Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :06-cv—00275-GIVIS Document 111 Filed 04/07/2008 Page 1 013
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT D. CHRIST, )
J
Plaintiff )
)
v. )
) C.A. N0. 06-275-GMS
BRETT J. CORMICK and ELAN SUISSE )
INTERNATIONAL HOLDINGS (USA), )
)
Defendants. )
ELAN SUISSE LTD., g
Plaintifi g
v_ ) C.A. No. 07-60-GMS
)
ROBERT D. CHRIST, g
Defendant. I
ANSWERING MEMORANDUM OF LAW IN OPPOSITION TO
MOTION IN LIMINE TO PRECLUDE HEARSAY TESTIMONY
Plaintiff Robert D. Christ hereby respectfully submits this memorandum of law in
opposition t0 the Motion In Limine to Preclude Hearsay Testimony (D.I. 104) tiled by Brett J.
Cormick, Elan Suisse International Holdings (USA) LLC and Elan Suisse Ltd. (collectively,
"Movants"):
I . Through their motion, Movants seek an order excluding from trial °‘any testimony
from Mr. Christ, and any related documents derived from investigation rather than his personal
observation." In doing so, Movants ask this Court to impose a blanket restriction on all allegedly
hearsay evidence without identifying the specific evidence to which they obj ect. Mr. Christ
respectfully submits that it is improper for Movants to seek such relief and requests that the
Court decline to grant it.

Case 1 :06-cv—00275-GIVIS Document 111 Filed 04/07/2008 Page 2 of 3
2. Movants’ application is based on the incorrect premise that “Mr. Christ is not a
percipient witness to the facts which he alleges were misrepresented, or many of the false
accusations making up the defamation clairn.” Motion il 4.l To the contrary, Mr. Christ will
testify from his personal knowledge as to, inter alia, his dealings with Mr. Cormick, the
fraudulent statements made to him upon which his claims are based, and the facts which prove
the falsity of those statements. To the extent Movants challenge whether Mr. Christ will testify
as to his own personal observations or information he has derived from other sources, Mr. Christ
should be given the opportunity at tri al to lay the foundation for his knowledge. See l
McCormick an Evidence § 10 (6th ed. 2006). If Mr. Christ’s testimony at trial indicates that his
knowledge relies upon out—of-court statements, then Movants may make an appropriate hearsay
objection. See ia'.
3. It is inappropriate at this stage, however, to preclude on a wholesale basis all
evidence which Movants allege may be hearsay F particularly when Movants have not identified
with specificity which pieces of information they contend are objectionable. As to any particular
out-of-court statement as to which Mr. Christ may testify, it may fall within any number of
exceptions tothe hearsay rule, or it may not constitute hearsay at all. See F.R.E. 801, 803.
Without giving Mr. Christ an opportunity to demonstrate that particular pieces of information are
not hearsay, or fall within one of the exceptions to hearsay, it is unfair for Movants to ask for a
blanket limitation on all such intbrmation.
I Movants also state incorrectly that the witnesses other than Mr. Christ from whom testimony
will be provided have no relevant knowledge concerning these actions. See Motion il 3. As Mr.
Christ explains in his responses to Movants’ other motions in Iimine, these witnesses’ testimony
relates to, inter alfa, Mr. Cormick’s intent, knowledge, lack of good faith, reputation and
credibility.
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Case 1 :06-cv—00275-GIVIS Document 111 Filed 04/07/2008 Page 3 of 3
4. Mr. Christ respectfully submits that the proper and more reasoned approach is for
the parties and the Court to consider, on a case-by-case basis, whether specific pieces of
evidence are inadmissible hearsay. To that end, Movants already have noted their objections to
Mr. Christ’s proposed trial exhibits in the Pre-Trial Order. At trial, Mr. Christ should be
afforded an opportunity to lay the foundation that his testimony is based on his personal
knowledge as derived from his own senses. If Movants believe that Mr. Christ’s testimony
violates Rule 602 or is based on hearsay, they can object as appropriate and Mr. Christ can, in
turn, be afforded an opportunity to prove that the proffered evidence is admissible. Precluding
the introduction of all information derived from third parties or documents, without identifying
the objectionable information or permitting Mr. Christ to rebut Movants’ objections, will unfairly
prejudice Mr. Clrrist’s ability to present his case.
WHEREFORE, for the foregoing reasons, Mr. Christ respectfully requests that the
Motion In Limirre to Preclude Hearsay Testimony be denied.
REED SMITH LLP
/s/’ Thad J Bmcegfrdfe
Thad J. Braeegirdle (No. 3691)
120} Market Street, Suite 1500
Wilmington, Delaware 19801
(302) 778-7500
Attorneys for Robert D. Christ
Dated: April 7, 2007
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Case 1:06-cv—OO275-G|\/IS Document 111-2 Filed O4/07/2008 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT D. CHRIST, )
)
Plaintiff, )
)
v- )
) C.A. No. 06-275-GMS
BRETT J. CORMICK and ELAN SUISSE )
[NTERNATIONAL HOLDINGS (USA), )
)
Defendants. )
ELAN SUISSE LTD., )
)
Plaintiff, )
)
v_ ) C.A. No. 07-60-GMS
)
ROBERT D. CHRIST, )
)
_ Defendant. )
CERTIFICATE OF SERVICE
I, Thad J. Bracegirdle, hereby certify that on April 7, 2008, I caused a true and correct
copy of the foregoing Answering Memorandum of Low in Opposition to Motion in Lirnine to
Preclucie Heorsay Testimony to be served on counsel for defendants as listed below,
electronically via CMJECF.
Attorneys for Dejeno'onts.·
David L. Finger, Esquire
Finger & Slanina, P.A.
One Commerce Center, Suite 725
1201 North Orange Street
Wilmington, DE 198OI-1155
Dated: April 7, 2008
/c/ Thad JC Brocegirdie
Thad J. Bracegirdle (No. 3691)
WILLIE!-58324.1