Project Posner

Lead opinion by POSNER

   MEMORANDUM OPINION AND ORDER

   RICHARD A. POSNER, CIRCUIT JUDGE (SITTING BY DESIGNATION)

   This order will dispose of the remaining motions pending in this case in anticipation of trial to begin March 19, 1990.

1. COMMONWEALTH EDISON'S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO THE NYSERDA LITIGATION

   Edison moves to exclude all evidence relating to New York State Energy Research & Development Authority v. Nuclear Fuel Services, Inc, 640 F.Supp 1558 (WDNY 1986); 102 FRD 18 (1983); 561 F.Supp 954 (1983) (NYSERDA). In NYSERDA, Edison was one of several defendants that the plaintiffs tried to hold liable for the costs of storing certain spent fuel. As a defendant, Edison of course argued for as little liability as possible. Now that Edison finds itself in the position of trying to maximize liability for storage costs, it seeks to prevent AGNS from using Edison's testimony and arguments in NYSERDA against Edison here.

   Edison contends that there are significant differences (other than Edison's litigating posture) between NYSERDA and the present case, and if evidence relating to NYSERDA is admitted, the jury will be confused and may get the impression that Edison has taken self-serving 2 and inconsistent positions depending on whether it is a plaintiff or defendant. Edison raises the specter of its having to relitigate the NYSERDA case so as to explain these differences to the jury and dispel these unfair impressions. Because this would unnecessarily prolong an already lengthy trial with a confusing relitigation of collateral issues, Edison argues that all mention of NYSERDA should be ruled out of bounds.

   AGNS agrees that evidence relating to NYSERDA would create the impression that Edison has taken self-serving and inconsistent positions but contends that this impression would not be unfair for the excellent reason that Edison has taken self-serving and inconsistent positions. It also scoffs at Edison's claim that voluminous evidence would be necessary, claiming that it intends to bring to the jury's attention only specific examples of inconsistencies for the purposes of impeachment and as admissions.

   I deny Edison's motion at this time because it appears that many of Edison's positions in NYSERDA are diametrically opposed to its current arguments on exactly the same issues. One example will suffice. In NYSERDA, Edison argued that there was not a market for spent 3 fuel storage from which one could estimate a market price; here it contends exactly the opposite. Of course, as a result of my previous order this particular inconsistency is irrelevant now, but there may be other inconsistencies between Edison's previous position and its current one. Within reason AGNS is entitled to show these inconsistencies to the jury so the jury can judge the credibility of Edison's arguments and witnesses. While Edison asserts that comparisons between the two cases are meaningless because of the many differences, I cannot judge the accuracy of this contention until specific evidence is offered at trial. If any particular evidence that AGNS offers at trial is unfairly prejudicial, Edison can object at the appropriate time.

2. COMMONWEALTH EDISON'S MOTION IN LIMINE TO EXCLUDE CERTAIN TESTIMONY OF CARL POEDTKE AND GEORGE STRIBLING

   Edison moves to exclude certain testimony of Carl Poedtke, one of AGNS's expert witnesses, and of George Stribling, one of AGNS's negotiators.

   The only specific testimony of Carl Poedtke that Edison refers to is possible opinion testimony by Mr. Poedtke that would contradict a previous ruling in this case that the term "Waste Material" 4 in section 8(a) of the Contract could not be read to encompass spent fuel. AGNS responds that Mr. Poedtke has no such opinion, so there appears to be no harm in granting Edison's motion as to this testimony. It is not clear whether Edison is also objecting to other, unspecified testimony. If it is, it can raise an appropriate objection at trial, and I will rule upon it then.

   Edison raises a number of objections to questions that were asked of and answers that were given by Mr. Stribling at his deposition. These objections cover a wide range of matters concerning the proper scope of testimony relating to the meaning of contractual provisions and AGNS's motivations. Many of the objections are undoubtedly moot in light of my ruling on liability, and while some of the questions and answers do appear to be objectionable because of the way there were worded, I won't at this time catalogue exactly what questions can be asked. If counsel for either side persists in asking improper questions at trial in the face of adverse rulings, I will take appropriate measures.

3. COMMONWEALTH EDISON'S MOTION IN LIMINE TO EXCLUDE EVIDENCE INCONSISTENT WITH PRIOR FINDINGS OF FACT AND OF LAW

   Edison moves 5 to prevent AGNS from continuing to contest at trial issues that have previously been decided by the court. AGNS, although reserving the right to reassert these issues on appeal, agrees that it cannot contest these issues at trial. AGNS, however, takes issue with Edison's characterization of various prior rulings. Both parties agree that several issues are settled for purposes of the trial, and neither side will be permitted to dispute them. These are:

(1) The term "Waste Material" in section 8.8(a) of the Contract does not encompass spent fuel.

(2) Section 8.8(a) of the Contract imposes no obligation on Edison to store and dispose of spent fuel.

(3) The limitation of liability in section 17.4(b) is inapplicable to damages for failure to perform under the Facility Contingency Plan.

   (4) There is no issue of fact as to whether Edison misrepresented its reprocessing requirements to AGNS.

In addition, the parties will not be permitted to dispute the following:

   (5) Edison notified AGNS of its request for performance by sending its C.4 Discharged Fuel Reports for all fuel lots except Zion 1, Lots 3&4, Dresden 2, Lot 6, Zion 2, Lot 3, and Quad Cities 2, Lot 5, which were discharged 6 after AGNS's purported termination of the Contract pursuant to section 17.1(b).

   (6) Edison notified AGNS of its request for recovered product.

   The last material issue disputed involves the take or pay provision for plutonium storage. Edison asks that I bar AGNS from disputing "whether Edison is obligated to take or pay for plutonium storage." Judge Aspen, in his opinion of October 3, 1988, granted summary judgment to Edison on AGNS's counterclaim for payment under the take-or-pay provision because it was undisputed that AGNS would have been unable to tender performance. Judge Aspen expressly left open the question whether AGNS could use the provision to reduce Edison's damage claim by the amount of money saved in such storage costs as a result of AGNS's breach. This issue remains alive, and since AGNS's counterclaim has been dismissed, Edison's requested ruling is unnecessary.

4. COMMONWEALTH EDISON'S MOTION IN LIMINE TO EXCLUDE DEMONSTRATIVE VIDEOTAPE EVIDENCE ON REPROCESSING AND THE BARNWELL PLANT

   AGNS seeks to introduce at trial two separate videotapes entitled "What is Reprocessing?" and "What is BNFP?" Edison seeks to exclude the videotapes as hearsay evidence. Edison is concerned 7 that introduction of the tapes will prejudice it because they present a self-serving recitation of facts and depict AGNS officers, who will testify at trial, as "fatherly, endowed with vast expertise, and entitled to uncritical deference." AGNS responds that the videotapes will be helpful in explaining to the jury the rudiments of reprocessing, a subject of some import to the litigation.

   Neither tape has any relevance to the issues remaining for trial. While I do not believe either tape is overly prejudicial, given neither is relevant, in the face of Edison's objection I must rule in Edison's favor.

5. COMMONWEALTH EDISON'S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO THE LICENSING OF EDISON'S BYRON AND BRAIDWOOD NUCLEAR UNITS

   Edison seeks to bar AGNS from introducing any evidence relating to Edison's licensing experience at its Byron and Braidwood nuclear power plants. In light of my previous rulings on liability, evidence of diligence is not relevant to any issue remaining in the case.

6. AGNS'S MOTION FOR SUMMARY JUDGMENT ON THE INDEFINITENESS OF THE CONTRACTUAL PRICE TERM AND SPECULATIVENESS OF DAMAGES

   AGNS moves for summary judgment claiming that the contractual price 8 term is indefinite and thus any damages speculative, making the contract unenforceable. Section 16.1(b) of the Contract provided that the amount of equivalent fissile material would be an estimate of the amount of fissile material that could eventually be recovered from reprocessing. Edison was to pay for the EFM based upon the base recovery charge specified for that estimate. The Contract provided however that this price would be adjusted based upon the actual amount of fuel recovered when reprocessing finally took place. AGNS claims that since reprocessing never took place there is no way of knowing what adjustments would be made to the price; that the price is therefore inefinite; that the Contract is unenforceable.

   AGNS makes no claim that the adjustment would be anything other than de minimis, or that the estimate was a biased predictor, consistently over or under estimating the actual amount recovered. Since it is only necessary to prove damages to a reasonable decree of certainty, Edison can meet that burden with the estimated price evidence. Moreover, under AGNS's reading of the Contract, AGNS could unilaterally render the price term indefinite simply by never coming on line 9 for whatever reason; no rational jury could ever so read the Contract. AGNS's motion is denied.

7. AGNS's MOTION TO ENFORCE AGREEMENT AS TO AVAILABILITY OF WITNESS

   In light of Edison's response to AGNS's motion to enforce the agreement to make witness Behnke available, AGNS has withdrawn this motion.

8. AGNS's MOTION IN LIMINE TO EXCLUDE ALL APPEALS TO THE JURORS' PECUNIARY INTERESTS

   Edison has represented that it does not intend to appeal to the pecuniary interests of the jury. AGNS's motion is therefore without objection granted.

9. AGNS's MOTION IN LIMINE TO BAR EVIDENCE RELATING TO AGNS's ALLEGED LACK OF DUE DILIGENCE OR RESPONSE OR NON-RESPONSE TO THE 1981 REAGAN POLICY ANNOUNCEMENT CONCERNING THE REPROCESSING OF SPENT NUCLEAR FUEL

   Based on my rulings on liability, there is obviously no further issue for trial touched by this motion. The motion is granted.

10. AGNS's MOTION IN LIMINE TO BAR ALL EVIDENCE OF EDISON'S EFM CLAIM WHICH IS BASED ON THE NUEXCO SPOT MARKET PRICE

   The NUEXCO Spot Market price is clearly relevant evidence of the damage Edison has suffered. AGNS is free to counter such evidence with testimony showing the price is inflated or inaccurate or not a true 10 measure of the damage Edison has suffered. The weighing of this conflicting evidence will be left to the jury.

   AGNS's motion is denied.

11. AGNS's MOTION IN LIMINE TO BAR EVIDENCE OF AGNS's CONTRACT RENEGOTIATIONS

   Edison sought to introduce evidence of renegotiations to establish AGNS's lack of due diligence and thereby defeat any force majeure defense by AGNS. Having decided issues of liability by my previous rulings, Edison's objection is no longer germane, and Edison has not supplied additional reasons for denying AGNS's motion.

   AGNS's motion is granted.

12. AGNS'S MOTION TO EXCLUDE REVISIONS TO EDISON'S DAMAGE CALCULATIONS

   Edison has offered AGNS and this court estimates of its damages in light of my ruling on liability dated February 15, 1990. While I did deny Edison's "market value" damage theory, I did not deny Edison the right to prove the damages it actually suffered. AGNS's claim that Edison has waived that argument is baseless.

   Edison represents that any additional discovery required by my previous ruling and Edison's subsequent revision of its damages claim is minimal; AGNS has not directly contradicted this claim. If AGNS believes that it cannot proceed to trial because 11 of these changes, then it must substantiate its burden more completely than it has. AGNS's motion is denied.

Date: February 28, 1990