Prime Finish, LLC v. ITW Deltar IPAC
5:08-cv-00438
E.D. Ky.May 12, 2017Background
- This is a pretrial order resolving several in limine motions in a contract/damages dispute between Prime Finish/Cameo (plaintiffs/intervenor) and ITW Deltar IPAC (defendant) about an early-termination penalty under a Product Supply Agreement.
- Cameo disclosed witnesses (Alex Boone and Nicholas Herbert-Jones) and damages theories; ITW moved to exclude or limit testimony based on alleged Rule 26 disclosure failures and evidentiary rules.
- ITW sought to exclude Boone’s testimony about Cameo’s damages as untimely/insufficiently disclosed.
- ITW moved to preclude Cameo from asserting waiver/estoppel defenses or evidence as untimely and unpled. Cameo countered waiver/estoppel is responsive to ITW’s affirmative defenses.
- ITW challenged Herbert-Jones’ ability to testify about Prime Finish’s paint quality, insolvency, and Cameo’s damages (Rule 602 and 701).
- Cameo moved to exclude prior court filings/pleadings offered by ITW to argue estoppel or that the early-termination fee was liquidated damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclude Alex Boone on damages (Rule 26) | Boone disclosed earlier and in supplements; he can testify to existence of damages. | Initial disclosure omitted damages detail — untimely supplementation prejudiced ITW. | Denied — disclosures (including Jan 25, 2016 email) gave notice; ITW not unfairly prejudiced; objections may be revisited at trial. |
| Exclude waiver/estoppel evidence/argument | Waiver/estoppel is a proper response to ITW’s affirmative defenses and was reasonably disclosed; not an ambush. | Cameo failed to timely disclose or plead waiver; should be barred as untimely and unpled affirmative defense. | Denied — court finds waiver/estoppel is a logical response to ITW’s pleaded affirmative defenses; admissibility depends on proof at trial and jury instruction standards. |
| Exclude Herbert-Jones testimony on quality/insolvency (Rule 602) | Herbert-Jones has first-hand, particularized knowledge from roles at Cameo/Prime and may testify within personal knowledge limits. | Lacks personal knowledge of operational quality and finances; testimony would be hearsay/speculation. | Denied in part — blanket exclusion denied. Witness has relevant but limited personal knowledge; scope disputes to be litigated at trial. |
| Exclude Herbert-Jones lay damages testimony (Rule 701) | As Cameo’s sole principal, Herbert-Jones has particularized business knowledge to offer lay opinion on lost profits/damages. | Lost-contract valuation and speculative calculations require expert testimony; Herbert-Jones’s estimates are guesswork. | Granted in part / Denied in part — allowed to testify as lay witness about damages grounded in his particularized knowledge, but excluded from presenting damages based on speculative extended program runs beyond the 48-month contract term; cross-examination may expose speculative assumptions. |
| Exclude Cameo’s motion re: estoppel evidence (use of pleadings to characterize fee) | Cameo seeks to prevent ITW from using prior court filings/pleadings to estop Cameo or characterize the fee as liquidated damages. | ITW intends to add pleadings to exhibit list to support its position on estoppel/liquidated-damages characterization. | Granted in part — court bars use of pleadings/briefs as substantive evidence to show Cameo admitted the fee was liquidated damages or is estopped; other uses may be allowed with trial objections. |
Key Cases Cited
- Old Line Life Ins. Co. of Am. v. Garcia, 418 F.3d 546 (6th Cir.) (failure to plead affirmative defense generally results in waiver)
- Costello v. Lungaro, 54 F.3d 776 (6th Cir.) (Rule 26(e) prevents trial by ambush)
- JGR, Inc. v. Thomasville Furniture Indust., Inc., 370 F.3d 519 (6th Cir.) (discusses Rule 701 and when business owners may give lay opinion on lost profits)
- DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679 (5th Cir.) (business outsiders may not reliably give lay lost-profits opinions under Rule 701)
- Stiles ex rel. D.S. v. Grainger County, Tenn., 819 F.3d 934 (6th Cir.) (personal-knowledge requirement under Rule 602)