The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Trial in this matter is scheduled to begin on January 14, 2008. On December 13, 2007, all three parties filed motions in limine to exclude certain evidence from trial. Before the court are the following motions: Plaintiff Feesers' motions to exclude (1) Defendants' evidence intended to dispute the price discrimination element of Feesers' Section 2(a) claim against Michael Foods (Doc. 249), and (2) evidence unrelated to the specific issues to be decided at trial (Doc. 251); Sodexho's motions to exclude (3) all evidence referring or relating to McCain, Schwan's, and Ecolab (Doc. 244), (4) expert testimony concerning Ecolab, Schwan's, and McCain (Doc. 245), (5) all evidence related to Entegra procurement services (Doc. 243), and (6) "Exhibit C" to the November 17, 2005 Declaration of Robert J. Larner (Doc. 254); and (7) Michael Foods' motion to exclude evidence regarding Sodexho as a purchaser in the context of Section 2(a) (Doc. 247). Also pending is Defendants' joint motion for reconsideration of the court's order precluding the testimony of Joseph Gagliardo (Doc. 293). The issues have been fully briefed*fn1 and are ripe for consideration. The motions will be addressed in turn.
1. Feesers' Motion to Exclude Defendants' Evidence Intended to Dispute the Price Discrimination Element of Feesers' Section 2(a) Claim Against Michael Foods (Doc. 249)
Feesers argues that Defendants are attempting to relitigate the issue of price discrimination, which it argues has already been determined by this court. In fact, the court has determined only that there is a difference in the price offered by Michael Foods. In order to prove competitive injury, the final element of the prima facie case for price discrimination, Feesers must establish that there was substantial price discrimination between competing purchasers over time. Defendants correctly point out that this court has not yet made a determination as to the magnitude and duration of the price discrimination at issue here. Accordingly, the motion in limine to exclude Defendant's evidence disputing price discrimination is DENIED.
2. Feesers' Motion to Exclude Evidence Unrelated to the Specific Issues to be Decided at Trial (Doc. 251)
Feesers seeks to exclude three general categories of evidence as irrelevant pursuant to Federal Rule of Evidence 403. Each category of evidence will be discussed separately.
a. Pricing Practices in Food Service Industry Generally
Feesers argues that evidence of contract pricing offered to customers by Michael Foods, rebates offered to Feesers through UniPro, and Feesers' zone-based pricing is irrelevant to the issue of competitive injury, and should be excluded pursuant to Fed. R. Evid. 403 because any probative value it may have is substantially outweighed by the danger of prejudicial delay and waste of time.
Michael Foods argues that this evidence is relevant to the issues of the substantiality of the price discrimination and injunctive relief. Additionally, according to Michael Foods, much of this evidence can be presented through a single witness. The court is satisfied that the probative value of this evidence is not substantially outweighed by considerations of waste of time, and so with respect to this evidence the motion is DENIED.
b. Feesers Efforts in Late 2001 and 2002 to be Selected as a Primary Distributor for Sodexho
Feesers seeks to exclude evidence of the Wood Company distributorship agreement and Feesers' prior efforts to be selected as primary distributor for Sodexho as irrelevant to the issue of competitive injury. Michael Foods argues that this evidence is directly relevant to the issue of whether Feesers and Sodexho were in actual competition because it tends to show that Sodexho is a customer, rather than a competitor of Feesers. The court agrees that this evidence has some probative value on the issue of competitive injury. Accordingly, the motion is DENIED; however, if during trial the evidence strays from the issue of competitive injury, this issue may be revisited.
c. Events Outside Time Period Relevant to the Lawsuit
Feesers also seeks to exclude evidence from events prior to 2000, because it is outside the four year statute of limitations period for this price discrimination claim. The motion is GRANTED with respect to evidence wholly outside the limitations period; but DENIED as to evidence of ...