Opinion
Case No. 99 C 2886.
January 2, 2001.
MEMORANDUM OPINION AND ORDER
As a result of previous rulings by the Court, three damage claims remain in this case. In Counts 2 and 5, plaintiff Metropolitan Chicago, Inc., a moving and storage company, brings claims for damages under section 303 of the Labor Management Relations Act, 29 U.S.C. § 187, against defendant Teamsters Local Union 705 for allegedly unlawful secondary picketing at a gate at Metropolitan's facility allegedly reserved for Top Five Productions, Inc. (Count 2), and an alleged threat of secondary picketing at the offices of Metropolitan's customer Aon Corporation (Count 5). In Count 7, plaintiff Richard Santiago, who works for Metropolitan, brings a claim against the Union and Union official Richard DeVries for personal injuries he claims he suffered when DeVries beat him.
Metropolitan has also brought a claim for injunctive relief against the Union and DeVries in which it contends that defendants have threatened, intimidated, and committed acts of violence against Metropolitan workers who cross picket lines (including the alleged battery of Santiago) and have engaged in unlawful secondary picketing against Metropolitan's customers. Metropolitan seeks an injunction barring further similar activity.
In this Memorandum Opinion and Order, the Court considers both sides' motions in limine and defendants' motion to hold separate trials of the two plaintiffs' claims. The case is currently set for trial on March 19, 2001.
A. Plaintiffs' motions in limine
1. Plaintiffs' motion to exclude evidence of settlement discussions is granted without objection.
2. Metropolitan seeks to preclude the Union from arguing that it is not liable for secondary boycott activity initiated by DeVries. Defendant does not object to this, and the Court agrees. In connection with a previous discovery dispute, in order to eliminate the need for certain discovery sought by Metropolitan, the Union's attorney stipulated on the record that it is liable for any non-violent secondary activity that DeVries may have engaged in with regard to Counts 2 and 5. See Transcript of 5/30/00 hearing, pp. 4-5.
3. There will be no reference at trial to the 1972 felony conviction of Metropolitan president Charles Mack. The conviction is far outside the ten year limitation in Fed.R.Evid. 609(b), and any minimal probative value that the conviction might have with regard to Mack's credibility is far outweighed by its unfairly prejudicial effect.
4. The Court agrees with Metropolitan that on direct examination, the Union's damage expert will be limited to the conclusions and opinions set forth in his Rule 26(a)(2) report. This does not necessarily preclude the Union from eliciting testimony on redirect to respond to cross-examination; objections to such questions should be raised at trial.
5. Plaintiffs need not have requested an order limiting defendants to the affirmative defenses they have asserted in their answer; there is no reason to believe defendants will try to assert new defenses. The matter can be raised at trial if it becomes necessary.
6. There was likewise no need for Metropolitan to seek an in limine order to preclude the Union from introducing evidence of other alleged secondary boycotts that have not been the subject of any claims by Metropolitan or that were the subject of claims that the Court has dismissed. There is no rational reason to believe that the Union would see any upside in telling the jury that it engaged in other secondary boycotts. Metropolitan should renew its objection at trial if the Union seeks to introduce such evidence.
7. Santiago seeks to preclude DeVries from denying that he battered Santiago; he seeks summary judgment as to DeVries' liability on Count 7. The time for filing such motions has long since passed, but in any event Santiago's request is without merit.
Under Illinois law, which governs the preclusive effect of DeVries' guilty plea, see 28 U.S.C. § 1738, evidence of a prior conviction is admissible in a civil proceeding as prima facie evidence of the facts upon which the conviction was based. See Calusinski v. Kruger, 24 F.3d 931, 934 (7th Cir. 1994). In the case of a guilty plea, the facts upon which the conviction is based are those alleged in the criminal complaint. Id. at 934 n. 3. DeVries' conviction is not conclusive evidence of the underlying facts; thus DeVries can present evidence to attempt to rebut the factual basis of the guilty plea. United States v. Haddad, 10 F.3d 1252, 1258 (7th Cir. 1993).
Santiago relies on Appley v. West, 832 F.2d 1021 (7th Cir. 1987), which held that a defendant's conviction "conclusively establishe[d]" in a later civil proceeding that the defendant had engaged in the conduct for which he was convicted. Appley, however, involved a federal criminal conviction, and thus unlike in this case Illinois law did not govern the conviction's preclusive effect. Under Illinois law, as the Seventh Circuit held in Calusinski, a conviction is not conclusive but rather constitutes prima facie evidence of the facts on which it was based.
It is undisputed that DeVries pled guilty to a misdemeanor charge that he committed a battery on Santiago. On the present record, however, the specifics of the charge to which DeVries pled guilty (such as the manner in which the battery was committed) are not at all clear. Those allegations would be set forth in the complaint by which the prosecution was initiated. Santiago has not provided the Court with a copy of the complaint, but rather has submitted only the transcript of the guilty plea, which says nothing about the underlying allegations. If Santiago intends to offer DeVries' guilty plea as evidence at trial, he will need to have a copy of the complaint.
8. Plaintiffs may introduce against DeVries his responses to the requests to admit served by plaintiffs, and DeVries is precluded from contradicting the admissions that he made. It would appear that most of these admissions relate to matters that the Union has likewise agreed not to dispute ( see paragraph 2 supra). But plaintiffs have provided the Court with no basis for holding DeVries' admissions binding on the Union, and the Court declines so to hold.
B. Defendants' motions in limine
1. Evidence regarding the International Brotherhood of Teamsters' placement of the Union in trusteeship in 1993 due to misconduct by the Union's then leaders is irrelevant and unfairly prejudicial to the Union and will not be admitted at trial. The same is true of evidence regarding Union or Teamsters elections and election campaigns.
2. Evidence regarding the 1996 misdemeanor battery conviction of Union secretary-treasurer Gerald Zero will not be admitted at trial. The matter involved Zero's removal of supposedly unauthorized persons from a meeting of Union stewards As a result of Zero's conviction, the Union suspended him from office for one year. In light of the suspension, any probative value of this evidence to support Santiago's claim that the Union authorized or ratified violence by its officials is minimal at best and would be far outweighed by the unfair prejudice to the Union that might result if the evidence were admitted.
3. Evidence regarding (a) a lawsuit by Union President McCormick and other officers against Zero for terminating their positions and (b) internal disputes among Union officers (in particular a charge against Zero before the Illinois Department of Human Rights concerning his removal of personal items from Recording Secretary Bennie Jackson's office), is irrelevant and inadmissible. The fact that Zero may have "pressured" other officers by refusing to pay them, terminating their positions, and locking them out has no logical relationship with whether the Union condones violence, an element of Santiago's claim against the Union. The only aspect of these matters that might have any conceivable bearing on plaintiffs' claims against the Union is the testimony of William Blake, a former Union trustee, that Zero made a threat against another Union official. See Pltf. SJ Ex. U, Blake Dep. 106. But Blake's testimony is inadmissible hearsay; he can do nothing more than relate what the other official told him. Id.
4. In 1996, the Union conducted a strike against Pickens-Kane, another moving company. An Illinois judge issued a temporary restraining order against the Union and its agents limiting picketing of Pickens-Kane facilities and barring any threats against Pickens-Kane employees and persons entering or leaving the company's facilities. After the TRO was entered, two incidents involving DeVries took place. On one occasion, DeVries allegedly reached for an object that a Pickens-Kane security officer believed was a gun; on another occasion, he was present when a striker with a large dog approached a Pickens-Kane security officer. The state court judge found that DeVries had done these things and that they violated the TRO, and he held DeVries in contempt. Following the contempt finding, Secretary-Treasurer Zero interviewed DeVries and ultimately determined not to discipline him, concluding in spit of the state court's finding that the evidence against DeVries lacked merit.
Unfortunately, the exhibit that plaintiffs cite in support of their characterization of the judge's finding (Pltf. SJ Ex. X) was not actually provided as part of plaintiffs' exhibits filed with the Court. Under the circumstances, we have relied on defendants' characterization of the finding. See Dfdt. Mem. In Supp. of Motion In Limine, p. 7. if that characterization was inaccurate, plaintiffs should advise the Court promptly.
Evidence concerning the contempt is inadmissible against DeVries. Prior bad acts may not be admitted to prove a propensity to commit further such acts, see Fed.R.Evid. 404(b), and any findings that the state court judge made about DeVries' credibility are inadmissible under Fed.R.Evid. 403 because they are unfairly prejudicial and would create a serious risk that the jury would "abnegate its exclusive responsibility to determine the credibility of the testimony" of DeVries at the trial in this case. United States v. Lopez. 944 F.2d 33, 38 (1st Cir. 1991); Fisher v. Krajewski, 873 F.2d 1057, 1063-64 (7th Cir. 1989). See also United States v. Bowie, 198 F.3d 905, 910 (D.C. Cir. 1999).
For the same reason, any such credibility findings are also inadmissible against the Union.
One aspect of this matter is, however, admissible against the Union. Defendants argue that the 1996 incidents do not support plaintiffs' claim that the Union "ratified" violent acts by DeVries; rather the Union concluded that no such acts had occurred. But if (as plaintiffs contend) Zero's investigation that resulted to his decision not to discipline DeVries was in effect a whitewash, that may support Santiago's claim that the Union condoned or promoted violence on the part of its officers and members, because it arguably led DeVries to believe that he would not be sanctioned for violence committed in connection with his work for the Union. For this reason, plaintiffs may introduce against the Union the fact that no action was taken against DeVries after a contempt finding, as well as the basis for the finding. DeVries will be entitled, if he so requests, to a limiting instruction advising the jury that this evidence may not be considered against him.
5. During the 1996 Pickens-Kane strike, a picketer named Gene Eklund claimed he was injured by a Pickens-Kane truck while picketing and filed a personal injury suit against the company. Pickens-Kane filed a counterclaim against Eklund and a third party complaint against DeVries, alleging that they conspired to defraud the company by faking the accident. Plaintiffs do not challenge defendants' argument that this incident is inadmissible at trial in this case. Evidence regarding the Eklund matter will not be admitted.
6. In 1998, Pickens-Kane sought to enjoin a threatened strike by Local 705 on the grounds that a strike would violate a no-strike clause in their collective bargaining agreement. The company alleged that DeVries was fomenting a strike although he had no official Union role with respect to representation of Pickens-Kane employees. Judge David Coar granted a temporary restraining order against the Union largely because he did not consider the Union's representations regarding whether a strike would take place sufficient to eliminate the threat of irreparable harm to Pickens-Kane. The Court has examined the transcript of the proceedings before Judge Coar and sees nothing that bears in any way upon the Union's potential liability in this case for violent acts by DeVries. Matters relating to the 1998 Pickens-Kane dispute are inadmissible.
7. The Union seeks to exclude evidence regarding incidents of non-violent secondary picketing activity directed by DeVries (and perhaps others) other than those involved in Counts 2 and 5. As noted earlier, the Union has stipulated that it is legally responsible for any non-violent secondary activity conducted or directed by DeVries that forms the basis of Metropolitan's claims. In light of this stipulation, there is no need for Metropolitan to offer evidence of a pattern of such activity by DeVries or condonation of this by the Union. Metropolitan has offered no logical reason why such evidence should be admitted. Pursuant to Fed.R.Evid. 402 and 403, the Court excludes from the jury trial of Metropolitan's secondary picketing claims all evidence of secondary activity other than that concerning Top Five and Aon.
8. The Union also seeks to exclude evidence concerning its "primary" picketing of Metropolitan at the company's facility. Metropolitan's only argument regarding admissibility is that "the jury must be permitted to hear of all of the picketing to understand the scope of the Teamsters' illegal actions." Pltf. Resp. to Dfdt. Mot. In Limine, p. 10 (emphasis in original). But there is no claim that the Union's primary picketing activity was illegal. In order for the jury to understand the secondary picketing allegations regarding Top Five, there may be a need to inform the jury that picketing of Metropolitan itself was also going on at Metropolitan's facility (part of which Top Five was leasing). Beyond eliciting that fact, however, evidence regarding the scope or manner of the primary picketing is of little or no probative value. To avoid the danger of jury confusion and unduly prolonging the trial, such evidence will not be admitted.
9. Defendants seek to exclude evidence regarding encounters between DeVries and Santiago other than the March 1999 incident that forms the basis for Santiago's personal injury claim. The Court agrees with Santiago that evidence concerning his encounters with DeVries prior to the March 1999 incident may be relevant to show DeVries' intent. The Court will not categorically exclude such evidence; defendants should renew their objections at trial. Defendants also seek to exclude evidence about post-March 1999 encounters between the two men. Neither side, however, has provided the Court with any citations to deposition testimony or other evidence so that the Court can determine exactly what the post-March 1999 evidence involves. There is no need for either side to supplement its already-voluminous materials at this time; defendants should renew their objections at trial.
10. The Union seeks to limit Metropolitan's evidence regarding damages that Metropolitan claims stem from the alleged threatened secondary boycott of Aon. In its draft of the proposed final pretrial order, Metropolitan says that it is seeking lost profits of $1.7 million and lost goodwill of $540,000.
The Court has previously barred Metropolitan's damage expert from giving testimony regarding lost goodwill with regard to the Aon claim because the expert's report under Rule 26(a)(2)(B) was limited to lost profits. See Order of 7/24/00. And when Metropolitan answered the Union's interrogatory asking it to describe the manner in which it had calculated each element of its damages, Metropolitan said only the following concerning the claim of lost goodwill: "Metropolitan suffered a significant loss in goodwill estimated to equal the projected lost revenue of $540,000 (based upon selling a business five times the stream of revenue)." Metropolitan never provided any further specification of the manner in which it derived this amount or of the propriety or reasonableness of the "calculation." Finally, in its response to the Union's motion, Metropolitan does not describe any evidence that it proposes to offer to the jury to show that how much (if at all) its goodwill — defined as "'that element of value which inheres in the fixed and favorable consideration of customers, arising from an established and well-known and well-conducted business,'" see Santiago v. Furniture Chauffeurs (etc.) Local 705, No. 99 C 2886, 2000 WL 1724682, at *3 (N.D. Ill. Nov. 20, 2000) (quoting Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 165 (1915)) — was damaged.
As the Court has previously held, speculative damages are not recoverable in an action under section 303. Id. It appears from Metropolitan's response to the Union's motion that it intends to rely on nothing but speculation to support its claim of damage to its goodwill. See Pltf. Resp. to Dfdt. Mot. In Limine, p. 12 (stating that "[a] clear basis to award lost good[will] existed [sic] based upon the record in this matter," but making no effort to describe how this is so). Without some admissible evidence from which a jury could conclude that its goodwill was harmed, Metropolitan cannot maintain such a claim at trial. The Court therefore bars Metropolitan from maintaining its claim for damage to its goodwill arising from the Aon matter.
The Court considers the purported claim of damage to Metropolitan's "reputation" to be part and parcel of the claim of damage to its goodwill and therefore bars that claim as well.
11. The Union also seeks to limit the testimony of Metropolitan's damage expert, Frank Redisi, regarding the company's claim of lost profits allegedly arising from the Aon matter. Part of Redisi's analysis involved calculating the profit that Metropolitan made on leasing storage space to Aon from 1995 though 1999. In his deposition, he testified that he did not refer to any documents to support the rent figures he used but rather relied on information he had received in a verbal report from Metropolitan's comptroller. The Union requested any and all documents relating to Metropolitan's damage claim and also made a specific request for documents relating to rent expenses, but it received no documents supporting the rent figures.
This was not the only aspect in which Redisi's analysis was predicated on figures that came from verbal reports rather than documents. Redisi also testified at his deposition that he had relied on what Metropolitan's comptroller verbally reported regarding the company's cost of truck insurance, health insurance, wages, administrative salaries, the cost of supplies, and the square footage of dock space used to calculate indirect costs. These figures all factored into Redisi's calculation of the company's lost profits. The Union says that it never received any documentation from Metropolitan supporting these figures.
The Union argues that Redisi's testimony should be excluded because its basis is unreliable and as a sanction for Metropolitan's failure to produce the requested supporting documentation. Metropolitan has done a woefully poor job of responding to the Union's argument. It contends that "[s]uch information was in fact provided," Pltf. Resp. to Dfdt. Mot. In Limine, p. 12, but it provides nothing to back up this contention. It says that the Union's expert never asked Metropolitan for any of the missing information to conduct his own analysis, but that is beside the point: the discovery requests were properly made by from the Union and were in no way waived or forfeited by its retained expert. Finally, Metropolitan says that "the federal rules of evidence permit [Redisi] to rely upon anything that an expert might rely upon, irrespective of admissibility." Id., p. 13. Not so. Rule 703 requires that the expert's source material be of the type reasonably relied upon by an expert in the field. Metropolitan has provided nothing — neither evidence nor argument — from which the Court could conclude that it is reasonable for an accountant like Redisi to rely on verbal reports from a company insider when supporting documentation is available. This by itself would provide a sufficient basis upon which to preclude Redisi from testifying. See Cummins v. Lyle Industries, 93 F.3d 362, 371-72 (7th Cir. 1996).
Interestingly, Metropolitan's comptroller testified that the only information she recalled providing to Redisi was summaries of customer invoices. See Pltf. Summ. Judg. Ex. A, pp. 143-44.
Metropolitan's failure to provide the Union with the supporting documentation that it requested provides a independent basis upon the Court could bar Redisi's testimony. See id. at 371; Patel v. Gayes, 984 F.2d 214, 221 (7th Cir. 1993) (upholding exclusion of expert testimony due to party's failure to produce supporting information). Civil litigation is not a game of hide-the-ball. The Court does not understand why Metropolitan would want Redisi to rely on verbal information if supporting documentation is available, but even if that is what Metropolitan has chosen to do, it may not properly prevent the Union from obtaining the documentation so that it can independently verify Redisi's claims.
Because the testimony of Redisi is no doubt critical to Metropolitan's damage claims, the Court will give Metropolitan one more chance to show why the Court should permit Redisi to testify. The Court directs Metropolitan to supplement its response to the motion in limine with respect to Redisi's testimony on or before January 8, 2001 and will address the matter at the upcoming status hearing.
12. The Union has moved to exclude plaintiffs' proposed exhibits 26 and 27 on the grounds that they constitute hearsay. Exhibit 26 is a one-page fax from Herbert Ehliers of Aon to Metropolitan; it is entitled "witness statement" and states that on April 5, 1999, DeVries "would not allow Metropolitan to deliver furniture to 123 N. Wacker Drive, lower level, threatening to picket this building if [Aon] allowed them access." PX 26. Exhibit 27 is an affidavit from Ehlers describing his encounter with DeVries on April 6, 1999.
These documents are obviously hearsay. The only hearsay exception referenced by Metropolitan which conceivably might permit their admission is Federal Rule of Evidence 803(5), which concerns recorded recollections. Admissibility under Rule 803(5), however, requires among other things a showing that the witness is presently unable to recall the events in question. If this and the other foundational requirements of the Rule are met, the recorded recollection itself is not admitted in evidence but may be read to the jury. See Fed.R.Evid. 803(5). Under the circumstances, the admissibility of plaintiffs' exhibits 26 and 27 or their contents cannot be determined prior to trial.
13. Finally, defendants seek to bar plaintiffs from calling a number of witnesses who defendants say were not disclosed in response to an interrogatory seeking the identity of persons with knowledge of any of plaintiffs' claims or allegations. In their draft of the final pretrial order, plaintiffs listed as potential witnesses a number of persons who were not named in their answer to this interrogatory, including Santiago's two sons (Richard Santiago Jr. and Anthony Santiago), six Metropolitan employees (Steve Murray, Rafael Lopez, Mario Leyva, Salvador Guzman, Cuauhtemoc Sanchez, and Rene Luis), three persons affiliated with Aon or the building where it rented space (Ron Steele. Karen Cesar, and Patty Graber), and four others (Bill Teaberg, Rudel Simmons, John Cridideo, and Michael Monroe). Plaintiffs assert that "[a]ll of the witnesses disclosed in the draft pre-trial order are persons who have been disclosed throughout written and oral discovery and whom the defendants have had an equal opportunity to interview and depose," Pltf. Resp. to Dfdt. Mot. In Limine, p. 11, but they provide the Court with nothing to back up their assertion. This unsupported claim is insufficient to rebut defendants' argument.
In a footnote, plaintiffs suggest that they should be able to call the undisclosed witnesses because the Court has already ruled that their interrogatory answers were sufficient. See Pltf, Resp. to Dfdt. Mot. In Limine, p. 11, n. 13. This argument borders on the frivolous. When the Court denied defendants' request for further particularization of plaintiffs' answer to the interrogatory in question, it was dealing only with the sufficiency of plaintiffs' description of the topics as to which each disclosed person had knowledge. See id., Ex. 3 (3/16/00 transcript) at pp. 7-8. Plaintiffs cannot torture out of this ruling anything that so much as hinted that they would be authorized to call as witnesses persons whose identity was not disclosed in response to the interrogatory.
In short, plaintiffs have provided no justification or excuse for their failure to identify any of these persons. The interrogatory answers they gave led defendants to believe that the persons they had identified constituted the entire universe of persons whom plaintiffs understood to have knowledge regarding the matters in dispute. And because plaintiffs' draft of the final pretrial order in which they named the additional persons was served on defendants well after the discovery cut-off date set by the Court, that belated disclosure is insufficient to permit plaintiffs to call these persons at trial. The only exceptions to this are Rene Luis and Mario Leyva, whom defendants (in their responses to plaintiffs' interrogatories) had already identified as having knowledge of relevant matters. In sum, plaintiffs are precluded from calling at trial the following witnesses: Richard Santiago Jr., Anthony Santiago, Steve Murray, Rafael Lopez, Salvador Guzman, Cuauhtemoc Sanchez, Ron Steele, Karen Cesar, Patty Graber, Bill Teaberg, Rudel Simmons, John Cridideo, and Michael Monroe.
C. Defendants' motion to sever trials
Defendants have moved to sever the trial of Metropolitan's damage claims from that of Santiago's claims as well as from the trial of Metropolitan's claim for injunctive relief. Defendants' motion is made pursuant to Federal Rule of Civil Procedure 42(b), which provides that a court, "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counter- claim, or third-party claim, or of any separate issue . . . always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States."
Also pertinent, though not cited by the parties, is Federal Rule of Civil Procedure 20(b), which provides that a court may order separate trials of different parties' joined claims "to prevent delay or prejudice." Indeed, the Court has serious doubt whether Metropolitan's and Santiago's claims were properly joined in one complaint to begin with. Under Rule 20(a), "[a]ll persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." Fed.R.Civ.P. 20(a). Plaintiffs contend that both Metropolitan's and Santiago's claims arise from a common backdrop, namely the Union's effort to force Metropolitan to recognize the Union as the bargaining representative for Metropolitan's employees. The claim for injunctive relief as we have noted, includes as part of the background allegations both Mctropolitan's secondary boycott claims and Santiago's battery claim. But even if this relationship between the two plaintiffs' claims is enough to satisfy the "same transaction or occurrence" requirement of Rule 20(a), the Rule also requires a showing that there is a "question of law or fact in common" to the claims in question, see Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997), and plaintiffs have identified none.
This action was originally filed in state court, but after its removal to this Court plaintiffs filed an amended complaint.
Even if Metropolitan's and Santiago's claims meet Rule 20(a)'s requirements for joinder in a single action, Rules 20(b) and 42(b) in effect provide a safety valve to avoid the unfair prejudice that might result from a joint trial of claims that only barely satisfy Rule 20(a). Under both Rules 20(b) and 42(b), to determine whether separate trials should be held, a court weighs any prejudice to a party that would result from a joint trial against any prejudice to other parties and the judicial system that would result from holding separate trials. See Houseman v. United States Aviation Underwriters, 171 F.3d 1117, 1121 (7th Cir. 1999) (Rule 42(b)); Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1224 (7th Cir. 1995) (Rule 20(b)).
In this case the Union would be unfairly prejudiced if Metropolitan's and Santiago's damage claims were tried together, for this would result in the admission of significant evidence highly prejudicial to the Union that would not be admissible if the claims were tried separately. If holding separate trials would result in substantial duplication, that would be a good reason not to order severance. See Avitia, 49 F.3d at 1224. But this is not a case in which the facts underlying the damage claim of each plaintiff would be admissible in a trial of the claim of other plaintiff. Compare McCleland v. Montgomery Ward Co., No. 95 C 237, 1995 WL 374185, at *2 (ND. Ill. June 21, 1995) (refusing to sever claims of several plaintiffs because evidence of each claim likely admissible even at separate trials). The Union has conceded its liability for DeVries' alleged secondary boycott activity, and even if it had not done so, DeVries' alleged battery of Santiago would not be admissible to establish the Union's liability for the Top Five and Aon matters (plaintiffs do not contend otherwise). And as discussed in the Court's prior decisions, particularly our ruling on summary judgment, the Union's liability for the alleged battery concerns whether it may be said to have authorized, tolerated, condoned, or ratified acts of violence by Union officials or members. See Santiago, 2000 WL 1724682, at *5-6. DeVries' involvement in non-violent secondary activity like the Top Five and Aon matters would not be admissible to establish the Union's liability for the battery of Santiago (again, plaintiffs do not argue otherwise in their response to the present motion). In a joint trial, the same jury nonetheless would hear about both sets of incidents.
Though courts are generally willing to trust jurors to follow instructions requiring them to give separate consideration to parties and claims, we tend to rely on this trust only when there is some justification for a joint trial. Here there is none. Given the absence or near-absence of any overlap in the evidence, the only time that would be saved in a joint trial is the few hours (generally three or four at most in this Court) that would be required to select another jury at the second trial. The slight "prejudice" that would result from this minimal duplication of effort is not sufficient to justify trying the two plaintiffs' damage claims together.
We come finally to Metropolitan's claim for injunctive relief. The trial of this claim may involve some of the same evidence that will be adduced at the Santiago battery trial and/or the Metropolitan secondary boycott trial, though the extent to which this is so is not entirely clear to the Court. If so, unnecessary duplication can be avoided by a stipulation that the Court may consider the record of the damage trials to the extent it is admissible on the injunctive relief claim. The parties should be prepared to address at the upcoming status hearing whether and the extent to which evidence from each trial will bear on the injunctive relief claim, as well as the amount of additional evidence that the parties intend to elicit aimed specifically at the injunctive relief claim. This will enable the Court to determine how and when to hear the claim for injunction.
Conclusion
Plaintiffs' motion in limine and defendants' motion in limine are granted in part and denied in part as stated above. Defendants' motion to sever trials is granted. The trial of Metropolitan's claim for damages is advanced to February 26, 2001 at 10:00 a.m. Santiago's claim for damages is set for trial March 5, 2001 at 10:00 a.m. The case is set for a status hearing on January 12, 2001 at 9:30 a.m. in order to set dates for filing the final pretrial orders in both cases, and to address the other matters referenced in this Memorandum Opinion.