Neal et al v. Greenfields Irrigation District et al

Filing 262

ORDER granting in part and denying in part 175 Motion in Limine; granting in part and denying in part 192 Motion in Limine Signed by Judge Brian Morris on 11/25/2024. (SLL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LLOYD and DANIELLE NEAL, JAMES
P. TROY, and DAVID M. SABATO and
MITZI B. SABATO as trustees of
SABATO DAVID M AND SABATO
MITZI B 2017 REVOCABLE TRUST,

Cause No. CV-21-106-GF-BMM

ORDER

Plaintiffs,
vs.
GREENFIELDS IRRIGATION DISTRICT,
FORT SHAW IRRIGATION DISTRICT,
UNITED STATES, and DOES A-E,
Defendants.
INTRODUCTION
The Court addresses two outstanding motions in limine. Defendant
Greenfields Irrigation District (“GID”) filed a motion in limine on seven issues.
(Doc. 175.) Plaintiffs oppose that motion. (Doc. 209.) Plaintiffs filed a motion in
limine on four issues. (Doc. 192.) GID and the Bureau of Reclamation (“BOR”)
oppose that motion. (Doc. 215; Doc. 227.) The Court held a hearing on the motions
on October 2, 2024. (Doc. 248.)
BACKGROUND
1

The Court previously has recited the factual background in this case at length.
Neal et al. v. Greenfields Irrigation Dist. et al., 2024 WL 4652942 (D. Mont. Nov.
1, 2024); Neal et al. v. Greenfields Irrigation Dist. et al., 2024 WL 2818389 (D.
Mont. June 3, 2024). The Court will not repeat here the factual background giving
rise to this litigation.
STANDARD OF REVIEW
Motions in limine serve as procedural mechanisms “to limit in advance
testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108,
1111 (9th Cir. 2009). The decision on a motion in limine is committed to the district
court’s discretion, including the decision of whether to reserve ruling until trial. See
United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999). A motion in limine
“should not be used to resolve factual disputes or weigh evidence.” BNSF R.R. v.
Quad City Testing Lab., Inc., CV-07-170-BLG-RFC, 2010 U.S. Dist. LEXIS
113888, at *1 (D. Mont. Oct. 26, 2010).
A court will grant a motion in limine only if “the evidence is ‘inadmissible on
all potential grounds.”’ Frost v. BNSF Ry. Co., 218 F. Supp. 3d 1122, 1133 (D. Mont.
2016) (quoting Quad City Testing Lab., 2010 U.S. Dist. LEXIS 113888 at *1).
“[D]enial of a motion in limine does not necessarily mean that all evidence
contemplated by the motion will be admitted at trial. Denial merely means that
2

without the context of trial, the court is unable to determine whether the evidence in
question should be excluded.” Ducheneaux v. Lower Yellowstone Rural Elec. Ass’n,
No. CV 19-6-BLG-TJC, 2021 U.S. Dist. LEXIS 98985 at *25 (D. Mont. May 25,
2021) (internal quotations omitted).
Evidentiary rulings must be deferred until trial if evidence fails to meet the
“inadmissible on all potential grounds standard.” Quad City Testing Lab., 2010 U.S.
Dist. LEXIS 113888 at *2. To defer rulings on motions in limine allows a court to
place “questions of foundation, relevancy and potential prejudice . . . in proper
context.” Id. (internal quotations omitted). A court may alter its ruling on a motion
in limine if trial brings to light facts that the court failed to anticipate in its earlier
ruling. Bensimon, 172 F.3d at 1127.
DISCUSSION
I.

GID’s First Motion in Limine
GID asks the Court to address seven evidentiary issues in its motion. (See

Doc. 176.) The Court will address each issue in turn.
A. Alleged Property Damage from Natural Weather Events and
Water Seepage Conditions that Pre-Date Plaintiffs Acquiring
Ownership of their Properties
GID argues that Plaintiffs should be prohibited from presenting evidence
concerning damage to Plaintiffs’ property that has occurred from natural weather
events and water seepage. (Doc. 176 at 3–4.) GID contends such evidence would
3

prejudice them at trial. (Id. at 4.) The Court addressed the issue of property damage
from natural weather evens and water seepage in a recent order. (Doc. 259.) The
Court granted summary judgment for Defendants because Plaintiff Sabato failed to
provide a genuine issue of material fact to prevent the application of Mont. Code
Ann. § 85-7-2212 to their claims. (Id.) The Court finds GID’s motion in limine to be
moot to the extent that GID seeks to preclude Sabato from offering such evidence.
The summary judgment motion and subsequent order did not address
Plaintiffs Neal’s or Troy’s claims. The Court will reserve ruling on this issue until
trial. The Court will limit any evidence related to the condition of Plaintiffs’ property
to the five years immediately preceding this action. Infra at 8. The Court will deny
without prejudice GID’s motion in limine to this issue. GID remains free to revisit
the issue at trial if the evidence supports it.
B. Whether GID had a role in the Design and Construction of the
WCFC and WCFC Improvements
GID argues that the Court should exclude evidence as to whether GID had a
role in the original design and construction of the WCFC. (Doc. 176 at 5.) GID
contends that no evidence supports the argument that GID designed the Sun River
Project improvements and asks that the Court to prohibit Plaintiffs from making such
arguments. (Id. at 6–7.) Plaintiffs respond that they do attempt to implicate GID in

4

the design and construction of the WCFC. Plaintiffs contend instead that their claims
implicate GID for the operation and maintenance of the WCFC. (Doc. 209 at 6.)
The Court will entertain this motion in a limited scope. The Court previously
has ruled on the issue of asserting design and construction claims against the United
States. (See Doc. 42.) The Court will deny GID’s motion to the extent GID attempts
to establish an empty chair defense. The Court similarly will not allow Plaintiffs to
bring evidence regarding GID’s involvement in design and construction. The Court
notes, however, that some issue of design and construction likely will be relevant at
trial to illustrate the operational parameters of the WCFC. The Court notes also that
GID’s role in operation and maintenance of the WCFC likely will be relevant at trial.
The Court will reserve ruling on these subsequent two issues until it deems
appropriate in the context of the evidence presented at trial.
C. Whether Montana Fish Wildlife & Parks Proposes to Implement
Plaintiffs’ Restoration Plan
GID seeks to exclude evidence that the State of Montana/Montana Fish
Wildlife & Parks (“FWP”) seeks to implement Plaintiffs’ proposed implementation
plan. (Doc. 176 at 7-8.) GID relatedly seeks to exclude the use of evidence of the
condition of the canal in the FWP/Montana-owned sections as representative of the
channel’s condition within Plaintiffs’ properties. (Doc. 176 at 9.) Plaintiffs respond
that they do not anticipate offering the FWP/Montana’s proposed restoration plan in
5

their case in chief. (Doc. 209 at 10.) Plaintiffs further assert that they do not intend
to misrepresent the conditions of their individual properties. (Id. at 11.)
The Court will reserve ruling on the issue of Montana’s/FWP’s proposed
restoration plan until trial “so that questions of foundation, relevancy, and potential
prejudice may be resolved in proper context.” Zrowka v. BNSF Ry. Co., 2023 WL
3142465 at *1 (D. Mont. 2023). The Court will grant GID’s motion for the limited
scope to prohibit Plaintiffs from representing to the jury that the condition of the
WCFC in the FWP/Montana-owned sections as representative of the condition of
the WCFC on Plaintiffs’ properties.
D. Liability Insurance
GID seeks to exclude evidence as to the existence of liability insurance
pursuant to Fed. R. Evid. 411. (Doc. 176 at 11.) Plaintiffs respond that they do not
intend to offer liability insurance evidence as proof of negligence or other wrongful
conduct. (Doc. 209 at 11.) Plaintiffs ask the Court to allow evidence of liability
insurance if GID claims financial constraints preclude the implementation of
Plaintiffs’ restoration plan at trial. (Id. 11–12.)
The Court will grant GID’s motion in line with Rule 411 to preclude
Plaintiffs’ from offering evidence of liability insurance as proof of GID’s negligence
or other wrongful conduct. The Court will reserve ruling until trial on the use of
liability insurance if GID claims financial hardship. The Court reminds the parties
6

that the reasonableness of the proposed restoration remains an issue for the jury to
decide.
E. Legal Opinions
GID seeks to exclude expert testimony and arguments concerning “legal
obligations, restoration obligations, or similar legal matters.” (Doc. 176 at 12–13.)
Plaintiffs agree that experts cannot offer evidence of ultimate legal issues. (Doc. 209
at 12.) Expert testimony regarding an ultimate issue in the case “is not per se
improper.” Hangarter v. Provident Life Accident Ins. Co., 373 F.3d 998, 1016 (9th
Cir. 2004) (internal quotations omitted). An expert’s testimony as to legal
conclusions would be improper. Expert testimony on an ultimate issue of law
invades the province of the jury and proves inadmissible. Nationwide Transp. Fin.
V. Cass Info. Sys., 523 F.3d 1051, 1058 (9th Cir. 2008).
The Court will grant GID’s motion to the limited scope that it seeks to
preclude Plaintiffs’ expert from giving opinions on an ultimate issue of law. The
Court reminds GID that such a ruling would be reciprocal. The Court will reserve
ruling until trial on GID’s motion to the extent GID seeks to preclude other opinions
from Plaintiffs’ expert.
F. Condition of the Property from more than Five Years Before the
Filing of the Action

7

GID seeks to exclude evidence and argument regarding conditions or harms
occurring more than five years before the filing of the action. (Doc. 176 at 13.)
Plaintiffs contend that the damage restriction GID seeks does not apply to restoration
damages. (Doc. 209 at 13.) The Court will grant GID’s motion in a limited scope.
The Court addressed this issue in its recent order on partial summary
judgment. (See Doc. 261.) The Court will not reanalyze the issue here. Plaintiffs’
claims are subject to the five-year statute of limitations immediately preceding the
commencement of Plaintiffs’ action. (Id.) The issue of restoration damages remains
a question for the jury. (Id.)
The Court notes that some evidence related to the condition of the WCFC
more than five years immediately before the commencement of this action may be
relevant to inform the operational parameters of the WCFC. The Court will reserve
ruling on that issue until trial.
G. Golden Rule
GID seeks to prevent Plaintiffs from invoking “the golden rule” or asking the
jury to place themselves in Plaintiffs’ shoes (Doc. 176 at 14.) Plaintiffs agree not to
make “golden rule” arguments. (Doc. 209 at 13.) The Court will grant GID’s motion
and notes that the restriction would be reciprocal.
II.

Plaintiffs’ Motion in Limine

8

Plaintiffs ask the Court to address four evidentiary issues. The Court has
addressed the issues of design and construction of the WCFC and insurance coverage
above. Supra at 4–5, 6–7.
A. Opinions of United States’s Employees
Plaintiffs argue that testimony by employees of the United States regarding
Defendants’ performance relative to the WCFC should be excluded because the
testimony falls under Rule 702 and Defendants failed to disclose proposed experts
under Rule 30(b)(6). (Doc. 193 at 7–8.) Plaintiffs further contend that Defendants
could join the United States for the limited scope of determining contractual rights
between the two. (Id. at 8–9.) The testimony that GID elicited during the United
States’s deposition exceeded that scope and seeks to exonerate Defendants from
potential liability. (Id.)
BOR employees have direct and personal knowledge regarding the operation
and maintenance of the WCFC. The Court will allow BOR employees to testify as
lay witnesses pursuant to Rule 701. A lay witness may provide opinion testimony
limited to “opinions or inferences which are (a) rationally based on the perception
of the witness, (b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702 [Testimony by Experts].” Fed.
R. Evid. 701. “The admissibility of lay opinion testimony under Rule 701 is
9

committed to the sound discretion of the trial judge.” Nationwide Transp. Fin. v.
Cass Info. Sys. Inc., 523 F.3d 1051, 1058 (9th Cir. 2008) (quoting United States v.
Yazzie, 976 F.2d 1252, 1255 (9th Cir. 1992)).
Courts in the District of Montana generally allow lay witness testimony about
industry practice by employees based on familiarity and experience in the industry.
See e.g. BNSF Ry. Co. v. Quad City Testing Lab'y, Inc., 2010 WL 3866726 at *1–2
(D. Mont. Sept. 27, 2010) (allowing BNSF employees to testify on issues related to
personal knowledge and observations in their role as employees); United States v.
Casher, 2020 WL 2557849 at *5 (D. Mont. May 20, 2020) (allowing testimony from
banking employees “based on knowledge they gained through their employment”).
The Court will grant Plaintiffs’ motion for the limited scope to prevent BOR
employees from offering testimony that exonerates Defendants from liability. BOR
employees will be allowed to testify as lay witnesses regarding their personal
knowledge about the operation and maintenance of the WCFC. The Court will
reserve until trial any additional evidentiary ruling regarding the testimony of BOR
employees.
B. Coming to the Nuisance
Plaintiffs asks the Court to prohibit Defendants’ twelfth affirmative defense
of “coming to the nuisance.” (Doc. 193 at 10–13.) Plaintiffs contend that Montana
has not recognized this defense in the context of restoration damages claims and that
10

knowledge of the nuisance would be relevant only in the context of permanent
injury. (Id.) Plaintiffs argue that knowledge of the nuisance would be irrelevant for
the type of abatable, temporary injuries that they assert. (Id. at 13.) A review of the
case law proves instructive. Plaintiffs rely predominantly on four cases to argue that
coming to the nuisance does not provide a valid defense under Montana law.
The plaintiffs in Gravely Ranch v. Scherping sued the adjoining landowner
for the death of several cattle. 782 P.2d 371, 372 (Mont. 1989). The plaintiffs alleged
that the defendant negligently left lead acid batteries exposed on the property that
caused the lead poisoning and death of the plaintiff’s cattle. Id. The Montana
Supreme Court did not address the issue of coming to the nuisance. The plaintiff
learned of the lead exposure after the animals had died and had been tested. Id. The
Montana Supreme Court reasoned that the plaintiffs were permitted to pursue a
continuing tort claim even though the plaintiff was aware of cause of the harm—the
batteries. Id at 373–75.
Sunburst School Dist. No. 2 v. Texaco, Inc. involved the leaking of gasoline
from an oil refinery into the groundwater that migrated underneath the town of
Sunburst, Montana. 165 P.3d 1079, 1083–86 (Mont. 2007). The Montana Supreme
Court did not address the question of whether the injured landowners had acquired
their property with knowledge of the refinery operations. Burley v. Burlington N. &
Santa Fe Ry. Co involved the release of toxic chemicals by the railroad in
11

Livingston, Montana. 273 P.3d 825, 827–29 (Mont. 2012). The chemicals migrated
underground to the surrounding properties. Id. The Montana Supreme Court did not
analyze whether landowners acquired their property with knowledge of the of the
railroad operations.
Finally, Christian v. Atlantic Richfield Co. involved arsenic pollution from the
operation of smelters in Anaconda, Montana. 358 P.3d 131, 137–40 (Mont. 2015).
The arsenic pollution from the Anaconda smelters had been well-known. Id. The
plaintiffs alleged several torts—identical to the torts in this case—related to the
arsenic pollution. Id. The Montana Supreme Court engaged in an in-depth analysis
regarding the plaintiffs’ knowledge of prior torts with respect to the continuing tort
doctrine and restoration damages. Id. at 139–47. The Montana Supreme Court did
not address the potential application of the coming to the nuisance doctrine.
Plaintiffs also cite several out of district decisions to argue that the coming to
the nuisance doctrine should not be a valid defense to their claims. (Doc. 193 at 10.)
The Court finds these cases unpersuasive to support an outright bar to the jury’s
consideration of the coming to the nuisance defense. For example, the district court
in Seneca Meadows, Inc. v. ECI Liquidating, Inc., 983 F. Supp. 360, 364 (W.D.N.Y.
1997), concluded that “knowledge of preexisting contamination, if proven, may be
a factor to be considered by the jury in determining damages regarding the Adjacent
Properties.” (Emphasis added); see also Patrick v. Sharon Steel Corp., 549 F. Supp.
12

1259, 1267–68 (N.D.W. Va. 1982) (rejecting coming to the nuisance as an “absolute
defense” in the context of air and water pollution because people often do not choose
where they live.) (internal citation omitted); Jacques v. Pioneer Plastics, Inc., 676
A.2d 504, 508 (Me. 1996) (recognizing that coming to the nuisance does not provide
a “complete” defense in a nuisance action) (internal citation omitted); Kellogg v.
Vill. of Viola, 227 N.W.2d 55, 58 (Wis. 1975) (noting that “coming to the nuisance
may properly be considered while weighing the equities in an abatement action”).
When a “state’s highest court has not decided an issue, that task of the federal
courts is to predict how the state high court would resolve it.” Id. at *2 (quoting
Ticknor v. Choice Hotels Intern, Inc., 256 F.3d 931, 939 (9th Cir. 2001) (internal
quotations and citations omitted). The Montana Supreme Court has not explicitly
said coming to the nuisance provides no valid defense under Montana law. Wilhelm
v. City of Great Falls, 685 P.2d 350, 352 (Mont. 1984) (“Appellants argue that
respondents acted negligently in locating their house one mile from the dump.
Because the parties failed to raise the issue on appeal, we will not consider the
theories of assumption of risk or coming to the nuisance.”).
The Court remains doubtful of Plaintiffs’ argument that a plaintiff’s
knowledge of the harm proves entirely irrelevant when injuries are temporary. The
facts of the Montana cases cited by Plaintiffs fundamentally differ from this case.
The harms in those cases typically involved unseen contaminants. The harms in this
13

case are caused two occurrences per year—when water is released into the WCFC—
that are open and obvious. Plaintiffs also knew that Defendants possessed an
easement for the operation of the WCFC on their property at the time of their
purchases. (See Doc. 156 at 3.)
The Court declines to establish an outright bar of coming to the nuisance
defense. The Court notes that aspects of such a defense likely would be relevant at
trial related to Plaintiffs’ nuisance claim. Such evidence may include the impact of
the WCFC on Plaintiffs’ use and enjoyment of their properties, the applicability of
nuisance under Mont. Code Ann. § 27-30-101(2), arguments regarding the economic
harms Plaintiffs have suffered, and GID’s estoppel defense. (Doc. 215 at 13–17.) In
other words, Plaintiffs knowledge of the operation of the WCFC and the condition
of their properties at the time of their purchases “may be a factor” for the jury to
consider. Seneca Meadows, Inc., 983 F. Supp. at 364. The Court will reserve a final
ruling on such issues until it has a chance to consider the evidence presented at trial.
CONCLUSION
The Court will grant GID’s motion in limine in part and reserve ruling on
some of the issues until trial. The Court similarly will grant Plaintiffs’ motion in
limine and reserve ruling on some of the issues until trial.
ORDER
Accordingly, IT IS ORDERED that:
14

1. GID’s Motion in Limine (Doc. 175) is GRANTED in part:
• The Court denies without prejudice GID’s motion in limine
regarding alleged property damage from natural weather events and
water seepage conditions that pre-date Plaintiffs acquiring
ownership of their properties.
• The Court denies GID’s motion regarding GID’s role in the design
and construction of the WCFC and WCFC improvement. The Court
reserves ruling on the design on design and construction evidence to
the extent it is necessary to illustrate the operational parameters of
the WCFC and GID’s role in the operation and maintenance of the
WCFC until trial.
• The Court grants GID’s motion regarding FWP/Montana
endorsement of Plaintiffs’ restoration plan for the limited scope to
prohibit Plaintiffs from representing to the jury that the condition of
the WCFC in the FWP/Montana-owned sections as representative
of the condition of the WCFC on Plaintiffs’ properties. The Court
reserves ruling on any other issues related to this until trial.
• The Court grants GID’s motion regarding liability insurance in line
with Rule 411 to preclude Plaintiffs’ from offering evidence of
liability insurance as proof of GID’s negligence or other wrongful
15

conduct. The Court reserves ruling until trial on the use of liability
insurance if GID claims financial hardship.
• The Court grants GID’s motion regarding legal opinions to the
limited scope that it seeks to preclude Plaintiffs’ expert from giving
opinions on an ultimate issue of law.
• The Court grants GID’s motion regarding the condition of Plaintiffs
property from more than five years before filing the action. The
issue of restoration damages remains a question for the jury. The
Court reserves ruling on the issue that some evidence related to the
condition of the WCFC more than five years immediately before the
commencement of this action may be relevant to inform the
operational parameters of the WCFC until trial.
• The Court grants GID’s motion seeking Plaintiffs from invoking
“the golden rule.”
2. Plaintiffs’ Motion in Limine (Doc. 192.) is GRANTED in part:
• The Court denies Plaintiffs’ motion regarding the design and
construction of the WCFC in line with its Order regarding GID’s
motion, Doc. 175, above.

16

• The Court grants Plaintiffs’ motion regarding precluding testimony
of United States’s employees for the limited scope to prevent BOR
employees from offering testimony that exonerates Defendants from
liability. The Court reserves ruling on United States’s employee’s
testimony as lay witnesses until trial.
• The Court reserves ruling on the issue of “coming to the nuisance”
as a defense until trial.
• The Court denies Plaintiffs’ motion regarding insurance coverage in
line with its Order regarding GID’s motion, Doc. 175, above.
3.

DATED this 25th day of November, 2024.

17