United States District Court, W.D. Missouri, Western Division
JERALD S. ENSLEIN, in his capacity as Trustee for Xurex, Inc., Plaintiff,
GIACOMO E. DI MASE, et al., Defendants.
ORDER GRANTING IN PART, DENYING IN PART, AND
DEFERRING IN PART PLAINTIFF'S MOTIONS IN LIMINE
D. SMITH, SENIOR JUDGE.
are Plaintiff Jerald Enslein's motions in limine. Doc.
#450. Defendants Dietmar Rose, Lee Kraus, Robert Olson, and
Steve McKeon filed responses (Docs. #467, 478, 488) to
Plaintiff's motions, but no other defendant has filed a
response, and the time for doing so has passed. See
Doc. #432. As set forth below, Plaintiff's motions in
limine are granted in part, denied in part, and deferred in
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
Experts Not Disclosed
moves to exclude any testimony that would constitute expert
opinion from any person not disclosed as an expert by the
deadline set by the Court. He contends the only experts who
were timely disclosed are Michele Pavone, Robert Reilly, and
Jamil Baghdachi. Doc. #250, at 2.
and McKeon do not object to this motion so long as the
deposition testimony of former Xurex scientist John Lowry is
not excluded. Doc. #488, at 2. Olson and McKeon contend Lowry
did not proffer an expert opinion, and thus, this motion in
limine should not limit his testimony.
who is pro se, states he could not be expected to understand
the Federal Rules of Civil Procedure, and know he should have
disclosed that he wanted to offer expert opinion testimony.
Doc. #467, at 3. He also argues he is “more than
qualified as an expert in economic analysis and damage
assessment to cross examine” Reilly. Id. Rose
also states he did not know he would be excluded from
cross-examining Reilly, but Plaintiff's motion does not
limit Rose's ability to cross-examine any experts at
argues this motion opens the door to Plaintiff characterizing
any witness's testimony as “expert opinion.”
Doc. #478, at 8. Kraus also contends he “qualified as a
financial expert who can offer expert opinion on valuation,
” and other witnesses, such as Lowry, may qualify as an
expert. Id. While Kraus is pro se at this juncture
in the case, he was represented by counsel when the
Court's Scheduling and Trial Order, which is discussed
infra, was entered.
to the Federal Rules of Civil Procedure, “a party must
disclose to the other parties the identity of any witness it
may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(2)(A).
This disclosure requirement was also outlined in the
Court's Scheduling and Trial Order. Doc. #38, at 1-2. The
requirement was also referenced in two other Orders. Doc.
#120, at 1 (stating “the defendants shall designate any
expert witnesses they intend to call at
trial….”); Doc. #174, at 1 (stating “the
defendants shall designate any expert witnesses [they] intend
to call at trial…., ” and noting “[t]his
paragraph applies to all witnesses from whom expert opinions
will be elicited, regardless of whether or not the witness
was specially retained to provide trial testimony.”).
If a party fails to identify an expert witness, “the
party is not allowed to use that…witness to supply
evidence…at a trial, unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
party intended to call Lowry, Rose, and/or Kraus to offer
expert testimony, the parties was required to disclose Lowry,
Rose, and/or Kraus pursuant to Rule 26(a)(2)(A) and the
Court's Scheduling and Trial Order. Because these
individuals were not disclosed as expert witnesses, they are
prohibited from testifying as expert witnesses at trial.
Thus, Plaintiff's motion in limine is granted. The
Court's ruling on this motion does not preclude Lowry,
Rose, and Kraus from testifying as lay witnesses.
asks the Court to “preclude admission of the contents
of test reports (including…through admitting the
reports themselves) of any Xurex products for the truth of
the statements therein.” Doc. #450, at 3. He argues the
reports are hearsay. He also maintains the reports were
prepared by individuals who hold themselves out as experts,
but those individuals were not designated as experts and were
not deposed. Finally, he contends admitting the reports will
lead to mini-trials regarding the preparation of materials
sampled, formulations used, testing environment conditions,
persons involved in the chain of custody, and testing
objects to this motion arguing “the very core of this
matter…[is] the question of commercial viability of
Xurex products.” Doc. #478, at 9. He claims the Di
Mases entered into licensing agreements and purchased
DuraSeal Pipe based on the belief that Xurex's products
were commercially viable. He argues evidence demonstrating
the lack of viability of Xurex's products and the time
that information was known to those involved in this matter
and McKeon argue Plaintiff's motion is overbroad because
it seeks to not only exclude the admission of the test
reports but also prohibit Defendants from simply referring to
the test reports. Olson and McKeon contend this evidence is
relevant, probative, and admissible because it demonstrates
what Defendants knew about the testing efforts. Also, the
evidence “may be offered to show what information
guided Defendants' decision-making process, as well as
for rebuttal, corroboration of Defendants' testimony
about…product performance [concerns], impeachment, and
other non-hearsay purposes.” Doc. #488, at 5. Rose does
not specifically object to this motion. See Doc.
at least some Defendants relied, in part, on one or more of
the test reports when rendering business decisions, the test
reports appear to be relevant. However, it is unclear if the
test reports fall within an exception to the hearsay rule or
if a foundation can be laid for the test reports. Without
additional information, the Court cannot issue a ruling on
this motion, and therefore, it defers consideration of this
motion. To the extent a party seeks to present the test
reports or inquire about the test reports, the party or its
counsel (if the party is represented) must approach the bench
prior to presenting evidence or inquiring about the test
DuraSeal Pipe Customers' Statements
moves to exclude evidence and argument about DuraSeal Pipe
customers' out-of-court statements offered by Defendants
to show the reasons why non-party customers did not purchase
or ceased purchasing coatings from DuraSeal Pipe.
Plaintiff's motion includes statements that a coated pipe
failed, the coating failed, or a reason why the coating
failed. Plaintiff argues DuraSeal Pipe never made a warranty
claim on the Xurex products; DuraSeal Pipe, “with
limited exception, ” did not discuss specific customer
statements with Xurex; the statements are hearsay or double
hearsay; and any probative value the statements have is
outweighed by the time it would it would take to prove the
existence of each statement and the circumstances from which
each statement arose.
does not specifically object to this motion, but Kraus,
Olson, and McKeon oppose the motion. Kraus maintains
“[c]ompanies do not refuse to consider its
customers' statements as a basis for why customers chose
not to purchase a coating.” Doc. #478, at 10. He
contends the information upon which a business relies to
exercise its judgment “is not governed by the Federal
Rules of Evidence, ” and the statements are relevant to
this lawsuit. Id. at 10-11. Kraus refers to the
statements Plaintiff seeks to suppress as “negative
market feedback…that was heard from or ascribed to
customers.” Id. Olson and McKeon argue the
statements will be offered to illustrate Defendants'
decision-making process, the facts known to them at the time
they made decisions, and the context of events. They state
the “ultimate issue at trial” will be whether the
Xurex board members breached their fiduciary duties. Doc.
#488, at 6. Thus, Defendants' “perception of
product-related issues, including what they [were] told by
others…is… relevant to, and admissible in, the
trial of this action.
statements are offered for the truth of the matters asserted
therein, the statements are hearsay, and unless they satisfy
an exception to the hearsay rule, they are not admissible.
Fed.R.Evid. 802. In this regard, Plaintiff's motion is
granted. However, if the statements are not offered for the
truth of the matters asserted therein, it is unclear if
Defendants can lay a foundation for admission of the
statements. Similar to Plaintiff's Motion in Limine No.
2, the Court cannot issue a ruling on this motion at this
time and defers consideration of this motion. To the extent a
party seeks to present evidence of the statements or inquire
about the statements, the party or its counsel (if the party
is represented) must approach the bench prior to presenting
evidence or inquiring about the statements.
Unpled Defenses or Unidentified Facts for Pled
moves to prohibit evidence or argument regarding unpled
defenses or unidentified facts for defenses that were pled.
He represents Defendants were asked to provide the factual
support for their affirmative defenses in interrogatories,
and Defendants should be limited to the facts they identified
in those interrogatory answers.
argues he “has a right to introduce all affirmative
defenses and facts in this case without any restriction
whatsoever.” Doc. #467, at 1. Kraus contends it is
difficult to identify evidence and argument on defenses not
made, and he argues Plaintiff uses this motion to exclude
evidence Plaintiff missed. Doc. #478, at 11. Olson and McKeon
did not respond to this motion.
contrary to Rose's argument, a party does not have an
unrestricted right to present affirmative defenses and facts.
Instead, the Federal Rules of Civil Procedure require a party
responding to a complaint to “affirmatively state any
avoidance or affirmative defense.” Fed.R.Civ.P.
8(c)(1). If an affirmative defense was not pled, that
defendant may not present evidence or argument about the
unpled affirmative defense. Second, Defendants were asked to
provide the facts supporting their affirmative defenses
during discovery, and they were required to
“fully” answer each interrogatory. Fed.R.Civ.P.
33(b)(3). If Defendants failed to provide facts supporting
their affirmative defenses when they answered Plaintiff's
interrogatories, they may not present evidence or argument
about those undisclosed facts during trial. For these
reasons, the Court grants Plaintiff's motion.
Previously Stricken or Withdrawn Defenses
moves to exclude evidence and argument related to stricken or
withdrawn defenses. Olson, McKeon, and Rose do not raise
objections to this motion. Kraus argues withdrawn defenses
should not be excluded “due to the prohibitive cost
necessary to defend” DuraSeal Pipe and DuraSeal
Holdings and “[e]vidence should not be
suppressed…because a party could not afford to defend
itself.” Doc. #478, at 11.
time the Court considered the parties' summary judgment
motions, all Defendants, except Jensvold, Rose, and Kaiser,
were represented by counsel. Doc. #434, at 19. Defendants did
not respond to Plaintiff's argument that he was entitled
to summary judgment on Defendants' affirmative defenses
of commercial frustration, impossibility of performance,
ratification related to the 9/25/14 Amendment, and fraud in
the inducement related to the 1/11/12 Amendment. Doc. #434,
at 51-53. Also, Defendants voluntarily withdraw the
affirmative defense of failure to mitigate. Id. at
to Kraus's position, he is not permitted to bring new
defenses at trial. As explained in Motion in Limine No. 4, he
was required to plead all affirmative defenses when he
responded to Plaintiff's First Amended Complaint.
Pursuant to Defendants' withdrawal and the Court's
rulings, the Court grants Plaintiff's motion. No. party
shall present evidence or argument related to the defenses of
commercial frustration, impossibility of performance,
ratification related to the 9/25/14 Amendment, fraud in the
inducement related to the 1/11/12 Amendment, and failure to
Law Firm's Relationship with Olson as Elected
asks to preclude evidence that Polsinelli PC, the law firm
representing him, or attorneys employed by Polsinelli
contributed to Olson's past campaigns for public office
or were involved in fundraisers for Olson. Plaintiff believes
Olson will introduce evidence that Johnston (or his relatives
or corporate entities) contributed to Olson's campaign
before and after Johnston nominated Olson to the Xurex board
to show he is not beholden to Johnston, although Plaintiff
does not seem to argue the introduction of that evidence
would be improper. However, Plaintiff notes Olson lists
Polsinelli attorneys as rebuttal witnesses. Plaintiff argues
that there is no suggestion that Polsinelli attorneys were
involved in Olson being nominated to the Xurex board, and
thus, this evidence is irrelevant, creates an “undue
tendency to suggest decision on an improper basis, ”
and is a personal attack on Plaintiff's counsel. Doc.
#450, at 9-10.
and Rose do not raise objections to this motion. Kraus
contends Olson should “keep the right of
rebuttal.” Doc. #478, at 12. Olson concedes evidence of
campaign contributions made by Polsinelli attorneys and
efforts by Polsinelli attorney to hold a campaign fundraiser
on his behalf are relevant and admissible in this case only
to counter Plaintiff's argument that Olson “sought
to benefit DuraSeal and Johnston” with the 2012
Agreement because Johnston and DuraSeal contributed to his
campaign. Doc. #488, at 7. Olson contends if Plaintiff
presents evidence of Johnston's (or his relatives' or
corporate entities') campaign contribution to demonstrate
Olson's bias toward Johnston, Olson should be permitted
to present evidence that he is not beholden to any campaign
contributor, including Johnston and Polsinelli whose
attorneys contributed to his campaign during this litigation.
Id. at 7-9. Finally, Olson argues if this motion is
granted, evidence of campaign contributions by any Defendant
(or any family member of any Defendant) should also be
excluded for the same reasons asserted by Plaintiff in
support of his motion and because the evidence was not
Polsinelli attorneys contributed to Olson's campaign or
planned a fundraiser for Olson is not relevant to the claims
being tried. To the extent these facts could be considered
relevant, any probative value they may have is substantially
outweighed by unfair prejudice, confusion, misleading the
jury, and wasting the jury's time. Fed.R.Evid. 403. For
these reasons, Plaintiff's motion is granted. Olson shall
not present evidence or argument regarding any campaign
contributions from Polsinelli or its attorneys to his
campaign or Polsinelli attorneys planning a fundraiser for
did not file a motion in limine regarding Plaintiff's
likely use of evidence that Johnston (or his relatives or
corporate entities) or any other Defendant (or their
relatives or corporate entities) contributed to his campaign.
For this reason alone, Olson's request to exclude this
evidence is denied. Moreover, this evidence is relevant to
the claims being tried, and there is little to no risk that
its probative value would be outweighed by unfair prejudice,