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April 12, 2001


The opinion of the court was delivered by: Keys, Magistrate Judge.


Before the Court are both parties' motions in limine. For the following reasons, this Court grants Defendant's motion in limine to bar Plaintiff's expert witness from testifying; grants Defendant's motion in limine to bar Plaintiff from presenting undisclosed witnesses at trial; grants in part and denies in part Defendant's motion in limine to bar evidence and argument relating to the Plaintiff's claims for "lost opportunity" damages; and denies Defendant's motion in limine to bar Plaintiff from presenting lay opinions of whether or not Plaintiff was properly terminated for misconduct under Sears' policies. Also, for the reasons set forth below, the Court denies Plaintiff's motion in limine to exclude testimony of Evelyn Freeman and other evidence.


This is an action for alleged wrongful termination in violation of § 510 (" § 510") of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140 (West 2000).*fn1 Plaintiff, Steven K. Anglin, brought this action against Sears, Roebuck and Company ("Sears") and Margaret Edidin, a Department Manager at Sears. Sears employed Plaintiff from February 1, 1977 until March 20, 1992, when he was terminated by his supervisor, Ms. Edidin.

According to Mr. Anglin, when Ms. Edidin informed him of his termination, she cited four specific reasons: his display of a "nude picture" on the computer monitor on his desk; his use of the women's washroom on one occasion; his use of obscene language toward another employee; and his having yelled at his immediate supervisor.*fn2 Mr. Anglin maintains that Sears characterized these alleged actions as "wilful misconduct" in order to justify his termination, so Sears would not have to pay him benefits pursuant to a "reduction in force" benefits program entitled 1992 Closed Unit/Reorganization Package (the "Plan"). Therefore, according to Mr. Anglin, he was terminated with the specific intent to interfere with his ERISA rights, in violation of § 510.*fn3


"In general, federal district courts have the power to exclude evidence in limine pursuant to their inherent authority to manage trials." Farley v. Miller Fluid Power Corp., No. 94 C 2273, 1997 WL 757863, at *1 (N.D.Ill. Nov. 24, 1997) (citing Luce v. United States, 469 U.S. 38, 41 fn. 4 (1984)). A motion in limine may be used to insulate the jury from potentially harmful or unfairly prejudicial evidence. McCORMICK ON EVIDENCE, § 52 at 202-203 (4th ed. 1992). However, a court is limited to excluding, in limine, only such evidence that is clearly inadmissible on all possible grounds. Farley, 1997 WL 757863, at *1. As a result, "when admissibility determinations are not clear, evidentiary rulings must be deferred until trial so questions of foundation, relevancy, and prejudice can be resolved in their proper context." Marlow v. Winston & Strawn, No. 90 C 5715, 1994 WL 424124, at *1 (N.D.Ill. Aug. 11, 1994).

A. Defendant's Motion In Limine to Bar Plaintiff's Expert Witness from Testifying at Trial.

This Court grants this motion in limine. On February 2, 2001, this Court denied Plaintiff's Motion for Leave to Complete Damages Expert Discovery, because Plaintiff had failed to produce his expert during discovery, despite the Court's prior extensions of time to complete discovery, as well as Defendants' many requests for Plaintiff's expert's files and deposition. Indeed, as explained in Defendant's Opposition to Plaintiff's Motion to Leave to Complete Expert Discovery, since 1995, Sears had requested, on at least seven separate occasions (six times by letter and at least once by telephone), that Plaintiff produce his expert witness, Sandor Goldstein, for deposition. Although Plaintiff produced Mr. Goldstein's expert report (apparently six days before the Court-ordered discovery cut-off date of January 31, 2000), Plaintiff failed to produce him for deposition, despite the Court having granted a six-week extension of time to complete expert discovery. Nonetheless, Plaintiff has listed Mr. Goldstein on his witness list in the Final Pretrial Order, and, therefore, apparently intends to present him at trial.*fn4

Courts in the Seventh Circuit routinely bar witnesses from testifying at trial, where the witnesses have not been produced in accordance with a court's discovery deadlines, thereby impeding opposing party's opportunity to adequately prepare for trial. See, e.g., Hill v. Porter Memorial Hosp., 90 F.3d 220, 224 (7th Cir. 1996) (affirming district court's barring of plaintiff's expert witnesses, stating that "[a]dherence to established deadlines is essential if all parties are to have a fair opportunity to present their positions. In the absence of a compelling excuse, a district court is well within its discretion to exclude untimely proffered evidence or testimony."); In re Maurice, 21 F.3d 767, 773 (7th Cir. 1994) ("When one party fails to comply with a court's pre-hearing order without justifiable excuse, thus frustrating the purposes of the pre-hearing order, the court is certainly within its authority to prohibit that party from introducing witnesses or evidence as a sanction."); Coclanes v. City of Chicago, No. 93 C 557, 1994 WL 10007, at * 3 (N.D.Ill. Jan. 13, 1994) (barring plaintiff's expert witness from testifying, finding that defendant had been denied opportunity to adequately prepare).

Based on the aforementioned authority, and Plaintiff's failure to produce his expert witness to be deposed in accordance with the Court's deadlines (and extensions), Plaintiff's expert witness is barred from testifying at trial.*fn5

B. Defendant's Motion In Limine to Bar Plaintiff from Presenting Undisclosed Witnesses at Trial.

This motion in limine is also granted for similar reasons. Plaintiff listed four witnesses in his Final Pretrial Order — Randy L. Duncan, Lee R. Emetti, Robert Kator, and Laura Michels — who had never been previously disclosed by Plaintiff, despite repeated requests by Defendant. On or about June 8, 1995, Sears served Plaintiff with interrogatories, which specifically requested, inter alia, the name, address and telephone number of each person with knowledge of the facts referring to any allegations contained in Plaintiff's Complaint. After not receiving answers to its interrogatories, Sears repeatedly asked Plaintiff to respond to discovery. Plaintiff, however, continually insisted that he had already served his interrogatory answers on Sears. Apparently, it was not until the parties' face-to-face pretrial conference, on March 5, 2001 — two months after the close of discovery (and almost six years after Sears' interrogatories were first served on Plaintiff)— that Plaintiff's counsel revealed that Plaintiff had never answered the interrogatories.*fn6 Nonetheless, Plaintiff has listed these four witnesses in the Final Pretrial Order.

Clearly, Sears will be prejudiced if these witnesses are allowed to testify, as Sears has not had adequate time to properly prepare a defense. For instance, Sears was not able to depose these witnesses, as Sears did not know about these witnesses until the Final Pretrial Order, which was well after the close of discovery. The same rationale, discussed supra, about barring Plaintiff's expert witness, Sandor Goldstein, from testifying is equally applicable here, where Plaintiff has failed to comply with court-ordered discovery deadlines. See, e.g., Santiago v. Furniture Chauffeurs, Piano Movers, Packers, and Handlers Local 705, No. 99 C 2886, 2001 WL 11058, at * 7 (N.D.Ill. Jan. 4, 2001) (barring witnesses from testifying because they were not disclosed until after the discovery cut-off date); Scranton Gillette Communications, Inc. v. Dannhausen, No. 96 8353, 1998 WL 566668, at * 3 (N.D.Ill. Aug, 26, 1998) (excluding nine witnesses because plaintiff had not shown diligence during discovery in producing them, and had not shown that allowing them to testify would not be unfair to defendants). Accordingly, witnesses Randy L. Duncan, Lee R. Emetti, Robert Kator, and Laura Michols are barred from testifying.

C. Defendant's Motion In Limine to Bar Evidence and Argument Relating to Plaintiff's Claims for "Lost Opportunity" ...

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