Defendant, Feldmeier Equipment, Inc. (“Feldmeier’), by and through undersigned counsel, hereby submits its Motion in Limine re: Unrelated Events, as follows:
RELIEF REQUESTED
Feldmeier seeks an order from the Court precluding Plaintiff, Leprino Foods Company (“Leprino”), from introducing testimony or any other evidence relating to unrelated implosion events involving Feldmeier tanks. Such evidence is barred by Fed. R. Evid. 402 and 403.
RELEVANT BACKGROUND
In this action, Leprino asserts that certain tanks purchased from Feldmeier imploded due to overflow problems. During discovery, Feldmeier was required, over its objection, to disclose unrelated implosion events involving Feldmeier tanks purchased and operated by customers other than Leprino. None of the other events appear to be related to overflow issues, many of the tanks involved in the unrelated events were of a different design than the tanks at issue in this case, and Leprino has not made any argument that the unrelated and dissimilar events
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Case 1:03-cv-02461-MSK-MEH Document 89 _ Filed 04/11/2006 Page 2of4
demonstrate causation or the existence of a defect relevant to the events at issue in this action. In fact, because implosions can be caused by operator error, the mere occurrence of an implosion is not probative of whether or not a tank is defective.
ARGUMENT
Under Rule 402, evidence that is not relevant is not admissible. Fed. R. Evid. 402. Under Rule 403, even relevant evidence should be excluded when its probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, or other considerations. Fed. R. Evid. 403. In determining the relevancy of unrelated events not at issue in a lawsuit, the Court must find a “substantial similarity” between the evidence of the unrelated events and the facts at issue in the current lawsuit. E.g., Bitler vy. A.O. Smith Corp., 391 F.3d 1114, 1126 (10" Cir. 2004). The burden of showing this degree of relevance belongs to Leprino as the party potentially seeking to introduce the evidence. See id. The Court’s determination depends for the most part on the plaintiff's theory of causation or defect — if the unrelated events do not support or relate to the plaintiff's theory of causation in the current lawsuit, then they are not relevant and must be excluded. See id.; accord Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10" Cir. 2000) (dissimilar events unlikely to bear on fact of consequence).
More importantly, the Court must find “a high degree of similarity” if the evidence is offered to prove causation. Smith, 214 F.3d at 1246. A lesser degree of similarity is required if the evidence is offered to prove notice of a possible defect, id., but even then, the unrelated events must relate to plaintiff's theory of causation or defect and have occurred prior in time, and the defendant must have received notice of the prior events before the events alleged in the
current lawsuit. /d. at 1248.
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In this case, the unrelated implosions have no apparent relevance to the events at issue or Leprino’s overflow theory. Leprino’s expert has issued no opinion that the unrelated implosions are similar or support Plaintiff's theory of causation. The risk of jury confusion and unfair prejudice to Feldmeier, if evidence of the unrelated events is admitted is self-evident and compounded by the fact that there has been no determination of causation in regard to such unrelated events, so that operator error is much more likely than the existence of a defect.
CERTIFICATE OF COMPLIANCE
Pursuant to D.C.Colo.LCivR. 7.1, the undersigned has conferred with opposing counsel to resolve the disputed matter. The undersigned and opposing counsel had a conference call on April 11, 2006 to discuss these issues. The parties were not able to reach a resolution and Plaintiff opposes this Motion.
WHEREFORE, Feldmeier respectfully requests that the Court enter an order precluding Leprino from presenting any testimony or other evidence in relation to the unrelated implosion events involving tanks other than those sold to Leprino.
Respectfully submitted this 11" day of April, 2006.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
s/Catherine A. Tallerico Catherine A. Tallerico Timothy J. Flanagan 1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603 ATTORNEYS FOR DEFENDANT
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CERTIFICATE OF SERVICE
I hereby certify that on this 11" day of April, 2006, I caused a true and correct copy of the foregoing DEFENDANT’S MOTION IN LIMINE RE: UNRELATED EVENTS to be was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:
Michacl G. Bohn, Esq.
mbohn@campbellbohn.com
Mr. Jake Feldmeier jake@feldmeier.com
s/Michelle Rocke
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PlainSite Cover Page
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Case 1:03-cv-02461-MSK-MEH Document 89 Filed 04/11/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 03-cv-2461-MSK-MEH
LEPRINO FOODS COMPANY,
Plaintiff,
Vv.
FELDMEIER EQUIPMENT, INC.,
Defendant.
DEFENDANT’S MOTION IN LIMINE RE: UNRELATED EVENTS
Defendant, Feldmeier Equipment, Inc. (“Feldmeier’), by and through undersigned
counsel, hereby submits its Motion in Limine re: Unrelated Events, as follows:
RELIEF REQUESTED
Feldmeier seeks an order from the Court precluding Plaintiff, Leprino Foods Company
(“Leprino”), from introducing testimony or any other evidence relating to unrelated implosion
events involving Feldmeier tanks. Such evidence is barred by Fed. R. Evid. 402 and 403.
RELEVANT BACKGROUND
In this action, Leprino asserts that certain tanks purchased from Feldmeier imploded due
to overflow problems. During discovery, Feldmeier was required, over its objection, to disclose
unrelated implosion events involving Feldmeier tanks purchased and operated by customers
other than Leprino. None of the other events appear to be related to overflow issues, many of the
tanks involved in the unrelated events were of a different design than the tanks at issue in this
case, and Leprino has not made any argument that the unrelated and dissimilar events
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Case 1:03-cv-02461-MSK-MEH Document 89 _ Filed 04/11/2006 Page 2of4
demonstrate causation or the existence of a defect relevant to the events at issue in this action. In
fact, because implosions can be caused by operator error, the mere occurrence of an implosion is
not probative of whether or not a tank is defective.
ARGUMENT
Under Rule 402, evidence that is not relevant is not admissible. Fed. R. Evid. 402. Under
Rule 403, even relevant evidence should be excluded when its probative value is substantially
outweighed by the risk of unfair prejudice, confusion of issues, or other considerations. Fed. R.
Evid. 403. In determining the relevancy of unrelated events not at issue in a lawsuit, the Court
must find a “substantial similarity” between the evidence of the unrelated events and the facts at
issue in the current lawsuit. E.g., Bitler vy. A.O. Smith Corp., 391 F.3d 1114, 1126 (10" Cir.
2004). The burden of showing this degree of relevance belongs to Leprino as the party
potentially seeking to introduce the evidence. See id. The Court’s determination depends for the
most part on the plaintiff's theory of causation or defect — if the unrelated events do not support
or relate to the plaintiff's theory of causation in the current lawsuit, then they are not relevant and
must be excluded. See id.; accord Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10" Cir.
2000) (dissimilar events unlikely to bear on fact of consequence).
More importantly, the Court must find “a high degree of similarity” if the evidence is
offered to prove causation. Smith, 214 F.3d at 1246. A lesser degree of similarity is required if
the evidence is offered to prove notice of a possible defect, id., but even then, the unrelated
events must relate to plaintiff's theory of causation or defect and have occurred prior in time, and
the defendant must have received notice of the prior events before the events alleged in the
current lawsuit. /d. at 1248.
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Case 1:03-cv-02461-MSK-MEH Document 89 Filed 04/11/2006 Page 3 of 4
In this case, the unrelated implosions have no apparent relevance to the events at issue or
Leprino’s overflow theory. Leprino’s expert has issued no opinion that the unrelated implosions
are similar or support Plaintiff's theory of causation. The risk of jury confusion and unfair
prejudice to Feldmeier, if evidence of the unrelated events is admitted is self-evident and
compounded by the fact that there has been no determination of causation in regard to such
unrelated events, so that operator error is much more likely than the existence of a defect.
CERTIFICATE OF COMPLIANCE
Pursuant to D.C.Colo.LCivR. 7.1, the undersigned has conferred with opposing counsel
to resolve the disputed matter. The undersigned and opposing counsel had a conference call on
April 11, 2006 to discuss these issues. The parties were not able to reach a resolution and
Plaintiff opposes this Motion.
WHEREFORE, Feldmeier respectfully requests that the Court enter an order precluding
Leprino from presenting any testimony or other evidence in relation to the unrelated implosion
events involving tanks other than those sold to Leprino.
Respectfully submitted this 11" day of April, 2006.
FOWLER, SCHIMBERG & FLANAGAN, P.C.
s/Catherine A. Tallerico
Catherine A. Tallerico
Timothy J. Flanagan
1640 Grant Street
Denver, Colorado 80203
Telephone: 303.298.8603
ATTORNEYS FOR DEFENDANT
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Case 1:03-cv-02461-MSK-MEH Document 89 _ Filed 04/11/2006 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on this 11" day of April, 2006, I caused a true and correct copy of
the foregoing DEFENDANT’S MOTION IN LIMINE RE: UNRELATED EVENTS to be
was filed with the Clerk of the Court using the CM/ECF system, which will send notification of
such filing to the following email addresses:
Michacl G. Bohn, Esq.
mbohn@campbellbohn.com
Mr. Jake Feldmeier
jake@feldmeier.com
s/Michelle Rocke
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