the trial date. Plaintiff has clearly satisfied this rule by filing its list of proposed expert witnesses on April 3, 1997 (Item 64).
Consequently, the court hereby grants plaintiff's motion (Item 59) permitting it to offer evidence of prejudice at trial, including, but not limited to, expert testimony.
II. Defendants' Motion Regarding Limiting Damages
Defendants filed a cross motion in limine seeking a determination that plaintiff is barred from claiming damages after October 31, 1995 (Item 67, pp. 16-18; Item 69, pp. 5-6). Plaintiff sold all of its interest in the subject building on October 31, 1995. Defendants argue that any damages that plaintiff may have sustained are cut off as to the date of the sale of the subject building. They assert that it is important to settle this damages issue in advance of the damages portion of the trial because the issue bears on (1) the quantum of proof that will be necessary at trial, and (2) the potential settleability of the case.
At oral argument, the parties agreed that it is not necessary to decide this motion at this time. The court instructed the parties at that time that it would consider their arguments on this issue if these issues remain relevant following the resolution of the liability phase of this action.
For the foregoing reasons, this court denies plaintiff's motion (Item 59) insofar as plaintiff seeks an order precluding defendants from asserting as a defense that plaintiff must establish actual prejudice due to the RTC's failure to repudiate the subject leases within a reasonable period. The court instructs the parties that prejudice is one indicia of the reasonableness or unreasonableness of the timing of the RTC's repudiation, not a condition precedent to recovery, as defendants argue. The court grants plaintiff's motion allowing it to offer evidence of prejudice at trial, including, but not limited to, expert testimony.
During its review of the issues and authority relating to the factors relevant to the reasonableness of the timing of the RTC's repudiation of the subject leases, the court queried whether the Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), restricts this court's power of review of the agency's action. The court hereby directs the parties to be prepared to present their positions as to whether and how Chevron applies to the present case.
The court declines to address defendants' cross motion (Items 67-68) in limine seeking a determination that plaintiff is barred from claiming damages after October 31, 1995, at this time. If these issues remain relevant following the court's determination of liability in this case, then the court will address them before the parties are scheduled to return for the damages phase.
JOHN T. CURTIN
United States District Judge
Dated: July 8, 1997