thereby extending the statute of limitations. See Scott v. United
Auto, 242 F.3d 837, 839 (8t* Cir. 2001) (the statute of
limitations begins running when the employee ‘should reasonably
have known of the union’s alleged breach.’” Having failed to
challenge the CBA in a timely manner, the Court will not permit
Plaintiffs to bootstrap this time barred claim onto the timely-
filed claims set forth in their Amended Complaint.

Next, Professor Bruno offers his opinion on the Union’s
investigation and preparation of Plaintiffs’ grievances, as well
as the Union’s administering (or prosecution) of the grievances.
Professor Bruno relies upon his vast experience as an industrial
relations expert to opine on the standards that most unions hold
themselves to when investigating, preparing, and administering
grievances. Professor Bruno comments extensively on typical
union conduct in these regards, and compares and contrasts this
with the Union’s conduct in this case. For example, Professor
Bruno’s report states that, typically, evidence of a union
investigation would appear in union notes and files, and would be
shared with the grievant. Professor Bruno then notes that the
Plaintiffs’ files do not contain such notations, and do not
include correspondence with the Plaintiffs regarding the
investigation, as would be expected if a thorough investigation

had been conducted.

19



failed to comply with a certain standard of care governing
adoption agencies. Id. at *4. The court noted that the standard
governing an adoption agency’s duty to respond to adoptive
parents’ inquiries was well defined in caselaw: adoption agencies
have a duty to provide “an honest and complete response to [the
adoptive parents’] specific request concerning the
characteristics of potentially adoptable children.” Id. quoting
Roe v. Catholic Charities, 588 N.E.2d 354, 365 (Ill. 1992). The
court concluded that the plaintiffs’ expert was “no more
qualified than an ordinary juror to opine on whether [the
adoption agency] was honest and complete. His opinion that [the
adoption agency] breached this particular standard of care is not
helpful to the jury and is therefore inadmissible with respect to
the negligence claim.” Id.

In the case at bar, Plaintiffs must demonstrate to the jury
(presuming the case proceeds to a jury trial) that the Union
acted arbitrarily, discriminatorily, or in bad faith. While
jurors might not have significant experience in understanding
whether a union acted negligently or ineptly when representing
one of its members (thus warranting expert testimony), there is
no indication that Professor Schmall is more adept at recognizing
conduct that is so egregious - such as refusing to present a
meritorious claim, or failing to interview a grievant -- that it

can be characterized as a breach of a union’s duty of fair

13



method of investigating and processing grievances is a trade
secret, or that the disclosure of this information would somehow
inflict injury or embarrassment upon the Union. In addition,
this information is at the heart of Plaintiffs’ claims and would
likely be elicted at trial. Therefore, the Union’s Motion with
respect to this testimony is denied.

Finally, the Union asks that Plaintiffs, their attorneys,
and their expert witnesses be ordered to refrain from disclosing
information that has been and will be disclosed in discovery to
others, most notably, Local 150 officials and personnel. This
time, the Union has advanced an argument, albeit inartfully, that
it stands to be harmed or embarrassed if confidential information
disclosed during discovery is turned over to these entities.

It is quite apparent that Local 150 has a substantial behind
the scenes role in this litigation. Plaintiffs supported Local
150 in the 2002 elections, Plaintiffs turned to Local 150 when
they believed their grievances were given short shrift, and,
apparently, Local 150 is supplying Plaintiffs with both its in-
house counsel and funds to prosecute this case. Even Plaintiffs’
counsel is confused as to who the true plaintiffs are in this
case. In its Notice of Filing of the First Amended Complaint,
Plaintiffs’ counsel (who also serves as Local 150's in-house
counsel) indicated that the document was filed as “Local 150's

First Amended Complaint.” Similarly, Plaintiffs’ Response to

23



federal courts lack subject matter jurisdiction over such claims.
Pease v. Production Workers Union Local 707 et al., No. 02 C 6756
(Jan. 10, 2003 Order) quoting Vaca v. Sipes, 386 U.S. 171, 179
(1967) (“as a general rule neither state nor federal courts have
jurisdiction over suits directly involving ‘activity (which) is
arguably subject to §7 or §8 of the Act.’”) See also
Communications Workers of AM. v. Beck, 487 U.S. 735, 743 (1988)
{“Employees, of course, may not circumvent the primary
jurisdiction of the NLRB simply by casting statutory claims as
violations of the union’s duty of fair representation” or an
employer’s breach of contract.) However, the court denied
Defendants’ Motion with respect to the bulk of Plaintiffs’
claims. The court conceded that Defendants’ argument that
Plaintiffs’ breach of contract and fair representation claims
were truly § 8 claims in disguise was strong, but found that
Plaintiffs had sufficiently alleged a § 301 violation.

Plaintiffs filed their Amended Complaint on January 21,
2003. Judge Holderman referred the case to this Court on
February 13, 2003, to supervise settlement and discovery.
On August 5,2003, the instant motions were referred to this
Court.

Federal Rules of Evidence
Before addressing Defendants’ Motions, the Court will set

forth the Federal Rules of Evidence implicated in this matter.



The Court acknowledges that this testimony bears resemblance
to Professor Schmall’s proposed testimony on the law governing
the applicable standard of care’. However, the Court agrees that
the testimony differs in important respects. Whereas Professor
Schmall’s report was offered to set forth the blackletter law
regarding the standard of care, Professor Bruno’s report relies
thoroughly on his vast experience as an industrial relations
expert. More importantly, Professor Bruno’s expert report
informs the trier of fact about the significance of certain
conduct on the part of the Union that might have otherwise
escaped the jury’s attention; Professor Bruno’s discussion about
the significance of documentation and correspondence in a
grievant’s file is just one such example.

Therefore, the Court finds that Professor Bruno’s report
would assist the jury in determining whether the Union’s
(alleged) repeated departures from customary business practices
is sufficient to establish Plaintiffs’ breach of fair

representation claims.

5 The Court is also mindful that the Federal Rules of
Evidence do not favor duplicative testimony, absent good cause
shown. See Dahlin v. Evangelical Child and Family Agency, No.
01 C 1182, 2002 WL 31834881, at *5 (N.D. Ill. Dec. 18, 2002)
“Pursuant to the Court’s authority under Federal Rule of Evidence
403, the Court finds that the needlessly cumulative effect of
this duplication would substantially outweigh the probative value
of the second expert.” (noting that N.D. Ill. LR Form 16.1.1, fn7
provides that “[o]nly one expert witness on each subject for each
party will be permitted to testify absent good cause shown.”)

20



tipped against sealing documents because the privacy interest
involved, which were significant, could be protected by
redaction).

Thus, courts have found that the public’s interest in
accessing proceedings is trumped by a litigant’s request for
privacy where: 1) the litigants were not public
figures/officials; 2) the suit did not involve issues of
widespread public concern; and 3) the litigants sufficiently
demonstrated that disclosure of their estate planning
information, which was beyond the scope of the litigation, would
anger their potential heirs and cause them harm and
embarrassment. See, e.g., United States v. Gaynor, No. 01 C
4753, 2002 WL 411608, at*1-2 (N.D. Ill. Mar. 15, 2002).

Initially, the Court notes that it has already determined
that testimony regarding the negotiation and contents of the 1999
CBA is inappropriate, because such a claim is barred by the
applicable statute of limitations. Because the issue of the 1999
CBA is already off limits, the request for a protective order
covering such information is moot.

Next, the Court finds that the Union’s request that
Plaintiffs be barred from presenting expert testimony concerning
the Union’s investigation and processing of grievances should be
denied. The Union has failed to demonstrate good cause for

suppressing this testimony. The Union does not argue that its

22



communications with defense counsel, or her professional
relationship with Plaintiffs’ counsel.
D. Professor Bruno’s Testimony

Plaintiffs also seek to introduce the expert testimony of
Professor Robert Bruno. Once again, Defendants do not challenge
Professor Bruno’s substantial credentials, his methodology, or
the reliability of his report. Instead, Defendants seek to bar
his testimony on the grounds that Professor Bruno is simply
seeking to displace well established legal standards with his
opinions.

Plaintiffs argue that Professor Bruno’s report and testimony
would assist the jury in “understanding the standards of care
used by unions throughout the industry in representing its
members, explaining contract negotiation, grievance and
investigation and preparation, and administration of those
grievances.” Pls’ Resp. to Def’s Mot. in Limine at p. 3.
Professor Bruno’s expert report, however, divides his proposed
testimony into three separate categories: 1) the quality of the
negotiated grievance procedure; 2) the Union’s investigation and
preparation of grievances; 3) the Union’s administering of the
grievances. The Court will first discuss Professor Bruno’s
opinion with regard to the quality of the negotiated grievance
procedures, and then analyze the admissibility of his remaining

opinions.

17



which is not amenable to the scientific method- i.e.
nonscientific expert testimony -- should not be scrutinized
under the standards set forth in Daubert. See United States v.
Hall, 974 F. Supp. 1198, 1200 (N.D. Ill. 1997) (discussing
cases)?. Although the Seventh Circuit has ruled that Daubert is
appropriate for evaluating the admissibility of all types of
expert testimony, Tyus v. Urban Search Mgmt., 102 F.3d 256, 263-
64 (7** Cir, 1996), Daubert is applicable “only in the general
sense that all expert testimony must be subjected to the
strictures of Rule 702 ‘to be sure that the person possess
genuine expertise in a field and that her court testimony adheres
to the same standards for intellectual rigor that are demanded
in [her] professional work.’” Hall, 974 F. Supp. at 1202 quoting
Tyus, 102 F.3d at 263.

In the instant case, the Union does not challenge Dr.

Schmall’s experience, reliability’, or methodology, but instead

1 The Hall court considered the following factors when

evaluating whether to admit “social science” expert testimony: 1)
determining the reliability of the methods that scientists in

that field make their findings; 2)whether the expert published
and/or relied upon scholarly articles subject to peer review; 3)
the longevity of the particular field, the amount of literature
and peer review on the topic, and the general consensus as to

what the data means; and 4)the expert’s contribution to the field
about which he or she is testifying. As noted above, however,
Defendants do not challenge Plaintiffs’ experts on these grounds. _

2? Defendants do argue bias on the part of Professor
Schmall, but the bias is based upon her prior interaction(albiet
brief) with defense counsel and her prior professional
relationship with Plaintiffs’ counsel. Defendants do not,

9



establish probability of a fact. Id. at 774. An example of the
breadth of Rule 401's definition is that evidence which supports
a provable fact will never be irrelevant. Id. However, any
evidence that does not fit into this broad definition is
irrelevant and will not be admissible at trial. Fxp. R. Evip.
402.

3. Rule 403

Rule 403 provides that evidence, though relevant, "may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” Ferp.
R. Evip. 403. An example of when evidence should be excluded
occurs where it is likely to induce a jury decision on an
emotional, as opposed to a legal, basis. Frep. R. Evip. 403
advisory committee's note. In deciding whether or not to exclude
evidence based on this Rule, consideration should be given to the
possible effectiveness of a limiting instruction. Fep. R. Evip.
403 advisory committee's note.

DISCUSSION

The Union has filed two motions: a Motion in Limine, seeking
to exclude expert testimony, and a Motion for a Protective Order,
seeking to keep confidential certain discovery materials. The

Court will discuss each Motion in turn.



1. Rule 702

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence, “a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an
opinion or otherwise.” Fed. R, Evid. 702. Courts should only
admit expert testimony where “1) the testimony is based upon
sufficient facts or data; 2) the testimony is the product of
reliable principles and methods; and 3) the witness has applied
the principles and methods reliably to the facts ...” Id.

2. Rules 401 & 402

Relevant evidence is defined by the Federal Rules as
"evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
Fep. R. Evip. 401. This is a broad definition which allows
background evidence to be "universally offered and admitted as an
aid to understanding." FEp. R. Evip. 401 advisory committee's
note.

Relevant evidence contains two components: materiality and
probative value. McCormick, §185 at 773. Material evidence is
that evidence which helps prove a matter at issue. Id.
Probative value is the material evidence's ability to establish

the proposition it is offered to prove, and that which helps



In opining on the quality of the negotiated grievance
procedure, Professor Bruno dissects the 1999 CBA, negotiated
between the Union and Randall. Professor Bruno states that the
CBA is deficient in four critical respects, and that these
deficiencies undermined the legitimacy of the grievance process.
However, any claim that the 1999 CBA is so deficient as to
constitute a breach of the Union’s duty of fair representation is
time barred; the six month statute of limitations for such
allegations passed in December of 1999, DelCostello v. Int’l
Brotherhood of Teamsters, 462 U.S. 151, 172 (1983).

The Court rejects Plaintiffs’ contention that Professor
Bruno’s testimony on this point should be admitted because it
“illuminates a pattern of conduct on behalf of [the Union]
amounting to its failure to represent its members,” Pls’. Resp.
to Defs’. Mot. at 3, as a weak attempt to circumvent the
applicable statute of limitations. If Plaintiffs believed the
CBA was so deficient as to constitute a failure to represent,
they should have brought the claim in a more timely manner‘.
Plaintiffs do not allege or argue that the Union or Randall
improperly withheld the CBA from them, or concealed those

portions of the CBA that Professor Bruno highlights as deficient,

4 The Court acknowledges that Plaintiffs were hired after
the CBA was negotiated. Nevertheless, Plaintiffs presumably did
not object to the CBA when they accepted employment with Randall,
nor within six months after beginning their employment. with
Randall.

18



union’s duty of fair representation.” Pl.s’ Resp. to Def. Mot.
in Limine at p 3.

The admissibility of expert testimony in federal court is
governed by principles announced by the Supreme Court in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In
Daubert, the Supreme Court emphasized the district court’s
gatekeeper role in deciding whether to admit scientific evidence,
setting forth a nonexhaustive list of factors that make
scientific evidence sufficiently reliable for admission.
Specifically, the Court stated that evaluating falsifiability,
peer review, rate of error, and general acceptance in the
scientific community would assist a court in determining whether
expert testimony is admissible under Federal Rule of Evidence
702. Id. at 593-94.

In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the
Court applied its Daubert analysis to nonscientific evidence.

The Kumho Court explained that the test for reliability for
nonscientific experts is “flexible,” stating, rather cryptically,
that “Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.”

The Supreme Court’s directives in Daubert and Kumho have
generated confusion over what reliability standards courts should
employ when deciding whether to admit nonscientific expert

testimony. A number of courts have found that expert testimony



Defendants’ Motion for a Protective Order is peppered with
references to Local 150 and “Local 150's expert witness,” Dr.
Bruno. At oral argument, counsel reluctantly admitted that this
lawsuit is being funded by Local 150.

The Union complains that Local 150 has been unrelenting in
its effort to unseat the Union at Randall’s facilities, noting
that Local 150 complained of unfair labor practices (ie, that
Randall and the Union had coerced intimidated employees into
voting for the Union and against Local 150) on two occasions. On
both occasions, the NLRB found that there was no evidence
supporting Local 150's claims, and upheld the Union’s election
victory. The Union fears that Local 150 will attempt to
manipulate this litigation in an effort to access confidential
information about the Union, and use that information against the
Union in the next election.

The Court finds that the Union’s concerns appear to be well-
founded. Unfortunately, however, the Union has failed to
identify which documents, or what category of discovery contains
confidential information or trade secrets worthy of protection.
The Court declines to issue a blanket order of protection,
covering all discovery in this case, as the Union has certainly
not demonstrated that any or all of its disclosures warrant such
protection. The Court recommends denying the Union’s Motion

without prejudice, and permitting the Union to identify the

24



+
Minute Ordgr Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judg Sitting Judge if Other
_ Magistrate Judge James Holderman than Aselgned Judge Arlander Keys
CASE NUMBER 02 C 6756 DATE 8/22/2003
CASE Christopher Pease vs. Production Workers of Chicago etal
TITLE
[ln 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

Q@) Oo Answer brief to motion due . Reply to answer brief due,

(4) o Ruling/Hearing on set for at

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

(6) o Pretrial conference[held/continued to] {set for/re-set for] on set for at .

(7) im Trial[set for/re-set for] on at

(8) im (Bench/Jury trial] [Hearing] held/continued to at

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

COFRCP4(m) CLocalRule 41.1 OFRCP41(a\(1) OO FRCP41(a)(2).

(10) Ml [Otherdocketentry] Enter Report and Recommendation. The Court Recommends that Defendants’
Motion in Limine (#37) and Motion for Protective Order (#32) be Granted in Part and Denied in Part.
Discovery closes on 8/25/03. All matters relating to the referral of this action having been resolved, the
case is returned to the assigned judge.

(11) @ {For further detail see order attached to the original minute order.]

‘No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

VY | Docketing to mail notices.
Mail AO 450 form. _
V7 | Copy to judge/magistrate judge. iunog {onsid sn
ac couvoom mils] Hd 22 MW €0
initia’:
_ ON|LSWIOO WobsGidalepeived in
L = {central Clerk's Office

Document

a |


The Court acknowledges that parties frequently rely upon
expert testimony in standard of care cases. Expert testimony is
essentially required in legal malpractice cases, see, American
Int’l Adjustment v. Galvin, 86 F.3d 1455, 1461 (7* Cir. 1996)
(“Expert testimony is crucial for defending as well as
prosecuting a legal malpractice action”), and few parties go to

“trial in medical malpractice cases without relying upon the
services of an expert witness. Sullivan v. Edward Hospital, 781
N.E.2d 649 (I11. App.2d 2002) (noting that medical malpractice
suits require the plaintiff to establish the standard of care
through the testimony of a medical expert.)

However, legal or medical malpractice claims are far more
complex than the issues raised ina breach of fair representation
case, A union representative is frequently a grievant's
coworker, and is not held to the same standards as an attorney.
“A breach of the duty of fair representation occurs only when a
union’s conduct toward a member of the collective bargaining unit
is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes,
386 U.S. 171, 190 (1967). See also, Air Line Pilots Assoc. v.
O’Neill, 111 S.Ct. 1127, 1130 (1991) (conduct breaching the duty
of fair representation must be “so far outside a ‘wide range of
reasonableness’” so that the action is arbitrary or irrational.)
Mere negligence or ineptitude is not enough. United Steelworkers

of America v. Rawson, 495 U.S. 362, 372 (1990).

11



insists that the topic on which she will testify is so basic and
straightforward, that expert testimony is simply not required to
assist the jury in understanding the law. The Union points to
Plaintiffs’ argument in opposing Defendants’ request to appoint a
Special Master, where Plaintiffs conceded that their

“complaints involve common contract disputes ... . Such
allegations are hardly too complicated for a jury to comprehend.
Indeed, garden variety employment issues and [sic] likely one of
the areas most jurors have experience with and can easily
comprehend.” Pls. Resp. to Defs. Motion for App’t of a Special
Master at pp 2-3.

Notably, neither at oral argument nor in their briefs were
Plaintiffs able to cite even a single case in which a court found
that expert testimony on a union’s duty of fair representation
was necessary or even useful to assist a jury. The Court’s own
independent research uncovered precious few cases where such
testimony was admitted, and the reasoning of these courts was far
from overwhelming. See, e.g., Bowen v. United States Postal
Service et al., 642 F.2d 79, 82 (4% Cir. 1981) rev’d on other
grounds (ruling that admitting expert testimony on the standards
governing a union’s duty of fair representation was not
reversible error, and stating that “even if error, it would be

but harmless.”)

however, argue that Professor Schmall’s report evidences bias.

10



I. MOTION IN LIMINE

The Union argues that the Court should prohibit Professor
Lorraine Schmall and Professor Robert Bruno from testifying about
Standards governing a union’s duty of fair representation, and
other related matters.
A. Standard for Motion in Limine

"In general, federal district courts have the power to
exclude evidence in limine pursuant to their inherent authority
to manage trials." Farley v. Miller Fluid Power Corp., No. 94 C
2273, 1997 WL 757863, at *1 (N.D. Ill. Nov. 24, 1997) (citing Luce
v. United States, 469 U.S. 38, 41 n.4 (1984)). A motion in
limine may be used to insulate the jury from potentially harmful
or unfairly prejudicial evidence. McCormick on EVIDENCE, §52 at 202-
203 (4th ed. 1992). However, a court is limited to excluding, in
limine, only such evidence that is clearly inadmissible on all
possible grounds. Farley, 1997 WL 757863, at *1. As a result,
“when admissibility determinations are not clear, evidentiary
rulings must be deferred until trial so questions of foundation,
relevancy, and prejudice can be resolved in their proper
context." Marlow v. Winston & Strawn, No. 90 C 5715, 1994 WL
424124, at *1 (N.D. Ill. Aug. 11, 1994).
B. Professor Schmall’s Expert Testimony

Plaintiffs seek to introduce the testimony of Professor

Lorraine Schmall regarding “the various factors relevant to a



II. PROTECTIVE ORDER

The Union also moves for a protective order pursuant to
Federal Rule of Civil Procedure 26(c) (4). The Union asks that 1)
Plaintiffs be barred from inquiring about, or offering expert
testimony on the topic of, the negotiation of the 1999 CBA; 2)
that Professor Bruno be barred from testifying about the Union’s
handling of Plaintiffs’ grievances; and 3) Plaintiffs be barred
from disclosing the Union’s trade secret information to Local
150, which employs Plaintiffs’ attorneys as in-house counsel.

“As a general proposition, pretrial discovery must take
place in. . . public unless compelling reasons exist for denying
the public access to the proceedings.” Jepson, Inc. v. Makita
Elec. Works, Ltd., 30 F.3d 854, 858 (7*" Cir. 1994). Federal
Rule of Civil Procedure 26(c) permits courts to issue protective
order only “for good cause shown.” Fed. R. Civ. P. 26(c). In
determining whether good cause exists, courts balance the
public’s interest in having access to the proceeding against the
litigants’ property and privacy interests. Citizens First Nat’l
Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7
Cir. 1999). “When the probative value of the information is
significant and the privacy interest in the material can be
protected by redaction, there is a presumption in favor of
discovery.” Arenson v. Whitehall Convalescent and Nursing Home,

Inc., 161 F.R.D. 355, 358 (N.D. I11. 1995) (finding that balance

21



Once again, the Union defeated Local 150 and was certified by the
NLRB as the Randall employees’ representative.

Following the election, Randall laid off or terminated three
of the Plaintiffs. Plaintiffs complained that Randall took the
adverse job actions in retaliation for Plaintiffs’ open support
of Local 150. Plaintiffs filed grievances with the Union, and
sought the Union’s support in pursuing their grievances.
Plaintiffs allege that the Union failed to pursue their
grievances in accordance with the terms of the CBA and breached
its duty of fair representation to Plaintiffs.

PROCEDURAL HISTORY

On September 20, 2002, Plaintiffs, with the assistance of
Local 150, filed suit against Defendants, alleging breach of
contract against Randall, and breach of the duty of fair
representation against the Union. The case was assigned to Judge
James F. Holderman. Defendants filed a joint motion to dismiss,
pursuant to Federal Rules of Civil Procedure 12(b) (1) and
12(b) (6), arguing that the NLRB had exclusive jurisdiction over
Plaintiffs’ claims, and that Plaintiffs had failed to state
claims upon which relief could be granted.

Judge Holderman dismissed Plaintiffs’ claims relating to
Section 8 of the National Labor Relations Act (the “NLRA”), which
prohibits employers from interfering with restraining or coercing

employees in the exercise of their NLRA rights. State and



representation. See Garcia, 58 F.2d at 1176 (no breach where
union did not interview or present the exculpatory testimony of
an eyewitness).

A review of Professor Schmall’s expert witness report
further bolster’s the Court’s conclusion. Professor Schmall
devotes nearly 15 pages of her 20 page report to setting forth
blackletter caselaw on a union’s duty of fair representation.
Less than one page in the report discusses the Union’s (alleged)
deficiencies in this particular case, and it does so in very
general and conclusory terms. The subject of Professor Schmall’s
testimony would be more properly conveyed to the jury through
jury instructions. See generally, Nieves-Villanueva v. Soto-
Rivera, 133 F.3d 92, 99-101 (1%* Cir. 1997) (the judge, not an
expert should instruct the jury as to the applicable law).
Therefore, the Court finds that Professor Schmall’s report and
testimony should not be admitted.

C. Professor Schmall’s Alleged Bias

The Union insinuates that Professor Schmall should be
prohibited from testifying, because of her prior communications
with defense counsel and because of her professional relationship
with Plaintiffs’ counsel. Because the Union devotes considerable
effort to the topic, the Court will address the issue, despite
its prior finding on the inadmissibility of Professor Schmall’s

testimony.

14


Notwithstanding, Professor Schmall forwarded her resume to Mr.
Malloy on March 6, 2003, and expressed her interest in “the
possibility of working with [Mr. Malloy.]” On. March 14, 2003,
Mr. Malloy informed Professor Schmall that her services would not
be required.

Under these circumstances, the Court finds that
disqualification would not be warranted. The Union has not
presented any evidence that communications regarding the
strengths and weaknesses of Defendants’ case took place, or that
it disclosed any confidential communications to Professor
Schmall. While the Court is troubled by Mr. Malloy’s insinuation
that Professor Schmall intentionally misled him into believing
that expert testimony was not required in this matter, the Union
does not advance this as a basis for disqualifying Professor
Schmall. Similarly, although the Union suggests that Professor
Schmall’s former professional affiliation with Plaintiffs’
counsel is further evidence of her bias’, the Union has not
demonstrated that Professor Schmall’s report is improper or
biased. Therefore, if the Court were to have determined that
Professor Schmall’s testimony would have assisted the jury, it

would not have disqualified her testimony based upon her

3. Professor Schmall previously worked as an attorney for
the law firm for which Plaintiffs’ counsel worked prior to their
employment as in-house counsel for Local 150.

16



RELEVANT BACKGROUND FACTS

Randall is an Illinois corporation engaged in both the
wholesale and retail rental, sale, and service of aerial lift and
other construction equipment. Randall has facilities located in
Elmhurst, Illinois and Portage, Indiana.

The Union is a labor organization, which represents heavy
equipment operators, and other affiliated employees, that service
aerial lift and heavy equipment employers throughout northwest
Indiana, northern Illinois, and northeast Iowa. Although the
Union has represented Randall employees for years, the
International Union of Operating Engineers, Local 150 (“Local
150") sought to organize the Randall employees and become their
exclusive bargaining representative on more than one occasion.

In 1999, Local 150 challenged the Union for exclusive
representation of the Randall employees, and lost the election by
an 8 to 1 margin. The National Labor Relations Board (the
“NLRB”) certified the Union as the Randall employees’ exclusive
bargaining representative. Shortly thereafter, Randall and the
Union negotiated a collective bargaining agreement (“CBA”), which
was executed on June 18, 1999.

In February of 2002, Local 150 sought to oust the Union and
become the exclusive representative of the Randall employees.
Plaintiffs were all employed by Randall at the time, and each

openly supported Local 150 in its campaign against the Union.



confidential/trade secret information that it seeks to protect.
In such event, an order could be fashioned whereby Plaintiffs’
counsel (Local 150's counsel) would be prohibitted from sharing
such information with Local 150.
CONCLUSION

For the reasons set forth above, the Court recommends
granting the Union’s Motion in Limine with respect to Professor
Schmall’s testimony, and granting in part and denying in part the
Motion in Limine to bar Professor Bruno's testimony. In
addition, the Court recommends denying the Union’s Motion for a

Protective Order without prejudice.

DATED: August 22, 2003 RESPECTFULLY SUBMITTED:

QQousa kered

ARLANDER KEYS
United States Magistrate Judge

Counsel have ten days from the date of service to file objections
to this Report and Recommendation with the Honorable James F.
Holderman. See Fep. R. Civ. P. 72(b); 28 U.S.C. § 636(b) (1).
Failure to object constitutes a waiver of the right to appeal.
Egert v. Connecticut Gen. Life Ins. Co., 900 F.2d 1032, 1039 (7th
Cir. 1990).

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

CHRISTOPHER PEASE, VINCE VITI
WILLARD BARGE, and MIKE GEAR,

Plaintiffs, 02 C 6756

vs. Judge James F. Holderman
PRODUCTION WORKERS OF CHICAGO
AND VICINITY LOCAL 707, RANDALL
INDUSTRIES, INC. AND BANDE

Magistrage Judge

)
)
)
)
)
)
)
)
) Arlander Keys
)
RENTS OF INDIANA,

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Defendants. | )

POCKETED

03
TO: THE HONORABLE JAMES F. HOLDERMAN AUG 2 52

UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION

Currently before the Court are Defendant Production Workers
of Chicago and Vicinity Local 707's (the “Union”) Motion in
Limine and Motion for a Protective Order. Plaintiffs, all
current or former employees of Randall Industries, Inc. or
Randall Rents of Indiana (collectively “Randali”), allege that
the Union breached its duty of fair representation in handling
their grievances against Randall. In support of this claim,
Plaintiffs seek to introduce expert testimony to illuminate the
Union’s duty in this regard. For the reasons set forth below,
the Court recommends that Defendants’ Motions be granted in part

and denied in part.

fy


Although “{t]he union must provide ‘some minimal
investigation of greivances,’ . . .only an egregious disregard
for union members’ rights constitutes a breach of the union’s
duty.” Garcia v. Zenith, 58 F.3d 1171, 1176 (7** Cir. 1994).
Thus, a breach may occur where the union fails to follow its own
procedures and inexplicably accepts an employer’s position. See
Salmanis v. American Postal Workers Union, 2001 WL 219650, at *5
(N.D. Ill. Mar. 6, 2001). Even Plaintiffs’ own expert, Professor
Schmall, explains that breaches of the duty of fair
representation are most typically found when the accused union
failed to make any investigation whatsoever, neglecting to even
interview the complaining union member. See Prof. Schmall’s
Witness Report at pp. 14-17.

The question becomes, then, whether Professor Schmall’s
opinion on the applicable standard of care is useful to the jury.
By the slightest of margins, the Court finds that Professor
Schmall’s testimony would not be useful in helping the jury
understand whether the Union’s conduct was so far outside a wide
range of reasonableness as to be actionable. Judge Kennelly’s
discussion in Dahlin v. Evangelical Child and Family Agency, No.
01 C 1182, 2002 WL 31834881 (N.D. Ill. Dec. 18, 2002) is
instructive.

In Dahlin, the plaintiffs, who were adoptive parents, sought

to introduce expert testimony that an adoption agency’s workers

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A party seeking to disqualify an expert, based on that
party’s prior relationship with the expert, bears the burden of
proving both that it reasonably believed that a confidential
relationship existed and that it disclosed confidential
information to the expert. Popular, Inc. v. Popular Staffing
Serv. Corp., 239 F. Supp.2d 150, 152 (D. P.R. 2003). In
determining whether the party disclosed confidential information
to the expert, a court should look to whether the party and the
expert discussed trial strategies and the weaknesses on each side
of pertinent issues, the role of the expert witness in the
litigation, and anticipated defenses. Id. Disqualification is
not appropriate when “‘the expert met but once with counsel, was
not retained, was not supplied with specific data relevant to the
case, and was not requested to perform any services.’” Id.
quoting Koch Ref Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178,
1181 (5% Cir. 1996).

In the instant case, the Union’s counsel, Mr. James W.
Malloy, contacted Professor Lorraine Schmall on March 4, 2003, to
discuss the possibility of Professor Schmall serving as the
Union’s expert witness in this case. In his affidavit, Mr.
Malloy contends that Professor Schmall thought that an expert’s
testimony would not be necessary in a duty of fair representation
case- responding “What for?,” presumably to Mr. Malloy’s request

for her expert opinion on a union’s duty of fair representation.

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