Aidini v. Costco Wholesale Corporation
ORDER Denying 47 Motion in Limine to preclude request for specific amount of non-economic damages. Signed by Judge Andrew P. Gordon on 4/10/17. (Copies have been distributed pursuant to the NEF - MR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:15-cv-00505-APG-GWF
COSTCO WHOLESALE CORPORATION,
ORDER DENYING MOTION IN
LIMINE TO PRECLUDE REQUEST
FOR SPECIFIC AMOUNT OF NONECONOMIC DAMAGES
(ECF No. 47)
Defendant Costco Wholesale Corporation moves to preclude plaintiff Artano Aidini from
requesting the jury to award a specific amount of non-economic damages, contending that such a
request would undermine the jury’s independence by “anchoring” it to a number provided by
Aidini. Aidini responds that Costco offers no binding authority for such a limitation and that
most jurisdictions defer the matter to the judge’s discretion at trial.
Trial courts have “wide discretion” as to the presentation of evidence and argument at
trial. See United States v. Layton, 767 F.2d 549, 554 (9th Cir. 1985). While the Ninth Circuit has
not directly opined on the subject, most courts apply the same flexible approach to the issue of
whether and how plaintiffs’ counsel may request specific damages amounts for pain and
suffering. See, e.g., Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997) (“It is
best left to the discretion of the trial judge, who may either prohibit counsel from mentioning
specific figures or impose reasonable limitations, including cautionary jury instructions.”);
Barnard v. Las Vegas Metro. Police Dep’t, No. 2:03-CV-01524-RCJ-LRL, 2011 WL 2413155, at
*5 (D. Nev. June 7, 2011)1 (“In the Nevada state courts, such a suggestion may only be made to
the jury as an illustration of how to make a calculation, and it results in error if the trial court does
Aff’d in part, vacated in part, rev’d in part on other grounds sub nom. Barnard v. Theobald, 721
F.3d 1069 (9th Cir. 2013).
not sufficiently admonish the jury that the suggestion can only be used as a method of calculation,
not as a suggestion of amount.” (citing Johnson v. Brown, 345 P.2d 754, 759 (Nev. 1959)).
I agree that a flat prohibition on such argument is unnecessary and potentially deprives the
jury of guidance on how it might arrive at a determination. Costco is equally able to offer its own
arguments as to why Aidini’s pain and suffering, if any, would merit a lesser damages amount. I
advise both sides that if they wish to make such an argument, they must admonish the jury along
the following lines: the argument offering a calculation of non-economic damages is not
evidence, but simply argument that the jury is free to accept or reject. Non-economic damages
are not dictated by legal precedent or mathematical formulae, but rather the jury must use its own
estimates and reasoning to reach a figure appropriate to the specific case.
IT IS THEREFORE ORDERED that defendant Costco’s motion in limine to preclude the
plaintiff from requesting the jury to award a specific amount of non-economic damages (ECF No.
47) is DENIED.
DATED this 10th day of April, 2017.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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