University of South Florida Board of Trustees v. United States

In the United States Court of Federal Claims

No. 15-1549C

(E-Filed: April 14, 2021)

)

UNIVERSITY OF SOUTH FLORIDA, )

BOARD OF TRUSTEES, )

)

Plaintiff, )

) Motion in Limine; Timely

v. Disclosure of Witnesses.

)

THE UNITED STATES, )

)

Defendant. )

)

Steven B. Kelber, Bethesda, MD, for plaintiff. Jerry Stouck, Rockville, MD, of counsel.

Walter W. Brown, Senior Litigation Counsel, with whom were Jeffrey Bossert Clark,

Acting Assistant Attorney General, and Gary L. Hausken, Director, Civil Division,

United States Department of Justice, Washington, DC, for defendant. Joshua I. Miller, of

counsel.

OPINION

CAMPBELL-SMITH, Judge.

The court has before it plaintiff’s September 10, 2020 motion in limine to preclude

Brian Bannerman from testifying in this case. See ECF No. 160. Defendant filed a

response in opposition on September 16, 2020, see ECF No. 163, and plaintiff filed its

reply on September 21, 2020, see ECF No. 165. Plaintiff also filed a renewed motion in

limine to preclude Mr. Bannerman’s testimony on March 2, 2021.1 See ECF No. 180.

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In its renewed motion, plaintiff does not request any new or different relief than it

requested in its first, still pending, motion. Compare ECF No. 160 and ECF No. 180. Rather, the

renewed motion appears to be an attempt to prompt the court to rule on the first motion. See

ECF No. 180. Defendant did not file a response to the renewed motion, but because plaintiff

raises no new issues and makes no new argument in the renewed motion, the court deems the

motions fully briefed.

These motions have now been fully briefed and are ripe for decision. The court

has considered all of the parties’ arguments and addresses the issues that are pertinent to

the court’s ruling in this opinion. For the following reasons, plaintiff’s motion in limine

and renewed motion are DENIED.

I. Background

The parties in this case have been conducting discovery since they exchanged

initial disclosures in 2017. See ECF No. 160 at 9. Defendant timely served its initial

disclosures in March 2017, which did not include Brian Bannerman or “any official or

representative from the Jackson Laboratory—the source of the mice made, used[,] and

sold in violation of the patent at issue.” Id. Fact discovery then proceeded with Jackson

Laboratory as a party to the case, but no individuals from the company identified as

having discoverable knowledge. Id. at 9-10.

Fact discovery concluded on September 28, 2018, and the case proceeded to

expert discovery. See id. (citing ECF No. 110 (scheduling order); ECF No. 144

(scheduling order)). Again, neither party identified any expert witness “having any

relationship with” Jackson Laboratory. Id. at 10. According to plaintiff, however,

defendant’s expert Jeffrey Klenk “referenced and relied upon a discussion” with Mr.

Bannerman in his June 12, 2020 report and in his deposition. Id. at 11.

Thereafter, on September 2, 2020, defendant served an Amended Initial

Disclosure on plaintiff “solely to add [Mr. Bannerman] as a fact witness.” Id. at 1. Mr.

Bannerman was added to testify regarding “‘Jackson Laboratory and MMRRC sales and

policies related to the accused mice; competitors to Jackson Laboratory.’” Id. at 1-2

(quoting ECF No. 160-1 at 3). Plaintiff objected to what it called defendant’s “failure to

timely name [Mr.] Bannerman” and “untimely amendment” of its initial disclosure, id. at

13, and filed the motion in limine seeking to exclude Mr. Bannerman’s testimony now

before the court.

II. Legal Standards

A motion in limine functions “‘to prevent a party before trial from encumbering

the record with irrelevant, immaterial or cumulative matters.” INSLAW, Inc. v. United

States, 35 Fed. Cl. 295, 302-03 (1996) (quoting Baskett v. United States, 2 Cl. Ct. 356,

367-68 (1983)). Such motions permit the court “‘to rule in advance on the admissibility

of documentary or testimonial evidence and thus expedite and render efficient a

subsequent trial.’” Id. As the Federal Circuit has noted, however, “in limine rulings are

preliminary in character because they determine the admissibility of evidence before the

context of trial has actually been developed.” Walter Kidde Portable Equip., Inc. v.

Universal Sec. Instruments, Inc., 479 F.3d 1330, 1338 (Fed. Cir. 2007). Thus, rulings on

motions in limine “are subject to change as the case unfolds.” Ultra-Precision Mfg. Ltd.

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v. Ford Motor Co., 338 F.3d 1353, 1359 (Fed. Cir. 2003) (citing Luce v. United States,

469 U.S. 38, 41–42 (1984)).

III. Analysis

In its motion, plaintiff argues that adding Mr. Bannerman as a witness at this time

is “simply too late,” ECF No. 160 at 9, and “contrary to practice and law,” id. at 16.

Specifically, plaintiff argues that, because the issues upon which Mr. Bannerman is

expected to testify “are not matters or issues in dispute,” he must have been added “to

somehow provide support for [defendant’s] Expert Report proffered by Jeffrey Klenk.”

Id. at 2. Thus, plaintiff contends, Mr. Bannerman was added “belatedly but without

excuse” and “should not be permitted to attempt to shore up an improvidently prepared

Expert Report.” Id. at 3; see also id. at 11-13.

Further, according to plaintiff, adding Mr. Bannerman now, two years after fact

discovery closed, is akin to defendant “propos[ing] to reopen fact discovery,” id. at 15,

and would require plaintiff to pursue depositions from “the thirteen

University/commercial partnerships” plaintiff identified as benefitting from the Jackson

Laboratory policies, id. at 18. See also ECF No. 165 at 2 (noting that allowing Mr.

Bannerman to testify would “ensure the need to take an extended round of third-party

discovery and testimony that will last many months”), 6 (“Bannerman’s proposed

testimony . . . presents a clear danger to these proceedings, because it threatens to delay

this matter by months if not years by opening up discovery”). Therefore, citing several

cases from the United States district courts in Pennsylvania and the District of Columbia,

plaintiff concludes that “[t]he 11th hour unjustified and unexcused identification of

Bannerman as a witness, previously of no interest to either party, is simply not

permissible.” ECF No. 160 at 20.

Defendant responds that the rules of this court “expressly address[] this scenario

and expressly allow[]” it to identify a witness after expert disclosure closes. ECF No.

163 at 2 (emphasis in original). Specifically, defendant argues that RCFC Appendix A,

¶ 13(b) requires the parties to exchange a list of witnesses for trial and permits them to

conduct discovery related to “[a]ny witness whose identity has not been previously

disclosed.” Id. at 2-3 (emphasis omitted). Thus, defendant contends, not only is Mr.

Bannerman’s testimony relevant to the issue of damages, but its disclosure of his identity

on September 2, 2020—before the close of expert discovery—was timely under the rules.

See id. at 3-6.

The court agrees with defendant. The rules of this court expressly provide for

disclosure of witnesses not previously identified as part of the parties’ lists of witnesses

identified for trial. See RCFC Appendix A, ¶ 13(b). This court has previously allowed

testimony of witnesses who were similarly timely disclosed pursuant to RCFC Appendix

A, ¶ 13(b). See Scott Timber, Inc. v. United States, 93 Fed. Cl. 221, 224 (2010)

(reviewing cases in which the court has permitted testimony from witnesses not disclosed

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until required by RCFC Appendix A § VI(13)(b) in support of permitting testimony from

timely disclosed witnesses); Globe Savings Bank, F.S.B. v. United States, 61 Fed. Cl. 91,

100-01 (2004) (permitting testimony from two witnesses that were timely disclosed

pursuant to RCFC Appendix A, ¶ 13(b)).

Additionally, in contrast to the cases cited by plaintiff in support of its position,

defendant here timely made its disclosure in September 2020—before expert discovery

closed, before the conference prescribed by RCFC Appendix A, ¶ 13, and well before

trial in this matter will be held. See ECF No. 165 at 3 (citing MicroStrategy, Inc. v.

Business Objects, S.A., 429 F.3d 1344, 1357 (Fed. Cir. 2005) (holding that a disclosure

made at trial was not substantially justified or harmless)); ECF No. 179 at 2 (scheduling

order setting deadline of April 30, 2021, for the parties to file a joint status report

proposing dates for a trial in this matter). Thus, in the court’s view, there is sufficient

time for plaintiff to conduct discovery—as permitted by the rules—related to Mr.

Bannerman’s proposed testimony.

Plaintiff’s argument that “[i]f Bannerman were permitted to testify, and his

deposition were taken, [plaintiff] would have to pursue the depositions of all the entities

it identified to [defendant] back on January 27, 2017—beneficiaries of the [Jackson

Laboratory] policy supporting ‘industrially sponsored academic research,’” ECF No. 160

at 18, is both unexplained and unavailing. Plaintiff does not make clear how taking the

deposition of Mr. Bannerman will necessarily lead to a need to fully reopen fact

discovery to allow for multiple other depositions. Thus, plaintiff’s conclusory assertions

that permitting Mr. Bannerman to testify in this case will necessarily lead to a costly

delay in the trial in this matter are unconvincing. See ECF No. 165 at 6 (plaintiff

asserting without explanation that permitting Mr. Bannerman’s testimony “threatens to

delay this matter by months if not years by opening up discovery”).

Because defendant timely disclosed Mr. Bannerman as a witness in this case in

accordance with the rules of this court, the court denies plaintiff’s motion. This is not to

say, however, that Mr. Bannerman’s testimony will be ruled to be admissible and relevant

at trial—plaintiff may assert challenges to Mr. Bannerman’s testimony at trial in this

matter as appropriate.

IV. Conclusion

Accordingly, for the foregoing reasons, plaintiff’s motion in limine to exclude the

testimony of Mr. Bannerman, ECF No. 160, is DENIED, and plaintiff’s renewed motion

in limine, ECF No. 180, is DENIED.

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IT IS SO ORDERED.

s/Patricia E. Campbell-Smith

PATRICIA E. CAMPBELL-SMITH

Judge

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