Case 0:08-md-01916-KAM Document 2481 Entered on FLSD Docket 06/15/2019 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)

__________________________________________/

Plaintiffs Expedited Motion for leave

to file Consolidated Motion in Limine in this Court

Come now the Plaintiffs, represented by undersigned counsel, to move the Court for an

Order allowing counsel to file his own consolidated Motion in Limine, on the same deadline as,

and with the same page limits as allowed to counsel for the other plaintiffs. That is, a single brief

of up to 20 pages covering all areas of evidence to be excluded. Counsel for the Plaintiffs conferred

by email with counsel for the Defendants, who have not responded since yesterday. See Exhibit

1, attached hereto. The Motion should be decided on and expedited basis since the deadline to file

pre trial motions is July 1, 2019. A Proposed Order is attached.

The Amended Global Scheduling Order ("GSO") states that: "July 1, 2019: Motions in

Limine, Daubert and other trial motions related to all twelve Bellwether cases. One consolidated

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MIL briefing and one consolidated Daubert briefing for all twelve Bellwether cases. Normal page

limits apply." DE 2122 at 6. This instruction appears in the part of the GSO pertaining to

Bellwether Trial #1, in which the Plaintiffs are not participating. Id. The Court has discretion to

decide these kinds of pre-trial issues, or to leave them for the transferor court, the U.S. District

Court for the District of Columbia.1 The job of the judge in DC will be simpler if this Court affirms

which of its prior Motion in Limine decisions in Julin apply to the ATS plaintiffs' cases.2 See

Omnibus Order on Motions in Limine, DE 1780. The Court previously granted Plaintiffs' Motion

to decide three cases from Complaint Does 1-976, (10-80652-CIV-MARRA) DE 2234, even

though they are not among the dozen bellwether cases set for trial in October 2019 and February

2020.3

The remainder of this brief will list the Orders we believe should still apply, and then list

some other categories of evidence we'd like the Court to rule on. The Plaintiffs infer, from the

page limitations in the GSO, and the fact that over 20 Motions in Limine were filed in the Julin

case, many only one or two pages long, that the Court doesn't want extensive briefing on issues

that have already been decided.

1
The case Does 1-2146, 17-80475-CIV-MARRA is anomalous because it was first-filed in the
Southern District of Ohio. We don't intend to move to remand this case, although the Individual
Defendants in it could choose to do so.
2
The Court's Orders were generally without prejudice to allow counsel to proffer evidence outside
the presence of the jury for purposes of obtaining a ruling on the admissibility of specific evidence
of this nature.
3
Due to counsel's error, only two of the three cases were from Complaint 10-80652-CIV-MARRA.
The third was from Case 11-80404-CIV-MARRA. The difference is that the cases from Case 11-
80404-CIV-MARRA include the years 1995-1996, when the Defendant paid the AUC on an ad
hoc basis, before the meeting with Raul Hasbun which established the three cents per box price,
and require some additional proof. As argued in Plaintiffs' Opposition to Defendants' Motion for
Summary Judgment and Revised Statement of Facts, DE 2325, 2370, the Julin case and Special
Litigation Committee report provide plenty of evidence of payments to every illegal group in the
region who asked money from them, including both guerrillas and paramilitaries.
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A. Issues already decided by this Court that should apply in D.C. District Court.

1. Precluding the use of evidence of contribution, comparative fault, or assumption of

risk. See Omnibus Order on Motions in Limine, DE 1780 at 1; Motion, DE 1596.

2. Precluding the use of hearsay statements concerning threats to Defendant and its
employees. DE 1780 at 2; Motion, DE 1597.

3. Precluding the use of evidence of collateral sources.4 DE 1780 at 2; Motion, DE

1598.

4. Precluding the use of evidence of decisions of persons not to join in this action, and
plaintiffs personal quantification of damages. DE 1780 at 2; Motion, DE 1599.

5. Precluding the use of evidence of evidence of willingness of others to pay the

paramilitaries. DE 1780 at 3; Motion, DE 1600.

6. Precluding the use of hearsay statements concerning incidents involving law

enforcement and the military. DE 1780 at 3; Motion, DE 1601.

7. Precluding the use of evidence of how Plaintiffs learned about or joined the case.
DE 1780 at 4;5 Motion, DE 1605.

8. Precluding the use of Chiquita's guilty plea, but allowing the use of the Factual
Proffer. DE 1780 at 5-6; Motion, DE 1606.

9. Allowing the use of evidence of the official designation of the FARC and AUC as
Foreign Terrorist Organizations. DE 1780 at 6; Motion, DE 1607.

10. Allowing the use of evidence of Chiquita's payments to other Colombian terrorist
organizations, including the AUC, FARC, ELN, EPL and others. DE 1780 at 6;
Motion, DE 1608.

11. Precluding the use of evidence of duress and prohibiting Chiquita from
characterizing payments as extortion. DE 1780 at 4; Motion, DE 1610.

12. Precluding the use of evidence of non-prosecution.6 DE 1780 at 4; Motion, DE

1613.
4
The collateral sources referred to in DE 1598 included life insurance and social security
payments. Here, potential collateral sources include payments from Accion Social or (potentially)
the Colombian Commission of Justice and Peace.
5
Although the Court previously granted the motion in limine, the Defendant hammered on this
point in the depositions. The Defendant discovered nothing improper about the way the bellwether
plaintiffs learned about the case, which was generally by word of mouth.
6
Although the motion in Julin pertained to non-prosecution by the SEC, Chiquita makes similar
arguments about the relevance of the investigation into arms trafficking by the Organization of
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13. Precluding the use of evidence of legal advice as a defense to paying the AUC. DE
1780 at 5; Motion, DE 1614.

14. The use of evidence of Chiquita’s investment in Colombian infrastructure. DE

1780 at 5; Motion, DE 1616.

B. Issues not decided in Julin which are still common issues to all ATS cases. 7

1. Precluding evidence of the AUC's activities in other parts of Colombia.

This would include such things as murders, kidnappings, torure, and massacres as well as

the AUC's financial dealings, drug trafficking and political influence in other parts of the country.

The cases in these complaints all involve murders in the Uraba region of Colombia.

2. Precluding the use of unsworn testimony from the Colombian Commission of

Justice and Peace.

The Defendant destroyed the opportunity we had to take depositions of two important

witnesses (Ludy Rivas and the confidential bus massacre witness) by objecting at the last minute

that a Colombian judge would have to administer the oath and act as a referee in the deposition.

When we rescheduled this pursuant to the Court's order, only one day was available on the

calendar, and only Raul Hasbun's testimony could be taken.

Although the Defendant has argued with us about this, by now they should believe that one

of the conditions of demobilization of the AUC, and their participation in the Justice and Peace

proceedings, was that none of their testimony would be under oath. This was apparently to address

American States, which according to the Defendant absolved them of responsibility. Just as the
Court has allowed the Factual Proffer but not the Guilty Plea, it should allow evidence of arms and
drug trafficking, but not the findings or conclusions. Likewise, the fact that the Colombian police
have been ineffective in prosecuting these crimes should not be held against the Plaintiffs.
7
These are the issues that are apparent as of this writing. There may be others that I find while
reviewing the Defendant's Statement of Material Facts.
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their concerns that their statements could eventually be used against them, in some unforeseen

way.

Moreover, it is my understanding that the transcripts of the testimony are confidential. I

do not have any of them and Chiquita has never provided any in discovery. If Chiquita intends to

use such materials, at a minimum they should explain the process used to obtain them. There are

many other kinds of documents that I would like to have, such as autopsy and police reports, but

the bottom line is that they are confidential, and there has been no legal process in Colombia to

change this.

3. Daubert motions.

There are obvious flaws in the reasoning of Chiquita's experts, only one of whom was

disclosed to me and produced a report. That is, calculations of the AUC's finances on a national

level can't be compared to Chiquita's payments, which were to specific AUC units that operated in

the vicinity of Chiquita's farms. See Opp to MSJ, DE 2325 at 15. Moreover, this information was

just copied from an issue of Janes Intelligence Review. Id. The experts would mislead the jury

about Defendant's role in the shipment of thousands of machine guns into Colombia, and tons of

cocaine out of Colombia. While Chiquita may not have profited from these businesses, they

happened right under their nose, and show the ease of access the AUC had to Chiquita's property.

I'm glad to let the other plaintiffs' counsel do the Daubert hearing rather than fight with

them for time in it, as occurred in the Rule 30(b)(6) witness deposition, and in paramilitary

depositions where the other counsel did not want me to participate other than submitting questions

for the witnesses. I don't believe this is complicated enough that I have to write a separate Daubert

brief as long as the obvious subjects are addressed.

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4. Other trial motions.

The GSO also refers to "other trial motions related to all twelve Bellwether cases." DE

2122 at 6. The other obvious issues are whether non-party witnesses may testify by video from

Colombia, whether the denial of a visa would be good cause to do so, and a potential issue

regarding authentication of documents. My clients normally had their documents stamped by the

local notario, which are normally in blue ink. The plaintiffs also generally gave sworn statements

to the notarios, called extrajuicios, about their family relationships and the decedents' heirs. The

Plaintiffs will be testifying and should be able to authenticate these government records without

asking the Colombian Ministry of Foreign Relations to put apostille stamps on each of them. In

addition I think I am the only attorney who followed the Court's instruction to use "certified"

translators. See DE 2330-2335, which has English translations laid out to resemble the originals

in Spanish. Notably, the expert report of Chiquita's Colombian law expert, Dr. Santos Ballesteros,

was translated by a Colombian attorney with no credentials as a translator. We will also have

maps, summary charts and other graphic exhibits to use at trial. These are the kinds of issues this

Court may wish to leave for the District Court for the District of Columbia, since they get into the

details of the trials, and the DC judge in may want to manage them, particularly since we have no

agreement with the Defendant as to how we're going to bring the next 1,000 cases to trial.

Conclusion

For the foregoing reasons, the Court should GRANT Plaintiffs' Expedited Motion and

allow Attorney Wolf to file a 20 page Motion in Limine by July 1, 2019.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, D.C. Bar #480285
Attorney for Plaintiffs

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P.O. Box 21840

Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com
fax: n/a
June 15, 2019

Certificate of Conferral

I hereby certify that on June 12, 2019, I conferred with counsel for the Defendant on
whether this Court should decide Motions in Limine for cases to be remanded to the District Court
for the District of Columbia. See Exhibit 1, attached hereto. I have not received a a reply.

/s/ Paul Wolf

______________
Paul Wolf

Certificate of Service

I hereby certify that on this 15th day of June, 2019, I filed the foregoing document with the
cleark of the Court using the Court's Electronic Filing (ECF) system, which will send electronic
notices to all persons entitled to receive them.

/s/ Paul Wolf

______________
Paul Wolf

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Case 0:08-md-01916-KAM Document 2481 Entered on FLSD Docket 06/15/2019 Page 8 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)
17-80475-CIV-MARRA (O.H. Action) (Does 1-2146)

__________________________________________/

Proposed Order

In consideration of Plaintiffs' Plaintiffs Expedited Motion for leave to file Consolidated

Motion in Limine in this Court and all Oppositions, Responses and Replies, it is hereby

ORDERED that the Motion is GRANTED. Attorney Wolf may file a consolidated Motion

in Limine on July 1, 2019, to which standard page limitations apply.

Done this ________ day of June, 2019.

_____________________
Kenneth A. Marra
U.S. District Judge