United States District Court, W.D. Missouri, Western Division
NOSTRUM LABORATORIES, INC., and NOSTRUM PHARMACEUTICALS, LLC, Plaintiffs,
BALBOA CAPITAL CORPORATION, Defendant.
ORDER (1) GRANTING NOSTRUM'S MOTION IN LIMINE,
AND (2) GRANTING IN PART AND DENYING IN PART BALBOA'S
OMNIBUS MOTION IN LIMINE
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT.
are motions in limine filed by both parties. As set forth
below, Plaintiffs Nostrum Laboratories, Inc., and Nostrum
Pharmaceuticals, LLC's (collectively,
“Nostrum”) motion (Doc. #97) is granted, and
Defendant Balboa Capital Corporation's
(“Balboa”) motion (Doc. #98) is granted in part
and denied in part. The parties are reminded these rulings
are interlocutory. Thus, the denial of a request to bar
evidence at this juncture preserves nothing for review, and
the parties may re-assert their objections at trial if they
deem it appropriate to do so. Evidence barred by this Order
shall not be discussed in the jury's presence (including
during opening statements) without leave of the Court. The
parties are free to suggest (out of the jury's presence)
that something has occurred during the trial justifying a
change in the Court's interlocutory ruling.
Motion in Limine
asks the Court to prohibit introduction of, testimony about,
or references to an appraisal obtained by Balboa on January 16,
2018. By way of background, discovery commenced in January
2017, and concluded on March 1, 2018 (after the Court granted
four extensions). On April 5, 2017, Nostrum designated Dr.
Nirmal Mulye to provide his opinion on the fair market value
of equipment Balboa claims Nostrum converted. He opined the
fair market value of the equipment is $200, 000. Doc. #83-1.
In its January 25, 2018 supplemental initial disclosures,
Balboa restated what it believed the equipment's fair
market value was: $598, 430. Doc. #103-1. Four days later,
Balboa's corporate representative was deposed. During
this deposition, Nostrum learned Balboa obtained an appraisal
on January 16, 2018, for the equipment financed by Balboa.
Doc. #97-2. The appraisal stated the equipment's fair
market value was $787, 700. Doc. #97-3. Nostrum argues this
appraisal must be excluded because Balboa never identified
the appraiser as an expert witness, the appraisal contradicts
the amounts Balboa asserted in its counterclaims and
disclosed in its initial disclosures, the appraisal lacks
foundation, and it constitutes hearsay.
response to Nostrum's motion, Balboa states it does not
intend to offer the appraisal as an expert opinion, and does
not intend to rely on the appraisal as evidence of the
equipment's fair market value. Doc. #103, at 1, 5.
Instead, Balboa argues “the [a]ppraisal constitutes
rebuttal evidence to refute Nostrum's claims that
Balboa's estimation of the fair market value underlying
its payoff was done in bad faith, and thereby violated the
duty of good faith and fair dealing.” Id. at
2. Balboa may also use the appraisal to impeach Dr.
Mulye's opinion, his credibility, and the reliability of
his methodology. Id. In addition, Balboa argues the
appraisal is not hearsay because it is not offered to prove
the truth of the fair market value asserted therein. Rather,
Balboa contends the appraisal is probative of its motivation
and basis for pursuing the fair market value it seeks (or the
return of the equipment), which counters Nostrum's
allegation that Balboa is violating the duty of good faith
and fair dealing.
motion is granted, and the January 16, 2018 appraisal will
not be admitted, used, or referred to during trial. The
appraisal is hearsay. Even if it were not hearsay, no
foundation has been laid for its admission. Further, it would
be unfairly prejudicial to Nostrum if Balboa were permitted
to use the information contained in the report without
subjecting the information (and the person who set forth the
information) to rigorous cross-examination. Additionally, the
appraisal does not support the fair market value Balboa
provided to Nostrum years ago, and was not utilized by Balboa
(at any point in time) to assess the fair market value of the
motion, Nostrum also seeks to preclude Balboa from offering
any testimony or argument that its alleged damages for the
equipment's fair market value are anything higher than
the amount identified in Balboa's supplemental initial
disclosures. Balboa represents it “stands by its
assertion of the fair market value of the Equipment to be
$598, 430.” Doc. #103, at 1. Based upon Balboa's
concession, the Court grants Nostrum's request. To the
extent Balboa seeks to recover damages based upon the
equipment's fair market value, Balboa will not be
permitted to seek a fair market value for the equipment that
is more than the fair market value set forth in its
supplemental initial disclosures.
Motion in Limine
Other Customer Complaints
asks the Court to exclude evidence and argument concerning
other customer complaints involving Balboa. Nostrum does not
oppose this motion. Doc. #101, at 1. Accordingly,
Balboa's motion is granted.
Governmental Inquiries, Investigations, and Lawsuits
seeks to exclude evidence or argument concerning governmental
inquiries, investigations, and lawsuits involving Balboa.
Nostrum does not oppose this motion. Doc. #101, at 1.
Accordingly, Balboa's motion is granted.
Gross Margin or Alleged Profit
requests exclusion of any argument or evidence concerning
Balboa's “gross margin” or
“profit.” Balboa argues Nostrum's claims are
based upon Nostrum's subjective intentions and
understanding of the master lease. Balboa maintains Nostrum
could not have known what gross margin or profit Balboa may
obtain at the time the agreement was made, and such evidence
is irrelevant to Nostrum's claims. Alternatively, Balboa
argues if the evidence ...