Free Motion in Limine - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

Document 233

Filed 03/01/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cv-2669-MSK-PAC LEPRINO FOODS COMPANY, Plaintiff, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; BIG-D CORPORATION, a Utah corporation; BIG-D CAPITAL CORP., a Wyoming corporation; and Does 1-100, inclusive, Defendants/Counterclaimants, BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; BIG-D CONSTRUCTION CORP., a Utah corporation; and Does 1-100, inclusive, Third Party Plaintiffs, v. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Defendant. MARELICH MECHANICAL CO., INC. dba UNIVERSITY MARELICH MECHANICAL, a California corporation, Third Party Plaintiff/Counterclaimant, v. BIG-D CONSTRUCTION CORP. - CALIFORNIA, a Utah corporation; FEDERAL INSURANCE COMPANY, an Indiana corporation; and Roes 20 through 80, inclusive, Counterdefendant/Third Party Defendants. PLAINTIFF' RENEWED MOTION IN LIMINE NUMBER 1: S TO PRECLUDE REFERENCE TO 9/11

Case 1:03-cv-02669-MSK-PAC

Document 233

Filed 03/01/2006

Page 2 of 7

Plaintiff Leprino Foods Company ("LFC") moves the Court for an Order in limine to preclude the parties, their witnesses, and their attorneys from referring to, and/or presenting evidence of, the terrorist attack on the World Trade Center on September 11, 2001 ("9/11") and/or its effect on the construction project at issue, in the presence of the jury. CERTIFICATE OF COMPLIANCE WITH D.C.COLO.LCivR 7.1A Pursuant to D.C.COLO.LCivR 7.1A., counsel for the parties participated in a conference call on February 28, 2006 wherein counsel for the Big-D Defendants and Third-Party Defendant Marelich Mechanical Co., Inc. objected to the relief requested herein. I INTRODUCTION This action arises from delays in the construction of a cheese manufacturing and dairy storage facility in Lemoore, California ("Project"). LFC, as owner, entered into a general contract on September 1, 2000, with Defendant Big-D Construction Corp.-California, a subsidiary/affiliate of other Big-D entities ("Big-D") to construct the Project ("Contract"). Third-Party Defendant

Marelich Mechanical Co., Inc. d/b/a University Marelich Mechanical ("UMM") was a mechanical subcontractor to Big-D on the Project. The need for this motion regarding references to 9/11 originates from questioning presented by counsel for Big-D and UMM in depositions. Particularly, during the depositions of LFC representatives, counsel for Big-D and UMM attempted to relate the events of 9/11 to the Project in a manner prejudicial to LFC, without any relevant or tenable connection. From the context of counsel' questioning during the depositions, it seems Big-D and UMM were looking for, but failed s

2

Case 1:03-cv-02669-MSK-PAC

Document 233

Filed 03/01/2006

Page 3 of 7

to find, evidence that LFC withheld approval of a certain Project expenditure (referred to as "Authorization for Expenditure" or "AFE") while it tried to re-price the AFE to obtain lower pricing that it anticipated would follow from 9/11' effect on the national economy, and that this withholding s of approval of the AFE somehow resulted in a delay to the Project completion. Although Big-D and UMM have no factual basis with which to support this theory, LFC believes they might attempt to use the tragic events of 9/11 improperly to invoke negative emotion in the jury against LFC by inferring that LFC took advantage of a national tragedy for monetary gain, thereby substantially and unfairly prejudicing LFC. II ARGUMENT A. The court has the authority to issue pre-trial orders barring evidence.

Although not expressly authorized by the Federal Rules of Civil Procedure or the Federal Rules of Evidence, "motions in limine are well recognized in practice and by case law." Rutter Group Prac. Guide: Federal Civil Trials & Evidence (TRG), § 4.322. A district court' grant of a s motion in limine is ordinarily reviewed for an abuse of discretion. U.S. v. Gutierrez-Gonzalez, 184 F.3d 1160, 1164 (10th Cir. 1999). The timing of motions in limine "should be left to the discretion of the trial court with a reminder that advance planning helps both parties and the court." U.S. v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979), overruled on other grounds, Luce v. U.S., 469 U.S. 38 (1984). B. 9/11 is irrelevant to a claim of delay.

Pursuant to Fed. R. Evid. 401, evidence is relevant only if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." It is within the discretion of the trial court to make

3

Case 1:03-cv-02669-MSK-PAC

Document 233

Filed 03/01/2006

Page 4 of 7

a determination regarding relevance. Beacham v. Lee-Norse, 714 F.2d 1010, 1014 (10th Cir. 1983). Further, the significance of evidence must be explained before it is introduced. Thus, "if the attorney fails to adequately explain the significance, that is, the effect the evidence will have on the probability of the proposition to be established, the court may properly sustain an objection to its introduction." 2-401 Weinstein' Federal Evidence § 401.01. s If Big-D or UMM has evidence that the re-pricing of the AFE actually caused delay to the Project schedule, they can present the issue without the inflammatory reference to 9/11. The parties simply need to provide evidence of how re-pricing the AFE affected the schedule, if at all. Putting the re-pricing of the AFE in the context of 9/11 does not make it more probable that the re-pricing caused delay to the Project. In other words, if the re-pricing caused a delay, it would have done so regardless of the 9/11 tragedy. Thus, under Fed. R. Evid. 401, the events of 9/11 are irrelevant because they do not tend to make the delay effect of re-pricing more probable than not. Even if Big-D and UMM had evidence of a connection between 9/11 and the AFE re-pricing or of any improper motivation of LFC in re-pricing the AFE, which they do not, LFC' motivation in res pricing, other than an obvious interest in saving money, is not relevant to the ultimate allegation that the re-pricing caused delay. C. The prejudice of references to 9/11 would substantially outweigh any probative value.

If this Court determines that testimony regarding the temporal proximity of LFC' re-pricing s to 9/11 is somehow relevant, the Court must also evaluate whether the unfair prejudice to LFC outweighs the probative value of the evidence. According to Fed. R. Evid. 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 4

Case 1:03-cv-02669-MSK-PAC

Document 233

Filed 03/01/2006

Page 5 of 7

the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. "Unfair prejudice" can be defined as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403 advisory committee' s note (emphasis added). Furthermore, "prejudice is also unfair if the evidence was designed to elicit a response from the jurors that is not justified by the evidence." 2-403 Weinstein' Federal Evidence § s 403.04(a)(b) (emphasis added). Exclusion of evidence based upon its prejudicial effect is a matter determined by the trial court, and that determination will not be disturbed on appeal "absent a showing of clear abuse of discretion." Beacham, 714 F.2d at 1014. See also Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561 (10th Cir. 1978), citing Rigby v. Beech Aircraft Co., 548 F.2d 288 (10th Cir. 1977). Allowing any reference to 9/11 would result in unfair prejudice to LFC that would substantially outweigh any probative value the reference might have. While delay associated with the Project is arguably a major contention of all parties to this action, insinuating that LFC demanded a re-pricing only to take monetary advantage of a national tragedy is simply untrue and inflammatory and would cause the jury to "lose sight of the essential issue in the case." See Hicks v. Mickelson, 835 F.2d 721, 726 (8th Cir. 1987). While based upon a different national tragedy, the First Circuit recently addressed a similar issue, regarding the exclusion of references to the 1995 Oklahoma City bombing at trial. In United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997), the court held that the trial court abused its discretion by denying a motion in limine and allowing certain references to the Oklahoma City bombing. Balancing probative value and prejudice, the Court of Appeals explained:

5

Case 1:03-cv-02669-MSK-PAC

Document 233

Filed 03/01/2006

Page 6 of 7

The probative value of this evidence was, at best, slight . . . The danger of unfair prejudice, however, is tremendous. Undue focus on evidence of the Oklahoma City bombing and resulting deaths, as well as subsequent bomb threats and evacuations, serves only to evoke an improper emotional response from the jury, distracting the jury from careful consideration of the relevant issues before it and thereby prejudicing [defendant]. Id. at 1497-1498. Similarly, there are few events, if any, in American history that evoke more highly charged emotions and opinions today than the tragic events of 9/11. To suggest that LFC somehow took advantage of 9/11 to obtain lower pricing for the Project is not only unsubstantiated and irrelevant to delay issues, but also highly inflammatory. The purpose of presenting such evidence or commentary before the jury could only be to gain an unfair advantage by smearing LFC' image, evoking an s improper emotional response and distracting the jury from the truly relevant issues. III CONCLUSION Allowing any reference to 9/11 would be improper and would contravene Fed. R. Evid. 401 and 403. Big-D' and UMM' unsubstantiated theories of LFC' profiteering in the wake of 9/11 are s s s not relevant to Project delays. The danger of unfair prejudice posed to LFC by referencing 9/11 at trial in the context of AFE re-pricing would substantially outweigh any arguable probative value of such a reference. Accordingly, Defendants, Third-Party Defendants and their attorneys and witnesses should be ordered to refrain from making any reference to 9/11 at trial before the jury.

6

Case 1:03-cv-02669-MSK-PAC

Document 233

Filed 03/01/2006

Page 7 of 7

Respectfully submitted this 1st day of March 2006. LEPRINO FOODS COMPANY

By:

/s/ Michael G. Bohn Michael G. Bohn Bret M. Heidemann Campbell Bohn Killin Brittan & Ray, LLC 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] Patrick T. Markham Jacobson & Markham 8880 Cal Center Drive, #100 Sacramento, California 95826 Telephone: (916) 854-5969 Facsimile: (916) 854-5965 [email protected]

CERTIFICATE OF SERVICE I hereby certify that on the 1st day of March 2006, I electronically filed the foregoing PLAINTIFF' RENEWED MOTION IN LIMINE NUMBER 1: TO PRECLUDE S REFERENCE TO 9/11 with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Christopher J. Hersey of [email protected] Francis (Frank) J. Hughes of [email protected] Patrick Quinn Hustead of [email protected] Peter J. Ippolito of [email protected] Richard Carl Kaufman of [email protected] John David Mereness of [email protected] Daniel James Nevis of [email protected] Laurence R. Phillips of [email protected] C. Michael Montgomery of [email protected] N. Kathleen Strickland of [email protected] /s/ Cori Atteberry Cori Atteberry, Legal Assistant

7