Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01291-MSK-CBS

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Filed 12/11/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-1291-MSK-CBS FRIEDA E. ENSSLE, BURKE E. ENSSLE and HEIDI ENSSLE WILSON Plaintiff(s), v. ILLINOIS TOOL WORKS, INC.; SAMES CORPORATION; BINKS RESEARCH & DEVELOPMENT CORPORATION; and JOHN DOE/JANE DOE (any person receiving value for transfer of Binks R&D assets). Defendant(s). _____________________________________________________________________________ PLAINTIFFS' RESPONSE TO DEFENDANT ILLINOIS TOOL WORKS, INC.'S MOTION IN LIMINE TO EXCLUDE CERTAIN HAZARDOUS WASTE MANIFESTS (PACER 339) _____________________________________________________________________________ Plaintiffs Frieda E. Enssle, Burke E. Enssle and Heidi E. Wilson (the "Enssles"), through their undersigned counsel, submit the following response to Defendant Illinois Tool Works, Inc.'s ("ITW") motion in limine to exclude certain hazardous wastes manifests. (Pacer 339) Plaintiffs object to all motions in limine filed by Illinois Tool Works, Inc., as being beyond the date set in the Trial Preparation Order dated January 29, 2004. 1. On November 22, 2005, ITW filed a motion for extension of time for certain trial preparation order deadlines (Pacer 328), including extension of the deadline to file motions in limine.

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2. On November 23, 2005, before Plaintiffs had opportunity to respond to the motion, the court granted ITW's motion in part (Pacer 329), including allowing ITW to file motions in limine not later than November 30, 2005, 3. On November 29, 2005, Plaintiffs filed a motion for reconsideration of the court's order granting ITW's request for an extension of time to file motions in limine (Pacer 331). ITW knew or should have known of the existence of the Trial Preparation Order, at the very least because ITW knew of the court's civil practice standards, which state in part that the filing of motions in limine is governed by the Trial Preparation Order. 4. Plaintiffs' motion for reconsideration has not yet been ruled upon. 5. On November 30, 2005, ITW filed seven motions in limine (Pacer 333-339). 6. Plaintiffs hereby renew and preserve their request for the court to deny ITW an extension of time for filing any motions in limine, and thereby denying all said motions as untimely filed. Specific response to Pacer 339, Motion in limine to exclude certain waste manifests. Summary of Response These hazardous wastes manifests are relevant, probative of many elements of Plaintiffs' case, and there is no unfair prejudice to ITW or any other party. 1. This case involves chemicals other than 1,1,1 trichloroethane ("TCA"). There is evidence of a whole array of chemicals which have been found in the soils and groundwater at the Property, and which chemicals have been used historically by all the defendants on the property. The one chemical ITW claims not to have used on the Property is TCA.

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2. ITW mischaracterizes stipulation kk of the parties, rephrasing the actual stipulation to try to gain some advantage. Plaintiffs and all parties actually stipulated that, "ITW did not dump or spill any chemicals or wastes at or near the former drum storage area." Final Pretrial Order, stipulation kk. 3. ITW did not perform the initial dumping of this chemical at the former drum storage area, but ITW did knowingly leave TCA and other chemicals there in the ground, unremediated, and allowed it to spread. By leaving the contamination in place, and doing nothing to remediate the site, ITW was disposing of hazardous wastes at the site. U.S. v. Power Engineering

Company, 10 F. Supp. 2d 1145, 1159-1160 (D.C. Colo. 1998), aff'd 191 F. 3d 1224 (10th Cir. 1999). 4. ITW used other chemicals that were found in the soils and ground waters, and ignored the contamination caused by those chemicals, too. These manifests indicate the shipment of hazardous wastes composed of a number of such other chemicals used by ITW, including particularly, toluene. See Motion exhibit B, pages bates numbered I001205 and I001219. 5. Toluene, TCA, 1,1 Dichloroethene and Benzene were found on the property

exceeding state ground water standards as late as June 2003, when ITW was occupying the property. Corrective Action Plan, Joint Exhibit #183, at page 9 (CDPHE 208). 6. In paragraph 4 of its motion, ITW states that the offsite shipment of certain wastes potentially contained TCA. (emphasis added). There is nothing potential about it. These hazardous waste manifests contain a certification (paragraph 16) that the contents of the waste shipment "are fully and accurately described above by proper shipping name and are classified...according to applicable international and national governmental regulations."
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Motion Exhibit B, page I001204. This mischaracterization of the evidence is made in an attempt to exclude the evidence. ITW wants the evidence out because the evidence hurts their case. The exclusion of evidence should be done, if at all, based on reason and the law, not mischaracterization of the evidence. 7. ITW again mischaracterizes the evidence in paragraph 5 of its motion. ITW claims that the wastes were investigation-derived wastes and that the offsite shipments "may have contained TCA." (emphasis added). ITW makes the mischaracterizations in hopes that they will gain some small advantage, which will add up somehow to the exclusion of evidence. 8. These manifests are an admission that TCA found in the soils and ground waters is hazardous waste. The particular form used is titled, "Uniform Hazardous Waste Manifest." Joel A. Reetz, an employee of ITW, makes the certification on all manifests for ITW that these are hazardous wastes. 9. These manifests are also probative of the fact that ITW was actively managing wastes on the property as late as July 29, 2003. Motion Exhibit B, page I001218. They are probative of ITW's status as an operator. CERCLA defines "operator" as any person "operating" a facility. 42 U.S.C. §9601(20)(A). CERCLA places operator liability on persons who manage, direct, or conduct operations related to pollution. See U.S. v. Best Foods, 524 U.S. 51 (1998). ITW was occupying the property and operating the facility as of the dates in the manifests. 10. Federal Rule of Evidence 402 indeed provides that relevant evidence is admissible, and that non-relevant evidence is not admissible. As demonstrated above, these hazardous wastes manifests are relevant, because they have a "tendency to make the existence of any fact

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that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Civ.P. 401. 11. ITW further argues that the manifests are not probative, and that they would confuse or mislead the jury, and therefore the manifests, although relevant, should be excluded under Fed. R.Civ.P. 403. ITW fails to give any reason for their argument. 12. "In weighing the probative value of evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission." United States v. Dennis, 625 F. 2d 782, 797 (8th Cir. 1980). 13. "Courts have characterized Rule 403 as an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence." United States v. Meester, 762 F. 2d 867, 875 (11th Cir. 1985) (citing many other cases), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed. 2d 562 (1985). 14. The use of these manifests is neither confusing nor misleading to the jury. ITW itself prepared these manifests and certified the contents. There is no distraction from the issues of the case, but rather relevant focus on those issues.

WHEREFORE, Petitioner requests the court to deny ITW's motion in limine to exclude certain waste manifests.

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Respectfully submitted December 10, 2005. s/Peter Rogers Peter Rogers 885 Arapahoe Avenue Boulder, CO 80302 Telephone: 303-544-0997 Fax: 303-544-0998 [email protected] Attorney for Frieda E. Enssle, Burke E. Enssle, and Heidi E. Wilson

CERTIFICATE OF SERVICE I hereby certify that on December 10, 2005, a true and correct copy of the foregoing PLAINTIFFS' RESPONSE TO DEFENDANT ILLINOIS TOOL WORKS, INC.'S MOTION IN LIMINE TO EXCLUDE CERTAIN HAZARDOUS WASTE MANIFESTS (PACER 339) was filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Susan E. Brice [email protected], [email protected] [email protected], [email protected] [email protected] [email protected], [email protected]

Angela Deborah DeVine Geraldine Elizabeth Flynn Asimakis Pascal Iatridis Robin R. Lunn

[email protected] [email protected], [email protected]

Kim Arquette Tomey

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And I hereby certify that I have mailed or served the document or paper by United States mail, first class, postage prepaid, addressed as follows:

Asimakis P. Iatridis Berg, Hill, Greenleaf & Ruscitti LLP 1712 Pearl Street Boulder, CO 80302 Attorneys for Plaintiffs

Burke E. Enssle 444 Millionaire Drive Boulder, CO 80302

s/ Peter Rogers Peter Rogers Attorney for Plaintiffs

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