The opinion
IN THE UNITED STATES DISTRICT COURT
EASTER DISTRICT OF ARKANSAS
NORTHERN DIVISION
CLEO WATKINS, et al. PLAINTIFFS
v. Case No. 3:17-cv-00272-KGB
LAWRENCE COUNTY, ARKANSAS, et al. DEFENDANTS
ORDER
Before the Court are the motions in limine, with supporting briefs of law incorporated, filed
by defendants Lawrence County, Arkansas; John Thomison, in his official capacity as County
Judge of Lawrence County; and William Powell, Donald Richey, Lloyd Clark, Heath Davis, Ernest
Briner, Ronald Ingram, Tracy Moore, Kenney Jones, and Alex Latham, in their official capacities
as members of the Lawrence County Quorum Court (Dkt. No. 134). Plaintiffs Cleo Watkins;
Brenda Watkins; Pyles Family Farms, LLC; Victor Hutcherson; Alevella Hutcherson; Helen Mae
Knight, Trustee of the Helen Mae Knight Trust; Michael Watkins; Betty Watkins; and George
Carney have responded to defendants’ motions in limine (Dkt. No. 143). Also before the Court is
the second omnibus motion in limine of plaintiffs Cleo Watkins; Pyles Family Farms, LLC; Victor
Hutcherson; Alevella Hutcherson; Helen Knight; Michael Watkins; Betty Watkins; and George
Carney (Dkt. No. 137). Defendants have responded to plaintiffs’ second omnibus motion in limine
(Dkt. No. 142). For the following reasons, the Court grants in part and denies in part the motions
in limine (Dkt. Nos. 134; 137).
As to those matters about which the Court grants an in limine motion in favor of either
party, all parties, their counsel, and witnesses are directed to refrain from making any mention
through interrogation, voir dire examination, opening statement, arguments, or otherwise, either
directly or indirectly, concerning the matters about which the Court grants an in limine motion,
without first approaching the bench and obtaining a ruling from the Court outside the presence of
all prospective jurors and the jurors ultimately selected to try this case. Further, all counsel are
required to communicate this Court’s rulings to their clients and witnesses who may be called to
testify in this matter.
I. Defendants’ Motions In Limine
A. Plaintiffs’ Tax Returns
Defendants move to exclude in limine plaintiffs’ tax returns as irrelevant (Dkt. No. 134, at
1-2). Plaintiffs respond that they do not oppose defendants’ motion in limine to exclude their tax
returns at trial (Dkt. No. 143, at 2). The Court grants defendants’ motion in limine to exclude
plaintiffs’ tax returns. If any party seeks to introduce plaintiffs tax returns for any purpose at trial,
they must first approach the bench and obtain a ruling from the Court outside the presence of the
jury.
B. Plaintiffs’ Farm Service Administration Records
Defendants move for the Court to exclude in limine Farm Service Administration (“FSA”)
records as irrelevant because defendants contend that the FSA records will show crop yields for
plaintiffs’ farms, and defendants maintain that the Court has ruled such evidence inadmissible (Id.,
(citing Dkt. No. 115, at 14-15)). At a pre-trial conference with the parties held November 10,
2021, defendants withdrew their motion in limine as to the FSA records (Dkt. No. 134, at 2).
Accordingly, the Court denies as moot defendants’ motion in limine to exclude the FSA records.
C. Defendants’ Rainfall Data, And Summaries, And Request For Judicial
Notice
Defendants ask the Court to declare admissible “data and summaries of data on rainfall and
flow for the Cache River and surrounding areas” and ask the Court to take judicial notice of this
data (Dkt. No. 134, at 2-3). Defendants assert that the data comes from the National Oceanic and
Atmospheric Administration (“NOAA”), an arm of the United States Department of Commerce,
and the United States Geological Survey (“USGS”), an arm of the United States Department of
the Interior (Id., at 2). Defendants claim the data is available to anyone on these websites, is self-
authenticating, and is admissible under Federal Rule of Civil Procedure 44(a) (Id.). Defendants
argue the summaries of the data sets are admissible under Federal Rule of Evidence 1006 (Id., at
2-3).
As a general matter, plaintiffs assert that defendants have not presented sufficient
information to permit the Court to make an advanced evidentiary ruling because defendants have
not referenced specific evidence or exhibits (Dkt. No. 143, at 3).
As to the rainfall data, plaintiffs argue that the rainfall data is not relevant and requires
expert interpretation, analysis, and explanation which defendants cannot provide; defendants have
not provided the underlying rainfall data to the Court for it to evaluate the data under Federal Rule
of Evidence 201; the rainfall data is irrelevant; and if the Court determines the rainfall data should
be excluded as plaintiffs argue in their second omnibus motion in limine, the Court should deny as
moot the defendants’ request for judicial notice (Id., at 3-4).
With respect to defendants’ request to present flow data from the USGS gage at Egypt,
Arkansas, plaintiffs state that the USGS’s flow data was reviewed and relied upon by their expert,
so plaintiffs do not object to the Court taking judicial notice of the underlying flow data (Id., at 4).
Plaintiffs state, however, that defendants should produce the data for the Court to review before it
takes judicial notice of the data (Id.).
As for defendants’ request to use summaries of these data sets under Federal Rule of
Evidence 1006, plaintiffs state that they are unaware of summaries of flow data and as to
summaries of rainfall data, the defendants have not given the Court sufficient information (Id., at
4). Plaintiffs state that if the summaries referred to in defendants’ motion are “lawyer-created
charts” then defense counsel must testify regarding the chart in order for it to be admissible (Id.,
at 5). Plaintiffs assert that the person who created the chart included in defendants’ summary
judgment filing that compared Mark Johnson’s flood days to rainfall dates around the time of the
flood dates that are more than one half inch used judgment and must testify and be cross-examined
regarding the selection and exclusion of data (Id., at 6 (citing to Dkt. No. 55-13)). Plaintiffs also
state that testimony is required regarding a chart produced by defendants that provides the total
precipitation for each year, as available, from 1990 through 2020 (Id. (citing to 143-1)). Finally,
plaintiffs address a chart defendants presented at summary judgment and characterized the data as
Rainfall Totals Near Egypt, Arkansas, from 2008 to 2018 (Id. (citing Dkt. No. 55, ¶ 18 referencing
Dkt. No. 55-14)). Plaintiffs assert that they do not know of a witness who can testify to the
information on page one of the chart, and, as to page two, the chart was prepared for and included
as part of the Cache River Watershed Management Plan created by FTN Associates (Id.). Plaintiffs
argue that the charts are not admissible unless a witness is available for cross-examination at trial,
so the Court should deny defendants’ motion in limine as to defendants’ summaries of data.
Federal Rule of Evidence 1006 permits summaries of voluminous data. It is the Court’s
understanding that plaintiffs do not object to the veracity of the underlying data in defendants’
summaries or to the veracity of the summary of the data, but rather plaintiffs object on relevance
and to the lack of an expert witness who they deem qualified to testify about the summaries.
As the Court stated at the pre-trial conference, the Court generally views rainfall data from
reliable government sources as relevant to issues in the case. The Court will, however, withhold
taking judicial notice of particular data at this stage because defendants have not identified for the
Court the particular data of which they would like the Court to take judicial notice. The Court will
also withhold ruling on the admissibility of any of defendants’ summaries of data at this stage
because defendants have not identified the particular summaries on which they would like the
Court to rule. The Court will also reserve ruling until trial on whether a particular witness is
competent to testify regarding the data and whether the particular data that defendants are seeking
to admit is relevant.
For these reasons, the Court grants in part and denies in part defendants’ motion in limine,
consistent with the rulings in this Order (Dkt. No. 134).
II. Plaintiffs’ Second Omnibus Motion In Limine
Plaintiffs generally argue that the evidence they seek to exclude in their motion in limine
is not relevant as set forth in Federal Rule of Evidence 401, and, if the Court finds the evidence
relevant, the Court should exclude the evidence applying the balancing test set forth in Federal
Rule of Evidence 403 (Dkt. No. 138, at 1-2). The Court will discuss separately each category of
evidence plaintiffs seek to exclude in limine.
A. Evidence Of Replacement Costs And Lawrence County’s Finances
Plaintiffs seek to exclude in limine evidence regarding potential costs of replacing the
culvert structure and Lawrence County, Arkansas’s lack of funding (Dkt. No. 137, at 1-2).
Defendants respond that they do not intend to offer evidence regarding replacement costs or
Lawrence County’s finances (Dkt. No. 142, ¶ 1). The Court grants plaintiffs’ motion in limine to
exclude evidence regarding potential costs of replacing the culvert structure and Lawrence County,
Arkansas’s lack of funding (Dkt. No. 137, at 1-2). If any party seeks to introduce evidence
regarding potential costs of replacing the culvert structure or Lawrence County, Arkansas’s lack
of funding for any purpose at trial, they must first approach the bench and obtain a ruling from the
Court outside the presence of the jury.
B. Evidence Of Rainfall
Plaintiffs seek to exclude in limine testimony and other evidence of rainfall on grounds that
defendants have not disclosed any expert qualified to opine on the subject under Federal Rule of
Evidence 701 and on grounds the evidence is irrelevant under Federal Rules of Evidence 401 and
403. Plaintiffs cite to Hendricks v. United States, 14 Cl. Ct. 143, 149 (1987), to assert that
defendants’ witnesses cannot testify that the recent rainfall is excessive compared to historical
rainfall and that rainfall causes the plaintiffs’ properties to flood (Dkt. No. 138, at 5). Plaintiffs
urge that expert testimony is needed to establish “actual facts and application of those facts to an
ultimate issue in the case” and seek exclusion of such testimony in part because “[d]efendants did
not disclose any experts qualified to opine in the areas of meteorology, climatology, hydrology, or
geography” who can “frame the issue of rainfall for the jury.” Plaintiffs ask the Court to exclude
all evidence of rainfall (Id., at 5-6).
Defendants respond that lay witnesses can offer opinion testimony under Federal Rule of
Evidence 701 so long as it is: “(a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge within the scope of Rule 702.” (Id., ¶ 2
(quoting Fed. R. Evid. 701)). Defendants assert that farmers who live near the bridge at issue in
the case have firsthand knowledge and experience with rainfall and its effects on the fields in the
area and can offer lay testimony as to how rainfall affects flooding on these farms because they
have witnessed it for years and deal with flooding on their own farms (Id., ¶ 3). Defendants state
that no defense witness will “blindly assert that recent rainfall is excessive compared to historical
rainfall,” but defendants do intend to introduce data showing recent rainfall totals in comparison
to historical totals based on “government data on localized rainfall.” (Id., ¶ 4). Defendants also
assert that witness testimony “will be limited to things they have witnessed with their own eyes.”
(Id., ¶ 5 (citing to Herriman v. United States., 8 Cl. Ct. 411, 420 (1985), for the proposition that
“lay testimony would not be probative of causation except insofar as the lay witness had observed
the phenomena which they were to address”)). Defendants argue that the rainfall data is self-
authenticating under Federal Rule of Civil Procedure 44(a) (Id., ¶ 6 (citing Minnehaha County,
S.D. v. Kelley, 150 F.2d 356, 361 (8th Cir. 1945)). Defendants assert that in Herriman and
Minnehaha County, S.D., the courts admitted the data “with the insight that the fact finder could
afford less weight to the rainfall data and corresponding testimony.” (Id., ¶ 7).
As the Court stated at the pre-trial conference, the Court generally views rainfall data from
reliable government sources as relevant to issues in the case. Accordingly, the Court denies
plaintiffs’ motion to exclude in limine defendants’ evidence of rainfall. Consistent with the Court’s
discussion with counsel during the pretrial conference on these motions, any party may object to
particular testimony and evidence at trial, including but not limited to plaintiffs objecting to what
they contend is improper expert testimony, not properly supported or disclosed, and improper
causation testimony.
C. Landowners Near County Road 717
Plaintiffs seek to exclude in limine defendants’ testimony and other evidence from nearby
landowners to the effect that the culvert structure does not divert water onto their properties (Dkt.
No. 137, ¶ 6). Plaintiffs state the evidence is not relevant to this case because “[t]here is a myriad
of geographical, ecological, and hydrological explanations as to why some properties flood while
others do not.” (Id., ¶ 7). Plaintiffs argue further that neighboring landowners, as lay witnesses,
are not qualified to testify about why their land does or does not flood. (Id. (citing Fed. R. Evid.
701)). Plaintiffs also assert that the lay witness testimony from non-parties is irrelevant, unhelpful,
and should be excluded (Id., ¶ 8 (citing Fed. R. Evid. 401; 403)).
Defendants state that the landowner and farmer witnesses who they have identified own
properties numbered and shaded pink in figure one of Mr. Johnson’s report (Dkt. No. 142, ¶ 8).
Defendants assert that they intend to call some witnesses in the area with farm properties near
plaintiffs to “describe flooding conditions and rain conditions with which they are very familiar”
and that the testimony is relevant because the conditions on the non-plaintiff landowners’
properties is not different than that on plaintiffs’ properties (Id., ¶ 10-12). Defendants also assert
that the testimony of non-plaintiff landowners is relevant to establish that any flooding suffered by
plaintiffs is the same or similar to that suffered by non-parties and to establish that plaintiffs’
claimed damages are not unique for purposes of proving inverse condemnation (Id., ¶ 13).
The Court denies plaintiffs’ motion to exclude in limine defendants’ testimony and other
evidence from nearby landowners based on personal experience (Dkt. No. 137). Consistent with
the Court’s discussion with counsel during the pretrial conference on these motions, any party may
object to particular testimony and evidence at trial, including but not limited to plaintiffs objecting
to what they contend is improper expert testimony not properly supported or disclosed and
improper causation testimony.
D. Crop Insurance
Plaintiffs seek to exclude in limine evidence that they maintain crop insurance policies or
made crop insurance claims as irrelevant and prejudicial (Dkt. No. 137, ¶ 9 (citing Fed. R. Evid.
401; 403)). Defendants state that they do not intend to offer evidence that plaintiffs made any type
of insurance claim for crops they may have lost due to flooding because such evidence would be
barred by the collateral source rule (Dkt. No. 142, ¶ 14). The Court grants plaintiffs’ motion in
limine to exclude evidence that plaintiffs maintained crop insurance policies or made crop
insurance claims on crop insurance policies (Dkt. No. 137).
Defendants stated in their brief and at the pre-trial conference that they intend to offer
testimony about the United States Department of Agriculture’s (“USDA”) prevented planting
policies (Dkt. No. 142, ¶ 15). Defendants argue that the USDA’s prevented planting policy does
not fall under the collateral source rule because prevented planting involves a decision made by a
landowner not to plant a crop even before the insured has ever suffered a loss. Defendants assert
that the evidence is relevant because, if plaintiffs participated in the prevented planting program,
that participation will negate the damages element to their claims. Plaintiffs object to defendants’
introduction of any prevented planting evidence because they argue that the applicable standard of
damages in the case is fair market rental value and that their expert already accounted for this by
not including prevented planting crops in his calculation of damages.
The Court denies plaintiffs’ motion to exclude in limine evidence regarding their
participation in the USDA’s prevented planting program.
E. Cache River Drainage District
Plaintiffs seek to exclude in limine evidence regarding the Cache River Drainage District
(“CRDD”) (Dkt. No. 137, ¶¶ 10-12). Plaintiffs argue that the evidence is irrelevant because CRDD
operates along the entire course of the Cache River, and plaintiffs maintain that this case concerns
localized flooding in proximity to the culvert structure and that efforts along the entire river do not
have any bearing on whether the culvert structure causes flooding of plaintiffs’ properties (Id., ¶
12 (citing Fed. R. Evid. 401; 403)).
Defendants contend that plaintiffs’ arguments as to why the CRDD evidence should be
excluded are misplaced because they intend to offer evidence that plaintiffs’ farms are in the exact
downstream area that witnesses will testify has suffered increased flooding from upstream
projects; defendants’ witnesses have firsthand knowledge about the projects and have witnessed
the effects of the projects; and a jury can distinguish between the CRDD and plaintiffs’ properties,
which are a subsection of the CRDD (Id., ¶¶ 17-21).
The Court denies plaintiffs’ motion in limine to exclude defendants’ evidence regarding
the CRDD (Dkt. No. 137).
F. Dr. Shawkat Ali
Plaintiffs ask the Court to exclude in limine the testimony of defendants’ expert Dr.
Shawkat Ali (Dkt. No. 137, ¶¶ 13-15). Plaintiffs incorporate their briefing on their first motion to
exclude Dr. Ali’s testimony (Id., ¶ 15 (citing Dkt. Nos. 46, 47)). In their motion to exclude Dr.
Ali’s testimony in limine, plaintiffs continue to assert that Dr. Ali’s methodology is unreliable or
unaccepted among the Arkansas engineering community and that he is not qualified to opine on
what caused plaintiffs’ properties to flood because it is outside of his expertise as an engineer (Id.,
¶ 14).
Defendants argue that plaintiffs’ citation to Arkansas Code Annotated § 17-30-305(a)(1)(j)
as a reason to exclude Dr. Ali’s testimony is misplaced because that is a provision regarding
instances that lead to suspension or revocation of a professional engineer’s license and because
there is no prohibition in the statue that would prevent the Court from allowing Dr. Ali to testify
as an expert witness or prohibit the Court from admitting Dr. Ali’s opinions (Dkt. No. 142, ¶¶ 22-
23). Defendants assert that plaintiffs do not approve of a United States Army Corp of Engineers’
assessment of flow capacity of the bridge but that there is no doubt that the assessment was
prepared by the United States Army Corp of Engineers; that Dr. Ali has testified that, as a
professional engineer, he may safely rely on tests utilized or completed by engineers of the United
States Army Corp of Engineers; and that plaintiffs present no authority to the contrary (Id., ¶ 24).
For the reasons stated in the Court’s prior order (Dkt. No. 107, at 21-23), the Court denies
plaintiffs’ motion to exclude in limine Dr. Ali’s opinions and testimony (Dkt. No. 137).
G. Altercation
Plaintiffs move to exclude in limine testimony regarding an alleged altercation between
Scotty Joe Turner and plaintiff Cleo Watkins (Dkt. No. 137, ¶¶ 16-17). Defendants state they do
not intend to offer evidence regarding the alleged altercation (Dkt. No. 142, ¶ 25). The Court
grants plaintiffs’ motion to exclude in limine testimony regarding an alleged altercation between
Scotty Joe Turner and plaintiff Cleo Watkins (Dkt. No. 137). If any party seeks to introduce
evidence regarding the altercation between Scotty Joe Turner and plaintiff Cleo Watkins, they
must first approach the bench and obtain a ruling from the Court outside the presence of the jury.
H. Improper Evidence
Plaintiffs ask the Court to exclude in limine the following exhibits they expect defendants
to offer into evidence:
19 photographs taken by defendant Lawrence County Judge John Thomison in
February 2019, that purport to show flooding events on the Cache River and on the
West Cache River Slough (Dkt. No. 74-1, at 2-20);
the Cache River Watershed-Based Management Plan (Dkt. No. 51-7); and
Engineering Services Contract from B.A. Engineering (Dkt. No. 91-6).
Dkt. No. 137, ¶ 18). The Court addresses each category of documents.
1. 19 Photographs
Plaintiffs seek to exclude in limine 19 photographs taken by defendant Lawrence County
Judge John Thomison in February 2019, that purport to show flooding events on the Cache River
and on the West Cache River Slough (Dkt. No. 74-1, at 2-20). The Court denied without prejudice
plaintiffs’ motion to strike at least one of Mr. Thomison’s photographs at an earlier stage of this
lawsuit (Dkt. No. 115, at 6). The Court stated at that time that it would at the trial of this matter
permit all parties or no parties to introduce demonstrative exhibits not disclosed during discovery
(Id.).
The Court does not, however, understand plaintiffs to be moving to exclude admission of
the photographs at trial based on defendants’ failure to disclose the photographs during discovery.
Instead, plaintiffs argue that the photographs are unreliable because they purport to depict data
gathered for a survey measurement, but defendants have not provided identification of the
individual group managing the survey instrument, the qualifications of the surveyor involved, the
results of these readings, or the survey (Dkt. No. 138, at 13). Plaintiffs assert that the defendants
do not have an expert who can testify regarding the information and application of that information
to the fact in this case (Id., at 13-14).
Defendants argue that Mr. Thomison’s photographs are descriptive, easily authenticated,
and simply factual (Dkt. No. 142, ¶ 26). Defendants state that Mr. Thomison will testify at trial;
that Mr. Thomison will identify the photographs as ones that he took on his cell phone showing
the streams and fields on the dates shown; and that Mr. Thomison will not attempt to interpret
them through any type of expert testimony (Id.). Defendants assert that any objection made by
plaintiffs in an effort to exclude the photographs goes to the weight of the evidence presented, not
to its relevance or reliability (Id.)
The Court denies plaintiffs’ motion to exclude in limine Mr. Thomison’s photographs (Dkt.
No. 138, at 12-13).
2. Cache River Watershed-Based Management Plan
Plaintiffs contend that the Court should exclude in limine the Cache River Watershed-
Based Management Plan from FTN Associates (Dkt. No. 138, at 13). Following the pre-trial
hearing, Counsel for plaintiffs notified the Court and opposing counsel that plaintiffs are
withdrawing their objection to the admission of the Cache River Watershed-Based Management
Plan. The Court denies as moot plaintiffs’ motion to exclude in limine the Cache River Watershed-
Based Management Plan (Id.).
3. Engineering Services Contract From B.A. Engineering
Plaintiffs contend that the Court should exclude in limine the Engineering Services
Contract from B.A. Engineering because it is an engineering report that defendants did not obtain
for purposes of this litigation and because defendants have not designated anyone from B.A.
Engineering as an expert in this matter (Dkt. No. 138, at 13). Plaintiffs acknowledge that
defendants have listed Bernie Auld, whose signature appears on the Engineering Service Contract,
as a potential witness, but they assert that defendants do not have an expert who can testify
regarding the information in the Engineering Services Contract (Id., at 13-14).
Defendants assert that they seek to use the Engineering Services Contract with B.A.
Engineering as an exhibit or as a demonstrative aid to ensure that “the jury is aware of the dredging
project which will commence immediately on the East Cache River and the West Cache River
Slough providing for dredging of both ditches of two feet of sedimentation from each streambed
to alleviate flooding in the area (Dkt. No. 142, ¶ 28).
The Court denies plaintiffs’ motion to exclude in /imine the Engineering Services Contract
from B.A. Engineering (Dkt. No. 137).
IV. Conclusion
For the above reasons, the Court grants in part and denies in part defendants’ motions in
limine and grants in part and denies in part plaintiffs’ second omnibus motion in limine (Dkt. Nos.
134, 137).
It is so ordered, this the 12th day of November, 2021.
tu sta A. Palin
istine G. Baker
United States District Court Judge
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