were authentic Indian goods. NAA contends the evidence is inadmissible hearsay. Waldron
responds the retailers’ testimony is not hearsay. NAA asserts Waldron named 17 individual retailers
ina third supplemental Rule 26(a) disclosure after discovery closed on March 7, 2002. NAA does
not identify the individuals retailers, attach the relevant Rule 26(a) disclosure, or identify the
evidence it seeks to exclude. In response, Waldron argues the retailers were disclosed before March
7th. Waldron fails to provide support for that assertion. The court cannot rule on the admissibility
of disputed evidence based on the parties’ unsupported, conclusory assertions. Motion in limine 7
must be denied.

Motion in limine 9. NAA moves to bar reference to Sherry Baskin’s opinion that NAA and
Bear Tracks are competitors. NAA contends Baskin’s testimony is inadmissible hearsay and opinion
testimony. In response, Waldron asserts Baskin, Bears Tracks’ general manager, will testify based
on her personal knowledge. Accordingly, motion in limine 9 is denied.

Motion in limine 10, NAA seeks to bar reference to all Waldron product lines, except
“Circle of Nations” and “Earthcharms” product lines. NAA asserts its claims involve the Circle of
Nations and Earthcharms product lines only. In response, Waldron argues its marketing materials
promote all Waldron product lines; those materials demonstrate it did not falsely suggest its products
were Indian-made. NAA’s motion is overbroad; granting the motion would exclude all Waldron’s
marketing materials. Waldron’s marketing and advertising of its products are potentially probative
of whether it offered products for sale that falsely suggested they were Indian-produced. Motion in

limine 10 is denied.


Motions in limine are disfavored. Knowles Electronics, L.LC. v. Micotronics U.S., Inc., No. 99 C
4681, 2000 WL 310305, at *1 (N.D. Ill. Mar. 24, 2000). The court may exclude evidence in advance
of trial only when the evidence is clearly inadmissible. See Luce v. United States, 469 U.S. 38, 41
n. 4 (1984). Waldron’s motions in limine are unduly burdensome. The court will consider
objections as they arise at trial. See United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).
Waldron’s motions in limine are denied.

B. Motion To Exclude James T. Berger’s Expert Testimony

Waldron moves to exclude James T. Berger’s expert testimony. Berger opines on NAA’s
purported market share loss due to Waldron’s sale of its products. NAA is a wholesaler and retailer
of authentic Indian-made goods. NAA argues it was injured by a reduction in sales caused by
Waldron’s marketing of non-authentic Indian products as authentic. The IACA imposes strict
liability for each IACA violation, regardless of Waldron’s intent. See Ho-Chunk Nation, Inc. v.
Nature’s Gifts, Inc., No. 98 C 3951, 1999 WL 169319, at *6 (N.D. Ill. Mar. 19, 1999); Native
American Arts v. Village Originals, 25 F.Supp.2d 876, 881-82 (N.D. Ill. 1998).

Loss of market share can be an appropriate method of assessing lost profits. See BASF Corp.
v. Old World Trading Co., 41 F.3d 1081, 1092-93 (7th Cir. 1994). NAA asserts it suffered actual
losses from a diversion of sales from NAA to Waldron. NAA seeks damages for lost profits based
onan alleged loss of market share. See BASF Corp., 41 F.3d at 1094 (permitting loss of market share
damages in a Lanham Act action for false advertising); Outboard Marine Corp. v. Babock Indus.,
No. 91 C 7247, 1995 WL 296963, at *1-2 (N.D. Ill. May 12, 1995) (loss of market share may be
used to calculate lost profits). To establish lost profits based on market share analysis, NAA must

establish causation — Waldron’s sale of falsely suggestive products caused NAA to lose potential


its motion in limine if it determines bifurcation is warranted. Neither party has moved to bifurcate
the trial on the issues of liability and damages. A motion in limine is an inappropriate procedural
vehicle to address bifurcation of trial. NAA’s motion must be denied.

E. Motion to Exclude Expert Testimony of Linda A. Olson

NAA moves to exclude Linda A. Olson’s expert testimony. Olson opines on Waldron’s
designs, motifs, and use of Native American stories on jewelry and product tags. An expert’s
testimony must rest on reliable foundation and must be relevant to the task at hand. Daubert v.
Merrill Dow Pharm., Inc.,509 U.S. 579, 597 (1993). The court must consider whether the testimony
has been subjected to the scientific method, and whether it assists the trier of fact. Fed. R. Evid. 702;
Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir, 1997). An expert may be qualified by
"knowledge, skill, experience, training, or education." Fed. R. Evid. 702. Waldron bears the burden
of establishing the admissibility of Olson’s testimony. Daubert, 509 U.S. at 593.

Olson holds a Bachelor of Science in art and Master of Arts and Master of Fine Arts degrees
in ceramic sculpture. Olson has been an associate professor at Minot State University in North
Dakota since 1990, and she is the art department’s coordinator. Olson is a professional artist. She
has given numerous presentations and exhibitions, and served on various commissions on North
American rock art. Her expertise focuses on rock art, petroglyphs, and pictographs. Olson is a
member of various rock art professional organizations. Her expert report opines that various Native
American images and stories are widely used, and the images are no longer exclusively associated
with Native Americans.

NAA advances only conclusory assertions that Olson is not qualified to testify on Native

American motifs and designs. NAA fails to address Olson’s qualifications. Indeed, Olson’s resume


B. Uncontested Motions

The following motions in limine are granted as uncontested: motion in limine 5 to bar
reference to the alleged inappropriateness of one Indian tribe from making products in the style or
motif of another Indian tribe; motion in limine 8 to bar reference to Sherry Baskin’s hearsay
testimony about conversations with Bear Track’s sales clerks; motion in limine 12 to bar reference
to NAA’s initial damages disclosure of $100,000,000; motion in /imine 13 to bar reference to NAA’s
ability to bring a cause of action with the Ho-Chunk Nation or to bring other non-IACA claims; and
motion in limine 14 to bar reference to NAA’s filing of four separate actions that were consolidated
in the present case.

Cc. Motion in Limine to Bar Evidence for Discovery Violations

NAA moves to bar evidence that Waldron’s products are not falsely suggestive of being
Indian-produced. NAA argues Waldron refused to respond to its discovery requests seeking various
Waldron products and tags. Discovery closed on March 7, 2002. NAA did not move to compel the
production of Waldron’s products or tags pursuant to Fed. R. Civ. P. 37(a) before discovery closed.
NAA failed to seek enforcement of its discovery rights. Accordingly, the motion in limine is denied.
See Nichols v. City of Chicago, No. 89 C 3526, 1992 WL 92117, at *3 (N.D. Ill. Apr. 30, 1992)
(denying motion in limine because moving party failed to comply with Fed. R. Civ. P. 37(a)).

D. Motion to Bar Reference to [ACA’s Statutory Damages Provision

NAA moves to bar reference to the IACA’s damages provision. The IACA provides that a
plaintiff may recover the greater of treble damages, or “not less than $1,000 for each day on which
the offer or display for sale or sale continues.” 25 U.S.C. § 30S5e. NAA asserts the parties disagree

about whether the court or the jury should determine damages. NAA asserts the court should grant


as a Rule 702 witness. The relevant inquiry is whether Burke’s opinions employ the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field. Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 152 (1999).

Burke holds a PhD in pure mathematics. He currently serves as a director for Chicago
Partners, L.L.C., where he performs statistical analysis. Burke has taught mathematics and statistics
as a visiting assistant professor at Loyola University. NAA fails to address Burke’s relevant
qualifications and experiences. Further, NAA contests Burke’s conclusions. Burke employs the
same methodology as Berger - a market share analysis to determine lost profits. NAA asserts
Burke’s criticism of Berger’s assumptions is incorrect and without support. Dispute over Burke’s
conclusions is an appropriate subject for cross-examination. Consequently, NAA fails to
demonstrate Berger’s testimony should be excluded before trial and the motion must be denied.!
i. | Waldron’s Motions in Limine

A. Motions in Limine

Waldron moves in limine to bar substantial evidence at trial. Waldron’s submission consists
of 49 separate motions in limine. These motions are vague, conclusory, and overbroad. Waldron
fails to state the basis for various motions in limine. Further, Waldron moves to bar evidence based
on NAA’s purported discovery violations. Waldron did not attempt to enforce its discovery rights
pursuant to Fed. R. Civ. P. 37(a). Many motions in limine are incomprehensible because Waldron
fails to sufficiently explain the evidence it seeks to exclude. See e.g. Motion in Limine 14 (“Any

wholesale sale of Waldron’s without proof of competition by NAA in the same wholesale market”).

‘ Burke offers rebuttal expert testimony on Dr. Thomas Watkins’ opinions. As discussed
below, Dr. Watkins’ testimony is inadmissible. Thus, Burke’s opinions on Dr. Watkins’
testimony are irrelevant.


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Suzanne B. Conlon Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C2370 DATE 5/29/2002
CASE NATIVE AMERICAN ARTS, INC. vs. EARTHDWELLER, LTD. and THE
TITLE WALDRON CORPORATION
[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. ]
DOCKET ENTRY:
(1) Qo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Qa Answer brief to motion due___. Reply to answer brief due.
(4) Qa Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) aq Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFrRcP4(m) OO General Rule21 OFRCP41(a)(1) C1 FRCP41(a)(2).
co «lf {Other docket entry] Plaintiff's motions in limine [90-1] are granted in part and denied in part. Motions
in limine 1,3, 5, 8, 12, 13, 14 are granted; motions in limine 2, 4, 6, 7, 9-11, 15, 16 are denied. Plaintiff's motions
in limine to bar defendant’s assertions that defendant’s products are not falsely suggestive of being Indian-made
[85-1], expert testimony of Linda A. Olson [87-1] and Brendan Burke [86-1], and to bar reference to [ACA’s
statutory damage provision [88-1] are denied. Defendant’s forty-nine motions in limine are denied. Defendant’s
motion i /imine to preclude evidence of survey and testimony of Thomas Watkins is granted. Defendant’s motion
in limine to preclude testimony of James T. Berger is denied. ENTER MEMORANDUM OPINION AND ORDER.
di) ff [For further detail see order attached to the original minute order.] e

No notices required, advised in open court

No notices required. .
wer of ties

Document
Number

Notices mailed by judge’s staff.

L— MAY 3:1 797

Notified counsel by telephone. date docketed

Docketing to mail notices.

° " : of
Mail AO 450 form. Loy ~ docketing deputyAnitials

Copy to judge/magistrate judge.

sra9r2002

date mailed notice
courtroom

cB deputy’s co
initials :

Datc/time received in

central Clerk’s Office mailing deputy initials

IO/



what’s written on its card suggest to you that it’s made by American Indians?.” Resp. Br., Ex. A. at
p. 4. (emphasis added). The IACA does not regulate artistic expression; it restricts the manner in
which Waldron’s products may be displayed, offered for sale, or sold to the public. Put another way,
the IACA does not restrict Waldron’s creation of goods in traditional Indian style and motif; the
IACA is a truth-in-advertising law. See Native American Arts, Inc. v. Bundy-Howard, Inc., 168
F.Supp.2d 905, 916 (N.D. Ill. 2001). Dr. Watkin’s consumer survey is flawed because it targets
Waldron’s products, not the manner in which the products are displayed and offered for sale.

In addition, Dr. Watkins’ survey includes questions about Waldron’s catalogues and product
tags. Dr. Watkins asked the survey group: “Does what you read on the back of the card suggest that
the product it accompanies is made by American Indians?” Resp. Br., Ex. A at p. 4. Dr. Watkins
provided the participants with a Waldron catalogue and asked: “Do you think this page suggests that
the products available in its catalog are made by American Indians?” /d. at p. 5. Unlike trademark
infringement actions, NAA does need not to establish consumer confusion between NAA’s goods
and Waldron’s products to prove an JACA violation. See e.g. Navistar Int'l Transp. Corp. v.
Freightliner Corp., No. 96 C 6922, 1998 WL 911776 (N.D. Ill. Dec. 28, 1998). Thus, the survey
evidence does not assist the trier of fact. Indeed, the questions posed to the survey participants are
identical to the ultimate questions for the trier of fact. The jury must determine whether Waldron’s
tags and catalogues suggest Waldron’s products are Indian-produced. Dr. Watkin’s survey
improperly encroaches on the jury’s role to make factual determinations on the ultimate issue, The
survey evidence would create unfair prejudice, confuse the issues, and mislead the jury. See Fed. R.
Evid. 403; United States v. Hall, 93 F.3d 1337, 1342 (7th Cir. 1996). Accordingly, the motion to

exclude Dr. Watkins’ testimony must be granted.

11


profits. Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738, 746 (7th Cir. 1985) (aggrieved
party must demonstrate lost sales to recover for unrealized growth potential). Waldron asserts NAA.
cannot demonstrate causation. In response, NAA argues it will offer evidence that sales were
diverted from NAA to Waldron. Thus, Waldron’s motion is premature.

Further, Waldron challenges Berger’s assumptions and conclusions. Disputes between the
parties’ experts about assumptions and conclusions are appropriate grounds for exploration on direct
and cross-examination. The weight and probative value of expert analyses are for the jury to
determine. Medcom Holding Co. v. Baxter Travenol Laboratories, 106 F.3d 1388, 1400 (7th
Cir.1997), Remarkably, neither party submits Berger’s expert report. Thus, the court cannot
independently evaluate the parties’ assertions. Accordingly, the motion to exclude Berger’s expert
testimony must be denied.

Cc Motion to Exclude Dr. Thomas Watkins’ Expert Testimony

Waldron moves to exclude Dr. Thomas A. Watkins’ expert testimony. Dr. Watkins
conducted a consumer survey to assess whether a select group of individuals believed Waldron’s
products were manufactured by Native Americans. Consumer surveys are generally admissible in
Lanham Act actions, where the plaintiff must establish a likelihood of confusion between two
trademarks. Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387, 394 (7th Cir.1992). “Survey
evidence is the customary way of proving significant actual deception[.]” First Health Group Corp.
v. United Payors & United Providers, Inc., 95 F Supp.2d 845, 848 (N.D. Ill. 2000).

Under § 305e, NAA must demonstrate Waldron’s products falsely suggested they were
Indian-produced through its marketing, advertising, and sale of the goods. Dr. Watkins retained a

random group of individuals, provided them a Waldron product, and asked: “Does the product and

10


presents qualifications that suggest she is skilled in Indian art, designs, and motifs because of her
work in North American rock art. See Resp. Br., Ex. A, at p. 9-20; Ex. B, Olson Dep. at p. 54.
Further, NAA must demonstrate Waldron’s products are falsely suggestive of being Indian-made.
Olson’s testimony about Native American designs and motifs used in Waldron’s tags and brochures
would assist the trier of fact. Waldron’s use of those Native American designs may rebut
suggestiveness. NAA fails to demonstrate Olson’s testimony should be excluded before trial, and
the motion must be denied.

F. Motion to Exclude Brendan Burke’s Expert Testimony

NAA moves to exclude Brendan Burke’s expert testimony. Burke proffers rebuttal testimony
on James T. Berger’s expert opinions. Specifically, Burke opines Berger’s estimate of $754.00 in
actual damages is based on erroneous assumptions from unreliable sources. Burke further opines
Berger’s assumption that consumer spending on Native American products is evenly spread among
the population of any given area is incorrect. Burke contends Berger’s estimate of reputation
damages is invalid because Berger fails to address the qualitative differences between NAA and
Waldron products.

At the outset, NAA challenges Burke’s qualifications. NAA asserts Burke conceded at his
deposition he was not an expert witness. When Burke was asked when he became an expert, he
answered: “I’m transitioning - I would say I’m still in the transition from becoming someone who
helps support an expert to someone who does the testifying himself.” Resp. Br., Ex. 2 at 31. NAA
asserts Burke is not listed in his firm’s website (Chicago Partners L.L.C.) as an expert witness.
NAA’s assertions lack merit. Burke’s deposition testimony does not establish he is unqualified as

a Fed. R. Evid. 702 expert witness. Nor does Burke’s absence from a list of experts disqualify him


retail stores where Waldron’s products were sold. Waldron asserts NAA’s pre-suit investigations
are probative of when NAA knew or should have known Waldron’s products were not Indian-made.
In denying Waldron’s motion for summary judgment, this court determined NAA raised a genuine
dispute of fact about when NAA knew or should have known Waldron’s products were not Indian-
produced. See Waldron Corp., 2002 WL 655683, at *3. NAA’s pre-suit investigations are relevant
to the statute of limitations issue. Motions 2 and 15 are denied.

Motions in Limine 4, 11 and 16. NAA moves to bar reference to the identification of
NAA’s suppliers. NAA seeks to exclude reference to Waldron’s donations to Intertribal Bison
Cooperative. Further, NAA moves to bar reference to Bear Tracks’ use of a disclaimer or statement
about the authenticity of its products. These motions are vague and conclusory. NAA does not
identify its suppliers, explain the Intertribal Bison Cooperative’s function, or identify the relevant
statements of authenticity. NAA fails to sufficiently explain the grounds for the exclusion of
evidence. Accordingly, the court cannot determine the evidence is clearly inadmissible. Motions
in limine 4, 11, and 16 are denied.

Motion in Limine 6. NAA moves to bar reference to Michael Mullen’s testimony before
the U.S. Senate Committee on Indian Affairs concerning NAA’s prior investigations into purported
IACA violations. Waldron asserts Mullen’s testimony is relevant to establish when NAA should
have reasonably known its products were purportedly violating the IACA. NAA did not provide the
court with Mullen’s Senate hearing testimony. Accordingly, the court cannot determine all
references to Mullen’s testimony are clearly inadmissible. Motion in limine 6 is denied.

Motion in limine 7, NAA moves to bar reference to the testimony of various retailers of

Waldron products. NAA contends the retailers will testify they did not believe Waldron’s products


upon as they arise at trial. Jd Accordingly, if evidence is not clearly inadmissible, evidentiary
rulings must be deferred until trial to allow questions of foundation, relevancy, and prejudice to be
resolved in context. Jd at 1401. Denial of a motion in limine does not indicate evidence
contemplated by the motion will be admitted at trial. Instead, denial of the motion demonstrates the
court cannot determine whether the evidence in question should be excluded outside the trial context.
United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989); Brom v. Bozell, Jacobs, Kenyon &
Eckhardt, 867 F. Supp. 686, 690-691 (N.D. Ill. 1994).
il. NAA’s Motions in Limine

A. Contested Motions

Motions in Limine 1 and 3. NAA seeks to bar reference that it is not an Indian arts and
crafts organization, and NAA employs two non-Native Americans. NAA also moves to bar
reference that it is not listed in an Indian arts and crafts board source directory. Inresponse, Waldron
asserts the evidence is probative of NAA’s lack of standing because NAA is not a “legally
established Indian arts and crafts organization composed of members of Indian tribes.” 28 U.S.C.
§ 305e(d)(4). Waldron failed to plead an affirmative defense that NAA lacked standing because it
was not a legally established Indian arts and crafts organization. Failure to plead an affirmative
defense of lack of standing is a waiver of that defense. LINC Finance Corp. v. Onwuteaka, 129 F.3d
917, 922 (7th Cir. 1997); Bank Leumi Le- Israel v. Lee, 928 F.2d 232, 235 (7th Cir. 1991); Fed. R.
Civ. P. 8(c). Consequently, Waldron cannot challenge NAA’s status as an Indian arts and crafts
organization. Motions in limine } and 3 are granted.

Motions in Limine 2 and 15. NAA moves to bar reference to NAA’s prior litigation or

investigations. Further, NAA moves to bar reference to the dates and locations when it videotaped


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

EASTERN DIVISION
DOO. ice
NATIVE AMERICAN ARTS )
) MAY 31 2082
Plaintiff, ) | No. 01 C2370
)
Vv. ) Suzanne B. Conlon, Judge
)
EARTHDWELLER, LTD. and )
THE WALDRON CORPORATION )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Native American Arts, Inc. (“NAA”) sues Earthdweller, Ltd., and The Waldron Corporation
(“Waldron”) for violations of the Indian Arts and Crafts Act of 1990 (“the IACA”), 25 U.S.C. § 305e
(Counts , [Il, V, VII), and for punitive damages under the [ACA pursuant to 25 U.S.C. § 305e(b)
(Counts IL, IV, VI, VIII). The claims arise from Waldron’s alleged fraudulent offer, display, and sale
of goods as Indian-produced. The court denied Waldron’s motion for summary judgment and set
the case for trial. Earthdweller is in default. NAA and Waldron move in limine to bar evidence at
trial and exclude expert testimony.

L. Standard of Review

The background of this case is discussed in the court’s order denying Waldron’s summary
judgment motion. See Native American Arts, Inc. v. Waldron Corp.,2002 WL 655683 (N.D. Ill. Apr.
22, 2002). The court excludes evidence on a motion in limine only if the evidence is clearly
inadmissible for any purpose. See Hawthorne Partners v. AT&T Technologies, 831 F. Supp. 1398,

1400 (N.D. Ill. 1993). Motions in limine are disfavored; admissibility questions should be ruled

\O |


CONCLUSION

NAA’s motions in limine are granted in part and denied in part. Motions in limine 1, 3, 5,
8, 12, 13, 14 are granted; motions in limine 2, 4, 6, 7, 9-11, 15, 16 are denied. NAA’s motions in
limine to bar Waldron’s assertions that its products are not falsely suggestive of being Indian-made;
expert testimony of Linda A. Olson and Brendan Burke; and to bar reference to IACA’s statutory
damages provision are denied. Waldron’s conclusory and unsupported forty-nine motions in limine
are denied as unduly burdensome. Waldron’s motion in limine to exclude James T. Berger’s expert
testimony is denied. Waldron’s motion in limine to exclude Dr. Thomas Watkins’ expert testimony

is granted.

May 29, 2002 ENTER:

uazdnne B. Conlon

United States District Judge

12