Genevieve Brown's Affidavit, Defendant's Trial Exhibit 76; (3) the opinion testimony in paragraphs 16-18 of Gary Walker's affidavit, Defendant's Trial Exhibit 79; (4) the opinion testimony in paragraphs 12-14 of Robert Mason's affidavit, Defendant's Trial Exhibit 85; and (5) the opinion testimony in paragraph 14 of Constance Mortell's affidavit, Defendant's Trial Exhibit 70.
C. The Testimony of Lt. John Romero
Plaintiffs move to strike the entire testimony of Lt. John Romero, contending that (a) to the extent that his testimony related to "the relationship between the [challenged] ordinances and graffiti vandalism [in Chicago]," it is duplicative of Lt. Angone's and should be stricken pursuant to our order dated April 29, 1993, and (b) to the extent that his testimony related to his experiences with graffiti in New York City, it is irrelevant. We disagree with both contentions.
First, that Romero approaches the problem of graffiti vandalism from the perspective of his experiences in New York distinguishes his testimony from that of Lt. Robert Angone, taking it from the province of our order of April 29, 1993. Second, while the graffiti problems faced in New York may differ significantly from that in Chicago, such distinction bears on the weight to be afforded Romero's testimony and not on its admissibility. Consequently, we deny plaintiffs' motion to strike the testimony of Lt. Romero.
D. Paragraphs 15-28 of Defendant's Trial Exhibit 72
Defendant's Trial Exhibit 72 is the affidavit of George C. Haenisch, currently the General Manager of Bus System Maintenance at the Chicago Transit Authority. Plaintiffs' move to strike paragraphs 15-28 of that affidavit, which detail security measures attributable to graffiti and their respective cost, as inadmissible hearsay. Specifically, plaintiffs' protest that Haenisch did not prepare the cost figures him self, but relied on one or more of his subordinates. Haenisch, however, testified that he personally checked the accuracy of the figures, R762, and the City has laid a proper foundation in paragraph 28 of his affidavit. Much like the sales figures presented by witness Scaminace yet gathered by other Sherwin-Williams employees, the testimony of George Haenisch is not hearsay. That Haenisch may have changed his testimony since his deposition, while certainly detracting from his credibility, does not alter this conclusion, and we deny plaintiffs' motion to strike paragraphs 15-28 of Haenisch's affidavit.
E. Paragraphs 21-25 of Defendant's Trial Exhibit 88
Defendant's Trial Exhibit 88 is the affidavit of James Harney, Director of the Department of Facilities for the Chicago Board of Education. Plaintiffs move to strike paragraphs 21-25 of that affidavit, which detail the cost of labor and materials expended by the Chicago Public Schools to remove or paint over graffiti, as inadmissible hearsay. In these paragraphs, Harney states that, much like Mr. Scaminace of Sherwin-Williams, Mr. Caprel of Tru-Test Manufacturing, Mr. Daley of Ace Hardware Corporation, Mr. Barry of Rust-Oleum, and anyone else with responsibility for a large organization, he relies on the reports of subordinates in gathering information. Harney further states that he requested such reports regarding the cost associated with the removal of graffiti in the Chicago Public Schools and that he received and relied upon such reports. Those reports comprise Defendant's Trial Exhibit 20. They, like the cost figures proffered by Haenisch, are not hearsay, and we will strike neither paragraphs 21-25 of Harney's affidavit nor Defendant's Trial Exhibit 20.
F. References Concerning Lost Profits as a Measure of the Challenged Ordinances' Impact on Interstate Commerce
As Magistrate Judge Ronald A. Guzman has previously ruled in connection with this case, lost profits is an irrelevant measure regarding the impact of the challenged ordinances on interstate commerce. National Paint & Coatings Ass'n v. City of Chicago, No. 92-4023, slip op. at 2 (N.D. Ill. July 2, 1992). As the Supreme Court in Exxon recognized, the impact on interstate commerce is measured in terms of "movement of goods," or "sales." See Exxon, 437 U.S. at 127 & n.16, 98 S. Ct. at 2214-15 & n.16. The reason is apparent, and was best articulated by Magistrate Judge Guzman:
What is relevant is the impact of the proposed ordinance on sales within the City. This is the measure of the ban's impact on interstate commerce. The possibility of somehow offsetting this burden by a new marketing strategy (such as raising prices) is irrelevant. . . . All Sorts of different possible marketing strategies could be conceived by [the City] to show how the companies involved could overcome any loss of revenues. Such an analysis [, however,] would . . . make the ultimate issue dependant upon the company one is dealing with. A company with alternative markets and a favorable price elasticity might not be able to prove "excessive burden" while another company, selling the same product but not so favorably positioned, might very well be able to show such since it lacks flexibility to make up its loss of profit in other ways. Thus, whether or not the ordinances [are] prohibited because [they] impose an excessive burden on interstate commerce might vary depending on the complaining party. The issue, however, should be the impact of the legislation on interstate commerce, not the injury or damage suffered by any one party. The net damage suffered is not the correct measure of the ordinances impact.
National Paint & Coatings Ass'n, slip op. at 2-3. Concluding that the proper measure of the ordinances' impact on interstate commerce is lost sales and not lost profits, we strike all references in the testimony of Michael Kennelly and related exhibits concerning anticipated lost profits attributable to the challenged ordinances.
III. Motion to Supplement the Record
Plaintiffs request that the record in this case be supplemented with two articles published shortly before or after the close of evidence on August 2, 1993. The first appeared in the Chicago Sun Times on July 29, 1993, and is entitled "Off On the Wrong Track." The second appeared in the Chicago Tribune on August 4, 1993, and is entitled "Police Raid Graffiti Gangs Headquarters." These articles contain statements by Lt. Angone and Constance Mortell, representatives of the City of Chicago, and, contrary to the City's assertion, are not hearsay. Further, they are self-authenticating documents under Fed. R. Evid. 902(6) and, as such, evidence of authenticity is not a condition precedent to their admission. Finally, in that the City has not suggested that the quotes attributed to either Angone or Constance were inaccurate, we discern no prejudice to the City in admitting the articles without affording the City the opportunity to introduce responsive evidence. Accordingly, we grant plaintiffs' motion to supplement the record.
For the reasons set forth above, the City's motion to strike is denied, plaintiffs' motion to strike is granted in part and denied in part, and plaintiffs' motion to supplement the record is granted. It is so ordered.
MARVIN E. ASPEN
United States District Judge