The opinion of the court was delivered by: B. Lynn Winmill Chief U.S. District Court Judge
MEMORANDUM DECISION AND ORDER ON MOTIONS IN LIMINE RE: DEFENDANT'S EXPERTS PETER BUTLER (Dkt. 103) AND MICHAEL JONES (Dkt. 106), AND PLAINTIFFS' EXPERT WILHOITE (Dkt. 114)
Before the Court are Plaintiffs' Motions in Limine (Dkts. 103, 106) re: Defendant's experts Peter J. Butler and Michael Jones, and Defendant's Motion in Limine (Dkt. 114) re: Plaintiffs' expert Charles Wilhoite. The motions have been fully briefed. The Court being familiar with the record and pleadings shall grant the motions in part and deny the motions in part, as set forth in this decision.
Plaintiffs filed this lawsuit alleging that Defendant Boise County discriminated against potential handicapped residents -- in violation of the Fair Housing Act (FHA) -- in denying, or constructively denying, Plaintiffs' application for a conditional use permit to construct Alamar Ranch, a residential treatment center. Determination of the damages from this denial requires analysis of the potential profit of such facility, and potential mitigation of damages. Experts for Plaintiffs and Defendant will address both potential profit and damage-mitigation, as well as -- to some extent -- the issue of Defendant's liability. Now before the Court are the parties' motions to limit the testimony and opinions of the opposing parties' experts.
Whether and to what extent Butler, Jones, and Wilhoite may testify at trial is addressed under the well-known standard first enunciated in Daubert and its progeny, but now set forth in Rule 702 of the Federal Rules of Evidence. Rule 702 establishes several requirements for permitting expert opinion. First, the evidence offered by the expert must assist the trier of fact either to understand the evidence or to determine a fact in issue. Primiano v. Cook, -- F.3d -- , 2010 WL 1660303, *3 (9th Cir. 2010)(amending 598 F.3d 558); Fed. R. Evid. 702. "The requirement that the opinion testimony assist the trier of fact goes primarily to relevance." Id. at *4 (Internal quotations and citation omitted).
Additionally, the witness must be sufficiently qualified to render the opinion. Id. at *3. If specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified by knowledge, skill, experience, training or education may offer expert testimony where: (1) the opinion is based upon sufficient facts or data, (2) the opinion is the product of reliable principles and methods; and (3) the witness has applied those principles and methods reliably to the facts of the case. Fed. R. Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
The inquiry is a flexible one. Primiano, 2010 WL 1660303, *4 (9th Cir. 2010). Ultimately, a trial court must "assure that the expert testimony both rests on a reliable foundation and is relevant to the task at hand." Id. (Internal quotation and citation omitted).
2. Plaintiffs' Motion to Exclude or Strike Portions of Report and Testimony of Peter Butler Plaintiffs here seek to limit testimony at trial by Defendant's expert Peter Butler,
and to exclude parts of Butler's report. In support, Plaintiffs assert that Butler has rendered opinions for which he lacks qualification, that were based on speculation, that lack reliable basis or methodology, are irrelevant, are contrary to law, and were not timely disclosed.
A. Butler's Testimony And Opinion On Risky Business Decisions In Project Development And On Mitigation Of Damages
In Opinion 1 of his report, Butler states that Plaintiffs were reckless in deciding to purchase and develop land for Alamar Ranch before Boise County had either approved the facility, or indicated whether there were restrictions to which approval was subject. Butler Report, Dkt. 140-2 at 4-5. Butler also asserts, in Opinion 2, that Plaintiffs could have mitigated damages by building the Alamar Ranch project elsewhere. Id. at 6. Plaintiffs attack these opinions on various grounds, including: that Butler has not demonstrated expertise as to the risks of land development or getting approval from municipal zoning boards (as to Opinion 1); that Butler's Opinion 2 -- on mitigation of damages -- is purely speculative and without factual basis; and that both opinions are contrary to law, and thus impermissible. The Court disagrees that Butler lacks the necessary expertise to offer such an opinion or that the opinions are speculative. However, for the reasons set forth below, the Court is persuaded that they lack relevance and should therefore be excluded.
Opinions 1 and 2 both suggest that Alamar's damages should be limited or excluded because Alamar failed to properly anticipate that it might be precluded from obtaining approval of its project. In challenging them as contrary to law, Plaintiffs contend that Butler's Opinions 1 and 2 validate a forced relocation -- in violation of the FHA -- and assert that Plaintiffs "should have known that Defendant was likely to unlawfully deny their permit or unlawfully reduce the number of beds," Pl. Mot., Dkt. 103-1 at 17.
The best way to evaluate Plaintiff's argument is to consider how Butler's opinions will arise in the context of the trial itself. If the jury concludes that Defendant discriminated against Plaintiffs in violation of the FHA, treated Plaintiffs disparately, or unlawfully interfered with Plaintiffs' effort to provide housing to handicapped individuals -- then it would seem that Butler's opinion amounts to an argument that the Plaintiff's should have anticipated that the Defendants would act unlawfully. To permit a reduction of damages based on such a contention would clearly be inappropriate. In other words, a jury's finding that Defendants engaged in unlawful discrimination against Plaintiffs precludes any reduction in those damages based upon a claim that the Plaintiffs should have anticipated that discrimination. If, on the other hand, the jury returns a verdict for Defendants, no damages will be assessed and Butler's contention that the Plaintiffs acted recklessly or failed to mitigate damages would be irrelevant.
The Court concludes that Butler's opinion regarding the Plaintiffs' efforts to limit risk or otherwise mitigate damages will not assist the trier of fact either to understand the evidence or to determine a fact in issue. Primiano v. Cook, -- F.3d -- , 2010 WL 1660303, *3 (9th Cir. 2010)(amending 598 F.3d 558). Accordingly, Butler's testimony and Opinions 1 and 2, regarding mitigation of damages will be precluded at trial. Plaintiffs motions on this issue are granted.
As with virtually all decisions on motions in limine, the Court's conclusions are tentative -- based only on the arguments of counsel and without the benefit of context that might be provided at trial. Accordingly, Defendant will be permitted to re-raise the issue at trial, and the Court will reconsider its ruling if the context provided by the trial testimony suggests that it should.
B. Butler's Opinion 5, That Wilhoite's Projections Were Too Aggressive
Butler asserts in Opinion 5 that Plaintiffs' expert Wilhoite made projections that were overly aggressive. Butler Report, Dkt. 140-2 at 9-16. Plaintiffs seek to exclude this opinion as lacking "quantification, research, or relevant 'comparators.'" Pl. Mot., Dkt. 103-1 at 7. Plaintiffs further argue that Opinion 5 is speculative, without any factual basis. Plaintiffs contend that, because Butler failed to inquire as to Plaintiffs' financial situation, this Court should exclude Butler's opinion that Plaintiffs were overly confident in their ability to secure funding for Alamar Ranch. In response, Butler asserts that ...