testimony about the evaluation by any customer of Worzalla, including Harper Collins, of books
manufactured with BCI’s cover board material. To the extent that Hartford Insurance would
offer any witness who has not been disclosed pursuant to Rule 26 or listed in the Final Pre-Trial
Order, Newark’s motion is granted. See Fed. R. Civ. Pro. 37(c)(1); Braun v. Lorillard, Inc., 84
F.3d 230, 236 (7th Cir. 1996) (affirming district court’s exclusion of witness in case in chief and
rebuttal where he was not disclosed in Rule 26 disclosures or in the final pre-trial order).

Newark also argues that any reference to evaluations made by employees of Harper
Collins would be hearsay. (D.E. 57 at 2.) Hartford Insurance responds that it (apparently) has
“information contained in the business records of Worzalla regarding communications from
Harper Collins” that “can come in by way of documentary evidence rather than oral testimony.”
(.E. 58 at 8.) The Court is loathe to decide an evidentiary question offered in such abstract
terms, and denies without prejudice Newark’s Motion No. 7 as it relates to any documentary
evidence.

The Court notes, however, that if the evidence offered is written communication from
Harper Collins to Worzalla, the fact that it is contained in the business records of Worzalla will
not save it from a hearsay objection. Rule 803(6) excludes from hearsay any

memorandum, report, record, or data compilation, in any form, of acts, events, conditions,

opinions, or diagnoses, made at or near the time by, or from information transmitted by, a

person with knowledge, if kept in the course of regularly conducted business activity, and

if it was the regular practice of that business activity to make the memorandum, report,
record or data compilation.
Fed. R. Evid. 803(6). If Worzalla merely has been keeping in its records copies (or originals) of

correspondence sent to it by Harper Collins, it has not made any record that triggers the

exception. Moreover, any reports or records made from conversations or correspondence with

13



The Court denies Newark’s Motion in Limine No. 1 without prejudice to revisiting this
important damages-limitation question at a later date if Hartford Insurance prevails in its cause.
If the issues become germane, the parties (and Hartford Insurance, in particular) should be
prepared to address them with substantially more seriousness than the treatment given in the

motion in limine papers.

2. Request To Bar Testimony Of Kevin M. McCarthy

Newark’s Motion in Limine No, 2 (D.E. 52) asks the Court to bar the testimony of Kevin
M. McCarthy, a purported expert in accounting whom Hartford Insurance has identified as a
witness. Newark has made a raotion to exclude McCarthy under the standards of Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Newark argues that McCarthy’s
testimony (as evidenced by his deposition testimony) does not pass muster under Federal Rule of
Evidence 702 because “simple calculation of the sum total of numbers provided to him by
Worzalla does not constitute a theory or technique involving scientific knowledge.” (D.E. 51 at
3.) Hartford Insurance counters that McCarthy’s methodology involved reviewing “Sob cost
sheets” of Worzalla to determine whether reproduction costs were reasonable, followed by
determining lost profits based on business interruption issues. (D.E. 58 at 4.) Hartford Insurance
contends that this methodology is based upon accepted accounting principles. (/d.) Neither party
has referred the Court to any authority in support of their positions beyond Daubert itself.

The briefing by both parties on the question of McCarthy’s qualifications as an expert
witness is too abbreviated for any serious treatment of a Daubert challenge. Newark incorrectly

asserts that an expert’s testimony must pertain to “scientific knowledge” to meet a standard of


harmless and lacked substantial justification. See Musser v. Gentiva Health Services, 356 F.3d
751, 755 (7th Cir. 2004). Here, Hartford Insurance has offered no justification, let alone a
substantial one, for its failure to identify Luann Friday or Jeff Jacques as potential witnesses prior
to the Final Pre-Trial Order. Thus, their testimony may be excluded unless the failure to disclose
was harmless,

Hartford Insurance has indicated that it intends to call Jacques only to rebut any attempt
by Newark to discredit Nancy Plowman’s purported expert testimony based on her reliance on
testing done by Jacques. (See D.E. 58 at 6-7) Hartford Insurance’s argument appears to
demonstrate that Newark is aware (and, more important, was aware during discovery) of
Jacques’s existence and his role in the testing performed by Plowman for Worzalla. (See id.) If
his identity was made known to Newark during discovery, and Newark declined to depose him,
Hartford Insurance’s failure to amend its Rule 26 disclosures to include Jacques was not unfairly
harmful. See Weiland, 2002 WL 31307622, at *2. Thus, Newark’s Motion in Limine No. 5 is
denied with respect to Jacques, who may testify in rebuttal. The Court cautions Hartford
Insurance, however, that any atempt to present evidence through Jacques in rebuttal that belongs
in its case in chief will not be tolerated. See Wilson v. AM General Corp., 167 F.3d 1114, 1122
(7th Cir. 1999) (affirming distr.ct judges exclusion of proposed rebuttal testimony because (1)
party should have known before trial that the individuals could testify, and (2) the proposed
testimony was part of party’s case in chief and not proper rebuttal evidence).

Hartford Insurance has not indicated for what purpose it intends to call Friday, an
employee of Worzalla. Attached to Newark’s Motion in Limine No. 3, however, is an affidavit

by Friday that indicates that she would testify that “[in] this case the acceptance for [the purchase


3. Request To Bar Testimony Of Cedric Burroughs Or Any Other Witness Conceming
Worzalla Having Received From BCI A Facsimile Of The Front Side Only Of BCI’s
Acknowledgment Form
Newark’s Motion in Limine No. 3 (D.E. 53) asks this Court to bar the testimony of

Cedric Burroughs or any other witness concerning whether Worzalla received from BCI a fax of

the front side of BCI’s acknowledgment form. Newark makes three arguments to support its

motion but fails to provide the Court with any legal authority to support them. First, Newark
argues that neither Cedric Burroughs nor Luann Friday has personal knowledge of the transaction
between Worzalla and BCI for the purchase at issue. Second, Newark points out that Friday was
never identified in Plaintiff's arswers to interrogatories as a witness whom it would call at trial.

Third, Newark notes that Hartford Insurance has never produced a copy of the acknowledgment

form received by fax. Hartford Insurance responds (see D.E. 58 at 5-6) that when a document

has been lost (which apparently is Hartford Insurance’s position regarding the fax), secondary
evidence of the contents of the Jocument may be presented. See Fed. R. Evid. 1004. Hartford

Insurance contends that Burroughs will testify to the document but does not respond to Newark’s

argument that Friday should not be allowed to testify for failure to identify her as a witness.

Finally, Hartford Insurance argues that the Court ruled on summary judgment (see D.E. 46) that

the truthfulness of “Plaintiff's Affidavit” (presumably referring to Burroughs’s and Friday’s

affidavits, although Hartford Insurance never makes this clear) is a factual issue to be determined
at trial.
The Court agrees with Hartford Insurance that whether Worzalla received a fax

acknowledgment from BCI is a question of fact to be determined at trial, and the Court will not

preclude testimony regarding the fax at this time. (The Court makes no conclusions about


evidentiary reliability. (D.E. 51 at 3.) See, e.g., Tuf Racing Products, Inc. vy. American Suzuki
Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000) (holding that the Federal Rules of Evidence,
which Daubert interprets, do not require that the testimony of expert witnesses “be ‘scientific’
(natural scientific or social scientific) in character”). Moreover, Newark appears repeatedly to
contend that McCarthy’s testimony may not qualify under Federal Rule of Evidence 702 because
his work “involved no specialized accounting knowledge, and, to the extent it involved any
calculations at all, involved nothing more than simple addition calculation which court [sic] can
perform for itself if it feels such is necessary.” (D.E. 63 at 3-4.) But even if McCarthy’s
testimony is not admissible under Rule 702, it may be admissible as summary-witness-testimony
under Federal Rule of Evidence 1006. See generally United States v. Swanquist, 161 F.3d 1064,
1072-1073 (7th Cir. 1998).

Because McCarthy’s testimony is relevant only to the question of damages, the Court will
defer the issue of his qualification as an expert to such time, if any, as Hartford Insurance
prevails on the merits. Thus, ‘Newark’s Motion in Limine No. 2 is denied without prejudice. If
determining McCarthy’s competence to testify becomes necessary, both parties should be aware
that they will need to identify the salient issues before the Court and must be prepared to discuss
relevant authority. Moreover, Hartford Insurance will bear the burden of establishing the
admissibility of McCarthy’s testimony under Daubert and subsequent authority. See, e.g.,
Daubert, 509 U.S. at 592 n.10; United States v. Fullwood, 342 F.3d 409, 412 (Sth Cir. 2003);
Zenith Electronics Corp. v. WH-TV Broadcasting, No. 01 C 4366, 2003 WL 21506808, at *1
(NLD. Hl. June 27, 2003), reversed, in unrelated part, on reconsideration by 2003 WL 21911068

(ND. Il. Aug. 7, 2003).


granted without opposition.

5. Request To Bar Testimony Of Any Witness Not Previously Disclosed By Hartford
Insurance As A Potential Trial Witness

Newark’s Motion in Limine No. 5 (D.E. 55) asks this Court to bar the testimony of and
any reference to any person not previously disclosed by Hartford Insurance as a potential trial
witness. Hartford Insurance does not object to this motion with the exception of reserving the
Tight to call a rebuttal witness not previously disclosed.? (See D.E. 58 at 6-7.) Thus, this Court
addresses only whether the witnesses listed in the Final Pre-Trial Order (D.E. 50) but not
disclosed during discovery may be called for rebuttal. As is all too frequently the case with the
motions in limine, neither party has offered any relevant authority in support of its assertions.

Federal Rule of Civil Procedure 37(c)(1) states:

A party that without substantial justification fails to disclose information required by Rule

26(a) or 26(e)(1) ... is not, unless such failure is harmless, permitted to use as evidence at

a trial, at a hearing, or on a motion any witness or information not so disclosed.

The failure to disclose the witnesses must be unjustified and harmful in order to warrant
exclusion of the evidence. See, e.g., Weiland v. Linear Const., Ltd., 2002 WL 31307622, at *2
(N.D. Ill. October 15, 2002). ‘The Court may, in its discretion, exclude witnesses for failure to

disclose as long as there is a reasonable basis for its findings that the failure to disclose was not

? Newark specifically cbjects to the testimony of Jeff Jacques and Luann Friday. (D.E.
50, Ex. D “Defendant’s Objections to Plaintiff's Trial Witnesses” {J 5,13.) Newark also objects
to a third witness, Linda Wierzba (id. 14), but Wierzba has not been listed as one of Plaintiff's
potential witnesses in the Final Pre-Trial Order. (See D.E. 50, Ex. D “Plaintiffs Trial
Witnesses” (ending at { 13 wita Luann Friday).) The Court grants Newark’s Motion in Limine
No. 5 with respect to Wierzba. See Braun v. Lorillard, Inc., 84 F.3d 230, 236 (7th Cir. 1996)
(affirming district court’s exclusion of witness in case in chief and rebuttal where he was not
disclosed in the final pre-trial order).



‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; 17: Sitting Judge if Other
or Magistrate Judge Mark Filip than Assigned Judge
CASE NUMBER 01 C 2350 DATE 10/21/2004
CASE Hartford Insurance Co. vs. The Newark Group, Inc.
TITLE
{[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
Defendant’s Motions in Limine
DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion clue

@) im} Answer brief to motion due___. Reply to answer briefdue___.

(4) Oo Ruling/Hearing on setfor_———sat

(5) a Status hearing[held/continued to] [set for/re-set for] on setfor_ at

(6) Oo Pretrial conference[held/co:tinued to] [set for/re-set for]on__—ssetfor_ ss at_—
(7) a Trial[set for/re-set for]on____at

@) OO (Bench/Jury trial] [Hearing] held/continuedto___—_—_at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

DOFRCP4(m) ClLocal Rule 41.1 OOFRCP41(a\(1) 1 FRCP41(a)(2).

in Limine (D.E. 51 - 57) are granted in part and denied in part.

Wh by

(il) +f [For further detail see order attached to the original minute order.]

(ao) [Other docket entry] ENTER MEMORANDUM OPINION AN D ORDER: Defendant’s Motions

No notices required, advised in open court.
No notices required. steotins
Notices mailed by judge's staff. OCT 22 200
wo | Notified counsel by telephone. ae

Docketing to mail notices.
Mail AO 450 form. vane’ rgisie on i
Copy to judge/magistrate judge. aa yar

courtroom 36 itd 12 190 hove date rai

deputy’s a ae

initials - i

_. Datbfifak réceived in
central Clerk's Office ening deputy inka



its action cannot have induced any reliance after the date that the damages occurred. Thus,
Newark argues that any actions taken after the date of the re-manufacture cannot be evidence of
waiver. Hartford Insurance asserts that the Court has already ruled on summary judgment (see
D.E. 46) that there is a question of fact as to whether Worzalla was induced to spend time and
money on tests because it believed that Newark was willing to give more than the simple refund
contained in its acknowledgment form, (See D.E. 58 at 8.) Additionally, Hartford Insurance
argues that whether Worzalla hai already spent time and money re-manufacturing books is not
material to whether Newark intentionally relinquished a known right. (Jd.)

“Waiver is the express or implied voluntary and intentional relinquishment of a known
and existing right.” Wolfram P’ship, Ltd. v. LaSalle Nat'l Bank, 765 N.E.2d 1012, 1025 (al.
App. 2001) (collecting cases). A party to a contract may waive a provision contained in the
contract for its benefit, and the waiver may be established by conduct that indicates that the party
will not require strict compliance with the provision. See id. at 1025-26. “An implied waiver
may arise when conduct of the person against whom waiver is asserted is inconsistent, with any
other intention than to waive it.” Wolfram P’Ship, 765 N.E.2d at 1026.

Importantly, Illinois courts have explained that the concept of implied waiver has been
based on both waiver and estoppel. See id.; Lavelle v. Dominick's Finer Foods, Inc., 592 N.E.2d
287, 291-92 (Ill. App. 1992). Thus, implied waiver may be found where “(1) an unexpressed
intention to waive can be clearly inferred from the circumstances or (2) the conduct of the
waiving party has misled the other party into a reasonable belief that a waiver has occurred.”
Wolfram P’ship, 765 N.E.2d at 1026; see also Lake County Grading Co. of Libertyville, Inc. v.

Advance Mechanical Contractors, Inc., 654 N.E.2d 1109, 1118 (Ill. App. 1995) (the “doctrine of

11


order at issue] came by way of the facsimile transmission of the front side of BCI’s
acknowledgment form.” (D.E. 53, Ex. B 5.) The Court has no evidence before it on this
Motion (and will not attempt to scour the record for such evidence after Hartford Insurance has
failed to address the issue in its brief) that Hartford Insurance advised or alerted Newark in any
way that Friday has relevant information or somehow could be called to testify about the
existence of the fax until well after ‘he close of discovery.’ Given that the existence of the fax is
one of the factual issues on which tne outcome of this case tums, the Court finds that Hartford
Insurance’s failure to disclose Friday as a witness before the Final Pre-Trial Order is not
harmless. Newark should have had the opportunity to depose Friday during discovery on this

important issue. Thus, Newark’s Motion in Limine No. 5 is granted with respect to Friday.

6. Request To Bar Evidence Or Argument That Newark Waived The Exclusive Remedy
Provision Contained In BCT’s Acknowledgment Form At Any Time After February 24,
1999, The Date On Which Worzatla Re-manufactured The Books That Hartford
Insurance Alleges Were Liefective
Newark’s Motion in Limine No. 6 (D.E. 56) asks this Court to exclude any evidence or
argument that Newark waived the exclusive remedy provision after February 24, 1999, the date
on which Worzalla re-manufactured the books that Hartford Insurance alleges were defective.
Newark cites Central Illinois Public Service Co, v. Atlas Minerals, Inc., 965 F. Supp. 1162 (C.D.

Ill. 1997), for the proposition of Illinois law that any waiver of contractual terms must have

induced reliance or be clearly inferable from the circumstances. Newark’s apparent theory is that

3 Friday’s affidavit attached to Defendant’s motion appears to be the same affidavit
attached to Plaintiff's Response to Defendant’s Statement of Material Facts on summary
judgment. (See D.E. 38, Ex. B.)

10


whether such testimony will be able to prove the point Hartford Insurance is attempting to
establish.) If Burroughs testifies, as Hartford Insurance contends he will (see D.E. 58 at 6), that
the fax existed but was lost or destroyed, Hartford Insurance may offer secondary evidence as to
the contents of the fax. See Fed. R. Evid 1004, Whether Burroughs lacks knowledge sufficient
to prove the existence of the fax and/or its contents is a question of “the weight, not the
admissibility, of this secondary evidence.” United States v. McGaughey, 977 F.2d 1067, 1072
(7th Cir. 1993). Thus, Newark’s Motion in Limine No. 3 is denied. Again, Newark’s argument
that the testimony ultimately wil] not bear the weight Hartford Insurance would attempt to
ascribe to it, or that the testimory, upon full presentation, will lack sufficient foundation to
credibly establish matters at issue, are not issues that the Court needs to resolve before even
hearing the putative testimony.

Newark’s argument that Friday should not be allowed to testify because she was not listed
as a witness during discovery is addressed by the Court, infra, regarding Motion in Limine No. 5,

which grants Newark’s motion to exclude her testimony.

4. Request To Bar Testimony Of Cedric Burroughs Or Any Other Witness Concerning
Worzalla Having Sent To BCI A Written Purchase Order Relating To Worzalla Purchase
Order 71479
Newark’s Motion in Limine No. 4 (D.E. 54) asks this Court to bar any evidence or
testimony related to the theory that after Worzalla placed a telephone order to BCI for the cover
board material on January 11, 1999, Worzalla sent to BCI a copy of a written Worzalla purchase

order. Hartford Insurance admits that the purchase order was never sent to Newark, and has no

objection to Newark’s motion. (See D.E. 58 at 6.) Thus, Newark’s Motion in Limine No. 4 is



judgment motion where it averred that “[t]his matter is a subrogation claim wherein
Plaintiff/Subrogee, Hartford Insurance Company, and its Subrogor, Worzalla Publishing...
assert claims seeking damages.” (D.E. 33 3.) But this statement does not appear to be able to
bear the weight that Hartford Insurance would ascribe to it, because in its own response to that
statement, Hartford Insurance expressly distinguished between the “subrogation claim brought by
Plaintiff's Subrogee, Hartford Insurance Company,” and additional potential damages—namely,
“the recovery of lost revenue on the part of Worzalla Publishing Company, that was not covered
by insurance.” (D.E. 38 at 2.) Furthermore, judicial estoppel is irrelevant because, as Newark
explains in its reply, the issue of whether Hartford Insurance, the Plaintiff/Subrogee, and

‘ Worzalla, its Subrogor, assert claims seeking damages is not related to the issue of whether
Hartford Insurance, as Plaintiff, is limited in the amount of damages it can recover to the
amounts it actually paid under an insurance policy. (Newark further argues that damages are
limited to the price paid for the books, and the Court need not resolve this issue at this time.)

Finally, Hartford Insurance appears to suggest that its omission of Worzalla from the

complaint is merely a technical defect, such that Worzalla should perhaps be added as a party at
this stage of the litigation. To the extent Hartford Insurance makes this suggestion, it does so
without any citation of authority or serious treatment of the issue, and the Court declines to read
Hartford Insurance’s response to a motion in limine as a sub silentio motion to amend its
complaint on the eve of trial and after summary judgment was ruled upon. To the extent,
however, that Hartford Insurance should ever file such a motion, the Court notes that Newark’s
reply makes what appears to be a rather persuasive argument that any claim by Worzalla against

Newark would be barred by the statute of limitations.


Harper Collins that might have been kept in the regular course of business still would not be
admissible for the contents of those conversations or correspondence. See Fed. R. Evid. 805;
United States v. Vigneau, 187 F.3d 70, 75 (7th Cir. 1999) (“[T]he business records exception
does not embrace statements coritained within a business record that were made by one who is
not a part of the business if the embraced statements are offered for their truth.”). As a result,
while the Court reserves the right to revisit this issue in the context of any evidence actually
offered, Hartford Insurance should be advised that it is unlikely that any such statements of

Harper Collins or other customers will be permissible under the bar against hearsay testimony.

Wh Lb

Mark Filip
United States D&Strict Judge
Northern District of Illinois

So Ordered.

Dated: _(0°21-0Y

14



company subrogates to the claims of its insured. (D.E. 51 at 2 (citing The Home Insurance Co. v.
The Hertz Corp., 375 N.E.2d 115 (Ill. 1978).) Newark provides no further authority for its prior
and subsequent statements of law as to any limitations of recovery by an insurer/subrogee.
Hartford Insurance’s response is similarly unhelpful in leading the Court to any authority
necessary to make its decision.

Hartford Insurance relies on three arguments in opposition to the Motion, none of which
apprises the Court of any law relevant to the question before it. Hartford Insurance first argues
that the Motion is unfounded because the parties have agreed that an issue of law to be decided in
the case is:

18. Whether or not the Plaintiff is entitled to consequential damages, including cost of

reproducing books, manufactured with Defendant’s cover board material, and the loss of

business revenue due to loss of business interruption. (D.E. 50, Ex. B-1(a) ¥ 18.)

Its theory is that because Newark: has agreed that the extent of damages is an issue, Newark
cannot seek to limit any evidence of damages. But Hartford Insurance apparently overlooks
another agreed issue:

11. Whether any damages to which Plaintiff, HARTFORD INSURANCE COMPANY,

may be entitled are limited to the amount it paid to Worzalla pursuant to its policy of

insurance. (D.E. 50, Ex. B-1(a) § 11.)

Thus, to the extent that Hartford Insurance argues that Newark is estopped by judicial admission
in the pre-trial order from arguing that damages are limited to the amount paid under the policy,
the Court rejects that argument.

Next, Hartford Insurance apparently contends that a judicial admission in the summary

judgment papers estops Newark from arguing that Worzalla is not a party to the suit seeking

recovery. Hartford Insurance cites to Newark’s Statement of Material Facts in its summary


IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
HARTFORD INSURANCE COMPANY, )
)
Plaintiff, ) No. 01 C 2350
) Judge Mark Filip
. DocKerey
THE NEWARK GROUP, INC } OCT 9 2 209 ,
(improperly named and sued as BCI Covers, Inc.), )
)
Defendant. )
Memorandum Opinion and Order Conceming Defendant’s Motions i Li

Defendant, The Newark Group, Inc. (“Defendant” or “Newark”) has filed various

motions in limine. This opinion addresses all of them, as explained further below.

1 Request To Bar Evidence Or Argument That Plaintiff Is Entitled To Any Damages That
Exceed The Amount Paid To Worzalla By Plaintiff

Newark’s Motion in Limine No. 1 (D.E. 51)! identifies an issue of law with potentially
serious effect on this case: whether Hartford Insurance Co. (“Plaintiff” or “Hartford Insurance”)
is limited in its subrogation claim to damages in the amount paid to its insured, Worzalla
Publishing. If answered in the affirmative, Newark’s potential liability could drop significantly.
(Newark contends that Hartford paid out $51,006 to Worzalla (see D.E. 58, Ex. B-3 J 33), but
Hartford is seeking substantially more in damages, likely close to $107,000.) Unfortunately for
the parties and this Court, neither party has briefed this question with serious attention to

precedent. Newark points to one Illinois case for the basic Proposition of law that an insurance

' The various docket entries in this case will be referred toas“D.B.__.”

1



estoppel refers to the effect of a party’s voluntary conduct which precludes it from asserting
tights which might otherwise have existed against another person who has detrimentally relied
upon such conduct.”); Lavelle, 592 N.E.2d at 292 (with respect to estoppel, “the conduct of one
party must have misled another into acting on a reasonable belief that a waiver has occurred”).

To the extent Hartford Insurance would seek to rely on concepts of estoppel, the notions
of detrimental reliance related to estoppel under Illinois law would cast substantial doubt (and
perhaps conclusive doubt) on whether any actions of the allegedly estopped party that post-date
the alleged acts taken in detrimental reliance by the alleged beneficiary of estoppel could be
probative or germane. However, Newark has pointed the Court to no authority establishing the
proposition that such evidence would be per se irrelevant to the question of whether an allegedly
estopped party took actions that are “inconsistent with any other intention than” to waive its
tights. Wolfram P’Ship, 765 N.E.2d at 1026. Accordingly, the Court denies the motion without
prejudice. Hartford Insurance should be forewarned, however, that such evidence bears no
apparent nexus to the analysis under concepts of detrimental reliance, and the Court will, in the
absence of authority to the contrary, not consider such evidence, i.e. evidence of any acts of the
allegedly estopped party that post-date acts allegedly taken in detrimental reliance on the acts of
the estopped party by the beneficiary of the estoppel. Newark’s Motion in Limine No. 6 is

denied without prejudice.

7. Request To Bar Evidence Or Argument Concerning The Evaluation By Any Customer Of
Worzalla, Including Harper Collins, Of The Books Manufactured By Worzalla With
BCI’s Cover Board Material

Newark’s Motion in Limine No. 7 (D.E. 57) asks this Court to bar any evidence of or

12