City of Cleveland v. CLEVELAND ELEC., ETC.

• Decision Date: 03 September 1981
• Docket Number: Civ. A. No. C75-560.
• Citation: 538 F. Supp. 1257
• Parties: CITY OF CLEVELAND, Plaintiff, v. The CLEVELAND ELECTRIC ILLUMINATING COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

538 F. Supp. 1257

CITY OF CLEVELAND, Plaintiff, v. The CLEVELAND ELECTRIC ILLUMINATING COMPANY, Defendant.

Civ. A. No. C75-560.

United States District Court, N. D. Ohio, E. D.

August 18, 1980.

Opinion on Tender of Admission September 13, 1980.

Opinion on Motion to Compel Pretrial Production September 13, 1980.

Opinion on Motion to Exclude Expert's Economic Testimony October 14, 1980.

Opinion on Admissibility of Trial Exhibits October 14, 1980.

Opinion on Motion to Exclude Expert's Management Evidence October 23, 1980.

Opinion on Noerr-Pennington Doctrine August 17, 1981.

Opinion on Motion to Read Admission to Jury September 3, 1981.

COPYRIGHT MATERIAL OMITTED

William B. Norris, Hahn, Loeser, Freedheim, Dean & Wellman, James E. Young, Thomas E. Wagner, Director of Law City of Cleveland, Cleveland, Ohio, for plaintiff.

John Lansdale, James P. Murphy, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendant.

MEMORANDUM AND ORDER

KRUPANSKY, District Judge.

Presently before the Court is what is styled "Plaintiff's Motion for Leave to Offer Evidence Relating to the Proceedings of the Federal Power Commission "FPC" and the Nuclear Regulatory Commission "NRC" as well as to the Acts of the Parties and the Orders Relating to such Proceedings Concerning the Plaintiff's Attempts (1) to Obtain a Continuation of the Load Transfer Service, (2) to Obtain a Permanent Parallel Interconnection and (3) to Obtain the Wheeling of PASNY Power". The City's motion is premised upon the Court's Order in Limine of August 19, 1979, which provides as follows:

Accordingly, for the foregoing reasons, during the course of trial, no party shall, in the presence of the jury, allude to, refer to, or attempt to convey, either directly or indirectly, in any manner the findings, conclusions, determinations, or substance of any NRC or FPC administrative determination as such determination reflects upon the defendant's acts alleged herein to be in violation of sections 1 or 2 of the Sherman Act. The court is mindful, however, that occasions may arise during trial when a party deems it necessary to discuss, or to elicit testimony concerning, proceedings before the NRC or the FPC. In those instances, counsel shall request a determination by the court as to its propriety and necessity thereof, which request shall be made outside the hearing of the jury.

Pursuant to the Court's August 19th decree, the City currently seeks permission to adduce evidence of certain administrative proceedings undertaken before the FPC and the NRC. The evidence sought to be presented appears to relate primarily to the City's efforts to secure a permanent parallel interconnection with the defendant's electric system and obtain the wheeling of PASNY—generated power over defendant's transmission facilities. The contemplated evidence is both testimonial and documentary in nature, encompassing, inter alia, certain of the parties' submissions to the aforesaid administrative forums as well as certain largely unspecified FPC and NRC mandates. Plaintiff maintains that the filings, orders and administrative proceedings in question constitute "an integral part of the commercial relationship" between the parties which cannot be excised from the evidence without adversely affecting the City's presentation of its case.

In assessing the instant motion, the Court would observe initially that it cannot reasonably be denied that litigants are, as a general proposition, fully entitled to adduce relevant and material evidence in support of their substantive allegations. This entitlement is, however, circumscribed by the provisions of Rule 403, Fed.R.Ev., which expressly authorizes the trial court to exclude relevant evidence wherever "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury". Id. The governing authorities counsel that the trial judge, in undertaking the weighing process contemplated by Rule 403, is to be accorded broad discretion, as his accommodation of the competing interests will not be disturbed on appeal in the absence of clear abuse. United States v. Brady, 595 F.2d 359, 361 (6th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979); United States v. Robinson, 560 F.2d 507, 513-515 (2d Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978); United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1977); Texas Eastern Transmission v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 567 (10th Cir. 1978); Rozier v. Ford Motor Co., 573 F.2d 1332, 1347 (5th Cir. 1978); Longenecker v. General Motors Corp., 594 F.2d 1283, 1286 (9th Cir. 1979); United States v. D'Alora, 585 F.2d 16, 21 (1st Cir. 1978); United States v. Juarez, 561 F.2d 65, 70-71 (7th Cir. 1977).

The aforesaid Order in Limine reflects the Court's considered judgment that the probative value of certain of the administrative findings, determinations and conclusions in question is decisively outweighed by their prejudicial attributes. It is, for instance, the Court's firm conviction that the introduction of certain of the FPC and NRC findings and determinations, which, incidentally, are premised upon materially different legal standards than those applicable herein, see e.g. Memorandum and Order of August 19, 1979, would necessarily entail a substantial risk that members of the jury would, irrespective of the evidence adduced in this de novo proceeding, arrive at a verdict by either assigning the administrative determinations controlling weight or, at a minimum, by affording the same entirely unwarranted deference. In addition to this readily apparent "undue tendency to suggest decision on an improper basis", Advisory Committee Note to Rule 403, the presentation herein of what the Court has previously described as "the discordant and inconsistent findings of the FPC and NRC" would appear to occasion the very jury confusion Rule 403 was designed to alleviate. As this tribunal has observed in a related context:

The resolution of the issues presented to the FPC and the NRC has resulted in a spate of indecisive rulings and conflicting opinions. This Court cannot defer a full and fair presentation of the evidence to the discordant and inconsistent findings of the FPC and the NRC. To invoke the doctrine of collateral estoppel by adopting the conflicting administrative decisions and the antithetical findings of fact of the FPC and the NRC would blanket these proceedings with an impenetrable stygian fog of confusion and doubt. This Court shall not become a party to this administrative chaos.

Memorandum and Order, February 15, 1978, at p. 5.

The Court's Order in Limine then is designed in principal part to enable the jury panel to resolve the factual issues joined in the instant cause in a fair and independent manner, unencumbered by the prejudicial impact inherent in certain of the findings and determinations of the foregoing administrative forums. The aforesaid Order is, however, in no way intended to effectuate a blanket prohibition against adducing evidence of all that has transpired before the two regulatory bodies. Indeed, the decree implicitly recognizes that the administrative proceedings in question may prove to comprise an important part of the commercial relationship between the parties and, accordingly, expressly acknowledges that circumstances may in fact develop at trial warranting the presentation of evidence pertaining to the applicable FPC or NRC proceedings. The instant Order, rather than constituting a broad and categoric proscription against evidence of, and reference to, the aforesaid administrative proceedings, represents instead simply an effort to foreclose attempts to convey to the jury, by way of testimony, exhibit, or argument, the substance of certain administrative determinations which express or otherwise embody the regulatory agency's findings, opinions and conclusions respecting the ultimate issues in dispute in the instant action. That is to say, the Court's August 19th decree merely seeks to shield the jury from those administrative findings and determinations which would mistakenly advise or suggest to the panel that the precise factual matters here in issue have been authoritatively resolved in the earlier regulatory proceedings, and thereby encourage, in effect, the jury to defer to the preceding administrative judgment.

Accordingly, the Order in Limine will not, generally speaking, operate to exclude otherwise admissible evidence of either the City's resort to the regulatory bodies in question or the material factual circumstances underlying the plaintiff's pursuit of such administrative relief. Nor will the decree necessarily foreclose the parties from presenting evidence of the specific relief ultimately ordered by a particular administrative forum. By way of contrast, testimonial or documentary evidence tending to disclose or intimate to the jury that the prescribed administrative relief was predicated, in whole or in substantial part, upon specific agency findings of anticompetitive conduct, for example, would appear to fall within the prohibition of the August 19th mandate and properly excluded thereunder. The jury's verdict in this de novo proceeding must be premised upon the panel's own independent assessment of the evidence adduced, untainted by the undue deference likely to be accorded those administrative determinations which express or otherwise reflect the regulatory body's findings and conclusions regarding the ultimate factual issues here in dispute.

Although the Court has, for the benefit of the parties, undertaken to delineate, in a preliminary and somewhat general fashion, the contours of the aforesaid Order in Limine, and elaborate further upon the theoretical underpinnings thereof, the Court is nonetheless constrained to conclude that the implementation of the foregoing decree must, in the final analysis, await the trial of this cause. The...