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

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

Document 111

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: CHANGE OF DESIGN (DOCUMENT 97)

Defendant, Feldmeier Equipment, Inc. ("Feldmeier"), by and through undersigned counsel, hereby submits its Reply in Support of Motion in Limine re: Change of Design, as follows: REPLY Leprino's Response is a smokescreen. The feasibility of the slight modification made to the tank design (increasing the height differential between the overflow and air vent lines to 9 inches rather than 6 inches) is not controverted. Nor has Leprino even alleged that the existing 6inch differential makes the tank defective. The mere fact that a design has been slightly modified is not evidence that the prior design was defective in any way, let alone in any way that adversely impacts the purchaser of the prior design. In addition, Leprino has not identified any testimony or anticipated testimony for which evidence of the design change would constitute

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

Document 111

Filed 05/08/2006

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proper impeachment. Evidence of the design change is irrelevant and should be excluded to avoid confusion of the jury and undue prejudice to Feldmeier. WHEREFORE, Feldme ier respectfully requests that the Court enter an order precluding Leprino from presenting any testimony or other evidence in relation to the change in tank design that occurred after the tanks at issue were 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 111

Filed 05/08/2006

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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: CHANGE OF DESIGN (DOCUMENT 97) 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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