Free Response to Motion - District Court of Colorado - Colorado

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

Document 345

Filed 12/11/2005

Page 1 of 7

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 THE CDPHE'S DECEMBER 15, 2003 LETTER (PACER 335) _____________________________________________________________________________ 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 the CDPHE's December 15, 2003, letter (Pacer 335). 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.

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

Document 345

Filed 12/11/2005

Page 2 of 7

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 335, Motion in limine to exclude the CDPHE's December 15, 2003, letter. Summary ITW's objections and reasons for exclusion of the letter are irrelevant; they have no connection to the letter or its probative value. This letter is relevant to the case: it deals with all issues in the case: breach of contract, trespass, nuisance, negligence, NCP compliance, and RCRA violations. The letter states that there are exceedances of state groundwater standards, ongoing contamination of the ground water, and a need for removal of the soils that are the source of the continued contamination. The letter invites ITW to submit its own CAP, which
Page 2

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

Document 345

Filed 12/11/2005

Page 3 of 7

ITW declined to do. ITW is entitled at trial to cross-examine witnesses concerning the credibility of the letter. 1. In paragraph 2, ITW states that the letter has "limited probative value". This is simply not true. The letter is probative of most of the issues in the case: breach of contract issues: good order and condition, violation of laws, and indemnification; and it is probative of nuisance, trespass and negligence. 2. Also contrary to allegations in paragraph 2, Plaintiffs made no untrue representations to CDPHE. ITW consistently mischaracterizes certain evidence, and seeks to build its case on a series of these mischaracterizations. ITW, the operator of the property, was well known to the CDPHE. ITW's representatives attended a meeting with CDPHE with Plaintiffs representatives in February 2003. There is no way Plaintiffs could have misled the CDPHE. 3. In paragraph 3, ITW mischaracterizes the letter Plaintiffs wrote to CDPHE, (Motion Exhibit B). CDPHE knew that Binks was the long time tenant, because CDPHE had been dealing with Binks for almost eight years. Plaintiffs represented that ITW succeeded Binks as the new tenant at the property, which fact is true and which fact CDPHE already knew no later than the meeting in February 2003 with the CDPHE and Plaintiffs' representatives. See also Motion Exhibit D, third paragraph, third sentence. This is the transmittal letter of the results to CDPHE, and the cited sentence refers to ITW as the former tenant. There is no doubt that CDPHE knew who ITW was. There is no way Plaintiffs could have misled CDPHE. Furthermore, the

December 15, 2003, CDPHE letter makes no reference whatsoever to the Plaintiffs' May 12, 2003, letter. There is simply no connection between the two.

Page 3

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

Document 345

Filed 12/11/2005

Page 4 of 7

4. In paragraph 4, ITW argues that its lack of knowledge about the septic tank excuses ITW from liability. Whether ITW intentionally used the septic tank or not is irrelevant. In the meeting between ITW and CDPHE in February 2004 (Plaintiffs were not present nor invited), the state attorney general told ITW that they were liable whenever they flushed the toilet. Motion Exhibit E (Hoffman deposition), 162: 10-20. 5. It was standard protocol for the state to go after the operator of a site when the absentee owner did nothing. Response Exhibit 1 (Hoffman deposition), 161:10-20. That statement alone proves that CDPHE sent the letter as standard protocol, not as the result of any lobbying. Yet ITW chose to exclude this page of testimony, while it included the pages in sequence on either side, for its Motion exhibits. ITW excludes evidence directly on point because the evidence goes against them. Such behavior is a lack of candor before the court. 6. There is no restriction on Plaintiffs counsel meeting with CDPHE to discuss

investigation results, with or without informing ITW. There is no fault in not sending a copy of the results to ITW; ITW already had a copy of the work plans. ITW had taken split samples, and made its own investigations, yet did not share the information with CDPHE. Motion Exhibit D, third paragraph. Yet now ITW complains because Plaintiffs shared the investigation results with CDPHE. The complaint is wholly without merit, and is in fact outrageous, given ITW's lack of cooperation with the state. 7. ITW complains in paragraph 5 that Plaintiffs submitted their investigation results to CDPHE without copying ITW. ITW knew the results, as Plaintiffs had provided ITW with split samples. It was ITW who failed to provide Plaintiffs or the CDPHE with the results of ITW's investigations.
Page 4

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

Document 345

Filed 12/11/2005

Page 5 of 7

8. In paragraphs 6 and 7, ITW complains about the solvents that were found in the septic tank. ITW complains that it never used TCA; but there were other chemicals found in the tank as well as TCA, which chemicals ITW used. Also in paragraph 7, ITW complains that CDPHE was never told that ITW didn't know about the septic tank. ITW complains about what it says is "non-disclosure". ITW never disclosed to CDPHE that ITW assumed the lease, nor that ITW wrote a letter saying that ITW would clean up the site to the satisfaction of the state. 9. ITW mischaracterizes Plaintiffs statement referred to in Paragraph 8 of ITW's motion. The Enssles did not know the tank was there, either, until they fully investigated the site. The point is that if the Enssles had not done a through investigation, the septic tank would never have been discovered. ITW's refusal to do a full investigation, if that lack of action had prevailed, would have left the tank hidden from everyone, until it broke and the pollution got into the soils and groundwater. 10. Plaintiffs' intentions about whether ITW would do investigation and remediation work have nothing to do with the CDPHE writing the December 15, 2003, letter. There is simply no connection between the two. Likewise, Plaintiffs preparation of a Corrective Action Plan has nothing to do with the CDPHE December 15, 2003 letter. 11. ITW's statement in the first line of paragraph 10 is simply not true. CDPHE already knew these facts. Then ITW grossly mischaracterizes its own exhibit F. The last sentence of Exhibit F states that the understanding confirmed was that, because Plaintiffs submitted a CAP, which was approved by CDPHE, ITW did not have to respond to the December 15, 2003 letter. Motion Exhibit F, last sentence.

Page 5

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

Document 345

Filed 12/11/2005

Page 6 of 7

12. The December 15, 2003, letter was sent because that is standard procedure for the CDPHE. Response Exhibit 1, 161: 10-20. Plaintiffs made nothing but true representations to the CDPHE. Plaintiffs have no power or authority to make the CDPHE do anything. Finally, the CDPHE had accurate facts about ITW, except those facts which ITW itself withheld from the CDPHE (i.e., the lease assignment, and the ITW letter to clean up the site to the satisfaction of the state). 13. ITW states absolutely no basis for prejudice it will suffer from the admission of this relevant evidence. What is unfair about the letter? ITW shows nothing. What will confuse the issues? ITW shows nothing. What will mislead the jury? ITW shows nothing. WHEREFORE, Petitioner requests the court to deny ITW's motion in limine to exclude the CDPHE's December 15, 2003, letter.

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

Page 6

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

Document 345

Filed 12/11/2005

Page 7 of 7

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 THE CDPHE'S DECEMBER 15, 2003 LETTER (PACER 335) 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

Page 7