Nilsen v. Palco Air Cargo, Inc., 2001-STA-50 (ALJ Dec. 5, 2001)

	U.S. Department of Labor Office of Administrative Law Judges

www.oalj.dol.gov

[skip navigational links] Search | A-Z Index

Find It! on DOL | OALJ Home | OALJ Law Library | About Us

October 4, 2008 DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter

Nilsen v. Palco Air Cargo, Inc., 2001-STA-50 (ALJ Dec. 1, 2001)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Issue date: 05Dec2001

In the Matter of

MARK NILSEN
Complainant

PALCO AIR CARGO, INC.
Respondent

Case No.: 2001-STA-00050

ORDER CLOSING RECORD

At the hearing in this case, the respondent stated that it had no objection to Complainant's Exhibit ("CX") 46, Respondent's Answers to Interrogatories, provided that respondent's supplemental answer be made part of that exhibit. Post-hearing, the complainant filed as CX 46A a document purported to be the supplemental answer, but subsequently agreed that it was not the supplemental answer respondent had referred to at the hearing. The document respondent was referring to is Respondent's Amended Answer to Interrogatories #13, which was provided to me by the respondent. Without objection, CX 46A is admitted into evidence.

Complainant also filed, as CX 45A, Respondent's Amended Answer to Claimant's Request for Admission # 11. Without objection, it also is admitted into evidence.

Lastly, CX 46, respondent's answers to complainant's Interrogatories, was admitted into evidence at the very end of the hearing. Subsequent to the hearing, a dispute has arisen regarding whether several Complainant's Exhibits CX 24, 33, 34, 46 (pp. 9-11) and 47 had been admitted into evidence in conjunction with CX 46. Complainant contends that, by virtue of the references to these documents in the Interrogatories or respondent's answers to the Interrogatories, all of these documents were admitted into evidence when CX 46 was admitted at the hearing. Complainant's Exhibits 24, 33 and 34 appear to have been attached to his Interrogatories when they were served on respondent, as Exhibits C, B and A, respectively, and were the subjects of several of the Interrogatories.^* The two letters which comprise CX 46-9 to 46-11 constituted respondent's entire response to Interrogatory 17 (see CX 46-8). Finally, CX 47 is the 160 page transcript of the deposition of Mark Bernstein plus 11 Deposition Exhibits. In its responses to Interrogatories 8(a), (b), (c), (d) and (e), respondent prefaced each answer with "As answered by Mr. Bernstein at his deposition . . ." prior to providing a specific response to the Interrogatory. Since CX 24, CX 33 and all of CX 46 have already been admitted into evidence, only CX 34 (a note from Ken Palmer to Mark Bernstein dated July 10, 2000) and Mark Bernstein's deposition

[Page 2]

At the hearing, in response to complainant's proffer of CX 46, respondent's counsel stated:

There are some documents incorporated by reference [in the Interrogatories] which are not included in the exhibit as marked, but I believe your Honor will understand from looking at it what the [sic] documents we're referring to.

(TR 601-02). This statement does not indicate an agreement by respondent to admit the referenced documents into evidence. It appears that respondent's counsel merely wanted to be sure that its answers to the Interrogatories would be placed in context. Complainant's counsel is contending that, because documents were incorporated by reference in another document which was admitted into evidence, the referenced documents also were admitted into evidence. This contention is baseless. If complainant wanted to have Mr. Palmer's note and Mark Bernstein's deposition transcript in evidence, he had an obligation to proffer those documents in a straightforward manner rather than sneaking them in through the back door.

Complainant's alternate argument, which relies on 29 C.F.R. §18.106 to have these documents admitted, is misplaced. That section of this Office's Rules of Evidence permits an adverse party to require the introduction of other evidence "which ought in fairness to be considered . . ." with an admitted document. Since complainant was the proponent of CX 46, §18.106 does not apply.

Accordingly, IT IS ORDERED that CX 45A and 46A are admitted into evidence, and CX 34 and 47 are excluded. IT IS FURTHER ORDERED that the record is closed. Although the parties' briefs were due by December 14, I had to wait for the hearing transcript in order to issue this order and then was out of town when it was received. To prevent any prejudice to the parties, briefs may be filed by December 28, 2001 rather than December 14.

SO ORDERED.

JEFFREY TURECK
Administrative Law Judge

[ENDNOTES]

F*F*F*F*F*F**F*F*/F*F*F* F*oF*rF* F*eF*xF*aF*mF*pF*lF*eF*,F* F*IF*nF*tF*eF*rF*rF*oF*gF*aF*tF*oF*rF*yF* F*1F*(F*aF*)F* F*rF*eF*qF*uF*eF*sF*tF*eF*dF* F*rF*eF*sF*pF*oF*nF*dF*eF*nF*tF* F*tF*oF* F*iF*dF*eF*nF*tF*iF*fF*yF* F*tF*hF*eF* F*tF*iF*mF*eF* F*aF*nF*dF* F*dF*aF*tF*eF* F*EF*xF*hF*iF*bF*iF*tF* F*AF* F*wF*aF*sF* F*pF*rF*eF*pF*aF*rF*eF*dF*.F* F* F*F*SF*eF*eF*F* F*CF*XF* F*4F*6F*.F* F*