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Wahrmund v. Buschman

United States District Court, E.D. Arkansas, Western Division

June 24, 2019

JOHN WAHRMUND d/b/a WAHRMUND FARMS PLAINTIFF
v.
TERRY BUSCHMAN, RYAN BUSCHMAN, and CATTLE CONNECTIONS, LLC DEFENDANTS AND TERRY BUSCHMAN; and RYAN BUSCHMAN COUNTER-CLAIMANTS
v.
JOHN WAHRMUND d/b/a WAHRMUND FARMS COUNTER-DEFENDANT CATTLE CONNECTIONS, LLC CROSS-DEFENDANT

          ORDER

          Kristine G. Baker United States District Judge

         On June 21, 2019, the Court conducted a pretrial conference with counsel for plaintiff/counter-defendant John Wahrmund d/b/a Wahrmund Farms (“Wahrmund”) and counsel for defendants/counter-claimants Terry Buschman, Ryan Ruschman (collectively the “Buschmans”). The Court notes that cross-defendant Cattle Connections, LLC (“Cattle Connections”) remains unrepresented in this matter and did not appear at the pretrial conference.[1] The Court made the following rulings and addressed the following matters. If the parties and their counsel believe that a door has been opened for introducing the evidence, testimony, and argument addressed and excluded by this Order, counsel are directed to approach the Court before introducing or eliciting such evidence, testimony, or argument before the jury. Before introducing any evidence, testimony, or argument regarding the matters the Court takes under advisement in this Order, counsel are directed to approach the Court and seek a ruling before introducing or eliciting such evidence, testimony, or argument before the jury.

         1. Before the Court is Wahrmund's motion in limine No. 1 (Dkt. No. 73). The Court heard argument on the motion at the pretrial conference. The motion addresses several issues.

         First, the Court grants Wahrmund's motion in limine regarding the prohibition of defendants from referencing the prior litigation concerning John Wahrmund's dispute with a prior feed vendor (Dkt. No. 73, ¶ 1). The Buschmans and Cattle Connections do not object to the Wahrmund's request.

         Second, the Court reserves ruling on Wahrmund's motion in limine regarding the testimony of Ryan Buschman that concerns the alleged statements of a representative of the United States Department of Agriculture (“USDA”) concerning the reasons for the denial of Ryan Buschman's claim for indemnity benefits under a USDA program (Dkt. No. 73, ¶ 2). This motion is related to the Buschmans' objection to Wahrmund's use of the applications for USDA flood benefits (Dkt. No. 75). Accordingly, the Court will address this issue below when addressing the Buschmans' objection to this anticipated testimony.

         Third, the Court takes under advisement Wahrmund's motion in limine regarding the testimony of Ryan and Terry Buschman regarding what John Wahrmund should have done or failed to do under the circumstances when Ryan or Terry Buschman lack first-hand knowledge as to what transpired (Dkt. No. 73, ¶ 3). During the pretrial conference, defendants argued in opposition to this motion that Ryan and Terry Buschman can testify based on their own experience and observations regarding this case and that they have been disclosed as expert witnesses as to certain matters.

         As it discussed in the pretrial conference, the Court acknowledges Ryan and Terry Buschman's ability to testify as to their personal knowledge and observations. Without knowing the scope of testimony Ryan and Terry Bushman intend to offer or the basis for that testimony, the Court is unwilling at this time to rule based on Federal Rule of Evidence 701 regarding the propriety of any anticipated opinion testimony.

         Further, as for Ryan and Terry Buschman offering expert testimony not based on their personal knowledge and observations, the Court notes the requirements under Federal Rules of Civil Procedure 26(a)(2) and the Amended Final Scheduling Order, which set out deadlines for expert disclosures and reports, if required. The Court has not been presented as a part of the record before it with any expert disclosures relating to Ryan or Terry Buschman. Therefore, the Court is unwilling to rule at this time on the scope of Ryan or Terry Bushman's anticipated testimony as purported experts pursuant to Federal Rule of Evidence 702.

         At this time, because the Court takes this portion of the motion under advisement, all parties are directed to refrain from referring to Ryan or Terry Buschman as experts in any area or from discussing any anticipated opinion testimony Ryan or Terry Buschman intend to or may offer without first seeking a ruling from the Court on the propriety and admissibility of that designation or anticipated testimony. To the extent that Wahrmund objects to specific anticipated testimony of Ryan or Terry Buschman on this basis, Wahrmund is directed to approach the bench and to seek a specific ruling in advance from the Court regarding the scope of the witness's anticipated testimony or to make a contemporaneous objection to the testimony.

         Fourth, the Court grants Wahrmund's motion in limine regarding the limitations of defendants' questions concerning the subpoenaed materials from Rabo Agrifinance (Dkt. No. 73, ¶ 4). During the pretrial conference, defendants stated that they will not bring up the subpoenaed materials from Rabo Agrifinance, unless Wahrmund presents the issue first.

         In the Court's Order from September 27, 2018, the Court limited the discovery requests directed to Wahrmund and the command for testimony and production of documents in the subpoena to the time period of November 6, 2014, to January 15, 2016, the relevant time period for this case (Dkt. No. 62, at 3). The Court also limited the scope of the Buschmans' Request For Production No. 1 to documents relating to any bank applications Wahrmund made regarding obtaining “a loan to purchase the cattle from Terry Buschman and/or Ryan Buschman” including the loan applications and all correspondence to the bank from Wahrmund as well as correspondence from the bank during the relevant period as defined by the Court in that Order (Id.).

         Before introducing any evidence, testimony, or argument regarding the Rabo Agrifinance matters, counsel are directed to approach the Court and seek a ruling before introducing or eliciting such evidence, testimony, or argument before the jury. If the parties and their counsel believe that a door has been opened for introducing evidence, testimony, and argument regarding the Rabo Agrifinance, counsel are directed to approach the Court before introducing or eliciting such evidence, testimony, or argument before the jury.

         Fifth, the Court reserves ruling on Wahrmund's motion in limine regarding the introduction of any video, photos, or other evidence not previously produce in discovery pursuant to the Court's scheduling order (Dkt. No. 73, ¶ 5). During the pretrial conference, Wahrmund represented to the Court that this issue has been resolved or may not yet be ripe. To the extent that Wahrumnd objects to any video, photos, or other evidence not previously produced in discovery, Wahrmund is directed to approach the bench and to seek a specific ruling from the Court on the evidence.

         2. Before the Court is the Buschmans' objection to Wahrmund's use of the applications for USDA flood benefits (Dkt. No. 75). Wahrmund responded in opposition to the motion (Dkt. No. 78). The Court also has before it Wahrmund's motion in limine to exclude the testimony of Ryan Buschman regarding the denial of his claim for indemnity benefits under a USDA program (Dkt. No. 73, ΒΆ 2), and the motion to quash subpoena served on a government employee filed by the United States of America (Dkt. No. 86). The Court takes these motions under advisement at this time. Before introducing any evidence, testimony, or argument regarding the matters the Court takes ...


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