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UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

_____________________________________________________________________________

LUELLA PEHLKE, Individually and as

Special Administrator of the Estate of

FRANK PEHLKE, Deceased,

Case No.: 12−cv−00596

Plaintiff,

Honorable Virginia M. Kendall

v. 

CBS Corporation, 

Defendant.

_____________________________________________________________________________

Plaintiff’s Second Supplemental Pretrial Brief – 9/30/16

_____________________________________________________________________________

Plaintiff files this second supplemental brief to put in writing Plaintiff’s position orally 

stated on new matters that arose during the hearing on September 29, 2016. 

Plexus environmental report

Defendant asserted in the supplemental briefing FRE 803(8) (public records) as the basis 

for overcoming hearsay objections to the 1996 and 1997 environmental surveys at the Joliet 

Arsenal. (Doc #117.) At argument defendant asserted the additional hearsay objection of FRE 

803(6) (regularly conducted activity). Rule 803(6) is not applicable since the activity is not 

established as “routine” for 1) the personnel from Plexus who created the report or 2) for the 

participants who served as sources of information (interviews and documents) relied upon by 

Plexus in creating the report. 

The creation of an environmental survey is unique to the circumstances of the Joliet 

Arsenal and not a regular activity of Plexus. The persons at Plexus who conducted the 

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interviews, reviewed the documents, and wrote the report have to been identified to know their 

experience in making the activity of preparing he report routine. Assuming the Court were to 

find the survey to be a regularly conducted activity for the Plexus personnel, FRE 803(6) 

requires that the participants who provide information to Plexus for the environmental survey 

also be doing so as part of an activity regularly conducted by the informant. The 1972 

Committee Notes highlight this requirement, citing several cases, and using police reports as an 

example. The Notes state: “An illustration is the police report incorporating information from a 

bystander; the officer qualifies as acting in the regular course of business, but the informant does 

not.” The same concern applies to the many persons who Plexus interviewed to prepare the 

Joliet Arsenal report and to the authors of the documents reviewed and relied upon by Plexus in 

preparing the report. No showing has been made by CBS that those persons are regularly 

involved in the activity of environmental assessment at Joliet Arsenal. No showing is made the 

documents relied upon by Plexus arise from a regularly conducted activity.

Plaintiff’s MIL #6 – demonstrative switchgear videos

During the hearing on September 29, 2016 on this motion, CBS argued the video includes 

non-maintenance activities. Plaintiff promised at the hearing to remove portions of the video 

footage which are not maintenance. Plaintiff counsel reviewed the video after the hearing and 

will re-edit the footage. Plaintiff will take out the non-maintenance footage and provide the new 

footage to CBS counsel and the Court by Tuesday, October 4. Plaintiff also confirmed Mr. 

Huttner will be at trial to provide any additional foundation needed about relevance of the pieces 

of equipment in the video in demonstrating his testimony on maintenance practices relating to 

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arc chutes, separator plates, and other insulation materials. At the Daubert hearing, Huttner 

testified the procedures in the videos were substantially similar or representative of the practices. 

Dated: September 30, 2016

_/s/ Daniel B. Hausman___________

Attorney for Plaintiff

Daniel B. Hausman

Cascino Vaughan Law Offices, Ltd.

220 South Ashland Ave.

Chicago, IL 60607

(312) 944-0600

(312) 944-1870 (fax)

dhausman@cvlo.com

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Certificate of Service

I hereby certify that on September 30, 2016, I caused the forgoing to be electronically filed with 

the United States District Court for the Northern District of Illinois using the CM/ECF system 

which will automatically send all necessary notifications of this filing to CM/ECF participants in 

this case.

Dated: September 30, 2016

_/s/ Daniel B. Hausman___________

Attorney for Plaintiff

Daniel B. Hausman

Cascino Vaughan Law Offices, Ltd.

220 South Ashland Ave.

Chicago, IL 60607

(312) 944-0600

(312) 944-1870 (fax)

dhausman@cvlo.com

Case: 1:12-cv-00596 Document #: 138 Filed: 09/30/16 Page 4 of 4 PageID #:4889