The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION and ORDER
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
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motion as to liability to Miles, all claims would be withdrawn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.
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.
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
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 ...