UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

ZIMMER, INC., 

 Plaintiff, 

 v. 

HOWMEDICA OSTEONICS CORP., 

d/b/a/ Stryker Orthopedics, et al. 

 Defendants. 

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Case No. 3:14-CV-152 JD 

OPINION AND ORDER

In this order, the Court addresses a number of issues raised in the parties’ pretrial filings. 

The Court begins with the parties’ motions in limine [DE 165, 176], and then addresses disputes 

over the scope of the summary judgment order and the standard and burden for sealing materials 

offered at trial. 

A. Defendants’ motions in limine 

1. Conspiracy among defendants 

The defendants move to bar any evidence or argument of a conspiracy among the 

defendants. They first argue that the evidence is insufficient to establish a conspiracy, either 

between Stryker and Mr. Stovall or between Stryker and CrossLink, so Zimmer should be barred 

from pursuing those arguments at trial. That argument is misplaced in the context of a motion in 

limine. Conspiracy is one of Zimmer’s theories for holding the defendants liable for the claims 

asserted in this case. If the defendants believe the evidence is insufficient to support such a 

theory, that could have been raised through a motion for summary judgment, or could be raised 

through a motion for judgment as a matter of law at trial. A motion in limine is not a proper 
2 

vehicle for deciding whether the evidence is sufficient to support a plaintiff’s claim, so the Court 

will not entertain this argument at this stage. 

The defendants also argue that a conspiracy between Stryker and Mr. Stovall cannot exist 

as a matter of law because an employee cannot conspire with his employer. See Soft Water Utils. 

Inc. v. LeFevre, 308 N.E.2d 395, 399 (Ind. 1974) (“A corporation cannot conspire with an agent 

when that agent is acting within the scope of his authority. A corporation acts through its agents 

and the acts of the agent are the acts of the corporation.”). This argument overlooks, however, 

Zimmer’s claim that Mr. Stovall violated his fiduciary duty while still employed with Zimmer 

and that he conspired with Stryker to do so. Because Mr. Stovall was not an employee of Stryker 

at that time, the principle that an employee cannot conspire with his employer does not foreclose 

the possibility of a conspiracy between Mr. Stovall and Stryker. Therefore, the Court denies this 

motion. 

2. Term “Trojan horse” 

The defendants seek to bar Zimmer from using the term “Trojan horse,” under Rule 403. 

They argue that this term would be prejudicial and inflammatory because it would “undoubtedly 

conjure up highly misleading and emotionally-charged images of warfare.” The Court does not 

see how. The jury will not be led to believe that Stryker was waging a literal war against 

Zimmer, and Zimmer’s use of this commonplace term as a metaphor to describe Stryker’s 

actions carries no risk of unfair prejudice. This motion is denied. 

3. Stovall’s fishing trip 

The defendants seek to bar any reference to a fishing trip that Mr. Stovall went on with 

Dr. Risko and other Stryker employees, arguing that the evidence is irrelevant and prejudicial. 

The Court disagrees. The evidence is relevant to Mr. Stovall and Stryker’s relationship and 

contacts with Dr. Risko during the relevant time period, and this evidence carries no risk of 
3 

prejudice. The defendants are free to argue to the jury that it should not draw the inferences that 

Zimmer wishes to draw from this evidence, but that does not warrant exclusion. This motion is 

denied. 

4. Stovall’s hiring as part of Vitagel scheme 

The defendants seek to bar any testimony or argument that Stovall’s hiring was part of 

the alleged “Vitagel scheme,” contending that the evidence is insufficient to support such an 

argument. However, whether Mr. Stovall was in fact hired as part of a Vitagel scheme is a main 

point of contention at trial, and Zimmer is entitled to try to establish through the evidence at trial 

that he was. The Court also rejected this same argument at summary judgment. Thus, this motion 

is denied. 

5. Economic loss doctrine 

The defendants next move to bar Zimmer’s tort claims against Mr. Stovall in their 

entirety, arguing that the economic loss rule confines any claim against Mr. Stovall to a breach of 

contract claim and precludes any recovery through a tort claim. In other words, the defendants 

ask the Court to enter judgment against Zimmer on its tort claims against Mr. Stovall. As 

explained above, that is the function of a motion for summary judgment or a motion for 

judgment as a matter of law—not a motion in limine. 

In addition, the defendants have not shown that the tort claims against Mr. Stovall should 

be precluded on this basis, for a number of reasons. The economic loss rule is typically described 

as meaning that a “defendant is not liable under a tort theory for any purely economic loss 

caused by its negligence.” Indianapolis-Marion Cty. Public Library v. Charlier Clark & Linard, 

P.C., 929 N.E.2d 722 (Ind. 2010) (emphasis added); see also JMB Mfg., Inc. v. Child Craft, LLC, 

799 F.3d 780, 785 (7th Cir. 2015) (“Under Indiana’s economic loss doctrine, . . . there is no 

liability in tort for pure economic loss caused unintentionally.” (internal quotation omitted)). 
4 

Here, Zimmer only asserts claims for intentional torts, not negligence, so that formulation of the 

economic loss rule is inapplicable here. In addition, Indiana has recognized that the economic 

loss rule generally does not apply to claims for a breach of fiduciary duty, so this doctrine would 

not affect Zimmer’s breach of fiduciary duty claim. Corry v. Jahn, 972 N.E.2d 907, 917 n.9 (Ind. 

Ct. App. 2012). 

The defendants also invoke the related principle that a party cannot repackage a breach of 

contract claim as a tort claim in an effort to seek punitive damages. Greg Allen Const. Co., Inc. v. 

Estelle, 798 N.E.2d 171, 173 (Ind. 2003); Bayview Loan Servicing, LLC v. Golden Foods, Inc., 

59 N.E.3d 1056, 1068 (Ind. Ct. App. 2016) (“[A] party may not restyle a breach-of-contract 

claim as a tort simply to obtain additional damages.”); JPMCC 2006-CIBC14 Eads Parkway, 

LLC v. DBL Axel, LLC, 977 N.E.2d 354, 364–65 (Ind. Ct. App. 2012) (“Where the source of a 

party’s duty to another arises from a contract, tort law should not interfere.”). The defendants 

argue that Zimmer’s claims against Mr. Stovall should be limited to a breach of his restrictive 

covenant, and that it cannot pursue separate tort claims. Their argument fails to acknowledge, 

however, that they also dispute the validity of the contract, and they did not cite any authority in 

which even an invalid contract triggered the economic loss doctrine. Accordingly, the defendants 

have not shown that the economic loss doctrine bars any of Zimmer’s claims as a matter of law 

at this point, so the Court denies this motion in limine. 

6. Claim for tortious interference with contract 

Stryker seeks to bar Zimmer’s claim against it for tortious interference with contract as to 

CrossLink, arguing that the evidence is insufficient to support that claim. However, these 

arguments are indistinguishable from the arguments it made in support of its motion for 

summary judgment on this same claim. Not only is a motion in limine not a vehicle for testing 

the sufficiency of the evidence, but these arguments have already been squarely rejected. If 
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Stryker believes that the evidence introduced at trial is insufficient to support this claim, it may 

make an appropriate motion at trial, but these arguments are wholly unfounded and misplaced as 

a motion in limine. 

7. Restrictive covenants being unenforceable 

The defendants next seek to bar Zimmer’s tortious interference with contract claim 

against Stryker and its breach of contract claim against Mr. Stovall on the basis that the 

restrictive covenants underlying those claims are unenforceable. As noted below, Zimmer seeks 

the opposite relief, asking the Court to hold that the restrictive covenants are in fact enforceable. 

The Court cannot grant either request. 

In Indiana, to be enforceable, a “restrictive covenant must be reasonable with respect to 

the legitimate interests of the employer, restrictions on the employee, and the public interest.” 

MacGill v. Reid, 850 N.E.2d 926, 929 (Ind. Ct. App. 2006); Cent. Ind. Podiatry, P.C. v. Krueger, 

882 N.E.2d 723, 728–29 (Ind. 2008). The employer bears the burden “of establishing that the 

agreement is reasonable in scope as to the time, activity, and geographic area restricted,” such 

that it restricts an employee only so far as necessary to protect the employer’s legitimate 

interests. Krueger, 882 N.E.2d at 729; see also MacGill, 850 N.E.2d at 930. 

Here, the focus of the dispute is whether the geographic scope of the agreements was 

reasonable. Both sides cite cases that have resolved that issue in their respective favors in 

evaluating agreements that were the same as or similar to the ones at issue here. E.g., Zimmer, 

Inc. v. Masters, No. 3:14-cv-312-RLM, 2014 WL 1317090 (N.D. Ind. Mar. 31, 2014); Zimmer 

US, Inc. v. Keefer, No. 3:12-cv-395-JD, 2012 WL 5268550 (N.D. Ind. Oct. 23, 2012). However, 

neither of those cases suggest that the geographic scope of the term at issue was per se

reasonable or unreasonable; rather, those cases illustrate that the reasonableness of a restrictive 

covenant generally depends on the facts of a particular case. In Masters, the covenant was 
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unreasonable because it defined the geographic scope by reference to the geographic territory 

assigned to the employee, yet the employee had not actually been assigned to any particular 

geographic territory or to any accounts at all. 2014 WL 1317090, at *5–6. In contrast, the same 

term was found reasonable in Keefer because the facts suggested that the employee had been 

assigned particular accounts that comprised a geographic territory. 2012 WL 5268550, at *9–10. 

Given the fact-specific nature of this inquiry, a motion in limine is not a proper vehicle 

for resolving whether the covenants at issue here are enforceable, so the defendants’ motion is 

denied. That is not to say, though, that this is a question for the jury. “The reasonableness of a 

covenant not to compete is a question of law . . . .” Masters, 2014 WL 1317090, at *8; Krueger, 

882 N.E.2d at 729 (“Unlike reasonableness in many other contexts, the reasonableness of a 

noncompetition agreement is a question of law.”); Raymundo v. Hammond Clinic Ass’n, 449 

N.E.2d 276, 280 (Ind. 1983). Thus, whether or not the restrictive covenants here are enforceable 

will be a question for the Court to decide, not an issue to be argued to the jury. Accordingly, the 

Court will address with the parties at the final pretrial conference how and when the Court will 

make that determination. 

8. Chris Smith and William Whilden 

The defendants seek to bar any evidence about Chris Smith and William Whilden. Those 

individuals both worked for a Zimmer distributer and then were allegedly hired by Stryker to sell 

Vitagel in their old Zimmer territories. The defendants first argue that those individuals are 

irrelevant to this action because there is no evidence that Zimmer suffered damages as a result of 

those individuals’ sale of Vitagel for Stryker. However, Zimmer is not seeking any damages 

based on those individuals’ activities. Rather, it argues that Stryker’s conduct as to those 

individuals is evidence of the existence of the same scheme pursuant to which it hired Mr. 

Stovall and the Dickerson team. In particular, it notes that Stryker hired both of those individuals 
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to sell Vitagel in their former Zimmer territories, yet neither of those individuals actually made 

any Vitagel sales. Zimmer argues that those facts make it more likely that Stryker’s hiring of Mr. 

Stovall and the Dickerson team to sell Vitagel was merely a ruse, and that Stryker did not 

actually believe they would be making Vitagel sales. That, in turn, would make it more likely 

that Stryker actually hired them to sell orthopedic implants to their former clients. Because the 

relevance of that evidence does not depend on a claim for damages based on Mr. Smith or Mr. 

Whilden, the Court does not find that a lack of evidence of such damages makes this evidence 

inadmissible. The defendants also argue that this evidence is irrelevant because the statute of 

limitations has run on any claim based on Mr. Smith’s conduct. However, the statute of 

limitations bars claims, not evidence; even if Zimmer could not assert a claim based on Mr. 

Smith’s conduct, that does not make evidence of that conduct inadmissible to prove the existence 

of a scheme from which Zimmer suffered a later injury. 

The defendants also argue that evidence as to Mr. Smith and Mr. Whilden is irrelevant 

because there is no evidence that either of them breached their restrictive covenants. However, 

the relevance of this evidence does not depend on whether those individuals breached their 

agreements. As just discussed, if those individuals were hired to sell Vitagel yet made no sales, 

that would make it more likely that Stryker’s hiring (at substantial expense) of Mr. Stovall and 

the Dickerson team to sell Vitagel was a pretense. Finally, the defendants argue that this 

evidence should be excluded under Rule 403. As the Court has previously discussed, though, the 

“Vitagel scheme” is a central theory of Zimmer’s case, so the relevance of this evidence in 

support of that theory is not substantially outweighed by any danger of unfair prejudice or 

confusing the issues. Accordingly, this motion is denied. 
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9. Claim for tortious interference with contract barred by laches and waiver 

Stryker seeks to bar Zimmer’s claim for tortious interference with contract as to 

CrossLink because such a claim is barred by laches or waiver. Again, this motion, which seeks to 

bar a claim in its entirety, is an untimely and misplaced motion for summary judgment, and the 

Court will not entertain it as a motion in limine. 

10. Damages post-dating the one-year terms of the non-compete agreements 

Stryker moves to exclude any evidence of damages subsequent to the one-year terms of 

the non-compete agreements. The arguments as to this motion largely parallel those in Stryker’s 

motion to exclude the opinion of Zimmer’s damages expert, which has now been addressed. In 

addition, Zimmer’s damages theory is the subject of separate briefing that is ongoing. [DE 218]. 

Accordingly, the Court denies this motion in limine, and will address this issue, to the extent it 

remains in play, in connection with the separate briefing on Zimmer’s damages. 

11. Dean Lantermann’s testimony 

The defendants move to bar any testimony from Dean Lantermann, or in the alternative, 

to bar him from offering any opinions about withheld or deleted text messages. Mr. Lantermann 

is a computer expert whom the Court ordered to conduct a forensic examination of Mr. Stovall’s 

electronic devices in order to recover messages that may have been deleted from those devices. 

In particular, the Court ordered Mr. Lantermann to examine those devices, prepare a report with 

certain information about the messages he was able to recover, and deliver the messages 

themselves to Mr. Stovall’s counsel, who would then review the messages and produce 

responsive messages to Zimmer. 

The defendants object to any testimony from Mr. Lantermann on the basis that he did not 

prepare an expert report and has not disclosed any opinions in this case. Thus, they argue that it 

would be improper for Mr. Lantermann to testify at trial. Zimmer’s response indicates that it 
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does not intend to seek opinion testimony from Mr. Lantermann, though. It represents that it 

intends to call Mr. Lantermann to offer purely factual testimony about the spreadsheets he 

created with the messages he recovered from the devices, and to explain how he extracted that 

information from the devices. 

If the testimony is limited in that manner, the Court sees no basis on which to exclude it. 

Even if, as the defendants note, Mr. Lantermann did not prepare a formal expert report or the 

report contemplated in the Court’s order, they concede that Mr. Lantermann did provide them 

with complete spreadsheets containing the messages and metadata. They offer no reason why he 

should not be permitted to authenticate and explain the content of those spreadsheets.1

 In 

addition, Zimmer expressly advised the defendants during discovery that it intended to offer Mr. 

Lantermann’s testimony on these subjects. [DE 199-2]. Not only did that disclosure adequately 

notify the defendants of the content of this testimony, the defendants could have sought a formal 

report at that time if they believed one was required. Accordingly, given the limited scope of this 

testimony, the Court denies this motion. 

12. Affidavits of Victor, Brittain, and Smith 

The defendants seek to bar affidavits by three individuals from being admitted into 

evidence. Zimmer represents that those affidavits were only included in the defendants’ own 

exhibit list—not Zimmer’s—so the defendants are apparently moving to exclude their own 

evidence. Zimmer does not object, so the motion is granted. 

 

1

 The Court acknowledges that the defendants have separately objected to the admission of those 

spreadsheets. The Court will address those objections separately.
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13. Claim for punitive damages 

The defendants move to bar Zimmer’s claim for punitive damages, arguing that such a 

claim will be unsupported by the evidence. Yet again, that is a motion for summary judgment, 

not a motion in limine, so the motion is denied. 

14. Separation of witnesses 

The motion for separation of witnesses is granted as unopposed. Fed. R. Evid. 615. 

15. Documents not disclosed during discovery 

The defendants seek to exclude any documents not disclosed during discovery. This 

motion is denied, as they do not identify any specific documents to which this motion applies, or 

even suggest that there are such documents. To the extent any such documents arise, the parties 

will need to identify them specifically and support their arguments based on the circumstances 

particular to those documents; a generic motion in limine is an inappropriate means of addressing 

this issue. 

16. Other Stryker litigation 

Stryker seeks to bar evidence of other litigation involving the defendants or to which they 

are parties. In response, Zimmer agrees that this evidence is generally irrelevant and should be 

excluded for that reason, but it asks to be able to seek relief from an order barring this evidence 

should the door be opened or should this evidence otherwise become relevant. Accordingly, the 

Court grants this motion. As with any orders in limine, if circumstances change at trial, Zimmer 

may raise the issue with the Court outside the presence of the jury to seek permission to use this 

evidence. 

17. Stryker’s size, wealth, or resources 

Stryker moves to exclude evidence of its size, wealth, or resources, arguing that such 

evidence would be irrelevant and prejudicial. However, Zimmer is seeking punitive damages, 
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and a defendant’s financial position can be relevant in determining an amount of punitive 

damages. See Leister v. Dovetail, Inc., 546 F.3d 875, 883 (7th Cir. 2008); Lampley v. Onyx 

Acceptance Corp., 340 F.3d 478, 485 (7th Cir. 2003) (noting that a defendant’s annual revenues 

is relevant to an award of punitive damages). Stryker’s motion does not acknowledge the 

availability of punitive damages or attempt to argue why this evidence would not be relevant for 

that purpose, so this motion is denied. 

18. Order on summary judgment 

The defendants finally seek to exclude the content of the Court’s order on the motion for 

summary judgment. This motion is granted, as it would be inappropriate to disclose those matters 

to the jury. This order would not, of course, limit any arguments that counsel make to the Court, 

outside the jury’s hearing, as to which that order may be relevant. 

B. Zimmer’s motions in limine 

1. Affirmative defenses not pled 

Zimmer first moves to bar the defendants from pursuing affirmative defenses that they 

failed to plead in their answer. In particular, the defendants’ filings suggest that they intend to 

pursue the defenses of waiver and of failure to mitigate damages, but they did not include those 

affirmative defenses in their answer, so Zimmer argues they are waived. United States v. Adent, 

821 F.3d 911, 914 (7th Cir. 2016) (“It has long been recognized that a defendant’s failure to 

plead . . . . an affirmative defense in his or her answer to the complaint constitutes a waiver of 

that defense.”); Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997) (“Federal Rule of 

Civil Procedure 8(c) requires a defendant to plead a statute of limitations defense and any other 

affirmative defense in his answer to the complaint. The purpose of that rule, as courts have long 

recognized, is to avoid surprise and undue prejudice to the plaintiff by providing her notice and 

the opportunity to demonstrate why the defense should not prevail.”). The defendants concede 
12 

that they did not plead those defenses, but they argue that they should be able to pursue them 

anyway because (1) Zimmer had adequate notice through other documents that the defendants 

intended to pursue these defenses, and (2) Zimmer suffered no prejudice through these omissions 

and the defendants would be prejudiced if barred from presenting these defenses. 

To begin with, the Court does not find that the materials the defendants cite would have 

notified Zimmer that they intended to pursue these defenses, as might excuse their failure to 

plead them. See Venters, 123 F.3d at 968 (noting that courts “are not inclined to find a technical 

failure to comply with Rule 8(c) fatal . . . so long as the record confirms that the plaintiff had 

adequate notice of the defense and was not deprived of the opportunity to respond”). First, as to 

the defense of waiver, the defendants argue that Zimmer was on notice of this defense based on 

statements in their motion for summary judgment that Zimmer had never sued CrossLink or 

CrossLink’s employees, which the defendants now argue gives rise to waiver. Those facts would 

not have put Zimmer on notice of a waiver defense, however, for the simple reason that they are 

irrelevant to a waiver defense.2

 “Waiver is the intentional relinquishment of a known right . . . .” 

2444 Acquisitions, LLC v. Fish, 84 N.E.3d 1211 (Ind. Ct. App. 2017). “‘Because waiver is an 

affirmative act, a party’s mere silence, acquiescence or inactivity does not constitute waiver 

unless the party has a duty to speak or act.’” Id. (quoting Pohle v. Cheatham, 724 N.E.2d 655, 

659 (Ind. Ct. App. 2000)). Here, the only facts the defendants point to as indicative of their 

waiver defense are that Zimmer did not sue other parties. But inactivity does not constitute 

 

2

 In addition, raising a defense for the first time at summary judgment could still prejudice a 

plaintiff by preventing it from addressing that defense during discovery.
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waiver. Id. Having not identified any affirmative act by Zimmer that would constitute a waiver, 

the defendants did not put Zimmer on notice that they intended to pursue such a defense.3

The defendants also argue that Zimmer should have known they intended to assert the 

defense of failure to mitigate damages, notwithstanding their failure to plead it. They first cite to 

affidavits attached to Mr. Stovall’s answer in which certain doctors stated that Zimmer had not 

contacted them to seek their continued business after Mr. Stovall’s departure. However, the 

answer cited those affidavits in support of its affirmative defense of unclean hands. In addition, 

the facts in those affidavits could equally support an argument that Zimmer’s loss of business 

with those doctors was caused by factors other than Mr. Stovall’s breach of his agreement—a 

separate inquiry from whether Zimmer adequately mitigated its damages after suffering an injury 

as a result of Mr. Stovall’s breach. Thus, those affidavits would not have fairly notified Zimmer 

that the defendants intended to pursue an affirmative defense of failure to mitigate damages. The 

defendants also cite to certain discovery they propounded in which they asked Zimmer about the 

efforts it had taken to mitigate its damages. There is a difference, though, between inquiring into 

whether a basis for a defense exists such that a defendant could amend their pleading to assert it, 

and notifying the plaintiff that they were in fact asserting that defense. The defendants did not 

move—and still have not moved—to amend their answers after receiving the discovery 

responses, so Zimmer had no reason to believe the defendants were actually asserting this 

affirmative defense. Thus, the Court does not find that the defendants adequately notified 

Zimmer of their intent to raise these defenses. 

 

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 Indeed, if these are the only facts upon which the defendants base their waiver defense, then it 

is meritless in the first place. 
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That leaves the question of whether Zimmer was prejudiced by that omission. See 

Venters, 123 F.3d at 968; Best v. City of Portland, 554 F.3d 698, 700 (7th Cir. 2009) (noting that 

“‘a delay in asserting an affirmative defense waives the defense only if the plaintiff was harmed 

as a result’” (quoting Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005))). However, the 

parties’ briefs contain little discussion on this point. Accordingly, the Court will take this motion 

under advisement. The parties should be prepared to discuss at the final pretrial conference 

whether Zimmer was prejudiced by the late assertion of these affirmative defenses such that the 

defenses should be deemed waived. 

2. Equitable affirmative defenses 

Zimmer next moves to preclude the defendants from presenting equitable affirmative 

defenses—including unclean hands, laches, and equitable estoppel—to the jury at trial. It first 

argues that equitable defenses are matters for the Court to decide, not for the jury, so evidence 

limited to these defenses would be irrelevant and prejudicial if presented to the jury. It also 

argues that the defenses fail regardless, because they are unsupported by the evidence and also 

because they are not available as defenses to claims at law, meaning they are inapplicable now 

that Zimmer is no longer seeking equitable relief. 

Stryker’s response focuses on arguing that equitable defenses can be asserted even as to 

claims at law, regardless of whether Zimmer still seeks equitable relief. However, assuming that 

the equitable defenses are indeed available, those defenses would be decided by the Court, not 

presented to or decided by a jury. Stryker concedes that the defenses at issue are equitable 

defenses. And under federal law, which controls on this question,4

 there is no right to a jury trial 

 

4

 The result would be the same under Indiana law: “when both equitable and legal causes of 

action or defenses are joined in a single case, the equitable causes of action or defenses are to be 

tried by the court while the legal causes of action or defenses are to be tried by a jury.” Songer v. 

Civitas Bank, 771 N.E.2d 61, 64 (Ind. 2002).
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on equitable issues. Int’l Fin. Servs. Corp. v. Chromas Techs. Canada, Inc., 356 F.3d 731, 735 

(7th Cir. 2004). As the Seventh Circuit has explained, “[e]ven when a plaintiff is entitled to a 

jury trial on his legal claims, the district court must nonetheless make an independent judgment 

as to any equitable issue.” Id.; see also Maksym v. Loesch, 937 F.2d 1237, 1248 (7th Cir. 1991) 

(noting that equitable defenses are usually available against claims at law, but that the distinction 

between legal and equitable defenses may affect the right to a jury trial on those issues); cf. 

Seventh Circuit Pattern Civil Jury Instructions § 12.7.3 (“The Committee has not included an 

instruction defining the defenses of unclean hands and estoppel because they are issues for the 

court, not the jury.”). 

Accordingly, this motion is granted, to the extent that these equitable defenses may not be 

argued to the jury, meaning also that any evidence relevant solely to these defenses will not be 

presented to the jury. The Court will discuss with the parties at the final pretrial conference the 

manner in which any evidence relevant only to these defenses will be presented to the Court for 

its consideration. The Court does not address at this time the parties’ arguments as to the 

substance of these defenses. 

3. Zimmer’s non-enforcement of other agreements 

Zimmer moves to exclude evidence of Zimmer’s past enforcement or non-enforcement of 

restrictive covenants other than Mr. Stovall’s. In particular, Zimmer seeks to exclude evidence 

that it did not seek to enforce restrictive covenants against the Dickerson team, Mr. Whilden, or 

Mr. Smith. Zimmer argues that this evidence would be irrelevant, as the only breach of contract 

claim it asserts in this action is against Mr. Stovall, so detouring into whether and why it also 

brought actions against other employees would be misleading and wasteful. 

The Court finds that this evidence could be relevant at least in part as to damages. In 

particular, Zimmer claims that Stryker induced the Dickerson team to breach their restrictive 
16 

covenants with Zimmer and that their breaches of those agreements caused it substantial damage. 

If Stryker can show that Zimmer was aware of those employees’ conduct at the time, then 

Zimmer’s failure to timely seek injunctive relief to enforce those agreements could undermine an 

argument that Zimmer was in fact suffering substantial damages due to those employees’ 

ongoing competition against it. Accordingly, this motion is denied. 

The Court notes, however, that the focus of this trial will be on the claims Zimmer is

bringing and the damages it is seeking. To the extent the defendants begin detouring into 

litigating the merits of claims not before the jury, or appealing to sympathy based on Zimmer’s 

decision to seek damages from some parties but not others, the Court will sustain an appropriate 

objection at trial. 

4. Legal conclusions as to the relationship between Stryker and CrossLink 

Zimmer moves to bar the defendants from eliciting legal conclusions from their witnesses 

as to the relationship between Stryker and CrossLink or as to whether Stryker is liable for 

CrossLink’s conduct. The only potential testimony Zimmer identifies on that subject is from the 

defendants’ damages expert, who opined that Zimmer’s expert should not have included 

damages from CrossLink’s hiring of the Dickerson team in his calculation because those parties’ 

conduct was not attributable to Stryker. First, it would be improper for the expert to opine as to 

whether Stryker is in fact liable for that conduct or whether the evidence supports such a finding, 

as that sort of conclusion would be outside the scope of his expertise and outside the function of 

an expert witness. However, it is not clear whether that testimony is still at issue in light of the 

exclusion of Zimmer’s damages expert’s testimony. And beyond that potential testimony, 

whether certain testimony in fact constitutes a legal conclusion is best evaluated in light of the 

specific testimony. Since the motion does not further identify any specific testimony, and since 

the defendants indicate that they do not intend to elicit legal conclusions from their witnesses, the 
17 

Court denies this motion in limine, but will consider upon an appropriate objection at trial as to 

whether certain testimony would constitute an inappropriate legal conclusion. 

5. Zimmer’s recruiting and hiring practices 

Zimmer next moves to exclude evidence about its recruiting and hiring practices 

unrelated to the facts at issue in this action. In response, the defendants indicate that they wish to 

show that it is commonplace in the industry for companies to hire their competitors’ employees, 

and that the companies often review those employees’ non-compete agreements as part of that 

process. If offered at that level of generality, the Court agrees that this sort of evidence could be 

relevant for providing some context for these claims and would not carry a risk of prejudice, as 

Zimmer does not contend that Stryker’s conduct was wrongful in those respects. Thus, the Court 

denies this motion to the extent that the defendants may inquire in general as to whether Zimmer 

and other competitors sometimes hire other companies’ employees and review those employees’ 

non-compete agreements. However, the Court grants this motion to the extent that the defendants 

may not inquire as to particular instances of Zimmer’s recruiting or hiring or its particular 

practices. As Zimmer argues, the trial in this case is on the claims against Stryker, so its focus 

will be on Stryker’s conduct, not Zimmer’s. Inquiring into specific instances of Zimmer’s 

recruiting or hiring practices would be a distraction and would have little, if any, relevance, so 

the Court grants the motion in that respect. 

6. Zimmer’s size, assets, or net worth 

Zimmer seeks to exclude evidence of its size, assets, or net worth. The defendants state 

that they have no objection to this motion, so long as their motion to exclude Stryker’s size, 

wealth, or resources is also granted. As discussed above, the defendant’s motion is being denied. 

However, besides asking that their own motion be granted as well, the defendants did not make 

or develop any argument in opposition to Zimmer’s motion. The two motions are not equivalent, 
18 

either; Stryker’s size, wealth, and resources are relevant to Zimmer’s pursuit of punitive 

damages, but Stryker has not identified any comparable purpose for which it could use evidence 

of Zimmer’s size, assets, or net worth. Thus, this motion is granted. 

7. Contracts being unenforceable or business relationships being invalid 

Zimmer moves to preclude argument that the contracts at issue are unenforceable or that 

the business relationships at issue are invalid. As discussed above, whether the contracts at issue 

are enforceable is a question for the Court to decide. Thus, this motion is granted, to the extent 

that the enforceability of the restrictive covenants will not be presented to the jury. 

As to the validity of the business relationships, a valid business relationship is an element 

of a claim for tortious interference with business relationships. Zimmer argues that there is no 

evidence that the relationships at issue—its relationships with Dr. North and Dr. Risko in the 

Amarillo territory—were invalid, but that is an issue on which Zimmer bears the burden of 

proof. The defendants are entitled to hold Zimmer to that burden and to offer evidence, if there is 

any, to the contrary. Zimmer also notes that the defendants did not challenge this element at 

summary judgment, but a party need not move for summary judgment on an issue to preserve its 

ability to contest that issue at trial. Accordingly, the Court sees no basis upon which to bar the 

defendants from arguing that business relationship at issue are invalid, so this motion is denied in 

that respect. 

8. Separation of witnesses 

The motion for separation of witnesses was granted above. Stryker had requested an 

exception to this order to allow its expert witness to observe the testimony of Zimmer’s damages 

expert, so that he could offer rebuttal testimony. However, that request is moot now that the 

testimony of Zimmer’s damages expert has been stricken. 
19 

9. Other Zimmer litigation 

Zimmer moves to bar reference to other litigation involving Zimmer or to which Zimmer 

is a party. The defendants do not object, so this motion is granted. 

10. Plaintiff’s counsel as witnesses 

Zimmer next moves to prevent its attorneys—including its trial counsel and its in-house 

counsel—from being called as witnesses. The defendants respond that they have no plans at this 

time to call Zimmer’s attorneys as witnesses, but that they may need to do so to authenticate 

documents in support of their equitable defenses to a claim for damages as to Mr. Smith. 

However, Zimmer has expressly disclaimed any damages from Mr. Smith’s conduct, so the 

evidence would not be relevant for that purpose. In addition, at least as to trial counsel, calling 

the opposing trial counsel as a witness would require exceptional justification. Accordingly, this 

motion is granted. If circumstances arise such that the defendants believe they need to call 

Zimmer’s attorneys as witnesses, they must timely raise the issue with the Court. 

11. Lack of pursuit of certain damages meaning lack of causation for pursued 

damages 

Zimmer moves to bar the defendants from arguing that the fact that Zimmer is not 

pursuing damages for other surgeons and territories constitutes evidence of a lack of causation 

for the damages it does seek in this case. In particular, Zimmer is seeking damages as to Dr. 

North and Dr. Risko in Amarillo, and Dr. Jennings and Dr. Ridgeway in South Carolina. It seeks 

to bar the defendants from arguing that, because Zimmer is not seeking damages as to other 

doctors or other territories, it did not sustain damages as to the doctors just noted. The 

defendants’ response largely characterizes this motion as seeking to bar any argument against 

causation of damages. That argument is unresponsive, as this motion does not do so; it seeks 
20 

only to bar the defendants from invoking Zimmer’s non-pursuit of other damages as a basis for 

arguing against the damages Zimmer does seek. 

The Court finds that the argument subject to this motion would be improper. The 

question is whether the damages Zimmer is seeking in this action were caused by conduct for 

which the defendants are liable—the focus should be on the causation of those particular 

damages. The fact that Zimmer is not seeking damages for other potentially culpable conduct has 

little, if any, relevance to that question. In addition, allowing such an argument would invite a 

trial within a trial as to why Zimmer is not seeking those other damages, whether it did sustain 

other damages, and whether those other damages were in fact caused by the type of misconduct 

at issue in this case. That would invite confusion, delay, and wasting time, and that danger 

substantially outweighs any probative value of this argument. The defendants also note that they 

intend to dispute whether the alleged “Vitagel scheme” existed, but they do not identify how that 

has anything to do with this motion. Therefore, the Court grants this motion: the defendants may 

not argue that, because Zimmer is not pursuing damages for other surgeons and territories, the 

damages it is pursuing in this case were not caused by the defendants’ conduct.5

12. Decision not to file suit as evidence of lack of liability 

Finally, Zimmer moves to preclude the defendants from arguing that Zimmer’s decision 

not to file suit against CrossLink, the Dickerson team, Mr. Whilden, or Mr. Smith, is evidence of 

a lack of liability as to Stryker. Zimmer argues that its decision not to sue those other parties is 

not probative of whether Stryker is accountable for those parties’ conduct, and that inquiring into 

 

5

 Again, to the extent the defendants believe that Zimmer opens the door and makes this 

evidence relevant at trial, they will need to seek permission from the Court before offering 

evidence or argument on this topic.
21 

the reasons it chose to sue these defendants and not other parties would be wasteful and 

prejudicial. The Court agrees. 

First, Zimmer’s decision not to sue CrossLink or the other individuals directly does not 

mean that those other parties did not engage in conduct for which they or Stryker could be liable 

to Zimmer. And whether Stryker is liable for those parties’ conduct has nothing to do with 

whether those parties are also defendants in this case. Stryker argues that Zimmer’s decision not 

to sue CrossLink, the Dickerson term, or Mr. Smith is evidence that Zimmer knew that those 

individuals were not breaching their restrictive covenants. However, Zimmer’s knowledge is not 

an element of any of its claims. What Zimmer knew or whether it believed at the time that its 

former representatives were breaching their restrictive covenants is beside the point when it 

comes to liability. The question of what those individuals did will be determined at trial based on 

evidence of what those individuals actually did, not what Zimmer thought they did or who it 

sued. 

The Court therefore grants this motion. The Court notes, however, that this is a narrow 

order. As noted above, the defendants can still potentially cite to Zimmer’s decision not to seek 

injunctive relief against the Dickerson team in contesting the amount of damages from those 

individuals’ conduct. In addition, whether Stryker is accountable for any conduct by CrossLink 

or the Dickerson team is a central question at trial. Thus, it is perfectly appropriate for Stryker to 

argue that it is not accountable for those parties’ conduct—in other words, that Zimmer sued the 

wrong party for those damages. But Stryker’s accountability for those parties’ conduct would 

remain the same regardless of whether Zimmer also sued those other parties. Thus, the 

defendants may not argue that Zimmer’s failure to sue those other parties is evidence of a lack of 

Stryker’s liability. 
22 

C. Scope of summary judgment 

Though not raised in a motion in limine, the parties’ trial briefs reflect a dispute over the 

scope of the Court’s order on the motion for summary judgment. The defendants contend that the 

Court granted summary judgment as to the unfair competition claim against Stryker in its 

entirety, and that the Court further limited that claim as to Mr. Stovall to his misuse of trade 

secrets or confidential information. Zimmer disagrees. The Court does too. In addressing the 

unfair competition claim at summary judgment, the only aspect of the claim that the Court 

precluded was a claim against Stryker arising out of the Dickerson team’s conduct. [DE 131 p. 

10–11 (granting summary judgment on the “unfair competition claim, to the extent it is 

predicated on the actions of the Dickerson team”)]. The Court did not grant summary judgment 

on this claim against Stryker arising out of Mr. Stovall’s conduct; to the contrary, it expressly 

stated that that aspect of the claim remained live. Id. p. 18 (stating that the unfair competition 

claim is “limited to allegations regarding Stryker’s hiring of Stovall”). As to the defendants’ 

argument that the Court also limited the scope of this claim to a misuse of trade secrets or 

confidential information, the order on summary judgment offers no basis for such an argument. 

Though, as just noted, the order limited the claim to Stryker’s hiring of Mr. Stovall—as distinct 

from the Dickerson team—it did not further limit the claim to a particular theory within that 

course of conduct. Thus, the Court rejects the defendants’ arguments that the unfair competition 

only survives as to Mr. Stovall based on a theory of misusing trade secrets of confidential 

information. 

D. Sealing exhibits and testimony 

Another dispute reflected in the parties’ filings is the scope of materials that may be filed 

under seal, and whether the burden will lay on the party seeking or opposing the filing of 

documents under seal. Zimmer indicates that it has agreed to withdraw its confidentiality 
23 

designations as to all of the documents it produced in this matter, and as to the depositions of 

certain witnesses, so none of those materials need to be filed under seal. Zimmer contends that 

Stryker should likewise withdraw its confidentiality designations and argues that, to the extent 

Stryker wishes to maintain any exhibits or testimony under seal, it should be required to 

demonstrate on a document-by-document or line-by-line basis why the matter should be withheld 

from the public record. 

Stryker disagrees. It cites to the protective order, which allows either party to designate 

materials that it produces as confidential. The protective order further provides that if a party 

wishes to dispute a confidentiality designation, that party bears the burden of moving to dedesignate the material. Stryker argues that this framework applies equally at trial, such that it is 

entitled to submit under seal any exhibits or testimony that it has designated as confidential, and 

that Zimmer bears the burden of establishing why any of those materials should be made public. 

Stryker’s reliance on the protective order is unfounded. Protective orders govern the 

exchange of documents between the parties during discovery. Because there is no presumption of 

public access to such documents, protective orders are often liberal in allowing the parties to 

limit the disclosure of those documents so as to facilitate the free exchange of documents in 

discovery. However, an entirely different set of rules applies to testimony and exhibits offered at 

trial.6

 As the Seventh Circuit has explained, “[s]ecrecy is fine at the discovery stage, before the 

material enters the judicial record. But those documents, usually a small subset of all discovery, 

that influence or underpin the judicial decision are open to public inspection unless they meet the 

 

6

 In addition, the protective order says nothing about whether confidential documents filed with 

the Court will be kept under seal; it simply requires the filing party to file a motion to seal, which 

allows the party seeking secrecy to be heard as to why the material should remain under seal. 

The burden still remains on the party seeking secrecy to justify sealing the material. Naked 

reliance on a party’s own confidentiality designation does not suffice.
24 

definition of trade secrets or other categories of bona fide long-term confidentiality.” Baxter 

Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002) (internal citation omitted); City of 

Greenville, Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695, 697 (7th Cir. 2014) (“Discovery 

material can be shielded from the public eye. Once filed with the court, however, documents that 

affect the disposition of federal litigation are presumptively open to public view unless a statute, 

rule, or privilege justifies confidentiality.” (internal quotations and citations omitted)). Exhibits 

and testimony offered at trial are certainly materials that form the basis of the parties’ dispute 

and the resolution of their claims, and are subject to that presumption. In addition, the burden of 

justifying sealing lies on the party seeking confidentiality. Heraeus Kulzer, GmbH v. Biomet, 

Inc., No. 17-1674, 2018 WL 652867, at *12 (7th Cir. Feb. 1, 2018) (“Because there is a strong 

presumption toward public disclosure of court files and documents, courts resolving such 

motions have placed the burden on the party seeking confidentiality to show good cause for 

keeping the documents from public view.”). 

Accordingly, if any party wishes to maintain any evidence offered at trial under seal, it 

will bear the burden of establishing why that particular evidence should be withheld from public 

view. To facilitate trial, however, the Court will permit the parties to provisionally file materials 

under seal when offering the materials at trial, and will require the parties to file, within two 

weeks of the completion of trial, a motion justifying as to each individual item why it should not 

be unsealed. The parties will also likely be required to submit redacted versions of any sealed 

documents, redacting only the information as to which sealing is justified; to the extent the 

parties can rely on such redacted exhibits at trial, which would moot the need to seal them, they 

should do so. 
25 

 SO ORDERED. 

 ENTERED: February 27, 2018 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court