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United States ex rel. Landis v. Tailwind Sports Corp.

United States District Court, District of Columbia

November 28, 2017

UNITED STATES OF AMERICA ex rel. FLOYD LANDIS, Plaintiff,
v.
TAILWIND SPORTS CORP., et al., 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 (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, at *3-5 (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 ...


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