Free Response to Motion - District Court of Delaware - Delaware

Case 1 :07-cv-00008-SLR Document 23 Filed 08/23/2007 Page 1 of 4
W IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DELAWARE RIVER & BAY
AUTHORITY
C. A. No. 07-00008-SLR
v.
JAN D. KOPACZ
DEFENDANT’S RESPONSE TO PLA]NTIFF’S MOTION IN LIMINE
Introduction: A few of DRBA’s statements in its Background section are incorrect.
DRBA suggests that the issue which the Court must decide is whether DRBA’s conduct in
refusing to pay maintenance was wrongful, thus subjecting it to consequential damages. That is
only partially true. Kopacz also seeks attorney’s fees and punitive damages, and proof to justify
those recoveries is different.
DRBA also states that DRBA is liable for maintenance "un1ess it is provided by others at
no expense to the seaman? It cites Shaw v. Ohio River C0., 526 F.3rd 193 (3"' Cir. 1995) as its
authority for this statement. Shaw does not so hold and, in fact, Shaw’s holding precludes DRBA
from taking a credit for the long term disability payments by Hartford, as discussed in Kopacz’s
Trial Brief.
A. Evidence of the earlier litigation and harassment of Kopacz while on the job is
clearly relevant.
DRBA suggests that Kopacz wants to relitigate the August 2002 accident, but that is not
the case. Kopacz estimates that it will take l to l % hours to present his entire case, which
consists of the testimony of two witnesses. It would take far longer than that to relitigate the
K earlier case.
The Court can certainly take judicial notice of its own records and those of the appellate
court to which an appeal of that case was taken. Indeed, the Court will have to read the appellate
decision because it will be controlling on the issue of Kopacz’s right to punitive damages. There
are parts of that record to which Kopacz will refer on the issue of whether DRBA’s failure to pay
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Case 1 :07-cv-00008-SLR Document 23 Filed 08/23/2007 Page 2 of 4
maintenance was in bad faith. Proof of bad faith is required to support an award of attorney’s fees
and costs. See Deisler v. McC0rmackAggregates C0., 54 F.3a' 1074, 1087 (3'd Cir. 1995). The
standard for awarding punitive damages has not yet been determined, but if allowed punitive
damages may require a fmding that a vicious motive was involved. Evidence of bad blood
between the parties, as shown by the litigation from the August 2002 accident and the harassment
of Kopacz prior to the denial of maintenance which is involved in this case, is certainly relevant to
those issues as it is to the issue of bad faith itself.
B. Evidence of what Kopacz suffered by reason of not having his maintenance
paid should not be excluded.
Kopacz was deposed for three hours or so on July 18, 2007. The deposition was taken so
late in the discovery period simply because DRBA did not seek a deposition until very late in the
discovery period. During that deposition DRBA was unfettered in its discovery, and it was Bee to
delve as deeply as it wished to determined the extent of what Kopacz suffered since Kopacz’s
counsel did not interfere at all.
Likewise, DRBA waited until the very end of discovery before serving interrogatories, so
it should not complain that the answers to its interrogatories came late in the discovery period. Its
arguments suggest that both the interrogatories and deposition were conducted in an effort to
make a record that for some reason or other some of Kopacz’s evidence should be precluded.,
This argument should carry very little weight since a jury is not involved, and the Court is much
more sophisticated when examining evidence that is offered.
The argument about lack of expert testimony is also unconvincing. Maintenance cases are
intended to be free of unnecessary technicalities, and the seaman’s burden is light. For example,
records that are ordinarily considered to be hearsay can nevertheless be admitted on some other
basis. See Sana v. Hawaiian Cruises, Ltd., 181 F. 3'd 1041 (9"' Cir. 1999).
Finally, as anyone suffering from high blood pressure knows, that condition can be
controlled by medication for years but it can nevertheless be aggravated by stressful
circumstances. Kopacz can certainly testify to his condition, including hypertension, before the
maintenance was stopped, and how stressed he was by reason of having to forgo monthly
payments. The Court is certainly more than competent enough to decide how seriously Kopacz
was affected by the failure to get his maintenance. In short, the evidence should be permitted.
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Case 1:07-cv-00008-SLR Document 23 Filed 08/23/2007 Page 3 of 4
Conclusion
For the foregoing reasons, DRBA’s Motion in Limine should be denied.
Respectfully,
E. Alfred Smith and Associates Seitz, VanOgtrop and Green, P.A.
/s/ E. Alfred Smith /s/ Bernard A. VanOgtrop
E. Alfred Smith Bernard A. VanOgtrop (447)
[email protected] [email protected]
Attorneys for Defendant 222 Delaware Ave., Suite 1500
Wilmington, DE 19899
(302)888—0600
Attorneys for Defendant

Case 1 :07-cv-00008-SLR Document 23 Filed 08/23/2007 Page 4 of 4
CERTIFICATE OF SERVICE
I, Bernard A. Van Ogtrop lD#447, hereby certify that on this 23rd day of August,
2007, I electronically tiled the following document with the Clerk of the Court using CM/ECF
which will send notification of such filing to counsel of record:
Defendant’s Response to Plaintiff’ s Motion in Limine
` /s/ Bernard A. Van Ogtrop (ID No.447)