United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
matter is before the Court on DEFENDANT JELD-WEN, INC.'S
MOTION IN LIMINE NO. 9: TO EXCLUDE LAY WITNESS
TESTIMONY CONCERNING STEVES' FUTURE VIABILITY (ECF No.
553) . For the reasons set forth below, the motion will be
denied in part and denied in part subject to renewal at
trial, depending on the precise questions and the
& Sons, Inc. ("Steves") alleged that JELD-WEN,
Inc. ("JELD-WEN") violated Section 7 of the Clayton
Act when it acquired CraftMaster Manufacturing, Inc.
("CMI") in 2012. Compl. (ECF No. 5) (Under Seal)
¶Sl 175-78. To prevail on that claim, Steves must show
that "the effect of such acquisition may be
substantially to lessen competition." 15 U.S.C. §
18. Among other remedies, Steves seeks damages for future
lost profits as a result of the CMI acquisition, based on
evidence that JELD-WEN has given notice that it will not
renew the parties' 2012 long-term doorskin supply
agreement ("the Supply Agreement'') when that
contract expires in September 2021, leaving Steves without a
stable supply of doorskins.
asserts that its witnesses will testify to the following five
topics relevant to those issues:
1) "the critical importance of interior molded doorskins
to Steves' ability to manufacture interior molded doors;
2) the significance of Steves' interior molded door
business to Steves' business overall;
3) the witnesses' efforts to secure alternative sources
of doorskin supply for the period following termination of
Steves' Supply Agreement with JELD-WEN and the results of
4) the witnesses' expectations as to whether Steves will
be able to obtain a stable, reliable supply of interior
molded doorskins and the bases for these expectations; and
5) the harm that uncertainty regarding Steves' ongoing
ability to access a stable, reliable supply of interior
molded doorskins has caused and will continue to cause
PI. Opp. (ECF No. 618) (Under Seal) at 1-2. In addition,
Steves states that it "will present evidence from
non-party witnesses that will confirm that Steves will not
have a commercially viable source of interior molded
doorskins" when the Supply Agreement expires in 2021.
Id. at 3. JELD-WEN moves to exclude at trial any
opinions or testimony speculating that Steves will not remain
a viable business after the completion of the Supply
Agreement in September 2021, or that Steves will liquidate or
go out of business at that time.
primary argument is that the evidence it seeks to exclude is
lay witness opinion testimony that is inadmissible under
Federal Rules of Evidence 602 and 701. Rule 602 allows a
witness to testify about a particular issue "only if
evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter."
Similarly, under Rule 701, lay opinion testimony must be
"rationally based on the witness's perception"
and "not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702."
modern trend favors the admission of opinion testimony [under
Rule 701], provided that it is well founded on personal
knowledge as distinguished from hypothetical facts, "
and the opinion is offered "on the basis of relevant
historical or narrative facts that the witness has
perceived." MCI Telecomms. Corp. v. Wanzer, 897
F.2d 703, 706 (4th Cir. 1990) (internal quotations omitted).
As a result, "company officials may estimate future
profits or losses as a lay witness if the estimates are based
on personal experience." Sprint Nextel Corp. v.
Simple Cell Inc., 248 F.Supp.3d 663, 675 (D. Md. 2017)
(citing, inter alia, Lord & Taylor, LLC v.
White Flint, L.P., 849 F.3d 567, 575 (4th Cir. 2017));
accord Von der Ruhr v. Immtech Int'l, Inc., 570
F.3d 858, 862 (7th Cir. 2009) ("In the realm of lost
profits, lay opinion testimony is allowed . . . where the
witness bases his opinion on particularized knowledge he
possesses due to his position within the company.");
Nat'l Hispanic Circus, Inc. v. Rex Trucking,
Inc., 414 F.3d 546, 551-52 (5th Cir. 2005) ("Rule
701 does not exclude testimony by corporate officers or
business owners on matters that relate to their business
affairs, such as industry practices and pricing.");
see also Fed.R.Evid. 701, Committee Notes on
Rules-2000 Amendment ("[M]ost courts have permitted the
owner or officer of a business to testify to the value or
projected profits of the business, without the necessity of
qualifying the witness as an . . . expert." (citing
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153,