# Appendix — Davis v. Siemens Medical Solutions USA, Inc. (No. 08-715) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0849%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## Text la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 07-5420 [Filed May 28, 2008] JERRY W. DAVIS, Plaintiff-Appellant, V. SIEMENS MEDICAL SOLUTIONS USA, INC., Defendant-Appellee. a ee a a a ee ee el ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY Before: KEITH, DAUGHTREY, and ROGERS, Circuit Judges. PER CURIAM. In this diversity action for breach of an employment contract, plaintiff Jerry Wade Davis alleged that his former employer, defendant Siemens Medical Solutions USA, Inc., was _ lhable for approximately $1.77 million in sales commissions that Davis claimed were unjustly withheld by the defendant. He also sought damages based on other 2a state law claims — specifically, conversion, promissory estoppel, fraudulent misrepresentation, intentional infliction of emotional distress, unpaid wages, and breach of fiduciary duty. After affording the parties extensive discovery, the district court granted summary judgment to Siemens on all but Davis’s claim of fraudulent misrepresentation. See Davis v. Siemens Med. Solutions USA, Inc. (Davis I), 399 F. Supp.2d 785 (W.D. Ky. 2005). In denying summary judgment to the defendant on that one cause of action, the district judge focused on a factual dispute about whether Douglas Spotts, Siemens’s national sales manager in the company’s Image Management Division, had informed Davis that if he accepted a position as product sales executive, the company would pay him commissions on national sales made by other Siemens sales agents who reported to Davis. Consequently, the fraudulent-misrepresentation claim was tried by a jury at a trial presided over by a magistrate judge because the district judge was confronted with “an unanticipated scheduling conflict.” At the conclusion of four days of trial, the jury returned a verdict in favor of Davis on the misrepresentation claim, awarding him $200,000 in compensatory damages but no punitive damages. Post- verdict, Siemens filed a renewed motion for judgment as a matter of law, a motion that the magistrate judge later granted, ruling that, under principles of Kentucky law, Davis could not have reasonably relied upon any representations nade by Spotts that were in contravention of the unambiguous, written language contained in the Siemens Compensation and Commission Plan under which Davis was hired. See 3a Dautis v. Siemens Med. Solutions USA, Inc. (Davis IT), No. 3:04CV- 195-MO, 2007 WL 710133, at *4 (W.D. Ky. Mar. 6, 2007). Davis now appeals that posttrial decision, those portions of the district court’s summary judgment order that were adverse to him, and certain evidentiary rulings made by the magistrate judge prior to and during trial. The Summary Judgment Ruling In addressing the defendant’s claims for breach of contract, conversion, promissory estoppel, intentional infl.ction of emotional distress, and breach of fiduciary duty, the district judge expertly outlined the facts relevant to the dispute, provided a full exposition of the case law relevant to any decision on the matter, and accurately applied that law to the facts presented. Indeed, insofar as the decision in Davis I addresses the allegations of breach of contract, conversion, promissory estoppel, intemtional infliction of emotional distress, and breach of fiduciary duty, any additional discussion of those claims by this court would be merely duplicative and would serve no useful purpose. We therefore affirm the grant of summary judgment to Siemens based upon the reasons set out by District Judge Heyburn in Davis J, reported at 399 F. Supp.2d 785. Grant of Judgment as a Matter of Law Similarly, Magistrate Judge Moyer’s treatment of Siemens’s post-trial motion for judgment as a matter of law accurately identified, explained, and applied the law relevant to Davis’s claim of fraudulent misrepresentation. In that decision, the magistrate judge correctly noted that the district court’s earlier 4a denial of summary judgment on this ground was based upon the court’s assumption that a genuine dispute existed as to whether Douglas Spotts made the representation concerning the payment of commissions that is alleged by the plaintiff. As emphasized by the magistrate judge, however, even if such a representation had been made by Spotts, Davis could not have reasonably relied upon that promise, given the clear contract language to the contrary. For the reasons discussed in Magistrate Judge Moyer’s memorandum opinion dated March 6, 2007, we also affirm the district court’s decision granting Siemens judgment as a matter of law on the claim of fraudulent misrepresentation. Claim of Unpaid Wages (K.R.S. § 337.385) In the summary judgment decision, the district court dismissed Davis’s claim for lost wages under Section 337.385 of the Kentucky Revised Statutes because “Davis did not pursue his necessary administrative remedies before initiating his lawsuit.” Subsequently, however, the plaintiff moved the court to revise its decision in light of a Kentucky Supreme Court decision overruling prior precedent that required such an administrative exhaustion. See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 362 (Ky. 2005). The district judge granted that motion and filed a supplemental memorandum that again granted summary judgment to Siemens on this issue, this time on the alternate ground that the commissions were not “wages” because “Kentucky imposes no statutory duty to provide an override commission” and because Davis had not established that the commissions had been “agreed upon ... or piovided to employees as an established policy.” Ky. Rev. Stat. § 337.010(1)(c). 5a To the extent that Davis’s statutory wage claim is based upon the failure of Siemens te pay the plaintiff commissions that he believes he is due, the district court’s breach of contract analysis in Davis I is applicable and fatal to the plaintiffs ~laim. To the extent that Davis’s statutory claim is based upon the failure of the defendant to pay the entire base salary promised in the company’s guarantee rider, we are informed by counsel that the issue has been resolved out of court to the satisfaction of both parties. Evidentiary Determinations On appeal, Davis also challenges the magistrate judge’s trial rulings that excluded evidence of mistreatment of Davis and of other Siemens employees at the hands of a management official not involved in the salary negotiations with Davis and also excluded evidence that the defendant failed to provide the plaintiff with a company car, as promised in a letter offering the product sales executive position to Davis. These and all challenges to evidentiary determinations at trial are reviewed on appeal only for an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). The magistrate judge’s exclusion of evidence of alleged mistreatment suffered by Davis and by other Siemens employees at the hands of manager Thomas Riesenberg was proper. First, the sole remaining cause of action at trial was the plaintiffs claim of fraudulent misrepresentation, an alleged wrong that occurred when national sales manager Douglas Spotts, not Riesenberg, supposedly made certain promises to Davis. The fact that Riesenberg may have “mistreated” the plaintiff approximately a year later might have 6a been relevant to the already-dismissed claim for intentional infliction of emotional distress, but it had no relevance whatever to the inquiry of whether Spotts knowingly deceived Davis when discussing the job’s payment scale with the plaintiff. Furthermore, Davis is unable to point to any testimony supporting a conclusion that Riesenberg had any role in the initial conversations with the plaintiff about the salary associated with the product sales executive position. Because evidence of alleged mistreatment of Davis or of other employees by Riesenberg is of no consequence to the determination of whether Spotts fraudulently misrepresented information to the plaintiff, such testimony was thus irrelevant to the misrepresentation claim before the jury and was properly excluded. See Fed. Rule of Evid. 401. Likewise, the decision of the magistrate judge to disallow testimeny regarding the failure of the employer to provide Davis with a company car was not reversible error. Although a letter from the defendant dated November 11, 2002, provided that it would “provide a car for your use in accordance with Siemens Company Car Policy,” Davis later disavowed any claim to a company car. During his deposition testimony, the following exchange occurred between the plaintiff and defense counsel: @. Are you claiming in this lawsuit that you were entitled to a company car while you worked as a product-sales executive? A. As were all of us [phonetic], I was entitled to one; but I don’t think 'm claiming it in my suit. No. 7a Q. You're not asking for any damages because you didn’t get a company car? Mr. Bishop: Object, insofar as it calls for a legal conclusion. Ms. Settle: You can answer it. A. No. Having asserted that the request for a company car was no longer part of his contract claim, Davis cannot now seek to resurrect that claim. Consequently, any error in the decision of the magistrate judge to exclude testimony relevant to that issue is harmless. For the reasons set out above, we AFFIRM the judgment of the district court, including both the order granting summary judgment to the defendant and the order granting judgment as a matter of law to the defendant. 8a APPENDIX B UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE No. 3:04CV-195-MO [Filed March 6, 2007] JERRY W. DAVIS PLAINTIFF ¥. SIEMENS MEDICAL SOLUTIONS USA, INC. DEFENDANT me Ne eee ee” Se” MEMORANDUM OPINION Following a verdict in favor of the plaintiff, Jerry W. Davis, Siemens Medical Solutions USA (“Siemens”) renewed its motion for judgment as a matter of law and, in the alternative, asked for a new trial (see docket no. 114). It is rare for a court to grant such a motion in a civil matter, particularly with respect to an issue that has been adjudicated by a jury. Yet, after reviewing Siemens’ motion and Mr. Davis’s response thereto, reviewing the trial transcripts, and considering prior rulings made in this matter, this court concludes that Mr. Davis’s fraud claim fails as a matter of law and, accordingly, there existed no legally 9a sufficient basis for the jury to find that Mr. Davis reasonably relied on any misrepresentations made by Siemens. The court has not reached this decision lightly, without being mindful of the doctrine of the law of the case, nor without considerable concern about possibly invading the province of a jury. Nevertheless, when this court has erred as a matter of law, or a jury has reached a decision that is against the clear weight of the evidence, a judge must correct any errors and ensure that justice is served. I. All facts underlying this case were well- summarized in the district court’s memorandum opinion disposing of all but one of Mr. Davis’s claims. See docket no. 56, reported as Davis v. Siemens Medical Solutions USA, Inc., 399 F. Supp. 2d 785 (W.D. Ky. 2005). Accordingly, this court will restate in this opinion only those facts relevant to an understanding of Siemens’s present motion. In the fall of 2002, Siemens offered Mr. Davis, who was then one of its Division Marketing Specialists, a sales executive position. Although he had worked for Siemens as a commission-earning salesperson in the past, Mr. Davis’s position at the time of the offer was salaried, with an annual compensation of $85,000. The compensation for the new position he was offered was once again commission-driven, with a lower base salary of $65,000, a one-year guaranteed salary rider of $35,000 (the “Guarantee Rider”), and_ the opportunity to earn commissions on certain sales. 10a The offer was verbally communicated to Mr. Davis in September 2002 during a meeting between him and Mr. Douglas Spotts, one of Siemens’s National Sales Managers. Siemens confirmed its offer in a writing dated November 11, 2002, which expressly incorporated the Guarantee Rider, which in turn incorporated Mr. Davis’s Compensation and Commission Plan (the “Plan”) that described the basis by which his commissions would be calculated. On November 14, 2002, Mr. Davis confirmed in writing his acceptance of the offer letter, the Guarantee Rider, and the Compensation and Commission Plan. The parties agree that Mr. Davis was assigned a national territory and that his Compensation and Commission Pian states that Mr. Davis would earn commissions only on those sales within his territory for which he was “personally and directly responsible.” Prior to trial, Mr. Davis argued that the phrase “personally and directly responsible” was ambiguous and could be interpreted, particularly with the aid of parol and other extrinsic evidence, to entitle Mr. Davis to commissions on sales for which he did not have direct and unmediated involvement. See Davis, 399 F. Supp. 2d at 792. The district court disagreed with Mr. Davis’s assertion of ambiguity, and ruled that the phrase “personally and directly responsible” is “absolutely clear and unambiguous” and that its meaning within the context of the Compensation Plan ‘is not subject to serious dispute.” Jd. at 792-93. Accordingly, the district court dismissed with prejudice all claims for which Mr. Davis’s’ advocated interpretation of the Compensation and Commission lla Plan’s terms was necessary (in whole or in part) for him to prevail.’ The district court permitted only one claim to survive summary judgment — whether Siemens fraudulently misrepresented the terms of Mr. Davis’s commission structure to induce him to accept his new job. Mr. Davis asserted that Mr. Spotts promised him that he would receive commissions on all sales made to national accounts, regardless of whether he was responsible for securing the sale. As noted previously, the Compensation and Commission Plan Mr. Davis accepted says no such thing, and cannot reasonably be interpreted otherwise. Yet, because Siemens denied making the alleged misrepresentation, the district court determined that a question of fact existed with respect to Mr. Davis’s fraudulent misrepresentation claim, because one of six necessary elements’ of a fraud claim is the making of a materially false statement. See Davis, 399 F. Supp. 2d at 800. The district court did not evaluate in any detail the other necessary elements of the fraud claim, except to note that Mr. Davis alleged that he relied on the misrepresentation and that Mr. Davis appeared to ' The district court also dismissed Mr. Davis’s claims for breach of fiduciary duty and intentional infliction of emotional distress. * The elements of a fraudulent misrepresentation claim in Kentucky are (1) a representation of a material fact; (2) that was false; (3) that the defendant either knew was false, or made recklessly; (4) that was made to induce the plaintiff to act upon it; (5) that was reasonably relied upon; and (6) that resulted in damages to the plaintiff. See, e.g., United Parcel Service Co. v. Rickert, 966 S.W.2d 464, 468 (Ky. 1999); Vest v. Goode, 209 S.W.2d 833, 836 (1948); see also Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1447 (6" Cir. 1993). 12a meet “the bare minimum for a prima facie case of misrepresentation.” Jd. Notably, the district court did not explicitly evaluate whether Mr. Davis reasonably relied on the misrepresentation.° On the eve of trial, and facing an unanticipated scheduling conflict, the district court asked the parties to consider allowing a magistrate judge to preside over the trial of this matter. They did and, accordingly, the trial judge was not the same judge who had previously evaluated the merits of Mr. Davis’s claims and made rulings on all pre-trial motions, including Siemens’s motion for summary judgment. Thus, when Siemens moved for directed verdict at the close of its proof, the trial judge was reluctant to disturb what he considered * An argument can be made that the district court did evaluate whether Mr. Davis’s reliance was reasonable and determined that it was not. One of Mr. Davis’s alternate theories of relief was that he was entitled to recover the commissions allegedly promised him on the theory of promissory estoppel. To succeed, such a claim would also require proof of reasonable reliance. See Davis, 399 F. Supp. 2d at 795. The district court dismissed Mr. Davis’s claim of promissory estoppel on the following basis, however: Promissory estoppel is meant for cases in which a promise, not being supported by consideration, would be unenforceable under conventional principles of contract law. When there is an express contract governing the relationship out of which the promise emerged, and no issue of consideration, there is no gap in the remedial system for promissory estoppel to fill. Id. at 798. The court did not explicitly evaluate whether any reliance on Mr. Spotts’s promise was reasonable, but its rejection of Mr. Davis’s promissory estoppel claim is consistent with this court’s conclusion that there should be no extra-contractual recovery by Mr. Davis. l3a to be the law of the case, as established by the district court in its prior evaluation of Siemens’s motion for summary judgment, and without the aid of contemporaneous trial transcripts, concluded that there existed one or more issues of fact requiring the jury’s determination. IT. Post-trial Siemens requests two alternative forms of relief. Siemens principally asks the court to reconsider its denial of Siemens’s motion for judgment as a matter of law, and asks the court to set aside the jury’s determination that Siemens made a fraudulent misrepresentation to Mr. Davis. Failing that, Siemens asks for a new trial because certain of the statements and evidence pertaining to alleged mistreatment of Mr. Davis by Tom Riesenberg, one of his superiors at Siemens, may have tainted the jury’s verdict. In this court’s opinion, the latter argument is not sufficiently meritorious to warrant extensive consideration.‘ * The court is not convinced that any such evidence was improperly or erroneously admitted, or, if so, that Siemens did not waive its right to object. This is not to say, however, that any evidence pertaining to the alleged behavior of Mr. Riesenberg did not affect the jury. Although the claim at trial sounded in tort, the jury chose not to award punitive damages and, accordingly, the method of measuring Mr. Davis’s damages was the same as if he had proceeded on a breach of contract action. In other words, the jury was instructed to award Mr. Davis the benefit of his alleged bargain, namely the amount to which he would have been entitled had the promise allegedly used to induce Mr. Davis to accept his new position been true. See Jury Instruction No. 2 (docket no. 109). Ifthe promise that Mr. Davis would earn commissions on all sales made to national accounts were true, the evidence was uncontroverted that he would have been entitled to over 1.5 14a Siemens’s principal request, however, both warrants and has received weighty and careful consideration. Federal Rule of Civil Procedure 50(a)(1) states that judgment as a matter of law is not proper unless “no reasonable juror could have found for the non-moving party.” Similarly, it has long been the rule in the Sixth Circuit that the same standard applies to a renewed motion for judgment as a matter of law filed after the return of a jury verdict. See, e.g., United States uv. Alpine Industries, Inc., 352 F.3d 1017, 1022 (6th Cir. 2003)\(citations omitted). In applying this standard, however, the court cannot weigh the credibility of the witnesses or substitute its judgment for that of the jury. Jd. Rather, it must view the evidence in the light most favorable to the non-moving party (i.e., Mr. Davis) and give him the benefit of all reasonable inferences. Id. Before weighing the evidence, however, the court must first address what Mr. Davis was asked to prove to the jury. In civil cases, the pluintiff is typically million dollars. See, e.g., Not. of Reduction of Sought Damages (docket no. 104); Tr. vol. II-B at 39-40. The award thus should have been all or nothing. Based on the claim and sales figures presented, there simply was no evidentiary support for any other damages calculation. Inexplicably, however, the jury awarded Mr. Davis $200,000 in compensatory damages. One could interpret this figure as suggesting that the jury did not find Mr. Davis’s fraud claim fully credible, yet felt he was owed something for his alleged mistreatment by his supervisors at Siemens. Whether this interpretation is accurate or not, one can never know. The court simply notes that there is no readily apparent logical basis for the jury’s damages calculations, and thus Siemens’s’ alternate argument, while not legally viable as presented, may not be entirely misplaced. 15a asked to prove his claim by a preponderance of the evidence. The preponderance standard is relatively low —it simply means that a particular claim is more likely than not. By contrast, a plaintiff alleging fraudulent misrepresentation, bears the heightened burden of proving his case by “clear and convincing evidence.” See, e.g., United Parcel Service Co. v. Rickert, 966 S.W.2d 464, 468 (Ky. 1999). Kentucky’s highest court, to which this court must turn for a definition of that standard,’ has declared that “proof by clear and convincing evidence’ is incapable of a definition any more detailed or precise than the words involved,” but requires the party with the burden of proof “to produce evidence substantially more persuasive than a preponderance of the evidence, but not beyond a reasonable doubt.” Fitch v. Burns, 782 S.W.2d 618, 622 (Ky. 1990). The jury was asked to determine whether Mr. Davis had proven each of the following six necessary elements of his claim by clear and convincing evidence: (1) That Siemens made a representation of a material fact to Mr. Davis; (2) That the representation was false; (3) That Siemens either knew the representation was false or made it recklessly; ° This is a diversity case and, accordingly, Kentucky's substantive law governs the analysis and interpretation of the legal sufficiency of his state-law claim of fraud. See, e.g., Moore, Owen, Thomas & Co. uv. Coffey, 992, F.2d 1439, 1444 (6 Cir. 1993). 16a (4) That Siemens made the representation to induce Mr. Davis to act upon it (in other words, that Siemens intended to deceive Mr. Davis); (5) That Mr. Davis acted in reasonable reliance on the representation; and (6) That Mr. Davis suffered damages as a result. See Jury Instruction No. 1 (docket no. 109). In its post- trial motion Siemens does not dispute that the evidence was sufficient to establish, clearly and convinvingly, that it made a representation of a material fact to Mr. Davis or that he would have suftered damages if his claim of fraud was sustained by the jury, and it does not contest (presumably for the purposes of the motion) that the statement was false. Rather, it asserts that Mr. Davis failed to prove by clear and convincing evidence the third through fifth enumerated elements of the claim above. The court will assume, for the sake of argument only, that Mr. Davis sufficiently proved at trial the third and fourth elements of his fraud claim (i.e., that Siemens knew that Mr. Spotts’s alleged oral representations regarding Mr. Davis’s commission structure were false and that Siemens intended to deceive Mr. Davis into accepting its offer of employment, which included the Commission and Compensation Plan that contained a commission structure quite different from the one Mr. Spotts verbally described). The court makes_ these assumptions because it is convinced that Mr. Davis did not, as a matter of Kentucky law, establish that Mr. 17a Davis reasenably relied on Siemens’s misrepresentations III. It has long been the rule in Kentucky that there can be no_ reasonable reliance on any misrepresentation that a party knows or should have known is inaccurate. See Mayo Arcade Corp. v. Bonded Floors, Co., 41 S.W.2d 1104 (Ky. 1931). The corollary to that rule — namely that as a matter of law there can no be no misrepresentation of any issue that is contradicted by the terms of a written contract — is also a venerable part of Kentucky law, and is precisely applicable in this matter. See, e.g., id; Vest v. Goode, 209 S.W.2d 833 (Ky. 1948). Mr. Davis asserts that Mr. Spotts orally promised him that he would receive commissions on all sales made to national accounts, regardless of whether he or another salesperson was directly responsible for making the sale.° The Compensation and Commission Plan subsequently sent to and accepted by him, however, stated only that he would _ receive commissions on sales for which he and he alone was personally and directly responsible. At the time Mr. Davis accepted his written offer, and its corresponding Commission and Compensation Plan, he apparently labored undcr the misperception that there was no conflict between the oral representations and the "Mr. Spotts testified that he told Mr. Davis that he would be paid according to the terms of the written plan. See Tr. vol. III-A at 79- 80; Tr. vol. III-B at 83-84, 103. In construing the evidence in the light most favorable to Mr. Davis, however, the court will disregard this testimony 18a written Plan.’ As the district court correctly determined in the ruling on summary judgment, this misperception was not reasonable, as the terms of the written Plan are both clear and unambiguous. If Mr. Davis was presented with a Plan whose commission structure could reasonably be interpreted in only one way, and that way directly contradicted the oral representations allegedly made by Mr. Spotts concerning his commission structure, it necessarily follows that Mr. Davis’s reliance on the oral representations was not reasonable, once he was presented with, and accepted his written job offer.® Thus, pursuant to Kentucky law, and as a matter of law without regard to any other evidence that may have been presented at trial, his claim of fraudulent misrepresentation fails. See Mayo, 41 S.W.2d at 1108- 1109; Vest, 209 S.W.2d at 58-59; see also Moore, 992 F.2d at 1447. Given this determination, this court must now reconcile its current analysis of Mr. Davis’s claim with the original judge’s prior opinion that, at least implicitly, determined that the reasonableness of Mr. Davis's reliance was legally sufficient to proceed to trial. As noted previously, however, the district court did not explicitly evaluate any element of the fraudulent misrepresentation claim, except whether ” See Tr. vol. II-A at 32-33; Tr. vol. II-B at 63; Tr. vol. III-A at 21; Pl’s Resp. Mem. at 8 n.2 (docket no. 116). * Although there is testimony that suggests that Mr. Davis may not have read his contract documents (see Tr. vol. IIB at 92, lines 4-5), in Kentucky, as elsewhere, a person is legally presumed to have read any contract he executes, see, e.g., Mayo, 41 S.W.2d at 1109 19a there existed a question of fact regarding the making of a false statement. Rather, the court’s focus was on whether representations as to future conduct would support a fraud claim, and whether the claim was barred by the economic loss doctrine. “The [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Law of the case directs a court’s discretion, [however,] it does not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618 (1983)(internal citations omitted). Application of the law of the case doctrine is a procedural issue to which federal law applies, McDonald uv. Petree, 409 F.3d 724, 730 n.2 (6 Cir. 2005), and the Sixth Circuit has recognized that “the law of the case doctrine is discretionary when applied to a coordinate court or the same court’s own decisions.” Bowling v. Pfizer, Inc., 132 F.3d 1147, 1150 (6 Cir. 1998) (citing United States v. Todd, 920 F.2d 399, 403 (6" Cir.1990)); see also In re Kenneth Allen Knight Trust, 303 F.3d 671, 677-78 (6™ Cir. 2002) (doctrine is discretionary when a court reviews its prior erroneous decision). Indeed, the Sixth Circuit’ has gone so far as to say, “[a]t the trial court level, the doctrine of the law of the case is little more than a management practice to permit logical progression toward judgment. Prejudgment orders remain interlocutory and can be reconsidered at any time.” Gillig v. Advanced Cardiovascular Sys. , 67 F.3d 586, 592-93 (6" Cir.1995) (quoting MOORE’S FEDERAL PRACTICE J 0.401 (2d ed. 1994)). Consequently, the law-of-the-case doctrine does not remove a trial court’s jurisdiction to reconsider, or otherwise preclude a trial court from reconsidering, an issue previously decided in the case by another judge. See id. at 590. 20a Having reconsidered whether Mr. Davis's fraudulent misrepresentation should have survived summary judgment, this court concludes that it should not have. The claim is not viable (and was not viable at the time of the prior ruling) because the contract Mr. Davis read and accepted directly contradicted Mr. Spotts’s prior oral promises with respect to a material fact (his commission structure) that constituted the particular inducement for Mr. Davis to accept his new job. In Kentucky, under these circumstances, there can be no fraudulent misrepresentation. IV. Even if Mr. Davis’s fraud claim did not fail as a matter of law, however, the court would set aside the jury’s verdict. As noted above, the applicable standard for doing so is whether any reasonable juror could have found for the plaintiff. The court does not suggest that the jury did not perform its duty carefully, but mere reliance is not sufficient to support Mr. Davis’s claim, and there exists no testimony in the record that explicitly pertains to the reasonableness of Mr. Davis’s reliance on Mr. Spotts’s oral representations regarding his commission structure. In addition, there ts scant other testimony that would clearly and convincingly permit a reasonable juror to find reasonable reliance. Mr. Davis testified that he would not have taken the job without the potential to earn a significantly greater income than he currently made,” but that only establishes that he relied on the misrepresentation, not that his reliance was reasonable. Indeed, the > Tr. vol. II-A at 14, 23; Tr. vol. II-B at 53-54. 2la weight of the trial evidence that his reliance was not reasonable. Mr. Davis admitted that before he accepted his new job he received and read his offer and Compensation and Commission Plan, which offered him a substantially lower base salary than he was currently earning and included only a one-year guaranteed supplement to his salary that, in total, promised only a modest guaranteed increase in pay for a substantial increase in responsibility. Mr. Davis’s fellow salespeople, whom he presented as witnesses, testified that salespeople at Siemens thoroughly knew their own Compensation and Commission Plans because those plans determined how much they would earn.’° Moreover, the evidence clearly established that there was a monumental difference between the commissions Mr. Davis allegedly was promised if he would accept the job, and the commissions to which his written job offer contractually entitled him.” Lastly, Mr. Davis has previously worked as a salesman for Siemens, so the system could not have been new to him.” Granted, there was testimony that “[dleals go down all the time where salespeople have nothing to do with '© See, e.g., Tr. vol. I-B at 71-72. None testified that they knew the terms of Mr. Davis’s Plan (see, e.g., Tr. vol. I-B at 35, 81). They also testified that it would have been an “anomaly” for two product sales executives to earn commissions on the same sale (see Tr. vol. I-B at 38, 87). '! See Tr. vol. LI-B at 53-54. '* See Tr. vol. I-B at 43. 22a a project coming in and they get paid,”’* but that testimony was quite limited, was not elaborated on or duplicated by any other witness, and was contradicted by Mr. Davis’s own admission that no one at Siemens ever told him that his eligibility for commissions would be different than what was expressed in the terms of his written Plan.’ Accordingly, given that the contractual terms of Mr. Davis’s Compensation and Commission Plan were clear and unambiguous with respect to his commission structure, there simply was not enough evidence to permit a reasonable juror to determine that Mr. Davis had met his heightened burden of clearly and convincingly proving that his reliance on Mr. Spotts’s oral promises was reasonable once he reviewed the Plan.” V. This case should not have proceeded to trial and, having proceeded to trial, should have concluded with the granting of Siemens’s initial motion for judgment as a matter of law. That did not happen and, once a 13 See Tr. vol. II-B at 70. '4 See Tr. vol. II-B at 83. '® The court also notes with curiosity that plaintiff does not argue in his response to Siemens’s post-trial motion that Mr. Davis's reliance was reasonable, except to state that it was in a section heading, and to make a passing reference in another section pertaining to the falseness of Mr. Spott’s statement. See Pl’s Resp. Mem. (docket no. 116). He points to no evidence that clearly supports this assertion and makes no direct argument. Ifhe, with the aid of the written record, and the clarity of hindsight cannot establish the reasonableness of his own reliance, the court is hard pressed to determine how the jury could have done so. 23a jury has been allowed to reach its decision, that decision should not be overturned without a thorough and exacting review of the law and the record, coupled with careful, deliberate, and thoughtful consideration. That has now been done and the court finds that the jury’s verdict should be set aside and judgment as a matter of law entered in favor of Siemens. The court will enter a separate order consistent with this memorandum opinion. DATE: March 6, 2007 /s/ James D. Moyer James D. Moyer United States Magistrate Judge cc: counsel of record 24a APPENDIX C UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION CIVIL ACTION NO. 3:04CV-195-H [Filed February 22, 2006] JERRY W. DAVIS PLAINTIFF V. SIEMENS MEDICAL SOLUTIONS USA, INC. DEFENDANT Nee eee eee eee Se” ORDER Both parties have filed motions in limine to exclude evidence pursuant to Fed. R. Evid. 403. The Court has considered the parties’ briefs and the relevant depositions and exhibits in the record. Being otherwise sufficiently advised, IT IS HEREBY ORDERED that Defendant’s motions to exclude: (1) evidence that Thomas Riesenberg (“Riesenberg”) mistreated the Plaintiff, Jerry Davis (“Davis”); (2) evidence that the Defendant 25a made errors in the payment of other employees’ commissions and corrected them after substantial delay; and (3) evidence of the Defendant’s DINS-PAC II contract with the Department of Defense are DENIED. IT IS FURTHER ORDERED that Defendant’s motions to exclude: (1) evidence that Riesenberg mistreated other Siemens employees; (2) evidence that the Defendant failed to provide Davis with a company car; (3) evidence that the Defendant failed to pay Davis the entirety of his Guarantee Rider; and (4) evidence that the Defendant’s parent company is a German corporation are SUSTAINED. ITIS FURTHER ORDERED that Plaintiffs motion to exclude evidence of his current position and salary at FujiFilm Medical Systems, Inc. is SUSTAINED. This is not a final and appealable order. This 22nd day of February, 2006. /s/ JAMES D. MOYER UNITED STATES MAGISTRATE JUDGE cc: Counsel of Record 26a APPENDIX D UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION CIVIL ACTION NO. 3:04CV-195-H [Filed February 1, 2006] JERRY W. DAVIS PLAINTIFF V. SIEMENS MEDICAL SOLUTIONS USA, INC. ) ) ) ) ) ) ) ) ) DEFENDANT ) ) MEMORANDUM OPINION AND ORDER Plaintiff, Jerry Davis (“Davis”), has moved to revise the Court’s order entered on November 8, 2005. In that order, the Court dismissed, inter alia, Davis’s claim for the non-payment of wages under Ky. Rev. Stat. § 337.385. Plaintiff argues that the dismissal of that claim was improper. The Court dismissed the claim because Davis failed to assert his entitlement to commissions before the Labor Cabinet prior to filing his lawsuit in federal court. The Court’s reasoning was 27a supported by two Kentucky Court of Appeals cases, Early v. Campbell County Fiscal Court, 690 S.W.2d 398 (Ky. Ct. App. 1985), and Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky. Ct. App. 1986). However, prior to the issuance of the Court’s November 8th order, the Kentucky Supreme. Court overruled both of those decisions in Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 362 (Ky. 2005).' In that case, the Supreme Court held that Kentucky courts have subject matter jurisdiction over a claim for non-payment of wages under section 337.385 regardless of whether the plaintiff asserts the claim before the Labor Cabinet prior to filing suit. Jd. at 362. Therefore, Davis’s failure to exhaust his remedies in front of the Labor Cabinet does not require this Court to dismiss the claim. Nevertheless, Siemens is still entitled to summary judgment on Davis’s claim for non-payment of wages on other grounds. Under section 337.385, an employee has the right to assert a private cause of action against her employer for failing to pay her the compensation to which she is entitled. Here, Davis claims that Siemens failed to pay him an override commission for every sale made during his tenure in national and government accounts. Because Kentucky imposes no statutory duty to provide an override commission, Davis must show that the override commission had been “agreed upon by [Davis and Siemens] or provided to employees as an established policy” in order to prevail. Ky. Rev. Stat. § 337.010. For the reasons explained in the Court’s Memorandum Opinion issued on November 8, Davis cannot prove that Siemens agreed to pay him the ' The Parts Depot decision was rendered on August 25, 2005 and released for publication on September 15, 2005. 28a commissions he seeks. Furthermore, there is no evidence that Siemens had an established policy of paying such an override commission. Instead, Siemens’s express policy was to pay commissions on sales for which an employee is “directly and personally responsible.” Therefore, no reasonable juror could find that Davis is entitled to the commissions under Ky. Rev. Stat. § 337.385. Being otherwise sufficiently advised, IT IS HEREBY ORDERED that Plaintiffs motion to revise is DENIED and Plaintiffs claim for non- payment of wages is DISMISSED WITH PREJUDICE. January 30, 2006 /s/ John G. Heyburn II John H Heyburn, II Chief Judge, U.S. District Court cc: Counsel of Record 29a APPENDIX E UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:04CV-195-H [Filed November 8, 2005] ~” JERRY W. DAVIS PLAINTIFF V. SIEMENS MEDICAL SOLUTIONS USA, INC. DEFENDANT A A ee ae a Le MEMORANDUM OPINION Plaintiff, Jerry Davis (“Davis”), has brought this action for additional compensation arising from his employment relationship with Siemens Medical Solutions USA, Inc. (“Siemens”). Davis says that both the written compensation agreement and_ the contemporaneous oral promises entitle him to $1.8 million in additional compensation and reimbursable business expenses. He asserts state law claims for breach of contract, conversion, promissory estoppel, misrepresentation, breach of a fiduciary duty, unpaid wages and intentional infliction of emotional distress. Both sides have moved for summary judgment. 30a These motions raise particularly interesting questions about Kentucky’s treatment of the parol evidence rule and the doctrine of promissory estoppel as applied to an oral promise made prior to the execution of a written agreement on the same subject matter. The Court concludes that under Kentucky law the evidence supports only Davis’ claim of fraudulent misrepresentation. I. Siemens designs and sells health care information technology. Davis began working for Siemens in March, 1992. He has always been employed on an at- will basis and has held a variety of well-paying sales and non-sales jobs. In February of 2001, Davis assumed the role of Division Marketing Specialist III at an annual salary of $85,000. In the fall of 2002 Siemens created severa] new positions identified as Product Sales Executives (“PSE”). These positions focused on _ various governmental accounts. Siemens offered Davis one of these pasitions and confirmed the offer by a writing dated November 11, 2002. The offer stated that Davis would receive a base compensation of $65,000 per year as well as a one year guaranteed rider in the amount of $35,000. The offer expressly incorporated a document called the “Guarantee Rider” which, in turn, incorporated the Product Sales Executive Compensation and Commission Plan (the “Compensation Plan”). The Compensation Plan set forth the eligibility for commissions for all employees, including Davis. On November 14, 2002, Davis confirmed acceptance of the offer letter, the Guarantee Rider and the Compensation Plan. sla The Guarantee Rider explained the purpose of the “rider,” the role of the commission payments and the application of the Compensation Plan: This rider is made a part of the Product Sales Executive Compensation and Commission Plan, which is to be : sed as the basic instrument for policy and procedure. The Guarantee Rider is made available to assure a newly appointed Product Sales Executive a guaranteed minimum level cf income for a limited defined period of time. It is expected that at the end of this period, commissions for new orders generated during the period of this period will replace the requirement for guaranteed income... . All commissions which would be credited and/or payable during the defined period under the standard Product Sales Executive Compensation and Commission Plan will be applied toward the total guarantee payable. ... The Product Sales Executive shall retain all excess guarantee commission payments received during the defined period or, if applicable, until the date of transfer or termination. . . . In the event the total of credited and/or payable commissions applied exceed the total guaranteed commissions payable during the defined period of the Guarantee Rider, the Product Sales Executive shall be entitled to full payment of such excess in accordance with the “when paid” provisions of the standard Compensation and Commission Plan. The Compensation Plan sets forth the basis for entitlement to calculating commissions for all sales 32a. exccutives. Thus, by its terms, its provisions would apply to the newly created PSE’s. It contains the following pertinent provisions. 7. To whom commission is credited and/or payable (a) Commission is credited or payable to a Sales Executive who is assigned to the territory in which the equipment is to be installed. It is necessary, to be entitled to commission, that the Sales Executive be personally and directly responsible, and have assigned such responsibility for such sale. (c) National and Group Accounts, as identified in the District Office manual or other’ relevant announcements are Government Agencies, Companies, Associations, Chains, etc., with national buying agreements for our _ products, established in direct negotiation with SMS Headquarters. In most instances, commissions on orders for these accounts are paid in accordance with the procedures stated above. However, from time to time, such negotiations will provide a pricing agreement in the best interest of the Company which will necessitate a change in the basis of the compensation payment. Details of such agreements and the commission structure will be distributed by 33a Headquarters to field offices as they may occur. VII. Territory The territory or accounts assigned to the Sales Executive shall be clearly defined in a letter signed by the National Sales Executive. A copy of this letter must be forwarded to the responsible Senior Field Executive. Sales Executives may be transferred from one territory to another, and the territory assigned to a Sales Executive may be expanded or reduccd at the discretion of the responsible National Sales Executive. Territorial changes must be defined in a letter signed by the responsible National Sales Executive and a copy must be forwarded to the responsible Senior Field Executive. Both parties agree that the Compensation Plan comprises the entire written agreement concerning Davis’s entitlement to commissions. However, Davis says that two specific verbal exchanges between himself and Siemens officials and other extrinsic evidence is relevant to his claim for additional compensation. Two months prior to acceptance of the written agreement, Davis says that he spoke with Douglas Spotts (“Spotts”), the National Sales Manager in the Image Management (“IM”) Division, about the new position. During their meeting, which took place in September of 2002 in the Breakfast Room of the Sheraton hotel in Woodbridge, New Jersey, Davis and 34a Spotts allegedly discussed the terms of employment, the salary and the benefits that would accompany the job. Spotts told Davis that he would be eligible to receive commissions for sales credited to national and government accounts. Because Davis knew that he would be unable to visit each and every hospital in the United States to make individual sales, he asked Spotts whether he would be forced to split commissions with the regional salesmen. Spotts allegedly promised Davis that Siemens would pay a separate, dual commission on every sale credited to national and government accounts even though he may have no direct involvement in the sales. Sometime after he entered into his new job, Davis realized that he was not being credited with commissions for major national sales. He learned that his name had not been entered into the commission tracking system. He says that he asked Thomas Riesenberg (“Riesenberg”), the IM Division Vice President, what could be done to remedy the problem. In response, Riesenberg allegedly told him that his commissions would be calculated and paid at the end of the year out of funds reserved for payment of bonuses. Davis says that Siemens never paid the commissions due. He now seeks to recover $1.8 million in commissions and benefits over and above his salary for the one year term of his PSE assignment. Il. Before addressing the merits of Davis’s claims, the court must first determine whether Kentucky or New Jersey law applies to the dispute. Both parties appear 35a to assume that Kentucky law applies. While the Court ultimately agrees, this is not a foregone conclusion. A federal court sitting in a diversity action must apply the choice of law rules of the forum state. See Wallace Hardware Co., Inc. v. Abrams, 223 F.3d 382, 391 (6th Cir. 2000). Although the Compensation Plan contains a New Jersey choice of law provision, this is not necessarily determinative of the issue. Jd. at 392 (noting that Kentucky courts do not always honor choice of law provisions). The Sixth Circuit has held that “in a standard breach-of-contract case ... the Kentucky courts would choose to adopt § 187 of the Restatement (Second) of Conflict of Law (1971) as their analytical framework for addressing a contractual choice-of-law clause.” Id. at 397. Section 187(2) of the Restatement provides that a choice of law provision will be enforced unless either: (a) the chosen state has no_ substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the law of § 188, would be state of the applicable law in absence of an effective choice of law by the parties. Restatement (Second) of Conflict of Law § 187(2). 36a Here, New Jersey does not have a substantial relationship to the parties or the transaction between them. Siemens, a Delaware corporation, has its principal place of business in Pennsylvania. It conducts business across the country and seems to have no particular point of interest in New Jersey. Davis is a resident of Kentucky and his employment was focused there. The only facts connecting New Jersey to the instant case that the court is aware of are comparatively inconsequential. It appears that the contract was negotiated in a New Jersey hotel and that the Siemens employee who sent Davis the contract to sign worked in New Jersey. These facts alone do not establish a reasonable basis for the parties’ choice of New Jersey law. In view of this analysis, the Court need not enforce the contractual choice of law provision. In the absence of an enforceable choice of law provision, the Court will apply the “most significant relationship” test set forth in § 188 of the Restatement and-adopted by Kentucky courts to determine which state’s law governs. Breeding v. Massachusetts Indem. and Life Ins. Co., 633 S.W.2d 717, 719 (Ky. 1982). Kentucky has the most significant relationship to this dispute. As noted, Siemens is not headquartered in New Jersey and the contract was not to be performed in New Jersey. While New Jersey may have some interest in the outcome of this litigation based on the contract’s being drafted within its borders, Kentucky’s interest is more significant. Davis is a long-time resident of Kentucky and his employment was centered there. For the reasons already stated, the Court will apply Kentucky law. 3la ITI. In Count One, Davis asserts his central claim: breach of contract. He says that his employment contract entitles him to commissions on each and every sale of qualified equipment made during the term of his employment.’ The Compensation Plan governs the contractual entitlement to commissions and states two prerequisites. First, the employee must be “assigned to the territory within which the equipment is to be installed.” Second, the employee must be “personally and directly responsible . . . for such sale.” The Court will assume that Davis was assigned to the sales territory in question because it appears to be undisputed that Davis’s assigned territory was a national one.’ The sole remaining contractual issue is whether Davis was “directly and _ personally responsible” for the relevant sales within the meaning of the Compensation Plan. ' The difference between the amount Davis actually received and his demand is not a mere accounting error. Under his theory, he would be entitled to commissions and benefits of $1.8 million over and above his $65,000 base salary. * The language of the Compensation Plan also provides that an employee must be “assigned .. . responsibility, for such sale.” It should be noted that another section of the Compensation Plan requires that “the territory or accounts assigned to the Sales Executive shall be clearly defined in a letter signed by the National Sales Executive.” The record does not reveal any signed letter defining Davis’s territory. However, both parties stipulate that an employee who was personally and directly responsible for a sale in his/her territory was assigned responsibility for the sale as a matter of course. 38a The interpretation of a contract is a question of law for the court. Morganfield Nat'l Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895 (Ky. 1992). In the absence of an ambiguity, Kentucky courts will enforce a written instrument strictly according to its terms and will assign those terms their ordinary meaning. Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 106 (Ky. 2003). Davis argues that the terms in the written agreement, “personally and directly responsible,” are ambiguous. The Court respectfully disagrees. A contractual term is ambiguous if it is reasonably susceptible to different or inconsistent interpretations. Transport Ins. Co. v. Ford, 886 S.W.2d 901, 905 (Ky. Ct. App. 1994). True, the term “personally and directly responsible” may not be a precise term of art. Nevertheless, its meaning is not reasonably susceptible to different or inconsistent interpretations. Each term is subject to clear definition. Random House defines “responsible” as “chargeable with being the author, cause, or occasion of something” and as “answerable or accountable.” Random MHouse Unabridged Dictionary (2d ed. 1993). It defines “directly” as “in a direct line, way or manner” and it defines “personally” as “through direct contact; in person; directly.” Id. Moreover, as used together, those meanings reinforce one another. They require direct and unmediated involvement in the actual product sale. The Court finds that as a general matter, the term “personally and directly responsible” is absolutely clear and unambiguous. Davis asks the court to consider additional evidence to determine what the parties meant by “personally and directly responsible.” More specifically, he asks the Court to consider three factual assertions extrinsic 39a to the written agreement: (1) Siemens routinely paid other salesmen dual commissions; (2) his supervisor indicated that Davis would earn dual commissions in a telephone conference with a group of regional salesmen; and (3) his supervisor assured him that he would be paid commissions at the end of the year. This post-contract extrinsic evidence does not implicate the parole evidence rule. Under Kentucky law, however, the Court cannot reference extrinsic facts or aids, to determine the meaning of an unambiguous contract. Frear, 103 S.W.3d at 106; 11 Richard A. Lord, Williston on Contracts § 30:6 (4th ed.). Even a clear and unambiguous provision can be difficult to apply in a given circumstance. That is not true here, however. Davis admits that he had no direct involvement in the actual sale of goods during his employment as the National PSE. He supervised salespeople and he put them in a position to make sales; but he did not make any sales himself. Indeed, Davis does not seem to make a serious argument that he qualifies for commissions under any generally accepted definition of the contract terms. Indeed, no conceivable definition of the terms would entitle Davis to compensation in one circumstance. As applied here, the interpretation of the Compensation Plan is not subject to serious dispute. IV. As an alternative means of enforcing his view of the Compensation Plan, Davis presents statements made prior to the execution of the written agreement suggesting that Siemens actually meant to pay an override commission on all national and government sales. Specifically, Davis alleges that in September of 40a 2002, two months before he entered into the written agreement, Spotts promised him a dual commission scheme. To succeed Davis must somehow avoid the imperatives of the parole evidence rule. See, e.g., Luttrell v. Cooper Industries, Inc., 60 F. Supp. 2d 629, 631(E.D. Ky. 1998); M.R. Kopmeyer Co. v. Barnes, 276 S.W.2d 21, 23-24 (Ky. 1955) (defining parol evidence as “a contemporaneous oral agreement on the same subject matter” as a governing written agreement). Generally, the paro] evidence rule bars evidence of oral statements or writings made prior to or contemporaneous with a written agreement that contradict, vary or alter the language appearing in the writing. Luttrel,60 F.Supp. at 631; Johnson v. Dalton, 318 S.W.2d 415, 417 (Ky. 1958). The rule is intended to preserve the integrity of written agreements. O. P. Link Handle Co. v. Wright, 429 S.W.2d 842, 847 (Ky. 1968). Davis argues that Spotts’s oral promise merely serves to clarify the agreement and that therefore the parol evidence rule does not bar its admission. To be sure, statements of the parties are admissible whenever necessary to interpret ambiguous contract language. See, e.g., Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. Ct. App. 2002); Reynolds Metals Co. v. Barker, 256 S.W.2d 17, 18 (Ky. 1953). But for the exception to apply, ambiguity must be apparent on the face of the instrument itself. Hokeimer v. Hoheimer, 305.W.3d 176, 178 (Ky. 2000). In other words, one cannot use parol evidence to create ambiguity in an otherwise unambiguous document. As the Court has explained above, the term “personally and directly responsible” is unambiguous on its face. 4la Therefore, under the parol evidence rule, the Court may not consider Spotts’s alleged statement as clarification of an unambiguous term. Alternatively, Davis argues that the Spotts’s alleged oral statement meets a second exception to the parol evidence rule. Extrinsic evidence may add terms to an incomplete agreement where the written agreement constitutes only a “partial integration” of the parties’ entire agreement. Kovacs v. Freeman, 957 S.W.2d 251, 257 (Ky. 1997); Bullock v. Young, 67 S.W.2d 941, 946 (Ky. 1933).° For extrinsic evidence to be admissible under this exception requires two showings: (1) the written agreement is only a partial integration of the parties’ actual agreement; and (2) the proffered additional term is consistent with the language contained in the writing. See Ford v. Hurt, 265 S.W.2d 475, 477 (Ky. 1954); Citizens Nat. Bank of Glasgow v. Damron, 149 S.W.2d 762, 765 (Ky. App. 1941) (“I]t is incompetent to defeat a _ positive unqualified writing or written promise, by proving a contemporaneous agreement in direct contradiction of the terms of the writing.”). For obvious reasons, this ’ A writing is a “partial integration” of an agreement where the writing is incomplete and is “adopted by the parties as the expression of that portion of their larger parol agreement to which it relates.” 11 Richard A. Lord, Williston on Contracts § 33:20 (4th ed.). To determine whether a writing is a complete or partial integration, a court must engage in a fact-specific analysis. The question is whether the parties intended for the terms recorded in the writing to be their entire agreement. 11 Richard A. Lord, Williston on Contracts § 33:15 (4th ed.); Bullock v. Young, 67 S.W.2d 941, 946 (Ky. 1933). In the present case, the Court need nut determine whether the Compensation Plan is a partial integration because the Court finds the exception inapplicable on other grounds 42a exception is inapplicable here. Even if Davis can show that the Compensation Plan is only a _ partial integration of the terms of the actual agreement, the Court may not consider Spotts’s oral statement. Davis claims that Spotts assured him that he would receive commissions on any sale made in the continental United States even if he were not directly involved in its making. This alleged statement directly contradicts the Compensation Plan’s language requiring direct and personal responsibility for entitlement to sales commissions.‘ Finally, Davis cites Texas Gas Transmission Corp. v. Kinslow, 461 S.W.2d 69 (Ky. 1970), as the basis for yet another exception to the parol evidence rule. In Texas Gas, the Kentucky Supreme Court held that in the absence of a recital of consideration which the parties intend to be contractual, parol evidence is admissible to show the true consideration for the contract. Id. at 71; see also Ky. Rev. Stat. § 371.030 * The non-existence of an actua! integration clause within the Compensation Plan is not a dispositive or even a relevant factor under these circumstances. An integration clause, which typically states that there are no representations, promises or agreements between the parties except those found in the writing, is only relevant to the question of integration. See KFC Corp. v. Darsam Corp., 543 F. Supp. 222, 225 (D.C. Ky. 1982). Because the Compensation Plan did not contain an integration clause, in theory it could represent only a partial integration of the actual agreement between Siemens and Davis. However, to introduce evidence of additional terms, those additional terms must be consistent with the written agreement. Ford 265 S.W.2d at 477. The term that Davis has proffered—that he is entitled to commissions on every sale booked in national and governmental accounts—directly contradicts the plain and unambiguous meaning of the written agreement 43a (“The consideration of any writing, with or without seal, may be impeached or denied by pleading.”). Davis argues that the Compensation Plan was a mere recital of consideration and that the “true consideration” for his employment contract was Spotts’s promise to pay him an override commission for every national and governmental sale. For the following reasons, the Court concludes that Texas Gas does not decide this case. In Texas Gas, the consideration recorded in the writing was of a nominal nature and open to question and investigation.® Key matters of compensation were omitted or unknown at the time of the execution of the written agreement. Thus, our case is materially distinguishable. First, the consideration provided for in Davis’s written agreement is both substantial and * The dispute in Texas Gas involved the plaintiffs’ grant of a right of way to a gas company executed so that the company could lay a gas pipeline across the farmers’ land. Texas Gas, 461 S.W.2d at 70. The plaintiffs and the gas company executed two written agreements, each containing a recital of nominal consideration. Id. One agreement contained a handwritten proviso stating that “The above consideration dose [sic] not include any damage that might occur to a spring near the R/W.” Jd. Subsequent to the execution of the agreement, the gas company caused $7500 worth of damage to the farmers’ spring. Jd. The farmers sued to recover and the gas company argued that it had no contractual duty to pay the damages. Jd. At trial, the farmers alleged that prior to the execution of the agreements, the gas company had made an oral promise to protect their spring and to pay any damages to it caused by the laying of he pipe. /d. Because the “Damages Release” expressly stated that the recital of consideration did not fully encompass the scope of the agreement, the court found that the recital of consideration was not contractual. Jd. at 71. Therefore, the court held that evidence of the true consideration was admissible. Id. 44a determinable, rather than nominal and open to question. The agreement provides that in consideration for Davis’s employment, Siemens will pay him an $65,000 base salary. a $35,000 guaranteed rider, and the payment of commissions on all sales for which he was personally and directly responsible. Even more important, unlike Texas Gas, neither the Compensation Plan nor any other writing indicates that the parties did not intend for the consideration recited in the Compensation Plan to be contractual and conclusive. For all these reasons, the Court finds no basis upon which Davis might succeed on his breach of contract claim. V. As an alternative to his contract claim, Davis asserts promissory estoppel. Davis has two factual grounds for that claim. First, he alleges that before he entered into the written agreement, Spotts, his supervisor, orally promised to pay him an override commission on all national and international sales. Second, he alleges that after he entered into the agreement, Mr. Riesenberg, another supervisor, promised him he would receive his commissions at the end of the year. According to Davis, he detrimentally relied on each of the promises because he accepted Siemens’s offer of employment and continued to work there even after Siemens failed to pay him the commissions. After reviewing the more recent relevant Kentucky cases, the Court concludes that a claim of promissory estoppel requires proof of the following elements: (1) a 45a promise; (2) the promisee reasonably relies upon the promise by acting or forbearing to act upon the strength of it; (3) the promisor, at the time of making his promise, foresees or expects that the promisee would act or forbear in reliance upon it; and (4) enforcement of the promise is necessary to avoid an injustice. See Restatement (Second) of Contracts § 90(1) (1979); Meade Const. Co., Inc. v. Mansfield Commercial Elec., Inc., Ky., 579 S.W.2d 105, 106 (Ky. 1979); Lichtefeld-Massaro, Inc. v. R. J. Manteuffel Co., Inc., 806 S.W.2d 42, 44 (Ky. Ct. App. 1991); Rivermont Inn, Inc. v. Bass Hotels Resorts, Inc., 113 S.W.3d 636, 642 (Ky. Ct. App. 2003); Res-Care, Inc. v. Omega Healthcare Investors, Inc., 187 F. Supp. 2d 714, 718 (W.D. Ky. 2001); Monumental Life Insurance Co. v. Nationwide Retirement Solutions, Inc., 242 F. Supp. 2d 438, 451 (W.D. Ky. 2003); Bergman v. Baptist Healthcare System, Inc., 344 F. Supp. 2d 998, 1003 (W.D. Ky. 2004). It is tempting to view promissory estoppel as merely an alternative to a standard breach of contract claim. That is certainly not the traditional view of the doctrine, however. “Historically, the doctrine of promissory estoppel traces its roots primarily to four or five principal categories of promises,” all of which were gratuitous in nature: (1) promises by gratuitous bailees; (2) promises to make charitable donations; (3) promises made by one family member to another; (4) gratuitous promises for the conveyance of land; and (5) gratuitous promises regarding family settlements. 4 Richard A. Lord, Williston on Contracts § 8:6 (4th ed.). When the doctrine first came into being, courts universally held that promissory estoppel was not to be used as a substitute for consideration when a commercial bargain was contemplated. See, e.g., School District v. Sheidley, 40 S.W. 656 (Mo. 1897); 46a Heisley v. Eastman, 201 P. 872, 879 (Or. 1921). In one leading case, James Baird Co v. Gimbel Brothers, 64 F.2d 344 (2d Cir. 1933), Judge Learned Hand refused to apply the doctrine of promissory estoppel to enforce a subcontractor’s bid because it was part of an arms’ length commercial exchange. Jd. at 346. In describing the doctrine of promissory estoppel, Judge Hand wrote: Id. Offers are ordinarily made in exchange for a consideration, either a counter-promise or some other act which the promisor wishes _ to secure. .. . But a man may make a promise without expecting an equivalent; a donative promise, conditional or absolute. . . . The doctrine of “promissory estoppel” is to avoid the harsh results of allowing the promisor in such a case to repudiate, when the promisee has acted in reliance upon the promise... . But an offer for an exchange is not meant to become a promise until a consideration has been received, either a counter-promise or whatever else is stipulated. To extend it would be to hold the offeror regardless of the stipulated condition of his offer. (citations omitted). Likewise, the earliest Kentucky cases recognizing the doctrine of promissory estoppel viewed the doctrine as separate and apart from contractual, commercial bargains. This Court can find only three occasions between 1911 and 1967 where Kentucky courts applied the doctrine of promissory estoppel and each occasion 47a involved the promise of a charitable donation unsupported by consideration. Lake Bluff Orphanage v. Magill’s Ex’rs, 204 S.W.2d 224, 226 (Ky. 1947) (finding the doctrine of promissory estoppel applicable to a pledge by a private donor to an orphanage); Transylvania Univ. v. Rees, 179 S.W.2d 890, 892 (Ky. 1944) (finding insufficient detrimental reliance on the part of a private university to require the court to enforce a private donor’s gratuitous pledge); Floyd v. Christian Church Widows & Orphans Home, 176 S.W.2d 125, 130-31 (Ky. 1943) (holding that promissory estoppel could make a charitable pledge enforceable even if it is mot supported’ by consideration). More recently, outside this jurisdiction, the interplay between promissory estoppel and a bargained-for exchange has blurred. Some courts have extended promissory estoppel to promises otherwise unenforceable under traditional contract doctrine. See, e.g., Palermo v. Warden, Green Haven State Prison, 545 F.2d 286 (2d Cir. 1976) (suggesting the applicability of estoppel to a negotiated plea bargain alleged to be unenforceable due to its illegality). Thus, some courts have expanded the doctrine to embrace promises which were too indefinite to support a contract, see, e.g., Doll v. Grand Union Co., 925 F.2d 1363 (11th Cir. 1991), and promises which are illusory. See, e.g., First Nat. Bank of Logansport v. Logan Mfg. Co., Inc., 577 N.E.2d 949 (Ind. 1991). In fact, the doctrine has even been applied to enable partial enforcement of promises made when the resulting contract, if it had been entered into, would have been terminable at will. 4 Williston on Contracts § 8:6 (4th ed.) (citing Restatement (Second) of Contracts § 90, comment d, illustration 8). 48a Other courts held to the more traditional approach, concluding that the doctrine applies only when no contract exists, oral or otherwise. See, e.g., Frost Construction Co. v. Lobo, Inc., 951 P.2d 390, 397 (Wyo. 1998) (“Since promissory estoppel applies only if a contract does not exist, a promissory estoppel argument in this case, where the evidence demonstrates the existence of a _ contract, is incongruous.”); Walker v. KFC Crop., 728 F.2d 1215, 1220 (9th Cir. 1984); Spensley Feeds, Inc. v. Livingston . Feed & Lumber, Inc., 381 N.W.2d 601, 607 n. 8 (Wis. 1985); Tuomala v. Regent University, 477 S.E.2d 501, 506 (Va. 1996). Kentucky’s state courts have given little guidance about the current scope of promissory estoppel. See Eric Mills Holmes, Restatement of Promissory Estoppel, 32 Willamette L. Rev. 263, 384 (1996) (“There is a paucity of Kentucky promissory estoppel cases.”). One consequence of this relative inattention is that Kentucky courts have never ruled that the doctrine applies exclusively to gratuitous promises or that promissory estoppel is inapplicable to contractual arrangements. More important, however, our courts have not suggested an intent to extend the scope of promissory estoppel. Kentucky courts have consistently held that promissory estoppel applies to gratuitous promises, unsupported by consideration. See e.g., McCarthy v. Louisville Cartage Co., Inc., 796 S.W.2d 10, 12 (Ky. App. 1990) (“The whole theory of a promissory estoppel action is that detrimental reliance becomes a substitute for consideration under the facts 49a of a given case.”)°; Lichtefeld-Massaro, Inc., 806S.W.2d at 43-44 (holding that promissory estoppel made a subcontractor’s bid an enforceable promise even though the general contractor was not mutually bound to accept the bid at the time it was made). They have also suggested that promissory estoppel is fundamentally different from a contract. See McCarthy, 796 S.W.2d at 12 (promissory estoppel “is not founded upon a legal duty and a breach thereof; but rather, it is based upon a mere promise and reliance on that promise”). In sum, Kentucky courts seem to have so far narrowly confined their use of the doctrine and, in doing so, have suggested that promissory estoppel is fundamentally different from a contract. With this in mind, the Court will consider each of Davis’s claims in turn. A. The Court first addresses Davis’s claim that he detrimentally relied on Spotts’s alleged oral promise to pay him override commissions. As discussed above, the parol evidence rule would bar the use of the Spotts’s statement to establish breach of contract. At issue here then is whether a party may assert a promissory ° It should be noted that the McCarthy opinion appears to have conflated the elements of promissory estoppel and equitable estoppel. Nevertheless, McCarthy was certainly a promissory estoppel case. Indeed, the Kentucky Supreme Court and various federal courts have cited McCarthy as part of its adherence to the doctrine of promissory estoppel. See, e.g., United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 470 (Ky. 1999); FS Invs., Inc. v. Asset Guar. Ins. Co., 196 F. Supp. 2d 491, 506-507 (E.D. Ky. 2002). 50a estoppel claim based on an oral promise that is otherwise barred by the parol evidence rule. No Kentucky state court has directly addressed this issue.’ Accordingly, this Court must “ascertain from all available data ... what the state’s highest court would decide if faced with the issue.” Grantham and Mann, Inc. v. American Safety Products, Inc., 831 F.2d 596, 608 (6th Cir. 1987). To do so, the Court will examine decisions and rationales from other jurisdictions that have decided this specific issue, general Kentucky law, and policy considerations for guidance in determining how the Kentucky Supreme Court would likely decide this issue. The majority of courts in other jurisdictions has held that a prior inconsistent oral promise cannot be the basis of a promissory estoppel claim. Durkee v. Goodyear Tire & Rubber Co., 676 F. Supp. 189, 192 (W.D. Wis..1987) (“To entertain a theory of recovery that makes a prior, inconsistent promise enforceable is to write the [parol evidence] rule out of existence.”); All-Tech Telecom, inc. v. Amway Corp., 174 F.3d 862, ‘For this Court’s purposes, the issue at hand is of first impression for Kentucky state courts. Siemens cites Tractor and Farm Supply, Inc. v. Ford New Holland, Inc., 898 F. Supp. 1998 (W.D. Ky. 1995) as support for the proposition that Davis’s promissory estoppel claim is precluded by Kentucky law. In Tractor Farm, this Court held that under Kentucky law, “estoppel cannot be the basis for a claim if it represents the same _ performance contemplated under a written contract.” Jd. at 1205. While the foregoing analysis eventually reaches the conclusion that Kentucky courts would so hold, no Kentucky court has in fact specifically decided the issue. In Tractor Farm, this Court relied on General Avtation, Inc. v. Cessna Aircraft Co., 915 F.3d 1038, 1042 (6th Cir. 1984), a Sixth Circuit decision. However, in that case the Sixth Circuit applied Michigan law. 5la 869-70 (7th Cir. 1999); Davis v. University of Montevallo, 638 So.2d 754, 758 (Ala. 1994); Big G Corp. v. Henry, 536 A.2d 559, 562 (Vt. 1987); Johnson v. Curran, 633 P.2d 994, 9 °'6-97 {Alaska 1981); Prentice v. UDC Advisory Services, Inc., 648 N.E.2d 146, 152-53 (Ill. App. 1995). The Seventh Circuit case, All-Tech Telecom, provides a well-reasoned explanation of the majority rule. There, Judge Richard Posner found the doctrine of promissory estoppel inapplicable to a series of oral promises made du-ing the course of negotiations and during the course of the performance of a written agreement. All-Tech Telecom, 174 F.3d at 869-70.° The Seventh Circuit affirmed the dismissal of the promissory estoppel claim holding that a “promisee cannot be permitted to use the doctrine to do an end run... around the parol evidence rule.” Jd. at 869. Judge Posner reasoned that where a written contract governs the relationship between the parties, promissory estoppel is a duplicative remedy: Promissory estoppel is meant for cases in which & promise, not being supported by ® In All-Tech Telecom, the defendant, Amway, offered to its distributors a credit-card operated telephone system called TeleCharge for sale to restaurants and hotels. Jd. at 864. All-Tech, an Amway distributor, entered into a written agreement with Amway to purchase a large number of the phones. /d. All-Tech claimed to have been lured into the unsuccessful venture by a senies of oral misrepresentations, including a promise that Amway had conducted extensive research regarding the success of the telephones. None of the warranties was included in the written terms of the agreement. /d. All-Tech filed, inter alia, a promissory estoppel claim based on these alleged oral misrepresentations. Jd. 52a consideration, would be unenforceable under conventional principles of contract law. When there is an express contract governing the relationship out of which the promise emerged, and no issue of consideration, there is no gap in the remedial system for promissory estoppel to fill. To allow it to be invoked becomes in those circumstances gratuitous duplication or, worse, circumvention of carefully designed rules of contract lav. Id. (citations omitted). Because the parties’ contract covered the relationship within the scope of the alleged warranty, the court found no reason “for using the doctrine of promissory estoppel to resuscitate it.” Id. Thus, the general rationale for the majority rule is that the written agreements supercede and incorporate all prior oral statements on subjects covered by the written agreement. The Seventh Circuit’s interpretation of promissory estoppel is consistent with the more limited scope of the doctrine apparent from a full review of Kentucky cases. To hold otherwise, makes the formalities of a written contract meaningless. The Kentucky courts have also been reluctant to contravene the technical requirements of contract law. In Rivermont Inn, Inc., Kentucky’s most recent and most thorough explanation of the doctrine of promissory estoppel, the Court of Appeals held that promissory estoppel could not be applied to defeat the statute of frauds under the particular circumstances involved. Rivermont Inn, Inc., 113 S.W.3d at 643. Rivermont is a different case from ours in many 53a respects.” Its significance, however, is that the Kentucky Court of Appeals was not inclined to allow the doctrine of promissory estoppel as means of avoiding rules of contract interpretation and compliance. See id. at 642 (noting that detrimental reliance on an oral promise is “not sufficient to defeat the statute of frauds”).’° The overarching principle suggested in Rivermont Inn, Inc. applies just as clearly to the common law parole evidence rule as it does to the statute of frauds. Kentucky views the parol evidence rule as a firm and well-established rule of law. The rule dates back to at least the mid-19th-century. See, e.g., Park v. Price, 1 Ky. Op. 17 (1866) (“It is a well-settled principle that parol evidence is not admissible to vary the terms or import of a writing ... .”). Since then it has been interpreted as “more than a rule of evidence... . It is one of substantive law.” Gibson v. Sellars 252 S.W.2d ° In Rivermont, a hotel and resort company claimed that a representative of the Holiday Inn Franchise Administration orally promised to approve its application for a license to open a local franchise. Jd. at 639. The court noted that if the alleged conversation constituted an oral contract, it would be unenforceable under the statute of frauds because the franchise relationship was to last five years. Id. at 642. In the instant case, the statute of frauds provides no bar to the enforceability of Spotts’s alleged oral promise. ‘° The Court of Appeals did not hold that promissory estoppel could never be used to defeat a statute of frauds defense. Instead, after noting initially that detrimental reliance on an oral promise is “not sufficient to defeat the statute of frauds,” the court held that the plaintiff had failed to prove that its detrimental reliance wasreasonable because the written agreement expressly provided that oral promises would not be binding. Jd. at 642. 54a 911, 913 (Ky. 1952). To allow oral promises otherwise inadmissible under the parol evidence rule to form the basis of a promissory estoppel claim would eviscerate the rule and disregard at least 140 years of jurisprudence. Accordingly this Court finds that an oral promise made prior to the execution of a written agreement that is inconsistent with the unambiguous terms of the written agreement cannot form the basis of a promissory estoppel claim. As applied to the instant case, Davis is precluded from asserting promissory estoppel as a grounds for relief. B. Next Davis argues that he is entitled to relief under promissory estoppel because a few months after he signed the Compensation Plan, his supervisor, Mr. Riesenberg, assured him that he would receive his commissions at the end of the year. Davis alleges that after he took the National and Governmental Sales position, he complained to Riesenberg that the computer program used to calculate commissions was not formulated to pay him his override commission. “iesenberg allegedly reassured Davis that his -ummissions would be calculated and paid at the end of the year out of a stipend fund. Davis argues that Riesenberg’s reassurance constituted a promise and that he detrimentally relied on it by continuing to work for Siemens. Here, the alleged promise was made after the execution of the written agreement. Davis’s reliance on it, therefore, would not circumvent the parol evidence rule. Thus, notwithstanding the Court’s analysis 55a above, his allegation could constitute a viable claim of promissory estoppel provided that he properly asserted the prima facie elements. However, the Court finds that Davis cannot make a prima facie case. Taken alone, Riesenberg’s offhand, ministerial statement is not a promise. See Restatement (Second) of Contracts § 2 (defining a promise as a “manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made”). To be sure, the fact that Riesenberg reassured Davis that he would be paid at the end of the year could be construed as a reaffirmation of Spotts’s original promise to pay him override commissions. Indeed, the statement arguably corroborates the fact that the original promise was made. However, it is not an independent enforceable promise on its own. Therefore, no reasonable juror could find that Davis is entitled to recover on the basis of promissory estoppel. VI. Davis also asserts a claim for misrepresentation based on the statements of Douglas Spotts in September of 2002 during a meeting at the Sheraton Hotel in Woodbridge, New Jersey. To state such a claim, Davis must allege: (1) that Siemens made a false statement; (2) regarding a material fact; (3) that Siemens knew the statement to be false or acted recklessly as to its truth or falsity; (4) that Siemens intended to deceive Davis; (5) that Davis reasonably relied upon the deception; and (6) that Davis suffered damages as a result. United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999); Res-Care, Inc. 56a v. Omega Healthcare Investors, Inc., 187 F. Supp. 2d 714, 717 (W.D. Ky. 2001); Hunt Enterprises, Inc. v. John Deere Indus. Equipment Co., 18 F. Supp. 2d 697, 702 (W.D. Ky. 1997). As previously discussed, during that meeting, Spotts told Davis that in he would receive an override commission on all national and governmental sales regardless of his personal involvement in the actual sales. Davis argues that this alleged promise was a material misrepresentation of fact that Spotts knew to be false. Davis further alleges that he relied on the statement, as Spotts intended, when he accepted the offer of employment. A misrepresentation claim is considerably more difficult to prove than promissory estoppel because it requires evidence of knowing deception or fraud. Nevertheless, Davis appears to meet the bare minimum for a prima facie case of misrepresentation. Under Kentucky law, representations as to future conduct will not support a fraud claim. See, e.g., Res- Care, Inc. v. Omega Healthcare Investors, Inc., 187 F. Supp. 2d 714, 717 (W.D. Ky. 2001); Schroerlucke v. Hall, 249 S.W.2d 130, 1381 (Ky.1952); Moseley v. Owensboro Municipal Housing Commission, 252 S.W.2d 880, 881 (Ky.1952). However, a statement as to future conduct may form the basis for a misrepresentation claim if made with the intent to induce the other party to enter into a contract. See Evola Realty Co. v. Westerfield, 251S.W.2d 298, 300-01 (Ky.1952); Schroerlucke, 249 S.W.2d at 131. That appears to be an inference available from our facts. Davis has alleged that Siemens promised to pay him commissions with the knowledge that it would never pay him so as to induce Davis into accepting the offer 57a of employment. This allegation is sufficient to state a claim for fraud against Siemens." Siemens also argues that the economic loss doctrine bars Davis’s misrepresentation claim. Citing Ohio Casualty Ins. Co. v. Vermeer Mfg. Co., 298 F. Supp. 2d 575 (W.D. Ky. 2004), Siemens argues that because Davis’s misrepresentation claim is inseparable from his contractual claims, Davis’s exclusive remedy is breach of contract. There is some support for this proposition. See, e.g., R.A.M. Sourcing Agency, Inc. v. Seaboard Marine, Ltd., 995 F. Supp. 1465, 1467 (S.D. Fla.1997) (a party may not raise tort claims to recover solely economic losses arising from a breach of contract unless there is evidence of physical injury or damage to other property); Heller Fin., Inc. v. Grammco Computer Sales, Inc., 71 F.3d 518, 527-28 (5th Cir. 1996) (tort damages are not recoverable for a fraudulent inducement claim unless the plaintiff suffers an injury that is distinct, separate, and independent from the economic losses recoverable under a breach of contract claim). However, to date, no Kentucky court has held that the economic loss rule applies so expansively. Instead the economic loss rule has been limited to apply to products liability cases, see, e.g., Ohio Casualty Ins. Co., 298 F. Supp. 2d at 577-78, to business purchases, see, e.v., Mt. Lebanon Personal Care Home Inc. v. Hoover Universal Inc., 276 F.3d 845, 849 (6th Cir. "' Tt should be noted that Davis has moved for summary judgment on his misrepresentation claim as well. However, because Siemens alleges that Spotts never made the alleged statement regarding Davis’s entitlement to commissions; there is a genuine issue of material fact. Therefore, summary judgment is inappropriate. 58a 2002), and to construction cases, see, e.g., Bowling Green Municipal Utilities v. Thomasson Lumber Co., 902 F. Supp. 134 (W.D. Ky. 1995). To expand the rule so as to bar a fraudulent inducement claim in an employment contract without further guidance from the Kentucky courts would eviscerate the claim of fraudulent inducement and would contravene contrary Kentucky case law. See, e.g., Hanson v. American Nat'l Bank & Trust Co., 865 S.W.2d 302, 309 (Ky. 1993) (“The idea that any person or industry or enterprise would be immune from liability for fraud and deceit is not acceptable.”). Therefore, a reasonable juror could find that Davis is entitled to recover based on his misrepresentation claim. VII. Davis also asserts claims for conversion, misrepresentation, breach of fiduciary duty and for violation of Kentucky’s wage statute. The claims are more easily resolved as follows. A. Siemens argues that Davis’s conversion claim cannot succeed because he had no ownership rights in any particular property. Davis says that he may pursue the conversion claim at the same time as his contract claim irrespective of the similarity of the remedies. The elements of a conversion claim are (1) ownership rights in a certain property, (2) the wrongful act of taking or disposing of property, and (3) 59a causing damages. Anderson v. Pine South Capital, LCC, 177 F. Supp. 2d 591, 603 (W.D. Ky. 2001); Goss vu. Bisset, 411 S.W.2d 50, 53 (Ky. 1967). A conversion claim and contract claims are not always incompatible. Here, however, the conversion claim does not lie because the property right alleged to have been converted arises entirely from the contractual rights to compensation. In reality, Davis seeks payment of a disputed debt, not payment for the conversion of a specific asset or a specific property right. The interpretation of the contract governs Davis's entitlement to the disputed payments. B. Siemens argues that Davis’s claim for breach of fiduciary duty simply does not apply in these circumstances. A fiduciary relationship is one “founded on trust or confidence reposed by one person in the integrity and fidelity of another,” and that relationship must involve “an undertaking in which a duty is created in one person to act primarily for another’s “benefit.” Monumental Life Ins. Co. v. Nationwide Retirement Solutions, Inc., supra (emphasis added) (quoting Steelvest Inc. v. Scansteel Serv. Ctr., Inc. , 807 S.W.2d 476, 485 (Ky. 1991); Auto Channel, Inc. v. Speedvision Network, LLC, 144 F. Supp. 2d 784, 793 (W.D. Ky. 2001). Davis has offered no evidence that Siemens had a duty to act primarily for Davis’s benefit no is there evidence that Siemens and Davis were involved in a “joint venture.” See Greenup v. Hewitt, 235 S.W.2d 1000, 1002 (Ky. 1951). Davis was a salaried employee who under certain circumstances was entitled to receive commissions. This does not constitute a joint venture. Under the evidence here, the Court concludes that Siemens did not assume 60a fiduciary duties with respect to its employment relationship. C. Siemens argues that Davis’s wage claim under KRS 337.385 fails because the claim is one not covered by the statute and in any event, Davis did not pursue his necessary administrative remedies before initiating his lawsuit. The Court agrees. Davis has not satisfied his administrative prerequisites. Section 337 bars proceeding to a civil lawsuit until the Labor Commissioner has conducted his own proceeding. McMichael v. Falls City Towing Co., 199 F. Supp. 2d 632, 637 (W.D. Ky. 2002). Thus, claims brought pursuant to KRS 337.385 must first be raised before the Labor Cabinet to resolve questions of fact. Davis has failed to comply with this requirement and, therefore, cannot avail himself of the benefits of KRS 337.385. Viti. Siemens argues that Davis’s potential infliction of emotional distress claim must be dismissed because its conduct was not outrageous and did not cause severe emotional distress to Davis. To make such a claim, one must prove the following elements: (1) conduct that is intentional and reckless; (2) conduct that is so outrageous and intolerable that it offends generally accepted standards of decency and morality; (3) a causal connection between the alleged wrongful conduct and the emotional distress; and (4) severe emctional distress. Gilbert v. Barkes, Ky., 987 S.W.2d bla 772, 777 (1999); Pennington v. Dollar Tree Stores, Inc., 104 F. Supp.2d 710, 715 (E.D. Ky. 2000). Davis’s claim is based almost entirely upon Mr. Riesenberg’s actions and statements. He says that Riesenberg verbally abused him with foul language; that he filled out unfavorable appraisal sheets; that he blocked his right to health care; all for the purpose of driving Davis from the company. Although such conduct may be offensive, it is not so outrageous and intolerable that it offends generally accepted standards of decency and morality. Therefore, summary judgment is appropriate. The Court will enter an order consistent with this Memorandum Opinion. November 8, 2005 /s/ John G. Heyburn IT John G. Heyburn If Chief Judge, U.S. District Court cc: Counsel] of Record 62a APPENDIX F UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 07-5420 [Filed August 27, 2008] JERRY W. DAVIS, Plaintiff-Appellant, Vv. SIEMENS MEDICAL SOLUTIONS USA, INC., Defendant-Appellee. ee a, La Le La La Le ORDER BEFORE: KEITH, DAUGHTREY, and ROGERS, Circuit Judges. The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing has been referred to the original panel. 63a The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied. ENTERED BY ORDER OF THE COURT /s/ Leonard Green Leonard Green Clerk 64a APPENDIX G UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION CASE NO. 3:04CV-195 [Filed January 6, 2006] JERRY W. DAVIS PLAINTIFF V. SIEMENS MEDICAL SOLUTIONS USA, INC. ) ) ) ) ) ) ) ) ) DEFENDANT ) ) MOTION TO REVISE THIS COURT’S ORDER ENTERED ON NOVEMBER 8, 2005 COMES NOW, the Plaintiff, Jerry W. Davis, and respectfully moves the Court, pursuant to Fed. R. Civ. Proc. 54(b), to partially revise its Order entered on November 8, 2005. That order and memorandum opinion, inter alia, granted summary judgment to the Defendant on the Plaintiffs wage claim under KRS 337, based upon Kentucky law that was overruled by the Kentucky Supreme Court, in Parts Depot, Inc. v. 65a Beiswenger and Housing Authority of Middlesborough, 170 S.W.3d 354 (Ky. 2005), immediately after the conclusion of briefing by the parties on their motions for summary judgment. The Kentucky Supreme Court, reversing precedent to the contrary, has held in Parts Depot that an employee is not required to exhaust administrative remedies before bringing a claim under KRS 337. The Kentucky Supreme Court decided that plaintiffs may have immediate recourse to the civil courts, which have been accorded original jurisdiction over KRS 337 claims. The Court’s entry of summary judgment on Mr. Davis’: claim for wages under KRS 337 should, therefore, in light of this new decision by Kentucky’s highest court, be revised to deny the Defendant summary judgment, based on the current, controlling Kentucky law relevant to this claim. The Plaintiff submits in support hereof the attached proposed Order and his Memorandum of Law in Support of Plaintiffs Motion to Revise this Court’s Order Entered on November 8, 2005. Respectfully submitted, /s/Robert W. Bishop Robert W. Bishop, Esq. Bishop & Associates, P.S.C. 6520 Glenridge Park, Suite 6 Louisville, Kentucky 40222-9998 (502) 425-2600 COUNSEL FOR PLAINTIFF 66a UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION No. 3:04CV-195 [Filed January 6, 2006] JERRY W. DAVIS PLAINTIFF ¥ SIEMENS MEDICAL SOLUTIONS USA, INC. ) ) ) ) ) ) ) ) ) DEFENDANT ) ) PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO REVISE THIS COURT’S ORDER ENTERED ON NOVEMBER 8, 2005 I. Introduction Plaintiff, Jerry Wade Davis, through the undersigned counsel, respectfully submits this memorandum of law in support of his motion to revise the Court’s Order partially granting the Defendant’s Motion for Summary Judgment, entered on November 8, 2005. Pursuant to FRCP 54(b), the Plaintiff has moved that the Court revise its said Order as to the Plaintiffs claim under KRS 337.385, in light of the most recent Kentucky Supreme Court decision 67a relevant to this claim. That decision was not rendered until August 25, 2005, one day after the conclusion of briefing by the parties on their motions for summary judgment, and was not released for publication until September 15, 2005, one day prior to the hearing date set by the Court for oral argument on the summary judgment motions, and was apparently, therefore, overlooked by the parties. Il. Plaintiff is not required to exhaust his administrative remedies under KRS 337 When granting the Defendant’s motion for Summary Judgment on the issue of the Plaintiffs claim under KRS 337.385, this Court held, on page 25 of its Memorandum, that the Plaintiffs claim failed because: Davis has not satisfied his administrative prerequisites. Section 337 bars proceeding to a civil lawsuit until the Labor Commissioner has conducted his own proceeding. Michael v. Falls City Towing Co, 199 F. Supp.2d 632, 637 (W.D. Ky. 2002). Thus claims brought pursuant to KRS 337.385 must first be raised before the Labor Cabinet to resolve questions of fact. Davis has failed to comply with this requirement, and, therefore, cannot avail himself of the benefits of KRS 337.385. The Kentucky Supreme Court has now dealt with the specific issue of whether a claim must first be brought before the Labor Cabinet in Parts Depot, Inc. v. Beiswenger and Housing Authority of Middlesborough, 170 S.W.3d 354 (Ky. 2005). (A copy has been attached, for the Court’s convenience, as 68a Exhibit A hereto.) The Kentucky Supreme Court ruled on the issue of whether the Labor Cabinet had exclusive jurisdiction over all claims arising under KRS 337.385, or whether the state courts could have criginal jurisdiction over these claims, in addition to appellate jurisdiction over claims which were heard by the Labor Cabinet. The employer in the Parts Depot case argued that KRS Chapter 13B “vests exclusive jurisdiction of all wage-and-hour disputes in the Department of Labor, requiring [employees] to exhaust administrative remedies and limiting circuit court jurisdiction to appellate review.” Jd. at 359. The Kentucky Supreme Court specifically rejected this argument. It held that a case may be brought under this statute in civil court, and that the courts have original subject matter jurisdiction over these types of claims. The Supreme Court ruled that “nothing ... in KRS Chapter 13B can be construed as conferring upon the Department of Labor exclusive jurisdiction to resolve all disputes pertaining to nonpayment of salary or wages.” Id. at 362. II. Conclusion Due to the timing of the rendering and publication of the Parts Depot opinion, as described above, this Court was not provided with the benefit of this precedent when making its analysis of this claim. As the Court’s stated reason for granting summary judgment on the Plaintiff's KRS 337.385 claim was the issue of Plaintiff's failure to exhaust administrative remedies, and as the Kentucky Supreme Court has now held that such exhaustion of administrative 69a remedies is not necessary in order to pursue a claim under that statute in civil court, Plaintiff respectfully submits that the Court should revise its Order entered on November 8, 2005 to allow Plaintiffs claim under KRS 337.385 to proceed to the jury trial in this matter on February 21, 2006. Respectfully submitted, /s/Robert W. Bishop Robert W. Bishop, Esq. Bishop & Associates, P.S.C. 6520 Glenridge Park, Suite 6 Louisville, Kentucky 40222-9998 (502) 425-2600 COUNSEL FOR PLAINTIFF 70a APPENDIX H UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION Case No. 3:04CV-195 [Electronically Filed March 13, 2006] JERRY W. DAVIS, Plaintiff, v. SIEMENS MEDICAL SOLUTIONS USA, INC., Defendant. Nee eee eee eee Se” DEFENDANT’S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, OR FOR A NEW TRIAL The Defendant, Siemens Medical Solutions, USA (“Siemens” or “the Company”), by counsel and pursuant to Rule 50 and Rule 59(a) of the Federal Rules of Civil Procedure, submits this Renewed Motion For Judgment As A Matter Of Law Or, Alternatively, For A New Trial. Siemens has also submitted a Memorandum of Law in Support for this motion Fla contemporaneously with this filing. As detailed more fully in that Memorandum, Siemens asserts the following primary arguments in support of its motion: 1. Siemens is entitled to judgment as a matter of law because no reasonable jury could find by clear and convincing evidence that Siemens fraudulently misrepresented Plaintiffs commission eligibility to him; and 2. In the alternative, Siemens is entitled to a new trial because of statements in Plaintiffs opening statement and closing argument and the improper admission of evidence regarding alleged mistreatment of Plaintiff by Tom Riesenberg were erroneous, prejudicial and impermissibly tainted the jury’s verdict. As a result of the foregoing, Siemens moves this Court to vacate the jury’s verdict in this action and enter judgment as a matter of law in its favor. In the alternative, Defendant moves this Court to vacate the jury’s verdict and grant a new trial. Respectfully submitted, SIEMENS MEDICAL SOLUTIONS By: s/Robert F. Holland Counsel Dana L. Rust Michele L. Settle Robert F. Holland MCGUIREWOODS LLP One James Center 901 East Cary Street Richmond, Virginia 23219 (804) 775-1000 Mitzi D. Wyrick WYATT, TARRANT & COMBS, LLP 2500 Citizens Plaza, 500 West Jefferson Street, Suite 2800 Louisville, Kentucky 40202-2898 (502) 562-7337 (502) 589-0309 (fax) Counsel for Defendant APPENDIX I UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE No. 3:04-CV-195-H [Dated February 22, 2006] JERRY DAVIS PLAINTIFF, -VS- SIEMENS MEDICAL SOLUTIONS DEFENDANT. i A A a_i TRANSCRIPT OF JURY TRIAL. VOLUME IB BEFORE MAGISTRATE JAMES D. MOYER UNITED STATES MAGISTRATE JUDGE DERBY REPORTING SERVICES Carola G. Strijek, RPR 1807 Northview Court LaGrange, KY 40031 (502) 376-8895 Fax (502) 225-4646 [p.2] APPEARANCES: On behalf of the Plaintiff: ROBERT W. BISHOP, ESQ. JENNIFER LEIGH MCCARTY, ESQ. Bishop & Associates, PSC 6520 Glenridge Park Suite 6 Louisville, KY 40222-9998 On behalf of the Defendant: DANA R. RUST, ESQ. MICHELE L. SETTLE, ESQ. McGuire Woods, LLP 901 East Cary Street One James Center Richmond, VA 23219-4030 * KOK [p.11] Q. Do you know how many sales -- A. Let me just finish. And then that territory split in about -- with the growth of the product in the industry into a split in about 2001 where I only covered Texas, Oklahoma, New Mexico, and still parts of Louisiana. Q. Okay. *%0 you know how many sales territories Siemens has for its product sales executives for regional based? 75a A. Yes. Again, we were up at about six until 2000, 2001 time frame. It went to thirteen, splitting that piece. So the growth from ’97 until when I left in 2004, was anywhere from about a half dozen of us to thirteen of us, fourteen of us. Q. So by 2001 or thereabouts it was up to thirteen territories? A. Yeah. I mean, it was growing at that rate, I mean, so I wouldn’t say -- I don’t know exactly when they populated every role, but I would say that’s about right. Q. Okay. In your sales position as a product sales executive for “Siemens, what was the _ highest commission tha. .»ou made as a regional PSE? A. On my W-2 or actually what -- Q. Just tell us what you made. A. Okay. Well, I mean, the highest year, 250. * OK [p.15] Q. In one year. A. That would be Christie Whelen and it was in the $4- to $500,000. @. Have you had the opportunity to see sales people in this PACS field receive large commissions in addition to what you just testified to? 76a A. I mean, yeah. I mean, I’ve -- between leaving Siemens and working and going into another company, McKesson, executives I’ve seen solution sales that people made commissions equivalent to a million bucks. THE COURT: I’m sorry, were you talking about Siemens or another company? THE WITNESS: Another company. THE COURT: All right. BY MR. BISHOP: @. Did you attend the weekly sales conferences that were held by telephone with Doug Spotts when he was the national sales manager for Siemens’ IM division? A. Yes. How did you do that? How did you attend? Via phone. Did you just call in? > O& FP Yeah, just call-in number. Q. Are you aware of any professional connection between Mr. Spotts and the IM Divisional Vice President, 77a [p.16] Tom Riesenberg? A. Yes. Q. What is that? A. They were friends at SMS and that’s how Doug got the job or Doug was pulled over by Tom Riesenberg to take the job after Bill Kelly, so. Q. What types of things go back to the weekly sales telephone conferences with Doug Spotts, what types of things were discussed during those weekly telephone calls? A. They were updates, they were policies. I mean, you know, if there was a particular project that we were working on, just a quick round table on those projects for Doug’s edification because he has to report up. Anything that’s going on as far as, you know, marketing efforts, any new things that we needed to be doing, any roles, you know, responsibilities, product updates, pricing changes, things of that nature. @. Was the scope of Mr. Wade Davis’s new role ever discussed during one of these conference calls? A. Yes. Q. And what was that new role? A. Basically the role was that we needed support at the national accounts layer for PACS and that Mr. Davis would be involved with that layer to help 78a [p.17} facilitate the business and grow the business. Q. And national accounts, what does that cover? A. National accounts basically covers group purchasing organizations, large entities, Tenants, Triads, organizational, large organizations that are health care based. And so the way Siemens is set up is that they correlate what they call executives and assign those to the upper layer of those organizations, so they call on those layers. They use specialists to help them with those sales. In this case Mr. Davis was going to be assigned to that team, particularly Frank Biddlestone. He was doing a lot of work with the Government, DOD, DIN PACS II was coming up. There were other GPOs that were going on. And so you had an account executive base that were calling on Novation and Tenants and Triads that were offering other Siemens’ products, but they were intimidated talking about PACS. And it was very difficult for us in the local level to motivate them to talk about it. Q. And you have testified here that the territory that you covered, described for shorthand purposes, as a southwestern territory. Did you understand Mr. Davis's territory -- what did you understand the scope of 79a [p.18] Mr. Davis’s territory to be? A. The national accounts. So anywhere national accounts went, which would cover the United States. Q. Do you recall if during this telephone conference where Mr. Spotts had announced Mr. Davis’s new role, do you recall if Mr. Davis’s entitlement to earn commissions was discussed? A. It was basically -- when it was announced that he would be in a sales role, you know, the first question out of any sales guy’s mouth is how is that going to impact my commission? So, is that going to be -- is that going to impact my commission? And the comment back was, it would not impact the local PSE’s commission. Q. Mr. Spotts told you that it would not impact -- Wade Davis’s commission would not impact -- A. That was communicated in the call. You have twelve sales people en the call, every one of them wanting to know point number one, is it ever going to impede my dollar? Q. Okay. Was it your understanding that Mr. Davis would be able to earn commissions of -- as a result of this phone conference, that he would be able to earn commissions as a PSE for national accounts? A. Yes. Q. Was it uncommon for Siemens to pay double 80a [p.19] commissions to its sales people in the IM division? A. Define double commissions. I mean, if a transaction went down the way Siemens organized was, if the AE and the PSE would be paid on a deal, so they would pay a sales guy and they would pay what would be the product guy. So that’s the structure of Siemens. So, if you’re saying two individuals getting paid for the same transaction, the answer is, yes. Q. And they were being paid on the same sales dollars? A. Same sales dollars. Q. What would you call that, a dual commission? A. I mean, I don’t know if it’s called dual commission or not. The reality is, if a transaction went down, both people received an amount of money for that transaction. Their scale is different from our scale. Q. If, for example, a sale was made to a particular hospital, would both the account executive and the regional PSE assigned to that hospital and that regional PSF’s territory receive a commission? A. Yes. Q. And it would not be a split commission where the PSE was taking part of the account executive’s commission, would it? 8la A. No, it would be according to your comp plan. x mK [p.35] Q. And he never volunteered any specifics to you, did he? A. No Q. How many years did you work for Siemens? A. Fifteen. Q. I think you testified the most you ever heard a PSE making was somewhere around the $4- to $500,000 range? A. In one year, yeah. Q. So you’ve never heard of a PSE making $1.77 million in one year? A. The answer is not to my knowledge. Q. Okay. A. Not at Siemens. Q. This conference call you mentioned with Mr. Spotts on the phone -- A. Uh-huh. Q. -- you remember Mr. Spotts saying it wouldn’t impact your compensation, right? 82a A. That’s correct. That was the message of the call. Q. And that was pretty much all you recall about that issue, right? A. That’s my concern. Q. And that’s what you remember about it because * ke ok [p.54] A. That’s correct. Q. To your knowledge, did all of the sales positions at Siemens provide the opportunity to -- let’s just say Siemens IM divisions, since that’s what we’re talking about. Did all of the sales positions at Siemens IM provide the opportunity to earn commissions? A. That’s correct. They wouldn’t have been classified as sales jobs at that point, they would have been more of a support role. Q. Was there ever a maximum amount of sales commissions that sales people were eligible to earn in the IM division? A. No. In fact, the year that I did so well, we had set a record of around $15 million that came out of my region. The next year one of my counterparts, a lady by the name of Christie Whelen, sold $24 million. I think she made close to a half a million dollars that year. And, again, in order to continue to maintain a good living with the company and to have these years where you're just completely blowing it out, making more 83a money than you could ever imagine could be real, you get paid the front end commission when the order gets booked and then the back end commission is paid when the customer pays their bill. So, I mean, essentially in that year where I [p.55] did $300,000, I had had a $200-plus thousand year the year before, and I had a lot of back-end commission that was coming in along with the front ends of what was sold that year. So even in my last year with Siemens, which was one of the worst that I'd had since I first started, I made $200,000. But to go along with that when you start looking at what some of the numbers that Christie had done, she was in a very good territory, had done really well, and I think she’s had a couple years running where she made over half a million dollars running because of back-end and front-end commissions that would run together. And, again, this is when the territories that shrunk in a three-state area. Q. Do you recall the period of time for which Doug Spotts was the national sales manager for the IM division? A. Absolutely. Q. And do you recall when that was? A. Date-wise, I would say shortly after Tom Riesenberg came on as the division manager. There was an individual who was in the role of the sales 84a manager position, a gentleman by the name of Bill Kelly, that Tom didn’t particularly lke too well. Tom was on board, you know, less than six months when he brought Doug in to [p.57] you know, the abuser -- MR. BISHOP: I didn’t anticipate him to answer that. THE COURT: Okay. (The bench conference was then concluded.) THE COURT: All right. Ladies and gentlemen of the jury, I told you at the beginning we would occasionally have conferences up here. That’s what’s called the sidebar. They come over to the side of the bench and we discuss an evidentiary point. Please continue, Mr. Bishop. MR. BISHOP: Thank you, Your Honor. BY MR. BISHOP: Q. At these weekly -- let me back up and ask you about the weekly telephone sales conferences that were held during Mr. Spotts’ tenure as the national sales manager for the 1M division. What sort of things were discussed in those telephone conferences? A. Basically what was the order of the day, oftentimes we talked about competitive stuff, as I alluded to earlier. Any new developments, any new 85a products that were coming out. Really, it was the medium of communication of headquarters and Doug being able to, you know, talk to his sales people, get everybody in a forum where we could have active discussion about what’s [p.58] going on in our lives. We might talk about a specific deal where there’s compensation involved. We may talk about a new product that was being introduced. There was not a whole lot of structure to it, other than it was whatever Deug wanted to talk about is what we were on the call for. Q. Do you remember a sales telephone conference when Doug Spotts was the national sales manager in which he informed the product sales executives about Wade Davis assuming a new position? A. I do. Q. Could you tell us what you recall of that telephone conference? A. You know, the essence of Wade coming into this role was essentially -- I had heard that this was happening, but this was the formal introduction that Wade was going to be taking on a new role within the sales group, and that essentially his role was to be handling national and government accounts. Upto this point we had not had an individual in the national accounts group whose expertise or focus was PACS. And as PACS became more of a mainstream product along with people buying CTs and MRIs and 86a angiography rooms, these hospitals also, within their GPO, those folks are saying two people like Premier and [p.59] Consortium GPOs. Hey, we’re thinking about buying PACS this year. So people like Premier and Novation and what have you, would go to their membership and say, okay, if we can sign up a Siemens, let’s say, and negotiate for you in advance what the discounts will be if you buy the Siemens product, is that something you would be interested in? And absolutely they all raise their hand and say, absolutely, we’d like for you to do that for us because it makes their lives easier. The GPOs are incentive to do that because basically then they can gain 3 percent on whatever is spent on that product, you know, through them. So, essentially the goal in bringing Wade into that capacity was we found oursclves locked out of a lot of businesses. More and more hospitals would join in with GPOs, they become compliant. Basically meaning, if you're going to be a member of Novation, you have to say to Novation, okay, I’m going to buy a certain percentage of everything I buy in my facility is going to go through your organization. So in order for them to be compliant, if Siemens wanted to sell PACS in any of these places that were members of these group purchasing organizations, you had to be on the contract. And so on more than one occasion it was brought to the attention of the folks in 87a [p.60] our group if we don’t have this license to hunt, so to speak, then the reality of it is, is regardless of what the radiology director wants or a radiologist of any of the clinicians within a facility, administration is going to tell them, I’m sorry, Siemens is not on that GPO contract. We’re compliant with them. We have to buy whoever they’ve selected or given us an opportunity to buy from. So when it was announced that Wade was taking on this role, we were all very excited about it, number one, because we were happy to have him back in the sales organization. Mr. Riesenberg had eliminated his position prior to that, which was where he was an OEM product manager dealing with computer radiography products and liaisoning to those external companies whose products we sold. Wade was now back into the sales organization and we were finally going to have an advocate on this GPO national accounts front that would be there to position our product and get us this hunting license so that for all intents if you’re dealing with a Novation customer, you're not locked out of the deal before you even walk through the door. Q. Okay. And what do you recall about this sales telephone conference that Doug Spotts told you about Wade coming on to assume this position? [p.61] A. Well, as sales people you can imagine that we’re all very keen to have an understanding of how something like this might impact our own commission. 88a So, the question was asked by Christie Whelen, does -- if Wade is working on a project and dealing with a national account, docs that somehow impact our own commission? Are we somehow going to have to give or will we be receiving less of a percentage on a dee: because Wade would also be receiving a percentage on a deal. And the response to that was, you know, no. Just as your account executives are comped on deals that you sell, so too are you. So that there’s a dual commission role served in that particular purpose. If it’s a Novation account that Wade has been working or a project that has been identified as a Novation customer, then Wade would get a piece of that, so would we, so would be the account executive. Q. Prior to Wade being announced by Doug Spotts as the national accovats product sales executive, during any of the time that you were working in the IM division from ’96 on, had there ever been a national accounts product sales executive in the IM division? A. No. Q. So what was your understanding of the territory that Wade was going to cover? [p.62} A. Itencompassed, you know, the entire geography of the United States, as I know it. Q. Was ther2 any other product sales executive at that time when Wade came on as the PSE for national accounts who had a national territory? 89a A. No, not to my knowledge. Not selling PACS. Now, granted, there were other national accounts, people on the team and they had other expertise, but not in PACS, no. Q. When you say other national accounts people, you're talking about Siemens globally, not the IM division? A. Correct. Absolutely. Q. Did you understand when Mr. Spotts answered that question the way you've just testified that he did, Christie Whelen’s question about how it was going to affect their commissions and his commission was going to affect your commission, the regional product sales executives commissions, did you understand that that meant that Wade was not going to be splitting your commissions? A. Correct. You know, again, the response that I would have expected had Doug wanted to indicate that would be, you know, youre paid 2.5 percent of a deal, okay? If it involves a project that Wade is engaged in [p.63] or then, you know, your commission is going to be cut down to a percent-and-a-half because we have to give him a percent. So I can only assume that if there was going to be some sort of a decrease in what we’re going to get paid, that Doug would ':ave responded in that manner. Q. What did you understand -- you've already anticipated me a little bit in your earlier answer about 90a the national accounts product sales executive position announcement. But what did you understand Wade’s responsibilities would be, anything other than or in addition to what you’ve already testified? A. You know, government business was equally identified. You know, the reality of it is that we all found ourselves in a situation, especially in positions like what Wade had where he was a headquarters guy, where you're really at the whim of the director of the division to, really, he could put you really wherever he wanted when you worked in that capacity. And when he was the OEM product manager, essentially Tom Riesenberg was the fellow he reported to. When he got transferred over into sales, he ultimately reported into Doug Spotts and then above Doug was a gentleman by the name of Gordon Rice, who had national sales manager responsibility for all product lines that Siemens sells. You know, so I don’t know if I [p.88] very example that I talked about. Q. And he treated you fairly, didn’t he? A. Doug was a fair boss. Q. And you don’t rem [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0849%3A2. Public record. Not legal advice.