Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00533-CFL

Document 106

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FENTON GINGERICH, et.al., Plaintiffs, vs.

UNITED STATES OF AMERICA Defendant.

§ § § § § § § § § §

Docket No. 98-533T, et. al.

Judge Lettow

PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION IN LIMINE Defendant moves for an order to exclude at trial any exhibits and witnesses due to plaintiffs' failure to provide exhibit or witness lists. In response to the Defendant's Motion in Limine, plaintiffs, Fenton Gingerich, et. al., ("Plaintiffs") apologize for the delay and would show the Court as follows: Defendant's motion rests on RCFC Appendix A, ¶ 13(a) and (b), which provides that failure to list an exhibit or witness shall result in exclusion of the exhibit or witness absent contrary agreement of the parties or a showing of a compelling reason for the failure. Plaintiffs have represented to Defendant, and the Court, that Plaintiffs' case rests on (i) the documentary evidence previously identified, particularly the exhibits attached to and relied upon in the motions for summary judgment filed in this case, including the letters from each of the individual plaintiffs to the IRS accepting the settlement offer and outlining the terms of and procedure for the acceptance, and (ii) the testimony of the two parties' representatives who negotiated the settlement agreement at issue and whose depositions were taken in preparation for and relied upon in the motions for summary judgment, Thomas E. Redding and Bruce Wilpon.

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Case 1:98-cv-00533-CFL

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On November 30, 1998, Plaintiffs first served Defendant with witness and exhibit lists for trial. A list of these documents, Plaintiffs' First Amended Exhibit List, was served on Defendant on December 16, 1998. A copy of that first amended trial exhibit list is attached as Exhibit A to the Plaintiffs' Response to Defendant's Motion to Compel Answers to Interrogatories filed as Document #16 on March 16, 1999. Ironically, in the earlier preparations for trial it was the Defendant who failed to prepare and serve witness and exhibit lists. See footnote 1 to Document #16. Plaintiffs supplemented their list of trial exhibits on April 5, 1999. With the exception of the documents necessary to address the issues raised by this Court in January of 2006, these lists identify the documents that make up Plaintiffs' case-in-chief and have not changed in the intervening six years. Plaintiffs have consistently represented to the Court and to counsel for Defendant, since he assumed responsibility for the case at the end of 2005, that these documents, particularly the documents relied upon in the motions for summary judgment comprised Plaintiffs' case. (Mr. King is the fourth government counsel to assume responsibility for the case, not including appellate counsel. His approach represents the forth approach to the case taken by the government. Your Honor is the third judge assigned to the case.) Over the course of this year, the most recent counsel for Defendant became sufficiently familiar with the case to ultimately agree that the Exhibits identified in 1998, particularly the documents attached to the motions for summary judgment represented the crux of the case. In September of 2006, October of 2006, and November of 2006, in communications between Plaintiffs and Defendant, Plaintiffs represented - and Defendant understood - that their case in chief consisted of the previously identified documents, particularly the exhibits attached to the motions for summary judgment.

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In summary, Defendant cannot claim surprise or unfair advantage to the extent that these exhibits and witnesses should be excluded. The more complicated issue, however, is the exhibits and identify of witnesses relating to the individual plaintiff's intent. On January 30, 2006, the Court directed that the individual plaintiff's intent was an issue for trial pursuant to the opinion of the appellate court. As the Court is aware, the issue of the individual plaintiff's intent was not addressed during discovery in preparation for the motions for summary judgment and that Judge Turner had accepted the discovery responses and testimony of Plaintiffs' representative Thomas E. Redding with regard to the particulars of intent and settlement procedure. Consequently, the individual plaintiff's intent had not been directly addressed other than by interrogatories, which Judge Turner allowed Mr. Redding to execute on behalf of the plaintiffs. In September of 2006, during the conference regarding the government's motion to enlarge the time for exchanging and filing exhibit and witness lists, Plaintiffs discussed with Defendant the complications raised by the death and incapacity of the individual plaintiffs. This complication only became apparent over the course of the summer of 2006, during the course of preparing for trial. Counsel's most recent communication with plaintiffs prior to trial preparations had been approximately 18 months earlier to obtain settlement authority, the negotiations for which were ended upon the retirement of prior defense counsel and current defense counsel's assumption of the case. The estates and representatives were unaware of the litigation and, with only one exception, did not notify counsel upon plaintiffs' deaths or incapacity. This complication unfortunately coincided with several conflicts that have impaired plaintiffs ability to establish and document the representative parties' identities and locate alternative testimony

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of their personal intent to settle in addition to their personal letters to the IRS accepting the settlement offers and Mr. Redding's testimony. Those conflicts include illness of Plaintiffs' counsel and her children. In early September of 2006, through mid-October of 2006, Plaintiffs' counsel was out of the office extensively due to a football injury her son sustained to his arm. That injury required almost daily physician and physical therapy appointments. While counsel for Plaintiffs is happily married to her wonderful husband who is an equal partner in raising their children, he has, uncharacteristically, been required to travel extensively for his job as a bank systems manager over the course of this year (he worked in Dallas from February of 2006 to June of 2006 and has been assigned to Phoenix for most of November through December of 2006). Counsel is the sole caregiver for her children in her husband's absence. As the Court is aware, counsel herself contracted a respiratory infection that limited her ability to work for a three week period in October. These two illnesses were the cause of the immediate delays in identifying the additional documentation and identity of the witnesses necessary to the individual plaintiff's settlement intent addressed at the conference on October 24, 2006, which resulted in the continuance of the case until December, 2006. At the October 24, 2006 conference, the Court reset the trial and gave plaintiffs until November 7, 2006, to address the intent issue and prepare exhibit and witness lists. This enlargement would have been sufficient, notwithstanding illness, had it not been for the conflicts that arose in the AMCOR cases currently pending before the Court of Federal Claims and various districts of the Fifth Circuit. As this Court is aware, there are over 100 AMCOR related cases currently pending in the Court of Federal Claims. Most of these cases were recently re-assigned to Judge Block, with limited

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exceptions, including the cases assigned to Judge Allegra and to this Court.1 Briefing on multiple dispositive motions has proceeded in the cases pending before Judge Block and Judge Allegra. Oral argument was held on the cases before Judge Block on October 8, 2004. By leave of the Court, the government filed multiple supplemental motions to dismiss after the close of scheduled briefing in each of the AMCOR test cases pending before Judge Block and Judge Allegra. See the government motions filed in August, September, and October and the plaintiffs' responses filed in September, October, and November of 2006, in Keener v. United States, Docket No. 03-2028T, consolidated with Smith v. United States Docket No. 04-907T; Isler v. Untied States, Docket No 01-344T; Scuteri v. United States, Docket No. 01-358T; and Prati v. United States, Docket No. 02-60T. Following the filing of the supplemental motions, responses and relies, on October 30, 2006, Judge Allegra set Keener and Smith for oral argument on all remaining issues. That oral argument was held November 16, 2006. The issuance of an opinion by the Fifth Circuit in another AMCOR test case created further scheduling conflicts with this case. See Beall v. United States, -- F.3d --, 2006 WL 2873631, 98 A.F.T.R.2d 2006-7244 (5th Cir., October 11, 2006). The Beall opinion addressed the, then, final issue remaining issue in the AMCOR cases pending in the various federal district courts of the Fifth Circuit. (Although, on November 27, 2006, counsel filed a petition for re-hearing to clarify issues left unresolved by the Beall decision, and the government has since indicated that it intends to raise

This Court did not transfer its AMCOR cases to Judge Block, but retained jurisdiction. On August 24, 2006, this Court suspended the cases it retained and issued a scheduling order in Ivey v. United States, Docket no. 05-223T. In addition to the cases identified in the motion to suspend in Ivey, one other AMCOR cases has since been assigned to this Court, Epps v. United States, Docket No. 06-615T. The Court has suspended further activity in that case pending the outcome of the AMCOR test cases. 5

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some of the issues in the supplemental motions to dismiss filed in the Court of Federal Claims cases.) There are an equal number of AMCOR related cases pending in the various district courts of Texas and Louisiana, the stays of which were set to terminate and status reports were to be filed upon activity in the test case(s). Counsel has spent the a great part of the enlargement of time to prepare for trial in this case preparing the status report due pursuant to those standing orders. While counsel has diligently attempted to obtain the documents necessary to establish the identities of the parties in interest in this case and to establish plaintiff's personal intent with respect to their settlements with the IRS so as to update and supplement the previously produced lists of witnesses and exhibits, a compelling reason(s) exists for the failure to meet the scheduled deadlines. For the above reasons, Plaintiffs apologizes to the Court for their inability to timely meet the scheduling deadlines established by the Court and respectfully request that the Court deny the Defendant's Motion in Limine.

Respectfully, /s/ Teresa J. Womack Teresa J. Womack Texas State Bar No. 00788707 Redding & Associates, P.C. P.O. Box 924328 Houston, Texas 77292-4328 (713) 965-9244 (713) 621-5227 (Fax) ATTORNEY FOR PLAINTIFFS

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