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