United States District Court, S.D. Indiana, Indianapolis Division
JANICE S. MARTEN and CHRISTOPHER MARTEN, Plaintiffs,
ANDREW W. SWAIN, Defendant.
ENTRY FOLLOWING FINAL PRETRIAL CONFERENCE
WALTON PRATT, JUDGE
matter was before the Court for a final pretrial conference
on March 20, 2017, held at the Indianapolis Courthouse.
Plaintiffs Janice S. Marten and Christopher Marten
(“the Martens”) appeared by counsel Brad A.
Catlin and Ronald J. Waicukauski. Defendant Andrew W. Swain
(“Swain”) appeared by counsel Paul O. Mullin and
Molly E. Harbison. David Moxley was the Court Reporter.
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.
five day jury trial of this matter is scheduled to commence
on Monday, April 10, 2017, at 9:00 a.m. The trial will be
held in the Birch Bayh Federal Building and U.S. Courthouse,
46 East Ohio Street, Indianapolis, Indiana, Courtroom #344.
Doors to the courtroom will be unlocked at 7:30 a.m. Counsel
must report no later than 8:00 a.m. The jury is scheduled to
arrive at 8:30 a.m., and panel selection will begin at 9:00
claim to be tried is the Martens' claim against Swain for
malicious prosecution under 42 U.S.C. § 1983.
Court reviewed the parties' witness lists to determine
who will testify and the subjects of their testimony.
a. The Martens presented a list of twenty-three named
witnesses and discussed the expected testimony of the
potential witnesses (Filing No. 164). Swain had no
objections to the Martens' witnesses.
b. Swain presented a list of thirty-five named witnesses and
discussed the expected testimony of the potential witnesses
(Filing No. 186). The Martens filed a written
objection to Bryan Callahan, for reasons explained later in
this Entry; the Court overruled the objection. The Martens
orally objected to nine witnesses, and the Court took those
objections under advisement. The Court overruled the
objection to Orval “Ollie” Schierholz, and
Schierholz may testify regarding whether Ms. Marten served
jury duty in February or March 2008. Swain withdrew Brian D.
Salwowski from his witness list and orally moved for
permission to designate in his place, Gary Secrest, who has
been identified on previous witness lists. The Court granted
the oral motion to amend the witness list. Because of rulings
on summary judgment, Swain may be able to further reduce his
witness list. Swain is ORDERED to file an Amended Witness
List by no later than Friday, March 24, 2017. Any objections
that the Martens may have to the Amended Witness List must be
filed by no later than Friday, March 31, 2017.
c. The Martens filed a Motion to Exclude Opinions of H. Bryan
Callahan (Filing No. 145), who is Swain's expert
witness to counter the Martens' damages expert witness
Bruce L. Jaffee. The admissibility of expert testimony is
governed by Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). To be
admissible, expert testimony must be both relevant and
reliable. Courts look at whether (1) the witness is qualified
as an expert by knowledge, skill, experience, training, or
education; (2) the expert's reasoning or methodology
underlying the testimony is scientifically reliable; and (3)
the testimony assists the trier of fact to understand the
evidence or to determine a fact in issue. Ervin v.
Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.
2007). The Martens' primary argument is that
Callahan's expert testimony consists of legal
conclusions, and expert witnesses may not provide testimony
regarding legal conclusions. See Good Shepherd Manor
Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th
Cir. 2003). The Martens also argue that Callahan's
testimony is self-contradictory and therefore unreliable.
Swain responds that Callahan's testimony does not consist
of legal conclusions, pointing out that some of
Callahan's deposition testimony simply shows his
understanding of various legal standards. His deposition
testimony regarding his understanding of legal standards does
not convert his expert testimony about damages into an expert
opinion regarding legal conclusions. Swain also responds that
Callahan's testimony is not self-contradictory and that
the Martens' attempt to show contradictions is based on
selective quotations and taking testimony out of context.
Upon review of the briefing and exhibits for the Motion to
Exclude, the Court determines that Callahan's anticipated
testimony does not consist of impermissible legal
conclusions, it appears to be reliable, and it is relevant to
the issue of damages. It appears that Callahan has the
training, education, and experience to serve as an expert
witness in this matter regarding damages. His opinions seem
to be limited to a review and analysis of the expert opinion
of the Martens' damages expert witness. The concerns
raised by the Martens are each adequately addressed by
“the traditional and appropriate means of attacking
shaky but admissible evidence, ” which are
“[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of
proof.” Daubert, 509 U.S. at 596. Therefore,
the Court DENIES the Martens' Motion to Exclude Opinions
of H. Bryan Callahan (Filing No. 145).
d. To avoid calling non-party witnesses twice, the parties
are instructed to conduct direct and cross-examinations the
first time a non-party witness is called. The Court
discourages the parties from calling cumulative witnesses and
presenting cumulative testimony.
Court reviewed the parties' exhibit lists and made the
a. The Martens' Exhibit List (Filing No. 167)
designated one hundred forty-nine exhibits. Swain did not
file any written objections to the Martens' exhibits.
b. Swain's Exhibit List (Filing No. 169)
designated ninety-five exhibits. Exhibit 245 contained
numerous transcripts of depositions and exhibits to those
depositions without separately identifying each document by
an individual exhibit number. Additionally, Exhibit 247
contained numerous tax and business documents without
separately identifying each document by an individual exhibit
number. At the final pretrial conference, Swain represented
to the Court that he had reorganized his exhibit binder to
correct this non-compliance with the Court's directions
for identifying exhibits. However, the Exhibit List on the
docket is non-complying and now does not correlate with his
exhibit binder. Therefore, the Court ORDERS Swain to file an
Amended Exhibit List by no later than Friday, March 24, 2017.