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Knaack v. Knight Transportation, Inc.

United States District Court, D. Nevada

May 3, 2019

TERRI KNAACK, individually, and as Administrator of the Estate of Joseph Knaack, deceased,



         Before the court are 3 motions in limine (ECF Nos. 124, 125, 132) filed by Terri Knaack, an individual and administrator of decedent Joseph Knaack's estate, and Andrew Knaack, an individual, (collectively “plaintiffs”), and 9 motions in limine (ECF Nos. 171, 172, 173, 174, 175, 176, 177, 178, 179) filed by Knight Transportation, Inc.; Knight Refrigerated, LLC; Knight-Swift Transportation Holdings, Inc.; and Carol Walker (collectively “defendants”). Because the motions contain confidential material, the parties have also motioned the court to seal these documents in part. The court now rules on the pending pretrial motions.

         I. BACKGROUND

         This is a wrongful death action that is scheduled for a jury trial to begin May 28, 2019. ECF No. 121. In December 2018, the parties filed a total of 12 motions in limine. ECF Nos. 78, 79, 80, 81, 83, 85, 87, 89, 91, 93, 94, 95. Due to errors in sealing these motions, the parties were directed to refile their motions in limine, which they did in February and April, 2019. ECF Nos. 124, 125, 132, 171, 172, 173, 174, 175, 176, 177, 178, 179. The court now rules on all motions pending before the court.


         “A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury.” Stephanie Hoit Lee & David N. Finley, Federal Motions in Limine § 1:1 (2018). The decision on a motion in limine is consigned to the district court's discretion- including the decision of whether to rule before trial at all. See Hawthorne Partners v. AT&T Techs., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993) (noting that a court may wait to resolve the evidentiary issues at trial, where the evidence can be viewed in its “proper context”). Motions in limine should not be used to resolve factual disputes or to weigh evidence, and evidence should not be excluded prior to trial unless the “evidence is clearly inadmissible on all potential grounds.” Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). Even then, rulings on these motions are not binding on the court, and the court may change such rulings in response to developments at trial. See Luce v. United States, 469 U.S. 38, 41 (1984).

         Generally, all relevant evidence is admissible. Fed.R.Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence.” Fed.R.Evid. 401. The determination of whether evidence is relevant to an action or issue is expansive and inclusive. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384-87 (2008). However, the court may exclude otherwise relevant evidence “if its probative value is substantially outweighed by the danger of” unfair prejudice. Fed.R.Evid. 403. Further, evidence may be excluded when there is a significant danger that the jury might base its decision on emotion, or when non-party events would distract reasonable jurors from the real issues in a case. See Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 690 (9th Cir. 2001); United States v. Layton, 767 F.2d 549, 556 (9th Cir. 1985).


         The parties have submitted a total of 12 motions in limine. The court will address each proposed exclusion below.

         A. Plaintiffs' Motions in Limine

         1. Motion to Exclude All Evidence and Trial Testimony from Defense Expert David J. Weiner Regarding a 25% Personal Consumption Rate.

         Plaintiffs argue that defendants' economic expert erred in using a 25% consumption rate because he did so without having any specific or unique information regarding Mr. Knaack's spending. Plaintiffs argue that over the past six years Mr. Knaack has consumed between $35, 000 and $40, 000 per year, which equates to 3.3%. This difference, plaintiffs argue, shows Mr. Weiner's rate was guess work and not based on sufficient or reliable data, which precludes the evidence under Federal Rules of Evidence 702(b) and (c).

         Defendants argue plaintiffs failed to provide any evidence about the decedent's lifestyle and household routine. For that reason, defendants were forced to retain Mr. Weiner and to use national averages to estimate a consumption rate, rather than values specific to the decedent. Defendants further argue that this issue goes to weight rather than admissibility of Mr. Weiner's testimony and should therefore be left to the jury.

         To qualify as an expert witness, “a witness must be shown to be sufficiently qualified by ‘knowledge, skill, experience, training, or education' before he will be permitted to give expert testimony.” Whiting v. Boston Edison Co., 891 F.Supp. 12, 24 (D. Mass. 1995) (quoting Fed.R.Evid. 702). “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as amended (April 27, 2010). Further, “[c]onflicting factors which weaken opinion evidence are, at least in the federal view, best left to the trier of facts rather than affecting the foundation for admission of the answer itself.” Burlington Northern Inc. v. Boxberger, 529 F.2d 284, 287 (9th Cir. 1975) (citation and quotation marks omitted).

         Based on Mr. Weiner's deposition, which provides his education, background, and work experience, he is a qualified expert. See ECF No. 124-3. Further, the Ninth Circuit previously found that a trial court did not abuse its discretion by allowing an expert to testify to a personal consumption rate that was based on “statistical studies of personal consumption habits of the heads of similar households.” Boxberger, 529 F.2d at 287. Here, plaintiffs' challenges to Mr.

         Wiener's methodology go more toward weight than admissibility. Therefore, the court denies plaintiffs' motion (ECF Nos. 124).

         2. Motion to Exclude All Evidence and Trial Testimony from Defense Expert David J. Weiner Regarding the Discount Rate for Small Mines Development (“SMD”).

         Plaintiffs argue that the discount rate of 34.75% applied by Mr. Weiner is unreliable and based on insufficient facts as required by Federal Rules of Evidence 702(b) and (c). Plaintiffs argue that the proper discount rate was between 1.25% (risk-free, government backed security) and 8% for a risk-associated security, which is the discount rate used by their expert. Defendants argue that plaintiffs' argument is (1) moot because they have already obtained from SMD the decedent's equity interest in the company and plaintiff can't recover for that twice;[1] and (2) the 34.75% rate was proper under Daubert and Federal Rule of Evidence 702, as Mr. Weiner relied on reliable facts, data and methods, and properly applied those methods.

         As discussed above, Weiner is a qualified expert. Additionally, plaintiffs' argument goes more to the weight of the testimony than its admissibility. Thus, the court denies plaintiffs' motion (ECF Nos. 125).

         3. Motion to Exclude All Evidence and Trial Testimony Regarding Taxation Issues and Net Verses Gross Lost Income.

         Plaintiffs argue that the court should exclude Mr. Weiner from discussing or introducing evidence regarding Mr. Knaack's taxes, specifically his gross verses net income, because it would lead to improper speculation by the jury regarding his future tax consequences. Plaintiffs further argue that because Mr. Weiner's expert report did not discuss taxes and because during his deposition, he specifically testified that he generally does not take taxes into account, this testimony should be excluded as a discovery violation under Federal Rule of Civil Procedure 26.

         Defendants argue that because plaintiffs will have to present evidence of decedent's taxes in order to present evidence of damages, a blanket exclusion on defendants' ability to cross examine witnesses or present evidence on the issue would give plaintiffs a windfall and not accurately reflect the true loss. Defendants briefing does not include any argument as to why Mr. Weiner's expert report did not include any information regarding his opinion on taxes, though Mr. Weiner, in his deposition, states that he generally does not factor in federal or state income taxes.

         The court agrees that both sides should be permitted to present evidence on Mr. Knaack's gross verses net income. This case revolves solely on the issue of damages, including the lost future income of Mr. Knaack. The Supreme Court and the Ninth Circuit have made clear that tax evidence is admissible. See Norfolk & Western Railway Co. v. Liepelt, 444 U.S. 490, 493-94 (1980) (“It is his after-tax income, rather than his gross income before taxes, that provides the only realistic measure of his ability to support his family. It follows inexorably that the wage earner's income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies. . . . We therefore reject the notion that the introduction of evidence describing a decedent's estimated after-tax earnings is too speculative or complex for a jury.”); Boxberger, 529 F.2d at 293 (“But today's sophisticated jurors surely have had some personal experience in determining their own tax liability, and in today's tax-conscious society we are confident that our juries and judges, with the aid of such competent expert testimony as may be received, are equal to the task and the responsibility.”). The court agrees with this precedent and finds that evidence of Mr. Knaack's taxes is admissible and relevant in factoring the monetary loss suffered by plaintiffs.

         However, the court is concerned by defendants' failure to provide to opposing counsel Mr. Weiner's expert testimony regarding taxes and that in his deposition he testified that he generally does not include tax information in his reports. The rules of civil procedure and expert disclosures are very clear: the expert must provide “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed.R.Civ.P. 26(a)(2)(A) (emphasis added). If these expert opinions are not disclosed, “the party is not allowed to use ...

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