Opinion
NO. CS-01-0127-EFS
March 29, 2004
ORDER RULING ON MOTIONS IN LIMINE
On March 24, 2004, and March 25, 2004, the Court conducted a motion hearing in the above-captioned case. Specifically, the Court considered Motions in Limine filed by the various parties to this litigation. The parties were represented as set forth in the minutes of the hearings, (Ct. Recs. 1749 and 1753), After reviewing the motions, memoranda, submitted materials, applicable case law, and hearing oral argument, as required, the Court was fully informed. This order memorializes the Court's oral and written rulings from hearings. Accordingly, for the reasons stated on the record.
The Court heard oral argument on the following Motions in Limine: (1) Bond Fund Plaintiffs' Motion in Limine, Sub-Motion #9, (Ct. Rec. 1454); (2) Prudential's General Motion in Limine, Sub-Motion #21, (Ct. Rec. 1511), (3) AGIC's Motion in Limine NOS. 1-7, (Ct. Rec. 1524), (4) the City of Spokane's Motion in Limine, (Ct. Rec. 1537), (5) Perkins Coie's Motion to Exclude Testimony of City Expert Kenneth Artin, (Ct. Rec. 1423), (6) RPS Developers' Motion in Limine, Sub-Motions #5 and #8 only, (Ct. Rec. 1487), and (7) Preston Gates Ellis LLP's Motion to Exclude Testimony of Donald Keysser, (Ct. Rec. 1498).
IT IS HEREBY ORDERED:
1. Foster Pepper's Motion in Limine to Exclude the Testimony of Ted Fiflis, (Ct. Rec. 1428), is DENIED. Mr. Fiflis will be allowed to testify but there will be a limiting instruction to the effect that instruction on the law is the sole province of the Court.
2. Preston Gates Ellis LLP's Motion to Exclude the Testimony of Ted Fiflis, ( Ct. Rec. 1506), is DENIED. Mr. Fiflis will be allowed to testify but there will be a limiting instruction to the effect that instruction on the law is the sole province of the Court.
3. Foster Pepper's Motion in Limine to Exclude Post-September 1998 Allegations, Evidence of Rules of Professional Conduct and 404(b), and the "Flow of Funds" Provision of the Official Statement, (Ct. Rec. 1530), is GRANTED as to Post-September 1998 Allegations, GRANTED IN PART AND DENIED IN PART as to Rules of Professional Conduct and 404(b), and GRANTED IN PART AND DENIED IN PART as to the "Flow of Funds" Provision. Specifically, Post-September 1998 allegations are not relevant to support the 10b-5 fraud claim against Foster Pepper Preston Gates but may be relevant for other claims. Rules of Professional Conduct testimony is properly excluded but the 404(b) portion is DENIED with leave to renew at trial for specific objection. Finally, the "Flow of Funds" testimony, which can be used to show recklessness, is admitted with a limiting instruction to the effect that Plaintiffs may not argue they were misled by the provision.
4. Foster Pepper's Second Motion Regarding the Testimony of Michael Maher, (Ct. Rec. 933), is GRANTED. Mr. Maher's testimony will be subject to a limiting instruction to the effect that he may testify as to the factual recitation of his actions, not to whether he believes Smith Barney was misled.
5. Bond Fund Plaintiffs' MIL, (Ct. Rec. 1454), is GRANTED IN PART AND DENIED IN PART. Specifically, with respect to the nine sub-motions:
MIL #1 and MIL #2 — GRANTED.
MIL #3 — MIL #5 — DENIED.
MIL #6 — DENIED with leave to renew at trial.MIL #7 — GRANTED.
MIL #8 — DENIED.
MIL #9 — DENIED. The Non-City Defendants will have eight (8) Peremptory Challenges, the City of Spokane will have three (3) Peremptory Challenges, and the Plaintiffs will have five (5) Peremptory Challenges.
6. Bond Fund Plaintiffs' Motion to Limit the Testimony of Allan W. Kleidon, (Ct. Rec. 1465), is DENIED. Mr. Kleidon shall include in his testimony that his projections were based on the provided assumption of fraud.
7. Bond Fund Plaintiffs' Motion to Strike Expert Testimony of Robert Dean Pope, (Ct. Rec. 1469), is DENIED.
8. Prudential's General Motion in Limine, (Ct. Rec. 1511), is GRANTED IN PART AND DENIED IN PART. Specifically, with respect to the twenty-one sub-motions:
MIL # 1-7 — GRANTED.
MIL # 8 — DENIED with leave to renew at the time of trial.MIL #9 and #10 — GRANTED.
MIL #11 and #17 — DENIED with leave to renew at the time of trial. Specifically, if an expert's deposition testimony orally supplements the 26(a)(2)(B) report, that would be a proper area of inquiry. However, this will not serve as a basis for counsel to inquire based solely on answers given in direct response to "permissible discovery" questions during deposition.
MIL #12 — # 15 — GRANTED.
MIL # 16 — GRANTED. The Court grants the motion only as to bond holders that did not provide responses to discovery.MIL # 18 — # 20 — GRANTED.
MIL #21 — GRANTED.
9. Prudential's Motion in Limine to Limit Testimony of Robert Doty, (Ct Rec. 1514), is DENIED with leave to renew at the time of trial.
10. Prudential's Motion in Limine RE Evidence of Market Value of the Garage, (Ct. Rec. 1515), is DENIED.
11. Prudential's Motion in Limine RE Evidence of AGIC's Damages, (Ct. Rec. 1517), is GRANTED.
12. Spokane Downtown Foundation's MIL to Exclude Evidence of Post-Sale Walker Revenue Projections, (Ct. Rec. 1545), is DENIED.
13. AGIC's Motion in Limine NOS. 1-7, (Ct. Rec. 1524), is GRANTED IN PART AND DENIED IN PART. Specifically, with respect to the seven Sub-Motions:
MIL #1 — DENIED.
MIL #2 — GRANTED.
MIL #3 — GRANTED IN PART AND DENIED IN PART. The Motion to Exclude all Third party Reports, Analyses, and Articles Regarding AGIC or Radian, is DENIED with leave to renew at trial. However, the Motion to Exclude Deposition Exhibits 899, 900, and 901 is GRANTED as to all parties.
MIL #4 — DENIED with leave to renew at the time of trial. Specifically, if an expert's deposition testimony orally supplements the 26(a)(2)(B) report, that would be a proper area of inquiry. However, this will not serve as a basis for counsel to inquire based solely on answers given in direct response to "permissible discovery" questions during deposition.
MIL #5 — #7 — UNDER ADVISEMENT.
14. The City of Spokane's Motion in Limine, (Ct. Rec. 1537), is GRANTED IN PART AND DENIED IN PART. Specifically, with respect to the seventeen Sub-Motions:
MIL #1- #6 — DENIED.
MIL #7 — #8 — DENIED.
MIL #9a — DENIED.
MIL #9b — GRANTED. Specifically, as the parties stipulated, the following will be excluded: "Any reference to other lawsuits or claims against the City, with the exception of RPS v. Miggins, Priorities First v. City of Spokane, CLEAN v. City of Spokane , and issues on appeal in Euster v. City of Spokane ."
MIL #10 — DENIED with leave to renew at trial.MIL #11 and #12 — GRANTED.
MIL #13 — 16 — DENIED.
15. Perkins Coie's Motion to Exclude Testimony of City Expert Kenneth Artin, (Ct. Rec. 1423), is DENIED.
16. RPS Developers' MIL Nos. 1-8, (Ct. Rec. 1487), are GRANTED IN PART AND DENIED IN PART. Specifically, with respect to the eight Sub
Motions:
MIL # 1 — #3 — GRANTED.
MIL #4 — GRANTED. However, counsel may make offers of proof and the Court will make trial determinations on admissibility.
MIL #5 — DENIED — However, Mr. Rose's 26(a)(2)(B) report will be provided to the RPS Defendants AS SOON AS POSSIBLE.MIL #6 — DENIED.
MIL #7 — GRANTED.
MIL #8 — GRANTED IN PART AND DENIED IN PART. Specifically, testimony as to actual construction costs is permissible, but testimony as to tax allocation of construction costs is excluded.
17. Preston Gates Ellis LLP's Motion to Exclude Evidence RE IRS Audit, (Ct. Rec. 1502), is GRANTED.
18. Preston Gates Ellis LLP's Motion to Exclude Testimony of Donald Keysser, (Ct. Rec. 1498), is DENIED with leave to renew at trial.
IT IS SO ORDERED.
The District Court Executive is directed to enter this Order and to furnish copies to all counsel.