ML20155G736
| ML20155G736 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 05/02/1986 |
| From: | Berry G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-037, CON-#286-37 OL, NUDOCS 8605070107 | |
| Download: ML20155G736 (6) | |
Text
--
=
9'b(
~
B!AY 2,1986 UNITED STATES OF AMERICA 00cgr7gg MUCLFAll I!!!( llLATORY COMfilSSIO!!
IlSNRC BEFORE T!!E ATOfflC SAFETY AND LICENSIN(71$0Ag5 Ay :4g OIfir r.
C' c T,t o y In the f,'atter of
)
CCc.t fa
)
I DockebNos. 50-456' b j b COMMONWEALTII EDISCN COf.iPANY
)
50-457
)
(Droidwood Station, Units 1 and 2)
)
NRC STAFF RESPONSE TO APPLICANT'S
" MOTION IN LIMINE-PUCCETT SETTLEMENT AGREEMENT" 4
J.
INTRODUCTION On April 25, 1986, Applicant filed a motion in limine with the Daard in which it requests the Board to enter an order "barring all parties, their counsel and their witnesser from making any reference to, or submitting any evidence of, a settlement agreement entered into between Mr. - Worley O. Puckett and Comstock Engineering [.]"
Motion at 1.
The Staff supports Applicant's motion in part.
As cyplained below, the Board should rule that the settlement agreement between Mr. Puckett and L.K.
Comstock Engineering ("LKC") is inadmissible if offered te prove liability or fault on the part of LKC.
II.
DISCUSSION Although the Nuclear Regulatory Commission is not bound by the federal evidentiary or procedural rules, Applicant notes correctly that NRC adjudicatory boards oftert look to those rules for guidance.
See e.g.
Southern California Edison Co.
(San Onofre Nuclear Generating Station,
Units 2 and 3),
A L A D-717, 17 NRC 346, 365 n.32 (1983).
8605070107 860502 PDR ADDCK 05000456 C
PDR 9
,--s.w-
.-m n---
._ p _
Rule 408 of the Federal Rules of Evidence speaks directly to the situation presented here:
Rule 408.
Compromise and Offers to Compromise Evidence of (1) furnishing ~
offering or or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise negotiations is likewise not admissible.
This rule does not require the exclusion of any evidence "
otherwise discoverable merely because it is presented in the course of compromise negotia-tions.
This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Fed. R. Evid. 408.
The purpose of Rule 408 is to remove disincentives to the settlement or compromise of disputed claims.
A party would not be inclined to try to resolve its differences extrajudicially if it knew that in the event settlement negotiations proved unfruitful, offers or statements mede by it in the course of those negotiations could be used at trial to establish that party's fault or liability.
Similarly, there would be little incentive for a party to reach an extrajudicial agreement with another if evidence of that agreement is admissible to provide liability on its part when offered by a third party.
Such a result would frustrate rather than promote the public policy favoring out of court settlements of claims.
The settlement agreer'ent involved here resolved the contested Department of Labor proceeding between Mr. Puckett and LKC arising from LK C's alleged unlawful termination of Mr. Puckett's employment at
.= -_
the Braidwood facility and is precisely the type of situation in which Rule 408 is intended to apply.
The Staff helieves it is appropriate to apply the principles of Rule 408 to Applicant's motion.
Conseq uently,
the settlement agreement itself and testinony concerning that agreement should be excluded by the Board if offered for the purpose of proving that lilr. Puckett was harassed, intimidated, or fired unlawfully by LEC.
The Staff, however, does not agree with Applicant that the Board sbculd bar unconditionally all uses of the settlement agreement in this proceeding.
In the Staff's view, evidence of the settlement agreement is inadmissible only if offered by Intervenor to prove fault or liability on the part of LKC.
Such evidence, however, may be admitted if offered for some other relevant purpose.
Rule 408 make this clear:
This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
In addition to the situations identified in Rule 408, there are a host of others in which a settlement agreement could be relevant such as, for l
exampic, to prove knowledge, control, or the existence of an agency rela-tionship.
Since it cannot be said at this time that no issue will arise in the ' proceeding to which evidence of the settlement agreement would be i
relevant, it would be premature for the Board now to bar unconditionally all uses of that evidence.
Rather, the Board should follow the provisions l~
j of Rule 408 and rule that evidence relating to, or consisting of, the i
settlement agreement between LKC and Mr. Puckett in not admissible if I
offered to prove liability or fault on the part of LKC. The Board should l
.. reserve ruling on the admissibility of the settlement agreement if offered by a party for some other purpose until such tine that an offer of proof is made and responded to by tho other parties.
III.
CONCL,USION For the reasons stated herein, the Board should grant Applicant's motion in part by ruling that evidence of the settlement agreement between L.K. Comstock Engineering and Worley C.
Puckett is not admis-sible to prove fault or liability on the part of L.K. Comstock Engineering arising out of its termination of Mr. Puckett's employment at the Braidwood facility.
The Board should defer its ruling on other uses of that agreement until after an offer of proof has been made by a party and responded to by the other parties.
- Ree, etfully submitted, I
d f
Gregor/
Herry a
CounseU for RC Staff Dated at Bethesda, Maryland this 2nd day of May,1986 l
i l
l
(
l l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COP?? ISSION BEFORE Tl!E ATOMIC SAFETY AMD IICENSING DOARD In the Matter of
)
)
COMMONWEALTII EDISON COMPANY
)
Docket Nos. 50-450
)
50-457 (Braidwood Station, Units I and 2
)
CERTIFICATE OF SERVICE I hereby certify that copies of "FRC STAFF RESPONSE TO APPLICANT'S
' MOTION IN LIP!INE-PUCKETT SETTLEMENT ACPEEf!ENT'" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 2nd day of May,1980:
IIerbert Grossman, Esq., Chairman
- Commonwealth Edison Company Administrative Judge ATTN:
Cordell Reed Atomic Safety and Licensing Board Assistant Vice President U.S. Nuclear Regulatory Commission P.O. Box 767 Washington, DC 20555 Chicago, IL 60690 Dr. A. Dixon Callihan Region III Administrative Judge U.S. Nuclear Regulatory Commission 102 Oak Lane Office of Inspection & Enforcement Oak Ridge, TN 37830 799 Roosevelt Road Glen Ellyn, IL 60137 Dr. Richard F. Cole Joseph Gallo, Esq.
Administrative Judge Isham, Lincoln & Beale Atomic Safety and Licensing Board Suite 1100 U.S. Nuclear Regulatory Commission 1150 Connecticut Avenue, N.W.
Washington, DC 20555 Washington, DC 20036 Michael I. Miller, Esq.
Elena Z. Eczelis, Esq.
Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602
_ Douglass W. Cassel, Jr., Eso.
Atomic Safety and Licensing Board Timothy Wright, Esq.
Panel
- Robert Guild, Esq.
U.S. Nuclear Regulatory Commission 109 North Dearborn Street Washington, DC 20555 Suite 1300 Chicago, IL 60602 Atomic Safety and Licensing Appeal Eric Jones, Director Board Pencl*
Illinois Emergency Services U.S. Nuclear Regulatory Commission and Disnster Agency Washington, DC 20555 110 East Adams Springfield, IL 62705 Docketing and Service Section*
Office of the Secretary Lorraine Creek U.S. Nuclear Regulatory Commission Route 1, Box 182 Washington, DC 20555 lUanteno, IL 60950 Ms. Bridget Little P.orem H. Joseph Flynn, Feq.
117 North Linden Street Associate General Counsel Essex, IL 60935 FEMA 500 C Street, S.W., Suite 480 George L. Edgar, Esq.
Washington, DC 20472 Newman & Holtzinger, P.C.
1615 L Street, N.V'.
Suite 1000 Washington, DC 20036 4
i b
~~ll,
Ala }RC Staff Berry Gr gor Counse or i
l I
l l
I