Free Response to Motion - District Court of Colorado - Colorado

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

Document 348

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 TESTIMONY OF FRIEDA E. ENSSLE (PACER 338) _____________________________________________________________________________ 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 testimony of Frieda E. Enssle (Pacer 338). 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 338, Motion in limine to exclude certain testimony of Frieda E. Enssle. Summary Frieda Enssle had personal knowledge of the condition of the property at the beginning of the lease to Sames Corporation and Binks R&D. 1. ITW cites Chew v. International Society for Krishna Consciousness, 738 P.2d 57 (Colo. Ct. Apps. 1987) for the proposition that Plaintiffs must prove the baseline condition of the property and its deterioration during the lease. Motion, page 1, paragraph 1. Chew does not so hold. Chew does hold that Defendants in that case did not breach the lease clause. Chew at 58.
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2. The facts in Chew differ substantially from our case. In Chew the lease provision was to return the property in "as good order and condition as when the same was entered upon ... ordinary wear excepted." Chew at 57 (emphasis added). The 1983 lease in the Enssle case says, "Tenant shall peaceably and quietly surrender the leased premises in good order and condition, reasonable wear and tear excepted." Joint Exhibit 173, paragraph 9. Further, in Chew the property was in very bad repair when leased and returned in equal or better condition than when leased. Chew at 58. The building on 1791 Range Street was brand new when it was leased to Sames Corporation in 1959. 3. It is not Plaintiffs' theory that ITW was assigned only the 1983 lease. Plaintiffs believe there is one continuous lease from 1959 (or 1963 at the latest) through July 31, 2003. All three defendants are liable under the terms of that lease for the failure to surrender the property in good order and condition, as well as the other breach of contract claims that Plaintiffs have raised. See Plaintiff's Brief in Support of Motion for Partial Summary Adjudication (Pacer 269) pp. 1-7. 4. At her deposition Plaintiff Frieda E. Enssle did testify as to the conditions she did observe and is or was capable of observing, both at the beginning of the lease and on subsequent visits to the property. She saw no pollution, no oil on the ground, or any other indication of contamination. She said the property was clean. See Motion Exhibit A (excerpts from the deposition of Frieda Enssle), 57:17 - 58:11. 5. Furthermore, Mrs. Enssle testified that she went to the property once a month. Motion Exhibit A, 58:21- 59:9. She certainly had the opportunity and ability to see if there was any sign of contamination or lack of cleanliness on the property. ITW's citation to United States v.
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Sinclair, 109 F 3d 1527 (10th Cir. 1997) is not helpful. That case is cited for the general proposition that exclusion of testimony is proper where the witness could not have actually perceived or observed that which he testified to. Sinclair at 1536. In that criminal case, the presence of the witness in the apartment meant it was not impossible for her to observe the events in question. Sinclair at 1536. Further, the witness' testimony was not rendered

inadmissible for lack of personal knowledge as a result of witness' use of a narcotic and sedative. Whether the testimony is rendered unreliable by a clouded memory and drug use is a question for the jury. Sinclair at 1536-37. 6. This motion in limine is premature. The questions asked of Mrs. Enssle were in a deposition, not the trial. When Mrs. Enssle testifies in trial, then the court can make any determination of any lack of personal knowledge. 7. ITW's allegation in paragraph 5 that Mrs. Enssle admits that she does not know the condition of the property's soil and groundwater is a mischaracterization of her testimony. The question asked of Mrs. Enssle in her deposition, was what proof do you have as to who put the chemicals on the property. Mrs. Enssle said she didn't have any proof. Exhibit A, 91:25 - 92:22. 8. In paragraph 5 of its motion, ITW again mischaracterizes Mrs. Enssle's testimony as saying she never inspected the property. Mrs. Enssle was asked if her going to the property was for the purpose of inspecting the property. Ex A, 59:3-5. (emphasis added). Mrs. Enssle was not asked what she saw at the property. 9. There was no question asked of Mrs. Enssle whether she conducted groundwater testing. To state that she admitted to not doing so is a false statement, beyond

mischaracterization.
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10. Mrs. Enssle may not know the condition of the groundwater, and could not see it when she was on the property. She certainly could see, however, the observable condition of the property: any stains, collection of drums, etc. She could also smell any odors. In short, she was personally present, had the capacity to observe and therefore has personal knowledge of the matters testified to.

WHEREFORE, Petitioner requests the court to deny ITW's motion in limine to exclude certain testimony of Frieda E. Enssle.

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

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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 TESTIMONY OF FRIEDA E. ENSSLE (PACER 338) 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

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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