United States ex rel. Landis v. Tailwind Sports Corp., Case No. 10–cv–976 (CRC)

• Decision Date: 28 November 2017
• Docket Number: Case No. 10–cv–976 (CRC)
• Citation: 292 F.Supp.3d 211
• Parties: UNITED STATES of America EX REL. Floyd LANDIS, Plaintiff, v. TAILWIND SPORTS CORP., et al., Defendant.
• Court: U.S. District Court — District of Columbia

292 F.Supp.3d 211

UNITED STATES of America EX REL. Floyd LANDIS, Plaintiff,

v.TAILWIND SPORTS CORP., et al., Defendant.

Case No. 10–cv–976 (CRC)

United States District Court, District of Columbia.

Signed November 28, 2017

Lani Anne Remick, Pro Hac Vice, Paul D. Scott, Pro Hac Vice, Jon Linden Praed, Law Offices of Paul D. Scott, P.C., San Francisco, CA, for Plaintiff.

Marc S. Harris, Pro Hac Vice, Margaret E. Dayton, Pro Hac Vice, Scheper Kim & Harris LLP, Los Angeles, CA, Elliot Remsen Peters, Pro Hac Vice, Sharif E. Jacob, Pro Hac Vice, Elizabeth K. McCloskey, Pro Hac Vice, John W. Keker, R. James Slaughter, Keker, Van Nest & Peters LLP, San Francisco, CA, John Patrick Pierce, Themis PLLC, Robert David Luskin, Paul Hastings LLP, Benjamin Dalrymple Wood, Squire Patton Boggs (US) LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER, United States District Judge

Before the Court are several motions in limine filed by the Government and Defendant Lance Armstrong. In this Order, the Court will resolve most of the parties' motions. A separate Memorandum Opinion and Order will address the remaining motions, specifically those concerning the admissibility of the Government's and Armstrong's proposed expert witnesses (ECF Nos. 557, 558, and 559).

1. Government's Motion in Limine to Exclude References to Treble Damages/Civil Penalties (ECF No. 561)

The Government requests that the Court exclude any references at trial to the False Claim Act's treble damages or monetary penalties, see 31 U.S.C. § 3729(a). The Court agrees that information concerning treble damages or potential monetary penalties should be excluded because the jury plays no role in multiplying damages or setting monetary penalties. As the Supreme Court has explained, in a False Claims Act case the jury's "instruction is to return a verdict for actual damages, for which the court alone then determines any multiplier, just as the court alone sets any separate penalty." Cook Cty. v. United States ex rel. Chandler, 538 U.S. 119, 132, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003). In analogous statutory contexts, "[t]he majority rule is that it is error for a court to instruct a jury that it will subsequently treble any damages the jury awards." Brooks v. Cook, 938 F.2d 1048, 1052 (9th Cir. 1991) ; see also HBE Leasing Corp. v. Frank, 22 F.3d 41, 45 (2d Cir. 1994) ("[V]irtually every other jurisdiction views such mentioning of treble damage provisions, in both the RICO as well as the antitrust contexts, as improper."). Consistent with this principle, judges in this district ordinarily exclude references to treble damages or civil monetary penalties in False Claims Act cases. See, e.g., United States ex rel. Scutellaro v. Capitol Supply, Inc., No. 10-cv-1094, 2017 U.S. Dist. LEXIS 153654 (D.D.C. Sept. 20, 2017); United States ex rel. Miller v. Bill Harbert Int'l Constr., Inc., No. 95-cv-1231, 2007 WL 851868, at *1–2 (D.D.C. May 14, 2007). The Court will do so here too.

2. Government's Motion to Exclude References to Selective Prosecution (ECF No. 562)

The Government requests that the Court exclude references by Armstrong to selective prosecution. Armstrong has clarified that he does not intend to pursue a selective prosecution defense, so the Court will deny the Government's motion as moot.

3. Government's Motion in Limine to Exclude References to Relator's Character or Motivation (ECF No. 563)

The Government moves the Court to exclude references at trial to Relator Floyd Landis's character or his motivation for filing this qui tam action, including the fact that he stands to receive a share of any monetary award in this case. It contends that, because it does not plan to call Landis as a witness, Landis's character and motivation are not relevant to any issues in the case and, alternatively, that evidence of his character and motivation would be misleading, confusing, and prejudicial. Armstrong responds that he plans to call Landis because, as the original source of the allegations in the complaint, Landis can provide testimony relevant to the widespread nature of PED use in cycling, and evidence of Landis's bias is relevant to his credibility as a witness.

While the Court will not permit Armstrong to call Landis solely for the purpose of attacking his character or highlighting his motivation for filing the qui tam action, it will allow Armstrong to call Landis for other, non-character-related purposes. For example, the Court agrees that Landis can be called to testify about PED use by USPS riders other than Armstrong, which is relevant to Armstrong's statute of limitations defense. Depending on the substance of Landis's testimony, the Court will allow Armstrong some opportunity to impeach him on grounds of bias or truthfulness. See, e.g., Bill Harbet Int'l Constr., Inc., 2007 WL 851868, at *1 ("[T]he fact that relator has a significant financial interest in this litigation is fair game for cross-examination, as it pertains to relator's potential bias."); cf. Scutellaro, 2017 U.S. Dist. LEXIS 153654, at *3 (evidence of relator's credibility irrelevant where relator had no intention of testifying at trial). The Court will, however, carefully police the bounds of this cross-examination under Rule 403 and Rule 611.

4. Government's Motion in Limine to Exclude Evidence of PED–Use by Non–USPS Riders (ECF No. 565)

The Government seeks to exclude reference to PED use by non–USPS riders.

Armstrong counters that this evidence is relevant and admissible under Rule 403. As the Court discusses at more length in its Memorandum Opinion and Order on the parties' expert witnesses, evidence of PED use by non–USPS riders is relevant to Armstrong's statute of limitations defense and materiality, but not to causation. Because this evidence is admissible for one purpose but not another, the Government will be entitled to a limiting instruction if it so desires. See Fed. R. Evid. 105.

The Court also reiterates the discussion in its expert-witness ruling on the time period of PED use by non–USPS riders. While PED use contemporaneous with the Government's sponsorship and subsequent events is probative of the statute of limitations defense and does not pose a risk of unfair prejudice or undue delay that substantially outweighs that probative value, non-contemporaneous PED use has a much lower probative value and poses a significant risk of undue delay and unfair prejudice. As such, at trial the Court will carefully enforce the limits of Rule 403 with respect to this category of evidence. See Fed. R. Evid. 403 (allowing for exclusion of relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, undue delay, or wasting time).

5. Armstrong's Motion in Limine to Exclude Evidence Regarding Actual Damages (ECF No. 566)

Armstrong also seeks to exclude evidence regarding the Government's actual damages. He contends that the Government continues to rely on a prohibited theory of damages and has failed to present sufficient evidence to provide a non-speculative basis for the jury to calculate the Government's actual damages. The Court discusses the relevant case law on proof of damages in its Memorandum Opinion and Order on the parties' expert witnesses and incorporates that discussion here. In short, the Government has provided a sufficiently non-speculative framework for the jury to calculate damages under the theory of damages outlined in the Court's summary judgment ruling. The Court will therefore deny Armstrong's motion.

6. Armstrong's Motion in Limine to Exclude the USADA Decision (ECF No. 566)

Armstrong seeks to exclude the decision of the U.S. Anti–Doping Agency ("USADA") barring him from professional cycling, arguing that the decision is inadmissible hearsay and, even if it were admissible, should be excluded under Rule 403. The Government responds that it intends to use the USADA decision only for cross-examination, impeachment, or refreshing the recollections of witnesses. Because the Government has said it does not intend to use the USADA decision in its case-in-chief, the Court will defer resolution of any objections to the Government's use of the USADA decision until such time as the Government seeks to use it.

7. Armstrong's Motion in Limine to Exclude Evidence Contradicting USPS's Rule 30(b)(6) Testimony (ECF No. 566)

Armstrong seeks to preclude the Government from introducing any evidence that contradicts deposition testimony of a witness—a DOJ paralegal named Brett Elliot—who the Government designated as its representative under Federal Rule of Civil Procedure 30(b)(6). He contends that the Government was bound by this testimony and that Rule 30(b)(6) bars the introduction of any evidence inconsistent with that testimony. The Government insists that it plans to introduce no such contradictory evidence and that, even if it did, Rule 30(b)(6) does not prevent the introduction of evidence that differs from the designee's testimony.

The Court will deny Armstrong's motion. For one, there is no general principle that the Government may not introduce evidence that contradicts or expands on Rule 30(b)(6) testimony. In arguing to the contrary, Armstrong relies primarily on Rainey v. American Forest & PaperAss'n, 26 F.Supp.2d 82 (D.D.C. 1998). In that case, after two designees of the defendant corporation had been deposed, the defendant submitted an affidavit from a former employee that contradicted the deposition testimony on a crucial factual issue. Id. at 93–94. The court declined to consider that affidavit on summary judgment, explaining that, "[u]nless it can prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different allegations that could have been made at the time of the 30(b)(6) deposition." Id. at 94.

Notwithstanding the holding of Rainey, the broad principle that testimony of a Rule 30(b)(6) representative binds the designating entity has been expressly repudiated...