Trustees of the NECA/Local 145 IBEW Pension Plan, as Collection Agent for all Fringe Benefits v. Mausser

Filing 79

ORDER entered by Chief Judge Sara Darrow on November 22, 2022. Defendant Linda K. Mausser's 75 motion in limine is GRANTED IN PART and DENIED IN PART. (AAK)

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E-FILED

Tuesday, 22 November, 2022 09:22:01 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
TRUSTEES OF THE NECA/LOCAL 145
IBEW PENSION PLAN, AS COLLECTION
AGENT FOR ALL FRINGE BENEFITS,
Plaintiff,
v.
LINDA K. MAUSSER, INDIVIDUALLY
AND d/b/a QCA ELECTRIC,
Defendant.

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Case No. 4:18-cv-04045-SLD-JEH

ORDER
Before the Court is Defendant Linda K. Mausser’s motion in limine, ECF No. 75. For
the following reasons, the motion is GRANTED IN PART and DENIED IN PART.
DISCUSSION
I.

Legal Standard
As part of its “inherent authority to manage the course of trials,” a district court may

make in limine, or preliminary, rulings on evidentiary matters. Luce v. United States, 469 U.S.
38, 41 n.4 (1984). At this stage, a court will exclude evidence only where it “clearly would be
inadmissable [sic] for any purpose.” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436,
440 (7th Cir. 1997). It is the movant’s burden to make this showing. Angelopoulos v. Keystone
Orthopedic Specialists, S.C., Case No. 12-cv-5836, 2017 WL 2178504, at *11 (N.D. Ill. May 16,
2017). “[J]udges have broad discretion in ruling . . . on motions in limine.” Jenkins v. Chrysler
Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). These preliminary rulings are subject to
change, however, based on how the evidence unfolds at trial or in the exercise of sound
discretion. United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).
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II.

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Analysis
In her motion in limine, Defendant makes two requests: first, she seeks to exclude one of

Plaintiff Trustees of the NECA/Local 145 IBEW Pension Plan, as Collection Agent for all Fringe
Benefits’ exhibits (the “Calibre Report”), and second, she asks to bar expert testimony from a
member or members of Calibre CPA Group, PLLC (“Calibre Group”). Mot. Limine 1. The
Court will address each request in turn.
a. Calibre Report
Defendant argues that Plaintiff should be prevented from introducing the Calibre Report
at trial because she did not receive it until October 26, 2022, long after discovery closed on June
15, 2020. Mot. Limine 1. Therefore, she asserts, Plaintiff has violated Federal Rule of Civil
Procedure 26. Id. Plaintiff responds that it would have been impossible to produce the report
prior to June 15, 2020 because the Court only ordered the audit which resulted in the Calibre
Report on December 9, 2020. Resp. Mot. Limine 3, ECF No. 77. Moreover, Plaintiff sent a
copy of the Calibre Report to Defendant’s then-attorney, Heather Carlson. Id. While Plaintiff
does not specify exactly when it sent the report to Carlson, Carlson represented Defendant
between January 10, 2022 and May 18, 2022. See Not. Appearance, ECF No. 59; May 18, 2022
Min. Entry (granting Carlson’s motion to withdraw as attorney for Defendant). Thus, Defendant
or her counsel would have been in possession of the report a minimum of seven months prior to
the bench trial. See Resp. Mot. Limine 3.
Federal Rule of Civil Procedure 26(a)(1)(A)(ii) requires a party to provide to the other
parties in the case a copy of every document it may use to support its claims or defenses. The
party must “supplement or correct its disclosure . . . in a timely manner” when new information
arises that renders its previous disclosure incomplete. Id. 26(e)(1)(A). “If a party fails to

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provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence . . . at a trial, unless the failure was substantially
justified or is harmless.” Id. 37(c)(1). The court may impose other appropriate sanctions “[i]n
addition to or instead of this sanction.” Id.
The Court finds that Defendant has not satisfied her burden of showing that the Calibre
Report should be excluded from the bench trial. First, Plaintiff is correct that the Court only
ordered the audit in December 2020, see Dec. 9, 2020 Order 9, ECF No. 37, and so the Calibre
Report necessarily could not have been turned over to Defendant prior to June 15, 2020. Second,
at the time Carlson represented Defendant, she was requesting to engage in an additional period
of discovery. See, e.g., Mot. Additional Time Submit Proposed Disc. Plan 1–2, ECF No. 60
(requesting additional time to submit a proposed discovery plan). Defendant has not shown that
Plaintiff failed to provide her attorney with the Calibre Report “in a timely manner.” See Fed. R.
Civ. P. 26(e)(1)(A). As such, the Court declines to prevent Plaintiff from using the Calibre
Report at the bench trial.
b. Expert Testimony from Calibre Group
Defendant also seeks to bar Plaintiff from introducing expert testimony from one or more
members of Calibre Group. Mot. Limine 1. Although not made explicit, it appears that she
objects to this testimony because of Plaintiff’s failure to properly disclose the identity of the
expert witness or witnesses pursuant to Rule 26(a)(2). See id. This rule provides that “a party
must disclose to the other parties the identity of any witness it may use at trial to present” expert
evidence “at least 90 days before the date set for trial,” unless a court order or stipulation
provides otherwise. Fed. R. Civ. P. 26(a)(2).

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In its Proposed Pretrial Order, Plaintiff listed two expert witnesses, both affiliated with
Calibre Group: Tim Kalnes and Corey Bilkey. Initial Proposed Pretrial Order 4, ECF No. 70;
see also Exhibits to Final Proposed Pretrial Order 2, ECF No. 72-1.1 At the Final Pretrial
Conference held on October 26, 2022, Plaintiff stated that it intended to call only one of the
listed expert witnesses but did not know which one. When asked whether it had complied with
its disclosure obligations as to both potential expert witnesses, Plaintiff responded that it had
disclosed Calibre Group early on in the process but was not sure whether it had complied with its
obligations as to each witness individually. And in its response to Defendant’s motion in limine,
Plaintiff states that it only “provided the name of the expert witness and a copy of his CV” to
Defendant once it knew which witness it intended to call. See Resp. Mot. Limine 3. Thus,
Plaintiff must have made its disclosure after the Final Pretrial Conference on October 26, 2022—
less than 30 days before the bench trial.
From the information before the Court, it appears that Plaintiff has failed to comply with
its obligation to disclose the identity of its expert witness at least 90 days before the bench trial,
and there is nothing to suggest a court order or stipulation permitted it to provide a late
disclosure. See Fed. R. Civ. P. 26(a)(2). Thus, a sanction under Rule 37 is warranted unless
Plaintiff’s “failure was substantially justified or is harmless.” Id. 37(c)(1). While Plaintiff states
that “[t]he specific name of the Calibre CPA Group individual who created the report was not
known to Plaintiff until after” it filed its Proposed Pretrial Order, Resp. Mot. Limine 3, it does
not provide any explanation for this delay or why it could not have made a disclosure of both
potential expert witnesses within the deadline. The Court therefore does not find that Plaintiff’s
failure to comply with Rule 26(a)(2) was substantially justified. Nor does it consider the failure

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In citing to the Initial Proposed Pretrial Order and the Exhibits to the Final Proposed Pretrial Order, the Court uses
the page numbers generated by CM/ECF.

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harmless—providing the identity of its expert witness less than 30 days before trial may have
prevented Defendant from adequately preparing to address that witness’s testimony at trial. See,
e.g., Musser v. Gentiva Health Servs., 356 F.3d 751, 757–58 (7th Cir. 2004) (finding that the
plaintiffs’ failure to disclose their expert witnesses “prejudiced [the defendant] because there are
countermeasures that could have been taken that are not applicable to fact witnesses, such as
attempting to disqualify the expert testimony . . . , retaining rebuttal experts, and holding
additional depositions” (citation omitted)). The Court grants Defendant’s request to prevent
Plaintiff from introducing expert testimony from its expert witness at the bench trial.
CONCLUSIONS
For the foregoing reasons, Defendant Linda K. Mausser’s motion in limine, ECF No. 75,
is GRANTED IN PART and DENIED IN PART.
Entered this 22nd day of November, 2022.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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