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Case 1:03-cv-02461-MSK-MEH Document90 _ 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: CHANGE OF DESIGN
Defendant, Feldmeier Equipment, Inc. (“Feldmeier’), by and through undersigned counsel, hereby submits its Motion in Limine re: Change of Design, 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 a post-incident change of design in certain tanks manufactured by Feldmeier. Such evidence is barred by Fed. R. Evid. 402, 403, and 407.
RELEVANT BACKGROUND
Leprino previously sued Feldmeier in Colorado state court (“State Court Action’), asserting essentially the same claims as in this action in regard to tanks purchased from Feldmeier and installed at a different facility than the one at issue in this federal court action. The state courts found no implosion-related defect in the tanks and Feldmeier did not believe there to be any defect in the tanks. Nevertheless, after that litigation was commenced and after the tanks
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Case 1:03-cv-02461-MSK-MEH Document90 _ Filed 04/11/2006 Page 2 of 4
at issue in this action were sold to Leprino, Feldmeier made a slight adjustment in the design of the tanks (increasing the height differential between the overflow and air vent lines to 9 inches rather than 6 inches). This design change was disclosed in discovery, but even Leprino’s expert has made no assertion that the design change corrected a defect or is otherwise relevant to this litigation.
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. Finally, under Rule 407, subsequent remedial measures are inadmissible to prove a defect in a product or a product’s design (or other culpable conduct), even if the measures would have made an alleged injury or harm less likely to occur. Fed. R. Evid. 407; but see Forma Scientific, Inc. v. Biosera, Inc., 960 P.2d 108 (Colo. 1998) (Colorado’s Rule 407 does not apply to strict liability claims, but Rules 402 and 403 do apply).
In this case, the design change has no relevance to the events at issue. The admission of such evidence would merely serve to confuse the jury and unfairly prejudice Feldmeier.
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.
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Case 1:03-cv-02461-MSK-MEH Document90_ Filed 04/11/2006 Page 3 of 4
WHEREFORE, Feldmeier respectfully requests that the Court enter an order precluding Leprino from presenting any testimony or other evidence in relation to the change in tank design that occurred after the tanks at issue were 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 Document90 _ 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: CHANGE OF DESIGN 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:
Michael G. Bohn, Esq.
mbohn@campbellbohn.com
Mr. Jake Feldmeier jake@tfeldmeier.com
s/Michelle Rocke
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Case 1:03-cv-02461-MSK-MEH Document90 _ 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: CHANGE OF DESIGN
Defendant, Feldmeier Equipment, Inc. (“Feldmeier’), by and through undersigned
counsel, hereby submits its Motion in Limine re: Change of Design, 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 a post-incident change
of design in certain tanks manufactured by Feldmeier. Such evidence is barred by Fed. R. Evid.
402, 403, and 407.
RELEVANT BACKGROUND
Leprino previously sued Feldmeier in Colorado state court (“State Court Action’),
asserting essentially the same claims as in this action in regard to tanks purchased from
Feldmeier and installed at a different facility than the one at issue in this federal court action. The
state courts found no implosion-related defect in the tanks and Feldmeier did not believe there to
be any defect in the tanks. Nevertheless, after that litigation was commenced and after the tanks
PDF Page 3
Case 1:03-cv-02461-MSK-MEH Document90 _ Filed 04/11/2006 Page 2 of 4
at issue in this action were sold to Leprino, Feldmeier made a slight adjustment in the design of
the tanks (increasing the height differential between the overflow and air vent lines to 9 inches
rather than 6 inches). This design change was disclosed in discovery, but even Leprino’s expert
has made no assertion that the design change corrected a defect or is otherwise relevant to this
litigation.
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. Finally, under Rule 407, subsequent remedial measures are inadmissible to prove a
defect in a product or a product’s design (or other culpable conduct), even if the measures would
have made an alleged injury or harm less likely to occur. Fed. R. Evid. 407; but see Forma
Scientific, Inc. v. Biosera, Inc., 960 P.2d 108 (Colo. 1998) (Colorado’s Rule 407 does not apply
to strict liability claims, but Rules 402 and 403 do apply).
In this case, the design change has no relevance to the events at issue. The admission of
such evidence would merely serve to confuse the jury and unfairly prejudice Feldmeier.
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.
PDF Page 4
Case 1:03-cv-02461-MSK-MEH Document90_ Filed 04/11/2006 Page 3 of 4
WHEREFORE, Feldmeier respectfully requests that the Court enter an order precluding
Leprino from presenting any testimony or other evidence in relation to the change in tank design
that occurred after the tanks at issue were 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 Document90 _ 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: CHANGE OF DESIGN 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:
Michael G. Bohn, Esq.
mbohn@campbellbohn.com
Mr. Jake Feldmeier
jake@tfeldmeier.com
s/Michelle Rocke
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