Ruppert, Lawrence G. v. Alliant Energy Cash Balance Pension Fund

Filing 343

ORDER denying 334 Motion for Reconsideration by Plaintiffs Thomas A. Larson and Lawrence G. Ruppert. Signed by District Judge Barbara B. Crabb on 6/22/2010. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------L A W R E N C E G. RUPPERT and T H O M A S A. LARSON, o n behalf of themselves and on behalf of all others similarly situated, ORDER Plaintiffs, 0 8 - cv -1 2 7 - b b c v. A LL IA N T ENERGY CASH BALANCE PEN S IO N PLAN, D efendan t. --------------------------------------------In an order entered June 18, 2010, I granted defendant's motions in limine related to expert testimony, dkts. ## 320-21, concluding that (1) Lawrence Deutsch would not be p erm itted to offer a theory that the future interest credits could be calculated by combining the plan's asset return rate with the difference between the interest crediting rate and the as s et return rate because that theory was not in his expert report; and (2) "to the extent D eutsch's testimony amounts to legal opinions or an unfounded `concurrence' on Maxam's w o r k of another, it will be excluded." At the time the order was released, plaintiffs had not responded to either motion to strike although trial was looming. Now they have filed a m otion for reconsideration, explaining that they intended to file a response and arguing that

it was error to prevent Deutsch from testifying about his "new" theory and contending that som e of the testimony stricken from Deutsch's report was not legal conclusion or unfounded "co n cu rren ce." I will deny plaintiffs' motion. First, although plaintiffs assert that Deutsch's original expert report included reference to "a future anticipated rate of return methodology" and used the Plan's funding assumption o f 8.5%, plaintiffs do not identify any passage in which Deutsch proposed that the rate of return can be combined with the difference between the interest crediting rate and the rate o f return. Plaintiffs contend that the report should be considered required supplementation, b ut do not describe any late-filed evidence that would have required Deutsch to supplement his original report or explain why Deutsch's new theory was not a part of the original. Fina lly, although plaintiffs argue that defendant will not be prejudiced by allowing the late supplem entation , this overlooks the fact that plaintiffs have prevailed on striking defendant's expert testimony rebutting Deutsch's theory. S eco n d, as to Deutsch's use of legal conclusions and unfounded "concurrence" of M axam 's results, plaintiffs seem to misunderstand the scope of the ruling. The court did not strike Deutsch's statements passage-by-passage. Nor did it prohibit all discussion of the stochastic methodology, which was the one used by Maxam. What is prohibited is that D e u ts ch attempt to interpret statutes or otherwise assert legal opinions, or attempt to suggest that Maxam's results were correct, rather than the general methodology he used.

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ORDER IT IS ORDERED that the motion for reconsideration filed by plaintiffs Lawrence G. R uppert and Thomas A. Larson, dkt. #334, is DENIED. E n tered this 22d day of June, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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