Whitesell Corporation v. Whirlpool Corporation et al

Filing 634

(VACATED) MEMORANDUM OPINION AND ORDER denying 564 as moot Plaintiff's motion in limine to exclude certain testimony of Defendant's expert witness Guy Avellon ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb) Modified on 11/4/2009; vacated per order 665 (gjf).

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

W H I T E S E L L CORPORATION, P l a in tif f , C a se No. 1:05-CV-679 v. H O N . ROBERT HOLMES BELL W H I R L P O O L CORPORATION, W H IR L P O O L MEXICO S.A. de C.V., a n d JOSEPH SHARKEY, D e f e n d a n ts , and W H I R L P O O L CORPORATION, C o u n te r- P l a in tif f , v. W H I T E S E L L CORPORATION, C o u n ter -D e f e n d a n t. / M E M O R A N D U M OPINION & ORDER T h is matter comes before the Court on Plaintiff Whitesell Corporation's motion in lim in e to exclude certain testimony of Defendant Whirlpool Corporation's expert witness, G u y Avellon (Dkt. No. 564). On October 20, 2009, this Court entered a memorandum o p inion and order denying Defendant's motion to exclude the testimony of Plaintiff's expert w itn ess John Grey as moot (Dkt. No. 633). The Court determined that, to the extent Mr.

G re y's purported testimony was probative only of Plaintiff's claims for lost profits for parts o u t s id e the scope of Whirlpool commodity codes 497 and 503 and for parts Defendant re d e sig n e d to "circumvent the agreement," Mr. Grey's testimony was no longer relevant to an y claim or defense in light of the Court's October 13, 2009, decision to grant summary ju d g m e n t in favor of Defendant on both of these claims. (Id.) Defendant retained an expert w itn e ss , Guy Avellon, to rebut the testimony of Mr. Grey. It appears to the Court that, like M r . Grey's testimony, Mr. Avellon's testimony is probative only of Plaintiff's claim for lost p ro f its for non-497 and 503 parts and parts Defendant redesigned to "circumvent the a g re e m e n t." It thus appears to the Court that Mr. Avellon's testimony is no longer relevant u n d e r Federal Rule of Evidence 401 and is inadmissible under Rule 402 of the same.1 A c c o r d i n g l y, I T IS HEREBY ORDERED that Plaintiff's motion in limine to exclude certain te s tim o n y of Defendant's expert witness Guy Avellon (Dkt. No. 564) is DENIED as moot.

Dated: October 20, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

The Court also notes that Defendant has indicated that it will not offer Mr. Avellon's testimony if Mr. Grey does not testify. (Dkt. No. 594, Def.'s Resp. 2.) As noted in the Court's October 20, 2009, memorandum opinion and order, Mr. Grey is not permitted to testify if his testimony is not relevant to any of Plaintiff's live claims, as appears to be the case. (Dkt. No. 633, Op. & Order.) 2

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