Free Motion in Limine - District Court of Delaware - Delaware

Case 1 :04-cv-01565-SLR Document 183 Filed 08/20/2007 Page 1 of 4
A IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE A
ARLIN M. ADAMS, Chapter ll Trustee of
the Post-Confmnation Bankruptcy Estates of
CORAM HEALTHCARE CORPORATION,
a Delaware Corporation, and of CORAM
INC., a Delaware Corporation, Case No. 04-1565 (SLR)
Plaintiffs, V
v.
DANIEL D. CROWLEY, DONALD J.
Al\/IARAL, WILLLAM J. CASEY, L. PETER
SMITH, and SANDRA L. SMOLEY, ‘
Defendants.
DEFENDANT’S MOTION IN LIMINE NO. 7 TO EXCLUDE
EVIDENCE OF ARLIN ADAMS’S JUDICIAL BACKGROUND
August 20, 2007 Jeffrey C. Wisler — #2795
Christina M. Thompson - #3976
Marc J. Phillips - #4445
CONNOLLY BOVE LODGE & HUTZ LLP
The Nemours Building
1007 N. Orange Street
Wihnington, DE 19801
(302) 658-9141
..and..
John W. Keker
Elliot R. Peters
R. James Slaughter I
KEKER & VAN NEST, LLP
710 Sansome Street
‘ ‘ San Francisco, CA 94111
(415) 391-5400
\ Attorneys for Defendant DANIEL D. CROWLEY

Case 1 :04-cv-01565-SLR Document 183 Filed 08/20/2007 Page 2 of 4
I. INTRODUCTION
" The Court should exclude evidence of the Plaintiffs judicial background, because it is
irrelevant to the claims at issue in this trial and will only create a severe risk of unfair prejudice.
The jury must determine if Crowley breached fiduciary duties owed to Coram. Evidence
showing that Adams served as a judge will not shed light on this issue, and is therefore irrelevant
under Rule 702 of the Federal Rules of Evidence. Furthermore, this evidence will likely cause
the jury to give undue weight to Adams’s testimony, and would create an improper basis for their
decisions. The probative value of this evidence is minimal, and it poses the risk for substantial
detrimental effects. Crowley therefore moves the Court to exclude any evidence of Adams’s
judicial background and prohibit the Plaintiff Hom making any mention thereofl
II. BACKGROUND `
The central issue in this case is whether Crowley breached his fiduciary duty to Coram
causing damages. In November 1999, Coram hired Crowley as Chief Executive Ofhcer. The
Plaintiff in this case is Coram’s Chapter ll bankruptcy trustee, Arlin M. Adams. Adams is a
retired federal judge who served on the United States Court of Appeals for the Third Circuit for
seventeen years. Adams alleges that Crowley breached his fiduciary duties to Coram. Crowley
anticipates that Adams will seek to mention or introduce irrelevant, confusing, and prejudicial
evidence of his extensive judicial background at trial.
III. ARGUlV[ENT
"Evidence which is not relevant is not admissible? Fed. R. Evid. 402. Under Federal
Rule of Evidence 401, proffered evidence is only relevant if it has "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." Fed. R. Evid. 402. Moreover, the Court
p may exclude any evidence if its probative value is substantially outweighed by the danger of
1 unf`air prejudice. See Fed. R. Evid. 403.
I Specifically, Adams should not be referred to as "Judge" or "Your Honor" in front of the jury,
but rather as "Mr. Adams” or "Trustee" and counsel for Adams should not be permitted to elicit
Adams’s judicial background on examination of Adams or any other witness.
% 1

Case 1 :04-cv-01565-SLR Document 183 Filed 08/20/2007 Page 3 of 4
Adams’s judicial background has no bearing on any fact of consequence in this case. lt
does not shed light on whether Crowley timely made the requisite disclosures to Coram’s Board
about his relationship with Cerberus, whether the Board adequately investigated Crowley’s
employment with Cerberus when he was hired, or whether any action by Crowley caused harm
- to Coram. It has nothing to do with causation or damages. Adams can lay a proper foundation
for his testimony at trial without reference to his service on the Court of Appeals. Because
evidence of Adams’s judicial background does nothing to make the alleged breach of Hduciary
duty any more or less probable, it should be excluded. See Fed. R. Evid. 401.
This evidence should also be barred because it creates a substantial risk of confusion and
unfair prejudice. "[Federal Evidence Rule] 403 ensures that juries are not presented with
evidence that is far less probative than it is prejudicial." Coleman v. Home Depot, Inc., 306 F.3d
1333, 1344 (3d Cir. 2002). Unfair prejudice results when a jury "base[s] its decision on
something other than the established propositions in the case." Zenith Radio Corp. v. Matsushita
Elec. Indus. C0., 505 F. Supp. 1125, 1161 (D. Pa. 1980), a]Td in part, rev ’d in part, 723 F.2d
238 (3d. Cir. 1983). See also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence §403.04[l][b] at 403-37 (2d ed. 2006). If the jury is aware of Adams’s judicial
background, his statements will bear an inde1ible——and unfair--—judicial imprimatur. Adams’s
testimony will take on an improper aura of authority and reliability, tempting the jtuy to rely on
his judgment of the facts, rather than their own. Such undue reliance is an improper basis for
decision, and creates a severe risk of unfair prejudice.
It is for this very reason that courts bar evidence from prior judgments and opinion
testimony from judges. Courts have reasoned that judicial Endings of fact admitted as evidence
at trial can create a serious danger of unfair prejudice simply "by virtue of their having been
made by a judge.” Zenith, 505 F. Supp. at 1186; see also Blue Cross and Blue Shield v. Philip
Morris, Inc., 141 F.Supp.2d 320, 324 (E.D.N.Y. 2001) (holding that opinion testimony of a
Canadian judge was "unfair" and "inadn1issible," because there was "no practical way [for the
witness] to defend against a judge’s assessments of credibility.")
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Case 1 :04-cv-01565-SLR Document 183 Filed 08/20/2007 Page 4 of 4
Moreover, the Trustee is not acting as a judge in this case. This Court will serve as the
judge in this case, and there should be no room for confusion about who is the judge and who is
simply the Trustee —— a party with an interest in the outcome of the case.
The risk of unfair prejudice is especially great in a legally and factually complex breach
of fiduciary duty case. Because juries in such cases, unlike in a classic tort case such as personal
injury, typically cannot rely on personal experience and norms to guide their decisions, they are
even more likely to improperly rely on a judge’s interpretation ofthe facts. Because evidence of
Ad&111S’S judicial background does not help the jury decide the relevant facts in this case, and "its
probative value is not worth the problems that its admission may cause," this evidence should be
excluded. Coleman, 306 F.3d at 1343.
IV. CONCLUSION I
For the reasons set forth above, the Court should grant this motion in limine and exclude
any evidence regarding Adams’s judicial background and prohibit any mention thereof
Dated: August 20, 2007 CONNOLLY BOVE LODGE & HUTZ LLP
. » »· tix ._,,,.._ , f , ».»; ... /.»r i ¢ -··r’— I
Jeffrey C. Wisler — #2795 V ¤‘’
Christina M. Thompson - #3976
Marc J. Phillips - #4445
The Nemours Building
1007 N. Orange Street
Wilmington, DE 19801
(302) 658-9141
..and.
John W. Keker
Elliot R. Peters
R. James Slaughter
KEKER & VAN NEST, LLP
710 Sansome Street
7 ` San Francisco, CA 94111
(415) 391-5400
1 Attorneys for Defendant
DANIEL D. CROWLEY
#55946lvl 4
l 3