The opinion of the court was delivered by: Herndon, Chief Judge:
Pending before the Court are the parties' motions in limine (Docs. 144, 145). Defendant did not file an independent response to plaintiff's motion. However, defendant's motion selectively references specific arguments of plaintiff's motion (Doc. 145). Thus, the Court does not presume defendant confesses the correctness of plaintiff's arguments, and will instead rule on the merits of plaintiff's motion (Doc. 144). Plaintiff responded to defendant's motion (Doc. 155). Accordingly, the parties' motions in limine are ripe for resolution. Based on the following, the Court GRANTS IN PART and DENIES IN PART both motions.
II. PLAINTIFF'S MOTION IN LIMINE
a. Plaintiff's Requests for Exclusion of Specific Evidence
The Court first addresses plaintiff's motion in limine (Doc. 144). Plaintiff seeks preclusion of specific evidence pursuant to FEDERAL RULES OF EVIDENCE 401, 402, and 403. Rule 401 holds evidence is relevant if it "has any tendency to make a fact more or less probable than it would be without the evidence." FED. R.
EVID. 401. Further, relevant evidence is admissible unless a binding rule holds otherwise, while irrelevant evidence is inadmissible. See FED. R. EVID. 402.
Lastly, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." FED. R. EVID. 403.
1. Denial of Class Certification
Plaintiff seeks preclusion of any reference or evidence relating to its previous class action complaint, as well as the Court's denial of its motion for class certification. Plaintiff argues reference to these matters would prove unfairly prejudicial, irrelevant, and risk confusing the jury. The Court finds the aforementioned subject immaterial and irrelevant to any ultimate issue. Thus, the Court grants plaintiff's request.
2. Plaintiff's Stricken Expert
Plaintiff requests that the Court disallow any reference or evidence regarding plaintiff's engagement of Robert Ditchey and the Court's previous decision to strike him as an expert witness from the instant proceedings. Plaintiff again argues this evidence would prove unfairly prejudicial, irrelevant, and risk confusing the jury. As the Court similarly agrees evidence of this type is immaterial and irrelevant to any ultimate issue, the Court grants plaintiff's request.
3. Wealth or Net Worth of Bill Cunningham
Plaintiff seeks preclusion of evidence regarding the wealth or net worth of Bill Cunningham (Cunningham). Plaintiff contends inclusion of this evidence would improperly prejudice plaintiff and is irrelevant to the issues of the case. As the Court agrees, it grants plaintiff's request. Thus, defendant is precluded from presenting evidence, arguing about, or referring to Cunningham's wealth and/or net worth.
4. Other Lawsuits Cunningham and/or Plaintiff Have Filed
Plaintiff argues the Court should exclude any reference or evidence pertaining to other lawsuits plaintiff and/or Cunningham have initiated. Plaintiff states the subject lawsuits are irrelevant to the issues of the instant proceeding. Thus, plaintiff argues evidence pertaining to other lawsuits would not have a tendency to make the existence of any fact of consequence to the instant proceedings more or less probable. Further, plaintiff argues, even if evidence of plaintiff's other lawsuits was relevant, the Court should exclude it as unfairly prejudicial and misleading to the jury. As the Court similarly believes evidence of plaintiff's and Cunningham's other lawsuits is immaterial and irrelevant to the instant proceeding, it grants plaintiff's request.
5. Portions of Cunningham's Deposition
Plaintiff seeks exclusion of references or evidence regarding certain portions of Cunningham's March 26, 2008 deposition as irrelevant (See Doc. 144-1). Specifically, plaintiff requests preclusion of references to the actions of Cunningham's attorneys allegedly directing Cunningham to consult various documents during his deposition (See Doc. 144-1, pp. 57:18-57:23, 63:18-63:25, 71:4-71:7, 94:17-95:3). Further, plaintiff seeks exclusion of Cunningham's deposition statement, "I want to see the color of the skin here" (Doc. 144-1, pp. 48:25-49:1). Additionally, plaintiff seeks exclusion of Cunningham's exchange with defense counsel during his deposition regarding whether Cunningham had quit beating his wife (Doc. 144-1, p. 88:10-88:21). As the Court finds the aforementioned actions and statements do not provide any probative evidence to defendant and could lead to jury misinterpretation, the Court grants plaintiff's requests.
Lastly, plaintiff seeks a ruling of this Court deeming a report of the Dayton Research Institute titled, "Learjet Model 45 Windshield Assessment" (Dayton Report) admissible in the instant proceedings; plaintiff's only request to which defendant specifically objects (See Doc. 144-2). Plaintiff seeks the Dayton Report's admittance as a business record of defendant pursuant to FEDERAL RULE
OF EVIDENCE 803(6). Plaintiff argues the Dayton Research Institute prepared the Dayton Report for Bombardier Aerospace, Inc., defendant's parent company, and defendant, pursuant to an independent contractor agreement. The Dayton Report, plaintiff states, summarizes the various "problems" associated with the Learjet 45 windshield system and their possible prospective solutions.
"A party establishes a foundation for admission of business records when it demonstrates through the testimony of a qualified witness that the records were kept in the course of a regularly conducted business activity, and that it was the regular practice of that business to make such records." United States v. Reese, 666 F.3d 1007, 1017 (7th Cir. 2012) (quoting United States v. Given, 164 F.3d 389, 394 (7th Cir. 1999)); see also FED. R. EVID. 803(6) (stating admissibility also requires that "neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness"). Further, "[a] qualified witness need not be the author of the document but must have personal knowledge of the procedure used to create and maintain the document." Id.
Moreover, a third party document may qualify as another business entity's record under Rule 803(6), provided the entity integrated the third-party document into its records and relied upon it in its day-to-day operations. However, although the Seventh Circuit has not directly addressed the issue, it is generally accepted that the proponent of the document must also demonstrate the other requirements of Rule 803(6) are satisfied. See BP Amoco Chem. v. Flint Hills, 697 F. Supp. 2d 1001, 1021 (N.D. Ill. 2010) (compiling cases). Thus, plaintiff must not only demonstrate that defendant kept the Dayton Report in its records, it must also demonstrate the Dayton Research Institute kept the report in the course of its regularly conducted business activity and created such reports on a regular basis. Further, plaintiff must satisfy these foundational requirements through the testimony of a qualified witness knowledgeable of the process through which Dayton Research Institute created the report; thus demonstrating the report's trustworthiness.
In support of its position that the Dayton Report qualifies as a business record of defendant, plaintiff cites deposition statements of Keith Johnston (Johnston), a corporate representative of defendant, in addition to the Dayton Report itself. Plaintiff argues Johnston "specifically admitted that [d]efendant engaged the Dayton Research Institute to provide the report in an effort to determine the best solution for the major issues with the windshield in the Model 45" (Doc. 144, pp. 5-6). Plaintiff refers to the following exchange between plaintiff's counsel and Johnston:
Question: Do you-are you familiar with the process or what precipitated Learjet engaging the University research of Dayton Research Institute to provide this report?
Johnston: Yes, an effort described as a red team had been assembled to go identify the best solution for the windshield in the Model 45. Question: They determined it would be beneficial to engage- Johnston: Somebody from the outside. (Doc. 144-3, p. 223:2-13). Further, plaintiff cites to Johnston's general agreement with the Dayton Report's findings (Doc. 144-3, p. 224:15), the fact a preparer of the Dayton Report, Daniel Bowman, interviewed Johnston (Doc. 144-3, pp. 222:22-223:1), and Johnston's admittance that the Dayton Report was a "reasonable factual assessment of the situation," as further bolstering the Dayton's Report's status as an admissible business record of defendant (Doc 144-3, p. 238:10-1). Additionally, plaintiff points to the Dayton Report's relevancy and probative value to the instant proceedings, as it allegedly establishes defendant's awareness of problems ...