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Cooper v. Meritor, Inc.

United States District Court, N.D. Mississippi, Greenville Division

February 11, 2019

BRENDA J. COOPER, et al. PLAINTIFFS
v.
MERITOR, INC., et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court in these consolidated cases is “Defendants Meritor Inc., The Boeing Company, and Rockwell Automation, Inc.'s Motion in Limine to Exclude Tetra Tech's Final Expanded Site Inspection Report, Revision 1.” Doc. #706.

         I Relevant Background

         These consolidated cases involve claims for property damage arising from decades of operation of a manufacturing facility (“Facility”) in Grenada, Mississippi. The plaintiffs, all property owners or former property owners of land in Grenada's Eastern Heights subdivision, allege that the defendants negligently operated the Facility and that such negligence resulted in the contamination of Eastern Heights.

         On July 3, 2017, Meritor, Inc., provided to the plaintiffs “Defendant Meritor, Inc.'s Seventh Supplement to its Initial Disclosures, ” which included an April 2017 “Final Expanded Site Inspection Report, Revision 1” prepared by Tetra Tech, Inc. According to the report, Tetra Tech was retained by the United States Environmental Protection Agency (“EPA”) “to conduct an expanded site inspection (ESI)” at the Grenada facility site, and “[t]he primary objective of an ESI is to evaluate whether a site has the potential to be included on the National Priorities List.”[1] Doc. #618-2 at § 1.0. Information gathered during an ESI is used to generate a “preliminary Hazard Ranking System (HRS) score, ” which the EPA uses as “the primary criterion … to decide whether a site should be placed on the NPL.” Id. This process involves, among other things, the evaluation of “current site conditions, ” “observed releases to the ground water, ” “surface water migration pathways, ” and “target populations for the ground water and surface water migration pathways.” Id.

         Of relevance here, the Tetra Tech Report includes an analysis of sampling conducted in and around the Eastern Heights neighborhood. The plaintiffs have relied on this document in numerous briefs related to dispositive and expert motions.

         On May 29, 2018, Meritor, the Boeing Company, and Rockwell Automation, Inc. (“Meritor Defendants”) filed a motion to exclude the Tetra Tech Report. Doc. #706. The plaintiffs responded in opposition to the motion on June 8, 2018. Doc. #734. The Meritor Defendants replied on June 15, 2018. Doc. #743.

         II Analysis

         The Meritor Defendants argue that the Tetra Tech Report is inadmissible because “it does not meet the [Federal Rule of Evidence] 803(8) test for trustworthiness” and because “the unverified opinions of an EPA contractor” may create a “prejudicial effect … in these proceedings.”[2] Doc. #707 at 4.

         There is no dispute that the Tetra Tech Report is hearsay and thus inadmissible unless the plaintiffs can show that it falls under one of Rule 803's enumerated exceptions. See United States v. Reed, 908 F.3d 102, 120 (5th Cir. 2018) (proponent of evidence had burden to establish hearsay exception). There is also no dispute that the only exception relevant here is Rule 803(8), the exception governing the admissibility of public records.[3]

         Rule 803(8) provides:

A record or statement of a public office [is not excludable under the rule against hearsay] if:
(A) it sets out:
(i) the office's ...

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