United States District Court, S.D. Indiana, Indianapolis Division
ENTRY FOLLOWING FINAL PRETRIAL CONFERENCE
WALTON PRATT, JUDGE
matter was before the Court for a Final Pretrial Conference
on January 18, 2017, at the Indianapolis Courthouse.
Plaintiff Petroleum Helicopter, Inc. (“PHI”)
appeared by counsel Michael Ross Cunningham and Bruce L.
Kamplain. Defendant Rolls Royce Corp. (“Rolls
Royce”) appeared by counsel Kevin R. Tully and Howard
Carter Marshall. The Court Reporter was David Moxley. During
this final pretrial conference, the trial of this case was
discussed and the following rulings were made and directions
given pursuant to Trial Rule 16.
to congestion of the Court's trial calendar, the six-day
jury trial is rescheduled to begin on Monday, April 3,
2017, at 9:00 a.m. in Courtroom 344, Birch Bayh Federal
Building and United States Courthouse, 46 East Ohio Street,
Indianapolis, Indiana. The doors to the Courtroom will be
unlocked at 7:30 a.m. Attorneys are ordered to appear by 8:00
a.m., and jury selection will begin promptly at 9:00 a.m. The
issue to be tried is Plaintiff PHI's claim of breach of
implied warranty of merchantability against Defendant Rolls
Court reviewed the parties' witness lists to determine
who will testify and the subject of their testimony.
a. PHI named fourteen witnesses: Tom Yakubovich, Mike Block,
Davin Landry, Terry Kaufman, Tony Gonzelez, Stephen Edney,
Rick DeJong, Doug Cook, Ron Roessler, Sharon Desfor, Gerhard
Fuchs, Rolls Royce's Corporate Representative, Ross
Cunningham, and Bruce Kamplain. (Filing No. 210.)
Rolls Royce filed written objections to Gerhard Fuchs and
raised oral objections to Ross Cunningham and Bruce Kamplain,
which are addressed later in this Entry. (Filing No.
b. Rolls Royce presented a list of nineteen named witnesses:
Stephen Edney, Dough Cook, Raymond Claxton, Michael Weber,
Kathy Hunter, Scott Brendel, Ronald Roessler, Rege Hall, Rick
Dejong, Pablo Bravo, James Joseph Dardar, Michael Wittman,
Jared Brunet, Tad J. Kling, Michael Block, Tom Yakubovich,
Gerhard Fuchs, Sharon Desfor, and Douglas Stimpson.
(Filing No. 227.) PHI filed written objections to:
1) Douglas Stimpson, 2) Michael Wittman, 3) Jared Brunet, 4)
James Joseph Dardar, 5) Pablo Bravo, 6) Tad Kling, 7) Tom
Yakubovich, 8) Michael Block, and 9) Sharon Desfor, which are
addressed later in this Entry. (Filing No. 244.)
c. There are numerous overlapping witness. To avoid calling
witnesses (other than party witnesses) more than once, the
parties should conduct direct and/or cross-examinations the
first time a witness is called.
Court reviewed the parties' exhibit lists.
a. The parties' Joint Exhibit List designated 1, 258
exhibits (Filing No. 229). PHI filed written
objections to exhibits: 1-56; 300-421; 600-669; 800-1, 258
(Filing No. 241), and Defendant filed written
objections to: 1-63; 300-421; 600-669; 800-1, 258. The
parties advised that recent rulings by the Court will allow
them to amend and reduce both witness and exhibit lists. The
parties are to file amended witness lists and exhibits list
by March 3, 2017.
Discussion was held regarding pending motions.
a. Rolls Royce's Motion to Separate Witnesses (Filing
No. 242) is granted. Rolls Royce seeks to exclude
witnesses from trial other than when testifying, except
designated party representatives, pursuant to Federal Rule of
Evidence 615. PHI objects, and requests that the Court allow
its expert witness, Gerhard Fuchs, to remain in the courtroom
throughout the trial. PHI contends that Dr. Fuchs'
presence is essential to the presentation of its case and the
purpose of Dr. Fuchs' presence in the courtroom is to
consider and address the testimony of PHI's three
non-retained experts, rather than to rebut the testimony of
Rolls Royce's witnesses. See United States v.
Olofson, 563 F.3d 652, 661 (7th Cir. 2009) (holding a
district court did not abuse its discretion in denying a
defendant's request to allow its expert witness to remain
in the courtroom in order to rebut the opposing party's
testimony, where the defendant failed to show that the
expert's presence was essential to the presentation of
the his case). Thus far, PHI has not met this burden. Rolls
Royce's motion for separation of witness is granted and
PHI's objection is overruled.
b. Rolls Royce's Motion to Strike Dr. Fuchs'
Supplemental Expert Report (Filing No. 252). Rolls
Royce seeks to exclude Dr. Fuchs' supplemental expert
report exchanged on January 16, 2017, outlining Dr.
Fuchs' most recent experiment exposing No. 2 bearing
materials to various heat temperatures. In his supplemental
report, Dr. Fuchs concludes that the No. 2 bearing material
had to reach in excess of 1500° Fahrenheit, contradicting
the temperatures reported by Roll Royce's witnesses:
Claxton, Rossler, and Cook. Rolls Royce contends that the
supplemental report is untimely and allowing the opinions
would amount to surprise and undue prejudice because it fails
to afford Rolls Royce the opportunity to respond. Rolls Royce
alternatively requests the Court to continue trial in order
to give Rolls Royce the opportunity to examine Dr. Fuchs'
experiment and prepare a response. Because the trial has been
continued on the Court's motion, undue prejudice and
surprise are not likely. Rolls Royce argues that said
evidence should still be excluded “outright”
because PHI's expert should have done the testing
earlier, and “we have deadlines for a reason.”
PHI was not afforded an opportunity to respond to the Motion
to Strike, therefore the Court will give PHI until January
23, 2017 to respond, and any reply is due on or before
January 26, 2017. The motion is taken under advisement.
Discussion was held regarding PHI's Objections
(Filing No. 244). PHI objects to the following:
a. Deposition Testimony of Douglas Stimpson. PHI objects to
Rolls Royce offering any testimony from Stimpson because
Rolls Royce did not designate him as an expert witness. PHI
contends that it retained Stimpson as an expert in the
parallel Louisiana litigation, regarding its claims against
Apical Industries Inc. and Offshore Helicopter Support
Services, Inc. PHI did not designate Stimpson as an expert
regarding the issues in this case, and asserts that if Rolls
Royce intended to offer Stimpson as an expert it was required
to designate Stimpson as an expert witness in its
disclosures. PHI argues, because Rolls Royce did not
designate Stimpson as an expert, it may not offer
Stimpson's deposition testimony as expert opinion
testimony at trial. In response, Rolls Royce contends that,
although Stimpson was disclosed in the Louisiana case prior
to Rolls Royce's expert disclosure deadline in this case,
Rolls Royce was unaware of Stimpson prior to disclosing its
experts. There is no dispute that Rolls Royce was required to
disclose Stimpson as an expert pursuant to Federal Rule of
Civil Procedure 26(a)(2). The Court concludes that, because
Rolls Royce has not established that its failure to do so was
harmless, PHI's objection is sustained. See Musser v.
Gentiva Health Servs.,356 F.3d 751, 758 (7th ...