(As of Sep 25 19:40) Page

U. §. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W.

SOG RG SIGIR IFISIIOISICI GIS SEI GIGI ICIS SIE IEISI IIIS IOI IES

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674

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677
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By dft WH-TV Brdctsg Corp, et al

to limit Zenith's designation of technical

experts.

Ref to: Denlow, Morton

Filed: 08/18/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

to limit Zenith's designation of its experts
relating to the MMDS industry and WHTV's damages.
Ref to: Denlow, Morton

Filed: 08/18/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

in limine against Motorola, Inc. and General
Instrument Corporation to bar evidence pursuant to
this court's 5/2/03 and 5/28/03 orders.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due xe /xx/*ek Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

in limine against Zenith Electronics Corporation
to bar the expert testimony of Ted E. Hartson.

Ref to: Denlow, Morton

Filed: 08/18/03

und Adv: 09/19/03

Response: due ae Jee/e* Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

in limine against Zenith Electronics Corporation
to bar evidence relating to issues previously
adjudicated by this court.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due wx/ex/** Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

in limine against Zenith Electronics Corporation
to bar Zenith from offering trial testimonyy of
Stephen Brown and Jason Lu.

Ref to: Denlow, Morton

Filed: 08/18/03

und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

7



opinions or inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
WH-TV seeks to use its business managers to prove that WH-TV would have enrolled a specific
number of future subscribers absent Zenith’s breach. WH-TV’s business managers may well
have sufficient personal knowledge of the existing operations of the business to allow them to
offer opinions as to losses of existing customers, and the corresponding loss of profits. However,
any opinions as to future sales to future customers are necessarily based on market analysis.
Such an analysis would not be based on the business managers’ perception or personal
knowledge, and would require specialized knowledge. See KW Plastics v. U.S. Can Co., 131 F.
Supp. 2d 1265, 1274 (M.D. Ala. 2001) (stating that while manager “may have sufficient personal
knowledge based upon his own experience in the industry to provide some type of economic
testimony and data, it does not necessarily follow that he has personal knowledge sufficient to

project lost profits for six years into the future on the basis of the loss of customers that KW

never had.”), see also generally Martin G. Gilbert, Proving Lost Profits Through Lay Opinion

Testimony — Is the Back Door Still Open?, 22 Franchise L.J. 15 (2002). Allowing WH-TV’s

business managers to offer their projections relating to future subscribers would permit WH-TV
to evade the reliability requirements of expert witnesses “through the simple expedient of
proffering an expert in lay witness clothing,” a strategy that Rule 701 was designed to eliminate.
See Fed. R. Evid. 701 advisory committee’s note.

Nor is the court persuaded by WH-TV’s argument that it could offer to its expert a
hypothetical number of future subscribers — based on nothing more than counsel’s imagination —
and the expert could use that number to opine on lost future profits. WH-TV cites Tuf Racing
Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585 (7" Cir. 2000) for this proposition.

in Tuf Racing Products, the defendant argued that the plaintiff should not have been able to use

an accountant to provide expert testimony on lost profits damages because the accountant did not


(As of Sep 25 19:40) Page

U.

DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W.

FO IO III IO IO IO OR I III ICI GIGI III IO IR II IU I I I IG I IO kok

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648
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649
1

650
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651

652

By unk Motorola Inc, et al

in limine to bar use, as substantive evidence, of
depositions taken when General Instrument
Corporation and Motorola, Inc. were not parties,
other than depositions of witnesses who were
General Instrument Corporation and Motorola, Inc.
Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar experts and opinions not
disclosed pursuant to Rul 26(a) (2).

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar reference to, or use of,
unauthenticated documents.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar reference to, or use of, evidence
of alleged harm or damages relating to the timing
of Motorola's delivery of the December 2001
software release.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to exclude anticipated evidence from
WH-TV Broadcasting Corp. concerning defects in
set-top box converters not disclosed in its
answers to interrogatories.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0


breach of contract is always entitled to nominal damages if he proves a breach but no damages.”

Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1372 (7" Cir. 1990); see also

Hydrite Chem. Co. v. Calumet Lubricants Co., 47 F.3d 887, 891 (7" Cir. 1995). Accordingly,

WH-TV may proceed to trial on its breach of contract claim against Zenith, although its damages

are limited to nominal damages.'

ORDERED: Judgment is entered as a matter of law in favor of Zenith on Count I of
WH-TV’s Third Amended Counterclaim (fraud). Judgment is entered as a matter of law in favor
of GI and Motorola on WH-TY’s third-party promissory estoppel claims. The parties are
directed to notify the court by October 8, 2003 regarding which, if any, pending motions in
limine are moot in light of this order. The parties should identify each such motion by title and
docket number; the court will supply the parties with a list of motions pending in this case, with
their docket numbers.

ENTER:

George W. Lindberg
Senior U.S. District Judge
OCT 0 1 2003

DATED:

' Zenith’s claims against WH-TV and GI also remain.

6


have a degree in an academic field that might bear on his calculation of damages. Id. at 591. The

Seventh Circuit rejected this argument on the basis that Daubert does not require an expert

witness to have any particular credentials, and that the accountant’s calculations were within his
area of competence. Id.

WH-TV’s reliance on Tuf Racing Products for the proposition that an expert may offer an
opinion based on an unsupported hypothetical appears to stem entirely from the following
portion of the opinion:

From financial information furnished by Tuf and assumptions given him by

counsel of the effect of the termination on Tuf’s sales, the accountant calculated

the discounted present value of the lost future earnings that Tuf would have had

had it not been terminated. This was a calculation well within the competence of

aC.P.A.

Id. WH-TV’s misguided reading of this brief excerpt would nullify the portion of Federal Rule
of Evidence 702 that requires an expert’s testimony to be “based upon sufficient facts or data.”
Certainly an expert may offer an opinion in response to a hypothetical question posed by counsel,
as apparently did the accountant in Tuf Racing Products. However, the hypothetical question
must be based in fact, an issue that was not raised in Tuf Racing Products. WH-TV’s argument
that a jury could rely on an expert opinion regarding lost profits that is based on a projection of
future subscribers concocted entirely from the imagination of counsel, is absurd.

According to WH-TV’s counsel at the Rule 16(c)(1) conference, the only type of
compensatory damages WH-TV seeks are lost future profits. In light of this court’s prior orders,

the court concludes that, as a matter of law, WH-TV cannot prove such damages. Injury is an

element of both fraud and promissory estoppel. See Roboserve, Inc. v. Kato Kagaku Co., Ltd.,

78 F.3d 266, 274 (7” Cir. 1996) (fraud); Quake Constr., Inc. v. American Airlines, Inc., 565

N.E.2d 990, 1004 (Ill. 1990) (promissory estoppel). Without the ability to prove damages, WH-
TV’s claim of fraud against Zenith, and its claim of promissory estoppel against GI and
Motorola, must fail as a matter of law. However, “a failure of proof of damages does not justify

the dismissal of a claim for breach of contract, as it does for most tort claims. The victim of a


(As of Sep 25 19:40) Page

U.

DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W.

FOI I IO IO RRR IR IO IO IO I TO I III IR TOK II OR IR I Rk ok ak

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642
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643

644

645

646
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647

By unk Motorola Inc, et al

in limine to bar testimony by Don Alexander
regarding any promises allegedly made by Motorola
or General Instrument to provide an enhanced
program guide

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

By unk Motorola Inc, et al

in limine to bar evidence of negligent performance
Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar Zenith from recovering more than
$100,000 if performance of its obligation to
provide an enhanced program guide to WHTV was not
due until after the closing of the asset purchase
agreement

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

By unk Motorola Inc, et al

in limine to bar parol evidence of the intent of
the parties to the asset purchase agreement and

extrinsic evidence of post-asset purchase services
performed by General Instrument and Motorola

Ber to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar WHTV from denying that Zenith
attended the 11/6/00 meeting in Philadelphia
Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

By unk Motorola Inc, et al

in limine to bar reference to, or use of, evidence
relating to document production issues and the
motion for rule to show cause.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0


Minute Ords Form (06/97),

United States District Court, Northern District of Illinois

sor Magistrate Judge George W. Lindberg “than Asigned Judge
CASE NUMBER O1 C 4366 DATE 10/1/2003
CASE Zenith Electronics Corporation vs. WH-TV Broadcasting Corporation
TITLE

[in the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly the nature

of the motion being presented.]

(1)

MOTION:

DOCKET ENTRY:

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

(2) Qa Brief in support of motion due

(3) Qa Answer brief to motion due___. Reply to answer brief due

(4) aq Ruling/Hearingon___—_setfor____at

(5) Q Status hearing[held/continued to] (set for/re-set for]on___——ssetfor_— at.

(6) Q Pretrial conference[held/continued to] (set for/re-set for}on__—ssetfor_ at.

m oa Trial{set for/re-set for]on___at

(8) ia [Bench/Jury trial] [Hearing] held/continued to___—_at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) ClLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

ao) {Other docket entry] Judgment is entered in favor of Zenith on count I of WH-TV’s third amended

counterclaim(fraud). Judgment is entered as a matter of law in favor of Gl and Motorola on WH-TV’s
third-party promissory estoppel claims. The parties are directed to notify the court by October 8, 2003
regarding which, if any pending motions in limine are moot in light of this order. The parties should

identify each such motion by title and docket number. Enter memorandum opinion and order.

a {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of notices

Document
Number

Notices mailed by judge’s staff. oct 02 2003

Notified counsel by telephone. date docketed “_~

me E initials

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

Gate mailed notice
courtroom

SLB deputy’s
initials

central Clerk's Office ~ vvaling deputy initials

735

4



(As of Sep 25 19:40) Page

U.

Ss.

DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W.

FRI IOI TOR ICICI ICO RII IO III IOI ICICI IOI II IO IOI I I IO a IO

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660

661
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663

By unk Motorola Inc, et al

in limine to bar WHTV from referring to or using
documents that WHTV should have produced but
failed to produce until after the close of
discovery.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By pla Zenith Elec Corp, et al

in limine to bar the remainder of Rick Lawrence's
testimony proposed by WHTV

Ref to: Denlow, Morton

Filed: 08/15/03

Und Adv: 09/19/03

By pla Zenith Elec Corp, et al

in limine to bar any evidence or reference to
alleged defects in Zenith's STBs that arose after
7/17/00.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By pla Zenith Elec Corp, et al

in limine to bar testimony or reference to
Zenith's Korean corporate parent.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By pla Zenith Elec Corp, et al

in limine to bar references to the visionetics
set-top box as "DVB compliant" or the cause of the
visionetics STB's alleged failure to work in
WHTV's system

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By pla Zenith Elec Corp, et al

in limine to bar testimony that remote controls
were defectively designed

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0


(As of Sep 25 19:40) Page

U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W.

FOO IOI I ISI IO IO GIGOIIOIIOIGIGIDI IOI IOI IOI I FOI i kk

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653
1

654

655

656
1

657

By unk Motorola Inc, et al

in limine to bar reference to, or use of, evidence
relating to Zenith's previously stricken theory in
the now dismissed amended count III of Zenith's
second amended crossclaim against General
Instrument.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar reference to General Instrument
or Motorola allegedly immediately abandoning the
Z12C program in September 2000.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar WHTV from recovering damages
against them and to bar references inaccurately
suggesting that WHTV suffered damages recoverable
from them.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to strike group exhibits 863 through 872
from WHTV's exhibit list and to bar reference to,
or use of, WHTV group exhibits 863 through 872.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By unk Motorola Inc, et al

in limine to bar the 106 WHTV witnesses and the
over 50 Zenith witnesses who lack personal
knowledge as to the limited issues relating to
General Instrument and Motorola and to bar those

of WHTV's 1,037 exhibits and those of Zenith's 566
Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

4



Zenvth OlWH43G4
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(As of Sep 25 19:40) Page 1

U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ,I[LLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W. ~)

a

1:01lcv04366 Zenith Elec Corp v. WH-TV Brdctsg Corp ofr H
Cause: 28:1332 Diversity- (Citizenship) i
Nature of suit: 190 Contract: Other
Case filed/reopened: 06/11/01

Doc # 361 By 3ddft Gen Instrument Corp, et al
Part # 1 for Rule 11 sanctions against WH-TV Broadcast ing Np,
Corporation . Rr
Ref to: Denlow, Morton
Filed: 03/17/03

Doc # 496 By pla Zenith Elec Corp

Part # 1 for entry of order regarding order of proof
Ref to: Denlow, Morton
Filed: 06/04/03

Doc # 509 By pla Zenith Elec Corp, et al

Part # 1 to limit WHTV's designation of its damages expert
Ref to: Denlow, Morton
Filed: 06/06/03

Doc # 526 By pla Zenith Elec Corp
Part # 1 to bar testimony of S. Merrill Weiss
Ref to: Denlow, Morton
Piled: 06/13/03
Response: due **/**/** Last filed: 06/30/03 Ext: 0

Doc # 565 By pla Zenith Elec Corp
Part # 1 in limine to bar the testimony of WHTV's damages
expert Rick Lawrence
Ref to: Denlow, Morton
Filed: 07/08/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 07/22/03 Ext: 0

Doc # 639 By daft WH-TV Brdctsg Corp, et al

Part # 1 to take discovery to authenticate and establish
foundations for documents from the late production
Ref to: Denlow, Morton
Filed: 08/14/03 Hearing: set 08/21/03
Reply: due **/**/** Last filed: 08/20/03 Ext: 0

Doc # 641 By unk Motorola Inc, et al

Part # 1 in limine to bar all evidence of alleged promises
made by General Instrument or Motorola except the
alleged promise made by William Luehrs at the
11/6/00 Philadelphia meeting regarding the
correcting of "remaining technical defects"
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03


The court conducted a pretrial conference under Rule 16(c)(1) on September 16 and 25,
2003. At the conference, in response to the court’s request that counsel for WH-TV state what
damages it contends it still can prove, counsel only identified lost profits from future subscribers.
When the court asked counsel how it intended to prove such damages in light of the court’s prior
orders, counsel responded that WH-TV business managers could testify as to the number of
future subscribers WH-TV planned to enrol] when it launched its digital service, and that WH-
TV’s expert, Peter Shapiro, could then calculate the profits WH-TV lost, based on that number of
subscribers. Alternatively, argued WH-TV, Shapiro could opine as to WH-TV’s lost profits
based solely on unsupported facts contained in a hypothetical supplied by counsel.

As Zenith noted at the hearing, WH-TV is already foreclosed from offering lay testimony
to establish future subscriber growth. On September 16, 2003, the court entered an order
addressing Zenith’s Motion in Limine to Bar Lay Opinion Testimony Regarding WH-TV’s
Future Subscriber Growth. In that order, the court denied Zenith’s motion as moot, based on
WH-TV’s representation in its response brief that:

..the Court should reconsider its July 23, 2003, Order in part and permit evidence

of WHTV’s financial plans and projections. Only if the Court reconsiders its July

23, 2003, Order, do Zenith’s arguments regarding (1) the ability of lay witnesses

to testify as to damages, (2) the foundation for WHTV’s projections and (3) the

admissibility of those projections as a business record become relevant.

At the Rule 16(c)(1) conference, WH-TV argued that its representation in its response brief
actually meant that Zenith’s motion was only moot if the court declined to reconsider its July 23,
2003 order to allow WH-TV to use its financial plans and projections as direct evidence of
damages. WH-TV argued that now it intends to use lay opinion testimony, not to establish the
amount of future lost profits, but to establish the number of future subscribers it would have
enrolled; Shapiro would then use that number to opine on the amount of damages.

The court fails to see this strained distinction in WH-TV’s response brief. Moreover,
even if the court addresses the merits of the issue, WH-TV still would be unable to offer this lay

opinion testimony. Federal Rule of Evidence 701 limits a lay witness’ opinion testimony to


{As of Sep 25 19:40) Page

U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01~-cv-04366
Judge Lindberg, George W.

FRI I III IO IO I CR IG IO TO TICK IO ICR IOI IR TOA Ik

Doc #
Part #

Doc #
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Doc #
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Doc #
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Doc #
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678
1

679
1

680

681

682
1

By dft WH-TV Brdctsg Corp, et al

in limine to exclude the opinion testimony of Adam
Goldberg.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

in limine against Zenith Electronics Corporation
to bar evidence from Dan Hogan relating to (1)
Whether Zenith's non-DVB compliant STB's prevented
WHTV from using other manufacturer's STBs, (2) TDS
and (3) Visionetics.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

in limine against Motorola, Inc. and General
Instrument Corporation to bar introduction of
expert testimony rebutting WHTV's damage claims
Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By dft WH-TV Brdctsg Corp, et al

in limine against Zenith Electronics Corporation
to bar the expert testimony of John M. Mansell,

Jr.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

By dft WH~-TV Brdctsg Corp, et al

in limine to strike report of Julius B. Bagley
and/or to bar and exclude at trial the Bagley
report and any accompanying testimony of Julius B.
Bagley.

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0


(As of Sep 25 19:40) Page

U. §. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W.

SIR IO OR RIO IO I IO II IR I RI IO III IOI ICI TOI II II TO ICI IO

Doc # 697 By 3ddft Gen Instrument Corp, et al

Part # 2 to bar these paragraphs from being read to the
jury
Ref to: Denlow, Morton
Filed: 08/28/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

10


projections of subscriber growth attributable to the growth in households in WH-TV’s signal
area. The court denied WH-TV’s motion to reconsider these orders.

In an order entered on July 23, 2003, this court barred WH-TV fiom introducing evidence
of damages other than what was disclosed in its expert reports. This ruling was based on WH-
TV’s failure to provide a responsive answer to a Zenith contention interrogatory asking for the
nature, amount, and basis for calculation of damages, other than its expert reports. The order
states that WH-TV’s references to documents in its answer, including WH-TV’s financial
projections and agreements, were not responsive to the interrogatory. In a September 17, 2003
order denying WH-TV’s motion to reconsider the July 23, 2003 order, this court explained that
its prior order limited WH-TV’s evidence of damages to the damages disclosed in the expert
reports, and did not permit WH-TV to offer any isolated fact mentioned in its expert reports as
evidence of damages. The court concluded that because WH-TV’s expert did not identify the
cost of the set-top boxes and head-end equipment as damages, evidence of those costs is barred.

In the final pretrial order, WH-TV itemized its damages against Zenith as $20,128,706 to
$27,471,776, “[a]s per the Rebuttal Report of Peter Shapiro Ph.D. (subject to reconsideration
and/or FRE Rule 103(a)).” WH-TV then lists the following as “DAMAGES IN THE
ALTERNATIVE IF THE SHAPIRO REPORT REMAINS EXCLUDED”:

. $2,603,033 as “Cost of Zenith’s STBs (unjust enrichment)”

. $3,909,875 as “Cost of Head-End”

. $6,272,491 as “Losses reflected in financial statements 1999-trial date”

. “in excess of $12,000,000.00" as “Projections of earnings as of March 27, 1998 by
Miguel Rodriguez, CPA”

. prejudgment interest, and

° punitive damages.

In the final pretrial order, WH-TV itemized its damages against GI and Motorola as $4,256,359
to $7,925,459, “[a]s per the Post-8/8/00 Report of Peter Shapiro Ph.D.”


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ZENITH ELECTRONICS CORPORATION,
Plaintiff/Counter-Defendant,

)

) 01 C 4366
v. )

)

)

)

)

Judge George W. Lindberg
WH-TV BROADCASTING CORPORATION,

Defendant/Counter-Plaintiff.
MEMORANDUM OPINION AND ORDER

As indicated in the final pretrial order, WH-TV maintains counterclaims of fraud in the
inducement and breach of contract against Zenith, and a third-party claim of promissory estoppel
against GI and Motorola. The court has conducted a pretrial conference pursuant to Federal Rule
of Civil Procedure 16(c)(1), for the purpose of determining whether these claims should be
eliminated as a matter of law. Rule 16(c)(1) provides that at a pretrial conference, the court “may
take appropriate action, with respect to...the formulation and simplification of the issues,
including the elimination of frivolous claims or defenses[.]” The advisory committee notes
following Rule 16 explain that “{t}here is no reason that this [the elimination of frivolous claims]
await a formal motion for summary judgment.” For the reasons stated below, the court finds that
Zenith is entitled to judgment as a matter of law on WH-TV’s fraud claim, and GI and Motorola
are entitled to judgment as a matter of law on WH-TV’s promissory estoppel claim.

In orders entered over the past three months, this court has limited the evidence WH-TV
may present at trial on damages. In orders entered on June 25, 2003 and August 6, 2003, this
court barred WH-TV’s damages expert, Peter Shapiro, from testifying as to profits he projects
WH-TV lost from future subscribers WH-TV would have enrolled through 2008, absent Zenith’s
breach. This decision was based on the finding that Shapiro’s methodology for projecting the

number of future subscribers was not reliable under Daubert v. Merrell Dow Pharms., Inc., 509

US. 579 (1993). In addition, the August 6, 2003 order clarified that WH-TV is not precluded

from presenting evidence of profits it would have earned from its existing subscribers, including

TS


(As of Sep 25 19:40) Page
U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-~cv-04366
Judge Lindberg, George W.

SII OI OI TOI TOR IORI ICI IOC IO I I OIG TO TOI II IO RII IO IO IO

Doc # 664 By pla Zenith Elec Corp, et al
Part # 1 in limine to bar testimony or other evidence of
promises or representations to TDS
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 666 By dft WH-TV Brdctsg Corp, et al

Part # 1 in limine to strike report of Juan Acosta and/or
to bar and exclude at trial the acosta report and
any accompanying testimony of Juan Acosta.
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 668 By dft WH-TV Brdctsg Corp, et al

Part # 1 in limine against Zenith Electronics Corporation,
Motorola, Inc. and General Instrument Corporation
to bar evidence relating to WHTV's
creditworthiness.
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 669 By pla Zenith Elec Corp, et al
Part # 1 in limine to bar, as against Zenith, any
testimony, use or reference to the March 13, 2003
report of Merrill Weiss and the 2/25/03 report of
Pixelmetrix corporation.
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc #670 By pis Zenith Elec Corp, et al
Part # 1 i imine to bar testimony and other evidence by
WHTV regarding custom disconnections.
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 671 By dft WH-TV Brdctsg Corp, et al

Part # 1 for adverse inference jury instruction against
Motorola, Inc. and Genera Instrument Corporation.
Ref to: Denlow, Morton
Filed: 08/18/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0


(As of Sep 25 19:40) Page
U. S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

Motions for case: 1:01-cv-04366
Judge Lindberg, George W.

SIR I RO I I IO TOR IR ROR I IO ICR IC I IOC IR TO IO I I IOI RR aK dk eK

Doc # 683 By dft WH-TV Brdctsg Corp, et al

Part # 1 in limine against Zenith Electronics Corporation,
Motorola, Inc. and General Instrument Corporation
to bar evidence (1) that sales orders were mailed
to WHTV and (2) that Zenith's alleged custom and
practice was actually followed with respect to
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 684 By dft WH-TV Brdctsg Corp, et al
Part # 1 in limine against Zenith Electronics Corporation
to bar the expert testimony of Matthew Goldman.
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 685 By dft WH-TV Brdctsg Corp, et al
Part # 1 in limine against Zenith Electronics Corporation
to bar the expert testimony of Craig T. Elson.
Ref to: Denlow, Morton
Filed: 08/18/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 686 By dft WH-TV Brdctsg Corp, et al
Part # 1 in limine

Ref to: Denlow, Morton

Filed: 08/18/03

Und Adv: 09/19/03

Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc # 688 By pla Zenith Elec Corp, et al
Part # 1 for leave to file a summary judgment motion on
WHTV's counterclaim
Ref to: Denlow, Morton
Filed: 08/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

Doc
Part

697 By 3ddft Gen Instrument Corp, et al

1 in limine to strike paragraphs 43, 44, 46,47 and
97 from WHTV's and Zenith's final pretrial order
stipulation
Ref to: Denlow, Morton
Filed: 08/28/03
Und Adv: 09/19/03
Response: due **/**/** Last filed: 09/19/03 Ext: 0

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