Free Uncategorized - District Court of Colorado - Colorado

Case 1:04-cv-01881-WYD-BNB

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Filed 07/30/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-1881-WYD-BNB CHARLES M. KOVACS, CHRISTINE H. BUKALA, DANNY M. TRAMMELL, ROBERT C. McGRATH, and JOSEPH J. RAGUSA, Plaintiffs, v. THE HERSHEY COMPANY, Defendant. HERSHEY'S REPLY IN SUPPORT OF MOTION IN LIMINE REGARDING PRIOR TEXAS PROCEEDING AND PRIOR PARTIES Defendant, The Hershey Company ("Hershey"), respectfully submits the following reply in support of its Motion in Limine Regarding Prior Texas Proceeding and Prior Parties (the "Motion"). For the reasons set forth below, Plaintiffs' response to the Motion only bolsters Hershey's request for an order in limine barring introduction of evidence regarding (a) the claims asserted against Hershey in Ott v. Hershey Foods Corp. (the "Texas Case"); (b) the claims of the three former plaintiffs in this case, John J. Montagne, John T. Leger, and Dean R. Schleppi (collectively, the "Prior Plaintiffs"); and (c) discovery taken in or pleadings filed in the Texas Case.

Case 1:04-cv-01881-WYD-BNB

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ARGUMENT I. THE COURT SHOULD LIMIT THE MASSIVE AMOUNTS OF "ME, TOO" EVIDENCE PLAINTIFFS SEEK TO PRESENT TO THE JURY. Plaintiffs contend the Tenth Circuit's ruling in Spulak v. K Mart Corp., 894 F.2d 1150, 1156 (10th Cir. 1990), contradicts Hershey's argument that the Court should reject evidence from nonparty former employees who claim their employment was terminated based on age (otherwise known as "me, too" evidence). While Spulak held that "the testimony of other employees about their treatment by the defendant is relevant to the issue of the employer's discretionary intent," id. at 1156, such evidence must be limited to avoid turning trials into sideshows regarding the claims of nonparties. The Tenth Circuit has made clear that trial courts have discretion to restrict "me, too" evidence. In Mendelsohn v. Sprint/United Management Co., 466 F.3d 1223, 1231 n.6 (10th Cir. 2006), cert. granted, 127 S. Ct. 2937 (U.S. June 11, 2007) (No. 06-1221), the Tenth Circuit noted, "[n]othing in our ruling [regarding the admissibility of "me, too" evidence] is intended to limit the district court's discretion during trial to issue limiting instructions or rulings concerning the proper purpose for which ["me, too"] evidence may be introduced." See id.1

1

The Supreme Court granted the Mendelsohn defendant's petition for writ of certiorari to resolve the "me, too" evidence issue. The Tenth Circuit's view on this issue is contrary to that of most Circuits. Indeed, the Second, Third, Fifth, and Sixth Circuits have held "me, too" evidence irrelevant, and the Fourth Circuit has issued clear dictum in that regard. See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000) ("testimony from former employees who had different supervisors than the plaintiff, who worked in different parts of the employer's company, or whose terminations were removed in time from the plaintiff's termination cannot be probative of whether age was a determinative factor in the plaintiff's discharge"); Schrand v. Fed. Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988) ("the fact that two employees of a national concern, working in places far from the plaintiff's place of employment, under different supervisors, were allegedly told they were being terminated because they were too old, is simply not relevant to the issue in this case."); Haskell v. Kaman Corp., 743 F.2d 113, 121 (2d Cir. 1984) (district court should have excluded the testimony of six former employees: "their testimony, aside from presenting unnecessary collateral issues, provided `no basis for an
(footnote continued on next page)

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Case 1:04-cv-01881-WYD-BNB

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Through their designation of deposition extracts for use of trial, which are filled with testimony concerning the plaintiffs in the Texas Case and the Prior Plaintiffs, Plaintiffs have indicated their intention to introduce volumes of "me, too" evidence at trial. See pages from deposition designations and chart thereof attached hereto as Exhibit A. Pursuant to Mendelsohn, this Court should substantially limit, or even eliminate, this mountain of "me, too" evidence. Unless the Court exercises control, the focus of the trial will be on Hershey's alleged conduct towards non-parties, rather than on whether Hershey made employment decisions regarding the five remaining Plaintiffs based on their respective ages. The result of the admission of the "me, too" evidence would be jury confusion and a significantly longer trial. II. PLAINTIFFS SHOULD NOT BE PERMITTED TO PRESENT THE JURY WITH CUMULATIVE AND REPETITIVE DEPOSITION TESTIMONY FROM BOTH THE TEXAS CASE AND THIS ACTION. In arguing that they should be permitted to present the jury with excerpts from depositions both taken in the Texas Case and in this action, Plaintiffs ignore their duplicative designations from such depositions. Each of Hershey's witnesses deposed in the Texas Case was also deposed in this lawsuit. See Motion at 6; see also Plaintiffs' Notice of Proposed Deposition Schedule at 2 (docket no. 523) (designating excerpts from both Texas and Colorado depositions for witnesses Thomas Cumpson, Douglas Wells, Milton Matthews, Patricia Mooney, and Martha Restrepo. As Exhibit A indicates, for each of these witnesses, Plaintiffs have designated

inference of discrimination,'" because the circumstances of the six others bore no logical relationship to those of the plaintiff); Moorhouse v. Boeing Co., 501 F. Supp. 390, 392 (E.D. Pa.), aff'd, 639 F.2d 774 (3rd Cir. 1980) ("to the extent testimony of each witness was about his own lay off, it was not relevant to [plaintiff's] lay off"). The Fourth, Fifth, Sixth, and Seventh Circuits have also held that such evidence, even if relevant, may be excluded under Rule 403. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190 (4th Cir. 2004); Wyvill, 212 F.3d at 303; Williams v. Nashville Network, 132 F.3d 1123, 1130 (6th Cir. 1997); Schrand, 851 F.2d at 156; Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1423 (7th Cir. 1986).

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Case 1:04-cv-01881-WYD-BNB

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testimony from both their Colorado and Texas depositions. repetitious.

The designations are highly

Plaintiffs' attempt to designate scores of pages of deposition excerpts from

testimony given in the Texas Case and in this case therefore squarely invokes the limitations of Rule 403. Fed. R. Evid. 403. Injecting such cumulative testimony into this trial would be a "needless presentation of cumulative evidence." Id. One source of testimony for each witness (either trial testimony or deposition testimony taken in this case) is more than sufficient for Plaintiffs to try their claims against Hershey.2 III. THE COURT SHOULD BAR THE ADMISSION OF PLEADINGS FROM AND DISCOVERY TAKEN IN THE TEXAS CASE. Plaintiffs concede that, for pleadings and discovery (including interrogatory responses) from the Texas Case to be admissible, Plaintiffs must establish that Hershey took inconsistent positions in the two actions. See LWT, Inc. v. Childers, 19 F.3d 539, 542 (10th Cir. 1994). Thus, the parties' dispute is limited to the proper procedure for determining whether Hershey has taken inconsistent positions in the two cases. Plaintiffs contend the Court and jury should hear the evidence before the determination is made, whereas Hershey asserts that the Court should determine the issue outside the jury's presence. Plaintiffs have not identified any inconsistencies in Hershey's positions in the two cases. Therefore, to avoid incurable harm to Hershey, this Court should determine, prior to trial, whether Hershey's positions were in any way inconsistent. If any inconsistency does exist, which Hershey denies, it can be presented to the jury following this procedure.

2

Hershey does not contend that, in theory, relevant testimony from the depositions in the Texas Case may be presented to the jury in this action. Rather, Plaintiffs may not provide the jury with the same statements, from the same witnesses, by designating such witnesses' deposition testimony from more than one case.

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Case 1:04-cv-01881-WYD-BNB

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CONCLUSION For the reasons set forth above, Hershey respectfully requests that the Court enter an order in limine prohibiting Plaintiffs from referring to or introducing evidence regarding (a) the claims asserted against Hershey in the Texas Case, (b) the claims of the Prior Plaintiffs, or (c) discovery taken or pleadings filed in the Texas Case. Respectfully submitted this 30th day of July, 2007. /s/ Lino S. Lipinsky de Orlov Lino S. Lipinsky de Orlov Jennette Campopiano Roberts MCKENNA LONG & ALDRIDGE LLP 1875 Lawrence Street, Suite 200 Denver, Colorado 80202 Telephone: (303) 634-4000 Fax: (303) 634-4400 Jennifer E. Chung SEYFARTH SHAW LLP 815 Connecticut Avenue, N.W. Suite 500 Washington, D.C. 20006-4004 Telephone: (202) 463-2400 Facsimile: (202) 828-5393 Linda C. Schoonmaker SEYFARTH SHAW LLP 700 Louisiana, Suite 3700 Houston, Texas 77002 Telephone: (713) 860-0083 Facsimile: (713) 225-2340 ATTORNEYS FOR DEFENDANT, THE HERSHEY COMPANY

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Case 1:04-cv-01881-WYD-BNB

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Filed 07/30/2007

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CERTIFICATE OF SERVICE I hereby certify that, on this 30th day of July, 2007, the foregoing HERSHEY'S REPLY IN SUPPORT OF MOTION IN LIMINE REGARDING PRIOR TEXAS PROCEEDING AND PRIOR PARTIES was electronically filed with the clerk of court using the CM/ECF system, which will send notification of such filing to the following individuals at the following electronic mail addresses: David C. Feola, Esq. Law Office of David C. Feola, P.C. 29025 D Upper Bear Creek Road Evergreen, CO 80439 [email protected] William S. Finger, Esq. Frank & Finger, P.C. 29025 D Upper Bear Creek Road P.O. Box 1477 Evergreen, CO 80437-1477 [email protected] s/ Lino S. Lipinsky de Orlov Lino S. Lipinsky de Orlov MCKENNA LONG & ALDRIDGE LLP 1875 Lawrence Street, Suite 200 Denver, Colorado 80202
DN:32126564.5

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