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June 12, 2002


The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge.


Plaintiff's travails throughout the six-year odyssey of this lawsuit have been well-documented. Plaintiff has repeatedly ignored this Court's deadlines, has filed numerous eleventh-hour motions, has identified and then withdrawn a succession of expert witnesses, and, in general, has exhibited a cavalier disregard for the deadlines and orders entered by this Court. With the instant motion in limine, filed on the eve of the retrial of Plaintiff's remaining claims, to exclude Defendant's expert witness, Plaintiff now seeks to gain an unfair advantage from the Court of Appeals' remand of this case on wholly different issues. Incredibly, this pending motion in limine was filed four years after this Court's deadline for the filing of in limine motions concerning expert witnesses had passed, and after several opportunities to object to this witness's qualifications in a timely manner had been ignored. Undeterred by this Court's previous warnings and sanctions, Plaintiff again attempts to disregard the deadlines established by Court Order in order to correct its prior defalcations. For the reasons set forth below, I conclude that Plaintiff's latest effort to circumvent this Court's deadlines must fail. Accordingly, I shall deny its motion in limine as untimely.


The facts giving rise to this lawsuit have been set forth in numerous published and unpublished opinions of this Court*fn1 and, therefore, will not be recounted in their entirety here. At its core, this lawsuit concerns an agreement ("Distribution Agreement"), between the Defendant, Sara Lee Hosiery ("Sara Lee") and the Plaintiff, Lithuanian Commerce Corporation, Ltd. ("LCC"), under which LCC would distribute L'Eggs pantyhose, manufactured by Sara Lee, in Lithuania.

During the term of the Distribution Agreement, Sara Lee made a charitable donation of L'Eggs pantyhose to countries neighboring Lithuania. This influx of L'Eggs pantyhose allegedly depressed LCC's sales and LCC threatened legal action against Sara Lee. In response, Sara Lee offered to provide LCC with a substantial quantity of L'Eggs pantyhose manufactured in Mexico at no cost, in exchange for a release of all claims LCC might have against Sara Lee. LCC accepted Sara Lee's offer and entered into a letter agreement memorializing these terms, ("Settlement Agreement"). LCC alleges that the Mexican pantyhose which Sara Lee provided pursuant to the Settlement Agreement were defective, and instituted suit against Sara Lee in this Court on April 29, 1996, alleging numerous causes of action, including contract claims, tort claims, and various New Jersey statutory claims.
Prior to the first day of trial, I excluded LCC's damages expert, Charles J. Cummiskey, because his report lacked the reliability required by Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and the Federal Rules of Evidence. A jury trial commenced on September 8, 1998. During the trial, LCC moved to amend the Joint Final Pretrial Order to expand the scope of testimony to be given by Laima Zajanckauskiene, in order to include projections of damages due to lost profits. I denied this motion in a Bench Opinion on September 23, 1998, because: (1) LCC had had ample opportunities to amend the Joint Final Pretrial Order, but had failed to do so; and (2) LCC could not demonstrate that it would suffer "manifest injustice" if the amendment were not allowed. See Lithuanian Commerce Corp. v. Sara Lee Hosiery, Civil Action No. 96-1949, bench op. at 7 (D.N.J. Oct. 5, 1998).
At the end of Plaintiff's case-in-chief, after eighteen days of trial, Sara Lee moved for judgment as a matter of law, pursuant to Fed.R.Civ.P. 50(a). I granted that motion, finding that: (1) LCC had not presented sufficient evidence regarding lost profits to permit a jury to award compensatory damages resulting from any of its causes of action, i.e., breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, breach of contract, common law fraud, tortious interference with prospective business relations, or a breach of the duty of good faith and fair dealing; (2) LCC had failed to prove that it was a franchisee of Sara Lee; and (3) the New Jersey Punitive Damages Act, N.J.S.A. § 2A:15-5.13 ("NJPDA"), precluded a jury from awarding punitive damages absent an award of compensatory damages. See Lithuanian Commerce Corp. v. Sara Lee Hosiery, 23 F. Supp.2d 509, [234 F. Supp.2d 509] 512 (D.N.J. 1998).
LCC filed a notice of appeal with the United States Court of Appeals for the Third Circuit on May 14, 1999. In an unreported decision, authored by Circuit Judge Garth, the Third Circuit affirmed my exclusion of Mr. Cummiskey's testimony regarding lost profits, affirmed my ruling precluding Ms. Zajanckauskiene from testifying as to lost profits, and affirmed my denial of LCC's motion to amend the Joint Final Pretrial Order. See Lithuanian Commerce Corp. v. Sara Lee Hosiery, Nos. 99-5347 & 99-5742, slip op., at 16 (3d Cir. Sept. 11, 2000). Because the Court of Appeals found that "there was competent evidence at trial which established damages arising from the alleged breach of the Settlement Agreement," the Third Circuit vacated the judgment in favor of Sara Lee and remanded this case for retrial in accordance with its opinion. The Parties disagreed as to the scope of issues on remand, therefore, I ordered briefing on that issue, and, in an unpublished Opinion and Order, dated February 13, 2002, I held that on retrial, LCC would be allowed to present evidence concerning the alleged breach of warranty under the U.C.C.; the alleged breach of implied warranties of merchantability and fitness for an intended purpose under the U.C.C.; the alleged breach of contract; the alleged common law fraud; the alleged tortious interference with contract and prospective business relations; and, the alleged violations of the covenant of good faith and fair dealing. Lithuanian Commerce Corp. v. Sara Lee Hosiery, Civil Action No. 97-1949, at 15 (D.N.J. Feb. 13, 2002).
Three weeks before the retrial of this case was scheduled to begin on June 24, 2002, LCC moved to exclude the reports and testimony of Sara Lee's expert, Dr. Tushar Ghosh. Sara Lee responded to LCC's motion in limine by letter dated June 3, 2002, asking this Court to "summarily deny LCC's motion as untimely and/or waived." I gave LCC an opportunity to file a letter brief explaining why its motion should not be so dismissed. Unfortunately, LCC's current motion necessitates a brief recitation of the acrimonious volley of motions in limine that has characterized the pretrial phase of this matter.
During the course of pretrial discovery in this case, LCC identified seven expert witnesses. It identified Dr. Byiung Jun Park as its first product expert. LCC subsequently withdrew Dr. Park and substituted Julius Hyman as its product expert. On February 28, 1997, at a hearing before Magistrate Judge Rosen, counsel for LCC represented that LCC had provided its final expert report, however, on July 3, 1997, LCC filed a motion in limine for leave to substitute its third expert witness, Dr. Bernard Miller, for Julius Hyman. The substitution was prompted by LCC's discovery that Mr. Hyman was unqualified to serve as an expert witness. Incredibly, LCC discovered this fact at Mr. Hyman's deposition. Judge Rosen granted LCC's motion to substitute Dr. Miller on July 24, 1997, conditioned on LCC's payment of the expenses incurred by Sara Lee as a result of LCC's erroneous identification of Julius Hyman as an expert and its last-minute substitution of Dr. Miller. Order, Lithuanian Commerce Corp. v. Sara Lee Hosiery, Civil Action No. 97-1949 (D.N.J. July 24, 1997) (Rosen, J.). Also on July 3, 1997, Sara Lee filed a motion in limine to exclude the reports and testimony of LCC's experts, pursuant to Fed.R.Evid. 702 and Daubert.
The Joint Final Pretrial Order was filed on September 5, 1997. It provided, inter alia, that: (1) "[a]ny prior Scheduling Order of the Court concerning experts is applicable to this action and the directives of the Scheduling Order shall govern expert testimony in the case;" (2) "no opposing counsel shall be permitted to question the qualifications of the expert unless the basis of the objection is set forth in this Final Pretrial Order." Joint Final Pretrial Order at 119. On September 5, 1997, Judge Rosen also extended the deadline for Daubert motions, due to the rancor surrounding the qualifications of each side's expert witnesses, but stressed that "[a]ll motions in limine shall be filed no later than October 1, 1997, or they will not be heard." Letter from Hon. Joel B. Rosen to Gregory D. Saputelli, Esq. and Carl W. Hittinger, Esq., dated Sept. 5, 1997.
On October 1, 1997, LCC filed a motion to limit the scope of the reports of Sara Lee's expert, Dr. Tushar Ghosh, insofar as they relied upon reports filed by LCC's withdrawn expert witness, Julius Hyman. I note that LCC's current motion in limine to bar Dr. Ghosh's testimony "recycles" many of the same arguments that LCC made in its motion of October 1, 1997. Although it could have done so, LCC did not challenge the admissibility of Dr. Ghosh's testimony, pursuant to Fed.R.Evid. 702 and Daubert in its October 1, 1997 motion. In an Opinion and Order, dated December 4, 1997, Judge Rosen, inter alia, dismissed as moot LCC's motion to limit the scope of Dr. Ghosh's reports. That decision was never appealed to this Court or the Court of Appeals.
LCC now attempts to leverage the Third Circuit's remand decision which concerned wholly unrelated matters in order to mount a Daubert challenge against Dr. Ghosh, which it could have, but failed to make prior to the first trial. This motion reflects LCC's general tendency to attempt to rectify situations of its own making after the expiration of a Court-ordered deadline. Although I granted Sara Lee's Rule 50 motion prior to the presentation of its case to the jury, LCC was clearly on notice that Sara Lee intended to use Dr. Ghosh as an expert witness and has had numerous opportunities to object to his qualifications. Dr. Ghosh is identified as an expert witness in the Joint Final Pretrial Order. Dr. Ghosh submitted two expert reports, was extensively deposed on those reports, and, testified at the Daubert hearing conducted for LCC's expert, ...

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