnesses.
9.

Criminal Activity and Other Wrongful Acts

Pohl asks the Court to preclude any evidence about Pohl or any of his witnesses’ past
criminal activity or wrongful acts. Plaintiffs object to such a blanket prohibition. Without
knowing what criminal activity or wrongful acts may be presented, the Court will deny this request
and assure all parties that past criminal activity and wrongful acts will be admitted and excluded
as mandated by F.R.E. 608, 609, and 403.
10.

References to “Barratry Fees”

Pohl requests the Court exclude any reference to “barratry fees” he purportedly paid to
Plaintiffs. Plaintiffs do not object to the exclusion of the term “barratry fees,” and this request will

7

be granted to this extent by agreement. Plaintiffs do object to the exclusion of any “evidence of
the business transactions which are at the crux of this lawsuit, including money Pohl allegedly paid
Walker.” (Response [494] at p. 16.) The Court does not have enough information as to this issue
to make a ruling, and it will defer such a ruling until the appropriate time at trial.
11.

Exhibits Not Identified

Parties agree that no exhibit not previously identified will be offered into evidence,
referenced, or shown to the jury or a witness for use in their cases-in-chief. Plaintiffs, however,
object to such a limitation on exhibits used for the sole purpose of impeachment. The Court agrees
that this limitation will not apply to impeachment exhibits, and will grant in part and deny in
part the motion as to this issue.
12.

Exhibits Not Reviewed

Because parties agree that no demonstrative exhibits shall be used unless they were
submitted to the other side for review with an opportunity to object, the motion will be granted as
to this issue.
13.

Expert Opinions

Pohl asks for the preclusion of all opinions or conclusions requiring specialized knowledge,
training, or experience. Plaintiffs object because Pohl is essentially asking for all expert opinions
to be excluded and, because no party has designated any expert, such an order would put the burden
on Plaintiffs to “anticipate and stop” a lay witness from “spontaneously” offering such opinions.
Though Plaintiffs are right that it is the “responsibility of the parties to identify and challenge any
improper expert opinions as they are offered,” this is not a reason for the Court to not issue an
order precluding such testimony. Though it remains the responsibility of the parties to police this

8

ruling, the Court will exclude any improper expert opinions offered, and Pohl’s motion will be
granted in this respect.
14.

Requests for Materials

Parties agree to the exclusion of any requests or demands for materials or documents so
long as they are enforced against all parties. Therefore, the motion will be granted as to this issue.
15.

Comments about Manner and Time of Discovery Productions

Parties agree that no party will be allowed to comment on the manner and time of discovery
productions, and the motion will be granted on this issue.
16.

Objections to Discovery Requests

Parties agree that objections to discovery requests should be excluded, and the motion will
be granted as to this request.
17.

Rulings Made by the Court

Parties agree to the exclusion of Court rulings made outside the presence of the jury, and
the motion will be granted as to this issue.
18.

Comments about Invocations of Privilege and/or Exemptions

Parties agree that no party will be allowed to comment on any invocation of privilege or
exemption, and the motion will be granted as to this request.
19.

Comments on Communications between Pohl and his Attorneys

Parties agree that no party will be allowed to comment on communications between any
party and their attorneys. The motion will be granted as to this issue.
20.

Requests for Stipulations

Parties agree that no request for a stipulation or comment about such a request will be made
in the presence of the jury. The motion will be granted in this respect.

9

21.

Dispositive Motions

Pohl asks the Court to prevent Plaintiffs from making any dispositive motion as to his
counterclaims. The Court will deny this request. Plaintiffs will have the same rights as Defendants
to make any appropriate motions at the appropriate times.
22.

Deposition Testimony with No Notice

Pohl asks that Plaintiffs be precluded from reading or playing into evidence any portion of
any deposition testimony without notifying him as to the specific pages and lines and giving him
an opportunity to object or provide a more complete portion of the deposition. Precision does not
object so long this limitation applies to all parties. Seymour, however, objects because he believes
such a ruling would limit his ability to use depositions as impeachment evidence. However, even
if this evidence were excluded from being played or read into evidence, Plaintiffs would be allowed
to use it as prior statements for impeachment purposes, which are typically not admitted into
evidence. The Court reads Pohl’s request as to this issue as only pertaining to deposition testimony
offered into evidence for non-impeachment purposes. Accordingly, the Court will grant the
request as the Court reads it.
23.

Suits Against Third Parties

Pohl asks that the Court exclude any comment that he could have brought suit “against any
allegedly culpable third parties.” Plaintiffs object to this point of his motion because they are
unclear who Pohl means by “allegedly culpable third parties.” Because the Court is similarly
confused by who Pohl means, the motion will be denied as to this request.

10

24.

Out-of-court Statements

Pohl asks that the Court exclude any reference to any alleged out-of-court statements. The
Court will deny this request insofar as it asks for the exclusion of unidentified evidence. The
Court will, of course, apply the appropriate hearsay rules to any offered out-of-court statement.
25.

Other Suits or Controversies

Pohl asks for the exclusion of comments that any of his witnesses may have been a party
to or witness in any other suit or controversy. Plaintiffs agree with this so long as the other suit or
controversy do not concern issues or parties at issue in this action. This request will be granted
to the extent that Plaintiffs agree. However, if the other suit or controversy concerns issues or
parties at issue in this action, ruling on its admissibility will be deferred until the appropriate time
at trial.
26.

Settlement Offers

Offers for settlement are excluded with limited exceptions5 under F.R.E. 408. As such,
Pohl’s motion will be granted as to this issue.
27.

Communications Made During Settlement Discussions

Communications made during settlement discussions are also disallowed under F.R.E. 408,
and the motion will be granted to this issue as well.
28.

References to Motions In Limine

Parties agree that no references to motions in limine will be made. The motion will be
granted as to this point.

5

These exception concern witness bias and are not applicable here.

11

29.

References to Pohl’s Net Worth

Pohl asks that all references to his net worth or assets be excluded unless and until the
Court has determined they are admissible. Presumably, Pohl is asking that his net worth and assets
be excluded unless and until the Court holds that punitive damages can be considered by the jury.
As that is the only point at which such evidence would be relevant, the Court will grant Pohl’s
motion as to this issue.
30.

References to Specific Clients of Pohl

Pohl asks that any reference or comment as to any specific client of his, other than those
dealing with the underlying claims, be excluded. The Court does not see how such comments
would be relevant, and will grant the motion as to this request.
31.

Witnesses Not Timely Disclosed

Pohl asks that any witness not timely disclosed, or any anticipated testimony of such a
person, be excluded. Insofar as this request is simply a request for the Court to enforce Federal
Rule of Civil Procedure 37(c)(1), which states that a party who fails to disclose a witness is barred
from using that witness “unless the failure was substantially justified or is harmless,” the Court
will grant in part and deny in part this request. It will be granted to the extent that any nondisclosed witness where the failure to disclose was not substantially justified or harmless will be
excluded.
32.

Specializations of Pohl’s Attorneys

Pohl asks that any comment about his attorneys’ specializations be excluded. The Court
does not see how such comments would be relevant or appropriate and will grant the motion as to
this issue.

12

33.

Comments about Existence of Liability Insurance

Because any comments that a person has liability insurance is excluded under F.R.E. 411,
the Court will grant Pohl’s motion as to this issue.
34.

Comments that this Motion In Limine [488] Has Been Filed

Parties agree that any comments pertaining to motions in limine would be improper, and
the motion will be granted as to this issue.
IV. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Williamson and Rusnak’s Motion
In Limine [486] will be granted in part, deferred in part, and denied in part as described above.
IT IS FURTHER ORDERED AND ADJUDGED that Pohl’s Motion In Limine [488] will
be granted in part, deferred in part, and denied in part as described above.
SO ORDERED AND ADJUDGED on this the

18th

day of April, 2017.

s/Keith Starrett_________________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

13