United States District Court, W.D. Pennsylvania
BARRY FISCHER DISTRICT JUDGE
NOW, this 17th day of July, 2019, upon consideration of the
Motion in Limine to Exclude the Testimony of Andy Lindus and
Preclude Supplementation of Dr. Garlotta's Opinion filed
by Plaintiff Federal Trade Commission (“FTC”)
(Docket No. 165), the response in opposition filed by
Innovative Designs, Inc. (“IDI”), IDI's
Pretrial Statement (Docket No. 113), IDI's Supplemental
Witness List (Docket No. 163), and oral argument on July 15,
2019, FTC's Motion  is DENIED, IN PART, AND
GRANTED, IN PART, and IDI may call Andy Lindus
(“Lindus”) as a lay
witness on rebuttal. Lindus may
provide fact testimony only and may not be used as an expert
or quasi-expert. The remainder of the motion
will be ruled upon after argument at the Pretrial Conference
on July 23, 2019, i.e., the requested supplementation of Dr.
former company, A-Team Building Supply, was a major purchaser
of Insultex House Wrap having bought over half a million
dollars' worth of the product. (Docket No. 165 at 2). In
fact, IDI's sales to A-Team Building Supply amounted to
nearly half of its revenue. (Id. at 8). IDI seeks to
proffer Lindus as a lay witness on rebuttal to testify that
he continues to use the product because he believes it works
despite FTC's contrary opinion. (Docket No. 163).
presently resides in Baldwin, Wisconsin and has a preplanned
vacation in Canada during the time of trial. (Oral Argument
7/15/19; Docket No. 163). Through its own investigation, FTC
became aware of Lindus, listed him in its disclosures, and
subpoenaed his records in 2017. (Oral Argument 7/15/19;
Docket No. 170 at 6-7). Although Lindus was not explicitly
listed as a witness by IDI until June 25, 2019 (Docket No.
163), FTC was on notice nine months earlier of that
possibility when IDI reported in its Pretrial Statement that
it might call contractors who had used Insultex House Wrap
(Docket No. 113 at 5).
counsel has failed to adhere to a pretrial order, the trial
court has the discretion to exclude testimony and the Third
Circuit has established the following four criteria for such
(1) the prejudice or surprise in fact of the party against
whom the excluded witnesses would have testified, (2) the
ability of that party to cure the prejudice,
(3) the extent to which waiver of the rule against calling
unlisted witnesses would disrupt the orderly and efficient
trial of the case or other cases in the court, and
(4) bad faith or wilfulness in failing to comply with the
district court's order.
See Holbrook v. Woodham, No. CIV.A. 3:05-304, 2008
WL 544719, at *2 (W.D. Pa. Feb. 28, 2008) (citing Meyers
v. Pennypack Woods Home Ownership Ass'n, 559 F.2d
894, 904-05 (3d Cir. 1977)). In addition, the court should
consider “the importance of the excluded
only intends to offer Lindus as a rebuttal lay witness and
not as an expert or as part of its case-in-chief. Lindus will
testify that he did not rely on IDI's R-value claims and
uses the product because he finds it suitable for his
intended purpose. (Docket No. 163). “Rebuttal evidence
is properly admissible when it will ‘explain, repel,
counteract or disprove the evidence of the adverse
party.'” Finizie v. Principi, 69 Fed.Appx.
571, 574 (3d Cir. 2003) (quoting United States v.
Chrzanowski, 502 F.2d 573, 576 (3d Cir.1974)). Moreover,
it is well-established that the Court has the discretion to
allow undisclosed rebuttal witnesses to testify. See Doe
ex rel. Doe v. Lower Merion Sch, Dist., 665 F.3d 524,
558 (3d. Cir. 2011) (holding that the district court did not
abuse its discretion in denying a motion to exclude testimony
from two witnesses that were not disclosed until plaintiff
filed its pretrial memorandum because Plaintiff did not learn
about the witnesses until the day before pretrial memoranda
were due and the witnesses' testimony was “within
the scope of proper rebuttal”); Berroyer v.
Hertz, 672 F.2d 334, 338 (3d Cir. 1982) (explaining that
“the cases make clear that departure from or adherence
to the pretrial order is a matter peculiarly within the
province of the trial judge, whose decision will not be
disturbed on appeal absent a clear abuse of
discretion”); Gucker v. United States Steel
Corp., No. CV 13-583, 2016 WL 320824, at *3 n.3 (W.D.
Pa. Jan. 27, 2016) (providing “The Court notes that the
Pretrial Order allows a party to omit from its witness list
witnesses it may call if needed that will be used for
“impeachment”); Titan Stone, Tile &
Masonry, Inc. v. Hunt Const. Group, Inc., Civ. Act. No.
05-3362, 2007 WL 1659056, at *5 (D. N.J. June 5, 2007)
(writing courts in this Circuit have “allowed parties
to call witnesses in rebuttal even if the witness was not
discussed in a pre-trial order, so long as the witness and
his testimony are within the scope of proper
Lindus was generally alluded to in IDI's Pretrial
Statement filed on September 25, 2018. (Docket No. 113).
Therein, IDI mentioned that it “may also call
contractors who have used Insultex House Wrap.”
(Id. at 5). Additionally, the Court learned at
argument that FTC was aware of Lindus as he was listed in its
disclosures and it subpoenaed his records in 2017. (Oral
Argument 7/15/19; Docket No. 170 at 7). The Court now
understands that Lindus has been a large purchaser of
IDI's product. In only recently naming Lindus as a
witness, the Court does not attribute to IDI any bad faith or
unwillingness to comply with the Court's order. Rather,
it appears that Lindus was listed in IDI's supplemental
pretrial statement out of an abundance of caution even though
he is a rebuttal lay witness who did not need to be
identified under this Court's practice.
extent FTC claims that it has been prejudiced, FTC knew about
Lindus and has subpoenaed his records. (Docket No. 170 at 7).
Both FTC and IDI had the ability to interview him months
before this trial.
Lindus lives more than one hundred miles from Pittsburgh,
Pennsylvania and will be in Canada at the time of the trial,
his testimony can be presented by deposition. Fed.R.Civ.P.
32(a)(4)(B); LCvR 16; (Oral Argument 7/15/19; Docket No.
163). FTC can notice Lindus for a discovery deposition if it
believes one is necessary. Those costs are to be borne by FTC
as this Court does not see the need for a discovery
deposition given what the FTC already knows. Given today's
technology, FTC may attend and participate in any deposition
by telephone or video rather than in person. Documents can
also be provided to the court reporter in advance. The Court
suggests that Lindus's deposition(s) could be scheduled
for the afternoon of July 24, 2019 in this courthouse. IDI
will bear the cost of its de bene esse deposition
including any travel costs incurred by Lindus. Alternatively,
given the Court's state of the art technology, Lindus can
appear by video conference ...