Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 112

Filed 05/08/2006

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

LEPRINO FOODS COMPANY, Plaintiff, v. FELDMEIER EQUIPMENT, INC., Defendant. DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE RE: UNRELATED EVENTS (DOCUMENT 102) Defendant, Feldmeier Equipment, Inc. ("Feldmeier"), by and through undersigned counsel, hereby submits its Reply in Support of Motion in Limine re: Unrelated Events, as follows: REPLY Leprino's Response does not dispute that Leprino bears the burden of demonstrating the relevance of any implosion events unrelated to the sole tank at issue in this federal action, which has not even experienced implosion. Leprino makes no effort to explain how unrelated implosion events are relevant to the alleged defect at issue in this case, particularly where the mere fact of an implosion is insufficient to demonstrate the existence of a defect due to the fact that implosions occur due to operator error in perfectly manufactured tanks. Nor does Leprino make any effort to demonstrate that any unrelated implosion events are substantially similar to the facts in this case ­ not even Leprino's expert testifies to that effect. Without any scientific

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

Document 112

Filed 05/08/2006

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basis for linking the unrelated events to the facts of this case, the only result of admitting evidence of such unrelated events will be jury confusion and undue prejudice. WHEREFORE, Feldmeier respectfully requests that the Court enter an order precluding Leprino from presenting any testimony or other evidence in relation to the unrelated implosion events involving tanks other than those sold to Leprino. Respectfully submitted this 8th day of May, 2006. FOWLER, SCHIMBERG & FLANAGAN, P.C.

s/ Catherine A. Tallerico Catherine A. Tallerico Timothy J. Flanagan 1640 Grant Street Denver, Colorado 80203 Telephone: 303.298.8603 ATTORNEYS FOR DEFENDANT

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

Document 112

Filed 05/08/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on this 8th day of May, 2006, I caused a true and correct copy of the foregoing DEFENDANT'S REPLY IN SUPPORT OF MOTION IN LIMINE RE: UNRELATED EVENTS (DOCUMENT 102) to be was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

Michael G. Bohn, Esq. [email protected] Mr. Jake Feldmeier [email protected]

s/ Michelle Rocke

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