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Goben v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

June 16, 2014

BEVERLY SHERRILL GOBEN, Plaintiff,
v.
WAL-MART STORES, INC., et al., Defendants.

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is third-party defendant North American Roofing's motion in limine to strike third-party plaintiff Wal-Mart's expert witness Ernest Orchard, or alternatively, to limit his testimony solely to rebuttal opinions. (Doc. #91). Wal-Mart filed a response. (Doc. #93).

I. Background

This case arises out of a slip and fall incident that occurred at Wal-Mart Store No. 2592. Plaintiff Beverly Goben filed suit in state court against Wal-Mart for negligence. Wal-Mart removed the action to federal court on January 18, 2012. (Doc. #1).

Wal-Mart moved for leave to file a third-party complaint against ("N.A.R.") on March 26, 2012. (Doc. #10). Wal-Mart alleges that N.A.R. performed work on the roof of the Wal-Mart store and that N.A.R.'s faulty work created the leak that caused the plaintiff's slip and fall. The court granted Wal-Mart's motion, and Wal-Mart filed a third party complaint against N.A.R. on May 7, 2012. (Doc. #13).

Pursuant to a scheduling order, the parties made their initial expert disclosures on March 1, 2013. (Doc. #25). At that time, N.A.R. disclosed Richard Cecchi as its roofing expert. During initial expert disclosures, Wal-Mart did not disclose a roofing expert. On April 1, 2013, Wal-Mart disclosed Ernest Orchard as a rebuttal expert on roofing.

After reading Ernest Orchard's report, N.A.R. filed the instant motion to strike his testimony altogether, or, in the alternative, to limit his testimony to only rebuttal opinions.

II. Legal Standard

"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. U.S., 469 U.S. 38, 41 n.4 (1980). Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 (9th Cir. 1999) ("The district court has considerable latitude in performing a Rule 403 balancing test and we will uphold its decision absent clear abuse of discretion").

"[ I ] n limine rulings are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." Indiana Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004).

III. Discussion

A. Expert witness testimony

N.A.R. claims that Orchard should not be allowed to testify because his testimony will not satisfy the requirements of the Federal Rules of Evidence. A witness qualified as an expert by knowledge, skill, experience, training, or education may provide expert testimony if inter alia the testimony is based upon sufficient facts or data and the testimony is the product of reliable principles and methods. Fed.R.Evid. 702.

Orchard never performed a roof inspection at the Wal-Mart where the slip and fall occurred. Instead of examining the roof himself, Orchard asked Mike Madson, an employee of his company, Orchard Roofing Consultants, to do the site inspection and report back. When asked about the methodology used by Madson during the roof inspection, Orchard was not sure of the exact method used by Madson. (Doc. #91-4 at 35). Orchard stated ...


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