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Marten v. Swain

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

March 22, 2017

JANICE S. MARTEN and CHRISTOPHER MARTEN, Plaintiffs,
v.
ANDREW W. SWAIN, Defendant.

          ENTRY FOLLOWING FINAL PRETRIAL CONFERENCE

          TANYA WALTON PRATT, JUDGE

         This 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.

         1. The 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 a.m.

         2. The claim to be tried is the Martens' claim against Swain for malicious prosecution under 42 U.S.C. § 1983.

         3. The 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.

          4. The Court reviewed the parties' exhibit lists and made the following rulings:

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. The ...

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