Opinion
CIVIL ACTION NO. 99 C 3356
March 31, 2003
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION IN LIMINE TO BAR EEOC'S NEWLY IDENTIFIED EXPERT WITNESS
EEOC acknowledges that it did not identify Jerome Lipman as a possible trial witness prior to the parties' exchange of witness lists in connection with the preparation of the Final Pre-Trial Order. Dial asserts, and the EEOC does not dispute, that no report prepared and signed by Jerome Lipman has been tendered to Dial in accordance with Rule 26(a)(2). Both the requirement of identifying Jerome Lipman as a witness and furnishing a copy of a report containing his opinions are significant, if Mr. Lipman is expected to testify as an expert. EEOC says that "the only purpose for which EEOC would utilize Lipman would be for his testimony, as a Certified Public Accountant, as to how to read and understand the Dial financial statements which EEOC intends to introduce in support of its claim for punitive damages, and as to which EEOC intends to examine Dial's Chief Financial Officer Conrad A. Conrad as an adverse witness. Lipman would not testify with respect to whether Dial should be required to pay punitive damages, and he would not testify as to what an appropriate amount of punitive damages might be."
I think what EEOC has said it intends to utilize Lipman for means that he falls within the meaning of Rule 702 of the Federal Rules of Evidence. The untimely identifying of him as a witness and failure to produce a report results in his not being able to give testimony in the plaintiff's case in chief. Whether he may be presented as a rebuttal witness must await trial developments.
IT IS ORDERED that the Defendant's Motion In Limine to Bar EEOC's Newly Identified Expert Witness, filing 323, is granted, to the extent that EEOC may not present Jerome Lipman as a witness in the plaintiff's case in chief.