Commercial Litigation and Arbitration

Email Authentication — Testimony from (i) Recipient That Deceased Sent Message and (ii) Third Party That He Discussed Substance with Decedent Suffices — No Hearsay Problem when Offered for Effect on the Listener

Meyer v. Callery Conway Mars HV, Inc., 2015 U.S. Dist. LEXIS 937 (W.D. Pa. Jan. 5, 2015):

This case centers on allegations that John Meyer was unlawfully discharged by his employer because of his age. The Defendant employer says that Meyer was lawfully fired because he directed the repair of a machine in a way that could have injured or killed others. Now before the Court are Defendant's motion for summary judgment (ECF No. 29) and its motion to exclude evidence pertaining to damages (ECF No. 33). In connection with its motion requesting the exclusion of evidence, the Defendant also asks for an award of attorney's fees as a sanction. ECF No. 33 at 16,  50. Because a jury could conclude that the Defendant applied a discriminatory "double standard" in choosing to fire the Plaintiff, the motion for summary judgment will be denied. The Defendant's motion to exclude Plaintiffs evidence pertaining to damages will be granted in part. The Defendant's request for an award of attorney's fees for Plaintiff s discovery misbehavior will be granted in part.


This case centers on a problem in May 2012 with one of the Defendant's products, the Voss Enhancing Leveler ("VEL") machine. ECF No. 31 at 22. Bill Streed ... who reported to Meyer, discovered that the third VEL machine manufactured by Herr-Voss had an oversized key slot. ECF Nos. 31 & 40 at 29. That defect, if left uncorrected, would have rendered the VEL machine unfit for use. Jd at  30. Streed notified Meyer of the defect in April 2012. Id at 29. Meyer sent the key slot to Herr-Voss' welding shop and instructed a subordinate to weld the key slot in a manner that would allow it to be "remachined." ld. at~36.

Meyer's immediate supervisor was Wally Markle ("Markle"), who served as Herr-Voss' production manager. ECF Nos. 31 & 40 at 43. Markle noticed that the key slot was in the welding shop and inquired as to why it was there. ld. at  43-44. Meyer responded to Markle's inquiry by stating that the key slot had been incorrectly "machined" and needed to be fixed....

During the relevant [*4]  period of time, James McKenna ("McKenna") served as Herr-Voss' President of Coil Solutions. ECF No.1 at  9. Mark Menego ("Menego") was the lead engineer working on the VEL project. ECF No. 31 at  47. At 4:32 P.M. on Tuesday, May 1, 2012,

Menego emailed McKenna the following message:

Found out this afternoon that the shop had a problem machining the key slot on one of the yoke ends for one of the VELs.  As I understand it the machine tool lost position and the key slot was off by .011"  Nobody from engineering or the VEL Team were notified of this! The shop decided to weld the key slot so they could remachine it, photos attached. I am not in favor of this repair.  Given the load that this connection carries I have major concerns about using a piece repaired in this manner.  Had we been given notice, we could have considered other alternatives and saved the piece.  However, as it stands now, the part should be scrapped.

ECF No. 32-5 at 9-10. McKenna forwarded Menego's message to Meyer and Markle the next morning, asking that they explain who was responsible for the incorrect repair decision and provide the applicable "replacement cost in material and labor." ld. at 9. In a response sent to McKenna on [*5]  the morning of May 3, 2012, Meyer acknowledged that he had made the decision after discussing it with Markle and his "staff." ECF No. 32-5 at 8. Meyer further stated that "final machining" would be conducted "to return the part to the drawing dimensions." Id.

McKenna quickly responded to Meyer's message by emailing him the following instructions:

Do not put back up on the mill. You are NOT authorized to determine the proper fixes for machining errors without consulting the responsible engineer.


Changing gears, and in a further attempt to destroy the factual predicate for Mostowy's discharge decision, Meyer suggests that Menego's death has rendered it impossible for Herr-Voss to establish the authenticity of the message sent to McKenna on May 1,2012. ECF No. 39 at 11. Menego's authorship of the message, however, was discussed and confirmed during McKenna's deposition. ECF No. 56 at 7-8. Mostowy later declared that he had spoken with Menego about the contents of the message.... Considered together, that gets the email message over the authenticity hurdle. FED. R. EVID. 901 (b)(l). Then, because Menego's statements are being offered by Herr-Voss to demonstrate their effect on Mostowy's decision, rather [*35]  than to prove the ultimate truth of the matters asserted in them, they do not constitute inadmissible hearsay. FED. R. EVID. 801(c)(2); see Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419,1434-35 (lOth Cir. 1993); Architectural Testing, Inc. v. Unemployment Compo Bd. ofReview, 940 A.2d 1277, 1282 (Pa. Commw. Ct. 2008).

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