UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

OHIO A. PHILIP RANDOLPH )

INSTITUTE, et al., ) No. 1:18cv357

)

Plaintiffs, ) ORDER GRANTING IN PART AND

) DENYING IN PART INTERVENORS’

) OMNIBUS MOTION IN LIMINE

v. )

)

RYAN SMITH, et al., )

)

Defendants. )

_________________________________

Before: Moore, Circuit Judge; Black and Watson, District Judges.

This case is before the Court on Intervenors’ omnibus motion in limine. (Doc. 

149-1). Intervenors ask the Court to exclude two categories of evidence: (1) evidence 

that partisan gerrymandering is a cause of political polarization in the United States, and 

(2) William S. Cooper’s (“Mr. Cooper”) supplemental expert report.

I. STANDARD OF REVIEW

A motion in limine is “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). Courts generally use such motions “to ensure evenhanded and 

expeditious management of trials by eliminating evidence that is clearly inadmissible for 

any purpose.” Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 

2004) (citation omitted). The Court derives its authority to rule in limine from its 
2

inherent authority to manage trials. See Luce, 469 U.S. at 41 n.4. But a ruling on a

motion in limine, is “no more than a preliminary, or advisory, opinion . . . . [and] the 

district court may change its ruling at trial for whatever reason it deems appropriate.” 

United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994).

Trial courts are hesitant to exclude broad categories of evidence on a pretrial basis 

because the context of trial provides a far better viewpoint from which to assess all of the 

elements pertaining to admissibility. Black v. Columbus Pub. Schs., No. 2:96-CV-326, 

2007 WL 2713873, at *2 (S.D. Ohio Sept. 17, 2007). Consequently, the Court will 

exclude evidence pursuant to a motion in limine only if the evidence is clearly

inadmissible. Wilson v. Hill, No. 2:08–cv–552, 2013 WL 210285, at *1 (S.D. Ohio Jan. 

18, 2013). If the movant fails to meet this high standard, a Court should defer evidentiary 

rulings so that the issues may be resolved in the context of a trial. See Ind. Ins. Co., 326 

F. Supp. 2d at 846. 

II. ANALYSIS

A. Partisan Gerrymandering and Political Polarization

Intervenors first move to exclude any evidence or testimony that partisan 

gerrymandering is a cause of political polarization in the United States. Intervenors 

contend that such a proposition could be supported only by expert testimony, and they 

contend that none of Plaintiffs’ experts has offered such an opinion. Intervenors 

specifically argue that Professor Christopher Warshaw (“Professor Warshaw”), one of 

Plaintiffs’ experts, opined only that “political polarization magnifies the effect of partisan 

gerrymandering on impacted voters by increasing the ‘difference’ between Republican 
3

and Democratic politicians’ policy views and decreasing citizens’ trust in their 

representatives,” (Mot. 5, Doc. 149-1), and not that partisan gerrymandering causes 

political polarization. Thus, they contend, none of Plaintiffs’ experts’ reports offered an 

opinion that partisan gerrymandering causes political polarization, and evidence of such 

should be excluded from trial.

Plaintiffs respond that they “have not and do not intend to render this opinion at 

trial, either through an expert or otherwise.” (Resp. 2, Doc. 174). Rather, Plaintiffs 

assert, they intend to offer Professor Warshaw’s opinion that, “because of congressional 

polarization, when an individual’s preferred candidate loses an electoral challenge due to 

gerrymandering, there are profound effects on that individual’s representation in 

Congress.” (Id. at 2–3). 

The parties’ quoted language above shows that they similarly characterize the

opinion Professor Warshaw has offered in this case. Indeed, the Court has reviewed 

Professor Warshaw’s report and agrees that his opinion concerns the effects of partisan 

gerrymandering and that he has expressly disavowed any opinion that partisan 

gerrymandering causes political polarization. (Warshaw Rpt. 3-5, 33, 37, 39-43, Doc. 

149-2; Warshaw Dep. 168:2-20, Doc. 149-3). Given that he has not opined in his report 

that partisan gerrymandering causes political polarization in the United States, and 

especially given Plaintiffs’ representation that they do not wish to introduce evidence to 

that effect, Intervenors’ motion in limine is GRANTED in this respect.

Nothing in this Opinion and Order should be construed as excluding Professor 

Warshaw’s opinion regarding political polarization’s effect on partisan gerrymandering 
4

and the impact it has on an individual’s representation in Congress. Although Intervenors 

did not concede the reliability or accuracy of Professor Warshaw’s opinion (Mot. 5, Doc. 

No. 149-1), they did not seek to exclude the same in either their motion in limine or via a 

Daubert motion. 

B. Mr. Cooper’s Supplemental Report 

Intervenors also move to exclude the supplemental report of Plaintiffs’ expert, Mr. 

Cooper. Intervenors contend that although Mr. Cooper’s report is presented as a 

“rebuttal” or “supplemental” report, the report includes “two never-before-disclosed 

‘hypothetical plans’ and 30 pages of supporting material” not relied upon in Mr. Cooper’s 

original expert report. (Mot. 6–7, Doc. 149-1). Intervenors further argue that the report 

is not a rebuttal report because it does not identify what, specifically, the new data rebuts 

and because the new hypothetical plans do not rebut Dr. M.V. Hood III’s (“Dr. Hood”) 

criticism of the proposed map (“Proposed Plan”) offered in Mr. Cooper’s initial report. 

(Id. at 9). Moreover, because Intervenors contend that Mr. Cooper’s supplemental report 

is, in fact, a new opinion, they assert that it should have been disclosed by Plaintiffs’

initial expert report deadline and is, therefore, untimely. 

Plaintiffs counter that Mr. Cooper’s supplemental report was written “in response 

to points raised by Dr. M.V. Hood relating to incumbency and core retention in Section 

III (pp. 4-10) of his November 12, 2018 report.” (Cooper Supp. Rpt. ¶ 1, Doc. 149-5).

1

 

The Court agrees.

 

1 Incumbent non-pairing (avoiding pitting incumbents against one another when the map is reconfigured) and maintaining a core number of constituents are two of the traditional redistricting 
5

Pursuant to Federal Rule of Civil Procedure 26, an expert witness is required to 

provide in his or her written report, as relevant, a complete statement of all opinions the 

witness will express, the basis for those opinions, and the facts and data considered by the 

expert in forming that opinion. Fed. R. Civ. P. 26(a)(2)(B). A party is required to follow 

the Court’s established deadlines for disclosure, or, if none, the default deadlines 

established in Rule 26. See Fed. R. Civ. P. 26(a)(2)(D). 

“Rebuttal testimony is responsive to new information by the other party.” Polec v. 

Nw. Airlines, Inc. (In re Air Crash Disaster), 86 F.3d 498, 528 (6th Cir. 1996); see also

E.E.O.C. v. Tepro, Inc., 133 F. Supp. 3d 1034, 1047 (E.D. Tenn. 2015) (“Rebuttal experts 

can properly ‘respond[] to the content of [the original] expert witness’ report and 

opinions.’”) (citation omitted). Rebuttal reports “may not advance new arguments or new 

evidence outside the scope of the opposing expert’s testimony.” Bentley v. Highlands 

Hosp. Corp., No. 15-cv-97, 2016 WL 5867496, at *5 (E.D. Ky. Oct. 6, 2016) (internal 

quotation marks and citations omitted). But “[a] rebuttal expert may cite new evidence 

and data so long as the new evidence and data is offered to directly contradict or rebut the 

opposing party’s expert.” Glass Dimensions, Inc. ex rel. Glass Dimensions, Inc. Profit 

Sharing Plan & Tr. v. State Street Bank & Tr. Co., 290 F.R.D. 11, 16 (D. Mass. 2013)

(collecting cases).

2

 The reviewing Court must look past labels and conclusions to 

 

principles that both Dr. Hood and Mr. Cooper used in forming their opinions. (See Cooper Rpt.

¶ 34, Doc. 149-4; see also Hood Rpt. 4, Doc. 174-9). 

2 See also TC Sys. Inc. v. Town of Colonie, 213 F. Supp. 2d 171, 180 (N.D.N.Y. 2002) 

(interpreting phrase “same subject matter” in Rule 26(a)(2)(C)(ii) (the former version of 
6

determine whether the report is truly provided in rebuttal. Bentley, 2016 WL 5867496, at 

*5.

After careful examination of the reports at issue, the Court finds that Mr. Cooper’s 

supplemental report acts as a rebuttal in that it uses hypotheticals to rebut certain 

propositions and criticisms contained in Dr. Hood’s report. Namely, Mr. Cooper’s report 

is directed at Dr. Hood’s use of the 2011 incumbent data and the assertions Dr. Hood

made regarding that data in relation to Mr. Cooper’s Proposed Plan and the 2012 Plan.3

 Dr. Hood’s report analyzes the propriety of enacting Mr. Cooper’s Proposed Plan 

in 2012, instead of the 2012 Plan. (See Hood Rpt. 7, Doc. 174-9). Dr. Hood opined that 

had Mr. Cooper’s Proposed Plan been offered in 2011, it would not have been adopted

because it failed to protect the 2011 incumbents the way the 2012 Plan did. Dr. Hood 

further opined that Mr. Cooper’s Proposed Plan elevates other traditional redistricting 

principles, such as compactness and county-splits, at the expense of incumbency 

protection—which was an “apparent emphasis” of the 2012 Plan. (Hood Rpt. 10, Doc.

174-9). Thus, Dr. Hood uses 2011 incumbency data to show that Mr. Cooper’s Proposed 

Plan does not place enough importance on protecting incumbents compared to the 2012 

Plan. 

Mr. Cooper addresses Dr. Hood’s critiques in his supplemental report, noting that

his Proposed Plan was forward-looking, in that it only considered current incumbents,

 

subsection (D)(ii)) to allow rebuttal experts to use a different methodology to analyze the same 

facts considered by the expert-in-chief).

3 The 2012 Plan refers to the map currently in place in Ohio.
7

and further explaining that “[p]ractically speaking, the residences of 2011 incumbents 

have no relevance for future elections. Nonetheless, hypothetical plans similar to the 

Proposed Remedial Plan, but taking into account 2011 incumbents rather than 2018 

incumbents can also be drawn.” (Cooper Supp. Rpt. ¶ 3, Doc. 149-5). Mr. Cooper 

proceeds to provide two hypotheticals that are similar to the Proposed Plan but that use 

2011 incumbent data to “pair the same number of 2011 incumbents with the same 

partisan configuration (one pairing of two Democrats, one pairing of two Republicans, 

and one pairing of one Democrat and one Republican) as the 2012 Plan.” (Id. at ¶ 5). 

Mr. Cooper opines that, even when using the 2011 incumbency data, his Proposed Plan 

parameters would have been more favorable to both incumbency protection and core 

retention than the 2012 Plan. (See Cooper Supp. Rpt. ¶¶ 8–14, 28-34, Doc. 149-5); (Id. at 

47 (“Requiring that the 2011 incumbents be paired in the same fashion (D-D, D-R, and 

R-R) as in the 2012 Plan did not hinder my ability to draw a map with districts of a 

similar political composition to those I drew in the Proposed Remedial Plan.”)). Thus, 

although Mr. Cooper’s supplemental report does include new hypotheticals, those 

hypotheticals are of the “same subject matter” as Dr. Hood’s report because they respond 

to Dr. Hood’s use of the 2011 incumbents—in particular, incumbent pairings analogous 

to the 2012 Plan—to critique the Proposed Plan. (See Hood Rpt. 10, Doc. 174-9). To the 

extent Intervenors wish to challenge Mr. Cooper’s opinions, they may do so on crossexamination. 
8

Because Mr. Cooper’s supplemental report is a proper rebuttal report, Intervenors’ 

motion to exclude said supplemental report is DENIED.

4

 

III. CONCLUSION

For the reasons stated above, Intervenors’ motion in limine is GRANTED IN 

PART AND DENIED IN PART.

IT IS SO ORDERED.

Date: 2/4/19 /s/ Michael H. Watson

Michael H. Watson

United States District Judge

/s/ Karen Nelson Moore

Karen Nelson Moore

United States Circuit Judge

/s/ Timothy S. Black

Timothy S. Black

United States District Judge 

 

4 Intervenors also seek an order “clarifying for Plaintiffs’ experts that the time for new expert 

analyses, data, exhibits, and the like has ended.” (Mot. 10, Doc. 149-1). Plaintiffs state they will 

not offer any expert evidence that was not properly disclosed. (Resp. 9, Doc. 174). The Court 

declines to issue an order essentially instructing Plaintiffs and their experts “to follow the law.” 

Carte v. Loft Painting Co., No 2:09-cv-178, 2011 WL 2020731, at *3 (S.D. Ohio May 24, 2011). 

Should anyone attempt at trial to offer evidence that was not properly disclosed, the Court trusts 

the parties will raise the issue via contemporaneous objection, and it will be dealt with at that 

time.