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Simplex Inc. v. Diversified Energy Systems Inc.

decided: June 6, 1988.

SIMPLEX, INC., PLAINTIFF-APPELLEE,
v.
DIVERSIFIED ENERGY SYSTEMS, INC., DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Springfield Division, No. 86 C 3030--Richard Mills, Judge.

Bauer, Chief Judge, Coffey, and Kanne, Circuit Judges.

Author: Bauer

BAUER, Chief Judge.

Diversified Energy Systems, Inc. appeals from an adverse jury verdict and challenges the district court's denial of its post-trial motion for judgment non obstante veredicto (judgment n.o.v.) or, in the alternative, for a new trial. Diversified also appeals Judge Mill's exclusion of certain expert testimony as well as evidence regarding other similar lawsuits and disputes involving the plaintiff, Simplex, Inc. We affirm.

I

FACTS

Beginning in March, 1985, Diversified executed a series of contracts with Simplex for the purchase of various electrical generators, control panels, test equipment, oil tanks, and hand pumps, all intended for ultimate resale to the Federal Aviation Administration as part of a larger sales contract. Following the untimely receipt of an allegedly deficient prototype unit, Diversified cancelled a purchase order calling for sixty-nine generator units. Other alleged deficiencies caused Diversified to cancel or repudiate the balance of its purchase orders.

Simplex filed its five-count complaint on January 22, 1986, alleging Diversified's anticipatory and actual breach of the various contracts. In turn, Diversified's answer and counterclaims alleged that Simplex breached the agreements by failing to meet the contract specifications. Following a two-week trial, the jury returned a verdict in favor of Simplex on each of its five counts and against Diversified on its counterclaims.

II

Discussion

A. Exclusion of Diversified's Expert Testimony

During trial, Diversified proffered two of its own employees as experts-Dennis Bogner, a former Simplex employee, and Sangi Narula, Diversified's Chief Engineer. Judge Mills sustained Simplex's objection and refused to permit either employee to give expert testimony because neither had been designated previously as an expert. Judge Mills also found that Bogner was unqualified to render expert testimony due to his lack of formal education or training.

The decision whether to admit evidence is a matter "peculiarly within the competence of the trial court and will not be reversed absent a clear abuse of discretion." Soderbeck v. Burnett County, Wis., 821 F.2d 446, 453 (7th Cir. 1987) (quoting Ellis v. City of Chicago, 667 F.2d 606, 611 (7th Cir. 1981)); see also United States v. Lundy, 809 F.2d 392, 394-95 (7th Cir. 1987) (exclusion of expert testimony is to be affirmed unless "manifestly erroneous"); United States v. Davis, 772 F.2d 1339, 1343-44 (7th Cir.), cert. denied, 474 U.S. 1036, 88 L. Ed. 2d 581, 106 S. Ct. 603 (1985). Although Diversified fails even to allege, much less show, that Bogner was in fact qualified to give expert testimony, it nevertheless argues that his exclusion as an expert witness constitutes an abuse of discretion. Such an anomaly leaves this court with the absurd proposition that refusal to allow an unqualified witness to render expert testimony somehow requires reversal. Diversified's failure to allege Bogner's expert qualifications obviously undermines any challenge to the exclusion of his expert testimony. Its contention that Narula should have been allowed to testify as an expert is equally unavailing.

Diversified argues extensively that Simplex's interrogatory*fn1 requesting the "name and address of each person retained as an expert witness in this case" (emphasis added) did not obligate the disclosure of "in-house" experts. Whatever the merits of such a distinction,*fn2 Diversified nevertheless was obligated to designate its experts pursuant to both a Standing Order of the United States District Court for the Central District of Illinois and by order of Magistrate Evans dated May 2, 1986. Paragraph six of the Standing Order explicitly directs each party to disclose, prior to the final pretrial conference, "names and addresses of witnesses each party intends to call to testify at the trial including the names of expert witnesses." (TR. 765-766.) Although Diversified's pretrial statement listed Bogner and Narula as ...


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