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Cody v. Miller

United States District Court, D. Idaho

September 20, 2018

BLAKE EDMOND CODY, Plaintiff,
v.
TAD MILLER, Boise City Police Department, JASON GREEN, Boise City Police Department, DAN MUGUIRA, JORDAN McCARTHY, Boise City Police Department, JIM CROMWELL, Boise City Police Department, JOE DEL RIO, Boise City Police Department, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE.

         INTRODUCTION

         Before the Court are Defendants' First and Second Motions in Limine (Dkts. 65, 86). For the reasons explained below, the Court will grant the First Motion in Limine and grant in part and deny in part the Second Motion in Limine.

         BACKGROUND

         On May 11, 2014, Cody was involved in a physical altercation with four Boise City Police Department officers. He claims they used excessive force during the altercation. The matter is scheduled for trial on September 24, 2018.

         GOVERNING LEGAL STANDARD

         There is no express authority for motions in limine in either the Federal Rules of Civil Procedure or the Federal Rules of Evidence. Nevertheless, these motions are well recognized in practice and by case law. See, e.g., Ohler v. United States, 529 U.S. 753, 758 (2000). The key function of a motion in limine is to “exclude prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 (1984).

         DISCUSSION

         1. Motion in Limine No. 1: Expert Witnesses

         In their first motion in limine, defendants ask for an order “preventing the Plaintiff from calling any expert witnesses not timely and properly disclosed and from introducing any medical records not provided to Defendants through seasonable supplementation.” Dkt. 65, at 2. Cody does not oppose this motion.

         The disclosure of expert witnesses is required by Rule 26(a)(2) of the Federal Rules of Civil Procedure. Rule 26(a)(2)(A) provides as follows:

(A) In General. In addition to the disclosures required by Rules 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705.

Fed. R. Civ. P. 26(a)(2)(A). The disclosure of an expert witness must be accompanied by a report containing a synopsis of the expert's opinion and the basis of the opinion, unless the parties stipulate or the court orders otherwise. R. 26(a)(2)(B). In general, a party must disclose the expert witness and report “at the times and in the sequence that the court orders.” R. 26(a)(2)(D). However, when the expert witness will present rebuttal testimony, the party must disclose the expert witness “within 30 days after the other party's [expert] disclosure.” R. 26(a)(2)(D)(ii). The parties have a continuing obligation to provide supplemental disclosures if the expert's opinion, or basis thereof, is modified. See Id. R. 26(a)(2)(E) (“The parties must supplement these disclosures when required under Rule 26(e)”). Failure to provide proper and timely disclosure of an expert witness, may result in sanctions, including exclusion of the expert's testimony. Id. R. 37(c)(1).

         Here, expert reports were due in 2016. Cody has not identified any expert witnesses; he has not supplied any expert reports; he has not asked for an extension of the applicable deadlines; and he does not argue that any failures were substantially justified or harmless. Accordingly, the Court will grant defendants' First Motion in Limine. See generally Hilborn v. Metropolitan Group Property & Cas. Ins. Co., No. 2:12-cv-00636-BLW, 2014 WL 4073224, at *1 (D. Idaho ...


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