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William F. Shea, LLC v. Bonutti Research, Inc.

United States District Court, Sixth Circuit

May 30, 2013

WILLIAM F. SHEA, LLC, et al., Plaintiffs,


GREGORY L. FROST, District Judge.

This matter is before the Court for consideration of the following Motion in Limine filed by Plaintiff William F. Shea, LLC:

(1) Plaintiff's Motion in Limine to Exclude Testimony of Defendant's Expert Thomas McLeer (ECF No. 168); and
(2) BRI's Opposition to Shea's Motion in Limine to Exclude the Testimony of Thomas McLeer (ECF No. 197).

As set forth in more detail below, the Court DENIES ECF No. 168.

I. Background

Plaintiff William F. Shea, LLC ("Shea") and Avon Equity Holdings, LLC (an affiliate of Shea) brought this action in the Franklin County (Ohio) Court of Common Pleas alleging various causes of action, including breach of contract. (Opinion and Order, ECF No. 135, at PAGEID # 6269.) The case was removed to this Court based on diversity of citizenship. ( Id. ) All parties aside from BRI and Shea have been dismissed. ( Id. )

Shea entered into an agreement with BRI in August 2003 to memorialize an ongoing business relationship in which Shea promoted the inventions and products of BRI and Dr. Bonutti, owner of BRI. ( Id. at PAGEID # 6266.) As a part of this agreement, Shea was to receive certain fees, including commissions on completed transactions, even past the end of the working relationship. ( Id. ) BRI terminated the agreement on October 26, 2007. ( Id. at PAGEID # 6268.) BRI ceased payments to Shea in June 2009. ( Id. )

In June 2012, several Bonutti entities entered an agreement with Acacia Research Group ("Acacia"). (McLeer Report, ECF No. 168-1, PAGEID # 7512.) The agreement was for the purchase of 176 of Dr. Bonutti's patents and patent applications and BRI's interest under several of the licensing agreements currently at issue in this case. ( Id. ) Acacia made an upfront payment to the Bonutti entities of $38.6 million and the parties agreed to assign $4 million of the payment to the existing licensing agreements negotiated by Mr. Shea. ( Id. )

This Court granted summary judgment to Shea on the cause of action for breach of contract and the case is proceeding to trial only on damages on that claim. The allocation of the initial payment in the Acacia transaction is a central issue. Plaintiff Shea now brings this motion in limine to exclude defense expert Thomas McLeer ("McLeer") from testifying on industry custom and practice in regards to the Acacia transaction and various other contracts at issue in the dispute. The trial is scheduled to commence on June 24, 2013.

II. Standard

Although neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure explicitly authorize a court to rule on an evidentiary motion in limine, the United States Supreme Court has noted that the practice of ruling on such motions "has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). The purpose of a motion in limine is to allow a court to rule on issues pertaining to evidence in advance of trial in order to avoid delay and ensure an even-handed and expeditious trial. See Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)). Courts, however, are generally reluctant to grant broad exclusions of evidence in limine, because "a court is almost always better situated during the actual trial to assess the value and utility of evidence." Koch v. Koch Indus., Inc., 2 F.Supp.2d 1385, 1388 (D. Kan.1998); accord Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). To obtain the exclusion of evidence under such a motion, a party must prove that the evidence is clearly inadmissible on all potential grounds. See Ind. Ins. Co., 326 F.Supp.2d at 846; Koch, 2 F.Supp.2d at 1388; cf. Luce, 469 U.S. at 41. "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Ind. Ins. Co., 326 F.Supp.2d at 846. Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded. Id. The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine. Id. (citing United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989)).

III. Discussion

Shea seeks an in limine order to exclude McLeer's testimony in its entirety under Fed.R.Evid. 702. The defense relies on McLeer to offer testimony on industry customs and practices in relation to ...

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