Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02461-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02461-MSK-MEH LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' S S MOTION IN LIMINE RE: CHANGE OF DESIGN (Document 90)

Plaintiff Leprino Foods Company (" Leprino" states as follows in opposition to ) " Defendant' Motion in Limine Re: Change of Design" (" s Motion" ):

I. INTRODUCTION Defendant erroneously argues that evidence of Defendant' design changes to s certain silo storage tanks should be precluded pursuant to Fed. R. Evid 407, in addition to Fed. R. Evid. 402 and 403. Defendant's Motion must be denied because it is

premature as well as legally and factually baseless. II. ARGUMENT Defendant attempts to blur the distinction between this lawsuit and the State Court Action. The two cases involve different silos and different contracts with different specifications. This lawsuit concerns an Equipment Purchase Agreement entered into

Case 1:03-cv-02461-MSK-MEH

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between Leprino and Defendant, whereby Defendant was to manufacture and Leprino was to purchase a vertical, insulated stainless steel silo storage tank and related equipment for use in its dairy manufacturing facility in Waverly, New York. The contract for the Waverly silo contained express specifications that required the silo "to handle 1000 GPM both inward flow and outward flow simultaneously. This will include venting and external ports sized to handle the 1000 GPM flow." The State Court Action

involved Defendant's manufacture of vertical, insulated stainless steel silo storage tanks and related equipment for other Leprino manufacturing facilities throughout the United States. The contracts at issue in the State Court Action contained different

specifications for the inward flow of liquid that the silos were to handle. As such, the findings in the State Court Action have no implication on this case. Nonetheless, Defendant maintained in the State Court Action, as it still does in its Motion, that there is no defect in any of Defendant' silo tanks. That assertion by s Defendant effectively negates its arguments that the subsequent change in the design of its silos is inadmissible by operation of Fed. R. Evid. 407. By maintaining that its silos were never defective, a change in the design of the silos would not be considered a subsequent remedial measure, since there would have been nothing for Defendant to remediate. Thus, Defendant cannot rely on the preclusive effect of Fed. R. Evid. 407. To the extent Defendant argues that its design change was a subsequent remedial measure to remediate something it contends was never a defect, evidence regarding that design change is still admissible.

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Fed. R. Evid. 407 actually provides for the admissibility of subsequent remedial measures, and states in pertinent part as follows: " This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." Fed. R. Evid. 407 (emphasis added). Clearly, Leprino is entitled to present evidence of Defendant' subsequent design change to show the feasibility of s that change and for the impeachment of Defendant' witnesses. However, Defendant' s s Motion is premature since it is unknown what arguments will be made by Defendant in those regards. The Court should properly defer ruling on the Motion until such time at trial when the evidence is sought to be introduced. Moreover, Defendant' contention that such evidence would be unfairly s prejudicial also fails. The trier of fact must be allowed to assess all relevant information in deciding whether Defendant's internal vent and overflow arrangement is defective. Since Defendant has always maintained that it is not defective, it would not be unfairly prejudicial for the trier of fact to hear about the design change and Defendant's reasons for making the change. III. CONCLUSION Defendant' Motion is premature as well as factually and legally baseless. s Accordingly, Defendant' Motion must be denied. s

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Respectfully submitted this 28th day of April 2006. CAMPBELL BOHN KILLIN BRITTAN & RAY, LLC

By:

s/ Bret M. Heidemann Michael G. Bohn Bret M. Heidemann 270 St. Paul Street, Suite 200 Denver, Colorado 80206 Telephone: (303) 322-3400 Facsimile: (303) 322-5800 [email protected] [email protected] ATTORNEYS FOR PLAINTIFF LEPRINO FOODS COMPANY

CERTIFICATE OF SERVICE I hereby certify that on the 28th day of April 2006, I electronically filed the foregoing PLAINTIFF' RESPONSE IN OPPOSITION TO DEFENDANT' MOTION IN S S LIMINE RE: CHANGE OF DESIGN (Document 90) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Catherine A. Tallerico, Esq. at [email protected] s/ Cori Atteberry Cori Atteberry, Legal Assistant

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