Hess et al v. Biomet, Inc. et al

Filing 301

OPINION AND ORDER The parties' 224 and 241 motions in limine are granted in part and denied in part, as discussed in this order. The Court denies the 227 motion to strike Mr. Sowards' damages testimony, and grants the 233 motion to strike expert testimony by Mr. Callahan and Dr. Nevin. The Court grants in part the 295 joint motion to set deadlines for demonstrative and summary exhibits. Finally, the Court grants the parties' 300 joint motion for a status conference, and will contact counsel to set a status conference. Signed by Judge Jon E DeGuilio on 11/13/19. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHARLES HESS, et al.,

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Plaintiffs,
v.
BIOMET, INC., et al.
Defendants.

Case No. 3:16-CV-208 JD

OPINION AND ORDER
This case is approaching trial on the Distributors breach-of-contract claims against
Biomet.1 Both sides have filed motions in limine, and they have also filed Daubert motions. In
this order, the Court resolves those motions and addresses other issues that have come to light
through the pretrial filings.
I. DISTRIBUTORS’ MOTIONS IN LIMINE
1.

July 2015 letter negotiating buy-out
The Distributors first move to exclude a letter their attorney sent to Zimmer–Biomet on

July 20, 2015, arguing that the letter is a settlement communication excluded by Rule 408. As
background, Biomet was going through the process of merging with Zimmer, Inc. around 2015.
As part of that process, Biomet made buy-out offers to each of the retired distributors to which it
was paying lifetime commissions, including each of the plaintiffs here. In response, the
Distributors pushed back on the amount of the buy-out and asked for better offers. Those
discussions and the pending merger also raised an additional dispute: whether the Distributors
would be entitled to lifetime commissions on sales by Zimmer or Zimmer–Biomet (the new post-

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There are two defendants, but for simplicity the Court refers primarily to Biomet when
referring to the defendants’ motions and arguments.

merger entity), instead of just sales on Biomet products. After preliminary discussions between
the parties failed to produce a resolution of either the buy-out offers or the Distributors’ right to
commissions on Zimmer or Zimmer–Biomet sales, the Distributors retained counsel.
On July 20, 2015, the Distributors’ attorney sent a letter to Zimmer–Biomet addressing
both of those topics. Much of the letter outlined the Distributors’ history with Biomet and the
reasons they should receive more favorable buy-outs. The letter also raised the Distributors’
contention that they were entitled to commissions on sales by the post-merger entity. The letter
asserted, for example, that Biomet had anticipatorily repudiated its obligations by taking a
contrary position, and that Biomet made clear that it intended to breach its obligations to pay
commissions on Zimmer–Biomet products following the merger. The letter stated that the
Distributors would take any steps necessary to protect their rights unless Zimmer–Biomet either
made an acceptable buy-out offer or provided written assurance that it would pay commissions
on products “sold by Zimmer–Biomet in the relevant territories.”
As relevant to Biomet’s present arguments, however, the letter also included some
references to the payment of commissions on Biomet products. It stated, for example, that since
the Distributors’ retirement, “Biomet has honored its obligations, and paid commissions on all
products sold in the relevant territories.” It likewise stated that “[u]ntil recently, the Legacy
Distributors had no complaints regarding Biomet holding up its end of the bargain and honoring
the Distributorship Agreements.” At trial, though, the Distributors’ only claim is that Biomet has
been underpaying them since their retirements by paying commissions on a smaller set of Biomet
products than dictated by the agreements. Biomet argues that the statements in this letter show
that the Distributors’ current interpretation of the agreements is a recent invention and does not
reflect the parties’ understanding or intent when they entered the agreements.

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The Distributors move to exclude the letter under Rule 408, arguing that the letter was a
settlement communication and that Biomet intends to use the letter for prohibited purposes,
namely to disprove the validity of their claim or impeach by contradiction. Rule 408 states:
Evidence of the following is not admissible—on behalf of any party—either to
prove or disprove the validity or amount of a disputed claim or to impeach by a
prior inconsistent statement or a contradiction:
....
(2) conduct or a statement made during compromise negotiations about the claim[.]
Fed. R. Evid. 408(a). Though Biomet attempts to argue otherwise, it plainly intends to use the
letter to disprove the Distributors’ claim or contradict their testimony. [DE 256 p. 5 (admitting
that Biomet “will reference the letter at trial to counter the testimony offered by Plaintiffs as to
the meaning of a decades-old contract provision”)].
The question, then, is whether this letter falls within Rule 408’s coverage. In arguing that
it does not, Biomet asserts that the letter was only negotiating a contractual buy-out—a routine
business negotiation, not a disputed claim—and that the claim at issue now is a new theory that
was not in dispute then and was not raised until the next year when the Distributors filed suit.
The Distributors disagree, arguing that there was a dispute at the time of the letter: a dispute over
whether the Distributors were entitled to commissions on Zimmer or Zimmer–Biomet products.
The Court agrees that the disagreement over that issue had likely ripened into a disputed claim
by the time of the letter—the letter accuses Biomet of having anticipatorily repudiated its
obligation to pay those commissions and states that Biomet made clear that it intended to breach
its obligations.
Critically, however, that is not the claim going to trial in this case. For Rule 408 to apply,
the claim being negotiated must be the same claim at issue in the litigation. As the Seventh
Circuit recently explained, “settlement discussions concerning a specific claim are excluded from
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evidence to prove liability on that claim, not on others. That is, when a settlement discussion
concerns Claim A, and statements from that discussion are later offered to prove or disprove
liability on Claim B, Rule 408(a) does not make those statements inadmissible.” Wine & Canvas
Dev., LLC v. Muylle, 868 F.3d 534, 541 (7th Cir. 2017); see also Zurich Am. Ins. Co. v. Watts
Indus., Inc., 417 F.3d 682, 689 (7th Cir. 2005) (“The balance is especially likely to tip in favor of
admitting evidence when the settlement communications at issue arise out of a dispute distinct
from the one for which the evidence is being offered.”). That conclusion follows from the rule’s
text, which states that a party may not seek to disprove the validity of “a claim” with statements
made during compromise negotiations “about the claim.” Rule 408(a) (emphasis added); see also
Muylle, 868 F.3d at 541 (“Paragraph (a) uses the term “a disputed claim,” not “disputed claims”
or “any claims.” Subparagraphs (1) and (2) of paragraph (a) likewise speak of “the” claim.”);
Armstrong v. HRB Royalty, Inc., 392 F. Supp. 2d 1302, 1304 (S.D. Ala. 2005) (“[T]he definite
article “the” limits “the claim” as to which evidence may not be admitted to the claim previously
referenced, i.e., the claim which was the subject of a settlement offer.”).
Here, to the extent the July 2015 letter discusses a disputed claim, that claim relates to
whether the Distributors would be entitled to commissions on sales of Zimmer or Zimmer–
Biomet products once the merger occurred. The Distributors’ counsel made that point at the final
pretrial conference, explaining that the dispute at the time of the letter was whether the lifetime
commissions payments would extend to the products of the new Zimmer–Biomet entity. As
counsel also noted, however, that claim has been dismissed and is not part of the trial in this
case. The claim going to trial has nothing to do with whether Zimmer or Zimmer–Biometbranded products became subject to the lifetime commissions provision after the merger; it

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relates solely to the proper scope of commission payments on sales of legacy Biomet products,
dating back to the Distributors’ retirements.
The Distributors have never argued that a dispute existed as to that claim at the time of
the letter, nor does the letter itself contemplate such a claim. [DE 175-3 p. 8 (“In the years
following the Legacy Distributors’ retirement, Biomet has honored its obligations, and paid
commissions on all products sold in the relevant territories.”)]. In fact, the Distributors have
argued elsewhere that they were not even aware of that claim “until shortly before filing this
lawsuit in 2016.” [DE 198 p. 9].2 If the Distributors were not even aware of this claim at the time
of the July 2015 letter, they cannot argue that the letter constituted an attempt to compromise that
claim. Armstrong, 392 F. Supp. 2d at 1305 (noting that “one can hardly dispute a claim of which
he is unaware”); see also Tendeka, Inc. v. Glover, No. 2015 WL 2212601, at *21 (S.D. Tex. May
11, 2015) (holding that a letter attempting to settle one claim was not excluded by Rule 408 to
disprove a different claim of which the parties were not even aware at the time).
Because the claim for which this evidence is being offered is not the claim being
negotiated in the July 2015 letter, Rule 408 does not bar its admission. Therefore, the Court
denies this motion.
2.

Al Plows email
The Distributors similarly move to exclude an email sent to Biomet’s general counsel by

Al Plows, another former Biomet distributor. This email was sent in May 2015, and was a
precursor to the letter just discussed. In his email, which he copied to each of the Distributors,
Mr. Plows responded to Biomet’s buy-out offer and also asked for written confirmation “that

2

See also DE 241 p. 11–12 (noting that Mr. Plows’ prior email on the same topic was in relation
to a claim that has been dismissed and is not being presented at trial)].
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going forward Zimmer–Biomet will continue to honor their obligation to pay override
commissions on any/all reconstructive products sold in our respective territories.”
The Distributors argue that this email is excluded as a settlement communication under
Rule 408, but for the same reasons just discussed, the Court finds that Rule 408 does not apply.
The Distributors also argue that Mr. Plows’ email is hearsay, but that argument is insubstantial.
Hearsay is defined as an assertion that is offered to prove the truth of the matter asserted. Fed. R.
Evid. 801(a), (c)(2). Mr. Plows’ statement was a request, not an assertion of truth—he asked for
confirmation that Zimmer–Biomet will pay commissions on reconstructive products sold in their
territories moving forward. The relevance of this statement is not the truth of anything he
asserted, but the fact that he asked for confirmation only as to “reconstructive products.”3
Because this was a request, not an assertion offered for its truth, it does not qualify as hearsay, so
Biomet does not need to meet any exception to the hearsay rule. See Carter v. Douma, 796 F.3d
726, 735 (7th Cir. 2015).
The Distributors finally argue that this email should be excluded under Rule 403. The
Distributors argue that allowing this email would require explanations of the circumstances of
Mr. Plows’ involvement in the negotiations and why he is not a plaintiff in this case, and could
require some context about the merger. However, the details about Mr. Plows can be established
quickly and without inviting confusion, and context about the merger will inevitably come up
anyway—both Biomet and Zimmer Biomet are defendants in this case. And although the
Distributors offer reasons that might explain away Mr. Plows’ reference to “reconstructive

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The Distributors also argue that Mr. Plows did not formally represent them in this negotiation,
but that would not make this email irrelevant. Mr. Plows sent the email purporting to speak on
their behalf (he referred to the “Legacy Distributors” and used the words “we” and “us”); he
copied each of the Distributors on the email; and they did not express disagreement with his
statements. That allows an inference that they agreed with his characterization.
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products,” that does not negate the relevance of this exhibit, as the jury could find that Biomet’s
interpretation is the more plausible reading. Thus, the Court does not believe that the danger of
any unfair prejudice substantially outweighs the probative value of this exhibit. Accordingly, the
Court denies the motion to exclude this exhibit.
3.

Distributors’ violations of agreements
The Distributors next move to exclude any evidence or argument that they violated their

distributorship agreements while they were active distributors. Though Biomet responded in
opposition to this motion, it clarified at the final pretrial conference that it does not intend to
offer any argument that the Distributors breached their agreements. To the contrary, it intends to
argue that the Distributors did not breach their agreements, and that their course of performance
in compliance with those agreements informs the meaning of the agreements. On that
understanding, the Court grants the motion as unopposed. The defendants may not argue or
present evidence that the Distributors breached their agreements as active distributors, though
that does not prevent them from presenting evidence of the course of performance in accordance
with those agreements.
4.

Challenge to damages calculation
The Distributors next move to bar Biomet’s damages expert, Bryan Callahan, from

challenging their own expert’s damages calculation. The Court addresses the admissibility of Mr.
Callahan’s opinions below relative to the Distributors’ Daubert motion. That ruling suffices to
frame the scope of Mr. Callahan’s testimony, so no further order is warranted on that issue.4

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The Distributors argue elsewhere that there is no genuine dispute on the amount of damages
(assuming they prevail on their interpretation of the contracts) so the issue need not be presented
to the jury. The parties are free to enter a stipulation on damages if they like, but otherwise there
is no basis for taking the issue away from the jury. The Distributors bear the burden of proof, and
absent a stipulation, they will have to meet that burden by presenting evidence at trial. If the
evidence supports only one result, they can argue that to the jury.
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5.

Shera’s prior lawsuit
The Distributors move to exclude evidence of a previous lawsuit Frank Shera brought

against Biomet. That suit involved a dispute over the scope of Mr. Shera’s distributorship under
his distributorship agreement. Most notably, his stipulation to dismiss that suit included the
following statement: “Frank L. Shera and Frank L. Shera, Inc. admit that the Distributorship
Agreement does not contractually grant them the right to sell the products of Biomet’s present
subsidiaries or companies which Biomet may acquire in the future.” The Distributors argue that
this admission is not relevant because that suit involved a dispute over a different provision in
the agreement, and that its use at trial would be prejudicial.
The Court disagrees. Mr. Shera’s admission about the scope of the agreement is highly
relevant. It is a direct admission by a plaintiff in this case about the scope of the same agreement
being litigated in this case. The Distributors attempt to deflect that statement by noting that the
previous suit involved a dispute over the products Mr. Shera was allowed to carry as an active
distributor (addressed in Section 2) while the current suit involves a dispute over the products he
is entitled to receive commissions on in his retirement (addressed in Section 9 of the same
contract). But Biomet’s core theory in this case is that those two provisions have the same
scope—that Mr. Shera is entitled to receive retirement commissions only on products within the
scope of his distributorship. See B&R Oil Co. v. Stoler, 77 N.E.3d 823, 827 (Ind. Ct. App. 2017)
(“We review the contract as a whole[.]”). An admission that Mr. Shera was not entitled to
distribute products of Biomet’s subsidiaries is thus highly relevant to his claim for lifetime
commissions on products sold by those subsidiaries. That the Distributors intend to offer a
competing interpretation does not make this admission irrelevant.

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Given the significant probative value of this evidence, the Court cannot find that the
probative value is substantially outweighed by any of the concerns for prejudice raised by the
Distributors. Accordingly, the Court denies this motion.
6.

Dollar amount already paid to distributors in the past
The Distributors also moved to exclude evidence of the amount the Distributors were

paid while they were active distributors, and to prohibit argument that the Distributors “have
been fairly compensated in retirement based solely on the total amount of retirement
commissions they have received.” [DE 241 p. 14]. Biomet does not object to either of those
requests, as narrowly framed in that manner, so the Court grants the motion. As Biomet notes,
however, that will not preclude evidence of the amount the Distributors have been paid in
retirement commissions. Nor will it preclude argument that those amounts satisfy Biomet’s
obligations under the agreements.
7.

Testimony by Biomet witnesses about intent
The Distributors also move to exclude testimony by Biomet’s witnesses about Biomet’s

intent at the time it entered the agreements. The Distributors argue that those witnesses—
particularly Daniel Hann, Biomet’s former general counsel—were not employed by Biomet at
the time or were not part of the agreements’ negotiation, so they lack firsthand knowledge and
should not be permitted to relate hearsay about what Biomet’s founders intended at the time. The
Distributors’ motion is overbroad, as the admissibility of this testimony will depend on the
precise testimony, the foundation laid for it, and the purpose for which it is offered. The Court
thus declines to resolve this issue through an order in limine. However, the parties’ arguments
raise some issues that warrant discussion at this point in order to frame the analysis that will
apply at trial.

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The Distributors express concern that Mr. Hann will testify about conversations he had
with Biomet’s founders, including Dane Miller, in which the founders talked about what they
intended when they entered the distributorship agreements. Should such a statement be offered
for the truth of the matter asserted by Mr. Miller, it would constitute hearsay. And as the
Distributors note, the state-of-mind exception to the hearsay rule would not apply if the
statement refers to what Mr. Miller intended at some earlier point. The state-of-mind exception
applies only to the declarant’s “then-existing state of mind,” Fed. R. Evid. 803(3), so a statement
about what the declarant intended at a previous time would not be covered. The statement would
meet that exception, though, if Mr. Miller expressed his current state of mind about what he
understood the agreements to mean at the time he made a statement to Mr. Hann. That would be
a statement of his “then-existing” state of mind; the jury could then decide to what extent Mr.
Miller’s belief at that time supports an inference about his intent at the earlier time when the
parties entered the agreement. See 2 McCormick on Evidence § 274 (7th ed. 2016) (“Although
the statement must describe a state of mind or feeling existing at the time of the statement, the
evidentiary effect of the statement is broadened by the notion of the continuity in time of states
of mind.”).
There is also other testimony that Mr. Hann could offer that would not be excluded as
hearsay. Some statements by Mr. Miller might not be hearsay to begin with, as Biomet notes.
Hearsay is an out-of-court “assertion” offered to prove “the truth of the matter asserted.” Fed. R.
Evid. 801(a), (c). If, for example, Mr. Miller gave Mr. Hann a direction or instruction about what
action to take with regard to Biomet’s performance under the agreements, that would not be an
assertion offered for its truth, so it would not be hearsay. See Ruhl v. Hardy, 743 F.3d 1083, 1099
(7th Cir. 2014) (holding that a statement was not hearsay because it was “a direct command, not

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a statement offered to prove the truth of the matter asserted”); Carter v. Douma, 796 F.3d 726,
735 (7th Cir. 2015) (holding that a request and an instruction were not hearsay “because they
were not ‘statements’ making any factual assertions”). Other testimony might be based on Mr.
Hann’s personal knowledge. For example, as the general counsel who was involved in executing
the agreements on behalf of Biomet, he would have personal knowledge of Biomet’s
performance under the agreements, which would be relevant to Biomet’s course-of-performance
argument.
That said, the Court does not agree with Biomet that Mr. Hann’s testimony is insulated
from the rule against hearsay because he was designated as a corporate representative for a
deposition under Rule 30(b)(6). That rule allows a party to serve a notice of deposition on a
corporation, identifying specific matters to be discussed. The corporation must then produce a
representative who “must testify about information known or reasonably available to” the
corporation on those matters. Fed. R. Civ. P. 30(b)(6). Biomet argues that because Mr. Hann was
designated as a corporate representative for a Rule 30(b)(6) deposition, he can testify to its
corporate knowledge without any need for personal knowledge, and thus can testify without
regard to the rule against hearsay. Under Rule 32(a)(3), an “adverse party” may use at trial the
deposition of a party’s designee under Rule 30(b)(6). But Mr. Hann is Biomet’s own
representative, and Rule 32(a)(3) does not allow a party to use its own designee in this manner.
See Union Pump Co. v. Centrifugal Tech. Inc., 404 F. App’x 899, 907–08 (5th Cir. 2010)
(“Federal Rule of Civil Procedure 30(b)(6) allows corporate representatives to testify to matters
within the corporation’s knowledge during deposition, and Rule 32(a)(3) permits an adverse
party to use that deposition testimony during trial. However, a corporate representative may not
testify to matters outside his own personal knowledge to the extent that information is hearsay

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not falling within one of the authorized exceptions.” (citation, quotation, and alteration omitted));
see also Fed. R. Civ. P. 32(a)(1)(B) (stating that a deposition may be used under this rule “to the
extent it would be admissible under the Federal Rules of Evidence if the deponent were present
and testifying”). Thus, notwithstanding that Biomet produced Mr. Hann in response to a Rule
30(b)(6) notice, Mr. Hann’s testimony at trial will still have to comply with the rules of evidence
in order to be admitted.
8.

Statute of limitations
The Distributors next move to exclude evidence or argument concerning Biomet’s statute

of limitations defense. At summary judgment, the Court made two holdings relevant to the
statute of limitations. It first held that the statute of limitations accrued separately for each
payment that came due, so the statute of limitations could not bar the Distributors’ claims in their
entirety, it could only limit the period for which they could seek damages. Second, the Court
held that the applicable statute of limitations was not provided by the Uniform Commercial Code
(which would have been four years). Instead, the default statute of limitations for breach of
contract claims applied. The Court did not resolve, however, whether that term was 20 years (for
contracts entered before September 1, 1982) or 10 years (for contracts entered after), since that
would not have affected the outcome of the motion.
In their motion in limine, the Distributors first argue that five of the Distributors are
subject to the 20-year statute of limitations, as they entered their original distributorship
agreements before September 1982. And because none of those Distributors received
commission payments more than 20 years before this suit was filed on April 4, 2016, they argue
that the statute of limitations has no possible application to their claim. The sixth plaintiff, Mr.
Shera, concedes that his contract is subject to a 10-year statute of limitations, but he is willing to

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forego any damages that accrued more than ten years before suit, in which case there would be
no work left for the statute of limitations on his claim, either.
Biomet offers little substantive response to these arguments, except to say that it wishes
to argue this defense to the jury. The applicable statute of limitations is a question of law for the
Court to decide, though, and a motion in limine is an appropriate vehicle for making that
determination. Under Indiana law, the statute of limitations on breach of contract claims is 20
years for contracts entered before September 1, 1982, and 10 years for contracts entered after. It
is undisputed that five of the Distributors (all but Mr. Shera) entered the distributorship
agreements upon which their claims are based prior to September 1982, so they are subject to the
20-year term. Biomet argues in response that those Distributors signed termination agreements
later, but those agreements expressly provided that the long-term commission provisions in the
original distributorship agreements remained in effect. The parties even entered a stipulation to
that fact. [DE 267 (“The Termination Agreements differ in name and some other respects, but all
state that the Long Term Commission Program found in the Distributorship Agreements survives
Plaintiffs’ retirement and remains in full force and effect.”)]. The breach of contract claims are
premised on the surviving provision of the original distributorship agreements, which were
entered before September 1, 1982 for these five Distributors, so those claims are subject to 20year limitations period.
That being the case, Biomet hasn’t shown that the statute of limitations has any role left
to play at trial. As a matter of law, the five Distributors’ claims are subject to 20-year limitations
periods, and those Distributors represent without contradiction that they do not seek any damages
that could have accrued before that period. The sixth plaintiff agrees that he is subject to a 10year limitations period, but has agreed not to even ask for any damages that accrued before April

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4, 2006. Given that concession, Biomet has effectively prevailed on its statute of limitations
defense as to Mr. Shera already, so there is no use in further arguing the point to the jury. If none
of the Distributors are seeking damages that accrued before the applicable limitations period,
then the statute of limitations has no applicability at trial and is not relevant. Without any
argument from the defendants about how the statute of limitations could nonetheless have an
impact at trial, the Court grants this motion in limine.
9.

Equitable affirmative defenses
The Distributors next move to exclude evidence relevant only to the defendants’

equitable affirmative defenses. Both sides agree that those equitable defenses are decided by the
Court, not the jury, so evidence on these issues need not be presented to the jury. The Court
therefore grants this motion, and will not allow evidence relevant solely to the equitable
affirmative defenses to be presented to the jury. Biomet argues that all of the evidence relevant to
the equitable defenses will also come in as relevant to other issues at trial, so the issue may not
arise, but the Distributors should make a specific objection at trial to any evidence they believe
falls in this category.
10.

Mitigation of damages
The Distributors also ask to exclude Biomet’s affirmative defense that they failed to

mitigate their damages. The Distributors argue that this defense should be excluded because
there is insufficient evidence to support it. The Court agrees with Biomet that, framed in that
manner, the motion is overbroad. A motion in limine is not the proper vehicle for evaluating the
sufficiency of the evidence, so the motion is denied in that respect. The Distributors’ motion,
however, also reflects a contested issue of law that is amenable to a motion in limine, as they
argue that a legal theory upon which Biomet intends to proceed for this defense is unsound.
Biomet appears to argue, at least in part, that the Distributors failed to mitigate their damages
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because they did not sue, or at least object to the underpayments, earlier. The Distributors object
that this is not a cognizable mitigation-of-damages argument. The Court agrees.
First, as the Distributors argue, mitigation of damages refers to a party’s duty after
sustaining an injury. As the Indiana Supreme Court has noted, a party “has a duty to mitigate his
or her post-injury damages[.]” Willis v. Westerfield., 839 N.E.2d 1179, 1187 (Ind. 2006)
(emphasis added) (noting also that the “principle of mitigation of damages address conduct by an
injured party that aggravates or increases the party’s injuries” (emphasis added)); Scott-Larosa v.
Lewis, 44 N.E.3d 89, 94 (Ind. Ct. App. 2015) (“The duty to mitigate damages is a common-law
duty independent of the terms of the underlying contract, and it requires the non-breaching party
to make a reasonable effort to act in such a manner as to decrease the damages caused by the
breach.” (emphasis added)). Biomet’s argument in this respect, however, appears to be that the
Distributors failed to keep the injury from occurring in the first place. A breach occurs each time
a payment comes due but is not paid, so Biomet’s argument that the Distributors should have
complained sooner to keep damages from accruing is really an argument that the Distributors
should have kept Biomet from breaching, which is not a question of mitigation of damages.
Even then, Biomet does not claim that it would have begun paying the commissions any
differently had the Distributors complained or sued at any other point—it denies even now that
they are entitled to any further commissions. Instead, Biomet appears to argue that it would have
been better positioned to defend itself against had the Distributors brought this suit earlier, but
that is just a variation on its laches defense, not a valid theory of mitigation of damages.
Relatedly, Biomet does not argue that the amounts that came due under the contracts would have
been any different had the Distributors sued earlier. The commissions are based on the sales in
the Distributors’ former territories, and Biomet does not suggest that anything the Distributors

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should have done would have affected those sales. Should the Distributors prevail on their
interpretation of the contracts, the amounts that would have been due would be the same
regardless of when they sued; the only difference would be whether the Distributors received
those amounts as the sales occurred or when judgment is entered in this case. That again
illustrates that this is not a valid mitigation of damages argument.
Accordingly, the Court will not permit Biomet to argue that the Distributors failed to
mitigate their damages by failing to timely sue or complain about an underpayment of
commissions. Should Biomet be unable to offer any other mitigation of damages theory, this
defense can be resolved on a Rule 50 motion or at the final instruction conference.
11.

Prior rulings
Last, the Distributors move to preclude disclosure to the jury of the Court’s prior rulings.

The Court grants the motion as unopposed.
II. DEFENDANTS’ MOTIONS IN LIMINE
1.

Agreements with non-plaintiff distributors
Biomet first moves to exclude evidence of distributorship agreements entered into by

distributors other than the six plaintiffs here. Biomet argues that those agreements have little if
any relevance, and that the dangers of confusing the issues and misleading the jury warrant
exclusion under Rule 403. The Court agrees.
The parties focus their arguments on this topic on an agreement entered in 2007 between
Timothy Weis and Biomet Orthopedics, Inc. Mr. Weis initially entered a distributorship
agreement with Biomet, Inc. in the early 1980s, similar to the Distributors. In 2007, Mr. Weis
agreed to terminate that initial distributorship agreement, and he signed a new agreement with
Biomet Orthopedics, Inc. The 2007 agreement also included a long-term commissions program,
but used different language than in the initial agreement. The Distributors argue that the 2007
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agreement is relevant because it shows that Biomet must have known it owed commissions on a
larger set of products than provided by the initial agreements.
As noted in part in a previous order, the Court finds the relevance of the 2007 agreement
to be very limited. The 2007 agreement was entered decades after the agreements at issue here,
between two non-parties to those agreements, and under different circumstances and for different
reasons. Over the intervening years, all of the parties changed quite substantially and became
more sophisticated than when the initial agreements were entered. That the 2007 Weis agreement
used different language than the prior agreements sheds little if any light on what the parties in
this case intended when they entered their agreements decades earlier. The 2007 agreement is
different in nearly every respect than the original agreements; if the parties were to redraft those
agreements today, neither side would use the same language as in the original agreements, even
if they wanted them to have the exact same meaning. It would thus be quite difficult to attribute
any differences in language to an intent to produce a different outcome on the specific issue
disputed in this case.
Moreover, admitting agreements other than the ones directly at issue in this case would
create substantial concerns under Rule 403. Detouring into those other agreements would create
a significant risk of confusing the issues and misleading the jury. It could require a trial-within-atrial as to what those other agreements actually mean, what the parties to those agreements
intended, and under what circumstances the other agreements were entered. The jury will have
enough of a task trying to make sense of the agreements at issue here, without giving it other
agreements to make sense of too. Going through that process would also create unnecessary
delay. In sum, the Court finds that the probative value of this evidence is significantly
outweighed by the risk of prejudice under Rule 403, so the Court grants this motion in limine.

17

2.

Future damages
Biomet moves to bar evidence of “future damages,” as the Court held at summary

judgment that the Distributors are not entitled to such damages. The Distributors agree these
damages are no longer at issue. The Court therefore grants the motion as unopposed.
3.

Dismissed claims
Biomet moves to bar evidence relevant solely to claims that have been dismissed. The

Distributors agree (but note that some evidence relevant to those claims is also relevant to the
claims that are still live). The Court thus grants this motion; evidence relevant solely to those
claims will not be admitted, though Biomet will need to raise a specific objection at trial if it
believes particular evidence falls in this category.
4.

Zimmer or Zimmer Biomet sales
Biomet next moves to exclude evidence of sales of Zimmer or Zimmer Biomet products.

It contends that those products were encompassed in claims that were dismissed, and are not
encompassed in the remaining claim, so they are not relevant. The Court denies this motion, as
there does not appear to be any concrete dispute on this point. The Distributors have made clear
exactly what product lines they are seeking commissions on [DE 253 p. 5], and their damages
expert identifies the sales totals for which they are seeking damages. Biomet does not contend
that any of those products or sales would fall within the scope of this motion. Accordingly, the
Court denies this motion as unnecessary.
5.

Separation of witnesses
The Court grants the motion for separation of witnesses as unopposed. Fed. R. Evid.

615.

18

6.

Non-disclosed documents
Finally, Biomet moves to bar any documents not properly disclosed in discovery. It does

not identify or even suggest that there are any such documents, though, so this would serve no
purpose as an order in limine—there is no need to enter an order in limine stating that the Federal
Rules and this Court’s orders will apply at trial. The Court therefore denies this motion.
III. DEFENDANTS’ DAUBERT MOTION
Biomet next moves to exclude the testimony of the Distributors’ damages expert, Rodney
Sowards. Rule 702 governs the admission of testimony by expert witnesses. Under that rule, a
witness “who is qualified as an expert by knowledge, skill, experience, training, or education”
may offer an opinion if the following criteria are met:
(a)

the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles and methods; and

(d)

the expert has reliably applied the principles and methods to the facts of the
case.

Fed. R. Evid. 702.
A court has a gatekeeping role to ensure that expert testimony meets these criteria.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); C.W. ex rel. Wood v. Textron, Inc.,
807 F.3d 827, 834–35 (7th Cir. 2015). The proponent of the expert testimony bears the burden of
demonstrating that the testimony meets each of those elements. Varlen Corp. v. Liberty Mut. Ins.
Co., 924 F.3d 456, 459 (7th Cir. 2019). However, a court does not assess “‘the ultimate
correctness of the expert’s conclusions.’” Textron, 807 F.3d at 834 (quoting Schultz v. Akzo
Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). Rather, a court must focus “solely on
principles and methodology, not on the conclusions they generate.” Schultz, 721 F.3d at 432
19

(quoting Daubert, 509 U.S. at 595). “So long as the principles and methodology reflect reliable
scientific practice, ‘vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.’” Id. (quoting Daubert, 509 U.S. at 596).
Here, Mr. Sowards was asked to calculate the amount of damages owed to the
Distributors based on the assumption that the agreements entitled them to commissions on all
Biomet products sold in their former territories. Mr. Sowards’ methodology in making that
calculation was simple. He first compiled the net sales of all Biomet products based on Biomet’s
sales data. He then subtracted the net sales on which the Distributors were already paid
commissions. Last, he multiplied the resulting amount by the commission rate to determine the
additional amounts each Distributor should have been paid. He made that calculation for each of
the Distributors, and also prepared charts breaking down the totals for each year and for each
different product.
In objecting to Mr. Sowards’ testimony, Biomet does not take issue with any of those
steps or question the soundness of his mathematics. Instead, it focuses almost entirely on
attacking his underlying assumptions. It objects, for example, that Mr. Sowards did not take it
upon himself to decide whether the Distributors were entitled to receive commissions on all the
products he included in his calculation, and that Mr. Sowards instead relied on counsel to tell
him on which products to calculate commissions. Biomet also argues that Mr. Sowards failed to
establish a causal link between a breach of the agreements and the damages included in his
opinion.
Biomet’s objections are misplaced. Mr. Sowards’ function as a damages expert is not to
interpret the agreements’ meaning. His role is to answer a simple and narrow question: if the

20

Distributors are right about which products they are entitled to receive commissions on, how
much more should they have been paid? In making that calculation, he properly relied on counsel
to tell him which products the Distributors were entitled to receive commissions on, and he
calculated damages based on that underlying assumption.
Biomet’s objection to this approach appears to have in mind a more complex type of case
where a plaintiff claims to have lost profits due to some unlawful conduct, such that the damages
expert’s task is to trace the effects of that particular conduct. In that situation, the expert may
have to draw on his expertise to construct a “but-for world”—evaluating the condition the
plaintiff would have been in but for the wrongful conduct—and to compare that to the plaintiff’s
actual condition. For that comparison to be relevant to a damages calculation, the expert must
have a basis on which to attribute the differences to the defendant’s wrongful conduct. Experts
who assume away issues critical to that analysis or who fail to connect the “but-for world” to the
theory of liability may fail to satisfy Rule 702.
This is not that sort of case. The theory of liability here is straightforward: a failure to pay
the amounts due under the contract. The meaning of a contract is not a question for a damages
expert to opine on, and Mr. Sowards appropriately relied on counsel to tell him what products to
include in his calculation. Just as a damages expert may assume liability without conducting his
own analysis of whether the defendant is in fact liable, so may Mr. Sowards proceed on an
assumption about which products are subject to the agreement without conducting his own
analysis as to whether that assumption is correct.5 See Smith v. Ford Motor Co., 215 F.3d 713,

5

Mr. Sowards’ testimony at trial must make clear, however, that he is relying on an assumption
that has been provided to him, and that he is not offering an opinion about what the contracts
mean or opining that his damages calculation is based on the correct interpretation of the
contracts.
21

718 (7th Cir. 2000) (“The soundness of the factual underpinnings of the expert’s analysis and the
correctness of the expert’s conclusions based on that analysis are factual matters to be
determined by the trier of fact[.]”); Sys. Dev. Integration, LLC v. Computer Scis. Corp., 886 F.
Supp. 2d 873, 882 (N.D. Ill. 2012) (“It is entirely appropriate for a damages expert to assume
liability for the purposes of his or her opinion.”). His task from there is simply to review the sales
data to determine the amount of those products’ sales and how much in commissions the
Distributors would have been paid on them.6 As the Distributors argue, his task is essentially to
function as a calculator. Nor is there any daylight between breach and damages such that an
inquiry into causation is necessary. The alleged breach is a failure to pay amounts due under the
agreements; any dollar that came due but wasn’t paid was a breach, and the Distributors were
damaged in that same amount.
Of course, the Distributors will need to prove through other evidence that they are in fact
entitled to commissions on the products included in Mr. Sowards’ calculation. Should the jury
find that the Distributors’ interpretation of the agreements is wrong and that they are not entitled
to receive commissions on all the products included in Mr. Sowards’ analysis, the jury can
disregard his opinions. Elorac, Inc. v. Sanofi-Aventis Canada, Inc., No. 14 C 1859, 2017 WL
3592775, at *12 (N.D. Ill. Aug. 21, 2017) (“The jury will undoubtedly be able to understand that
it may not award damages, regardless of whether the evidence reveals a valid measure of
damages, if [the plaintiff] does not establish its right to them by proving that its interpretation of
the contract is correct.”). Mr. Sowards’ role as a damages expert is not to address those threshold
questions, though, but simply to provide a calculation of the damages that would be due if the

6

That is exactly how Biomet’s damages expert went about offering his alternative damages
calculation based on a smaller set of products. [DE 235 (Callahan report) at 11–12].
22

Distributors are right about what products they are entitled to commissions on. Mr. Sowards is
qualified to make that calculation and did so reliably, so his opinion satisfies Rule 702.
Biomet’s other criticisms are insubstantial. Biomet objects, for example, that Mr.
Sowards grouped the product lines into two categories at counsel’s instruction, before adding
those two amounts to produce his damages totals. There is no reason that should affect the
admissibility of his opinions, though. At worst, that intermediate step may be unnecessary, but it
is not confusing or misleading and has no effect on the reliability of Ms. Sowards’ calculations.
In addition, as the Distributors point out, the exhibits attached to Mr. Sowards’ report break
down the damages by each different product line and by each year; combining those products
into two groups before adding them for the final damages amount does not obscure Mr. Sowards’
analysis or pose any potential to mislead the jury. Biomet also objects that Mr. Sowards did not
consider the statute of limitations. That objection assumes, though, that the statute of limitations
necessarily limits the Distributors’ claims, which is not the case. Just the opposite: as discussed
above, Biomet has not shown that the statute of limitations has any remaining potential to affect
the Distributors’ damages. And in any event, Mr. Sowards broke his calculation down by year,
which would allow for any necessary adjustments to reflect any applicable limitations period.
For those reasons, the Court finds that Mr. Sowards’ calculations satisfy Rule 702 and
that they are relevant, in that they are premised on the interpretation of the agreements for which
the Distributors intend to advocate at trial. The Court therefore overrules Biomet’s objections to
Mr. Sowards’ testimony.7

7

Biomet had also objected to Mr. Sowards’ calculation of prejudgment interest, though the
parties agree that prejudgment interest is a question to be decided by the Court after trial, not by
the jury, so the Court need not address that objection. Mr. Sowards also gave an opinion on the
value of future damages, but that is no longer at issue following summary judgment.
23

IV. DISTRIBUTORS’ DAUBERT MOTION
The Distributors also moved to exclude the testimony of Biomet’s two experts: Bryan
Callahan and John Nevin.
1.

Bryan Callahan
The Court first addresses the motion to strike opinions by Bryan Callahan, a damages

expert. Mr. Callahan broke his report into four opinions. He first opined that no damages are due,
and that Mr. Sowards’ conclusion to the contrary is incorrect. Second, he addressed the claim for
future damages. Third, he offered his own alternative calculation of damages assuming that
commissions were due on three additional product categories (sports medicine, trauma, and
biologics). And fourth, he responded to Mr. Sowards’ deposition testimony, primarily
contending that Mr. Sowards’ opinion is flawed because he failed to connect liability and
damages.
The second opinion is no longer at issue after summary judgment, and the Distributors do
not move to exclude the third opinion, in which Mr. Callahan offers an alternative damages
calculation. However, the Distributors move to exclude the first and fourth opinions. They argue
that these opinions present nothing more than legal conclusions and Mr. Callahan’s own
interpretation of the contracts. Thus, they argue, his opinions are not helpful and are not the
product of his expertise as an accountant, so they do not satisfy Rule 702. The Court agrees.
Mr. Callahan’s first opinion is not a damages opinion at all. Instead, Mr. Callahan opines
that Biomet’s interpretation of the contract is correct, so no damages are due. He asserts, for
example, that “[t]he only proper category of products for which the Plaintiffs are entitled to
commissions under the Agreement is SBU04/Biomet Orthopedics.” [DE 235 p. 6]. He also
opines that “there exists no basis for the inclusion of product categories in the Long Term
Commission Program beyond SBU04.” Id. He bases those statements on his own interpretation
24

of the contractual language and on deposition testimony from Biomet’s former general counsel
about the meaning of the contracts. Mr. Callahan has no expertise in interpreting contracts or
ascertaining parties’ intent, though, nor would that be an appropriate subject for his expert
testimony. Biomet attempts to distance itself from these statements in its response brief, claiming
that Mr. Callahan will not provide interpretations of the contracts’ meaning. Yet his opinion in
this regard is that no damages are due because the contracts don’t mean what the Distributors
claim they do. That’s an opinion about the meaning of the contracts, not a calculation of damages
within the ken of an accountant.8 This opinion thus is not helpful and is not the product of Mr.
Callahan’s expertise or a reliable methodology, so the Court grants the motion to exclude this
opinion.9
The Court likewise grants the motion to exclude Mr. Callahan’s fourth opinion, in which
he criticizes Mr. Sowards for failing to connect liability and damages. His opinion in that regard
mirrors the argument that Biomet made in moving to exclude Mr. Sowards’ opinions, that he
failed to consider causation. But as discussed above, there is no difference here between breach
and damages: the alleged breach comes from any amounts that Biomet didn’t pay, and the losses
are those same amounts that the Distributors didn’t receive. Put another way, if commissions
were due on any other products, then Biomet breached the agreement by not paying those
amounts, and the Distributors were injured by not receiving them. The dispute in this case
focuses on that “if,” but that goes to the meaning of the contracts, not the calculation of damages

8

That a damages expert would opine that there are no damages is a hint that the opinion really
addresses liability, not damages, particularly when the theory of liability is the failure to pay
amounts due.

9

Mr. Callahan did not conduct an analysis as to whether any damages would be due if the jury
adopts his interpretation of the contracts, either; he states only that it is his “understanding the
parties do not dispute” that issue. [DE 235 p. 8].
25

once the contracts’ meaning is decided. Indeed, though Mr. Callahan asserts that Mr. Sowards
failed to draw a link between breach and damages, he never articulates what he sees as the
difference or what link he believes is missing. To the extent his criticism is that Mr. Sowards
failed to take it upon himself to determine what the contracts mean, that criticism is misplaced;
that would have been not only unnecessary but inappropriate for a damages expert to do.
Mr. Callahan’s opinions thus are not helpful to the trier of fact to understand the evidence
or determine a fact in issue. Nor is it apparent how Mr. Callahan drew on his expertise or reliably
applyied any expert knowledge or methodology in support of these opinions. To the contrary, the
opinions are confusing and pose a high risk of misleading the jury—they suggest that something
more than a failure to pay the amounts due is required to award damages, and could confuse the
jury into believing that these damages experts are actually offering opinions on the contracts’
meaning (as both Mr. Callahan’s opinions and Biomet’s defense of them repeatedly cross that
line).10 See Fed. R. Evid. 403. The Court therefore grants the motion to strike in this respect as
well. Mr. Callahan’s testimony at trial will be limited to the alternative damages calculation he
offers in his third opinion.
2.

John Nevin
Biomet also offers expert testimony from Dr. John Nevin, a professor and expert in the

fields of marketing, distribution channels, and supply chain management. Biomet offers his
testimony in support of its interpretation of the contracts. His report discusses the nature of the
medical device industry and the relationship between a manufacturer and its distributors, and

10

Mr. Callahan also criticizes Mr. Sowards for grouping the products into two groups, which he
sees as arbitrary. As noted above, the Court fails to see the point of that criticism, but testimony
from a competing expert is not necessary to make that point anyway and would be an
unnecessary distraction. Fed. R. Evid. 403, 702(a).
26

offers Dr. Nevin’s interpretation of the contracts’ meaning. The report summarizes Dr. Nevin’s
opinions as follows:
Biomet made an appropriate decision to use independent distributors (independent
sales representatives) to distribute and sell its orthopedic reconstructive products.
The Legacy Distributors’ claims for lifetime commissions based on their expansive
definition of “Biomet products” is not supported by the parties’ contract, the course
of dealing (i.e. historical behavior) between the parties or basic economic and
business logic.
Biomet has been calculating long-term commissions for the Legacy Distributors
based on a snapshot of the basket of products being sold within their
distributorships at the time each distributor retired. This method appropriately
compensates the Legacy Distributors based on what products they were actually
selling in their territories. This rewards them for the goodwill they built up with the
customers in their exclusive territories. Further, providing long-term commissions
based on actual product sales to customers is consistent with the accompanying
non-compete provisions in the Long-Term Commission Program.
[DE 234-1 p. 5–6].
As the parties agree, expert witnesses are generally not permitted to offer opinions on the
meaning of a contract, as that is usually a question of law for the Court to decide. RLJCS Enters.,
Inc. v. Prof’l Benefit Tr. Multiple Emp’r Welfare Benefit Plan, 487 F.3d 494, 498 (7th Cir. 2007).
The issue is a bit more nuanced here, though, since the Court found that one of the terms in the
contracts (the provision basing lifetime commissions on “sales made within the subject
distributorship at the time this program is initiated”) is ambiguous. That makes the meaning of
that term a question of fact for the jury to decide, and also allows the parties to present evidence,
which can include expert testimony, on the meaning of that term. WH Smith Hotel Servs., Inc. v.
Wendy’s Int’l, Inc., 25 F.3d 422, 429 (7th Cir. 1994) (“Evidence of custom and usage is relevant
to the interpretation of ambiguous language in a contract.”); see Delta Mining Corp. v. Big
Rivers Elec. Corp., 18 F.3d 1398, 1402 (7th Cir. 1994).
While it would thus be possible for some expert testimony to be admissible to inform the
meaning of the contracts, the scope of that testimony would be narrow. Dr. Nevin is an expert
27

regarding distribution channels. Theoretically, that expertise might allow him to discuss the
relationship between various players in the distribution of implantable devices, and how certain
types of contractual provisions could be used to align those parties’ interests or provide certain
incentives. The jury could then decide whether the parties here intended to achieve those
purposes and did so through the provisions included in the contracts. Dr. Nevin’s expertise
would not, however, allow him to simply recite provisions of the contracts and announce how he
thinks they should be read. Nor would it allow him to offer opinions about what the parties here
actually intended when they entered the contracts. Resolving that question will require the jury to
hear conflicting testimony and evidence and decide who to believe; expertise in marketing does
not make a witness any better positioned than the jury to make that sort of credibility finding.
U.S. Gypsum Co. v. Lafarge N. Am. Inc., 670 F. Supp. 2d 768, 775 (N.D. Ill. 2009); Dahlin v.
Evangelical Child & Family Agency, No. 01 C 1182, 2002 WL 31834881, at *3 (N.D. Ill. Dec.
18, 2002) (“[T]estimony that does little more than tell the jury what result to reach is unhelpful
and thus inadmissible, and testimony regarding intent—essentially an inference from other
facts—is even more likely to be unhelpful to the trier of fact.” (internal quotation omitted)). An
expert witness cannot be used simply to clothe a party’s arguments in an air of expertise, either.11
In moving to strike Dr. Nevin’s opinions, the Distributors argue that his opinions are
overwhelmingly devoted to those latter issues and constitute legal conclusions outside his
purview as an expert witness. In response, Biomet conceded that at least some of Dr. Nevin’s

11

See Fed. R. Evid. 704 committee notes (“The abolition of the ultimate issue rule does not
lower the bars so as to admit all opinions. Under Rule 702 and 702, opinions must be helpful to
the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These
provisions afford ample assurances against the admission of opinions which would merely tell
the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They
also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria.”).
28

opinions fit that description, and agreed not to elicit the following opinions from Dr. Nevin’s
report at trial:


In summary, a snapshot of the basket of products being sold within a distributorship at
the time a distributor initiates retirement is the basis for the long term commissions. The
distributors are not entitled to commissions they claim on products they did not sell or on
products that did not exist until after they retired.



The Legacy Distributors’ claim for lifetime commissions based on their expansive
definition of “all” Biomet product sales in their territory(s) is not supported by the
contract, the historical behavior between the parties, or basic economic and business
logic.



The Distributorship Agreement never granted the Legacy Distributors the right to receive
any commission on products their distributorship did not sell in their territories at the
time of their retirement.

[DE 251 p. 8 (“Biomet appreciates that the specific statements above could be interpreted by a
jury as a legal interpretation of the contract, and agrees not to elicit them at trial.”)].
The problem, however, is that the improper opinions extend well beyond those three
examples. For example, Dr. Nevin asserts that the payments Biomet has been making
“appropriately compensate[] the Legacy Distributors based on what products they were actually
selling in their territories.” [DE 234-1 p. 6]. He also asserts that the “Biomet products actually
sold by the Legacy Distributors became the basis for their Long Term Commission Program,”
and that “Biomet reasonably contends that the Plaintiffs were and are entitled to be paid longterm commissions on the products that were being sold in their distributorship at the time they
retired.” Id. p. 6–7. He also claims that the parties’ course of dealing “provides valuable insight
to the meaning of the contract between the parties.” Id. p. 10. Those statements are no more
acceptable than the ones Biomet concedes are improper, as they assert conclusions beyond his
expertise and beyond the role of an expert witness. Much of the rest of his report consists of
reciting the language of the contracts or testimony by Biomet’s corporate representative. In
neither of those respects is he drawing on his expertise and offering an opinion that would be
29

helpful to the jury. Dr. Nevin also offers opinions about what the parties intended when they
entered the contract, such as that the “commissions were not designed to pay the Legacy
Distributors for market development and sales work they did not perform.” [DE 234-1 p. 13; see
also p. 14 (“The long term commission was an incentive Biomet offered its distributors to
encourage productivity and loyalty.”)]. As already discussed, that sort of credibility finding from
an expert witness is not helpful. U.S. Gypsum, 670 F. Supp. 2d at 775.
Excising these inappropriate opinions from Dr. Nevin’s report would require extensive
blue-penciling. As the Distributors argue, these opinions and the discussions in their support
permeate nearly the entirety of the report. And even if that content could be severed, what little
would remain would not require expert testimony to address. For example, in two of his
opinions, Dr. Nevin talks about the need for medical device manufacturers to develop
relationships with the surgeons that choose which devices to use, and he opines that it was
reasonable for Biomet to do so through distributors instead of an in-house salesforce. The latter
opinion is not relevant, and the former point could be established through any or all of the fact
witnesses in this case—Biomet’s own representatives could testify about the nature of the
medical device industry, as could any of the Distributors.
At the final pretrial conference, Biomet argued that Dr. Nevin would opine that it would
be irrational for a supplier to pay a distributor lifetime commissions on products they never sold.
To the extent such an opinion is actually encompassed in Dr. Nevin’s report, the report offers no
reliable explanation or methodology in support of that opinion. The report notes, for example,
that providing long-term commissions on products a distributor sold can incentivize the
distributor both to develop relationships with purchasers and to preserve the purchasers’
relationship with the manufacturer upon the distributor’s retirement. But the report never

30

considers or addresses whether any additional business purpose could support broader payments
(such as to incentivize distributors to leave an established competitor and take a risk in joining a
start-up company). The report thus does not support an opinion that no purpose could exist for
those sorts of payments. Instead, Dr. Nevin’s analysis in this regard consists primarily of offering
his own conclusory assertions about what Biomet actually intended, which is not helpful or the
product of his expertise.12 And to the extent he is only offering a narrower opinion—that
providing long-term commissions on products a distributor sold can serve some business
purposes—expert testimony is not necessary for that point in light of all the lay witnesses who
can testify to the same effect, as already noted.
In addition, allowing this testimony to come in through an expert would create other
problems, including the risk that the jury would attach undue weight to expert testimony on this
subject or would misconstrue Dr. Nevin’s testimony as offering opinions about what the parties
actually intended or how the contracts should actually be interpreted. The manner in which Dr.
Nevin’s report repeatedly conflates those subjects illustrates those risks. And on that same note,
the report would have to be thoroughly marked-up or even rewritten to confine Dr. Nevin’s
testimony to its appropriate scope (to the extent there is some core of expert opinion in the report
that could be admitted), which would make it very difficult to delineate exactly what Dr. Nevin
could testify to at trial. Given the limited utility of expert testimony in light of the lay witnesses
who can testify on the relevant points, the risks of wasting time, confusing the issues, and

12

[DE 234-1 p. 14–15 (“The long term commission was an incentive Biomet offered its
distributors to encourage productivity and loyalty. . . . Biomet realized these Legacy Distributors
developed relationships with the physicians, surgeons and hospital customers they called on in
their territories. . . . [T]he purpose of these non-compete provisions was to assure Biomet that the
distributors would not take their experience, customer knowledge and relationships built in their
territories and share it with existing or potential competitors. . . . [T]hat is the knowledge Biomet
was trying to protect through the non-compete in its Long Term Commission Program.”)].
31

misleading the jury substantially outweigh the probative value of this testimony, so the Court
would exclude it under Rule 403, to the extent any aspects of the report would otherwise satisfy
Rule 702. For all of those reasons, the Court grants the motion to exclude Dr. Nevin’s
testimony.13
V. OTHER ISSUES
A number of other issues have come to light through the parties’ pretrial filings that can
be addressed.
Multiple defendants
The Distributors filed this action against both Biomet, Inc. and Zimmer Biomet Holdings,
Inc. Biomet was the party to the contracts, but the Distributors’ complaint offered various
theories for holding Zimmer Biomet liable for any breach as well. At the final pretrial
conference, the parties discussed whether it will be necessary to distinguish between the two
entities at trial, or if they will be able to reach a stipulation to avoid that complication. The Court
encourages the parties to continue conferring in that regard. Otherwise, the parties would have to
present evidence on additional issues, and the jury would have to be instructed and return
decisions on those issues, which would add further complications with little apparent gain. Also,
neither party’s proposed jury instructions included instructions on any of the theories of liability

13

Biomet also suggested at the final pretrial conference that the Court should hold a hearing to
evaluate Dr. Nevin’s opinions, but that is not warranted. Rule 26 requires an expert report to
contain “a complete statement of all opinions the witness will express and the basis and reasons
for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). A hearing is not an opportunity to allow an expert to
offer new or different opinions, or to provide additional explanation for them, any more than a
deposition would be. Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008)
(“Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them
with later deposition testimony.”); Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998)
(holding that a district court is not required to hold a hearing before excluding expert testimony).
32

against Zimmer Biomet.14 Thus, absent a stipulation, the parties should confer to determine
which specific theories the Distributors intend to pursue against Zimmer Biomet, and should
submit proposed jury instructions that inform the jury what findings it would have to make to
return a verdict as to Zimmer Biomet.
Exhibit and deposition objections
The parties have also submitted voluminous objections to exhibits and depositions. First,
as to depositions, the parties’ filings do not allow the Court to resolve the objections. The
Distributors asserted hundreds of objections, yet did not even put those objections into words;
most of their objections consist only of a number, apparently referring generically to a rule of
evidence. If Biomet is going to be put to the trouble of responding to these objections, and the
Court to ruling on them, the Distributors ought to at least verbalize their objections. The parties
also noted at the final pretrial conference that many of the objections will rise or fall with issues
raised in the motions in limine or Daubert motions, and that the parties could revisit the
objections once those matters have been decided. That has now occurred. Accordingly, the Court
requests that the parties confer and prepare a single spreadsheet that identifies, for any witness
expected to testify by deposition: (1) the selection being objected to; (2) a concise explanation
for each objection; and (3) a concise response.
As for the exhibits, the parties indicated that those objections may be affected by the
other pretrial rulings, as well. Biomet’s exhibit list also included catch-all categories including
every exhibit used at any deposition, and all written discovery produced in this case. That is not
acceptable; counsel need to consider what exhibits they anticipate using at trial and to identify

14

The Distributors’ only proposed instruction in that regard includes the standard for jointly
committed torts, which is not relevant to liability for a breach of contract.
33

those exhibits. Accordingly, to allow the Court to resolve these objections in an orderly manner,
the Court likewise requests that the parties confer and submit spreadsheets identifying (1) each
exhibit; (2) a concise explanation for any objection; and (3) a concise response.
Demonstrative exhibits
Next, the parties filed a motion to set deadlines for the disclosure of demonstrative and
summary exhibits. They propose exchanging those exhibits three days before trial, and they
further propose that they will not exchange in advance any visual aids to be used during opening
statements or closing arguments. First, exchanging demonstrative and summary exhibits only
three days before trial is bound to invite problems. Instead, the parties should exchange any
demonstrative or summary exhibits they intend to use at least 2 weeks before trial, and should
promptly bring any objections to the Court’s attention. As to visual aids for use during opening
statements or closing arguments, the Court will not require those materials to be disclosed in
advance in light of the parties’ agreement, but the Court would encourage the parties to do so
anyway so that those presentations are not interrupted should an objection arise.
Verdict forms
The Distributors’ proposed verdict forms ask the jury to indicate which, if any, additional
categories of products are covered by the lifetime commissions program. The Court agrees that
an inquiry along those lines is appropriate, as the verdict will then delineate which commissions
are due going forward. Biomet objected to the categories included in the Distributors’ proposed
verdict form, on the basis that the jury’s finding about the scope of the provision could be more
nuanced. However, it did not submit any proposal of its own on that topic or suggest any
alternatives. Accordingly, the parties should confer and attempt to devise an appropriate inquiry

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to the jury on the scope of long-term commissions due; if they are unable to agree, they should
submit their revised proposals.
VI. CONCLUSION
The parties’ motions in limine are granted in part and denied in part, as discussed above.
[DE 224, 241]. The Court denies the motion to strike Mr. Sowards’ damages testimony, [DE
227], and grants the motion to strike expert testimony by Mr. Callahan and Dr. Nevin. [DE 233].
The Court grants in part the joint motion to set deadlines for demonstrative and summary
exhibits. [DE 295]. Finally, the Court grants the parties’ joint motion for a status conference,
[DE 300], and will contact counsel to set a status conference.
SO ORDERED.
ENTERED: November 13, 2019
/s/ JON E. DEGUILIO
Judge
United States District Court

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