United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S
MOTION IN LIMINE FOR THE PRESENCE OF PLAINTIFF'S REBUTTAL
EXPERTS DURING TRIAL PROCEEDINGS (DKT. 88)
Ronald E. Bush, Chief U.S. Magistrate Judge
decision resolves Plaintiff's Motion in Limine for the
Presence of Plaintiff's Rebuttal Experts During Trial
Proceedings (Dkt. 88). The Court has considered the briefing
of the parties and the related record regarding such briefing
and concludes that oral argument is not necessary for the
court to reach its decision.
Jun Yu alleges that Defendant Idaho State University
deliberately and unlawfully discriminated against him due to
his national origin in violation of Title VI of the 1964
Civil Rights Act, 42 U.S.C. §§ 2000d et. seq. FAC
¶ 353 (Dkt. 41). After extensive motion practice, this
matter is set for trial. In this motion, Plaintiff seeks an
order permitting his three rebuttal experts to be present in
the courtroom during the entire trial, without being
sequestered. Specifically, Plaintiff seeks to ensure that his
rebuttal experts Erin Cooley, Ph.D., Nadya A. Fouad, Ph.D.,
and Linda Frye Campbell, Ph.D., are permitted to hear the
trial testimony given by Defendant's expert Dru C.
Gladney, Ph.D. Mem. ISO Plf.'s Mot. in Limine 3-5 (Dkt.
general matter, Federal Rule of Evidence 615 requires the
court to order witnesses excluded so that they cannot hear
other witnesses' testimony, if a party so requests. But
the rule does not authorize excluding a person whose presence
a party shows to be essential to presenting the party's
claim or defense. F.R.E. 615(c). Expert witnesses may, but do
not necessarily, fall within such an exception. U.S. v.
Nosal, 2013 WL 11327121 (N.D. Cal. March 29, 2013). A
district court's decision regarding whether an expert is
essential is discretionary. U.S. v. Seschillie, 310
F.3d 1208, 1213 (9th Cir. 2002).
Federal Rule of Evidence 703 provides in part that
“[a]n expert may base an opinion on facts or data in
the case that the expert has been made aware of or personally
observed.” One permissible source of facts or data is
“the firsthand observation of the witness, with
opinions based thereon traditionally allowed.” F.R.E.
703 Advisory Comm. Notes (1972 Proposed Rules).
argues that “an expert who is not expected to testify
to facts, but only assumes facts for purposes of rendering
opinions, might just as well hear all of the trial testimony
so as to be able to base his opinion on more accurate factual
assumptions.” Mem. ISO Plf.'s Mot. in Limine 7
(Dkt. 88-1) (quoting Opus 3 Ltd. v. Heritage Park.
Inc., 91 F.3d 625, 629 (4th Cir. 1996)). Plaintiff also
contends that his rebuttal witnesses are “essential,
” and therefore not subject to exclusion under Federal
Rule of Evidence 615(c), because their assistance and
insights are necessary to Plaintiff's counsel to
understand the testimony of, and to conduct the
cross-examination of, Defendant's expert witness.
Id. at 12.
however, disputes that Plaintiff's rebuttal experts are
essential witnesses, and it points out that it previously
provided a summary of its expert's anticipated testimony.
Def.'s Obj. to Plf.'s Mot. in Limine 3-4 (Dkt. 113).
Defendant also suggests that the presence of three experts
during the trial will be disruptive and prejudicial to the
Defendant, in that their presence might infer a special role
or relationship to the trial proceedings. Id. at 4.
balance, the Court is persuaded in this setting that
Plaintiff should be permitted to have his rebuttal witnesses
present during trial proceedings. Expert testimony will be
important to each party's trial presentations. To the
extent that evidentiary disputes might arise over opposing
experts' competing testimony, having experts present in
the courtroom during other witnesses' testimony could
reduce the No. and complexity of such disputes.
in the interest of providing a level playing field, and
consistent with Federal Rule of Evidence 611's admonition
that the court should exercise reasonable control over the
mode and order of examining witnesses and presenting evidence
so as to make the proceeding effective for determining the
truth and avoid wasting time, the Court will allow all
experts, from both parties, to be present during trial for
any witness testimony. In making this ruling, the Court does
not address any issues over overlapping or cumulative
evidence that may be presented by the No. of expert witnesses
and any redundancy resulting from such multiple expert
Motion in Limine for the Presence of Plaintiff s Rebuttal
Experts During Trial Proceedings (Dkt. 88) is GRANTED. All
expert witnesses from both parties will be permitted to be
present in the courtroom during trial proceedings, including