Aidini v. Costco Wholesale Corporation

Filing 85

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ARTANO AIDINI,

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Case No. 2:15-cv-00505-APG-GWF
Plaintiff,

v.
COSTCO WHOLESALE CORPORATION,

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Defendant.

ORDER DENYING MOTION IN
LIMINE TO PRECLUDE REQUEST
FOR SPECIFIC AMOUNT OF NONECONOMIC DAMAGES
(ECF No. 47)

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Defendant Costco Wholesale Corporation moves to preclude plaintiff Artano Aidini from

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requesting the jury to award a specific amount of non-economic damages, contending that such a

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request would undermine the jury’s independence by “anchoring” it to a number provided by

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Aidini. Aidini responds that Costco offers no binding authority for such a limitation and that

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most jurisdictions defer the matter to the judge’s discretion at trial.

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Trial courts have “wide discretion” as to the presentation of evidence and argument at

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trial. See United States v. Layton, 767 F.2d 549, 554 (9th Cir. 1985). While the Ninth Circuit has

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not directly opined on the subject, most courts apply the same flexible approach to the issue of

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whether and how plaintiffs’ counsel may request specific damages amounts for pain and

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suffering. See, e.g., Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997) (“It is

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best left to the discretion of the trial judge, who may either prohibit counsel from mentioning

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specific figures or impose reasonable limitations, including cautionary jury instructions.”);

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Barnard v. Las Vegas Metro. Police Dep’t, No. 2:03-CV-01524-RCJ-LRL, 2011 WL 2413155, at

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*5 (D. Nev. June 7, 2011)1 (“In the Nevada state courts, such a suggestion may only be made to

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the jury as an illustration of how to make a calculation, and it results in error if the trial court does

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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).

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not sufficiently admonish the jury that the suggestion can only be used as a method of calculation,

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not as a suggestion of amount.” (citing Johnson v. Brown, 345 P.2d 754, 759 (Nev. 1959)).

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I agree that a flat prohibition on such argument is unnecessary and potentially deprives the

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jury of guidance on how it might arrive at a determination. Costco is equally able to offer its own

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arguments as to why Aidini’s pain and suffering, if any, would merit a lesser damages amount. I

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advise both sides that if they wish to make such an argument, they must admonish the jury along

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the following lines: the argument offering a calculation of non-economic damages is not

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evidence, but simply argument that the jury is free to accept or reject. Non-economic damages

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are not dictated by legal precedent or mathematical formulae, but rather the jury must use its own

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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

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plaintiff from requesting the jury to award a specific amount of non-economic damages (ECF No.

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47) is DENIED.

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DATED this 10th day of April, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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