Ilyia v. El Khoury et al
Filing
253
ORDER Granting in part Defendant's 217 Motion in Limine by Judge Robert S. Lasnik. (CL)
1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
6
7
ELIAS ILYIA,
8
9
10
11
Plaintiff,
Case No. C11-1593RSL
v.
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN
LIMINE
MAROUN EL KHOURY,
Defendants.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
This matter comes before the Court on “Defendant’s Motions in Limine”
(Dkt. # 165) and “Defendant’s Second Motions in Limine” (Dkt. # 217). Having
reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court
finds as follows:
A. Defendant’s First Motions in Limine
1. Other Lawsuits or Criminal Sanctions Against Defendant
Plaintiff would like to present evidence regarding three other actions in
which defendant has been accused of wrongdoing. Both parties acknowledge that the
test for admissibility under Fed. R. Ev. 404(b)(2) is as follows: “(1) there must be proof
of the prior bad act based on sufficient evidence; (2) the crimes or acts must not be too
remote; (3) the prior conduct must be similar to the acts defendant is charged with; and
(4) the evidence must prove an essential element of the offense.” U.S. v. Houser, 929
26
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-1-
1
F.2d 1369, 1372 (9th Cir. 1990). With regards to the first factor, plaintiff offers nothing
2
but a bald assertion that “[t]he mere fact that the judgment exists is sufficient evidence
3
and the first part of the four-part test is met.” Dkt. # 168 at 5. Two of the three actions
4
were resolved against defendant in his absence, however, and the third remains pending
5
after substitute service was affected in March 2008. There is no indication that any
6
evidence was presented against defendant in these cases, much less “proof of the prior
7
bad acts.” Plaintiff will not be permitted to repeat unproven accusations levied against
8
defendant in other jurisdictions.
9
10
As for the second factor, plaintiff concedes that the 1992 Virginia state
court matter is too remote to be admissible. Dkt. # 168 at 5.
11
Finally, plaintiff fails to provide any analysis of the allegations in the prior
12
lawsuits or how they help establish motive, opportunity, intent, plan, or knowledge in
13
this case. The only information provided is a copy of the docket and complaint in the
14
Eastern District of Virginia which shows that defendant was accused of breaching a
15
licensing agreement and embezzlement. While those allegations certainly present
16
defendant in a bad light and involve wrongful financial dealings, the bad acts are not
17
closely related to the sort of psychological abuse and intimidation alleged by plaintiff in
18
this case.
19
At the pretrial conference in this matter, the Court made it clear that
20
plaintiff’s claims would be tried on the facts of this case, not on allegations asserted in
21
distant and remote actions. Despite this admonition, plaintiff did not supplement his
22
response to defendant’s motion in limine. Based on the existing record, it appears that
23
plaintiff hopes to use the mere existence of these three actions to suggest that defendant
24
is a bad person, without having to satisfy the test for admissibility under Rule 404(b).
25
This he cannot do. Defendant’s first motion in limine is GRANTED.
26
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-2-
1
2. Use of Tunisian Judgment for Impeachment Purposes
2
As discussed above, plaintiff is precluded from presenting evidence of,
3
referring to, or questioning witnesses about the other actions in which defendant has
4
been accused of wrongdoing, including the Tunisian criminal proceeding. There should
5
not, therefore, be an opportunity to use the Tunisian judgment for impeachment
6
purposes, and plaintiff’s counsel shall refrain from creating such an opportunity.
7
Defendant’s second motion in limine is GRANTED.1
8
3. Opinion Testimony of Lay Witnesses
The Court reserves ruling on defendant’s third motion in limine.2 Whether
9
10
one or more of the identified witnesses had sufficient opportunity to perceive plaintiff
11
and develop an opinion regarding his ability to understand the nature of the challenged
12
transactions cannot be ascertained on the record. The mere use of the words
13
“incompetent” or “capacity” in describing what the witnesses observed and the
14
reasonable inferences drawn therefrom does not necessarily transform the testimony into
15
forbidden expert opinion. While counsel and the witnesses shall take care to avoid any
16
implication that the witnesses are offering a medical diagnosis or otherwise basing their
17
testimony on “scientific, technical or other specialized knowledge” (Fed. R. Ev. 701(c)),
18
lay people often use “competent” and “capable” to explain the overall impression they
19
have of a person’s abilities.
20
21
At common law, lay witnesses were not permitted to draw conclusions and
were limited to describing what “they had seen, heard, felt, smelled, tasted, or done”
22
1
23
24
25
26
If defense counsel opens the door, plaintiff may request reconsideration of this
ruling.
2
Contrary to defendant’s assertion in reply (Dkt. # 169 at 4-5), plaintiff has not
conceded that the witnesses should be precluded from offering lay opinions regarding
plaintiff’s competence or capacity to contract during the relevant period.
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-3-
1
without the elaboration of inference. Hon. Charles R. Richey, Proposals to Eliminate the
2
Prejudicial Effect of the Use of the Word “Expert” Under the Federal Rules of Evidence
3
in Civil and Criminal Jury Trials, 154 F.R.D. 537, 542 (1994). This strict dichotomy
4
between “fact” and “opinion” generated practical problems, as succinctly described by
5
Judge Learned Hand:
6
Every judge of experience in the trial of causes has again and again seen
the whole story garbled, because of insistence upon a form with which the
witness cannot comply, since, like most men, he is unaware of the extent to
which inference enters into his perceptions. He is telling the “facts” in the
only what that he knows how, and the result of nagging and checking him
is often to choke him altogether, which is, indeed, usually its purpose.
7
8
9
10
11
12
13
14
15
Central R.R. Co. v. Monahan, 11 F.2d 212, 214 (2nd Cir. 1926). Rule 701 was adopted
to broaden the common law, and the Court will not unnecessarily bind the witnesses to
describing what they saw, heard, or did if their perceptions rationally support inferences
regarding plaintiff’s capacity to understand the nature of the challenged transactions.
Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1195-96 (3rd Cir. 1995).
4.
16
The Court reserves ruling on defendant’s fourth motion in limine.3 For the
17
18
19
20
21
22
23
24
25
26
Testimony of Dr. Elizabeth McKendry Related to Competency
reasons stated above, Dr. McKendry may testify regarding her observations of plaintiff
during the relevant time frame and will not be precluded from using the words
“competent” and/or “capable” if those inferences are rationally based on her perceptions.
Dr. McKendry was not, however, identified as an expert and neither counsel nor the
witness shall imply that she made a medical diagnosis regarding plaintiff’s psychological
state in 2010 or in anticipation of trial.
3
Contrary to defendant’s assertion in reply (Dkt. # 169 at 5), plaintiff has not
conceded that Dr. McKendry should be precluded from offering a lay opinion regarding
plaintiff’s competence or capacity to contract during the relevant period.
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-4-
1
5. Testimony of Valuation Expert Stephen Kessler
2
Defendant makes no effort to show how the expert report provided by
3
Stephen Kessler was in any way defective, incomplete, or otherwise lacking.
4
Defendant’s fifth motion in limine is DENIED.
7. Transfer of $3.7 Million to Sophie El Khoury 4
5
6
Defendant argues that the transfer of $3.7 million to Sophie El Khoury in
7
October 2009 should be hidden from the jury because (a) it is undisputed, (b) it is
8
irrelevant, and (c) it will confuse the jury. Dkt. # 165 at 7. No explanation is provided.
9
The transfer is certainly relevant to plaintiff’s theory of the case: it was defendant’s first
10
grab for plaintiff’s assets based on false pretenses and overreaching. Defendant’s
11
seventh motion in limine is DENIED.
12
8. Questions Regarding Use of the $3.7 Million
13
Defendant argues that plaintiff should be precluded from asking defendant
14
what became of the $3.7 million transferred to Ms. El Khoury because Ms. El Khoury is
15
in a better position to answer that question. The Court is unaware of any rule of
16
procedure or evidence which requires that a question be asked only of the witness who is
17
best-placed to answer it. If defendant does not know, he may say so. Defendant’s eighth
18
motion in limine is DENIED.
19
9. Transfer of $1.5 Million to Theresa and Maria El Khoury
20
Defendant argues that the transfer of $1.5 million to his sisters in June
21
2010 should be hidden from the jury because (a) it is undisputed, (b) Theresa and Maria
22
El Khoury are not defendants or witnesses in this action, (c) it is irrelevant, and (d) it will
23
confuse the jury and cause unfair prejudice. Dkt. # 165 at 8. Once again, defendant
24
ignores the gist of plaintiff’s claims and provides no explanation of or support for his
25
4
26
The parties have resolved motions in limine 6, 10, 16, 17, and 21-30.
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-5-
1
objections. It is the fact that defendant imposed on plaintiff to transfer assets to
2
recipients of defendant’s choice that makes the transaction relevant. Plaintiff’s decision
3
to forego a lawsuit against the sisters based on their brother’s alleged malfeasance does
4
not erase the undisputed facts from the case or preclude a judgment for those amounts
5
against defendant. Defendant’s ninth motion in limine is DENIED.
6
7
11. Personal Knowledge
Unless qualified under Fed. R. Ev. 702, all witnesses shall testify based on
8
their own personal knowledge. Defendant has not, however, identified any testimony
9
that runs afoul of this basic rule. His eleventh motion is limine is therefore DENIED.
10
12. Fiduciary Relationship Arising from Role as Corporate Officer
11
Defendant seeks to exclude any testimony or argument that defendant
12
owed plaintiff a fiduciary duty arising out of defendant’s role as Vice President of
13
Diagnos-Techs on the ground that such a theory was not asserted in the Amended
14
Complaint. Plaintiff’s breach of fiduciary duty claim is based in part on “the dishonest
15
way [defendant] gained [plaintiff’s] confidence and access to his home, i.e., to help him
16
with . . . the successful running of his business.” Dkt. # 47 at ¶ 43. Although
17
participants in a business transaction in Washington generally deal with each other at
18
arm’s length (Liebergesell v. Evans, 93 Wn.2d 881, 889 (1980)), if there are “additional
19
circumstances, or a relationship that induced the trusting party to relax the care and
20
vigilance which he would ordinarily exercise for his own protection,” a fiduciary
21
relationship may exist (Moon v. Phipps, 67 Wn.2d 948, 954 (1966)). Over the course of
22
this litigation, plaintiff has asserted a number of arguments regarding potential sources of
23
defendant’s fiduciary obligations, including his promises to help save plaintiff’s
24
business. While they did not, in and of themselves, establish that a fiduciary relationship
25
existed as a matter of law, they are certainly relevant to determining whether defendant
26
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-6-
1
had claimed the ability to protect plaintiff from personal and professional harm and
2
encouraged plaintiff to rely on him to help him with those matters. See Order Denying
3
Defendant’s Motion for Summary Judgment (Dkt. # 178) at 4 n.1. Plaintiff may attempt
4
to show that the parties’ relationship, including defendant’s appointment as a corporate
5
officer, justified plaintiff’s expectation that defendant would care for and protect
6
plaintiff’s interests. Defendant’s twelfth motion in limine is DENIED.
7
8
9
13. Fiduciary Relationship Arising from Promise of Protection
For the reasons stated above, plaintiff will be permitted to show all facets
of the parties’ relationship so that the jury can determine whether he was justified in
10
relaxing the care and vigilance which the law would ordinarily expect him to exercise for
11
his own protection. Defendant’s thirteenth motion in limine is DENIED.
12
13
14. Fiduciary Relationship Arising from Power of Attorney
For the reasons stated above, plaintiff will be permitted to show all facets
14
of the parties’ relationship so that the jury can determine whether he was justified in
15
relaxing the care and vigilance which the law would ordinarily expect him to exercise for
16
his own protection. Defendant may, of course, point out that the Power of Attorney
17
could justify a belief that the principal’s welfare would be protected only after it was
18
signed on June 23, 2010. Defendant’s fourteenth motion in limine is DENIED.
19
20
21
15. Sale of Diagnos-Techs as a Breach of Fiduciary Duty Arising from Power
of Attorney
As previously noted by the Court, there is no indication that defendant
22
used the Power of Attorney to transfer control of Diagnos-Techs from plaintiff to
23
defendant. Dkt. # 178 at 4 n.1. The importance of the Power of Attorney is not as the
24
vehicle by which defendant allegedly made off with plaintiff’s company, but rather as
25
evidence of the relationship that existed between the parties. The jury is entitled to
26
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-7-
1
consider the grant of a durable power of attorney when determining whether plaintiff
2
was entitled to expect that his welfare would be protected in July and August 2010 when
3
defendant negotiated the purchase of Diagnos-Techs. Defendant’s fifteenth motion in
4
limine is DENIED.
5
6
18. Cause of Plaintiff’s Marital Difficulties or Divorce
Plaintiff has agreed that he will not allege or attempt to prove that his
7
separation and divorce were caused by defendant. Dkt. # 219 at 3. Defendant’s
8
eighteenth motion in limine is therefore GRANTED.
9
10
19. Promise to Provide Protection in Exchange for $3.7 Million
Defendant’s alleged statements regarding the existence of an assassination
11
plot and the need to purchase protection through a sizeable cash payment would
12
constitute false representations of existing facts. Even if that were not the case, plaintiff
13
would be permitted to present evidence regarding the alleged statements in support of his
14
overarching theory that defendant controlled plaintiff’s volition, interfered with his free
15
will, procured agreement through undue influence, and otherwise prevented an exercise
16
of judgment and choice in the sale of Diagnos-Techs. Defendant’s nineteenth motion in
17
limine is DENIED.
18
19
20. Requests for Documents and Information
Defendant argues that plaintiff should be precluded from requesting at trial
20
documents or other information because such a request would be an untimely effort to
21
compel discovery. Whether a failure to disclose can be remedied at trial depends on the
22
circumstances surrounding each such failure. For example, if defendant failed to provide
23
information that was required under Fed. R. Civ. P. 26(a) or (e), he will be subject to the
24
various sanctions authorized by Fed. R. Civ. P. 37(c)(1), including notifying the jury of
25
the failure to disclose. Defendant’s twentieth motion in limine is DENIED.
26
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-8-
1
B. Defendant’s Second Motions in Limine 5
2
31. Testimony Regarding Lawsuit in the Eastern District of Virginia
3
4
For the reasons set forth in Section A.1. above, defendant’s thirty-first
motion in limine is GRANTED.
5
32. Testimony Regarding Plaintiff’s History
6
Part of plaintiff’s theory of the case is that he was susceptible to
7
defendant’s manipulation because of events he lived through in Lebanon. Based on the
8
existing record, the Court finds these events relevant and not unduly prejudicial.
9
Defendant’s thirty-second motion in limine is DENIED.
10
33. Questioning Regarding Attempts to Interfere with Witnesses
11
Defendant seeks an order precluding plaintiff from asking Raymond Dent
12
and his attorney, Fern Herbert, questions that are not supported by admissible evidence.
13
Plaintiff argues that Dr. Dent and Attorney Herbert have told him that defendant made
14
threats in an effort to ensure that the witnesses testified in defendant’s favor. No
15
admissible evidence of these statements has been presented, however, and the Court
16
reserves ruling on this matter. Plaintiff shall make a proffer before broaching any
17
subject related to witness tampering.
18
34. Last Will and Testament
19
Plaintiff alleges that defendant controlled plaintiff’s volition, interfered
20
with his free will, procured agreement through undue influence, and otherwise prevented
21
an exercise of judgment and choice when he obtained control of plaintiff’s assets.
22
23
24
25
26
5
Although the parties were given leave to file additional motions in limine, they
were expressly limited to five pages in length. Decl. of Joseph P. Derrig (Dkt. # 218), Ex.
A at 15. Defendant cannot simply ignore the page limitation or avoid its import by
relying on arguments asserted in other documents. Only the arguments set forth in the
first five pages of Dkt. # 217 have been considered.
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-9-
1
Evidence that defendant’s lawyer drafted and had plaintiff sign a Last Will and
2
Testament that would have given everything to defendant at the expense of plaintiff’s
3
family, employees, and a charitable trust if plaintiff had died before he emerged from
4
defendant’s influence is relevant to this theory of the case. The Court finds that the
5
evidence is not unduly confusing or prejudicial. Defendant’s thirty-fourth motion in
6
limine is DENIED.
7
8
9
10
11
35. Testimony Regarding Lawsuit in Tunisia
For the reasons set forth in Section A.1. above, defendant’s thirty-fifth
motion in limine is GRANTED.
36. Valuation Expert’s Report
The written report of an expert is hearsay if offered for the truth of the
12
matters asserted therein. Hunt v. City of Portland, __ Fed. Appx. __, 2013 WL 5693830
13
at *2 (9th Cir. Oct. 21, 2013). Plaintiff has not identified any exception that would apply
14
in this case. Defendant’s thirty-sixth motion is limine is GRANTED.
15
16
37. Estate Planning and Family Law Documents
Defendant objects to the admission of two exhibits, apparently because
17
they are collections of documents “[m]any, if not most, of [which] are entirely irrelevant
18
to this matter and contain multiple levels of hearsay.” Dkt. # 217 at 5. The Court
19
declines to determine the admissibility of documents based on nothing more than a
20
general description and reserves ruling on this motion until one or more of the
21
documents are presented at trial.
22
23
24
38. Lawsuit Against Frank Siderius
The parties agree that they will not refer to plaintiff’s pending lawsuit
against Frank Siderius.
25
26
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-10-
1
Dated this 30th day of April, 2014.
2
3
A
Robert S. Lasnik
4
United States District Judge
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN LIMINE
-11-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?