United States District Court, N.D. Mississippi, Greenville Division
BRENDA J. COOPER, et al. PLAINTIFFS
MERITOR, INC., et al. DEFENDANTS
M. Brown, United States District Judge.
the Court in these consolidated cases is “Defendants
Meritor, Inc., The Boeing Company, and Rockwell Automation,
Inc.'s Motion in Limine to Exclude 2015 Statement of
Theodore Berry.” Doc. #704.
February 20, 2015, Marvin Reid Stanford, a former attorney
for the plaintiffs, conducted an examination under oath of
Theodore Berry, Jr., during which Stanford asked Berry
numerous questions regarding his employment as a member of a
clean-up crew with a wheel-cover facility
(“Facility”) located in Grenada, Mississippi.
Doc. #704-4. Specifically, Stanford inquired whether the
clean-up crew dumped “sludge” on the land that
would later become the neighborhood known as Eastern Heights.
Id. at 25-26. Berry responded that chemicals were
dumped in the area. Id.
a year after Berry's examination, on March 16, 2016,
Brenda Cooper, Sylvia Caffey, Margaret Odems, Bernice
Richardson, Dora Ward, Rosie Brady, Pearl Seldon, Betty
Phillips, Alice Crumley, and Sylvia Cunningham filed a
complaint in the United States District Court for the
Northern District of Mississippi against Rockwell
International Corporation and the Randall Division of
Textron, Inc. Doc. #1. On June 30, 2016, United States
Magistrate Judge Jane M. Virden consolidated the case with
four member cases for purposes of discovery and motion
practice. Doc. #41. The day after consolidation, the
plaintiffs filed an amended complaint against Meritor, Inc.,
Rockwell Automation Inc., The Boeing Company (collectively,
“Meritor Defendants”), and Textron, Inc. Doc.
amended complaint, the plaintiffs seek damages for injuries
to their homes and property caused by the Facility's
operation in Grenada. The plaintiffs allege that they
“are residents or former residents of a neighborhood
adjacent” to the Facility, specifically the
“Eastern Heights” neighborhood, and that the
Facility was operated by (1) Rockwell International
Corporation, the predecessor to Rockwell Automation, Inc.,
which itself is a predecessor to The Boeing Company, from
1965 until 1985; and (2) Randall Wheel Trim, a subsidiary of
Textron, Inc., from 1985 until the present. The plaintiffs
further allege that the Facility, which was used to
manufacture chrome-plated wheel covers, utilized numerous
chemicals, including hexavalent chromium and
trichloroethylene, and that these chemicals were illegally
placed into the environment, including the air and
groundwater, with the defendants concealing such disposal.
in the litigation, the Meritor Defendants, in their
Daubert motions and summary judgment briefing, cited
Berry's 2015 examination numerous times for the
proposition that any dumping of industrial wastes outside the
relevant Buffing Compound Disposal Area “was far away,
toward the Yalobusha River.” See, e.g., Doc.
#551 at 16; Doc. #559 at 16; Doc. #570 at 34. As support for
the proposition, despite attaching excerpts of numerous other
documents,  the Meritor Defendants attached
Berry's 2015 examination in its entirety. See,
e.g., Doc. #568-57; Doc. #569-16.
plaintiffs cited Berry's 2015 examination in various
summary judgment and Daubert briefs for four factual
contentions: (1) Berry was employed at the Facility to handle
and dispose of industrial waste; (2) Berry began working at
the Facility in the 1960s and did so for approximately
fifteen years; (3) Berry and other employees dumped
“chemicals and buffing compound sludge” at
various sites selected by their supervisor; and (4) Berry
dumped industrial waste on the land which became the Eastern
Heights neighborhood. See, e.g., Doc. #619. On May
29, 2018, the Meritor Defendants filed this motion to exclude
certain statements in Berry's 2015 examination. Doc.
#704. The plaintiffs responded in opposition to the motion on
June 7, 2018. Doc. #733. The Meritor Defendants replied on
June 14, 2018. Doc. #742.
Meritor Defendants' motion asks the Court to exclude as
inadmissible hearsay “the Examination Under Oath of
Theodore Berry, attached to Plaintiffs' oppositions to
Defendants' motions for partial summary judgment on
punitive damages, for summary judgment, and Daubert
motions.” Doc. #704 at 3. However, the memorandum
accompanying the motion asks only that the Court find the
document “inadmissible as improper summary judgment
evidence and strike it from the record of these
proceedings.” Doc. #705 at 13. In response, the
plaintiffs argue that the Meritor Defendants waived any
argument as to the admissibility of Berry's 2015
examination when they cited it in support of their various
motions. Doc. #733 at 10. In reply, the Meritor Defendants
argue that their use of portions of Berry's 2015
examination for specific purposes did not waive their right
to seek exclusion of other portions of it. Doc. #742 at 2-3.
Rule 801 of the Federal Rules of Evidence, hearsay is defined
as a “statement that … the declarant does not
make while testifying at the current trial or hearing [and] a
party offers in evidence to prove the truth of the matter
asserted in the statement.” “Once a party has
properly objected to evidence as inadmissible hearsay, the
burden shifts to the proponent of the evidence to show, by a
preponderance of the evidence, that the evidence falls within
an exclusion or exception to the hearsay rule and was
therefore admissible.” Loomis v. Starkville Miss.
Pub. Sch. Dist., 150 F.Supp.3d 730, 742-43 (N.D. Miss.
2015) (internal quotation marks and alterations omitted).
is no dispute that Berry's 2015 examination is hearsay.
The only question is whether it is admissible for purposes of
this Court deciding the Daube ...