The opinion of the court was delivered by: RUBEN CASTILLO
Plaintiff Charles Brom ("Brom") sues defendants Bozell, Jacobs, Kenyon & Eckhardt, Inc. and Bozell, Inc. (collectively "defendants" or "Bozell") for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. An amended final pretrial order in this case was filed on August 12, 1994. Trial is set for November 7, 1994. The parties' motions in limine are presently before the court as is defendants' motion for bifurcation.
The court shall first address defendants' motion for bifurcation and then shall address the motions in limine.
Defendants' Motion for Bifurcation
Pursuant to Federal Rule of Civil Procedure 42(b), defendants move to bifurcate the liability and damages phases of the trial. Defendants contend that bifurcation is warranted in the instant case for several reasons: (1) Bifurcation would avoid unduly prejudicing or confusing the jury by presenting evidence of Brom's decade long unsuccessful efforts at finding reemployment; (2) Brom's evidence relating to his damages -- namely expert testimony regarding his projected growth in earnings, replacement earnings, benefit losses and tax effects -- are distinct from his evidence relating to liability; and (3) Bifurcation is appropriate because the damages issue is itself bifurcated, with the jury determining back pay, if any, and the court determining the appropriateness of reinstatement or front pay in lieu of reinstatement.
Rule 42(b) permits bifurcation of any issues for separate trial where such separation is "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." MCI Communications Corp. v. American Telephone & Telegraph Co., 708 F.2d 1081, 1166 (7th Cir.), cert. denied, 464 U.S. 891, 78 L. Ed. 2d 226, 104 S. Ct. 234 (1983). Only one of these criteria need be met to justify bifurcation. Id. The decision to bifurcate the issues of liability and damages for separate trials is committed to the sound discretion of the trial court. Davis v. Freels, 583 F.2d 337, 343 (7th Cir. 1978); Keyes Fibre Co. v. Packaging Corp. of America, 763 F. Supp. 374, 375 (N.D. Ill. 1991).
The court is persuaded that bifurcation of the liability and damages phases will best serve the goal of an efficient and expedient trial. Brom seeks a back pay award of well over one-million dollars. This figure covers Brom's back pay for a period spanning approximately nine years and three months. Brom expects to present expert testimony on the amount of back wages to which he is due. Defendants argue that Brom's million dollar back pay claim is grossly exaggerated as a result of incorrect and unreasonable assumptions made by Brom's expert. Defendants also contend that Brom failed to mitigate his damages. Finally, defendants contend that Brom's successor was terminated within days after a client -- the sole account on which Brom had worked -- withdrew its business from Bozell; and, defendants argue that, even if he had not been previously terminated, Brom would have been terminated at or about the same time that his replacement was terminated -- January 13, 1989. Accordingly, defendants contend that Brom's back pay award, if any, should only be calculated from the date of his termination to January 13, 1989.
See Amended Final Pretrial Order, Ex. I, Defendants' Trial Brief at 14-15. Defendants, like Brom, expect to present expert testimony regarding damages. Indeed, both sides in this case expect to call experts who will testify solely with respect to the issue of the proper damages to be awarded.
It is clear to this court that the damages issues in this case are hotly contested. It appears that the damages evidence will involve relatively extensive testimony on Brom's efforts at finding reemployment over the past nine years, how long Brom would have remained employed by Bozell in light of the loss of his sole account, and such interminable issues as the proper amounts to be awarded for Brom's stock bonus plan, profit sharing and savings, executive wealth accumulation, and other fringe benefits. Moreover, the evidence pertaining to damages appears to be wholly independent of the evidence pertaining to liability. Under these circumstances, the court finds that judicial economy will be best-served by allowing the jury to determine the liability issue before presenting them with the damages evidence. In the event that the jury finds the defendants not guilty of violating the ADEA, bifurcation will have resulted in a substantial savings of time by avoiding the needless presentation of extensive testimony on damages. And, even if the jury finds the defendants to be liable, the court expects that bifurcation will result in savings insofar as the deliberations regarding liability will not be sidetracked by extraneous and potentially confusing evidence relating to Brom's damages.
Accordingly, the court grants defendants' motion to bifurcate the liability and damages phases of this trial, with the understanding that the damages phase will begin immediately, before the same jury, if Brom succeeds in establishing liability.
Federal district courts have the power to exclude evidence in limine pursuant to their authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n.4, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). Guidelines governing motions in limine were recently set forth in Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398 (N.D. Ill. 1993), as follows:
Id. at 1400-01. With these guidelines in mind, we turn to the motions before the court.
Brom's Motion in Limine To Exclude Expert Witness Testimony
Brom moves in limine to exclude certain testimony by defendants' expert witness on damages, Louis J. Perl, and to exclude certain exhibits relating to that testimony.
Although the bifurcation order does not allow this disputed testimony to be introduced during the initial liability trial, the court will address this issue to allow for an efficient transition to the possible damages portion of the trial.
In brief, Brom seeks to exclude Perl's testimony and exhibits because they are based on "improper assumptions drawn from inappropriate ...