Carte v. Loft Painting Company, Inc., et al

Filing 216

ORDER granting 208 Plaintiff's Motion in Limine to preclude Jason Henthorn from testifying at trial; denying 209 Defendant's Motion in Limine to preclude Plaintiff from utilizing evidence not produced during discovery; granting 210 Defendant's Motion in Limine to preclude Roger Griffith from testifying at trial; denying 214 Defendant's Motion in Limine to preclude Jack W. Sparks from testifying at trial. Signed by Judge Gregory L Frost on 5/24/11. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JENNIFER A. CARTE,
Plaintiff,

Case No. 2:09-cv-178
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel

v.
LOFT PAINTING CO., INC., et al.,
Defendants.

ORDER
This matter is before the Court for consideration of the following filings:
(1) Plaintiff’s motion in limine to preclude Jason Henthorn from testifying at trial (ECF
No. 208);
(2) Defendant’s motion in limine to preclude Plaintiff from utilizing evidence not
produced during discovery (ECF No. 209) and Defendant’s memorandum in opposition (ECF
No. 213);
(3) Defendant’s motion in limine to preclude Roger Griffith from testifying at trial (ECF
No. 210) and Plaintiff’s response (ECF No. 212);
(4) Defendant’s motion in limine to preclude Jack W. Sparks from testifying at trial
(ECF No. 214) and Plaintiff’s memorandum in opposition (ECF No. 215).
Following a discussion of a threshold issue regarding the motions briefing, this Court
shall address each motion in turn.
I. Violations of Court Orders
On April 14, 2009, this Court filed a Notice of Final Pretrial and Trial. (ECF No. 69.)

That document provided that, in addition to the rules and procedures described in that notice, the
parties should refer to “[a]dditional rules and trial procedures” available “from the Court’s
website at www.ohsd.uscourts.gov.” (ECF No. 69, at 4.) The undersigned judicial officer has a
standing order posted on that on that website that provides that “[m]otions in limine . . . shall be
filed three weeks prior to the final pretrial conference. Responses to motions in limine shall be
filed two weeks prior to the final pretrial conference” Trial Procedure for Civil Jury Trial, at 6.
The final pretrial conference date in this case is May 25, 2011. (ECF No. 199, at 11.)
Despite the consequent motion in limine filing deadline that arose from the final pretrial
conference date, Plaintiff filed a motion in limine on May 17, 2011. (ECF No. 208.) Defendant
then filed two motions in limine on May 19, 2011 (ECF Nos. 209, 210), and filed a third motion
in limine on May 20, 2011 (ECF No. 214). The parties’ late motions in limine and their related
late responses violate the Court’s standing order.
In such instances of inexcusably sloppy or poor practice, this Court has considered
action such as striking the untimely or impermissible filings or even sanctioning counsel. See
Hinkle v. Norfolk S. Ry. Co., No. 2:05-cv-574, 2007 WL 496365, at *1 (S.D. Ohio Feb. 12,
2007). It is this Court’s preference and general practice to file its motion in limine orders the
week prior to the final pretrial conference. The parties’ conduct has frustrated this goal by
disregarding the Court’s standing order. Such performance by counsel does not bode well for a
smooth trial. Rather than strike all the offending documents or sanction all of the counsel
involved, however, this Court will do two things. First, the Court accepts for consideration the
parties’ untimely filings. (ECF Nos. 208, 209, 210, 212, 213, 214, 215.) Second, the Court
“admonishes . . . counsel for [their] abject failure to comply with all applicable orders of this

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Court and advises counsel to meet [their] responsibilities in the future.” Hinkle, 2007 WL
496365, at *1.
II. Motions in limine
A. Standard Involved
A motion in limine is a pre-trial mechanism by which this Court can give the parties
advance notice of the evidence upon which they may or may not rely to prove their theories of
the case at trial. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Any ruling on a motion
in limine, however, is “no more than a preliminary, or advisory, opinion that falls entirely within
the discretion of the district court, and the district court may change its ruling where sufficient
facts have developed that warrant the change.” United States v. Yannott, 42 F.3d 999, 1007 (6th
Cir. 1994). Therefore, this Court will entertain objections on individual proffers of evidence as
they arise at trial, even though the proffered evidence falls within the scope of a denied motion in
limine. See id.; see also United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989) (citing
Luce, 469 U.S. at 41)).
B. Analysis
1. Jason Henthorn
In her sole motion in limine, Plaintiff seeks to preclude Jason Henthorn from testifying at
trial. (ECF No. 208.) Plaintiff asserts as grounds for this motion that Defendant failed to
provide an expert report from Henthorn. Federal Rule of Civil procedure 26(a)(2)(A) requires
the disclosure of a party’s expert witness. Rule 26(a)(2)(B) mandates that the disclosing party
contemporaneously disclose an expert written report, which must contain a complete statement
of the expert’s opinions, the basis for such opinions, the information relied upon in forming the

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opinions, any summarizing or supporting exhibits, the expert’s qualifications, the expert’s
publications from the preceding ten years, a list of all cases in which the witness testified as an
expert in the preceding four years, and the expert’s compensation. Rule 26(a)(2)(D) sets forth
default deadlines for these disclosures, but also specifically provides for stipulated changes or
changes by the Court to these deadlines. Finally, Rule 26(a)(2)(E) imposes an ongoing duty to
supplement the expert report and opinions.
Defendant disclosed Henthorn but then failed to provide an expert report. The Court
therefore GRANTS the motion in limine and prohibits Henthorn from testifying at trial. (ECF
NO. 208.) The Court declines, however, to impose the additional requested sanctions of
informing the jury of the failure to provide an expert report and other additional sanctions such
as default judgment.
2. Evidence not produced during discovery
In its first motion in limine, Defendant asks the Court to preclude Plaintiff from utilizing
at trial evidence not produced during discovery. (ECF No. 209.) Defendant does not identify
any specific evidence but appears to be engaging in a hypothetical discussion targeting only a
possibility of such action by Plaintiff at trial. This is tantamount to Defendant requesting an
order instructing Plaintiff to follow the law. The Court therefore DENIES the motion. (ECF
No. 209.) The parties are of course bound by all applicable procedural and evidentiary rules and
of course remain free to present arguments related to those rules should the perceived need for
doing so arise during trial.
3. Roger Griffith
Defendant seeks in its second motion in limine to preclude Roger Griffith from testifying

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at trial. (ECF No. 210.) In support of this motion, Defendant asserts that Plaintiff failed to
provide a Rule 26(a)(2)(B) written report. In response, Plaintiff concedes that the Court should
exclude Griffith “for the same reasons . . . Jason Henthorn . . . should be excluded.” (ECF No.
212, at 1.) The Court GRANTS the motion in limine and prohibits Griffith from testifying at
trial. (ECF NO. 210.)
4. Jack W. Sparks
In Defendant’s final motion in limine, Defendant seeks to preclude Jack W. Sparks from
testifying at trial. (ECF No. 214.) The dismissed Vector Technologies, Ltd. had previously
disclosed Sparks as an expert witness on its behalf and had produced Sparks’ expert report.
Plaintiff did not designate Sparks as an expert on her behalf until September 29, 2010, and did
not produce either a report from him or a summary of his anticipated testimony. Plaintiff argues
that she can utilize Sparks in part because her blanket incorporation of other witnesses included
Sparks, whose report Defendant has as a result of Vector, Ltd.’s disclosures. Plaintiff also
directs the Court to the summary judgment briefing in which both Plaintiff and Defendant
explicitly treated Sparks as Plaintiff’s expert. Given the disclosure, the parties’ course of
conduct, the Court cannot say that, even assuming arguendo that Plaintiff violated Rule 26, the
harmless violation presents any prejudice to Defendant. The Court DENIES the motion in
limine. (ECF No. 214.)
III. Conclusion
For the foregoing reasons, this Court ORDERS as follows:
(1) The Court GRANTS Plaintiff’s motion in limine to preclude Jason Henthorn from
testifying at trial (ECF No. 208);

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(2) The Court DENIES Defendant’s motion in limine to preclude Plaintiff from utilizing
evidence not produced during discovery (ECF No. 209);
(3) The Court GRANTS Defendant’s motion in limine to preclude Roger Griffith from
testifying at trial (ECF No. 210); and
(4) The Court DENIES Defendant’s motion in limine to preclude Jack W. Sparks from
testifying at trial (ECF No. 214).
As with all in limine decisions, these rulings are subject to modification should the facts
or circumstances at trial differ from that which has been presented in the pre-trial motion and
memoranda.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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