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Andy Mohr Truck Center, Inc. v. Volvo Trucks North America

United States District Court, S.D. Indiana, Indianapolis Division

February 2, 2015

ANDY MOHR TRUCK CENTER, INC., Plaintiff,
v.
VOLVO TRUCKS NORTH AMERICA, a division of VOLVO GROUP NORTH AMERICA LLC, Defendant.

ENTRY ON VARIOUS PRETRIAL MOTIONS

WILLIAM T. LAWRENCE, District Judge.

Before the Court are three motions: Andy Mohr Truck Center, Inc.'s Motion in Limine (Dkt. No. 209) and Motion to Strike Second Rebuttal Report of Herbert Walter (Dkt. No. 256) and Volvo Trucks North America's Motion to Strike/Exclude Expert Testimony of Gary Kleinrichert (Dkt. No. 278). The motions are fully briefed, and the Court, being duly advised, resolves them as set forth below.[1]

I. Andy Mohr Truck Center, Inc.'s Motion in Limine

On April 22, 2014, Andy Mohr Truck Center, Inc., ("Mohr Truck") filed a motion in limine asking this Court to enter an order precluding Volvo Trucks North America ("Volvo") from introducing "any evidence or testimony regarding how Volvo's profitability as reported on the monthly gross profit model analysis' affected the level of price concession, " and "any evidence or testimony regarding competitive factors or specifications not offered by its Rule 30(b)(6) designee and not contained in the Retail Sales Allowance ("RSA") (price concession) spreadsheet or any other documents produced in this litigation." Dkt. No. 209 at 1. A brief procedural history relevant to this motion follows.

After discovery was reopened on Mohr Truck's failure to support claim, Mohr Truck took certain depositions of Volvo representatives pursuant to Federal Rule of Civil Procedure 30(b)(6). Mohr Truck claims now-and claimed the same to the Magistrate Judge, see Dkt. No. 204-that Volvo's designees were unable to provide specific reasons why Mohr Truck received less favorable price concessions; rather, Mohr Truck claims their answers are "vague generalities."[2] Further, during two of the depositions, Volvo representatives referred to a monthly financial report in explaining that Volvo took its financial position into consideration when making the decision whether to give certain price concessions. Mohr Truck requested that these monthly reports be produced, but this request was refused by Volvo and the Magistrate Judge declined to order production. See id. It is this background that prompted the present motion in limine to prevent Volvo from relying on anything but their "vague generalities" and to prevent any testimony about the monthly financial reports.

Seventh Circuit precedent necessitates that this Court DENY Mohr Truck's motion. In A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630 (7th Cir. 2001), the Seventh Circuit noted the following:

One sentence of [] Rule [30(b)(6)] provides, "The persons so designated shall testify as to matters known or reasonably available to the organization." In [] light of that sentence, McPherson apparently construes the Rule as absolutely binding a corporate party to its designee's recollection unless the corporation shows that contrary information was not known to it or was inaccessible. Nothing in the advisory committee notes indicates that the Rule goes so far. McPherson cites Rainey v. American Forest & Paper Ass'n, Inc., 26 F.Supp.2d 82, 94 (D.D.C. 1998), in support, but two other district courts have reached different conclusions and we think theirs is the sounder view. See Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F.Supp.2d 786, 791 (N.D. Ill. 2000) ("testimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes"); United States v. Taylor, 166 F.R.D. 356, 362 n. 6 (M.D. N.C. 1996) (testimony of Rule 30(b)(6) designee does not bind corporation in sense of judicial admission).

Id. at 637 (emphasis added). Thus, Volvo is not "bound" by the testimony it provided via its Rule 30(b)(6) designees, and this Court cannot preclude Volvo from offering testimony different from what its Rule 30(b)(6) designees gave during the depositions. That said, Mohr Truck is free to use Volvo's designees' deposition testimony-like any testimony given during a deposition- for impeachment purposes at trial.

With regard to the monthly financial reports, Volvo noted during the Rule 30(b)(6) depositions that it generally took its financial situation into consideration in determining what level of price concessions it gave to certain dealers. It is certainly free to testify as such at trial; as the Magistrate Judge noted, "Volvo's overall financial position likely is a factor in many decisions made by the company." Dkt. No. 204 at 5. The Court has no reason to believe that Volvo intends to offer specific information about the monthly reports it refused to produce in discovery; if it does attempt to offer such evidence at trial, Mohr Truck should make the appropriate objection at that time.

II. Andy Mohr Truck Center, Inc.'s Motion to Strike Second Rebuttal Report of Herbert Walter

On July 3, 2014, Mohr Truck filed a motion to strike certain paragraphs, attachments, and appendices of the rebuttal report of Volvo's expert, Herbert E. Walter. For the reasons that follow, this motion is DENIED.

On April 25, 2014, the Magistrate Judge established new deadlines for the filing of expert reports after Mohr Truck's failure to support claim was reinstated by the Court. See Dkt. No. 218. Specifically, by May 8, 2014, Mohr Truck was to file its expert report, and by June 19, 2014, Volvo was to file its "rebuttal" expert report.

On May 8, 2014, Mohr Truck's expert, Gary Kleinrichert, issued a report "ascertaining the damages Mohr Truck incurred as a result of Volvo Trucks' alleged failure to support Mohr Truck's efforts." Dkt. No. 281-1 ΒΆ 4. During Kleinrichert's deposition, he noted that his damages report assumed that Volvo failed to support Mohr Truck but that he had no opinion on the matter. See Dkt. No. 257-2, Kleinrichert Dep., at 21 ("I have assumed that they have not supported Mohr Truck Center as they've alleged. I don't have an opinion on whether they have or have not supported Mohr Truck Center.").

Subsequently, on June 19, 2014, Volvo's expert, Herbert E. Walter, issued a report assessing the level of support provided by Volvo Trucks to Andy Mohr Truck Center and reviewing and commenting on Kleinrichert's report. At his deposition, Walter admitted that his opinions regarding the level of support provided by Volvo was not "a rebuttal report." Dkt. No. 298-1, Walter Dep., at 118. Thus, Mohr Truck seeks to strike Walter's opinions on the level of support provided by Volvo because "such opinions are well beyond the scope of a proper rebuttal report[.]" Dkt. No. 257 at 1; see Federal Rule of Civil Procedure ...


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