United States District Court, D. Nevada
before the court are several motions in limine filed
by defendants Georges Tannoury, M.D. (a corporation) and Dr.
Georges Tannoury (an individual) (collectively,
“defendants”). (ECF Nos. 127, 128, 129, 130, 131,
132, 133). Plaintiffs filed responses to defendants'
first, second, third, fifth, and seventh
motions. (ECF Nos. 140, 141, 142, 143, 144).
before the court are two motions in limine filed by
plaintiff Sie Ervine, who is named in his personal capacity
and as executor of the estate of Charlene Ervine (hereinafter
referred to as “plaintiffs, ” to afford
consistency with the parties' filings). (ECF Nos. 134,
135). Defendants filed a response to plaintiffs' second
motion in limine. (ECF No. 138).
before the court is plaintiffs' request for amendment of
the parties' joint pretrial statement. (ECF No. 145).
September 14, 2010, plaintiffs filed an amended complaint.
(ECF No. 4). Plaintiffs' amended complaint asserts
federal causes of action under Section 504 of the
Rehabilitation Act and Title III of the Americans with
Disabilities Act (“ADA”), and state causes of
action for negligent and intentional infliction of emotional
December 8, 2011, the court dismissed plaintiffs' federal
claims as being filed outside of the relevant statute of
limitations. (ECF No. 64). Plaintiffs timely appealed, and
the Ninth Circuit vacated in part and reversed in part. (ECF
No. 71). The Ninth Circuit decision held that plaintiffs
lacked standing to bring claims under Title III of the ADA,
and that plaintiffs' Section 504 claims were not
time-barred. Id. Thus, plaintiffs' remaining
federal claims concern only Section 504 of the Rehabilitation
September 27, 2016, the court denied the parties'
cross-motions for summary judgment on plaintiffs' Section
504 claims. (ECF No. 102). As to plaintiffs' state law
claims, the court granted defendant Desert View's motion
for summary judgment in part, thereby limiting the scope of
plaintiffs' allowable claim for negligent infliction of
emotional distress, but otherwise denied cross-motions for
summary judgment. Id.
case is currently set for trial on September 25, 2017. In
anticipation, the parties filed the instant motions in
Motion in limine
court must decide any preliminary question about whether . .
. evidence is admissible.” Fed.R.Evid. 104. Motions
in limine are procedural mechanisms by which the
court can make evidentiary rulings in advance of trial, often
to preclude the use of unfairly prejudicial evidence.
United States v. Heller, 551 F.3d 1108, 1111-12 (9th
Cir. 2009); Brodit v. Cambra, 350 F.3d 985, 1004-05
(9th Cir. 2003).
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. United
States, 469 U.S. 38, 41 n.4 (1980). Motions in
limine may be used to exclude or admit evidence in
advance of trial. See Fed. R. Evid. 103; United
States v. Williams, 939 F.2d 721, 723 (9th Cir. 1991)
(affirming district court's ruling in limine
that prosecution could admit impeachment evidence under
Federal Rule of Evidence 609).
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
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.” Conboy v. Wynn Las
Vegas, LLC, No. 2:11-cv-1649-JCM-CWH, 2013 WL 1701069,
at *1 (D. Nev. Apr. 18, 2013).
Relevance and the potential for unfair prejudice
is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the
action.” Fed.R.Evid. 401. “Irrelevant evidence is
not admissible.” Fed.R.Evid. 402. Further “[t]he
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403. . . .
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case. Fed.R.Evid. 702.
district court serves a gatekeeper function in evaluating
scientific testimony. Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993). When a district court is
faced with a proffer of scientific testimony, it must make a
preliminary determination under FRE 702 whether the reasoning
or methodology underlying the testimony is scientifically
valid. Id. at 592-93. A key question to be answered
in determining whether a theory or technique is scientific
knowledge that will assist the trier of fact will be whether
it can be tested. Id. at 593.
objective of this gatekeeping requirement is to ensure the
reliability and relevancy of expert testimony. It is to make
certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field. Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999). This gatekeeping requirement applies not only to
scientific testimony but to all expert testimony covered by
FRE 702. Id. at 147-49.
requires a valid connection to the pertinent inquiry as a
precondition to admissibility. Id. at 149 (quoting
Daubert, 509 U.S. at 592). And where such
testimony's factual basis, data, principles, methods, or
their application are called sufficiently into question . . .
the trial judge must determine whether the testimony has a
reliable basis in the knowledge and experience of [the
relevant] discipline. Id. (citations omitted).
“[W]here foundational facts demonstrating relevancy or
qualification are not sufficiently established, exclusion of
proffered expert testimony is justified.” LuMetta
v. United States Robotics, Inc., 824 F.2d 768, 771 (9th
Cir. 1987). . . .