Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge
LG's motion in limine to exclude references to Whirlpool's conspiracy theory about the origins of consumer perceptions of the Whirlpool dryer  is granted in part and denied in part.
O[ For further details see text below.] Notices mailed by Judicial staff.
Plaintiff, LG Electronics U.S.A., Inc. ("LG"), has filed a motion in limine ("Motion") seeking to exclude references to Defendant Whirlpool Corporation's ("Whirlpool") "conspiracy theory" regarding LG's purported "no real steam" campaign. For the following reasons, the Court grants the Motion in part and denies it in part.
The Court has already thoroughly summarized the facts underlying this Motion. (See R. 216, 6/15/09 Minute Order at 2-3.) Whirlpool conducted product demonstrations of its Duet(r) Steam dryer to consumers and sales associates between October 2007 and Spring 2008, asking participants to complete feedback forms regarding their perceptions of the dryer. (R. 447, Pl.'s Mot. at 2.) During that time, the person in charge of the demonstrations, Coleman McIntyre, compiled a "Top 5" list to summarize written comments that he received from salespeople involved in the training sessions. (R. 474, Def.'s Resp. Br. at 3.) At one point, the most-frequent response on the feedback forms was that "'there isn't real steam in the washer and dryer. Whirlpool makes false statements about their steam pair.*fn1 '" (R. 447, Pl.'s Mot. at 3 (quoting WHR0100005-10).) Mr. McIntyre testified at his deposition that certain unnamed associates at the training sessions stated "'that the LG rep was saying that our steam wasn't real steam.'" (Id. at 6 (quoting McIntyre Dep. at 92-93); see also R. 474, Def.'s Resp. Br. at 2.)
Erika Vallecorsa worked in Whirlpool's Marketing Department. (R. 474, Def.'s Resp. Br. at 2.) When Mr. McIntyre forwarded Ms. Vallecorsa his "Top 5" list in November 2007, Ms. Vallecorsa responded by forwarding to Mr. McIntyre a document entitled "Armed and Ready." (Id. at 4.) Under its "Armed and Ready" campaign, Whirlpool "identified the top five anticipated questions and remarks that the competition is likely to use to blemish our products and our brand name." (R 447-2, Ex. 4, Field Sales Training FAQ Sheet at 1.) One of the anticipated questions was: "Does Whirlpool's Duet(r) Steam dryer use 'real' steam in the dryer?" (Id. at 2.) Ms. Vallecorsa testified in her deposition that she created the "Armed and Ready" document "in direct response to the feedback we had gotten from sales associates about comments they had received from competition." (R. 474, Ex. J, E. Vallecorsa Dep. Tr. at 130.) According to Ms. Vallecorsa, "LG reps in the marketplace" provided the information to the sales associates. (Id.)
Kwame Green, a salesperson who attended the training sessions, signed a declaration indicating that a number of "unnamed [BrandSmart] trainees [at the demonstrations] 'explained that LG was telling sales associates that Whirlpool's Duet Steam Washer and Dryer lacked real steam, and then asked the trainer for Whirlpool's response.'" (R. 447, Pl.'s Mot. at 5 (quoting Green Decl. at ¶ 10); see also R. 474, Def.'s Resp. Br. at 2.) Jim Birtz, a sales associate at one of Whirlpool's trade customers, is purportedly prepared to testify that he recalls "an unnamed BrandSmart sales associate telling Whirlpool's trainers that LG was the source of [the associate's] 'no real steam' questions." (R. 447, Pl.'s Mot. at 5-6 (quoting Birtz Decl. at ¶ 15).)
Plaintiff LG argues that the purported statements to Mr. McIntyre, Ms. Vallecorsa, and Mr. Green are inadmissible because they have multiple levels of hearsay and are unduly prejudicial and confusing. Recognizing that it faces a multi-layer hearsay problem if it offers the statements for their truth, Defendant Whirlpool argues that it seeks to offer Mr. McIntyre's and Ms. Vallecorsa's statements "regarding the existence of LG's 'no real steam' campaign [to] establish their state of mind in drafting the 'Top 5' and 'Armed and Ready' documents, which is not hearsay." (R. 474, Def.'s Resp. Br. at 4.) Furthermore, Whirlpool submits that Mr. Green's testimony "will be offered to corroborate Mr. McIntyre's testimony that salespeople told him that LG was spreading the 'no real steam' message in the marketplace." (Id. at 6.) Defendant does not explain how Mr. Birtz's testimony is admissible.
Mr. McIntyre's and Ms. Vallecorsa's proffered testimony is inadmissible to establish the truth of the matter asserted because it is classic hearsay. Whirlpool correctly notes that "'[a]n out of court statement that is offered to show its effect on the hearer's state of mind is not hearsay.'" Talmage v. Harris, 486 F.3d 968, 975 (7th Cir. 2007) (quoting United States v. Hanson, 994 F.2d 403, 406 (7th Cir. 1993)); see also Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004). Conceivably, however, "every utterance could be indicative of someone's state of mind." United States v. Heidecke, 900 F.2d 1155, 1163 (7th Cir. 1990) (rejecting the argument that "would restyle the hearsay rule into an evidentiary presumption of admissibility: litigants would merely ...