Free Response to Motion - District Court of Colorado - Colorado

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

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Filed 04/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2461-MSK-OES

LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. DEFENDANT FELDMEIER EQUIPMENT, INC.'S RESPONSE TO PLAINTIFF'S MOTION TO PRECLUDE REFERENCE TO THE STATE COURT ACTION AND THE FINDINGS AND CONCLUSIONS OF LAW IN THE STATE COURT ACTION (DOCUMENT 93) Defendant Feldmeier Equipment, Inc. hereby submits its Response to Plaintiff's Motion in Limine to Preclude Reference to the State Court Action and the Findings and Conclusions of Law in the State Court Action, as follows: I. INTRODUCTION This case relates to a single Feldmeier silo that was purchased by Leprino for its plant in Waverly New York. The silo has been in operation since purchase date and has never had any problems, never suffered any damage and never had a malfunction. Despite the fact the silo is in perfect working order, Plaintiff has filed a claim for design defect, speculating that someday the silo might have a problem if it is operated under conditions that currently do not exist and probably will never exist. Plaintiff previously sued Feldmeier on the exact same issue relating to 15 other silos. That case was tried and Plaintiff lost; completely failing to prove that a design defect exists.

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Plaintiff, in its Motion in Limine, requests the Court to exclude any reference to the existence of the identical State Court Action or the Findings and Conclusions of the Trial Court. Such a request is tremendously overbroad and not supported by law. II. LEGAL ARGUMENT A. The State Court Action is Relevant Necessary to Establish Collateral Estoppel.

Feldmeier objects to the request to exclude anything related to the State Court as it may need to refer to the Judgment or the evidence developed at trial to support its defense of collateral estoppel. See previously filed Defendant's Motion in Limine Re: Tort Claims and Parol Evidence which is incorporated herein. Additionally, Feldmeier has requested that the Court bar Leprino from arguing that the requirement in the parties' contract regarding flow of 1000 gallons per minute ("gpm") relates to the amount of liquid that can flow through a tank's overflow system, i.e., "overflow rate." Such argument is not only contrary to Leprino's testimony in the prior State Court Action, but it is also barred by the doctrine of collateral estoppel because the State Court expressly determined that such a requirement related to the amount of air displacement required for filling or emptying a tank, i.e, "fill rate." See Defendant's Motion in Limine Re: Overflow Rate, which is

incorporated herein. As such, evidence developed in the State Court Action and the Findings and Conclusions will be needed, to establish collateral estoppel or impeach witnesses regarding the flow rate testimony. B. Evidence From State Court Action Necessary to Feldmeier's Defenses.

Feldmeier may put on evidence regarding the $6,000 "repair" that Leprino (Waverly facility) did to the Feldmeier tank. This evidence was all developed in the State Court Action and demonstrates the following:

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i.

Leprino was first informed of a "design flaw" in the Feldmeier silos in

December 2000. That month, Mr. Eric Merritt of Mueller Silos told Chuck Williams, Leprino's Lemoore, California Plant Engineer, that there was a design flaw in the Feldmeier silos and that "the vent and overflow configuration weren't large enough to handle fill rates." Trial testimony from Williams and emails and memos relating to the same will be required to establish these facts. ii. Another company, SFI, rendered a similar opinion to Leprino on or around

August 13, 2001. SFI specifically advised Cullen Cooper, Leprino Engineer, that the 4inch vent/overflow combination was inadequate but that a 6-inch line would have been adequate. A repair design was developed and that design was implemented at the

Waverly plant. Leprino is now seeking as damages the approximately $6,000 it spent in making the repair. Again, State Court evidence and trial testimony will be required to prove these facts. iii. The repair design used at Waverly is based on a faulty mathematical

calculation (it was undisputed in the State Court Action that SFI had a typographical error in its calculations ­ using a flow rate of 3,000 gpm rather than the intended 300 gpm). As such, the repair made was not reasonable and the damages claimed for the repair should not be charged to Feldmeier. The above referenced evidence will be needed to demonstrate that the "repair" was unreasonable and unnecessary. Additionally, the State Court Action testimony clearly

establishes that the statute of limitations, which provides that a Plaintiff bring a claim within two years after learning of the possibility of a design defect, bars Leprino's claims. It is undisputed

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Leprino had notice of an alleged "design flaw" in December 2000, yet failed to bring suit until November 4, 2003, well after the time allowed by the statutes. Feldmeier also anticipates that it will need to refer to trial testimony and exhibits from the State Court Action for rebuttal and impeachment of Leprino witnesses. The witnesses who will be impeached with State Court Action testimony and evidence include, but are not limited to: Plaintiff's in-house counsel, John Alby, regarding the statute of limitations issues (upon which issue he has submitted an affidavit); Plaintiff's expert Larry Mott who testified in the State Court Action and has been listed as a "will call" witness in this case, and; Robert DeLong. Mr. Mott's theory of "design defect" is the same as that which he argued (and lost) in the State Court Action. Mr. DeLong is listed by Leprino as a "may call" witness in this case. He also testified in the State Court Action. Delong requested that Waverly make the "repair" to the Feldmeier tanks after the Trial Court issued its Findings and Conclusions, which demonstrate there is nothing wrong with the tank and after it was proven in the State Court Action that the "repair" design was based on a typographical error; proving the $6,000 repair to the tank was unreasonable and not necessary. Additionally, the Plaintiff has consistently referred the parties back to the State Court Action with regard to discovery issues. See, Plaintiff's First Supplemental and Amended

Response to Defendant's First Set of Interrogatories, Requests for Production of Documents and Requests for Admission, Response to Interrogatory No. 4, 5, 10 and 12 (attached as Exhibit A). The individual who signed Leprino's Responses to Interrogatories and Requests for Production, Thurman Blanchard, may be questioned about those responses and impeached with the same. Finally, evidence is needed to prove that Leprino's "problems" are caused entirely by Leprino. The Waverly tank at issue has not had any problems. It has been in constant use since

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it was purchased and never suffered an implosion or other damage. As such, Leprino's theory of a "design defect" is based on speculation that someday, under conditions that currently do not and cannot exist, the tank might not work properly.1 The State Court Action proved that the only Feldmeier tanks Leprino imploded were imploded because of Leprino's own errors in operation, not a design defect. As such, reference to Leprino's inadequate care and maintenance of the tanks, which lead to only implosions Leprino suffered, may be required. These are only a few of the examples of why trial testimony and evidence developed in the State Court Action may be necessary at this trial. Obviously, we cannot list all of the testimony required as it is unknown how witnesses will testify. As such, Leprino's Motion must be denied as there are clearly many instances upon which the parties will need to refer to the State Court Action. WHEREFORE, Feldmeier respectfully requests the Court deny Plaintiff's Motion in Limine to Preclude Reference to the State Court Action and The Findings and Conclusions of Law in the State Court Action (Document 93). Respectfully submitted this 21st day of April, 2006. FOWLER, SCHIMBERG & FLANAGAN, P.C.

s/ Catherine A. Tallerico Catherine A. Tallerico 1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603 ATTORNEYS FOR DEFENDANT
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The pump on Leprino's sole Feldmeier tank can only pump at a rate of 260 gpm. No one questions the ability of the Feldmeier tank to handle such a flow. Plaintiff speculates that someday it may want to pump 1000 gpm in and out of the tank. There is no question that the tank can handle this too. Plaintiff simply asserts that the tank can't handle an "upset condition" of overflow at 1000 gpm. A condition that has never occurred and can never occur, unless Leprino modifies its plant to an extreme and then has a complete operational failure.

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of April, 2006, I caused a true and correct copy of the foregoing DEFENDANT FELDMEIER EQUIPMENT, INC.'S RESPONSE TO PLAINTIFF'S MOTION TO PRECLUDE REFERENCE TO THE STATE COURT ACTION AND THE FINDINGS AND CONCLUSIONS OF LAW IN THE STATE CAUSE ACTION (DOCUMENT 93) to be delivered to the following via U.S.D.C. ECF and/or U.S. First Class mail: Michael G. Bohn, Esq. [email protected] Mr. Jake Feldmeier [email protected]

s/ Diana L. Wilcox Diana L. Wilcox, Legal Assistant

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