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NATIONAL PAINT & COATINGS ASSN. v. CITY OF CHICAGO

September 23, 1993

NATIONAL PAINT & COATINGS ASSOCIATION; RUST-OLEUM CORPORATION, an Illinois corporation; THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation; ACE HARDWARE CORPORATION, a Delaware corporation; TRU-TEST MANUFACTURING COMPANY, a Delaware corporation; FMA INC., d/b/a JIM'S ACE HARDWARE, an Illinois corporation; W.C. SCHAUER HARDWARE CENTER, INC., an Illinois corporation; SMILEY ACE HARDWARE, INC., an Illinois corporation, Plaintiffs,
v.
CITY OF CHICAGO, an Illinois municipal corporation, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before the court are (1) defendant City of Chicago's motion to strike tentatively admitted evidence, (2) plaintiffs' motion to strike tentatively admitted evidence, and (3) plaintiffs' motion to supplement the record. As explained below, we deny the City's motion to strike, grant in part and deny in part plaintiffs' motion to strike, and grant plaintiffs' motion to supplement the record.

 I. The City's Motion to Strike

 A. Written Cross-Examination of Robert Angone

 The gravamen of the City's objection to the submission of excerpts from Robert Angone's deposition (Plaintiffs' Trial Exhibit 157) is that those excerpts are almost entirely redundant to those matters addressed in Angone's ninety minute, oral cross-examination (R694-745). The City protests that "plaintiffs are not entitled to a second bite of the apple as to any of [the topics covered in oral cross-examination]."

 While we agree with the City that redundant cross-examination has no place in the record, it is equally apparent that the written submission in question cannot be labelled as such. Although plaintiffs may have touched on the same general subject matters in both the oral and written cross-examination of Angone, the specific lines of questioning were complimentary rather than redundant. Angone was one of the City's most important witnesses, and the written submission furthers plaintiffs' attempt to permissibly impeach the witness. Additionally, it is important to note that the procedure invoked by the court of submitting cross-examination in writing to conserve precious trial time was suggested initially by the City. R1 24. Plaintiffs reluctantly acquiesced, giving up the right to thoroughly confront the City's witnesses in person. As such, we can discern no prejudice to the City in allowing Plaintiffs' Trial Exhibit 157 in its entirety.

 B. Plaintiffs' Trial Exhibit 161

 The City now objects to the introduction of Plaintiffs' Trial Exhibit 161 because it is hearsay and no foundation has been established. In apparent agreement, plaintiffs have withdrawn the exhibit, leaving the City's objection moot.

 C. References to "Wayco Hardware, Inc."

 The City moves to strike any reference to the hardware store owned by "Wayco Hardware, Inc." In support, the City merely states: "Neither Wayco Hardware Inc. nor its sole shareholder, Mr. Schauer, is a party to this case. Mr. Schauer's testimony regarding that company is therefore irrelevant."

 Contrary to the City's suggestion, plaintiffs need not confine its proof respecting the negative economic impact of the ordinances in question to the reverberations felt by the named plaintiffs. To be sure, in assessing the constitutionality of the ordinances under the commerce clause, the court's focus rests, at least in part, on the burdens imposed on interstate commerce as a whole, as opposed to plaintiffs' interstate commerce. See Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 128, 98 S. Ct. 2207, 2215, 57 L. Ed. 2d 91 (1978) ("the [Commerce] Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations"). As such, evidence of the impact of the ordinances on entities such as "Wayco Hardware, Inc." are relevant, and will be admitted subject only to the restrictions of Fed. R. Evid. 403. In that the probative value of Wayne Schauer's testimony concerning Wayco Hardware, Inc. outweighs any prejudicial effect, we deny the City's motion to strike all references to "Wayco Hardware, Inc."

 D. Plaintiffs' Trial Exhibits 5A-5B, 6A-B, 7A-C, and 8A-B

 Plaintiffs' Trial Exhibits 5A-5B, 6A-B, 7A-C, and 8A-B are examples of spray painted and brush painted items. The City objects to the introduction of these exhibits on the ground of relevancy. Specifically, citing Exxon Corp v. Governor of Maryland, 437 U.S. at 128, 98 S. Ct. at 2215, the City contends that the potential harm to the consuming public "relates to the wisdom of the statute, not its burden on commerce."

 Unlike the plaintiffs in Exxon, the plaintiffs in the instant case do not contend that the exhibits in question are relevant regardless of whether the local governing body has interfered with the movement of goods in interstate commerce. Instead, plaintiffs contend that these exhibits demonstrate precisely why approximately 40% of consumers will abandon tasks they would otherwise perform with spray paint. In light of this link between the harm to the consuming public and the movement (or lack of movement) of goods in ...


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