Whitesell Corporation v. Whirlpool Corporation et al

Filing 644

MEMORANDUM OPINION AND ORDER denying 609 Defendant Whirlpool Corporation's motion in limine to exclude the testimony of Plaintiff Whitesell Corporation's witnesses regarding what they allegedly "learned through discovery" ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb) Modified text on 10/23/2009 (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 Defendant Whirlpool Corporation's motion in limine to exclude the testimony of Plaintiff Whitesell Corporation's witnesses regarding w h a t they allegedly "learned through discovery" (Dkt. No. 609). For the reasons that follow, th is motion will be denied.

In this motion in limine, Defendant "is seeking to preclude Neil Whitesell (or any o t h e r Whitesell witness) from testifying at the trial of this matter about what he (or others) `lea rne d through discovery.'" (Dkt. No. 609, Def.'s Mot. at 1.) Defendant directs the Court's attentio n to excerpts of Neil Whitesell's deposition testimony in which Mr. Whitesell appears to offer opinion testimony based on facts he "learned through discovery" and of which he m a y not have had personal knowledge. (Id. at Ex. 1.) Defendant's motion is based on Rule 6 0 2 of the Federal Rules of Evidence, which requires that lay opinion testimony be based on a witness' "personal knowledge of the matter." If, and when, during trial, Mr. Whitesell, or any other lay witness, offers opinion t e s t i m o n y based on facts "learned through discovery" of which the witness does not have p e rs o n a l knowledge, the Court invites Defendant to make a proper objection at that time. T h e Court acknowledges that lay opinion testimony based on facts of which a witness does n o t have personal knowledge is inadmissible under Rule 602, but opts to reserve its decision to exclude such testimony until Plaintiff attempts to introduce it. Upon proper objection at trial, the Court may require the offering party to introduce "sufficient [evidence] to support a finding that the witness has personal knowledge of the matter," in accordance with Rule 602. Accordingly, I T IS HEREBY ORDERED that Defendant's motion in limine to exclude the te s tim o n y of Whitesell witnesses regarding what they allegedly "learned through discovery" ( D k t . No. 609) is DENIED without prejudice. Dated: October 22, 2009 /s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE 2