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: UNRELATED EVENTS (Document 89)

Plaintiff Leprino Foods Company (" Leprino" states as follows in opposition to ) Defendant' Motion in Limine Re: Unrelated Events (" s Motion" ): I. INTRODUCTION Defendant erroneously argues that evidence of implosions of other silos manufactured by Defendant should be precluded. Such evidence is relevant and

probative to this case. Defendant's Motion is deficient and must be denied. II. ARGUMENT It is obvious from the Motion that Defendant fails to understand the nature of this litigation. This lawsuit concerns an Equipment Purchase Agreement entered into

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

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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." Defendant failed to

manufacture and tender to Leprino a silo for its Waverly facility that could handle both inward flow and outward flow of 1000 gallons per minute of liquid simultaneously. Contrary to the contention in Defendant's Motion, Leprino clearly set forth the nature of the defect in the Waverly silo in the October 1, 2004 report issued by L.J. Mott. The internal venting and overflow arrangement Defendant claimed could handle 1000 GPM liquid, in actuality, cannot handle that flow of liquid. If Leprino attempted to run liquid through the Waverly silo at the rate of 1000 GPM, that silo would implode. The evidence of other implosions is relevant to and probative of, among other things, the defect in Defendant's internal venting and overflow arrangement. While asking the Court to preclude evidence of other implosions, Defendant fails to present that evidence to the Court for it to consider in connection with its ruling. This is important because Defendant argues that the other implosions have no apparent relevance to this case, but fails to give the Court the information about the other implosions for it to make an appropriate determination. The proper time for the Court to address the admissibility of the evidence concerning the implosions of Defendant's other silos is at trial when Leprino has opportunity to lay any necessary foundation and the Court can adequately consider the evidence before ruling. The Motion is also

premature because Defendant has not provided information concerning the nature of the other implosions and vacuum induced failures of Defendant's silos. During the

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discovery phase of this litigation, Leprino's Interrogatory 14 propounded to Defendant sought information about other implosions and vacuum induced failures of silos manufactured by Defendant for the preceding fifteen years. Defendant refused to

provide that information. Pursuant to the August 23, 2005 Courtroom Minutes/Minute Order entered by Magistrate Judge Schlatter, Defendant was ordered to produce the information sought by Leprino's Interrogatory 14. While Defendant has provided

documents related to the other implosions, Defendant has not provided additional information about the nature of the other implosions and vacuum induced failures. That failure will be the subject of a motion to compel if Defendant does not provide further information as it was ordered to do. In support of its argument that Leprino would be required to show a substantial similarity between the other implosions and this action, Defendant cites to two products liability cases. Although the substantive law of Colorado supports a foundational

requirement of substantial similarity when determining the relevancy of the other implosions, the case of Smith v. Ingersoll-Rand, Co. 214 F.3d 1235 (10th Cir. 2000) cited by Defendant actually applies New Mexico substantive law and, as such, may not accurately represent the law applicable to the Court's determination in this case. Again, the Court's determination of the admissibility of the evidence of other implosions is properly done at trial, at which time Leprino will present the appropriate foundation for the Court to make that determination. Also, depending on the nature of the defense presented by Defendant, evidence of other implosions would be relevant and properly admitted by the Court. Defendant

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has contended previously that implosions of its silos are never the result of a design defect, and that because it makes its silos with its patented internal venting and overflow arrangement its silos do not implode. The evidence of other implosions would then be important to rebut such claims by Defendant and impeach Defendant's witnesses on those matters.

III. CONCLUSION Defendant' Motion is premature as well as factually and legally deficient. s Accordingly, Defendant' Motion must be denied. s

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

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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: UNRELATED EVENTS (Document 89) 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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