IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AMERICAN HARDWARE )

MANUFACTURERS ASSOCIATION, )

)

Plaintiff, )

)

vs. ) Case No. 03 C 9421

)

REED ELSEVIER, INC., et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Defendants Freeman Decorating Company and Freeman Decorating Services,

Inc. and Reed Elsevier, Inc. have moved to reconsider the order of January 4, 2010

(docket no. 1094) denying as moot Freeman’s motion to reconsider the decision of July

23, 2009 (docket no. 1070) granting plaintiff American Hardware Manufacturers

Association’s motion to bar the testimony of a defense expert, Craig Elson. The judge

to whom this case was previously assigned denied the earlier motion to reconsider. 

The judge’s order reads as follows:

Defendants Freeman Decorating Co. and Freeman Decorating Services,

Inc. have filed a motion asking the court to reconsider its July 23, 2009,

order barring its expert witness, who would have offered testimony on the

civil conspiracy claim alleged against the Freemans. However, the court

has since granted summary judgment to the Freemans on the civil

conspiracy claim. Because the witness’ expertise does not to extend to

the only remaining claims involving the Freemans—their defamation

counterclaims—the motion to reconsider [174-1] is denied as moot.

Order of Jan. 4, 2010.
The prior judge later recused herself. The undersigned judge, acting on a

motion to reconsider that had been filed prior to the recusal, vacated an earlier decision

granting summary judgment in favor of Reed on certain claims. See Decision of July

26, 2010 (docket no. 1156). The undersigned judge has, however, reaffirmed the prior

judge’s decision granting summary judgment in defendants’ favor on the civil conspiracy

claim. See Decision of Aug. 23, 2010 (docket no. 1179).

AHMA moved to strike Elson’s expert report and testimony on the ground that it

was premised on a misstatement of law. The prior judge disagreed with this, stating

that “Elson’s report does not misstate the law, as AHMA contends.” Decision of July

23, 2009 at 4. The judge went on to strike the report and testimony, however, based on

two arguments that AHMA had not made and that the defendants thus had no

opportunity to address. First, the judge said that Elson’s report was a rebuttal expert

report and then concluded that it did not meet the criteria for a proper rebuttal report.

Id. at 4-6 & 8. Second, the judge said that one section of the report was based on

speculation, not expertise, and thus was inadmissible, and that other parts of the report

were beyond Elson’s expertise or contained legal conclusions to which an expert could

not properly testify. Id. at 6-8. These are the rulings that defendants’ current motion

asks the undersigned judge to reconsider.

There are some threshold issues. First, although it was Freeman who originally

disclosed Elson as an expert and carried the ball in opposing AHMA’s motion to strike,

Reed adopted Elson as its own expert in a reasonably timely fashion, without any

undue or unfair prejudice to AHMA. Second, though the prior judge, in her January 4,

2010 order, considered Elson’s testimony to concern only the civil conspiracy charge, it

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is clear that the testimony also concerns certain claims that the undersigned judge

revived via the July 26, 2010 decision. As a result, the current motion for

reconsideration involves a live issue even though the civil conspiracy claim remains

dismissed as a result of the undersigned judge’s August 23, 2010 order. 

The prior judge’s July 23, 2009 decision characterized Elson’s report as a

“rebuttal” report – an argument AHMA had not made – and then struck it on the ground

that it did not actually rebut AHMA’s expert, Jeff Litvak. The undersigned judge agrees

with defendants that it was erroneous to premise exclusion on this proposition. 

Freeman disclosed Elson’s report within the time for disclosure of initial opinions. For

this reason, there was no requirement that Elson rebut any opposing expert’s report.

Thus the fact that Elson went beyond Litvak’s analysis and arguably “fail[ed] to respond

to Litvak’s report,” see Decision of July 23, 2009 at 5, does not make Elson’s report

improper or subject to exclusion.

Elson’s report addresses relevant issues. In particular, Elson attacks a

significant contention that AHMA makes, specifically, its contention that exhibitors at

trade shows were charged inflated rates because Freeman passed on the cost of

payments it made to Reed that AHMA characterizes as improper and/or as kickbacks,

and that as a result, participation in the shows dropped. Elson contends, among other

things, that Freeman charged competitive rates and that exhibitors suffered no negative

effects from the alleged pass-through. The Court does not find Elson’s analysis to be

speculative, with the limited exceptions noted below.

Finally, as indicated above, the prior judge rejected the only argument AHMA

had made in its motion to strike Elson’s testimony – the proposition that Elson’s

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testimony was premised on an error of law. AHMA does not repeat that argument in

opposing defendants’ current motion to reconsider. As a result, there is no basis to

revisit the point, but for what it is worth, the undersigned judge agrees with the prior

judge on this issue.

For these reasons, the Court grants defendants’ motion to reconsider. The

Court vacates the decision of January 4, 2010 (docket no. 1094) and also vacates the

decision of July 23, 2009 to the extent it excluded Elson’s testimony in its entirety. 

There are, however, some matters on which the undersigned judge agrees with

the prior judge’s July 23, 2009 decision. These are points that defendants had no

chance to address before that ruling but that they have addressed fully in the briefing

on reconsideration.

First, the prior judge concluded that “Elson’s examination of other factors that

allegedly contributed to the decline [in trade show attendance] is improper.” Decision of

July 23, 2009 at 7. Defendants have argued that it is appropriate for Elson to point out

that any analysis of damage “must consider and account for other factors that may

have contributed to a plaintiff’s claimed injury.” Freeman’s Reply in Support of [Original]

Mot. to Reconsider (docket no. 1084) at 10. That is no doubt true, but Elson’s report

goes beyond that, identifying other particular outside factors that he says might have

accounted for the decline in attendance. This is, indeed, outside Elson’s expertise and

speculative; defendants have offered nothing in their briefing on either motion to

reconsider that shows otherwise. Elson may testify that a damage analysis must

consider and account for other factors, but he cannot testify regarding particular other

factors that he contends might have accounted for all or part of the drop in attendance.

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Second, the prior judge noted that portions of Elson’s report contain legal

conclusions, such as a statement that Freeman had no duty to disclose the payments

to AHMA and had a duty not to disclose them pursuant to its contract with Reed. See

Decision of July 23, 2009 at 8. The undersigned judge agrees that these matters are

outside the scope of appropriate expert testimony in this case, and are, in addition,

outside Elson’s expertise. It is conceivable that there may be a way for defendants to

attempt to get these points before the jury, but testimony by Elson is not the appropriate

way to do it. Elson may not include these points in his testimony.

Conclusion

The Court grants defendants’ motion to reconsider [docket no. 1166] for the

reasons stated above. The Court vacates the minute order dated January 4, 2010

[docket no. 1094] and also vacates the decision of July 23, 2009 to the extent it

excluded Craig Elson’s testimony in its entirety. The Court reaffirms the July 23, 2009

decision excluding certain aspects of Elson’s testimony as explained in the body of the

present decision.

________________________________

MATTHEW F. KENNELLY

 United States District Judge

Date: September 2, 2010

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