United States District Court, D. Nevada
TERRI KNAACK, individually, and as Administrator of the Estate of Joseph Knaack, deceased,
KNIGHT TRANSPORTATION, INC.; KNIGHT REFRIDGERATED, LLC; KNIGHT-SWIFT TRANSPORTATION HOLDINGS, INC.; CAROL WALKER, Defendants. ANDREW KNAACK, Plaintiffs,
R. HICKS, UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
parties have submitted a total of 12 motions in limine. The
court will address each proposed exclusion below.
Plaintiffs' Motions in Limine
Motion to Exclude All Evidence and Trial Testimony from
Defense Expert David J. Weiner Regarding a 25% Personal
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).
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.
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).
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.
methodology go more toward weight than admissibility.
Therefore, the court denies plaintiffs' motion (ECF Nos.
Motion to Exclude All Evidence and Trial Testimony from
Defense Expert David J. Weiner Regarding the Discount Rate
for Small Mines Development (“SMD”).
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; 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.
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).
Motion to Exclude All Evidence and Trial Testimony
Regarding Taxation Issues and Net Verses Gross Lost
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.
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.
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.
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 ...