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ABBOTT v. U.S.

December 3, 1999

MARIE N. ABBOTT, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Hurd, District Judge.

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

There are 737 named plaintiffs in this action, and that number was expected to increase to over 800*fn1. Thus, in order to streamline the discovery phase of this action, the parties agreed to and the undersigned, in the prior capacity of magistrate judge, ordered that plaintiffs designate one representative plaintiff. The representative plaintiff must have received a payment from IBM, experienced no symptoms of physical or emotional harm, nor asserted or threatened any claim against IBM, and not communicated with IBM regarding his or her injuries or claims, prior to signing a General Release and Covenant Not To Sue ("Release") and receiving a payment from IBM. Complete discovery was then to be permitted as to the representative plaintiff.

Additionally, plaintiffs were required to stipulate that if the defendant was ultimately successful on a motion dispositive of liability as against the representative plaintiff, all plaintiffs in the action agreed to withdraw the complaint in its entirety, with prejudice. On the other hand, if the plaintiffs were successful on a motion dispositive of liability with regard to the representative plaintiff, including appeals, the parties would be permitted complete discovery as to all plaintiffs.

Plaintiffs selected one Ernest N. Miles*fn2 ("Miles") as their representative plaintiff. Plaintiffs certified that prior to signing a Release and receiving his payment from IBM, Miles did not experience symptoms of physical or emotional harm, did not assert or threaten any claim against IBM, and did not communicate with IBM regarding his injuries or claims. Plaintiffs did stipulate that, if defendant were successful on a dispositive motion as to liability to Miles, all claims would be withdrawn with prejudice. Complete discovery was then taken by the parties relating to Miles. The parties also proceeded with open discovery of non-party IBM, with regard to any and all plaintiffs.

II. PROCEDURAL POSTURE

On June 29, 1998, defendant filed a motion in limine to preclude the testimony at trial of Dr. H. Michael Peter. On June 30, 1998, the defendant filed two additional motions in limine to preclude the testimony at trial of plaintiffs' legal expert Richard Reibstein, Esq. and to preclude the use of certain documents. Plaintiffs oppose the motions in limine.

On March 5, 1999, plaintiffs filed a motion for summary judgment package pursuant to Local Rule 7.1(b)(1) that included defendant's opposition to the motion as well as plaintiffs' reply. Also on March 5, 1999, defendant filed a motion for summary judgment package pursuant to Local Rule 7.1(b)(1) that included plaintiffs' opposition as well as its reply. Further, defendant filed a motion to strike certain testimony and documents in the event a trial takes place. Plaintiffs oppose the motion to strike.

Oral argument on these motions was heard on June 15, 1999, in Utica, New York. Decision was reserved.

III. FACTS

Following are the undisputed facts as set forth by the parties. Only detail sufficient for determination of the pending motions is set forth.

During the late 1980's and early 1990's, the computer market move away from centralized mainframe computers resulted in IBM changing its product mix, reallocating employee resources, and generally downsizing. In the fall of 1991 IBM changed the method by which it evaluated employees, resulting in stricter scrutiny and lower overall performance evaluations. IBM used the performance evaluations as part of the criteria in making downsizing determinations. In addition to retraining and redeploying employee resources, in 1990 through 1996 IBM operated both voluntary and involuntary downsizing programs. The primary purpose for the downsizing programs was not to obtain waivers of claims from employees nor to compensate or settle personal injury or any other tort claims of employees. IBM designated the employees eligible to participate in the downsizing programs based upon a determination of surplusage in specific skills or positions.

The downsizing programs were essentially an incentive for employees to terminate their employment with IBM, either through resignation, pre-retirement leave of absence, or early retirement. IBM provided a lump sum payment calculated based upon years of service and salary at the time of termination. IBM withheld income and employment taxes from all lump sum payments made under its downsizing programs. As a condition of participation in a downsizing program, IBM required employees to sign a Release.*fn3 IBM notified employees that if the ...


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