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TRUSTEES, CHICAGO PLASTERING INST. v. J.P. PHILLIPS

United States District Court, N.D. Illinois


TRUSTEES OF THE CHICAGO PLASTERING INSTITUTE PENSION TRUST; CHICAGO PLASTERING INSTITUTE HEALTH AND WELFARE TRUST; LOCAL NO. 5 JOURNEYMEN PLASTERERS' P & B SOCIETY APPRENTICE FUND; CHICAGOLAND CONSTRUCTION SAFETY COUNCIL; LOCAL NO. 5 JOURNEYMEN PLASTERERS' PROTECTIVE AND BENEVOLENT SOCIETY OF CHICAGO, plaintiff
v.
J.P. PHILLIPS, INC., defendant

The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District

ORDER

The district court has referred defendant's two motions in limine to this court for a report and recommendation. Defendant's first motion in limine seeks to bar the possible trial testimony of Pat Deady as to the meaning of an interim reciprocal agreement, and to bar any reference to prior settlement discussions or a prior settlement agreement between the parties. The second motion in limine seeks to bar the testimony of the plaintiff Funds' auditor, Randall Ellis, and his report of delinquency. For the reasons set forth below, we recommend that the district court deny in part and grant in part defendant's motions in limine.

Defendant expects that plaintiff will call attorney Pat Deady to testify at trial regarding the meaning of an interim reciprocal agreement entered into by various trust funds. Defendant moves to exclude this testimony, arguing that the meaning of the agreement is for the court to decide, rendering Mr. Deady's testimony unnecessary. Plaintiffs argue that deciding the admissibility of Mr. Deady's testimony at this juncture would be premature. Plaintiffs agree with defendant that, ultimately, the court must determine the meaning of the agreement. However, plaintiffs assert, and we agree, that if the court finds the agreement ambiguous, Mr. Deady's testimony may be relevant in determining its meaning. See Bidlack v. Wheelbrator Corp., 993 F.2d 603 (7th Cir. 1993). Accordingly, excluding Mr. Deady's testimony at this time would be premature.

  Defendant also seeks to exclude settlement discussions and the settlement reached between the parties in a prior case regarding fund contributions between January 1, 1994 and April 30, 1997. Generally, any past settlements and settlement negotiations will not be relevant to this case. Accordingly, defendant's motion in limine should be granted.

  Next, defendant seeks to exclude the testimony of Randall Ellis and his report of delinquency. The sole ground for defendant's motion is that Ellis does not qualify as an expert witness under Daubert and, therefore, his testimony and report should be excluded. 509 U.S. 579, 593-94 (1993). Plaintiffs respond that they do not intend to call Ellis as an expert witness. Accordingly, defendant's motion in limine should be denied.

  For the reasons set forth above, we recommend that the district court deny defendant's motion in limine as to the testimony of Pat Deady and grant the motion as to evidence regarding prior settlements or settlement negotiations. We also recommend that the district court deny defendant's second motion as to Randall Ellis and his report of delinquency.

20040903

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