Free Response to Motion - District Court of Colorado - Colorado

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

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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 CHUCK MCCULLOCH (PACER 336) _____________________________________________________________________________ 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 Chuck McCulloch (Pacer 336). 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 336, Motion in limine to exclude certain testimony of Chuck McCulloch. Summary Evidence of a leaking drum is relevant to the contamination of the property. The manner in which Chuck McCulloch learned of the leaking drum is marked with circumstantial guarantees of truthfulness and is therefore admissible, both as an admission of a party opponent and under the residual exception to the hearsay rule.

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1. At the time he was told of the leaking drum of 1,1,1 trichloroethane at the Property in the early 1980s, Mr. McCulloch was an employee of Binks R&D, not ITW. Binks R&D has not objected to this testimony concerning a leaking drum. 2. Mr. McCulloch is currently an employee of ITW. 3. Mr. McCulloch began full time work at the Property in 1976 and worked for Binks R&D as a mechanical design engineer for 5 or 6 years. He then became the coordinator between the design group and the manufacturing group. 4. As an employee of Binks R&D in 1997 Mr. McCulloch became the manager of the facility, and continued in that position for ITW until ITW vacated the facility on July 31, 2003. Mr. McCulloch held positions of trust an responsibility in both companies, and gave his deposition testimony as the general manager of the facility. 5. The person or persons who told Mr. McCulloch about the leaking drum were his fellow employees, not some stranger. At the time he was told of the leaking drum, Mr.

McCulloch was a person of responsibility in the company, at a level higher than the regular employees. A leaking drum is something an employee would tell his superior about. 6. The leaking drum occurred at some time in the early 1980's, when RCRA was in force. Evidence of leaks or any kind of disposal is probative of RCRA violations, and therefore ITW does not want this evidence to be presented. 7. ITW agues that the out of court statement is hearsay under Fed. R.Civ.P. 801. However, the statement is not hearsay, for two reasons: (1) it is specifically excluded from the hearsay rule as an admission of a party opponent (Fed.R.Civ.P. 801(d)(2)) and, (2): it meets the residual exception to the hearsay rule exceptions as set forth in Fed. R.Civ.P 807.
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8. Mr. McCulloch clearly believed the truth of the statements concerning the leaking drum, because he gave that answer under oath in his deposition when asked about leaks at the property. See Motion Exhibit A. He also mentioned other leaks in response to the questioning about leaks. He was sworn and under oath, presumably telling the truth. Furthermore, this type of statement, directly against the interest of Binks, in not one that an employee would make lightly to a person that's his superior at his place of employment. In fact, it is a statement that an employee would reasonably make to his superior. Therefore, this is an admission of a party opponent under Fed.R.Civ.P. 801(d)(2)(B), where the party has evidenced a belief in the truth of the statement. 9. ITW cites Gross v. Burggraf Construction Company, 53 F.3d 1531 (10th Cir. 1995) as authority against allowing the evidence of a leaking drum as an admission by a party opponent. Gross is a summary judgment case, holding that out of court statements were inadmissible because they failed to meet the trustworthiness requirement for exceptions to the hearsay rule. The court based its decision on the fact that there was no witness to corroborate the out of court statement. Gross at p. 1542. Here, Mr. McCulloch is the witness; he heard the statement because it was made to him. 10. The statement about the leaking drum is also admissible under Rule 807, the residual exception to the hearsay rule, because the statement has equivalent circumstantial guarantees of trustworthiness as those exceptions that are set forth in Rules 803 and 804. 11. Pursuant to Rule 807, a statement is not excluded by the hearsay rule if: A. The statement is offered as evidence of a material fact;

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B. The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and C. The general purposes of these rules and the interests of justice will best be served by admission of the statement in to evidence. D. Additionally, the statement must be made known to the adverse party

sufficiently in advance of trial to give the adverse party a fair opportunity to prepare to meet the statement. 12. The requirement of notice has been met. ITW has known of the statement since Mr. McCulloch's deposition on March 27, 2005, and has had fair opportunity to prepare to meet it. 13. Evidence of a leaking drum is a material fact in this case. It is one way in which the soils and ground water were contaminated. The CDPHE has confirmed that the former drum storage area is the source of the contamination. See, e.g., Joint Exhibit 304 (CDPHE 1993 letter to the then Binks attorney). 14. Plaintiffs have asked questions in discovery and in depositions about leaks and other disposals at the Property. No defendant has responded with any evidence about this particular leaking drum in the early 1980s. 15. The experts in this case will give their opinions that leaks at the former drum storage area were apart of the cause of contamination at the property. 16. Finally, the general purposes of the rules are met through the equivalent

circumstances of trustworthiness, and the interests of justice are served by admissibility, because there is simply no other evidence to be found about this leaking drum incident.

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WHEREFORE, Petitioner requests the court to deny ITW's motion in limine to exclude certain testimony of Chuck McCulloch.

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 TESTIMONY OF CHUCK MCCULLOCH (PACER 336) 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]
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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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