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Am. Hardware Mfrs. Assn. v. Reed Elsevier

December 30, 2010


Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Matthew F. Kennelly than Assigned Judge



The Court grants plaintiff and counterdefendants' motions in limine in part, denies them in part, and defers ruling in part as set forth below.

O[ For further details see text below.] Docketing to mail notices.


The Court rules as follows on the motions in limine filed by AHMA and the Farrells (collectively AHMA):

1. The Court denies in part AHMA's motion to bar the testimony of Reed Elsevier's home improvement experts Frederick Miller and Curt Powell. AHMA's arguments largely involve taking issue with Miller and Powell's conclusions and rationale. This may be good fodder for cross-examination, but it is not a basis for exclusion. Both Miller and Powell are sufficiently qualified to give opinion testimony on the topics in question. And their testimony, much like that of AHMA's expert on the same topic, is relevant, sufficiently reliable, and not unduly confusing.

AHMA's argument regarding duplication has more punch. It appears to the Court that the testimony of Miller and Powell overlaps and is largely or perhaps entirely duplicative. Despite AHMA's argument to this effect, Reed has made no attempt to show that their testimony is not duplicative -- other than to say in a footnote, in an entirely conclusory and unsupported way, that it will not offer testimony from both on the same topic or issue. Def.'s Resp. to Pl.'s Mot. in Limine at 7 n.9. Pursuant to Rule 403 and N.D. Ill. LR Form 16.1.1, note 7, the Court precludes duplicative testimony from these witnesses. If Reed intends to call both, it would be well advised, from a strategic standpoint, to call first the one it considers more persuasive, because there is a good chance the second will not be permitted to testify.

2. AHMA seeks to bar the testimony of Barry Epstein, an accounting expert witness for Reed.

a. In a later section of this order, the Court precludes admission of evidence regarding the compensation of the Farrells, except for a limited purpose (the amount of punitive damages) that will be bifurcated from all other issues in the case. The Court assumes for present purposes that if the trial reaches that point, Reed still would call Epstein to testify regarding the compensation comparison summary he prepared. Based on the description of the summary provided by Reed, it will not be admissible for the purpose of determining what amount of punitive damages to award to Reed against the Farrells on Reed's defamation counterclaim. What likely would be relevant in that regard is the Farrells' current or relatively current financial condition, not the entire history of their compensation "for a combined total of thirty-two years," which is what Reed wants to introduce. See Def.'s Resp. to Pl.'s Mot. in Limine at 10. Thus the Court excludes the compensation summary in its current form. If Reed wishes to offer at the amount-of-punitive-damages phase of the trial evidence that hits closer to the mark given the Court's relevance ruling, Reed must describe this narrower evidence to counsel for AHMA and the Farrells, in detail and in writing, no later than two business days before the final pretrial conference. If AHMA challenges the admission of the narrower version of the compensation evidence, it should raise the point with the Court at the final pretrial conference.

b. AHMA asks the Court to bar opinion testimony by Epstein regarding AHMA's alleged damages. The Court agrees with Reed that Epstein has sufficient qualifications to render an opinion regarding the profits Reed and AHMA would have shared were one to assume they were engaged in a joint venture. He may also render an opinion regarding whether AHMA's accounting treatment of its transactions and dealings with Reed is consistent with how one would account for those matters in a joint venture or if a party (AHMA) had an ownership interest in the hardware show. These topics are squarely within Epstein's accounting expertise.

c. Epstein may not, however, render any opinion regarding whether AHMA and Reed were engaged in a joint venture, and he may not provide interpretations of the 1977 show agreement. These are not appropriate topics for expert testimony, and even if they were, Epstein (a CPA) lacks the necessary qualifications to render opinions on these points. It also appears from Reed's response to AHMA's motion that Reed intends to elicit from Epstein that provisions of the 1977 agreement "corroborate Epstein's view that Reed's and AHMA's accounting was inconsistent with AHMA's theory that it owned the Show or that the Show was a joint venture." Def.'s Resp. to Pl.'s Mot. in Limine at 16. The Court precludes such testimony; it inappropriately strays over the line that the Court has set barring Epstein from interpreting the agreement.

d. AHMA argues that Epstein should not be permitted to render an opinion regarding why Reed accounted for contractors' commissions in a particular way. Epstein's opinion on this topic is based on discussions he had with various Reed personnel and review of documents. The Court is unpersuaded that opining on why an entity chose to account for transactions in a particular way falls within Epstein's area of expertise. In addition, the Court concludes that opinion testimony on this topic will not assist the jury in a meaningful way, see Fed. R. Evid. 702, because it involves a task -- assessing statements by witnesses -- on which a jury does not require "expert" assistance. For this reason, the Court need not address AHMA's argument that Epstein's report failed to comply with Rule 26(a)(2) on this point.

3. AHMA asks the Court to bar the testimony of Cordell Overgaard, who was outside counsel for Reed's predecessor, Cahners Publishing Company, when the 1977 show agreement was negotiated and executed. Reed intends to call Overgaard to testify regarding the negotiation of and intent behind the agreement. Reed separately moved to preclude extrinsic evidence regarding the agreement, but AHMA objected, arguing among other things that Reed was in effect making an untimely motion for summary judgment. The Court agreed with AHMA on that point and thus denied Reed's motion, without prejudice to a Rule 50 motion at an appropriate point during the trial. The upshot is that Reed, like AHMA, will be permitted to offer extrinsic evidence at the trial. ...

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