Lamar Advertising of South Dakota, Inc et al v. City of Rapid City

Filing 66

ORDER denying 25 Motion in Limine. Signed by Chief Judge Jeffrey L. Viken on 2/21/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
LAMAR ADVERTISING OF SOUTH
DAKOTA, INC., a South Dakota
corporation, and TLC
PROPERTIES, INC., d/b/a Lamar
TLC Properties, Inc., a Louisiana
corporation,
Plaintiffs,
vs.
CITY OF RAPID CITY, a South
Dakota municipal corporation,
Defendant.

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CIV. 11-5068-JLV

ORDER DENYING
PLAINTIFFS’ MOTION IN
LIMINE AND PLAN FOR
DISPOSITION OF CASE

Plaintiffs, Lamar Advertising of South Dakota, Inc. (“Lamar”), and TLC
Properties, Inc., d/b/a Lamar TLC Properties, Inc. (“TLC”) (collectively referred
to as “plaintiffs”), move the court to exclude the proposed testimony from the
City of Rapid City’s (“City”) expert witnesses David R. Gilley and Donald
Frankenfeld. (Docket 25). Plaintiffs contend “the City supplied a woefully
inadequate disclosure of its purported experts” in violation of the Rules of Civil
Procedure. Plaintiffs also claim the proffered opinions are inadmissible under
the Federal Rules of Evidence. (Docket 26 at p. 1). The City filed a response
urging the court to deny plaintiffs’ motion. (Docket 49).
On February 21, 2014, the court entered its order on the parties’ cross
motions for summary judgment, narrowing the issues for trial. (Docket 65).
The only remaining issues are whether the spacing requirements established

by the Citizen Initiatives are reasonable and whether plaintiffs are entitled to
damages. Neither party requested a jury trial. (Docket 13 at p. 5). As a result,
these issues will be resolved through a court trial.
Plaintiffs contend the City’s expert disclosures violate the Rules of Civil
Procedure, particularly Rule 26. (Docket 26 at pp. 8-16). Plaintiffs also
contend the City’s experts should be precluded from testifying because their
opinions are inadmissible under the Federal Rules of Evidence. Id. at pp. 1632.
Rule 26(a)(2) requires parties to make pretrial disclosure, without a
formal discovery request, of the identity of any person who may provide expert
testimony at trial. If the expert witness is one “retained or specially employed
to provide expert testimony,” the witness must prepare and sign a written
report containing:
1.

a complete statement of all opinions the witness will
express and the basis and reasons for them;

2.

the facts or data considered by the witness in forming
[the opinions];

3.

any exhibits that will be used to summarize or support
[the opinions];

4.

the witness’s qualifications, including a list of all
publications authored in the previous 10 years;

5.

a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and

6.

a statement of the compensation to be paid for the study
and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).
2

Because the issues have been narrowed by the court’s order on the
parties’ cross motions for summary judgment, it will be helpful for the parties,
within 30 days from the date of this order, to revise the disclosed expert reports
to conform with Rule 26 requirements and to tailor the expert reports to the
remaining issues. If the parties believe additional discovery is necessary, the
parties shall, within 30 days from the date of this order, suggest a schedule for
taking the depositions of disclosed experts.
Plaintiffs also contend defendant’s experts’ testimony is inadmissible
under the Federal Rules of Evidence. (Docket 26 at pp. 16-32). Because the
parties have not requested a jury trial, the plaintiffs’ challenges to defendant’s
experts under Fed. R. Evid. 702, 703 and Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993) can be taken up at a pretrial conference or during the
trial. The court is responsible for ensuring all expert testimony and evidence
admitted at trial is relevant and reliable. See Daubert, 509 U.S. at 589.
During the trial, the court will be in a better position to determine the
credibility of experts and the weight to be accorded expert testimony. See
Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1183 (8th Cir.
1997) (“Questions of an expert’s credibility and the weight accorded to his
testimony are ultimately for the trier of fact to determine.”) (citing Fox v.
Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990)).
Therefore, it is hereby
ORDERED that plaintiffs’ motion in limine (Docket 25) to exclude the
City’s experts is denied.

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IT IS FURTHER ORDERED that the parties shall, within 30 days from
the date of this order, revise the disclosed expert reports in accord with the
court’s scheduling order (Docket 15 at ¶ 8) and Fed. R. Civ. P. 26. If additional
discovery is necessary, the parties shall, within 30 days from the date of this
order, suggest a schedule for the taking of depositions of the disclosed experts.
IT IS FURTHER ORDERED that the parties shall, within 30 days from
the date of this order, propose dates for a court trial and state the amount of
time necessary to try this case.
Dated February 21, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken__________________________
JEFFREY L. VIKEN
CHIEF JUDGE

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