United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge.
matter is before the Court on the parties' motions in
limine, Filing No. 59 and 62.
the motion in limine is an important tool available to the
trial judge to ensure the expeditious and evenhanded
management of the trial proceedings, performing a gatekeeping
function and sharpening the focus for later trial
proceedings, some evidentiary submissions, cannot be
evaluated accurately or sufficiently by the trial judge in
such a procedural environment. Jonasson v. Lutheran Child
and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). A
motion in limine is appropriate for “evidentiary
submissions that clearly ought not be presented to the jury
because they clearly would be inadmissible for any
purpose.” Id. In some instances, it is
necessary to defer ruling until during trial, when the trial
judge can better estimate the impact of the evidence on the
jury. Id. The Eighth Circuit has noted that
“[e]videntiary rulings made by a trial court during
motions in limine are preliminary and may change depending on
what actually happens at trial.” Walzer v. St.
Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000).
The Eighth Circuit has also “cautioned ... about the
harmful effects of blanket evidentiary exclusions in
discrimination cases.” Callanan v. Runyun, 75
F.3d 1293, 1297-98 (8th Cir. 1996).
primary purpose of the pretrial witness disclosure rule is to
give parties notice of who will be called to testify, thereby
avoiding unfair surprise or prejudice at trial. Morfeld
v. Kehm, 803 F.2d 1452, 1455 (8th Cir. 1986). The rule
should be applied flexibly and pragmatically and should
seldom be used to bar a party's use of a witness not
disclosed unless bad faith is involved. Id. at 1456.
of evidence is a harsh penalty, and should be used
sparingly.” ELCA Enters v. Sisco Equip. Rental
& Sales, 53 F.3d 186, 190 (8th Cir. 1995); see
also Wegener v. Johnson, 527 F.3d 687, 692 (8th
Cir. 2008) (describing factors to consider in deciding
whether to exclude witness testimony for nondisclosure).
Federal Rule of Evidence 701 “a lay witness may testify
about facts within his or her range of generalized knowledge,
experience, and perception.” United States v.
Johnson, 688 F.3d 494, 503 (8th Cir. 2012) (quoting
United States v. Espino, 317 F.3d 788, 797 (8th Cir.
2003)). If the witness testifying is not doing so as an
expert, then any testimony expressing the witness's
opinion or inferences is limited to those that
“'are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the
witness' [sic] testimony or the determination of a fact
in issue.'” United States v. Oslund, 453
F.3d 1048, 1058-59 (8th Cir. 2006) (quoting Fed.R.Evid. 701
(1998)). “Personal knowledge or perceptions based on
experience is a sufficient foundation for such
testimony.” Id. (quoting In re Air Crash
At Little Rock Ark., 291 F.3d 503, 515 (8th Cir. 2002)).
Lay testimony in the form of legal conclusions, however, is
inadmissible, because it does not “help” the
jury. United States v. Noel, 581 F.3d 490, 496 (7th
Cir. 2009); see also Cowden v. BNSF Ry.
Co., 980 F.Supp.2d 1106, 1117-18 (E.D. Mo. 2013).
Credibility is an issue for the factfinder at trial.
United States v. Vesey, 338 F.3d 913, 917 (8th Cir.
Eighth Circuit Court of Appeals recognizes that
“[m]isconduct involving violations of narcotics laws is
not an act involving dishonesty or untruthfulness and
therefore may not be inquired into under Federal Rule of
Evidence 608(b).” United States v. Turner, 104
F.3d 217, 223 (8th Cir. 1997). Nevertheless, some federal
Circuit Courts of Appeals have recognized that evidence of a
witness's drug use may be appropriate on
cross-examination, as it bears directly on the witness's
ability to perceive or recall events or to testify accurately
about them. See, e.g., United States v.
Robinson, 583 F.3d 1265, 1272, 1274-75 (10th Cir. 2009);
Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir. 2008)
(explaining that evidence of drug use may be used to impeach
a witness's recollection of events but not for the
impermissible “inference that drug users tend to
lie”). “Evidence that a witness has used illegal
drugs may be probative of the witness's ‘possible
inability to recollect and relate, '” but such
evidence may be admitted only “where the memory or
mental capacity of a witness is legitimately at issue.”
United States v. Cameron, 814 F.2d 403, 405 (7th
Cir. 1987) (quoting United States v. Banks, 520 F.2d
627, 631 (7th Cir. 1975)); see, e.g., Sec.
Nat'l Bank of Sioux City v. Abbott Labs., No. C
11-4017-MWB, 2013 WL 12140998, at *11 (N.D. Iowa Aug. 13,
2013). “[T]here is considerable danger that evidence
that a witness has used illegal drugs may so prejudice the
jury that it will excessively discount the witness'
testimony.” Id. (noting that a court must
“be chary in admitting such evidence when it is offered
for the sole purpose of making a general character
attack.”). Sec. Nat'l Bank of Sioux City, Iowa
v. Abbott Labs., No. C 11-4017-MWB, 2013 WL 12140998, at
*11 (N.D. Iowa Aug. 13, 2013).
Defendant's Motions in Limine (Filing No.
Urban League's motions in limine (Nos. 1-4) to exclude:
(a) any exhibits containing expert opinions that were not
included in an expert witness disclosure, including
Plaintiff's Proposed Exhibits 31, 32, 42, 43, 44, 45, 46,
(b) Any reference to expert opinions that were not included
in an expert witness disclosure;
(c) any testimony from witnesses plaintiff did not previously
identify, pursuant to Fed.R.Civ.P. 26(a)(1)(A)(i), as
individuals having discoverable information plaintiff may use