D5 Ironworks, Inc et al v. Local 395 Ironworkers, AFL-CIO

Filing 329

OPINION AND ORDER: 186 MOTION for Summary Judgment Partial by Defendant Thomas Williamson, Sr.; 188 MOTION Local 395's Motion to Join Williamson's Motion for Partial Summary Judgment on Counts II, XVIII, XX and Damage Claims re 186 MO TION for Summary Judgment Partial by Defendant Local 395 Ironworkers, AFL-CIO; and 260 NOTICE by Jeffrey Veach Notice of Reinstatement of Notice of Joinder Motion are DENIED as to plaintiff's claims for lost profits and increased workers compensation premiums. Signed by Judge Philip P Simon on 3/25/2022. (asd)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
D5 IRON WORKS, INC., et al.,
Plaintiffs,
vs.
LOCAL 395 IRONWORKERS, AFL-CIO,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

2:16CV200-PPS/JPK

OPINION AND ORDER
On March 24, 2022, I held a hearing on four pending motions, three of which
involved challenges to expert testimony on issues of plaintiff D5 Iron Works’ damages.
At the hearing, counsel for defendant Williamson, Sr. reminded me that in ruling on his
Motion for Partial Summary Judgment in January of this year, I had deferred
consideration of his arguments challenging D5's evidence of lost profits and increased
workers compensation premiums until I separately addressed the three motions
challenging damages experts. [DE 312 at 43.] As the docket reflects, I conditionally
granted the motion to exclude expert testimony from D5's insurance broker Kevin
Cryer, and granted the motion to exclude expert testimony from D5's accountant Paul
Maurin, which mooted the motion to exclude testimony by Local 395's rebuttal expert
Michael Pakter.
I have reviewed the briefing of Williamson’s motion on the damages issues, and
am not persuaded that partial summary judgment excluding any effort by D5 to obtain
damages for lost profits or increased workers comp premiums is appropriate.

Williamson argued that D5 “has no admissible evidence” to establish the fact of these
types of damages, or of a causal link to the events underlying this litigation. [DE 187 at
23.] To the contrary, the summary judgment record reflects testimony by D5 owner
Richard Lindner concerning jobs D5 bid on but could not pursue following the attack
because of lack of manpower. [DE 205 at 5.] D5's Chief Operating Officer Jennifer
Lindner offered similar testimony. [DE 187 at 11.] Both Richard and Jennifer referred to
D5's accountant Paul Maurin and insurance agent Kevin Cryer as having factual
information relevant to increased workers comp premiums and D5's financial losses
attributable to the events for which defendants have already been found to be liable.
[DE 187 at 11.] The motions addressing the now-stale expert opinions of Cryer and
Maurin (offering projections of data for which the actual data is by now available)
suggest that in their regular work as D5's insurance agent and accountant respectively,
Cryer and Maurin may have admissible lay testimony to offer in support of D5's
damages requests. Williamson’s brief treatment of the issue fails to demonstrate that
there is no genuine dispute and that the defendants are entitled to judgment as a matter
of law on these elements of D5's potential damages.
The final pretrial conference is scheduled for April 7 and the trial is on the docket
for May 23. The time remaining is short, and the long pendency of the case counsels in
favor of pressing on toward disposition. As I explained at the recent hearing, D5 may
offer witnesses at trial to testify about relevant historical facts of which they have
personal knowledge, and the defense can make use of any contrary deposition
testimony for purposes of impeachment. If a defendant objects that the testimony of a

fact witness is straying into opinion, I will consider at that time whether it is permissible
as either lay opinion or expert opinion. The recent consideration of the parties’ motions
related to D5's damages and its proof of them will have the issues fresh in my mind to
address appropriately at trial, where I will have the full context before me to deal with
evidentiary disputes and determinations of what issues have been sufficiently
supported to be submissible to the jury.
ACCORDINGLY:
Defendant Thomas Williamson, Sr.’s Motion for Partial Summary Judgment [DE
186], joined in by defendant Local 395 [DE 188] and defendant Jeffrey Veach [DE 260], is
DENIED as to plaintiff’s claims for lost profits and increased workers compensation
premiums.
SO ORDERED.
ENTERED: March 25, 2022.

/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT