Free Response to Motion - District Court of Colorado - Colorado

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

Document 343

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 REFERENCE TO BOULDER CREEK (PACER 333) _____________________________________________________________________________ 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 reference to Boulder Creek (Pacer 333). 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 333, Motion in limine to exclude reference to Boulder creek. Summary Boulder Creek is relevant to the case. It is the nearest surface water to the Property (1000 feet to the north) the flow of groundwater from the site is North 10° east, (the direction toward Boulder Creek) and the contaminated former drum storage area on the Property lies in the flood plain of Boulder Creek. 1. There is evidence that contaminated groundwater migrated from the property down gradient to Syntex. Joint Exhibit 182 (Hoffman report, page 1, paragraph 3). This migration of

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the contamination from the property is how the contamination was discovered by the CDPHE in the first place. 2. The Harlan, Casey Soil Gas Survey, Joint Exhibit 178 (report dated October 17, 1990) was a cooperative effort between CDPHE, US Environmental Protection Agency, city of Boulder, Flatiron Park Company, and Syntex Chemicals, Inc. The survey took place upstream from the point of discovery of chlorinated solvents and was an investigation for potential sources of the contamination. 3. The survey was conducted because a groundwater plume of chemical solvents had occurred near the southern boundary of the Syntex property, which is north and east and down gradient from the 1791 Range Street Property. 4. This plume was comprised of chemicals that Syntex did not use, but that were used on the 1791 Range Street site by the Defendants. 5. The Soil Gas Survey found high concentrations of chlorinated solvents at the former drum storage area. The solvents included 1,1,1 trichlorothane (TCA); trichloroethene (TCE), and 1,1 dichloroethane (DCA). Few other readings for these chemicals were found at other sites surveyed. No readings were nearly as high as those taken on the Property. 6. Boulder Creek is the nearest surface water to 1791 Range Street, and is approximately 1000 feet to the north. Joint Exhibit 197 (IC Subsurface Investigation Report, page 4) 7. The direction of ground water flow from the site is North 10° east. Joint Exhibit 197, at page 8.

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8. The northern portion of the Property at 1791 Range Street, including the former and "new" drum storage areas, is in the 100 year and 500 year flood plain of Boulder Creek. Joint Exhibit 232 (ALTA survey, note 6.) 9. Property immediately north of the Property is in the high hazard flood zone of Boulder Creek, and evidence exists to show that the plume of contamination has already moved to these properties. 10. That fact that ITW states that Boulder Creek is irrelevant to the case further

demonstrates their lack of understanding of the negative ramifications of their negligent actions. Plaintiffs, purely as property owners, are liable for any damages sustained by these down gradient properties. 11. Relevant evidence is "evidence having any tendency to make the existence of any fact 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. 12. The fact of migration in the direction of Boulder Creek is relevant because it demonstrates the reason for the discovery of the contamination on the Property; the fact that the contamination had migrated off of the property; and the fact that migration of ground water travels from the Property to other properties and eventually in Boulder Creek, where it will proceed downstream. 13. ITW further argues that reference to Boulder creek is not probative, and that such reference would bring a danger of unfair prejudice, confuse or mislead the jury, and therefore the reference, although relevant, should be excluded under Fed. R.Civ.P. 403.

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14. "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). 15. "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). 16. ITW makes no showing of a danger of unfair prejudice, confusion of the issues or misleading of the jury. ITW makes only the bald assertion that Plaintiffs' "only real purpose" for introducing such evidence is to "inflame the jury" and unfairly prejudice ITW and the other defendants. 17. Evidence about Boulder creek is relevant. The fact that it hurts ITW's case is neither "inflaming the jury" nor unfair prejudice to ITW or any other defendant. WHEREFORE, Petitioner requests the court to deny ITW's motion in limine to exclude reference to Boulder Creek. 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 REFERNCE TO BOULDER CREEK (PACER 333) 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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