ADVANCED PHYSICAL THERAPY, LLC, ZACHARY BALL, TODD LINEBARGER, Plaintiffs, v. APEX PHYSICAL THERAPY, LLC, Defendant Case No. 6:20-cv-03043-RK United States District Court, W.D. Missouri, Southern Division Filed July 26, 2022 Ketchmark, Roseann A., United States District Judge ORDER *1 Before the Court are two motions in limine, one by Plaintiffs (Doc. 184) and one by Defendant (Doc. 179). Both motions have been briefed with suggestions in opposition. (Docs. 198, 191, respectively.) Neither party filed a reply.[1] I. Legal Standard A motion in limine refers to “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see also Motion in Limine, Black's Law Dictionary (11th ed. 2019) (defining“motion in limine” as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial”). United States v. Broussard, ___ F. Supp. 3d ___, No. 19-cr-0101 (SRN/ECW), 2022 WL 703211, at *1 (D. Minn. Mar. 9, 2022). District courts have broad discretion when ruling on motions in limine. Id. (citing United States v. Lasley, 917 F.3d 661, 665 (8th Cir. 2019)). The parties are reminded that rulings in limine are merely interlocutory and subject to change during the course of trial upon proper objection by counsel. Walzer v. St. Joseph State Hosp., 231 F.3d 1108, 1113 (8th Cir. 2000). II. Plaintiffs' Motion in Limine (Doc. 184) A. Unopposed or Uncontested Issues Plaintiffs' seek a motion in limine rulingexcludingthe following, to which Defendantdoes not object: • Reference to any documents supporting Defendant's claim for actual damages in the Underlying Litigation[2] other than those documents produced as Apex 000170-000178; • Testimony or evidence concerning the amount of any attorney's fees incurred by Defendant in this action or the Underlying Litigation; • Expert opinion evidence regarding damages “allegedly sustained by [Defendant] by the conduct of Plaintiffs alleged in the [Underlying Litigation]”; • Fact witnesses not disclosed and opinions of retained experts beyond the scope of the expert reports produced pursuant to Fed. R. Civ. P. 26(a)(2)(B); • Mr. Todd Linebarger's prior criminal convictions;[3] • Any information or documents withheld or notdisclosed or producedby Defendant prior to trial as required under Fed. R. Civ. P. 37(c); • Any comment regarding the failure of a party to call any witness equally available to both parties; • Argument or evidence concerning the wealth of Plaintiffs' family members who are not a party to the lawsuit or to the underlying litigation; and *2 • Evidence concerning or in support of any un-pleaded affirmative defense on which Defendant would bear the burden of proof. Accordingly, Plaintiffs' motion in limine as to Nos. 4, 6, 7, 8(A)-(B), 9, 10, 12, 13, 15 as set forth above is GRANTED as unopposed. B. Remaining Issues in Plaintiffs' Motion in Limine 1. Plaintiffs seek to exclude evidence regarding Plaintiffs' conduct discovered by Defendant after the Dates of Initiation/Continuation of the Underlying Litigation (No. 1) Plaintiffs argue that because “no persons other than Brad Pfitzner or Steve Oravec were involved in the decision” to file the underlying lawsuit, the only relevant evidence as to whether Plaintiffs had probable cause to file and continue the underlying lawsuit is that which was known to Mr. Pfitzner and Mr. Oravec. Thus, Plaintiffs seek to exclude text messages between Plaintiff Todd Linebarger and (1) Taylor Bellegarde and (2) Matt Rachel. Plaintiffs' motion in limine, however, makes no argument explaining how this evidence is irrelevant to the remaining claim for trial in this case – Plaintiffs' claim under the MCTA. “The party seeking to exclude evidence bears the burden of demonstrating that the challenged evidence is inadmissible on any relevant ground.” Mastripolito v. Jeffreson Health-New Jersey, __ F. Supp. 3d __, 2022 WL 334169, at *1 (D.N.J. Feb. 2, 2022) (slip op.) (cleaned up). In light of the Court's summary judgment order, Plaintiffs have not satisfied this burden at this present time. Accordingly, this request is DENIED without prejudice. 2. Plaintiffs seek to exclude purported conduct of Plaintiffs outside the scope of the complaint and first amended complaint filed in the Underlying Litigation (No. 2) Next, Plaintiffs argue that evidence of their wrongful conduct outside the facts alleged in the Underlying Litigation “are not relevant to [Defendant]'s reasonable belief in the merits and legal validity of the [Underlying Litigation].” Plaintiff relies on the Missouri Approved Instruction for malicious prosecution to argue this evidence is not relevant. (Doc. 184 at 4 (citing “M.A.I. 16.06 [1996 Revision] – Malicious Prosecution – Reasonable Grounds – Civil Action”).) Because Plaintiffs' malicious prosecution claim is not a live claim for trial, this request is DENIED as moot. 3. Plaintiffs seek to exclude any reference to, assertion of, or existence of a “Contract” with “Tyson” (No. 3) *3 Plaintiffs assert the only contract Defendant had to perform work for employees of Tyson Foods, Inc. (“Tyson”) was a contract with “National Comp Care, Inc.,” not Tyson Foods, Inc. Therefore, Plaintiffs argue any reference to or argument suggesting Defendant had a contract with Tyson would “mislead and confuse the jurors.” (Doc. 179 at 4-5.) In its response, Defendant does not dispute that the contract to which Plaintiffs refer here was technically a contract with National Comp Care, Inc., but asserts that National Comp Care is a wholly owned subsidiary of Tyson Foods, Inc. (Doc. 191 at 10-11.) At this time, Plaintiffs have not shown that reference to Tyson Foods in this context would result in undue prejudice or would mislead and confuse the jury to require exclusion under Rule 403. Plaintiff's request is DENIED without prejudice. 4. Plaintiffs seek to exclude evidence or argument concerning the propriety or reasonableness of Plaintiffs' attorney's fees in the Underlying Litigation other than those related to the motion practice challenging the court's personal jurisdiction (No. 5) Plaintiffs assert that in a prior discovery dispute hearing, Defendant represented that their only challenge to Plaintiffs' attorney's fees in the Underlying Litigation regarding the affirmative defense that Plaintiffs failed to mitigate their damages only concerned the secondand third motions in the Underlying Litigation that challenged the court's personal jurisdiction. Plaintiffs argue here that because Plaintiffs were not permitted to conduct“discovery concerning[Defendant]'s attorney fees,” Defendant “should not now ... be permitted to challenge Plaintiffs' attorney fees beyond” the second and third motions in the Underlying Litigation. (Doc. 184 at 6 (emphasis added).) In response, Defendant argues that if Plaintiff is allowed to elicit expert testimony regarding the reasonableness of the fees Plaintiffs incurred in the Underlying Litigation, Defendant should be entitled to present evidence regarding the same. (Doc. 191 at 12.) However, the Court has already ruled it will exclude expert testimony regarding the reasonableness of Plaintiffs' attorney's fees in the Underlying Litigation. (See Doc. 237 at 3-4 (granting Defendant's motion in limine to exclude this expert testimony).) At the prior discovery dispute hearing referenced by Plaintiffs, the Court indicated that it “[does not] see the relevance of [Defendant's] attorney fees at this point regarding [Plaintiffs'] claim that it can help counter [Defendant's] assertion that [Plaintiffs] failed to mitigate.” (Doc. 110 at 28:9-12.) Nonetheless, to the extent Plaintiffs' request seeks to exclude evidence or argument as to the reasonableness of Plaintiffs' attorney's fees in the Underlying Litigation regarding the affirmative defense of failure to mitigate damages, Plaintiffs' request is GRANTED. Otherwise, Plaintiffs' request is DENIED without prejudice. 5. Plaintiffs seek to exclude opinions from non-retained expert Brad Pfitzner pursuant to Fed. R. Civ. P. 26(a)(2)(C)'s disclosure requirement (No. 8(C)) Plaintiffs seek to exclude the non-retained expert testimony of Brad Pfitzner because Defendant failed to provide an adequate “summary of the facts and opinions to which [Mr. Pfitzner] is expected to testify” as required under Rule 26(a)(2)(C)(ii). In their motion in limine, Plaintiffs state that Defendant provided the following disclosure as to Mr. Pfitzner: Mr. Pfitzner is expected to provide opinion testimony concerning the subject of physical therapy business operations, trade secrets, proprietary documents, marketing approaches and strategies in the physical therapy business, payment delays from insurance, Medicare and Medicaid programs, the importance of seeking enforcement of restrictive covenants and protecting trade secrets, referral contacts, proprietary documents and marketing approaches and the approach to expansion of physical therapy businesses from a single location to multiple locations. Mr. Pfitzner is further expected to provide opinion testimony concerning the impact the COVID-19 pandemic on the physical therapy business. *4 (Doc. 184 at 9.) Defendant maintains this disclosure satisfies the summary requirement under Rule 26(a)(2)(C)(ii). Rule 26(a)(2) provides the disclosure requirements regarding expert testimony. Retained experts (or witnesses “specially employed to provide expert testimony” or those “whose duties as the party's employee regularly involve giving expert testimony”) must provide an extensive written report prior to trial. Rule 26(a)(2)(B). For non-retained experts, however, the required disclosure under Rule 26(a) is much less onerous. The rule only requires the disclosure of a non-retained witness state two things: (1) “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705,” and (2) “a summary of the facts and opinions to which the witness is expected to testify.” Rule 26(a)(2)(C). A party's failure to satisfy the expert disclosure requirements under Rule 26(a) may result in an appropriate sanction under Rule 37, including exclusion at trial of the information or witness not properly disclosed. Rule 37(c)(1); see also Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 702 (8th Cir. 2018) (“The disclosure mandates in Rule 26 are given teeth by the threat of sanctions in Rule 37.”) (citation omitted). Even if Defendant's Rule 26(a)(2)(C) disclosure as to Mr. Pfitzner does not satisfy the summary requirement,[4] however, Plaintiffs have not demonstrated at this point that the harsh sanction of exclusion of Mr. Pfitzner's expert testimony is warranted here. See Rule 37(c)(1) (“If a party fails to provide information or identify a witness as required by Rule 26(a) ... the party is not allowed to use that information or witness ... at a trial, unless the failure was substantially justified or is harmless”) (emphasis added); White v. CitiMortgage, Inc., No. 15-0289-CV-W-SRB, 2018 WL 4926306, at * (W.D. Mo. Oct. 10, 2018) (district courts have “wide discretion” under Rule 37(c) to determine the appropriate remedy or sanction under the circumstances and should consider factors including, among others, whether the failure to comply with the disclosure requirements resulted in surprise and prejudice to the opposing party, the relative importance of the non-disclosed information or testimony,and any disruption the information or testimony would cause for the efficiency of the trial) (citation and quotation marks omitted). Plaintiffs' request is DENIED without prejudice. 6. Plaintiffs seek to prohibit Defendant from eliciting attorney-client communications between Wade Early (Plaintiffs' counsel in the Underlying Litigation) and Plaintiffs (No. 11) *5 Plaintiffs argue that “[n]one of the[ ] topics or opinions on which Mr. Early will offer testimony require the disclosure of attorney-client communications.” (Doc. 184 at 11.) Plaintiffs state the disclosures for Mr. Early included that he would opine if called to testify: (1) that the motions related to personal jurisdiction in the Underlying Litigation were procedurally proper and necessary; (2) that Defendant's claims in the Underlying Litigation were groundless and lacked probable cause; (3) that Defendant was unable to produce documents or facts supporting its claims in the Underlying Litigation; (4) that Defendant abandoned its claim for compensatory damages in the Underlying Litigation; (5) that Defendant's abuse of process was intended to cause and did cause Plaintiffs unnecessary expense; (6) that the Underlying Litigation was prosecuted and continued in bad faith, with malice, and without probable cause; (7) that Defendant did not have a proprietary or confidential interest in documents underlying its claims in the Underlying Litigation; (8) that the Underlying Litigation terminated in Plaintiffs' favor; (9) that the attorney's fees Plaintiffs incurred in the Underlying Litigation were necessary and reasonable; and (10) that Plaintiffs sustained damages beyond ordinary expenses in litigation. (Id. at 10-11.) Defendant states in its response it “[d]oes not intend to otherwise seek to elicit testimony from Plaintiffs or [Mr.] Early that is protected by the attorney-client privilege” beyond questioning Mr. Early regarding the basis of his opinions. (Doc. 191 at 14, 14 n.8.) It is difficult to categorially say at this stage thatn one of Mr. Early's expert opinions are based on anything for which Mr. Early could invoke attorney-client privilege. Defense counsel should attempt in good faith to identify any questioning that would likely elicit the invocation of attorney-client privilege and should approach the bench before proceeding with such questioning. Plaintiffs' request is DENIED without prejudice. 7. Plaintiffs seek to exclude Advanced's current employment agreements (No. 14) Finally, Plaintiffs seek to exclude Advanced's current Confidentiality, Non-Solicitation and Non-Competition Agreements because, they argue, these agreements are not relevant and otherwise would violate Federal Rule of Evidence 403 as they would be more prejudicial than probative. Defendant initially argues these agreements are relevant to the non-retained expert testimony by Plaintiff Zach Ball and Jamie Ball regarding the proprietary and confidential nature of Defendant's documents in the Underlying Litigation. (Doc. 191 at 14.) In the Court's previous order ruling on the parties' other motions in limine, the Court denied Defendant's motion to exclude the expert testimony of Plaintiff Ball and Ms. Ball based on Plaintiffs' representation that neither will testify at trial as expert witnesses regarding this matter specifically. (Doc. 237 at 4.) In addition, Defendant argues these employment agreements are relevant to Plaintiffs' malicious prosecution claim and specifically the probable-cause element of that claim. (Doc. 191 at 15.) Because the Court granted summary judgment for Defendant on Plaintiffs' malicious prosecution claim, however, these arguments are moot. As Plaintiffs do not explain how the employment agreements are otherwise irrelevant to the remaining MCTA claim, they have not satisfied their burden in this motion in limine. See Mastripolito, 2022 WL 334169, at *1. Plaintiffs also argue the Advanced's current employment agreements would be more prejudicial than probative, misleading, and confusing because those agreements are governed by Missouri law, whereas the employment agreement in relation to the Underlying Litigation was governed by Illinois law. “Generally, the balance of Rule 403 weighing should be struck in favor of admission.” Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 885 (8th Cir. 2006) (citing Block v. R.H. Macy & Co., Inc., 712 F.2d 1241, 1244 (8th Cir. 1983)). At this juncture, Plaintiffs' request is DENIED without prejudice. III. Defendant's Motion in Limine (Doc. 179) A. Unopposed or Uncontested Issues Defendant seeks a motion in limine ruling excluding the following, to which Plaintiffs do not object: • Testimony of witnesses not properly identified in Plaintiffs' Rule 26 disclosures or in response to Defendant's discovery requests; and • Introduction of responsive documents not properly identified in Plaintiffs' Rule 26 disclosures or in response to Defendant's discovery requests. Accordingly, Defendant's motion in limine as to Nos. 1 and 2 is GRANTED as unopposed. B. Issues for which Plaintiff will obtain prior permission from the Court Additionally, Plaintiffs agree to “obtain permission of the Court before introducing or eliciting evidence, or referencing” the following: • The personal wealth or assets of Brad Pfitzner and Steve Oravec; • Prior settlement discussions between the parties; and • The existence of insurance or any lack thereof. *6 Subject to Plaintiffs' representation above, Defendant's motion in limine as to Nos. 5, 6, and 7 is DENIED without prejudice. C. Remaining Issues in Defendant's Motion in Limine 1. Defendant seeks to exclude testimony related to contract interpretation or legal conclusions regarding the contracts between the parties, the outcome of the Underlying Litigation, or claims before the Court (No. 3) Initially, the Court notes that Defendant's request is overly broad. See Morton v. Fort Madison Cmty. Hosp., No. 3:09-v-179 RP-TJS, 2011 WL 13228431, at *1 (S.D. Iowa Aug. 16, 2011) (“broad, unspecified request[s] [are] not properly before the Court on a motion in limine”). Additionally, questions asked at trial that call for improper legal conclusions or testimony that lacks a proper foundation can be addressed at trial and are best reserved for trial. Trafficware Grp., Inc. v. Sun Indus., L.L.C., No. 15-106-SDD-EWD, 2016 WL 10516726, at*2 (M.D. La. Dec. 5, 2016). For these reasons, Defendant's request is DENIED without prejudice. 2. Defendant seeks to exclude testimony regarding the wealth, assets, or financial position of Defendant “until showing is made on claim for exemplary damages” (No. 4) Defendant argues its wealth, asserts, or financial position is not relevant until the punitive damages stage of trial. In the Court's prior order addressing the parties' other motions in limine, the Court found that punitive damages were not recoverable in a claim under the MCTA and granted Defendant's motion in limine as to evidence of Defendant's net worth and financial status. Accordingly, Defendant's request is DENIED as moot. 3. Defendant seeks to exclude testimony regarding the reason why any employees left Apex other than Plaintiffs Zach Ball and Todd Linebarger (No. 8) Defendant argues this testimony is not relevant and would only serve to confuse the jury. Defendant relies only on a conclusory assertion that this broad category of testimony should be excluded under the federal rules of evidence, however. Because Defendant has not satisfied its burden to show it is entitled to the relief it seeks, this request is DENIED without prejudice. See Mastripolito, 2022 WL 334169, at *1. 4. Defendant seeks to exclude testimony and evidence regarding arrests and/or criminal convictions of defense witnesses, including retained experts (No. 9) Defendant seeks to exclude this testimony as irrelevant and unduly prejudicial. In their response, Plaintiffs state they “agree to obtain permission from the Court before introducing or eliciting evidence of Brad Pfitzner's Missouri arrests.” (Doc. 198 at 6.) Plaintiffs also argue testimony and evidence related to Brian McGovern's arrest for driving while intoxicated directly bears on his credibility, particularly to the extent Plaintiffs contend Mr. McGovern's deposition testimony was false in several respects. To the extent Plaintiffs seek to impeach Mr. McGovern's testimony at trial in this manner – i.e., regarding his prior criminal history including any arrests or convictions – counsel shouldfirst approach the bench. Subject to the provision above, Defendant's request is DENIED without prejudice. 5. Defendant seeks to exclude testimony and evidence “regarding the land Zach Ball sold during the pendency of the [Underlying Litigation]” (No. 10) *7 Defendant argues that testimony and evidence regarding the sale of land is irrelevant because Plaintiffs are not seeking damages related to the sale of land, but only claim that the sale of the land helped to fund their attorney's fees in the Underlying Litigation. Defendant also asserts this evidence is unduly prejudicial and would confuse the jury. Plaintiffs argue the sale of land, forced by the Underlying Litigation, is relevant to Plaintiff Ball's damages, including his claim for emotional distress. Plaintiffs' theory of damages regarding its sole claim under the MCTA is broad. At this point, the Court does not find the sale of land referenced by Defendant is irrelevant or would be unduly prejudicial or confusing to the jury. Defendant's request is DENIED without prejudice. 6. Defendant seeks to exclude testimony or evidence regarding the “Marketing Log Email” (No. 11) Defendant argues the “Marketing Log Email” sent from Plaintiff Todd Linebarger's gmail account to “bsimpson80@gmx.com” is not admissible because it has not been authenticated. Rule 901 of the Federal Rules of Evidence governs authentication. The standard is low. “To satisfy the requirement of authenticating ... an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Rule 901(b)(4) explains that “[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances” may provide evidence sufficient to satisfy Rule 901(a). As explained by Judge Laughrey: Factors that courts have concluded support authenticity of emails under all the circumstances include the use of the “@” symbolin the emailaddress; thata party's name is included in the email address; that the names of senders and receivers [appear] in the headers and body of the email; the nature of the information contained in the email; and that the content of the email shows the sender is familiar with the underlying facts of the case. Graham v. Noeuy, No. 2:15-cv-04155-NKL, 2016 WL 9045739, at *2 (W.D. Mo. Nov. 21, 2016) (citations omitted). Defendant does not argue that Plaintiffs cannot authenticate the “Marketing Log Email.” Rather, Defendant argues that they have not done so. Based upon Plaintiffs' argument in its response to Defendant's motion in limine as well as their trial brief (Doc. 242), it appears Plaintiffs may be able to authenticate the Marketing Log Email at trial. Because Defendant has not demonstrated that Plaintiffs cannot authenticate the “Marketing Log Email,” it would be improper to exclude the email as a pre-trial matter. Defendant's request is DENIED without prejudice. IV. Conclusion After careful consideration and as set forth above, (1) Plaintiffs' motion in limine (Doc. 184) is GRANTED in part and DENIED in part, and (2) Defendant's motion in limine (Doc. 179) is GRANTED in part and DENIED in part. IT IS SO ORDERED. Footnotes [1] These motions in limine were filed and briefed prior to entry of the Court's order on Defendant's motion for summary judgment. In that order, the Court granted summary judgment in favor of Defendant as to Count I (malicious prosecution) and Count II (abuse of process), and denied Defendant's motion for summary judgment as to Count III (Missouri Computer Tampering Act (“MCTA”)). (See generally Doc. 206.) Thus, following the Court's summary judgment ruling, the only claim that remains for trial is Plaintiffs' MCTA claim. Neither party filed any supplement to these motions in limine after the Court's summary judgment ruling. [2] “Underlying Litigation” refers to the prior 2016 lawsuit Defendant filed against Plaintiffs in Illinois that gave rise to the instant action. (See also Doc. 206 at 4.) [3] Defendant does not contest this request “so long as Plaintiffs are also prohibited from putting on evidence regarding the criminal history of any party or witness to this action.” (Doc. 191 at 17.) In opposing Defendant's motion in limine to exclude testimony or evidence regarding arrests or criminal convictions of defense witnesses, Plaintiffs argue such evidence is admissible, particularly as to one specific defense witness's credibility (Brian McGovern). Rule 609 of the Federal Rules of Evidence governs impeachment by prior criminal conviction. The Court's order granting Plaintiffs' motion in limine as to Mr. Linebarger's criminal conviction should not be understood as foreclosing potential impeachment under Rule 609 or otherwise as may be allowed under the rules of evidence and the law. Notwithstanding, in the event that Defendant seeks to impeach Mr. Linebarger's testimony in this manner at trial, counsel should approach the bench prior to such questioning. See infra § III.C.4 (denying Defendant's motion in limine as to prior arrests or criminal convictions with the same requirement). [4] The caselaw suggests the disclosure may well not satisfy the non-retained expert disclosure requirement under Rule 26(a)(2)(C). See Johnson v. Friesen, No. 8:19-CV-322, 2022 WL 1720163, at *5 (D. Neb. May 27, 2022) (finding insufficient a disclosure that was“little more than identificationsof topics” because it “[did] not provide the main points of the anticipated testimony so that [the opposing party] is informed of the factual and opinion testimony of the treating physician”) (citations omitted); Hughes v. C.R. Bard, Inc., No. 4:19-cv-00736-NKL, 2020 WL 9078128, at *2 (W.D. Mo. Nov. 23, 2020) (a party does not comply with the non-retained expert disclosure requirement by “merely stating the topics that will be discussed at a high level,” but “must contain a summary of the actual facts and opinions that the witness will testify to”) (citations omitted); cf Eggert v. Welcher, No. 19-06118-CV-SJ-BP, 2021 WL 1997165, at *4 (W.D. Mo. Feb. 18, 2021) (finding a disclosure satisfied Rule 26(a)(2)(C)(ii) where the disclosure referenced an attached accident report that contained the expert's opinions as to what caused the accident).