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Lorillard Tobacco Co. v. Elston Self Service Wholesale Groceries

October 21, 2009

LORILLARD TOBACCO COMPANY, A DELAWARE CORPORATION, PLAINTIFF,
v.
ELSTON SELF SERVICE WHOLESALE GROCERIES, INC., AN ILLINOIS CORPORATION, AND MASHHOUR DUKUM, A/K/A MIKE DUKUM, IBRAHIM DUKUM, AND DAVID DUKUM, INDIVIDUALS, DEFENDANTS.



The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER

In anticipation of trial, the parties submitted several motions in limine. The court addresses each motion in turn.

I. LORILLARD TOBACCO COMPANY'S MOTIONS IN LIMINE

A. Plaintiff's Motion In Limine to Exclude References to Defendants' Purported Damages

The parties agree that the first five categories of evidence listed by Lorillard should be excluded, but disagree as to the sixth: namely, "[t]estimony regarding how this lawsuit may have affected Defendants' business." Mot. 2. Defendants claim that this evidence may be relevant to Lorillard's claim for punitive damages.

Lorillard's motion is denied with respect to this sixth category of evidence. The court intends to be vigilant in excluding irrelevant evidence, and encourages plaintiff to be similarly diligent in making appropriate objections. For instance, while defendants' financial condition may become relevant to punitive damages, the relevance of how any conduct by Lorillard, or this lawsuit, caused defendants' financial condition is unclear.

Defendants are further forewarned that by introducing such evidence (even assuming its relevance), they could open the door to evidence Lorillard says it possesses concerning defendants' allegedly fraudulent record-keeping practices. This motion is therefore granted in part, but denied as to the sixth category of evidence. Lorillard should object as appropriate if any such evidence is offered at trial.

B. Plaintiff's Motion In Limine to Exclude Reference to the Size of Lorillard Tobacco Company

This motion is unopposed, and is granted.

C. Plaintiff's Motion In Limine to Exclude Reference to Plaintiff's Law Firm and Rates

This motion is unopposed, and is granted.

D. Plaintiff's Motion In Limine to Exclude References to Smoking and Health Litigation

This motion is unopposed, and is granted.

E. Plaintiff's Motion In Limine to Exclude Reference to the Relative Size of Defendant Elston Self Service Wholesale Groceries, Inc.

Lorillard seeks to exclude evidence regarding the size of defendants' business relative to Lorillard while admitting that such evidence "may be unavoidably introduced at trial." Mot. 1. The motion is overly broad and vague, thereby compelling its denial. However, Lorillard may object if any evidence it seeks to exclude here is offered inappropriately at trial. Assuming appropriate objections, the court will prohibit defendants from, in Lorillard's words, "incit[ing] the Jury, garner[ing] sympathy, and encourag[ing] the Jury to make decisions based on something other than the actual merits." Id. 2.

F. Plaintiff's Motion In Limine to Prohibit Defendants from Calling Cameron M. Nelson as a Witness at Trial

Lorillard seeks to prevent defendants from calling Lorillard's counsel in this case as a witness. The parties agree that Mr. Nelson possesses some, limited relevant non-privileged information, and defendants agree they will not call Mr. Nelson as long as Lorillard does not do so. Instead of simply accepting this agreement, which appears eminently sensible, Lorillard attacks defense counsel. In the midst of this attack, Lorillard states, "Defendants knew full well that Lorillard has no intention of calling Mr. Nelson as a witness during trial -- as indicated by the fact that he is not identified on Lorillard's witness list." Reply 2 (emphasis in original). Sweeping all ...


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