Duren et al v. E I duPont de Nemours and Company et al

Filing 127

ORDER granting in part and denying in part 94 Motion in Limine; granting 96 Motion in Limine. All claims against Sentinel, and against the "John Doe" defts are dismissed without prejudice. Pltfs' strict-liability claim is also dismissed without prejudice. Signed by Judge D. P. Marshall Jr. on 7/5/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES DUREN; ANN DUREN;
J.J.'S TRUCK STOP, INC.; and
AL'S TRUCK STOP OF MALVERN, INC.

v.

PLAINTIFFS

No. 4:09-cv-713-DPM

E.I. DUPONT DE NEMOURS AND
COMPANY; SENTINEL TRANSPORTATION,
LLC; and JOHN DOES 1-10

DEFENDANTS

ORDER
1. Parties and Claims. The Court appreciates the parties' crisp
stipulation, Document No. 126. All claims against Sentinel, and against the
"John Doe" Defendants, are dismissed without prejudice. Plaintiffs' strictliability claim based on an alleged ultra-hazardous activity is also dismissed
without prejudice. DuPont admits liability on negligence, the sole claim left
standing. The Court will read the parties' stipulation on this issue, Document
No. 126, at 2, to the jury. The issues for trial are between DuPont on the one

hand and the Durens, J.J.'s, and Al's on the other. Those issues are the extent
of damages proximately caused by DuPont's negligence.
2. Squires Materials. The supplemental briefs and materials are
helpful. The Court agrees that the road for authenticating these materials

runs through Federal Rules of Evidence 901(a) & (b)(10), 902(11), and
803(6) -the last, the business-records exception, being the most important.
Testimony from a former employee with knowledge about a company's
records during a particular period satisfies Rule 803(6)(D). E.g., United States
v. Childs, 5 F.3d 1328, 1334 (9th Cir. 1993). Though no longer custodian,

Squires is" another qualified witness" in the Rule's phrase because she helped
create and maintain records like the ones offered for the Durens' restaurant
and truck stop. But the Rules also require the Court to find these records not
untrustworthy- that they are what DuPont says they are. FED. R. EVID.
803(6)(E); FED. R. EVID. 901(a). This depends on the documents' source, the
circumstances of preservation and custody, the likelihood of tampering, and
the nature of the evidence. United States v. Coohey, 11 F.3d 97, 100 (8th Cir.
1993); United States v. Weeks, 645 F.2d 658, 660 (8th Cir. 1981).
While Squires is a qualified witness, her baggage gives the Court pause.
She apparently copied her former employers' records without permission,
either before or after being let go. She litigated with the Duren companies
about unemployment benefits and lost. She approached DuPont's lawyers.
The motive and the opportunity time-wise for tampering are palpable. That

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said, the Durens' independent verification of the key fuel data, with marginal
variances of a gallon here and there, weighs in favor of finding that the
documents are authentic and unaltered.
In these circumstances, the Court cannot make its trustworthiness
judgment call on the affidavit alone. Squires needs to be seen and heard,
outside the jury's presence, under direct and cross examination. This is not
a case where authenticity is established by interlocking materials, including
deposition testimony. Compare Federal Trade Commission v. Hughes, 710 F.
Supp. 1520, 1523 (N.D. Tex. 1989). Nor does the dispute involve a lawyer's
affidavit about her firm's time sheets. Compare Kennedy v. Los Angeles Police
Department, 901 F.2d 702, 717 (9th Cir. 1990), overruled in immaterial part by, Act
Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993).

The unique

circumstances presented require a hard look.* This effort, however, does not
seem worth making for several reasons.

·The Court also agrees with the Durens that accepting the records on
the affidavit alone would create a danger of unfair prejudice substantially
outweighing the records' probative value. If the records are coming in, it
needs to be through testimony with cross examination.
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First, the Durens have now offered to stipulate to the fuel numbers.
DuPont said at the pretrial that this was the key missing data supplied by
Squires. So let it be supplied by stipulation, and let us focus on more
important things. (The stipulation would also eliminate any dispute on this
point about Mercer's testimony: he can rely on the stipulation with everyone
avoiding the records from Squires.)
Second, the jury needs either the whole story- about Squires, her
pilfered duplicate records, the axe she may be grinding, the Durens' initial
nonproduction, and their belated confirmation of the fuel data for key
months-or none of that story. None would be better. This would be a long
detour to evidence that is now undisputed. And beyond the fuel data, the
limited probative value in how we got here is substantially outweighed by the
trial time that would be wasted in telling the jury the whole story. FED. R.
EVID. 403; S.E.C. v. Shanahan, 646 F.3d 536, 548 (8th

Cir. 2011).

Third, the Squires records beyond the fuel data seem to be either
duplicative or unimportant. DuPont has not mentioned them in its oral or
written argument.

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The Durens' motion in limine about the Squires records, Document No.
96, is granted conditioned on a prompt stipulation from Plaintiffs about the

heretofore missing fuel data. Mercer is not to be questioned about relying on
the Squires records and affidavit and interview. The Court grants permission
for this gap to be filled now with the imminent stipulation.
3. Mercer's Opinions. The Court appreciates the complete copy of

Mercer's deposition transcript (including all exhibits) provided by the Durens.
Their motion

in limine directed at Mercer's contract-related opinions,

Document No. 94, is granted in part and denied in part. Neither Mercer nor

any witness can testify that any deal would have closed, or would not have
closed, but for DuPont's negligence.

While this kind of ultimate-issue

testimony is not per se excludable from an expert like Mercer, FED. R. EVID.
704(a), DuPont disclaims any intention along these lines. Document No. 105,

at 1. Rightly so, in the Court's view. Nor may Mercer opine that any of the
proposed contracts was valid or invalid as a legal matter. The Court will
instruct the jury on all applicable law.
Mercer, however, is consummately experienced in valuing businesses
and the valuation slice of buying and selling them. He may therefore give his

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opinion about whether each of the proposed agreements made economic
sense given the particular business circumstances of this restaurant and this
truck stop. Mercer testified on deposition that he is familiar with buy-sell
agreements and has written two books about them. He is therefore also free
to testify about what was and was not covered by each proposed agreement
here; he may highlight covered contingencies and what was not (but often is)
contingent in any agreement; but all of this should not devolve into simply
reading the contracts to the jury, which would not be helpful.
On financing, Mercer should limit his opinions to whether any
agreement was or was not contingent on getting it. He may not speculate
about whether any potential buyer was stout enough financially to
consummate a deal. As best the Court can tell, Mercer knows too little about
the possible buyers' total financial pictures to give an informed opinion about
any buyer's financial ability to close. Mercer would be speculating here,
which is impermissible.
If DuPont wants to cover any contract-related issues with Mercer not

covered by this Order, then it must first explore the point with the Court
outside the jury's presence.

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So Ordered.

D.P. Marshall Jr.
United States District Judge
5 July 2012

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