Abbey v. City of Reno et al

Filing 62

ORDER denying without prejudice 50 Motion in Limine. Signed by Judge Larry R. Hicks on 5/6/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DENISE ABBEY, individually, and as special )
administrator of the ESTATE OF MICAH
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ABBEY,
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Plaintiff,
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v.
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CITY OF RENO; et al.,
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Defendants.
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3:13-cv-0347-LRH-VPC
ORDER

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Before the court is defendants the City of Reno, Reno Police Department, Keith Pleich,

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Daniel Bond, and Scott Rasmussen’s (collectively “defendants”) motion in limine to exclude

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expert testimony. Doc. #50. Plaintiff Denise Abbey (“Abbey”) filed an opposition to the motion.

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Doc. #57.

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I.

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Facts and Procedural History
On December 25, 2011, non-party Micah Abbey was killed in an altercation with police

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officers of the Reno Police Department (“RPD”). On June 28, 2013, plaintiff Abbey, the

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deceased’s mother, filed a complaint for excessive force and wrongful death. Doc. #1. During

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discovery, Abbey identified economist Robert W. Johnson (“Johnson”) as her damages expert.

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Thereafter, defendants filed the present motion in limine to exclude Johnson’s expert testimony.

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Doc. #50.

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II.

Legal Standard

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A motion in limine is used to preclude prejudicial or objectionable evidence before it is

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presented to the jury. Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine § 1:1

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(2012). The decision on a motion in limine is consigned to the district court’s discretion - including

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the decision of whether to rule before trial at all. See Hawthorne Partners v. AT&T Technologies,

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Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (noting that a court may wait to resolve the

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evidentiary issues at trial, where the evidence can be viewed in its “proper context”). Motions in

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limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not

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be excluded prior to trial unless “the evidence [is] inadmissible on all potential grounds.” See, e.g.,

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Indiana Insurance Co. v. General Electric Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).

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III.

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Discussion
In their motion, defendants seek an order excluding plaintiff Abbey’s identified damages

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expert as an expert witness in this action. Defendants argue that Johnson’s testimony is unreliable

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because he employed discredited methodology in reaching his damages computation and, therefore,

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his testimony should be excluded under Rule 702 and in accordance with the Daubert evidence

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trilogy: Daubert v. Merrell-Dow Pharms., Inc., 509 U.S. 579 (1993); General Electric Co. v.

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Joiner, 522 U.S. 136 (1998); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

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The court has reviewed the documents and pleadings in this matter and finds that

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defendants’ motion in limine is premature. Generally, a motion in limine should not be adjudicated

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until the eve of trial and after a pre-trial order has been filed. See Jones v. Harris, 665 F. Supp. 2d

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394 (S.D. NY 2009). Here, the parties have not yet filed a pre-trial order. In fact, discovery in this

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action is still ongoing and neither party has filed any dispositive motions. Thus, there is no context

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for the court to determine the admissibility and relevancy of Johnson’s expert report and testimony

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at this time. Therefore, the court shall deny defendants’ motion without prejudice.

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IT IS THEREFORE ORDERED that defendants’ motion in limine (Doc. #50) is DENIED
without prejudice.

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IT IS SO ORDERED.

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DATED this 6th day of May, 2014.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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