Kirby Offshore Marine Pacific LLC v. Emerald Services Inc

Filing 53

ORDER GRANTING IN PART Defendant's 28 Motions in Limine, signed by Judge Robert S. Lasnik. (KERR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
_______________________________________
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KIRBY OFFSHORE MARINE PACIFIC,
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LLC,
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Plaintiff,
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v.
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EMERALD SERVICES, INC.,
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Defendant.
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_______________________________________)

No. C17-0224RSL

ORDER GRANTING IN PART
DEFENDANT’S MOTIONS IN
LIMINE

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This matter comes before the Court on “Defendant’s Motions in Limine.” Dkt. # 28. This

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matter is scheduled for a bench trial on February 5, 2018. Having reviewed the memoranda,

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declarations, and exhibits submitted by the parties, the Court finds as follows:

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A. General Motions in Limine 1-3, 5, and 6

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Plaintiff opposed these requests for relief, and defendant abandoned them in reply. The

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motions are therefore denied.

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B. General Motion in Limine 4

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Defendant seeks an order excluding documents that were not previously identified in

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discovery. Defendant waited until its reply to identify any particular evidence that it believes

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was improperly withheld, thereby depriving plaintiff of an opportunity to show that the evidence

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was not responsive to any discovery requests, that it was, in fact, disclosed in a timely manner,

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that the failure to disclose was substantially justified or is harmless, and/or that a sanction other

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than exclusion is warranted. The motion is DENIED without prejudice to its being raised at trial.
ORDER GRANTING IN PART DEFENDANT’S
MOTIONS IN LIMINE

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C. General Motion in Limine 7
Federal Rule of Evidence 408 will govern the admissibility of evidence regarding

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settlement negotiations between the parties. Absent some indication of the nature of the evidence

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at issue and the purpose for which it is offered, the Court cannot provide a more concrete ruling

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on this motion.

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D. Specific Motion in Limine 1

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Defendant seeks to prevent Captain Michael Ahearn from testifying about the condition

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of the cargo tanks and the cause of the particulate contamination that was found after defendant

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cleaned the tanks. Captain Ahearn is a marine surveyor who inspected the KAYS POINT when

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it arrived in Valdez, Alaska. Plaintiff provided documents identifying Captain Ahearn as the

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surveyor with its initial disclosures in April, 2017, but did not identify him as an expert witness

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by the date established in the case management order. Plaintiff attempted to categorize Captain

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Ahearn as a rebuttal witness, but his opinions regarding the condition of the cargo tanks and the

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cause of the particulate contamination in no way rebut the opinions offered by defendant’s

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expert, Dr. Hudson.

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The fact that defendant was aware that Captain Ahearn existed and had relevant

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knowledge does not excuse plaintiff’s failure to disclose him as an expert and to provide a report

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containing his opinions by the August 9, 2017, deadline. Captain Ahearn will not be permitted to

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offer expert opinions that were not timely disclosed and that do not rebut the opinions offered by

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Dr. Hudson. Captain Ahearn may, however, testify regarding conditions or events of which he

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has personal knowledge (such as the conditions he personally observed in the cargo tanks) or to

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provide opinions in response to Dr. Hudson’s testimony.

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E. Specific Motion in Limine 2

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Defendant seeks to exclude all evidence and testimony regarding the loading and

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discharge of fuel after the contamination incident at issue here. The Court takes this matter under

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advisement. If, as plaintiff anticipates, defendant argues that the tanks on the KAYS POINT
ORDER GRANTING IN PART DEFENDANT’S
MOTIONS IN LIMINE

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could not carry jet fuel without contaminating the cargo, defendant will be permitted to show

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that other shipments of jet fuel were delivered and accepted without incident, thereby raising an

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inference that the tanks themselves were not the problem.

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F. Specific Motion in Limine 3

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Defendant seeks to exclude evidence or argument that it has, in the past, closed the

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inspection blinds without a specific request or instruction to do so because such evidence is

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insufficient to prove a habit or routine under Fed. R. Ev. 406. Plaintiff does not intend to use the

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evidence to prove that, in April 2016, defendant acted in accordance with its habitual or routine

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practice. In fact, the contention is that defendant failed to act in accordance with its past practice.

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The evidence is relevant in that it helps establish what the industry practice or procedure is in

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these circumstances and which party had the responsibility for closing the blinds. The evidence

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will not be excluded.

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For all of the foregoing reasons, defendant’s motions in limine are GRANTED in part and
DENIED in part.

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Dated this 31st day of January, 2018.
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A
Robert S. Lasnik
United States District Judge

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ORDER GRANTING IN PART DEFENDANT’S
MOTIONS IN LIMINE

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