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BP Amoco Chemical Co. v. Flint Hills Resources LLC

July 10, 2009

BP AMOCO CHEMICAL COMPANY, PLAINTIFF/COUNTER--DEFENDANT,
v.
FLINT HILLS RESOURCES LLC, DEFENDANT/COUNTER--PLAINTIFF.
FLINT HILLS RESOURCES LLC, THIRD-PARTY PLAINTIFF,
v.
BP CORPORATION NORTH AMERICA INC., DEFENDANT.



The opinion of the court was delivered by: Judge Amy J. St. Eve

Motion Ex. 17

BP AMOCO'S RESPONSE TO FHR'S MOTION IN LIMINE NO. 6 BP AMOCO CHEMICAL COMPANY AND BP CORPORATION NORTH AMERICA INC.'S RESPONSE TO FHR'S MOTION REGARDING ADMISSIBILITY OF SPENDING SPREADSHEETS

FHR's motion simply asks the Court to enforce the Federal Rules of Evidence, while highlighting the reasons why FHR's damages spreadsheets and other summary evidence is inadmissible. FHR seeks an order finding that its damages spreadsheets are "admissible into evidence under Federal Rule of Evidence 1006, subject to Flint Hills laying a proper foundation at trial." (FHR Mot. at 1 (emphasis added); see also id. at 6) But whether FHR can lay a proper foundation for its damages spreadsheets is the question at issue. For the reasons discussed in BP Amoco's Motion in Limine No. 5, FHR has not and cannot establish the foundational prerequisites to have the damages spreadsheets entered into evidence. (Dkt. No. 603) Indeed, FHR's motion only confirms that the spreadsheets are based on documents that are hearsay and are otherwise inadmissible, and therefore the spreadsheets are likewise inadmissible.

FHR's motion should be denied for the following reasons, which also are additional reasons to grant BP Amoco's Motion in Limine No. 5 seeking to exclude FHR's spreadsheets and other summary evidence (Dkt. No. 603):

First, FHR's motion violates the purpose of a motion in limine, which is to allow the trial court to rule the admissibility of evidence before trial. FHR's motion does not allow the Court to decide on the admissibility of any evidence, but instead reserves the question of whether FHR can lay a proper foundation for trial. Because the affirmative question of whether to admit evidence must be determined during trial based upon foundational and other requirements, FHR's motion is not a proper motion in limine and should be denied.

Second, FHR's motion confirms that it cannot set a proper evidentiary foundation for the damages spreadsheets. A party must be able to lay foundation for each document that is summarized in a Rule 1006 summary in order for the summary to admissible. FHR's motion confirms that the one witness FHR identifies, Matthew Daugherty, does not have the knowledge to lay this foundation. Moreover, both FHR and Mr. Daugherty admit that the summaries are based on hearsay document such as invoices (or repair summaries) from third parties, among other inadmissible documents. Because these underlying documents are inadmissible, the summaries are inadmissible as well.

I. FHR'S MOTION IS IMPROPER BECAUSE IT DOES NOT RESOLVE THE ADMISSIBILITY OF ANY EVIDENCE

"The purpose of a motion in limine is to allow the trial court to rule on the relevance and admissibility of evidence before it is offered at trial." Moore v. Ill. Dep't of Corrections, 2009 WL 1754630, at *1 (S.D. Ill. June 19, 2009); see also Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999) ("Motions in limine are designed to avoid the delay and occasional prejudice caused by objections and offers of proof at trial; they are more useful if they can serve these purposes, which they do only if objections (and offers of proof) can be foregone safely."). FHR's motion violates this basic purpose, and should be denied for that reason.

FHR's motion would not determine the relevance or admissibility of any evidence prior to trial. Instead, FHR expressly seeks an advisory, conditional ruling by the Court that is "subject to Flint Hills laying a proper foundation at trial." (FHR Mot. at 1 (emphasis added); see also id. at 6) FHR states that its counsel conferred with counsel for BP Amoco about the summaries and that BP Amoco "confirmed that it intended to object to the introduction of the Spending Spreadsheets into evidence at trial." (FHR Mot. at 6) But FHR omits one of the grounds for BP Amoco's objection: lack of foundation. As described in detail in BP Amoco Motion in Limine No. 5 and also discussed below, a key problem with FHR's damages spreadsheets is a lack of foundation. Among other problems, FHR cannot establish that each of the underlying documents such as "work orders, vendors invoices, cancelled checks, bank statements and purchase orders" are admissible (FHR Mot. at 4), and therefore FHR cannot establish that the summaries of those documents are admissible. See Needham v. White Labs., Inc., 639 F.2d 394, 403 (7th Cir. 1981) (proponent of summary must establish admissibility of all underlying documents); Judson Atkinson Candies, Inc., v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) (excluding 1006 summary because proponent did not "establish the admissibility of the records on which the summaries were allegedly based or authenticate the summaries in any way," noting that "[t]he admission of a summary under Fed. R. Evid. 1006 requires 'a proper foundation as to the admissibility of the material that is summarized and . [a showing] that the summary is accurate'").

Thus, FHR's motion would not provide any of the benefits of a motion in limine. It would not allow FHR to avoid presenting evidence about the underlying documents. It would not obviate FHR's need to have witnesses establish foundation at trial. It would not alleviate the need for BP Amoco to object to the summaries and underlying documents and for the parties to argue over the admissibility of the summaries and those documents during trial. Instead, the parties will need to introduce the same evidence, make the same arguments, and have the Court rule on the same issues even if the relief requested in FHR's motion were granted. There are no efficiencies to be gained from FHR's motion - FHR will still need to prove all of the critical prerequisites for Rule 1006 summaries during trial.

In sum, FHR's motion amounts to nothing more than an advisory opinion request that if it complies with the Federal Rules of Evidence, then it be allowed to introduce the damages spreadsheets into evidence. Such motions are improper because they do not resolve the admissibility of evidence. See Berardi v. Vill. of Sauget, 2007 WL 433542, at *1 (S.D. Ill. Feb. 6, 2007) ("If the Federal Rules of Evidence supply the answer for admissibility or non-admissibility of a particular piece of evidence, then a motion in limine regarding the same piece of evidence is redundant and unnecessary. The Court frequently is confronted with motions in limine which are nothing more than the Federal Rules of Evidence in disguise--sometimes thinly veiled or not veiled at all."). Therefore, FHR's Motion should be denied.

II. FHR'S MOTION CONFIRMS THAT THE DAMAGES SPREADSHEETS ARE BASED ON INADMISSIBLE DOCUMENTS AND SHOULD BE EXCLUDED

BP Amoco explained in some detail why FHR's damages spreadsheets should be excluded for lack of foundation in its Motion in Limine No. 5.*fn1 (Dkt. No. 603) An unsupported Rule 1006 summary and related testimony is not admissible and cannot be used to affirmatively prove FHR's damages; FHR's summary is inadmissible because it is based on documents containing multiple levels of hearsay; and FHR's summaries violate the rule set forth by the Supreme Court in Palmer v. Hoffman, 318 U.S. 109, 114 (1943). Instead of establishing ...


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