UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

CHARLES HESS, et al., 

 Plaintiffs, 

 v. 

BIOMET, INC., et al. 

 Defendants. 

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Case No. 3:16-CV-208 JD 

OPINION AND ORDER

This case is approaching trial on the Distributors breach-of-contract claims against 

Biomet.1 Both sides have filed motions in limine, and they have also filed Daubert motions. In 

this order, the Court resolves those motions and addresses other issues that have come to light 

through the pretrial filings. 

I. DISTRIBUTORS’ MOTIONS IN LIMINE 

1. July 2015 letter negotiating buy-out 

The Distributors first move to exclude a letter their attorney sent to Zimmer–Biomet on 

July 20, 2015, arguing that the letter is a settlement communication excluded by Rule 408. As 

background, Biomet was going through the process of merging with Zimmer, Inc. around 2015. 

As part of that process, Biomet made buy-out offers to each of the retired distributors to which it 

was paying lifetime commissions, including each of the plaintiffs here. In response, the 

Distributors pushed back on the amount of the buy-out and asked for better offers. Those 

discussions and the pending merger also raised an additional dispute: whether the Distributors 

would be entitled to lifetime commissions on sales by Zimmer or Zimmer–Biomet (the new post-

 

1

 There are two defendants, but for simplicity the Court refers primarily to Biomet when 

referring to the defendants’ motions and arguments.
2 

merger entity), instead of just sales on Biomet products. After preliminary discussions between 

the parties failed to produce a resolution of either the buy-out offers or the Distributors’ right to 

commissions on Zimmer or Zimmer–Biomet sales, the Distributors retained counsel. 

On July 20, 2015, the Distributors’ attorney sent a letter to Zimmer–Biomet addressing 

both of those topics. Much of the letter outlined the Distributors’ history with Biomet and the 

reasons they should receive more favorable buy-outs. The letter also raised the Distributors’ 

contention that they were entitled to commissions on sales by the post-merger entity. The letter 

asserted, for example, that Biomet had anticipatorily repudiated its obligations by taking a 

contrary position, and that Biomet made clear that it intended to breach its obligations to pay 

commissions on Zimmer–Biomet products following the merger. The letter stated that the 

Distributors would take any steps necessary to protect their rights unless Zimmer–Biomet either 

made an acceptable buy-out offer or provided written assurance that it would pay commissions 

on products “sold by Zimmer–Biomet in the relevant territories.” 

As relevant to Biomet’s present arguments, however, the letter also included some 

references to the payment of commissions on Biomet products. It stated, for example, that since 

the Distributors’ retirement, “Biomet has honored its obligations, and paid commissions on all 

products sold in the relevant territories.” It likewise stated that “[u]ntil recently, the Legacy 

Distributors had no complaints regarding Biomet holding up its end of the bargain and honoring 

the Distributorship Agreements.” At trial, though, the Distributors’ only claim is that Biomet has 

been underpaying them since their retirements by paying commissions on a smaller set of Biomet 

products than dictated by the agreements. Biomet argues that the statements in this letter show 

that the Distributors’ current interpretation of the agreements is a recent invention and does not 

reflect the parties’ understanding or intent when they entered the agreements. 
3 

The Distributors move to exclude the letter under Rule 408, arguing that the letter was a 

settlement communication and that Biomet intends to use the letter for prohibited purposes, 

namely to disprove the validity of their claim or impeach by contradiction. Rule 408 states: 

Evidence of the following is not admissible—on behalf of any party—either to 

prove or disprove the validity or amount of a disputed claim or to impeach by a 

prior inconsistent statement or a contradiction: 

. . . . 

(2) conduct or a statement made during compromise negotiations about the claim[.] 

Fed. R. Evid. 408(a). Though Biomet attempts to argue otherwise, it plainly intends to use the 

letter to disprove the Distributors’ claim or contradict their testimony. [DE 256 p. 5 (admitting 

that Biomet “will reference the letter at trial to counter the testimony offered by Plaintiffs as to 

the meaning of a decades-old contract provision”)]. 

The question, then, is whether this letter falls within Rule 408’s coverage. In arguing that 

it does not, Biomet asserts that the letter was only negotiating a contractual buy-out—a routine 

business negotiation, not a disputed claim—and that the claim at issue now is a new theory that 

was not in dispute then and was not raised until the next year when the Distributors filed suit. 

The Distributors disagree, arguing that there was a dispute at the time of the letter: a dispute over 

whether the Distributors were entitled to commissions on Zimmer or Zimmer–Biomet products. 

The Court agrees that the disagreement over that issue had likely ripened into a disputed claim 

by the time of the letter—the letter accuses Biomet of having anticipatorily repudiated its 

obligation to pay those commissions and states that Biomet made clear that it intended to breach 

its obligations. 

Critically, however, that is not the claim going to trial in this case. For Rule 408 to apply, 

the claim being negotiated must be the same claim at issue in the litigation. As the Seventh 

Circuit recently explained, “settlement discussions concerning a specific claim are excluded from 
4 

evidence to prove liability on that claim, not on others. That is, when a settlement discussion 

concerns Claim A, and statements from that discussion are later offered to prove or disprove 

liability on Claim B, Rule 408(a) does not make those statements inadmissible.” Wine & Canvas 

Dev., LLC v. Muylle, 868 F.3d 534, 541 (7th Cir. 2017); see also Zurich Am. Ins. Co. v. Watts 

Indus., Inc., 417 F.3d 682, 689 (7th Cir. 2005) (“The balance is especially likely to tip in favor of 

admitting evidence when the settlement communications at issue arise out of a dispute distinct 

from the one for which the evidence is being offered.”). That conclusion follows from the rule’s 

text, which states that a party may not seek to disprove the validity of “a claim” with statements 

made during compromise negotiations “about the claim.” Rule 408(a) (emphasis added); see also 

Muylle, 868 F.3d at 541 (“Paragraph (a) uses the term “a disputed claim,” not “disputed claims” 

or “any claims.” Subparagraphs (1) and (2) of paragraph (a) likewise speak of “the” claim.”); 

Armstrong v. HRB Royalty, Inc., 392 F. Supp. 2d 1302, 1304 (S.D. Ala. 2005) (“[T]he definite 

article “the” limits “the claim” as to which evidence may not be admitted to the claim previously 

referenced, i.e., the claim which was the subject of a settlement offer.”). 

Here, to the extent the July 2015 letter discusses a disputed claim, that claim relates to 

whether the Distributors would be entitled to commissions on sales of Zimmer or Zimmer–

Biomet products once the merger occurred. The Distributors’ counsel made that point at the final 

pretrial conference, explaining that the dispute at the time of the letter was whether the lifetime 

commissions payments would extend to the products of the new Zimmer–Biomet entity. As 

counsel also noted, however, that claim has been dismissed and is not part of the trial in this 

case. The claim going to trial has nothing to do with whether Zimmer or Zimmer–Biometbranded products became subject to the lifetime commissions provision after the merger; it 
5 

relates solely to the proper scope of commission payments on sales of legacy Biomet products, 

dating back to the Distributors’ retirements. 

The Distributors have never argued that a dispute existed as to that claim at the time of 

the letter, nor does the letter itself contemplate such a claim. [DE 175-3 p. 8 (“In the years 

following the Legacy Distributors’ retirement, Biomet has honored its obligations, and paid 

commissions on all products sold in the relevant territories.”)]. In fact, the Distributors have 

argued elsewhere that they were not even aware of that claim “until shortly before filing this 

lawsuit in 2016.” [DE 198 p. 9].2 If the Distributors were not even aware of this claim at the time 

of the July 2015 letter, they cannot argue that the letter constituted an attempt to compromise that 

claim. Armstrong, 392 F. Supp. 2d at 1305 (noting that “one can hardly dispute a claim of which 

he is unaware”); see also Tendeka, Inc. v. Glover, No. 2015 WL 2212601, at *21 (S.D. Tex. May 

11, 2015) (holding that a letter attempting to settle one claim was not excluded by Rule 408 to 

disprove a different claim of which the parties were not even aware at the time). 

Because the claim for which this evidence is being offered is not the claim being 

negotiated in the July 2015 letter, Rule 408 does not bar its admission. Therefore, the Court 

denies this motion. 

2. Al Plows email 

The Distributors similarly move to exclude an email sent to Biomet’s general counsel by 

Al Plows, another former Biomet distributor. This email was sent in May 2015, and was a 

precursor to the letter just discussed. In his email, which he copied to each of the Distributors, 

Mr. Plows responded to Biomet’s buy-out offer and also asked for written confirmation “that 

 

2 See also DE 241 p. 11–12 (noting that Mr. Plows’ prior email on the same topic was in relation 

to a claim that has been dismissed and is not being presented at trial)].
6 

going forward Zimmer–Biomet will continue to honor their obligation to pay override 

commissions on any/all reconstructive products sold in our respective territories.” 

The Distributors argue that this email is excluded as a settlement communication under 

Rule 408, but for the same reasons just discussed, the Court finds that Rule 408 does not apply. 

The Distributors also argue that Mr. Plows’ email is hearsay, but that argument is insubstantial. 

Hearsay is defined as an assertion that is offered to prove the truth of the matter asserted. Fed. R. 

Evid. 801(a), (c)(2). Mr. Plows’ statement was a request, not an assertion of truth—he asked for 

confirmation that Zimmer–Biomet will pay commissions on reconstructive products sold in their 

territories moving forward. The relevance of this statement is not the truth of anything he 

asserted, but the fact that he asked for confirmation only as to “reconstructive products.”3

Because this was a request, not an assertion offered for its truth, it does not qualify as hearsay, so 

Biomet does not need to meet any exception to the hearsay rule. See Carter v. Douma, 796 F.3d 

726, 735 (7th Cir. 2015).

The Distributors finally argue that this email should be excluded under Rule 403. The 

Distributors argue that allowing this email would require explanations of the circumstances of 

Mr. Plows’ involvement in the negotiations and why he is not a plaintiff in this case, and could 

require some context about the merger. However, the details about Mr. Plows can be established 

quickly and without inviting confusion, and context about the merger will inevitably come up 

anyway—both Biomet and Zimmer Biomet are defendants in this case. And although the 

Distributors offer reasons that might explain away Mr. Plows’ reference to “reconstructive 

 

3

 The Distributors also argue that Mr. Plows did not formally represent them in this negotiation, 

but that would not make this email irrelevant. Mr. Plows sent the email purporting to speak on 

their behalf (he referred to the “Legacy Distributors” and used the words “we” and “us”); he 

copied each of the Distributors on the email; and they did not express disagreement with his 

statements. That allows an inference that they agreed with his characterization.
7 

products,” that does not negate the relevance of this exhibit, as the jury could find that Biomet’s 

interpretation is the more plausible reading. Thus, the Court does not believe that the danger of 

any unfair prejudice substantially outweighs the probative value of this exhibit. Accordingly, the 

Court denies the motion to exclude this exhibit. 

3. Distributors’ violations of agreements 

The Distributors next move to exclude any evidence or argument that they violated their 

distributorship agreements while they were active distributors. Though Biomet responded in 

opposition to this motion, it clarified at the final pretrial conference that it does not intend to 

offer any argument that the Distributors breached their agreements. To the contrary, it intends to 

argue that the Distributors did not breach their agreements, and that their course of performance 

in compliance with those agreements informs the meaning of the agreements. On that 

understanding, the Court grants the motion as unopposed. The defendants may not argue or 

present evidence that the Distributors breached their agreements as active distributors, though 

that does not prevent them from presenting evidence of the course of performance in accordance 

with those agreements. 

4. Challenge to damages calculation 

The Distributors next move to bar Biomet’s damages expert, Bryan Callahan, from 

challenging their own expert’s damages calculation. The Court addresses the admissibility of Mr. 

Callahan’s opinions below relative to the Distributors’ Daubert motion. That ruling suffices to 

frame the scope of Mr. Callahan’s testimony, so no further order is warranted on that issue.4

 

4

 The Distributors argue elsewhere that there is no genuine dispute on the amount of damages 

(assuming they prevail on their interpretation of the contracts) so the issue need not be presented 

to the jury. The parties are free to enter a stipulation on damages if they like, but otherwise there 

is no basis for taking the issue away from the jury. The Distributors bear the burden of proof, and 

absent a stipulation, they will have to meet that burden by presenting evidence at trial. If the 

evidence supports only one result, they can argue that to the jury.
8 

5. Shera’s prior lawsuit 

The Distributors move to exclude evidence of a previous lawsuit Frank Shera brought 

against Biomet. That suit involved a dispute over the scope of Mr. Shera’s distributorship under 

his distributorship agreement. Most notably, his stipulation to dismiss that suit included the 

following statement: “Frank L. Shera and Frank L. Shera, Inc. admit that the Distributorship 

Agreement does not contractually grant them the right to sell the products of Biomet’s present 

subsidiaries or companies which Biomet may acquire in the future.” The Distributors argue that 

this admission is not relevant because that suit involved a dispute over a different provision in 

the agreement, and that its use at trial would be prejudicial. 

The Court disagrees. Mr. Shera’s admission about the scope of the agreement is highly 

relevant. It is a direct admission by a plaintiff in this case about the scope of the same agreement 

being litigated in this case. The Distributors attempt to deflect that statement by noting that the 

previous suit involved a dispute over the products Mr. Shera was allowed to carry as an active 

distributor (addressed in Section 2) while the current suit involves a dispute over the products he 

is entitled to receive commissions on in his retirement (addressed in Section 9 of the same 

contract). But Biomet’s core theory in this case is that those two provisions have the same 

scope—that Mr. Shera is entitled to receive retirement commissions only on products within the 

scope of his distributorship. See B&R Oil Co. v. Stoler, 77 N.E.3d 823, 827 (Ind. Ct. App. 2017) 

(“We review the contract as a whole[.]”). An admission that Mr. Shera was not entitled to 

distribute products of Biomet’s subsidiaries is thus highly relevant to his claim for lifetime 

commissions on products sold by those subsidiaries. That the Distributors intend to offer a 

competing interpretation does not make this admission irrelevant. 
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Given the significant probative value of this evidence, the Court cannot find that the 

probative value is substantially outweighed by any of the concerns for prejudice raised by the 

Distributors. Accordingly, the Court denies this motion. 

6. Dollar amount already paid to distributors in the past 

The Distributors also moved to exclude evidence of the amount the Distributors were 

paid while they were active distributors, and to prohibit argument that the Distributors “have 

been fairly compensated in retirement based solely on the total amount of retirement 

commissions they have received.” [DE 241 p. 14]. Biomet does not object to either of those 

requests, as narrowly framed in that manner, so the Court grants the motion. As Biomet notes, 

however, that will not preclude evidence of the amount the Distributors have been paid in 

retirement commissions. Nor will it preclude argument that those amounts satisfy Biomet’s 

obligations under the agreements. 

7. Testimony by Biomet witnesses about intent 

The Distributors also move to exclude testimony by Biomet’s witnesses about Biomet’s 

intent at the time it entered the agreements. The Distributors argue that those witnesses—

particularly Daniel Hann, Biomet’s former general counsel—were not employed by Biomet at 

the time or were not part of the agreements’ negotiation, so they lack firsthand knowledge and 

should not be permitted to relate hearsay about what Biomet’s founders intended at the time. The 

Distributors’ motion is overbroad, as the admissibility of this testimony will depend on the 

precise testimony, the foundation laid for it, and the purpose for which it is offered. The Court 

thus declines to resolve this issue through an order in limine. However, the parties’ arguments 

raise some issues that warrant discussion at this point in order to frame the analysis that will 

apply at trial. 
10 

The Distributors express concern that Mr. Hann will testify about conversations he had 

with Biomet’s founders, including Dane Miller, in which the founders talked about what they 

intended when they entered the distributorship agreements. Should such a statement be offered 

for the truth of the matter asserted by Mr. Miller, it would constitute hearsay. And as the 

Distributors note, the state-of-mind exception to the hearsay rule would not apply if the 

statement refers to what Mr. Miller intended at some earlier point. The state-of-mind exception 

applies only to the declarant’s “then-existing state of mind,” Fed. R. Evid. 803(3), so a statement 

about what the declarant intended at a previous time would not be covered. The statement would 

meet that exception, though, if Mr. Miller expressed his current state of mind about what he 

understood the agreements to mean at the time he made a statement to Mr. Hann. That would be 

a statement of his “then-existing” state of mind; the jury could then decide to what extent Mr. 

Miller’s belief at that time supports an inference about his intent at the earlier time when the 

parties entered the agreement. See 2 McCormick on Evidence § 274 (7th ed. 2016) (“Although 

the statement must describe a state of mind or feeling existing at the time of the statement, the 

evidentiary effect of the statement is broadened by the notion of the continuity in time of states 

of mind.”). 

There is also other testimony that Mr. Hann could offer that would not be excluded as 

hearsay. Some statements by Mr. Miller might not be hearsay to begin with, as Biomet notes. 

Hearsay is an out-of-court “assertion” offered to prove “the truth of the matter asserted.” Fed. R. 

Evid. 801(a), (c). If, for example, Mr. Miller gave Mr. Hann a direction or instruction about what 

action to take with regard to Biomet’s performance under the agreements, that would not be an 

assertion offered for its truth, so it would not be hearsay. See Ruhl v. Hardy, 743 F.3d 1083, 1099 

(7th Cir. 2014) (holding that a statement was not hearsay because it was “a direct command, not 
11 

a statement offered to prove the truth of the matter asserted”); Carter v. Douma, 796 F.3d 726, 

735 (7th Cir. 2015) (holding that a request and an instruction were not hearsay “because they 

were not ‘statements’ making any factual assertions”). Other testimony might be based on Mr. 

Hann’s personal knowledge. For example, as the general counsel who was involved in executing 

the agreements on behalf of Biomet, he would have personal knowledge of Biomet’s 

performance under the agreements, which would be relevant to Biomet’s course-of-performance 

argument. 

That said, the Court does not agree with Biomet that Mr. Hann’s testimony is insulated 

from the rule against hearsay because he was designated as a corporate representative for a 

deposition under Rule 30(b)(6). That rule allows a party to serve a notice of deposition on a 

corporation, identifying specific matters to be discussed. The corporation must then produce a 

representative who “must testify about information known or reasonably available to” the 

corporation on those matters. Fed. R. Civ. P. 30(b)(6). Biomet argues that because Mr. Hann was 

designated as a corporate representative for a Rule 30(b)(6) deposition, he can testify to its 

corporate knowledge without any need for personal knowledge, and thus can testify without 

regard to the rule against hearsay. Under Rule 32(a)(3), an “adverse party” may use at trial the 

deposition of a party’s designee under Rule 30(b)(6). But Mr. Hann is Biomet’s own 

representative, and Rule 32(a)(3) does not allow a party to use its own designee in this manner. 

See Union Pump Co. v. Centrifugal Tech. Inc., 404 F. App’x 899, 907–08 (5th Cir. 2010) 

(“Federal Rule of Civil Procedure 30(b)(6) allows corporate representatives to testify to matters 

within the corporation’s knowledge during deposition, and Rule 32(a)(3) permits an adverse 

party to use that deposition testimony during trial. However, a corporate representative may not 

testify to matters outside his own personal knowledge to the extent that information is hearsay 
12 

not falling within one of the authorized exceptions.” (citation, quotation, and alteration omitted)); 

see also Fed. R. Civ. P. 32(a)(1)(B) (stating that a deposition may be used under this rule “to the 

extent it would be admissible under the Federal Rules of Evidence if the deponent were present 

and testifying”). Thus, notwithstanding that Biomet produced Mr. Hann in response to a Rule 

30(b)(6) notice, Mr. Hann’s testimony at trial will still have to comply with the rules of evidence 

in order to be admitted. 

8. Statute of limitations 

The Distributors next move to exclude evidence or argument concerning Biomet’s statute 

of limitations defense. At summary judgment, the Court made two holdings relevant to the 

statute of limitations. It first held that the statute of limitations accrued separately for each 

payment that came due, so the statute of limitations could not bar the Distributors’ claims in their 

entirety, it could only limit the period for which they could seek damages. Second, the Court 

held that the applicable statute of limitations was not provided by the Uniform Commercial Code 

(which would have been four years). Instead, the default statute of limitations for breach of 

contract claims applied. The Court did not resolve, however, whether that term was 20 years (for 

contracts entered before September 1, 1982) or 10 years (for contracts entered after), since that 

would not have affected the outcome of the motion. 

In their motion in limine, the Distributors first argue that five of the Distributors are 

subject to the 20-year statute of limitations, as they entered their original distributorship 

agreements before September 1982. And because none of those Distributors received 

commission payments more than 20 years before this suit was filed on April 4, 2016, they argue 

that the statute of limitations has no possible application to their claim. The sixth plaintiff, Mr. 

Shera, concedes that his contract is subject to a 10-year statute of limitations, but he is willing to 
13 

forego any damages that accrued more than ten years before suit, in which case there would be 

no work left for the statute of limitations on his claim, either. 

Biomet offers little substantive response to these arguments, except to say that it wishes 

to argue this defense to the jury. The applicable statute of limitations is a question of law for the 

Court to decide, though, and a motion in limine is an appropriate vehicle for making that 

determination. Under Indiana law, the statute of limitations on breach of contract claims is 20 

years for contracts entered before September 1, 1982, and 10 years for contracts entered after. It 

is undisputed that five of the Distributors (all but Mr. Shera) entered the distributorship 

agreements upon which their claims are based prior to September 1982, so they are subject to the 

20-year term. Biomet argues in response that those Distributors signed termination agreements 

later, but those agreements expressly provided that the long-term commission provisions in the 

original distributorship agreements remained in effect. The parties even entered a stipulation to 

that fact. [DE 267 (“The Termination Agreements differ in name and some other respects, but all 

state that the Long Term Commission Program found in the Distributorship Agreements survives 

Plaintiffs’ retirement and remains in full force and effect.”)]. The breach of contract claims are 

premised on the surviving provision of the original distributorship agreements, which were 

entered before September 1, 1982 for these five Distributors, so those claims are subject to 20-

year limitations period. 

That being the case, Biomet hasn’t shown that the statute of limitations has any role left 

to play at trial. As a matter of law, the five Distributors’ claims are subject to 20-year limitations 

periods, and those Distributors represent without contradiction that they do not seek any damages 

that could have accrued before that period. The sixth plaintiff agrees that he is subject to a 10-

year limitations period, but has agreed not to even ask for any damages that accrued before April 
14 

4, 2006. Given that concession, Biomet has effectively prevailed on its statute of limitations 

defense as to Mr. Shera already, so there is no use in further arguing the point to the jury. If none 

of the Distributors are seeking damages that accrued before the applicable limitations period, 

then the statute of limitations has no applicability at trial and is not relevant. Without any 

argument from the defendants about how the statute of limitations could nonetheless have an 

impact at trial, the Court grants this motion in limine. 

9. Equitable affirmative defenses 

The Distributors next move to exclude evidence relevant only to the defendants’ 

equitable affirmative defenses. Both sides agree that those equitable defenses are decided by the 

Court, not the jury, so evidence on these issues need not be presented to the jury. The Court 

therefore grants this motion, and will not allow evidence relevant solely to the equitable 

affirmative defenses to be presented to the jury. Biomet argues that all of the evidence relevant to 

the equitable defenses will also come in as relevant to other issues at trial, so the issue may not 

arise, but the Distributors should make a specific objection at trial to any evidence they believe 

falls in this category. 

10. Mitigation of damages 

The Distributors also ask to exclude Biomet’s affirmative defense that they failed to 

mitigate their damages. The Distributors argue that this defense should be excluded because 

there is insufficient evidence to support it. The Court agrees with Biomet that, framed in that 

manner, the motion is overbroad. A motion in limine is not the proper vehicle for evaluating the 

sufficiency of the evidence, so the motion is denied in that respect. The Distributors’ motion, 

however, also reflects a contested issue of law that is amenable to a motion in limine, as they 

argue that a legal theory upon which Biomet intends to proceed for this defense is unsound. 

Biomet appears to argue, at least in part, that the Distributors failed to mitigate their damages 
15 

because they did not sue, or at least object to the underpayments, earlier. The Distributors object 

that this is not a cognizable mitigation-of-damages argument. The Court agrees. 

First, as the Distributors argue, mitigation of damages refers to a party’s duty after 

sustaining an injury. As the Indiana Supreme Court has noted, a party “has a duty to mitigate his 

or her post-injury damages[.]” Willis v. Westerfield., 839 N.E.2d 1179, 1187 (Ind. 2006) 

(emphasis added) (noting also that the “principle of mitigation of damages address conduct by an 

injured party that aggravates or increases the party’s injuries” (emphasis added)); Scott-Larosa v. 

Lewis, 44 N.E.3d 89, 94 (Ind. Ct. App. 2015) (“The duty to mitigate damages is a common-law 

duty independent of the terms of the underlying contract, and it requires the non-breaching party 

to make a reasonable effort to act in such a manner as to decrease the damages caused by the 

breach.” (emphasis added)). Biomet’s argument in this respect, however, appears to be that the 

Distributors failed to keep the injury from occurring in the first place. A breach occurs each time 

a payment comes due but is not paid, so Biomet’s argument that the Distributors should have 

complained sooner to keep damages from accruing is really an argument that the Distributors 

should have kept Biomet from breaching, which is not a question of mitigation of damages. 

Even then, Biomet does not claim that it would have begun paying the commissions any 

differently had the Distributors complained or sued at any other point—it denies even now that 

they are entitled to any further commissions. Instead, Biomet appears to argue that it would have 

been better positioned to defend itself against had the Distributors brought this suit earlier, but 

that is just a variation on its laches defense, not a valid theory of mitigation of damages. 

Relatedly, Biomet does not argue that the amounts that came due under the contracts would have 

been any different had the Distributors sued earlier. The commissions are based on the sales in 

the Distributors’ former territories, and Biomet does not suggest that anything the Distributors 
16 

should have done would have affected those sales. Should the Distributors prevail on their 

interpretation of the contracts, the amounts that would have been due would be the same 

regardless of when they sued; the only difference would be whether the Distributors received 

those amounts as the sales occurred or when judgment is entered in this case. That again 

illustrates that this is not a valid mitigation of damages argument. 

Accordingly, the Court will not permit Biomet to argue that the Distributors failed to 

mitigate their damages by failing to timely sue or complain about an underpayment of 

commissions. Should Biomet be unable to offer any other mitigation of damages theory, this 

defense can be resolved on a Rule 50 motion or at the final instruction conference. 

11. Prior rulings 

Last, the Distributors move to preclude disclosure to the jury of the Court’s prior rulings. 

The Court grants the motion as unopposed. 

II. DEFENDANTS’ MOTIONS IN LIMINE 

1. Agreements with non-plaintiff distributors 

Biomet first moves to exclude evidence of distributorship agreements entered into by 

distributors other than the six plaintiffs here. Biomet argues that those agreements have little if 

any relevance, and that the dangers of confusing the issues and misleading the jury warrant 

exclusion under Rule 403. The Court agrees. 

The parties focus their arguments on this topic on an agreement entered in 2007 between 

Timothy Weis and Biomet Orthopedics, Inc. Mr. Weis initially entered a distributorship 

agreement with Biomet, Inc. in the early 1980s, similar to the Distributors. In 2007, Mr. Weis 

agreed to terminate that initial distributorship agreement, and he signed a new agreement with 

Biomet Orthopedics, Inc. The 2007 agreement also included a long-term commissions program, 

but used different language than in the initial agreement. The Distributors argue that the 2007 
17 

agreement is relevant because it shows that Biomet must have known it owed commissions on a 

larger set of products than provided by the initial agreements. 

As noted in part in a previous order, the Court finds the relevance of the 2007 agreement 

to be very limited. The 2007 agreement was entered decades after the agreements at issue here, 

between two non-parties to those agreements, and under different circumstances and for different 

reasons. Over the intervening years, all of the parties changed quite substantially and became 

more sophisticated than when the initial agreements were entered. That the 2007 Weis agreement 

used different language than the prior agreements sheds little if any light on what the parties in 

this case intended when they entered their agreements decades earlier. The 2007 agreement is 

different in nearly every respect than the original agreements; if the parties were to redraft those 

agreements today, neither side would use the same language as in the original agreements, even 

if they wanted them to have the exact same meaning. It would thus be quite difficult to attribute 

any differences in language to an intent to produce a different outcome on the specific issue 

disputed in this case. 

Moreover, admitting agreements other than the ones directly at issue in this case would 

create substantial concerns under Rule 403. Detouring into those other agreements would create 

a significant risk of confusing the issues and misleading the jury. It could require a trial-within-atrial as to what those other agreements actually mean, what the parties to those agreements 

intended, and under what circumstances the other agreements were entered. The jury will have 

enough of a task trying to make sense of the agreements at issue here, without giving it other 

agreements to make sense of too. Going through that process would also create unnecessary 

delay. In sum, the Court finds that the probative value of this evidence is significantly 

outweighed by the risk of prejudice under Rule 403, so the Court grants this motion in limine. 
18 

2. Future damages 

Biomet moves to bar evidence of “future damages,” as the Court held at summary 

judgment that the Distributors are not entitled to such damages. The Distributors agree these 

damages are no longer at issue. The Court therefore grants the motion as unopposed. 

3. Dismissed claims 

Biomet moves to bar evidence relevant solely to claims that have been dismissed. The 

Distributors agree (but note that some evidence relevant to those claims is also relevant to the 

claims that are still live). The Court thus grants this motion; evidence relevant solely to those 

claims will not be admitted, though Biomet will need to raise a specific objection at trial if it 

believes particular evidence falls in this category. 

4. Zimmer or Zimmer Biomet sales 

Biomet next moves to exclude evidence of sales of Zimmer or Zimmer Biomet products. 

It contends that those products were encompassed in claims that were dismissed, and are not 

encompassed in the remaining claim, so they are not relevant. The Court denies this motion, as 

there does not appear to be any concrete dispute on this point. The Distributors have made clear 

exactly what product lines they are seeking commissions on [DE 253 p. 5], and their damages 

expert identifies the sales totals for which they are seeking damages. Biomet does not contend 

that any of those products or sales would fall within the scope of this motion. Accordingly, the 

Court denies this motion as unnecessary. 

5. Separation of witnesses 

The Court grants the motion for separation of witnesses as unopposed. Fed. R. Evid. 

615. 
19 

6. Non-disclosed documents 

Finally, Biomet moves to bar any documents not properly disclosed in discovery. It does 

not identify or even suggest that there are any such documents, though, so this would serve no 

purpose as an order in limine—there is no need to enter an order in limine stating that the Federal 

Rules and this Court’s orders will apply at trial. The Court therefore denies this motion. 

III. DEFENDANTS’ DAUBERT MOTION 

Biomet next moves to exclude the testimony of the Distributors’ damages expert, Rodney 

Sowards. Rule 702 governs the admission of testimony by expert witnesses. Under that rule, a 

witness “who is qualified as an expert by knowledge, skill, experience, training, or education” 

may offer an opinion if the following criteria are met: 

(a) the expert’s scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and methods; and 

(d) the expert has reliably applied the principles and methods to the facts of the 

case. 

Fed. R. Evid. 702. 

A court has a gatekeeping role to ensure that expert testimony meets these criteria. 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); C.W. ex rel. Wood v. Textron, Inc., 

807 F.3d 827, 834–35 (7th Cir. 2015). The proponent of the expert testimony bears the burden of 

demonstrating that the testimony meets each of those elements. Varlen Corp. v. Liberty Mut. Ins. 

Co., 924 F.3d 456, 459 (7th Cir. 2019). However, a court does not assess “‘the ultimate 

correctness of the expert’s conclusions.’” Textron, 807 F.3d at 834 (quoting Schultz v. Akzo 

Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). Rather, a court must focus “solely on 

principles and methodology, not on the conclusions they generate.” Schultz, 721 F.3d at 432 
20 

(quoting Daubert, 509 U.S. at 595). “So long as the principles and methodology reflect reliable 

scientific practice, ‘vigorous cross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and appropriate means of attacking shaky 

but admissible evidence.’” Id. (quoting Daubert, 509 U.S. at 596). 

Here, Mr. Sowards was asked to calculate the amount of damages owed to the 

Distributors based on the assumption that the agreements entitled them to commissions on all 

Biomet products sold in their former territories. Mr. Sowards’ methodology in making that 

calculation was simple. He first compiled the net sales of all Biomet products based on Biomet’s 

sales data. He then subtracted the net sales on which the Distributors were already paid 

commissions. Last, he multiplied the resulting amount by the commission rate to determine the 

additional amounts each Distributor should have been paid. He made that calculation for each of 

the Distributors, and also prepared charts breaking down the totals for each year and for each 

different product. 

In objecting to Mr. Sowards’ testimony, Biomet does not take issue with any of those 

steps or question the soundness of his mathematics. Instead, it focuses almost entirely on 

attacking his underlying assumptions. It objects, for example, that Mr. Sowards did not take it 

upon himself to decide whether the Distributors were entitled to receive commissions on all the 

products he included in his calculation, and that Mr. Sowards instead relied on counsel to tell 

him on which products to calculate commissions. Biomet also argues that Mr. Sowards failed to 

establish a causal link between a breach of the agreements and the damages included in his 

opinion. 

Biomet’s objections are misplaced. Mr. Sowards’ function as a damages expert is not to 

interpret the agreements’ meaning. His role is to answer a simple and narrow question: if the 
21 

Distributors are right about which products they are entitled to receive commissions on, how 

much more should they have been paid? In making that calculation, he properly relied on counsel 

to tell him which products the Distributors were entitled to receive commissions on, and he 

calculated damages based on that underlying assumption. 

Biomet’s objection to this approach appears to have in mind a more complex type of case 

where a plaintiff claims to have lost profits due to some unlawful conduct, such that the damages 

expert’s task is to trace the effects of that particular conduct. In that situation, the expert may 

have to draw on his expertise to construct a “but-for world”—evaluating the condition the 

plaintiff would have been in but for the wrongful conduct—and to compare that to the plaintiff’s 

actual condition. For that comparison to be relevant to a damages calculation, the expert must 

have a basis on which to attribute the differences to the defendant’s wrongful conduct. Experts 

who assume away issues critical to that analysis or who fail to connect the “but-for world” to the 

theory of liability may fail to satisfy Rule 702. 

This is not that sort of case. The theory of liability here is straightforward: a failure to pay 

the amounts due under the contract. The meaning of a contract is not a question for a damages 

expert to opine on, and Mr. Sowards appropriately relied on counsel to tell him what products to 

include in his calculation. Just as a damages expert may assume liability without conducting his 

own analysis of whether the defendant is in fact liable, so may Mr. Sowards proceed on an 

assumption about which products are subject to the agreement without conducting his own 

analysis as to whether that assumption is correct.5 See Smith v. Ford Motor Co., 215 F.3d 713, 

 

5

 Mr. Sowards’ testimony at trial must make clear, however, that he is relying on an assumption 

that has been provided to him, and that he is not offering an opinion about what the contracts 

mean or opining that his damages calculation is based on the correct interpretation of the 

contracts.
22 

718 (7th Cir. 2000) (“The soundness of the factual underpinnings of the expert’s analysis and the 

correctness of the expert’s conclusions based on that analysis are factual matters to be 

determined by the trier of fact[.]”); Sys. Dev. Integration, LLC v. Computer Scis. Corp., 886 F. 

Supp. 2d 873, 882 (N.D. Ill. 2012) (“It is entirely appropriate for a damages expert to assume 

liability for the purposes of his or her opinion.”). His task from there is simply to review the sales 

data to determine the amount of those products’ sales and how much in commissions the 

Distributors would have been paid on them.6 As the Distributors argue, his task is essentially to 

function as a calculator. Nor is there any daylight between breach and damages such that an 

inquiry into causation is necessary. The alleged breach is a failure to pay amounts due under the 

agreements; any dollar that came due but wasn’t paid was a breach, and the Distributors were 

damaged in that same amount. 

Of course, the Distributors will need to prove through other evidence that they are in fact 

entitled to commissions on the products included in Mr. Sowards’ calculation. Should the jury 

find that the Distributors’ interpretation of the agreements is wrong and that they are not entitled 

to receive commissions on all the products included in Mr. Sowards’ analysis, the jury can 

disregard his opinions. Elorac, Inc. v. Sanofi-Aventis Canada, Inc., No. 14 C 1859, 2017 WL 

3592775, at *12 (N.D. Ill. Aug. 21, 2017) (“The jury will undoubtedly be able to understand that 

it may not award damages, regardless of whether the evidence reveals a valid measure of 

damages, if [the plaintiff] does not establish its right to them by proving that its interpretation of 

the contract is correct.”). Mr. Sowards’ role as a damages expert is not to address those threshold 

questions, though, but simply to provide a calculation of the damages that would be due if the 

 

6

 That is exactly how Biomet’s damages expert went about offering his alternative damages 

calculation based on a smaller set of products. [DE 235 (Callahan report) at 11–12].
23 

Distributors are right about what products they are entitled to commissions on. Mr. Sowards is 

qualified to make that calculation and did so reliably, so his opinion satisfies Rule 702. 

Biomet’s other criticisms are insubstantial. Biomet objects, for example, that Mr. 

Sowards grouped the product lines into two categories at counsel’s instruction, before adding 

those two amounts to produce his damages totals. There is no reason that should affect the 

admissibility of his opinions, though. At worst, that intermediate step may be unnecessary, but it 

is not confusing or misleading and has no effect on the reliability of Ms. Sowards’ calculations. 

In addition, as the Distributors point out, the exhibits attached to Mr. Sowards’ report break 

down the damages by each different product line and by each year; combining those products 

into two groups before adding them for the final damages amount does not obscure Mr. Sowards’ 

analysis or pose any potential to mislead the jury. Biomet also objects that Mr. Sowards did not 

consider the statute of limitations. That objection assumes, though, that the statute of limitations 

necessarily limits the Distributors’ claims, which is not the case. Just the opposite: as discussed 

above, Biomet has not shown that the statute of limitations has any remaining potential to affect 

the Distributors’ damages. And in any event, Mr. Sowards broke his calculation down by year, 

which would allow for any necessary adjustments to reflect any applicable limitations period. 

For those reasons, the Court finds that Mr. Sowards’ calculations satisfy Rule 702 and 

that they are relevant, in that they are premised on the interpretation of the agreements for which 

the Distributors intend to advocate at trial. The Court therefore overrules Biomet’s objections to 

Mr. Sowards’ testimony.7

 

7

 Biomet had also objected to Mr. Sowards’ calculation of prejudgment interest, though the 

parties agree that prejudgment interest is a question to be decided by the Court after trial, not by 

the jury, so the Court need not address that objection. Mr. Sowards also gave an opinion on the 

value of future damages, but that is no longer at issue following summary judgment.
24 

IV. DISTRIBUTORS’ DAUBERT MOTION 

The Distributors also moved to exclude the testimony of Biomet’s two experts: Bryan 

Callahan and John Nevin. 

1. Bryan Callahan 

The Court first addresses the motion to strike opinions by Bryan Callahan, a damages 

expert. Mr. Callahan broke his report into four opinions. He first opined that no damages are due, 

and that Mr. Sowards’ conclusion to the contrary is incorrect. Second, he addressed the claim for 

future damages. Third, he offered his own alternative calculation of damages assuming that 

commissions were due on three additional product categories (sports medicine, trauma, and 

biologics). And fourth, he responded to Mr. Sowards’ deposition testimony, primarily 

contending that Mr. Sowards’ opinion is flawed because he failed to connect liability and 

damages. 

The second opinion is no longer at issue after summary judgment, and the Distributors do 

not move to exclude the third opinion, in which Mr. Callahan offers an alternative damages 

calculation. However, the Distributors move to exclude the first and fourth opinions. They argue 

that these opinions present nothing more than legal conclusions and Mr. Callahan’s own 

interpretation of the contracts. Thus, they argue, his opinions are not helpful and are not the 

product of his expertise as an accountant, so they do not satisfy Rule 702. The Court agrees. 

Mr. Callahan’s first opinion is not a damages opinion at all. Instead, Mr. Callahan opines 

that Biomet’s interpretation of the contract is correct, so no damages are due. He asserts, for 

example, that “[t]he only proper category of products for which the Plaintiffs are entitled to 

commissions under the Agreement is SBU04/Biomet Orthopedics.” [DE 235 p. 6]. He also 

opines that “there exists no basis for the inclusion of product categories in the Long Term 

Commission Program beyond SBU04.” Id. He bases those statements on his own interpretation 
25 

of the contractual language and on deposition testimony from Biomet’s former general counsel 

about the meaning of the contracts. Mr. Callahan has no expertise in interpreting contracts or 

ascertaining parties’ intent, though, nor would that be an appropriate subject for his expert 

testimony. Biomet attempts to distance itself from these statements in its response brief, claiming 

that Mr. Callahan will not provide interpretations of the contracts’ meaning. Yet his opinion in 

this regard is that no damages are due because the contracts don’t mean what the Distributors 

claim they do. That’s an opinion about the meaning of the contracts, not a calculation of damages 

within the ken of an accountant.8 This opinion thus is not helpful and is not the product of Mr. 

Callahan’s expertise or a reliable methodology, so the Court grants the motion to exclude this 

opinion.9

The Court likewise grants the motion to exclude Mr. Callahan’s fourth opinion, in which 

he criticizes Mr. Sowards for failing to connect liability and damages. His opinion in that regard 

mirrors the argument that Biomet made in moving to exclude Mr. Sowards’ opinions, that he 

failed to consider causation. But as discussed above, there is no difference here between breach 

and damages: the alleged breach comes from any amounts that Biomet didn’t pay, and the losses 

are those same amounts that the Distributors didn’t receive. Put another way, if commissions 

were due on any other products, then Biomet breached the agreement by not paying those 

amounts, and the Distributors were injured by not receiving them. The dispute in this case 

focuses on that “if,” but that goes to the meaning of the contracts, not the calculation of damages 

 

8

 That a damages expert would opine that there are no damages is a hint that the opinion really 

addresses liability, not damages, particularly when the theory of liability is the failure to pay 

amounts due.

9

 Mr. Callahan did not conduct an analysis as to whether any damages would be due if the jury 

adopts his interpretation of the contracts, either; he states only that it is his “understanding the 

parties do not dispute” that issue. [DE 235 p. 8].
26 

once the contracts’ meaning is decided. Indeed, though Mr. Callahan asserts that Mr. Sowards 

failed to draw a link between breach and damages, he never articulates what he sees as the 

difference or what link he believes is missing. To the extent his criticism is that Mr. Sowards 

failed to take it upon himself to determine what the contracts mean, that criticism is misplaced; 

that would have been not only unnecessary but inappropriate for a damages expert to do. 

Mr. Callahan’s opinions thus are not helpful to the trier of fact to understand the evidence 

or determine a fact in issue. Nor is it apparent how Mr. Callahan drew on his expertise or reliably 

applyied any expert knowledge or methodology in support of these opinions. To the contrary, the 

opinions are confusing and pose a high risk of misleading the jury—they suggest that something 

more than a failure to pay the amounts due is required to award damages, and could confuse the 

jury into believing that these damages experts are actually offering opinions on the contracts’ 

meaning (as both Mr. Callahan’s opinions and Biomet’s defense of them repeatedly cross that 

line).10 See Fed. R. Evid. 403. The Court therefore grants the motion to strike in this respect as 

well. Mr. Callahan’s testimony at trial will be limited to the alternative damages calculation he 

offers in his third opinion. 

2. John Nevin 

Biomet also offers expert testimony from Dr. John Nevin, a professor and expert in the 

fields of marketing, distribution channels, and supply chain management. Biomet offers his 

testimony in support of its interpretation of the contracts. His report discusses the nature of the 

medical device industry and the relationship between a manufacturer and its distributors, and 

 

10 Mr. Callahan also criticizes Mr. Sowards for grouping the products into two groups, which he 

sees as arbitrary. As noted above, the Court fails to see the point of that criticism, but testimony 

from a competing expert is not necessary to make that point anyway and would be an 

unnecessary distraction. Fed. R. Evid. 403, 702(a).
27 

offers Dr. Nevin’s interpretation of the contracts’ meaning. The report summarizes Dr. Nevin’s 

opinions as follows: 

Biomet made an appropriate decision to use independent distributors (independent 

sales representatives) to distribute and sell its orthopedic reconstructive products. 

The Legacy Distributors’ claims for lifetime commissions based on their expansive 

definition of “Biomet products” is not supported by the parties’ contract, the course 

of dealing (i.e. historical behavior) between the parties or basic economic and 

business logic. 

Biomet has been calculating long-term commissions for the Legacy Distributors 

based on a snapshot of the basket of products being sold within their 

distributorships at the time each distributor retired. This method appropriately 

compensates the Legacy Distributors based on what products they were actually 

selling in their territories. This rewards them for the goodwill they built up with the 

customers in their exclusive territories. Further, providing long-term commissions 

based on actual product sales to customers is consistent with the accompanying 

non-compete provisions in the Long-Term Commission Program. 

[DE 234-1 p. 5–6]. 

As the parties agree, expert witnesses are generally not permitted to offer opinions on the 

meaning of a contract, as that is usually a question of law for the Court to decide. RLJCS Enters., 

Inc. v. Prof’l Benefit Tr. Multiple Emp’r Welfare Benefit Plan, 487 F.3d 494, 498 (7th Cir. 2007). 

The issue is a bit more nuanced here, though, since the Court found that one of the terms in the 

contracts (the provision basing lifetime commissions on “sales made within the subject 

distributorship at the time this program is initiated”) is ambiguous. That makes the meaning of 

that term a question of fact for the jury to decide, and also allows the parties to present evidence, 

which can include expert testimony, on the meaning of that term. WH Smith Hotel Servs., Inc. v. 

Wendy’s Int’l, Inc., 25 F.3d 422, 429 (7th Cir. 1994) (“Evidence of custom and usage is relevant 

to the interpretation of ambiguous language in a contract.”); see Delta Mining Corp. v. Big 

Rivers Elec. Corp., 18 F.3d 1398, 1402 (7th Cir. 1994). 

While it would thus be possible for some expert testimony to be admissible to inform the 

meaning of the contracts, the scope of that testimony would be narrow. Dr. Nevin is an expert 
28 

regarding distribution channels. Theoretically, that expertise might allow him to discuss the 

relationship between various players in the distribution of implantable devices, and how certain 

types of contractual provisions could be used to align those parties’ interests or provide certain 

incentives. The jury could then decide whether the parties here intended to achieve those 

purposes and did so through the provisions included in the contracts. Dr. Nevin’s expertise 

would not, however, allow him to simply recite provisions of the contracts and announce how he 

thinks they should be read. Nor would it allow him to offer opinions about what the parties here 

actually intended when they entered the contracts. Resolving that question will require the jury to 

hear conflicting testimony and evidence and decide who to believe; expertise in marketing does 

not make a witness any better positioned than the jury to make that sort of credibility finding. 

U.S. Gypsum Co. v. Lafarge N. Am. Inc., 670 F. Supp. 2d 768, 775 (N.D. Ill. 2009); Dahlin v. 

Evangelical Child & Family Agency, No. 01 C 1182, 2002 WL 31834881, at *3 (N.D. Ill. Dec. 

18, 2002) (“[T]estimony that does little more than tell the jury what result to reach is unhelpful 

and thus inadmissible, and testimony regarding intent—essentially an inference from other 

facts—is even more likely to be unhelpful to the trier of fact.” (internal quotation omitted)). An 

expert witness cannot be used simply to clothe a party’s arguments in an air of expertise, either.11

In moving to strike Dr. Nevin’s opinions, the Distributors argue that his opinions are 

overwhelmingly devoted to those latter issues and constitute legal conclusions outside his 

purview as an expert witness. In response, Biomet conceded that at least some of Dr. Nevin’s 

 

11 See Fed. R. Evid. 704 committee notes (“The abolition of the ultimate issue rule does not 

lower the bars so as to admit all opinions. Under Rule 702 and 702, opinions must be helpful to 

the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These 

provisions afford ample assurances against the admission of opinions which would merely tell 

the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They 

also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria.”).
29 

opinions fit that description, and agreed not to elicit the following opinions from Dr. Nevin’s 

report at trial: 

 In summary, a snapshot of the basket of products being sold within a distributorship at 

the time a distributor initiates retirement is the basis for the long term commissions. The 

distributors are not entitled to commissions they claim on products they did not sell or on 

products that did not exist until after they retired. 

 The Legacy Distributors’ claim for lifetime commissions based on their expansive 

definition of “all” Biomet product sales in their territory(s) is not supported by the 

contract, the historical behavior between the parties, or basic economic and business 

logic. 

 The Distributorship Agreement never granted the Legacy Distributors the right to receive 

any commission on products their distributorship did not sell in their territories at the 

time of their retirement. 

[DE 251 p. 8 (“Biomet appreciates that the specific statements above could be interpreted by a 

jury as a legal interpretation of the contract, and agrees not to elicit them at trial.”)]. 

The problem, however, is that the improper opinions extend well beyond those three 

examples. For example, Dr. Nevin asserts that the payments Biomet has been making 

“appropriately compensate[] the Legacy Distributors based on what products they were actually 

selling in their territories.” [DE 234-1 p. 6]. He also asserts that the “Biomet products actually 

sold by the Legacy Distributors became the basis for their Long Term Commission Program,” 

and that “Biomet reasonably contends that the Plaintiffs were and are entitled to be paid longterm commissions on the products that were being sold in their distributorship at the time they 

retired.” Id. p. 6–7. He also claims that the parties’ course of dealing “provides valuable insight 

to the meaning of the contract between the parties.” Id. p. 10. Those statements are no more 

acceptable than the ones Biomet concedes are improper, as they assert conclusions beyond his 

expertise and beyond the role of an expert witness. Much of the rest of his report consists of 

reciting the language of the contracts or testimony by Biomet’s corporate representative. In 

neither of those respects is he drawing on his expertise and offering an opinion that would be 
30 

helpful to the jury. Dr. Nevin also offers opinions about what the parties intended when they 

entered the contract, such as that the “commissions were not designed to pay the Legacy 

Distributors for market development and sales work they did not perform.” [DE 234-1 p. 13; see 

also p. 14 (“The long term commission was an incentive Biomet offered its distributors to 

encourage productivity and loyalty.”)]. As already discussed, that sort of credibility finding from 

an expert witness is not helpful. U.S. Gypsum, 670 F. Supp. 2d at 775. 

Excising these inappropriate opinions from Dr. Nevin’s report would require extensive 

blue-penciling. As the Distributors argue, these opinions and the discussions in their support 

permeate nearly the entirety of the report. And even if that content could be severed, what little 

would remain would not require expert testimony to address. For example, in two of his 

opinions, Dr. Nevin talks about the need for medical device manufacturers to develop 

relationships with the surgeons that choose which devices to use, and he opines that it was 

reasonable for Biomet to do so through distributors instead of an in-house salesforce. The latter 

opinion is not relevant, and the former point could be established through any or all of the fact 

witnesses in this case—Biomet’s own representatives could testify about the nature of the 

medical device industry, as could any of the Distributors. 

At the final pretrial conference, Biomet argued that Dr. Nevin would opine that it would 

be irrational for a supplier to pay a distributor lifetime commissions on products they never sold. 

To the extent such an opinion is actually encompassed in Dr. Nevin’s report, the report offers no 

reliable explanation or methodology in support of that opinion. The report notes, for example, 

that providing long-term commissions on products a distributor sold can incentivize the 

distributor both to develop relationships with purchasers and to preserve the purchasers’ 

relationship with the manufacturer upon the distributor’s retirement. But the report never 
31 

considers or addresses whether any additional business purpose could support broader payments 

(such as to incentivize distributors to leave an established competitor and take a risk in joining a 

start-up company). The report thus does not support an opinion that no purpose could exist for 

those sorts of payments. Instead, Dr. Nevin’s analysis in this regard consists primarily of offering 

his own conclusory assertions about what Biomet actually intended, which is not helpful or the 

product of his expertise.12 And to the extent he is only offering a narrower opinion—that 

providing long-term commissions on products a distributor sold can serve some business 

purposes—expert testimony is not necessary for that point in light of all the lay witnesses who 

can testify to the same effect, as already noted. 

In addition, allowing this testimony to come in through an expert would create other 

problems, including the risk that the jury would attach undue weight to expert testimony on this 

subject or would misconstrue Dr. Nevin’s testimony as offering opinions about what the parties 

actually intended or how the contracts should actually be interpreted. The manner in which Dr. 

Nevin’s report repeatedly conflates those subjects illustrates those risks. And on that same note, 

the report would have to be thoroughly marked-up or even rewritten to confine Dr. Nevin’s 

testimony to its appropriate scope (to the extent there is some core of expert opinion in the report 

that could be admitted), which would make it very difficult to delineate exactly what Dr. Nevin 

could testify to at trial. Given the limited utility of expert testimony in light of the lay witnesses 

who can testify on the relevant points, the risks of wasting time, confusing the issues, and 

 

12 [DE 234-1 p. 14–15 (“The long term commission was an incentive Biomet offered its 

distributors to encourage productivity and loyalty. . . . Biomet realized these Legacy Distributors 

developed relationships with the physicians, surgeons and hospital customers they called on in 

their territories. . . . [T]he purpose of these non-compete provisions was to assure Biomet that the 

distributors would not take their experience, customer knowledge and relationships built in their 

territories and share it with existing or potential competitors. . . . [T]hat is the knowledge Biomet 

was trying to protect through the non-compete in its Long Term Commission Program.”)].
32 

misleading the jury substantially outweigh the probative value of this testimony, so the Court 

would exclude it under Rule 403, to the extent any aspects of the report would otherwise satisfy 

Rule 702. For all of those reasons, the Court grants the motion to exclude Dr. Nevin’s 

testimony.13

V. OTHER ISSUES 

A number of other issues have come to light through the parties’ pretrial filings that can 

be addressed. 

Multiple defendants 

The Distributors filed this action against both Biomet, Inc. and Zimmer Biomet Holdings, 

Inc. Biomet was the party to the contracts, but the Distributors’ complaint offered various 

theories for holding Zimmer Biomet liable for any breach as well. At the final pretrial 

conference, the parties discussed whether it will be necessary to distinguish between the two 

entities at trial, or if they will be able to reach a stipulation to avoid that complication. The Court 

encourages the parties to continue conferring in that regard. Otherwise, the parties would have to 

present evidence on additional issues, and the jury would have to be instructed and return 

decisions on those issues, which would add further complications with little apparent gain. Also, 

neither party’s proposed jury instructions included instructions on any of the theories of liability 

 

13 Biomet also suggested at the final pretrial conference that the Court should hold a hearing to 

evaluate Dr. Nevin’s opinions, but that is not warranted. Rule 26 requires an expert report to 

contain “a complete statement of all opinions the witness will express and the basis and reasons 

for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). A hearing is not an opportunity to allow an expert to 

offer new or different opinions, or to provide additional explanation for them, any more than a 

deposition would be. Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008) 

(“Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them 

with later deposition testimony.”); Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998) 

(holding that a district court is not required to hold a hearing before excluding expert testimony).
33 

against Zimmer Biomet.14 Thus, absent a stipulation, the parties should confer to determine 

which specific theories the Distributors intend to pursue against Zimmer Biomet, and should 

submit proposed jury instructions that inform the jury what findings it would have to make to 

return a verdict as to Zimmer Biomet. 

Exhibit and deposition objections 

The parties have also submitted voluminous objections to exhibits and depositions. First, 

as to depositions, the parties’ filings do not allow the Court to resolve the objections. The 

Distributors asserted hundreds of objections, yet did not even put those objections into words; 

most of their objections consist only of a number, apparently referring generically to a rule of 

evidence. If Biomet is going to be put to the trouble of responding to these objections, and the 

Court to ruling on them, the Distributors ought to at least verbalize their objections. The parties 

also noted at the final pretrial conference that many of the objections will rise or fall with issues 

raised in the motions in limine or Daubert motions, and that the parties could revisit the 

objections once those matters have been decided. That has now occurred. Accordingly, the Court 

requests that the parties confer and prepare a single spreadsheet that identifies, for any witness 

expected to testify by deposition: (1) the selection being objected to; (2) a concise explanation 

for each objection; and (3) a concise response. 

As for the exhibits, the parties indicated that those objections may be affected by the 

other pretrial rulings, as well. Biomet’s exhibit list also included catch-all categories including 

every exhibit used at any deposition, and all written discovery produced in this case. That is not 

acceptable; counsel need to consider what exhibits they anticipate using at trial and to identify 

 

14 The Distributors’ only proposed instruction in that regard includes the standard for jointly 

committed torts, which is not relevant to liability for a breach of contract.
34 

those exhibits. Accordingly, to allow the Court to resolve these objections in an orderly manner, 

the Court likewise requests that the parties confer and submit spreadsheets identifying (1) each 

exhibit; (2) a concise explanation for any objection; and (3) a concise response. 

Demonstrative exhibits 

Next, the parties filed a motion to set deadlines for the disclosure of demonstrative and 

summary exhibits. They propose exchanging those exhibits three days before trial, and they 

further propose that they will not exchange in advance any visual aids to be used during opening 

statements or closing arguments. First, exchanging demonstrative and summary exhibits only 

three days before trial is bound to invite problems. Instead, the parties should exchange any 

demonstrative or summary exhibits they intend to use at least 2 weeks before trial, and should 

promptly bring any objections to the Court’s attention. As to visual aids for use during opening 

statements or closing arguments, the Court will not require those materials to be disclosed in 

advance in light of the parties’ agreement, but the Court would encourage the parties to do so 

anyway so that those presentations are not interrupted should an objection arise. 

Verdict forms 

The Distributors’ proposed verdict forms ask the jury to indicate which, if any, additional 

categories of products are covered by the lifetime commissions program. The Court agrees that 

an inquiry along those lines is appropriate, as the verdict will then delineate which commissions 

are due going forward. Biomet objected to the categories included in the Distributors’ proposed 

verdict form, on the basis that the jury’s finding about the scope of the provision could be more 

nuanced. However, it did not submit any proposal of its own on that topic or suggest any 

alternatives. Accordingly, the parties should confer and attempt to devise an appropriate inquiry 
35 

to the jury on the scope of long-term commissions due; if they are unable to agree, they should 

submit their revised proposals. 

VI. CONCLUSION 

The parties’ motions in limine are granted in part and denied in part, as discussed above. 

[DE 224, 241]. The Court denies the motion to strike Mr. Sowards’ damages testimony, [DE 

227], and grants the motion to strike expert testimony by Mr. Callahan and Dr. Nevin. [DE 233]. 

The Court grants in part the joint motion to set deadlines for demonstrative and summary 

exhibits. [DE 295]. Finally, the Court grants the parties’ joint motion for a status conference, 

[DE 300], and will contact counsel to set a status conference. 

 SO ORDERED. 

 ENTERED: November 13, 2019 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court