Lightsway Litigation Services, LLC as Trustee of T v. Yung, III

Bankr. D. Del.4/20/2020

View on CourtListener

AI Case Brief

Generate an AI-powered case brief with:

📋Key Facts

⚖️Legal Issues

📚Court Holding

💡Reasoning

🎯Significance

Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries

Full Opinion

[[COURTLISTENER_SUBOPINION {"id":"10455995","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
TROPICANA ENTERTAINMENT, LLC, )
et al., )
) Case No. 08-10856 (MFW)
Debtors. ) Jointly Administered
__________________________________ )
)
LIGHTSWAY LITIGATION SERVICES, LLC )
as TRUSTEE OF TROPICANA LITIGATION )
TRUST, )
)
Plaintiff, )
)
v. )
) Adv. No. 10-50289
WIMAR TAHOE CORPORATION f/k/a )
TROPICANA CASINOS AND RESORTS, INC.)
and COLUMBIA SUSSEX CORPORATION ) Rel. Docs. 223, 224, 225,
) 226, 227, 233, 234, 235,
Defendants. ) 236, 237
MEMORANDUM OPINION1
Before the Court are the Defendants’ Motions in Limine,
which are opposed by the Plaintiff. For the reasons set forth
below, the Court will grant in part and deny in part the Motions.
I. BACKGROUND
On May 5, 2008, Tropicana Entertainment, LLC, and its
affiliates (the “Debtors”) filed voluntary bankruptcy petitions
under chapter 11 of the Bankruptcy Code. (D.I. 1.) Pursuant to
1 The Court is not required to state findings of fact or
conclusions of law on these procedural motions pursuant to Rule
7052 of the Federal Rules of Bankruptcy Procedure. To the extent
there are material disputes of fact, the Court is reserving
decision until the trial. See, e.g., III.B infra.
the First Amended Joint Plan of Reorganization (the “Plan”), the
Debtors assigned certain claims against its insiders to the
Tropicana Litigation Trust (the “Plaintiff”).
The Plaintiff filed this adversary action in 2010. On
November 25, 2014, the Court granted in part and denied in part
the Defendants’ motion to dismiss. (Adv. Proc. D.I. 91.) As a
result, two claims remain against Defendants Wimar Tahoe
Corporation (“Wimar”) and Columbia Sussex Corporation (“Sussex”):
(1) breach of contract and (2) breach of the covenant of good
faith and fair dealing. Those claims relate to contracts between
Wimar and the Debtors for casino management services and
contracts between Columbia and the Debtors for hotel management
and back-office services.
On May 29, 2019, the Court denied the Defendants’ motion for
summary judgment, finding a material issue of disputed fact as to
whether the Defendants breached those contracts by, inter alia,

failing to supervise operations and understaffing the casinos and
hotels. (Adv. Proc. D.I. 211.)
The parties have completed both fact and expert discovery.
On November 22, 2019, the Defendants filed five motions in limine
to preclude the introduction of certain testimony and documents
at trial. The Plaintiff responded to the motions and on March
31, 2020, a notice of completion of briefing was filed. Although
the parties have not yet filed their lists of witnesses or
2
documents that they intend to present at the trial, the Plaintiff
has stated that it does intend to use certain documents and to
call certain witnesses (or rely on prior testimony of those
witnesses). Therefore, the issues raised by the Motions are ripe
for decision.

II. JURISDICTION
The Court has jurisdiction over the Motions. In ruling on
the motion to dismiss, the Court found that it had jurisdiction
over this adversary proceeding because there was a close nexus
between the claims and the confirmed Plan. Lightsway Litig.
Servs. LLC v. Yung (In re Tropicana Entm’t, LLC),
520 B.R. 455,
462-63
(Bankr. D. Del. 2014), citing Binder v. Pricewaterhouse &
Co., LLP (In re Resorts Int’l, Inc.),
372 F.3d 154, 168-69
(3d
Cir. 2004). Further, in its Opinion ruling on the motion for
summary judgment, the Court found that the parties have

stipulated to the Court’s authority to enter a final order.
Lightsway Litig. Servs. LLC v. Yung (In re Tropicana Entm’t,
LLC),Case No. 08-10856, Adversary. Procedure. No. 10-50289,
2019
WL 2320810
, *2 n. 10 (Bankr. D. Del. May 29, 2019), citing
Wellness Int’l Network, Ltd. v. Sharif,
135 S. Ct. 1932
(2015).

3
III. DISCUSSION
A. First Motion in Limine
In its first motion, the Defendants seek to preclude the
Plaintiff from introducing a report issued by the New Jersey
Division of Gaming Enforcement (the “DGE”) and an Opinion by the
New Jersey Casino Control Commission (the “CCC”) relating to the
denial of a license to Wimar to operate a casino at the Debtors’
property located in Atlantic City, New Jersey.
The Plaintiff contends that the report and the opinion are
admissible under Rule 803 of the Federal Rules of Evidence
because it is a public record that contains factual findings from
a legally authorized investigation. Fed. R. Evid.
803(8)(A)(iii). The Plaintiff notes that the DGE and CCC are
part of the executive branch in New Jersey and were acting within
their authority.
The Defendants do not dispute this but argue that the

documents are not admissible because (1) they contain hearsay
within hearsay, (2) the CCC opinion was the result of a judicial
(rather than an investigative) proceeding, (3) both were the
result of union and political pressure, (4) Columbia was not a
party to the investigation or proceeding, and (5) they contain no
indicia of trustworthiness.
The Court must reject the Defendants’ first contention -
that the report and opinion contain multiple instances of hearsay
4
- because Rule 803 is an exception to the general rule that
hearsay is inadmissible. Specifically, Rule 803(8) (A) (i111)
provides an exception to the admissibility of hearsay for “a
record or statement of a public office if... it sets out...
in a civil case .. . factual findings from a legally authorized
investigation.”
The Court also rejects the Defendants’ second contention
that Rule 803(8) is not applicable because the CCC proceeding was
a judicial (not an investigative) proceeding. In support of
their argument, the Defendants argue that only if a proceeding is
investigative - as opposed to judicial in nature — does the Rule
(8) (A) (111) exception apply. See, e.g., Hynix Semiconductor
Inc. v. Rambus, Inc., Case No. CV-00-20905,
2008 WL 282376
, at *3
(N.D. Cal. Jan. 28, 2008) (denying admission of FTC decision
because it was “more like ‘judging’ than ‘investigating.’”).°
The Court is not persuaded by the analysis in Hynix and
rather, is persuaded by the numerous decisions - some binding on

The Defendants actually cite Rambus, Inc. v. Infineon
Techs. AG,
222 F.R.D. 101
(E.D. Va. 2004) for that proposition.
However, the Rambus Court excluded the administrative ruling not
because it was the result of a judicial-like proceeding but
because it was only a preliminary decision that had to be
presented to the full Commission which would make the ultimate
findings of fact.
Id. at 108
. In doing so, the Rambus Court
acknowledged binding authority that facts found by executive
department tribunals are admissible (even though issued in
“jJudicial-like” proceedings).
Id.
at 107 (citing Zeus Enters.,
Inc. v. Alphin Aircraft, Inc.,
190 F.3d 238
, 242 (Ath Cir. 1999)
(holding that NTSB decision adopting ALJ’s finding that aircraft
was not airworthy was admissible under Rule 803(8)).

this Court - that conclude that findings of fact from executive
department decisions, even though conducted in judicial-like
proceedings, are admissible under Rule 803(8). See, e.g.,
Chandler v. Roudebush,
425 U.S. 840
, 863 n. 39 (1976) (noting
that “[p]rior administrative findings” made by a Veteran’s
Administration examiner in a hearing on an employment
discrimination claim are admissible in federal court); Henry v.
Daytop Village, Inc.,
42 F.3d 89, 96
(2d Cir. 1994) (findings of
state department of labor ALJ in unemployment benefits hearing
were admissible); In re Paducah Towing Co.,
692 F.2d 412, 420
(6th Cir. 1982) (findings of ALJ in Coast Guard proceeding to
revoke license of ship’s captain admissible); Lloyd v. American
Export Lines, Inc.,
580 F.2d 1179, 1183
(3d Cir. 1978) (findings
of hearing examiner in Coast Guard proceeding that included oral
testimony and admission of documents relating to assault and
battery charges were admissible under Rule 803(8)).

Accordingly, the Court rejects the Defendants’ second
contention that the findings of fact in the CCC decision are not
admissible because they were issued in a judicial-like
proceeding. The Court agrees with the Defendants, however, that
any conclusions of law in that decision are not admissible
because the hearsay exception in Rule 803(8) is limited to
“factual findings” from an investigation.

6
The Court also rejects the Defendants’ fourth contention
that the CCC decision is not admissible as to Columbia because it
was not a party to the proceeding. Rule 803(8) does not require
that the party against whom the report is admitted actually be a
party to or the subject of that investigative report. Rule
803(8) makes investigative reports admissible on the assumption
“that a public official will perform his duty properly.” Zeus,
190 F.3d at 241. It is not predicated on the fact that a party
had an opportunity to participate in the investigation. Cf. Fed.
R. Evid. 804(b)(1) (prior testimony exception to hearsay rule
requires that party against whom testimony is offered had an
opportunity to test that testimony at the prior hearing or
deposition). The Court will not read such a requirement into
Rule 803(8).
The Defendants’ third and fifth contentions are related:
they assert that there is no indicia of trustworthiness in the

DGE report or the CCC opinion because they contain hearsay within
hearsay and they were the result of union and political pressure.
The Plaintiff disputes these contentions.
The Court starts with the burden of proof. Rule 803(8)
makes public records of investigations admissible if “the
opponent [of admissibility] does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.” Fed. R. Evid. 803(8)(B). Thus, the burden of
7
showing untrustworthiness is on the party opposing the admission
of the investigative report, i.e., the Defendants in this case.
Baker v. Elcona Homes,
588 F.2d 551, 558
(6th Cir. 1978). It is
not sufficient to meet this burden by showing that some of the
evidence on which the report relied was hearsay. Paducah,
692
F.2d at 421
(concluding that opposing party failed to show that
report was untrustworthy by showing that one witness’s testimony
was hearsay without admitting the entire transcript to show the
other evidence on which the tribunal relied). Rule 803 is an
exception to the hearsay rule, thereby permitting the admission
of hearsay.
The Defendants cite the Third Circuit for the proposition
that a report may be excluded if it includes hearsay within
hearsay. Bernard v. East Stroudsburg Univ., 700 Fed. App’x 159
(3d Cir. 2017). The Bernard case is distinguishable. First, the
Circuit was reviewing the District Court ruling on exclusion

under an abuse of discretion standard. Id. at 167. Second, the
report at issue contained only preliminary findings. Id. Third,
the party seeking admission of the report admitted that it
contained only hearsay. Id. The Defendants in this case do not
contend that the entire record before the CCC was hearsay. In
fact, several representatives of the Defendants testified before

8
the CCC.3 The Defendants fail to identify specifically what
evidence considered by the CCC was hearsay and what weight the
CCC gave that evidence.
The Defendants also argue that the CCC decision is
untrustworthy because the CCC was subject to pressure by the
local union and politicians to deny the Defendants a casino
license. The Defendants present the deposition testimony of a
union representative who testified that he did oppose the license
and that he caused articles critical of the Defendants to be
published. However, that evidence is insufficient to show that
the CCC tribunal itself was biased or prejudiced against the
Defendants. While the union may have been biased against the
Defendants, there is no evidence that bias was held by the DGE or
the CCC. Rather, it appears that the CCC rendered its opinion
based on the record before the CCC, which was not limited to the
position of the Union but also included testimony from

representatives of the Defendants.
Thus, the Court concludes that the Defendants have not met
their burden of showing that the CCC decision is untrustworthy
pursuant to Rule 803(8)(A)(3). Accordingly, the Court will deny
the First Motion in Limine.

3 As noted below, the testimony of representatives of the
Defendants is not hearsay under Rule 801(d)(2). See III.D infra.
9
B. Second Motion in Limine
In their Second Motion in Limine, the Defendants seek to
preclude the Plaintiff from offering the expert opinions of their
damages expert, Jaime D’Almeida. In support they argue that (1)
the D’Almeida report is based on the report of the Plaintiff’s
liability expert, William Friedman, whom the Plaintiff is not
going to present at trial and (2) the “debt pricing model”
portion of the opinion is excludable under Daubert because it is
not founded on any scholarly method or other expert’s opinion; in
fact, the Defendants contend that Mr. D’Almeida admitted it has
never been used by any other expert, including himself.
The Plaintiff disagrees with the Defendants’ assertion that
D’Almeida’s report is based only on Mr. Friedman’s expert
opinion. The Plaintiff asserts that it will prove liability at
trial and that it does not need Mr. Friedman to do so. Once it
has established liability, the Plaintiff contends that

D’Almeida’s opinion as to the damages arising from that liability
will be admissible.
The Court agrees with the Plaintiff on this point. “Unlike
an ordinary witness . . . an expert is permitted wide latitude to
offer opinions, including those that are not based on firsthand
knowledge or observation. See Rules 702 and 703.” Daubert v.
Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 592
(1993). Mr.
D’Almeida’s expert report is based on facts upon which he relied
10
in forming his damages opinion. In the event that the Plaintiff
establishes those facts, then Mr. D’Almeida’s opinion based on
that evidence is admissible.
Further, the Plaintiff contends that the debt pricing model
portion of Mr. D’Almeida’s expert report is not a novel theory
but is widely used to calculate the change in value of debt. It
notes that Mr. D’Almeida explained at his deposition that he used
that model as a check on his calculation of the change in value
of equity, because both change in tandem. At any rate, the
Plaintiff argues that Mr. D’Almeida’s theory can be tested at
trial.
The Court agrees with the Plaintiff’s last point. The trial
is a bench trial, not before a jury, and therefore exclusion of
testimony on Daubert grounds now, before the Court has had the
chance to evaluate the direct (and cross) examination of the
expert witness, is not the best way to assess the reliability of

the expert’s opinion.
The court believes that these issues [the reliability
of the expert’s methodologies and their fit with the
facts of the case] will best be resolved at trial
rather than now in writing or following a Daubert
hearing sometime prior to trial. As this case will be
a bench trial, the court’s ‘role as a gatekeeper
pursuant to Daubert is arguably less essential’ . . . .
Indeed, ‘vigorous cross-examination [and] presentation
of contrary evidence’ will provide the best means of
attacking [the expert’s] report, as opposed to the
court’s conducting a line-by-line analysis of the
report now. If the court examined the report now as
plaintiffs urge, the court’s determinations regarding
the veracity, reliability, or weight of isolated
11
statements in the report would be without the benefit
of the context to be provided by other evidence, the
context in which the report as a whole must be
considered.
Clark v. Richman,
339 F. Supp. 2d 631, 648-49
(M.D. Pa. 2004)
(citations omitted).
Accordingly, the Court will deny the Second Motion in
Limine, with the caveat that the Defendants may move at trial to
exclude the expert’s testimony after cross-examination.
C. Third Motion in Limine
Related to the First Motion, the Third Motion in Limine
seeks to exclude the admission of the New Jersey Court opinions
upholding the CCC decision denying a casino license to Wimar.
The Defendants argue that the judicial decisions are not
admissible under res judicata or collateral estoppel grounds
because the action in New Jersey did not involve the same parties
or same factual or legal issues. Columbia, in particular, argues
that it was not a party to the appeals. The Defendants also
argue that the issues relevant to the appeals are different from
the issues in the adversary. The appeals dealt with whether the
denial of the casino license was justified not whether Wimar or
Columbia breached their contracts with the Debtors. The
Defendants further contend that the opinions are hearsay and not
admissible under Rule 803(8) because they are clearly judicial
decisions and not investigative reports.
12
The Plaintiff argues that the Motion is premature because it
currently does not intend to offer the Opinions into evidence.
However, it reserves the right to offer them if the Defendants
seek to collaterally attack the CCC decision which was affirmed
by the New Jersey Courts.
The Court agrees with the Defendants that the New Jersey
Court Opinions are not admissible under Rule 803(8) because they
are judicial decisions and not investigative reports. See, e.g.,
Int’l Land Acqs., Inc. v. Fausto, 39 Fed. App’x 751, 756 (3d Cir.
2002); Nipper v. Snipes,
7 F.3d 415, 417
(4th Cir. 1993).
However, the Court concludes that they are admissible (not for
the truth of what they say) but for notice of the fact that they
were entered. Michael v. Quaker Valley School Dist., Civ. A. No.
2:16-cv-00473,
2019 WL 1349556
, at *2, n.4 (W.D. Pa. March 26,
2019) (statements offered in support of summary judgment were not
hearsay because they were offered, not for the truth of what was

stated, but to show that plaintiff had notice of them). Cf. Fed.
R. Evid. 801(c)(2). The Court need not address whether they are
admissible for any other purpose, until and unless a party seeks
to admit them.
Accordingly, the Court will grant in part and deny in part
the Third Motion in Limine.

13
D. Fourth Motion in Limine
In the Fourth Motion in Limine, the Defendants seek to
exclude the CCC hearing transcripts and testimony elicited in
that proceeding. The Defendants argue that the prior testimony
before the CCC is not admissible under Rule 804 because (1) there
is no evidence that the declarants are unavailable and (2)
neither Columbia (who wasn’t even a party to the CCC proceeding)
nor Wimar had a “similar motive to develop [that testimony] by
direct, cross, or redirect examination.” Fed. R. Evid.
804(b)(1)(B).
The Plaintiff responds that the transcript is admissible
under Rules 801 and 804. The Plaintiff notes that many of the
witnesses who testified at the CCC proceeding, and particularly
Mr. Yung, are representatives of the Defendants. Consequently,
it argues that the prior testimony is not even hearsay under Rule
801. Further, the Plaintiff asserts that it has not determined

what parts of the transcript, if any, it intends to offer at the
trial. Therefore, it argues that the Defendants’ Motion is
premature.
The Plaintiff does ask the Court to decide, nonetheless,
that the transcript would be admissible under Rule 804 as to
declarants who are not representatives of the Defendants to the
extent they are not available to testify at trial because the
issues extant at the CCC were the same issues that are relevant
14
here: namely, whether the Defendants mismanaged the hotel and
casino properties.
The Court agrees with the parties that a ruling on the issue
of admissibility of any part of the CCC transcript is ripe and
will facilitate the parties’ preparation for, and presentations
at, the trial.
With respect to any witness who testified at the CCC hearing
who is a representative of the Defendants, the Court agrees with
the Plaintiff that the testimony (at the CCC hearing or
otherwise) is not hearsay and is admissible under Rule 801
regardless of availability. Fed. R. Evid. 801(d)(2). Further,
if any witness who testified at the CCC hearing is called to
testify at the trial in this matter, his prior testimony may be
used to impeach him or for any other reason set forth in Rule
801(d)(1).
With respect to witnesses who do not fall into either of

those categories, the Court addresses the two arguments presented
by the Defendants to exclude that testimony as follows.
1. Unavailability
The Defendants argue that the Plaintiff has not met the
standard under Rule 804 to show the declarants are now
unavailable. They contend that “unavailable” under Rule 804
requires a showing that the Plaintiff “has not been able, by
process or other reasonable means to procure” their attendance at
15
trial. Fed. R. Evid. 804(a) (5) (emphasis added). The Defendants
contend that the Plaintiff has made no such showing.
The Plaintiff responds that unavailability under Rule 804 is
the same as that under Rule 32 of the Federal Rules of Civil
Procedure: namely, that the witness is beyond the subpoena power
of the Court. Wilson v. Seven Seventeen HB Philadelphia Corp.
No. 2, Civ. A. No. 99-CV-1729,
2003 WL 22709073
(E.D. Pa. Nov.
14, 2003).
The Court agrees with the Plaintiff. As noted by the Wilson
Court:
“In civil cases, it has long been the rule that
inability to procure attendance by ‘process or other
reasonable means’ is satisfied by demonstration of
inability to serve a subpoena.” Zenith Radio Corp. v.
Matsushita Elec. Indus. Co.,
505 F. Supp. 1190, 1249
(E.D. Pa.1980), aff’d in part and rev’d in part on
other grounds,
723 F.2d 238
(3d Cir. 1983); AEL Indus.,
Inc. v. Alvarez, No. 88-0391,
1989 WL 97394
, at *2
(E.D. Pa. Aug. 17, 1989) (“A witness who is beyond the
subpoena power of the court is unavailable.”). See
also Aubrey Rogers Agency, Inc. v. AIG Life Ins. Co.,
No. 97-529,
2000 WL 135129
, at *2 (D. Del. Jan. 13,
2000) (noting that courts distinguish between the
unavailability of fact witnesses and expert witnesses
and find fact witnesses unavailable solely because the
witnesses are beyond the subpoena power of the court).
Accordingly, we conclude that any witness outside the
subpoena power of this Court (within 100 miles of this
District) is unavailable under Rule 804(a)(5) and their
testimony may be admissible under the “former
testimony” exception to the hearsay rule.
Wilson,
2003 WL 22709073
, at *4.
Thus, to the extent any of the witnesses who testified at
the CCC hearing are beyond the subpoena power of the Court, the

16

Court concludes that they are unavailable under Rule 804.
2. Similar Action
The Defendants argue, however, that the CCC transcript is
not admissible because the Defendants did not have a similar
motive or opportunity to elicit testimony in the CCC proceeding
that is relevant to the issues in this case because it was before
the adversary complaint was filed and the issues were
significantly different. See, e.g., United States v. DiNapoli,
8
F.3d 909, 913
(2d Cir. 1993); Complaint of Bankers Trust Co.,
752
F.2d 874
, 887–88 (3d Cir. 1984). The Defendants also argue that
the transcript is not admissible as to Columbia because it was
not a party to the CCC proceeding.
The Plaintiff responds that the CCC proceeding addressed the
very facts that are at issue in this proceeding: namely, whether
the Defendants mismanaged the hotel and casino operations. It
also argues that Columbia was a party because it was an “entity

qualifier” in those proceedings.
Rule 804(b)(1) provides an exception to the hearsay rule if
the declarant is unavailable as a witness and:
(A) the testimony was given as a witness at a trial,
hearing, or lawful deposition, whether given during the
current proceeding or a different one; and
(B) the testimony is now offered against a party who
had – or, in a civil case, whose predecessor in
interest had – an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.
Fed. R. Evid. 804(b)(1) (emphasis added).
17
The Court agrees with the Plaintiff that Columbia, though
not the applicant for the casino license, was a party to the
proceeding because it was an entity qualifier. As an entity
qualifier, it too was investigated by the DGE to see if it
qualified to operate the casino’s hotel.4 Further,
representatives of Columbia participated in the CCC proceeding
by, inter alia, testifying at length.5
The Court also concludes that both Defendants had an
opportunity and a similar motive in the CCC proceeding as they
have in this adversary proceeding to develop relevant testimony.
The subject of the CCC proceeding focused largely on whether the
hotel and casino operations were mismanaged. The predicate of
the Plaintiff’s complaint in this adversary proceeding is that
those operations were mismanaged and, as a result, the Defendants
breached their management agreements with the Debtors. Thus, in
seeking the casino license which would allow Wimar to run the

casino (and the approval of Columbia as an “entity qualifier”
allowing it to run the hotel), both Defendants had a motive in
the CCC proceedings that is similar to their motive in defending
this adversary proceeding: to establish that they did not
mismanage the hotel or casino properties.

4 See D.I. 233, Ex. A at 78-79.
5 See D.I. 236, Ex. A at 5, 30 et seq.
18
Consequently, the Court concludes that the CCC transcript is
admissible under Rule 804. Accordingly, the Court will deny the
Fourth Motion in Limine.
E. Fifth Motion in Limine
In the Fifth Motion in Limine, the Defendants seek to
exclude the admission of transcripts of certain depositions taken
in another proceeding (the main bankruptcy case).6 As in the
Fourth Motion, the Defendants argue that they are not admissible
under Rule 804 because (1) there is no evidence that the
declarants are unavailable and (2) neither Columbia nor Wimar had
a “similar motive to develop [that testimony] by direct, cross,
or redirect examination.” Fed. R. Evid. 804(b)(1)(B). The
Defendants also argue that the depositions are not admissible
under Rule 32 of the Federal Rules of Civil Procedure because the
prior action did not involve the same parties or same subject
matter. Maxus Liquidating Trust v. YPF (In re Maxus Energy

Corp.), Bankr. No. 16-11501, Adv. No. 18-50489,
2019 WL 2581609
,
*2-3 (Bankr. D. Del. June 24, 2019). Specifically, they argue
that the main bankruptcy case involved many matters and not the
express issues raised in this adversary proceeding.
6 By agreement of the parties, the transcripts of the
depositions of Donna More (June 19, 2008), William Yung III
(June 16 and 17, 2008), and Theodore Mitchel (June 20 and
September 25, 2008) may be used at trial in the adversary subject
to specific objections with respect to individual testimony. The
Plaintiff seeks the admission of additional deposition
transcripts.
19
The Plaintiff responds that currently it intends to use only
two depositions taken in the main bankruptcy case, those of
Richard Fitzpatrick, a former employee of Defendant Columbia, and
Howard Reinhardt, a former employee of Defendant Wimar. The
Plaintiff asserts that those depositions are admissible under
both Rule 32 and Rule 804. It presented evidence that both live
beyond the subpoena power of the Court and, therefore, are
unavailable under either Rule.7
Further, the Plaintiff notes that the depositions were taken
in the main bankruptcy case by the Creditors’ Committee and a
special committee of the Debtors’ Board for the express purpose
of ascertaining whether there were any claims that the estate had
against the Defendants for their mismanagement of the Debtors’
casino and hotel properties - exactly the contentions in this
adversary proceeding.
The Court agrees with the Plaintiff that the depositions

taken in the main bankruptcy case did involve “the same subject
matter between the same parties, or their representatives or
successors in interest, to the same extent as if taken” in this
adversary proceeding. Fed. R. Civ. P. 32(a)(8).
With respect to whether the parties to the depositions were
the same (or predecessors in interest to the current parties),
the Court concludes they were. The Third Circuit has held that
7 D.I. 237, Ex. B.
20
While we do not endorse an extravagant interpretation
of who or what constitutes a “predecessor in interest,”
we prefer one that is realistically generous over one
that is formalistically grudging. We believe that what
has been described as “the practical and expedient
view” expresses the congressional intention: “if it
appears that in the former suit a party having a like
motive to cross-examine about the same matters as the
present party would have, was accorded an adequate
opportunity for such examination, the testimony may be
received against the present party.” Under these
circumstances, the previous party having like motive to
develop the testimony about the same material facts is,
in the final analysis, a predecessor in interest to the
present party.
Lloyd v. Am. Export Lines, Inc.,
580 F.2d 1179, 81
(3d Cir.
1978). In this case, the Creditors’ Committee and special
Committee of the Debtors are clearly predecessors in interest to
the Plaintiff. Under the Plan, the claims investigated by the
Debtor and the Creditors’ Committee were assigned by the Debtors
to the Liquidating Trust. Further, both Defendants were given an
adequate opportunity to participate in the depositions.8
In addition, the Court concludes that the subject of the
depositions was the same as this adversary proceeding. In the
main case, the Debtor and Creditors’ Committee were investigating
whether the estate had claims against the Defendants for, inter
alia, mismanaging the casino and hotel properties of the Debtors.
This adversary proceeding resulted from that investigation and
alleges that, in fact the Defendants mismanaged the casino and
hotel properties, thereby breaching their contracts.
8 D.I. 237 at Exs. C & D.
21
Thus, the Court concludes that the depositions of Mr.
Fitzpatrick and Mr. Reinhardt taken in the main bankruptcy case
are admissible in this adversary proceeding under Rule 32 and
Rule 804. Accordingly, the Court will deny the Fifth Motion in
Limine.

IV. CONCLUSION
For the foregoing reasons, the Court will deny the First,
Fourth, and Fifth Motions in Limine. The Court will grant in
part and deny in part the Second and Third Motions in Limine.
An appropriate Order is attached.

Dated: April 20, 2020 BY THE COURT:

Mary F. Walrath
United States Bankruptcy Judge

22

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: ) Chapter 11
)
TROPICANA ENTERTAINMENT, LLC, )
et al., )
) Case No. 08-10856 (MFW)
Debtors. ) Jointly Administered
__________________________________ )
)
LIGHTSWAY LITIGATION SERVICES, LLC )
as TRUSTEE OF TROPICANA LITIGATION )
TRUST, )
)
Plaintiff, )
)
v. )
) Adv. No. 10-50289
WIMAR TAHOE CORPORATION f/k/a )
TROPICANA CASINOS AND RESORTS, INC.)
and COLUMBIA SUSSEX CORPORATION ) Rel. Docs. 223, 224, 225,
) 226, 227, 233, 234, 235,
Defendants. ) 236, 237
ORDER
AND NOW this 20th day of APRIL, 2020, upon consideration of
the Motions in Limine filed by the Defendants and the Responses
of the Plaintiff thereto, it is hereby
ORDERED that the First Motion in Limine is DENIED; and it is
further
ORDERED that the Second Motion in Limine is DENIED without
prejudice to the right of the Defendants to move to exclude the
expert’s opinion after cross-examination at trial; and it is
further
ORDERED that the Third Motion in Limine is GRANTED IN PART
AND DENIED IN PART; and it is further
ORDERED that the Fourth Motion in Limine is DENIED; and it
is further
ORDERED that the Fifth Motion in Limine is DENIED.

BY THE COURT:

Mary F. Walrath
United States Bankruptcy Judge

cc: Joseph Grey, Esquire’

t Counsel shall distribute a copy of this Order and the
accompanying Memorandum Opinion to all interested parties and
file a Certificate of Service with the Court.

SERVICE LIST

Herbert Beigel, Esquire
Herbert Beigel & Associates, LLC
38327 S. Arroyo Way
Tucson, AZ 85739
Counsel for the Plaintiff
Joseph Grey, Esquire
Cross & Simon LLC
1105 North Market Street, Suite 901
Wilmington, DE 19801
Counsel for the Plaintiff
Dennis A. Meloro, Esquire
Nancy A. Peterman, Esquire
Greenberg Traurig, LLP
77 West Wacker Drive
Suite 3100
Chicago, IL 60601
Counsel for the Defendants
George M. Vinci, Jr., Esquire
Neal R. Troum, Esquire
Spector Gadon Rosen Vinci P.C.
1635 Market Street, 7th Floor
Philadelphia, PA 19103
Counsel for the Defendants

Lightsway Litigation Services, LLC as Trustee of T v. Yung, III

AI Case Brief

Ask AI About This Case

Full Opinion

Case Information