Whitesell Corporation v. Whirlpool Corporation et al

Filing 671

MEMORANDUM OPINION AND ORDER granting in part and denying in part 608 Defendant Whirlpool Corporation's motion in limine to exclude testimony of Neil Whitesell regarding "miscoded" parts ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

W H IT E S E L L CORPORATION, P la in tif f , C a s e No. 1:05-CV-679 v. H O N . ROBERT HOLMES BELL W H IR 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 IR L P O O L CORPORATION, C o u n te r - P la in tif f , v. W H IT E S E L L CORPORATION, C o u n te r-D e f e n d a n t. / M E M O R A N D U M OPINION AND ORDER T h is matter comes before the Court on Defendant Whirlpool Corporation's motion in limine to exclude testimony of Neil Whitesell regarding "miscoded" parts (Dkt. No. 608). For the reasons that follow, this motion will be granted in part and denied in part. P la in tif f seeks lost profits for fifteen non-497/503 parts on the ground that they were c o ld -h e a d e d and that the "intended scope" of the 2002 SAA extends to all cold-headed parts.

Defendant expects that, in support of this claim, Plaintiff will attempt to offer testimony from N e il Whitesell, Plaintiff's CEO, that the fifteen parts for which Plaintiff claims lost profits w e re cold-headed and that these parts were "miscoded." D e f e n d a n t first moves to exclude Mr. Whitesell's testimony on the ground that it is n o t relevant because the "intended scope" of the 2002 SAA included only parts within W h irlp o o l commodity codes 497 and 503. However, whether the "intended scope" of the 2 0 0 2 SAA extended only to parts within codes 497 and 503, or whether it extended to all c o ld -h e a d e d and threaded parts, is an ambiguous question of contract interpretation that will b e decided by the jury. Plaintiff's claim for lost profits for the fifteen parts depends not only o n the jury's interpretation of the "intended scope" of the 2002 SAA, but on Plaintiff's ability t o prove that the fifteen parts were, in fact, cold-headed, and Mr. Whitesell's testimony is re le v a n t to this portion of Plaintiff's claim. Defendant next moves to exclude Mr. Whitesell's testimony on the ground that te s tim o n y relating to the manufacturing process used to create certain parts requires " s c ie n tif ic , technical, or other specialized knowledge," and, thus, Rule 701 of the Federal R u le s of Evidence prohibits Mr. Whitesell, a lay witness,1 from offering this testimony. This lim ita tio n is imposed on lay testimony to prevent the parties from "evad[ing] the expert w itn e s s disclosure requirements set forth in Fed. R. Civ. P. 26 and Fed. R. Crim. P. 16 by s im p ly calling an expert witness in the guise of a layperson." Fed. R. Evid. 701 advisory c o m m itte e 's note. Despite Mr. Whitesell's experience in manufacturing cold-headed and threaded fasteners, he was not designated as an expert witness in this matter. 2
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However, Rule 701 does not preclude business owners, officers, and employees from o f f e rin g testimony based on "particularized knowledge that the witness has by virtue of his o r her position in the business." Id. This is because such testimony is not based on " s c ie n tif ic , technical, or specialized knowledge," as those terms are contemplated by Rule 7 0 1 , but on the witness's personal experience in working with the subject matter of the te s tim o n y. Id. The advisory committee's note to Rule 701 relies on United States v. W e s tb o o k , 896 F.2d 330 (8th Cir. 1990), to illustrate this concept. In Westbrook, the g o v e rn m e n t sought to have two lay witnesses testify that a particular substance was a m p h e ta m i n e . The Court held that this was a proper subject of lay testimony because, as h e a v y amphetamine users, the witnesses had personal knowledge of the appearance of the d ru g . Id. at 336. Similarly, as a long-time employee of Whitesell Corporation, a company that s p e c ia liz e s in the production of cold-headed and threaded fasteners, Mr. Whitesell is in t i m a t e ly familiar with the forming process used to create, and the appearance of, coldh e a d e d and threaded fasteners. Mr. Whitesell is competent to provide lay testimony

re g a rd in g the process used to create the fifteen parts for which Plaintiff claims lost profits, b a s e d on the appearance of those parts and other personal knowledge accumulated by Mr. W h ite se ll by virtue of his experience in the industry. H o w e v e r, Defendant has also expressed concern that Mr. Whitesell will attempt to o f f e r testimony that certain parts were "miscoded," i.e., that Defendant should have placed th e m in either Whirlpool commodity code 497 or 503 but did not. As Mr. Whitesell

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indicated in his deposition testimony, his personal knowledge of fasteners and fastener p ro d u c tio n does not include an understanding of Whirlpool's system of assigning commodity c o d e s to part numbers. (Dkt. No. 608, Ex. 2 p. 77-78.) Because Rule 701 requires that te s tim o n y of a lay witness be "rationally based on the perception of the witness," Mr. W h ite s e l l may not testify as to a subject matter with which he has no understanding or f a m ilia rity. Thus, although Mr. Whitesell may offer opinion testimony that parts were coldh e a d e d or threaded, Mr. Whitesell may not offer opinion testimony that parts were " m is c o d e d ," or any other testimony relating to Defendant's system of assigning commodity c o d e s to part numbers. Accordingly, I T IS HEREBY ORDERED that Defendant's motion in limine to exclude testimony o f Neil Whitesell regarding "miscoded" parts (Dkt. No. 608) is GRANTED IN PART and D E N I E D IN PART. To the extent the motion seeks to preclude Mr. Whitesell from offering te s tim o n y relating to Defendant's system of assigning commodity codes to part numbers, the m o tio n is GRANTED. To the extent the motion seeks to preclude Mr. Whitesell from o f f e rin g testimony relating to the forming process used to create a particular part, the motion is DENIED.

Dated: November 4, 2009

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

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