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Cooper v. Meritor, Inc.

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

March 4, 2019

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

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         This environmental case is before the Court on numerous motions in limine filed by the parties.

         I Procedural History

         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[1] for purposes of discovery and motion practice.[2] Doc. #41. The day after consolidation, the plaintiffs filed an amended complaint against Meritor, Inc., Rockwell Automation Inc., The Boeing Company, and Textron, Inc. Doc. #43.

         In the amended complaint, the plaintiffs, residents or former residents of the Eastern Heights neighborhood (“Subdivision”) in Grenada, Mississippi, seek damages for injuries to their homes and property caused by the operation of a neighboring industrial facility (“Facility”). The plaintiffs allege 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. Doc. #43 at 1-6, 9. The plaintiffs also allege that the Facility, which was used to manufacture chrome-plated wheel covers, utilized numerous chemicals, including hexavalent chromium and trichloroethylene (“TCE”), and that these chemicals were illegally dumped into the environment, including the air and groundwater, with the defendants concealing such disposal.

         In preparation for trial, Meritor, Boeing, and Rockwell (“Meritor Defendants”) filed eight motions in limine. Docs. #757, 759, 761, 765, 768, 770, 772, 774. Textron filed a single omnibus motion in limine, Doc. #763, as did the plaintiffs, Doc. #780. The briefing period for all motions in limine has concluded.

         II Motion in Limine Standard

         “The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. Evidence should not be excluded in limine unless it is clearly inadmissible on all potential grounds.” Harkness v. Bauhaus U.S.A., Inc., No. 3:13-cv-00129, 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015).

         “The movant bears the burden of demonstrating that the evidence is inadmissible on any relevant ground ….” Leonard v. Stemtech Health Scis., Inc., 981 F.Supp.2d 273, 276 (D. Del. 2013). Accordingly, “the court may deny a motion in limine when it lacks the necessary specificity with respect to the evidence to be excluded.” Id. In this regard, “[e]videntiary rulings, especially ones that encompass broad classes of evidence, should generally be deferred until trial to allow for the resolution of questions of foundation, relevancy, and potential prejudice in proper context.” Id.

         III Meritor Defendants' Motions in Limine

         The Meritor Defendants filed nine separate motions in limine seeking to exclude, respectively: (1) references to evidence relating to punitive damages, Doc. #757; (2) references to the Environmental Protection Agency's National Priorities List, Doc. #759; (3) certain statements of residents and former residents of the Subdivision and of former workers at the Facility, Doc. #761; (4) the testimony of Shay Harris, Doc. #765; (5) undisclosed and unsupported expert opinions, Doc. #768; (6) various pieces of allegedly prejudicial evidence, Doc. #770; (7) the testimony of undisclosed witnesses, Doc. #772; (8) additional pieces of allegedly irrelevant evidence, Doc. #774; and (9) evidence related to “stigma, ” Doc. #776.

         A. Punitive Damages

         The Meritor Defendants argue that “[t]he Mississippi Legislature has provided a substantive right to a bifurcated trial” and that “[b]ased on that right, evidence related to the punitive damages phase is not admissible during the liability phase of trial.” Doc. #758 at 3. The Meritor Defendants thus seek exclusion from the liability and compensatory damages phase of trial “[a]ny evidence of the Defendants' alleged bad character, that the Defendants acted recklessly, were grossly negligent, acted in bad faith, or intentionally concealed facts from regulatory agencies ….” Id. The plaintiffs do not dispute that punitive damages evidence is inadmissible during the liability and compensatory damages phase but contend that certain evidence related to punitive damages, such as “evidence that the Defendants acted recklessly, intentionally, or with gross negligence, or that the Defendants concealed certain facts relating to hazardous wastes” is properly admitted during the liability phase as “probative of the elements of the causes of action asserted by Plaintiffs.” Doc. #782 at 5.

         This Court has previously explained that the Mississippi state statute requiring bifurcation of a punitive damages phase does not compel bifurcation in federal court. Dykes v. Cleveland Nursing & Rehab. Ctr., No. 4:15-cv-76, 2018 WL 2967627, at *2 (N.D. Miss. June 12, 2018). However, this Court, in the exercise of its discretion, has determined that trial in this case should be bifurcated into a liability and compensatory damages phase and a punitive damages phase. Where a district court has exercised its discretion to bifurcate a punitive damage phase, it follows that evidence relevant only to an award of punitive damages is irrelevant at other stages. See, e.g., Landrum v. Conseco Life Ins. Co., No. 1:12-cv-5, 2014 WL 28861, at *3 (S.D.Miss. Jan. 2, 2014). Of course, evidence otherwise relevant to liability or compensatory damages is not rendered inadmissible merely because it is also relevant to the issue of punitive damages. Bossier v. State Farm Fire & Cas. Co., 2009 WL 3281128, at *1-2 (S.D.Miss. Oct. 9, 2009).

         The Meritor Defendants appear to base their motion only on the erroneous assumption that “evidence related to punitive damages issues” should be excluded. Doc. #758 at 3. This argument includes no discussion of the potential relevance of such evidence to the plaintiffs' claims. This omission is particularly glaring where at least one of the plaintiffs' claims —intentional infliction of emotional distress—requires an inquiry into the egregiousness of a defendant's conduct. See Speed v. Scott, 787 So.2d 626, 630 (Miss. 2001) (“To justify a finding that [intentional infliction of emotional distress] has occurred, the defendant's conduct must be wanton and wilful and it would evoke outrage or revulsion.”). Because the defendants have failed to show that any evidence related to the egregiousness of their conduct will not be admissible for any purpose, their motion in limine regarding punitive damages will be denied.

         B. EPA National Priorities List and Related Comments

         The Meritor Defendants seek to exclude: (1) out-of-court statements by Franklin Hill, an Environmental Protection Agency (“EPA”) Regional Superfund Director; and (2) evidence related to the Facility's proposed listing as an EPA Superfund site, also known as a listing on the National Priorities List (“NPL”).

         1. Hill statements

         The Meritor Defendants argue that statements made by Hill criticizing the EPA's remediation efforts should be excluded as inadmissible hearsay and as unfairly prejudicial. Doc. #760 at 8-9. The plaintiffs respond that the probative value of the statements outweighs any unfair prejudice and that the statements, which were allegedly made at a community meeting in Hill's official capacity as director, are admissible under the public records exception to the hearsay rule. Doc. #787 at 4-5. The Meritor Defendants did not respond to this argument.

         The Federal Rules of Evidence exempt from the rule against hearsay:

         A record or statement of a public office if:

(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Fed. R. Evid. 803(8).

At common law, the public records exception applied only to written hearsay but rule 803(8) refers to “statements” as well as “records, ” and hence could be interpreted to allow the reception of oral statements. However, the advisory committee's note contains no indication of intent to broaden the exception in this respect, and its reference to “the unlikelihood that [the public official] will remember details independently of the record' as a justification for the exception suggests that the committee was envisioning recorded hearsay.”

         Roger Park, A Subject Matter Approach to Hearsay Reform, 86 Mich. L. Rev. 51, 122 n.79 (1987) (citations omitted). Consistent with this analysis, courts have held that Rule 803(8) does not apply to oral statements. See Quiles v. Sikorsky, 84 F.Supp.2d 154, 162 (D. Mass. 1999) (“[T]he government document exception is of no use here because Thach's statements relate what was told to him personally [by government officials], rather than reflecting government documents he has seen that are independently admissible.”); Little v. Commissioner, T.C.M. 1996-270 (T.C. 1996) (“[W]e think the phrase a ‘statement … by a public agency' does not include an oral statement by an individual agency employee; instead, we think it refers to a more formal, written document which was reviewed, approved, or subject to a clearance process of some sort that transforms it from a statement by an employee of an agency to a statement ‘by' the agency.”). The Court agrees with this authority and concludes that an oral statement of an agency representative does not qualify as a public record. Accordingly, the motion in limine will be granted with respect to Hill's public statements.

         2. National Priorities List

         The Meritor Defendants argue that evidence related to the Facility's listing on the NPL should be excluded under Federal Rule of Evidence 403 as unfairly prejudicial because “a site being listed on the NPL does not assign liability to a party. It does not even confirm that remediation is necessary.”[3] Doc. #760 at 4-7. The plaintiffs respond that the “Final Support Document [listing the Facility] contains a number of statements and findings by the EPA that provide critical clarification on the [actual] positions that have been taken by the agency” and that “[t]hese statements and findings … relate directly to … pending matters.” Doc. # 858 at 3.

         Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” “[O]nly unfair prejudice, substantially outweighing probative value … permits exclusion of relevant matter under Rule 403.” United States v. Barnes, 803 F.3d 209, 221 (5th Cir. 2015) (emphasis omitted). In this regard, “Rule 403 is rarely appropriate as a basis of pre-trial exclusion, because a judge cannot ascertain potential relevance until that judge has a virtual surrogate for a trial record.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 747 (3d Cir. 1994).

         In considering the parties' arguments, the Court acknowledges that the existence of a NPL listing should ordinarily be excluded in a toxic tort case “as inherently prejudicial and of marginal relevance.” O'Dell v. Hercules, Inc., 687 F.Supp. 450, 453-54 (E.D. Ark. 1988). However, as argued by the plaintiffs, it is not the probative value of the listing itself that justifies admission but the reasons for the listing set forth in the Final Support Document. These reasons, which include opinions on numerous issues relevant to this litigation independent of any liability determination, hold an indisputably high probative value in this action.[4] This probative value far outweighs the risk of unfair prejudice, which this Court believes can be cured by a proper limiting instruction. Accordingly, the motion in limine will be denied to the extent it seeks exclusion of evidence relating to the Facility's NPL listing.

         C. Former Statements

         Citing the rule against hearsay, the Meritor Defendants move to exclude certain out-of-court statements made by residents and former residents of the Subdivision and by former employees of the Facility. Doc. #761. The plaintiffs respond that “[w]ith the exceptions o[f u]tilizing the … statements … at trial to establish the witness's recorded recollection under [Federal Rule of Evidence] 803 (5) or to impeach the witness, Plaintiffs will not offer into evidence the … statements or use the same at trial.” Doc. #790 at 2.

         There is no dispute that hearsay may be introduced for impeachment purposes. See Fed. R. Evid. 613. And, a former statement of a witness is admissible despite the rule against hearsay when it (1) “is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;” (2) “was made or adopted by the witness when the matter was fresh in the witness's memory;” and (3) “accurately reflects the witness's knowledge.” Fed.R.Evid. 803(5). The Meritor Defendants did not argue that the challenged statements would be inadmissible for impeachment purposes or as recorded recollections.[5] Accordingly, the motion in limine will be denied to the extent it seeks exclusion of the statements for such purposes.

         D. Testimony of Shay Harris

         The Meritor Defendants seek exclusion of the trial testimony of Shay Harris, a paid advocate for the plaintiffs, on the grounds that Harris is biased and lacks personal knowledge about the case. Doc. #765.

         As an initial matter, the Meritor Defendants cite no authority, and this Court is aware of none, which holds that the bias of a witness requires exclusion from trial. To the contrary, the weight of authority holds that the bias of a witness is properly considered by the factfinder. See, e.g., Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088, 1094 (5th Cir. 1981) (“[A]s an interested witness, it is for the jury to evaluate the credibility of his testimony.”); Jones v. Prod. Mgmt. Indus. L.L.C., No. 04-0102, 2006 WL 6899664, at *1 (E.D. La. July 21, 2006) (“As to plaintiff's complaint that Dr. Applebaum is biased or prejudiced in his medical practice, such information is grist for the cross examination mill.”); Lee v. City of Dallas, No. 3:05-cv-0226, 2006 WL 8437466, at *4 (N.D. Tex. July 10, 2006) (“There is no legal basis that requires a court to exclude the testimony of an interested witness.”). Accordingly, Harris' bias does not provide a basis for exclusion.

         With regard to Harris' personal knowledge, the plaintiffs submit that “Harris has personal knowledge of the Eastern Heights subdivision, meetings with EPA personnel in Grenada County, Mississippi, interactions with the media concerning the Grenada Facility and the contamination associated with the Grenada Facility, information concerning the Plaintiffs' retention of their attorneys and other potentially relevant information.” Doc. #785 at 3. They argue this knowledge is relevant to this case because the Meritor Defendants have “announc[ed] that they will attempt to question the Plaintiffs … about the details and circumstances of the retention of the Plaintiffs' attorneys and/or the suspension of attorney Reid Stanford.” Id. at 3-4. More broadly, the plaintiffs argue that “it is currently unknown what role … Harris may play at the trial of this matter” and that “[t]he Defendants' motion is an obvious attempt to glean information about the Plaintiffs' trial strategy.” Id. at 3.

         The plaintiffs are correct that they are under no obligation to provide to the defendants a summary of Harris' testimony in order to defeat the motion in limine. To the contrary, and as quoted above, the movant seeking exclusion must show that the proffered evidence is inadmissible on all possible grounds. Leonard, 981 F.Supp.2d at 276. Here, the defendants have moved to exclude Harris from testifying on any possible subject relevant to this action. This Court is in no position to conclude that Harris, an investigator who has inquired into the issues surrounding this litigation, is unable to testify on any possible subject. Accordingly, the motion in limine will be denied. See Bryant v. Trexler Trucking, Inc., No. 4:11-cv-02254, 2013 WL 643768, at *8 (D.S.C. Feb. 21, 2013) (allowing proffer at trial where motion and response were “unclear as to what other reason, if any, Plaintiff may call” a witness).

         E. Expert Testimony

         The defendants seek to exclude from trial undisclosed expert opinions and “evidence of, testimony regarding, or reference to scientific issues unsupported by expert opinion.” Doc. #769 at 10.

         1. Undisclosed opinion testimony

         The Meritor Defendants argue the plaintiffs “should be precluded from referencing or introducing evidence related to the unsubstantiated, tardy opinion [that a] ‘leaky gas tank' or anything else from the Facility [was] the source of any alleged BTEX on or in Plaintiffs' properties.” Doc. #769 at 8. They contend that “[t]his new, speculative opinion was not in any expert report, nor was any supplement provided ….” Id. The plaintiffs respond that the motion amounts to an untimely Daubert motion and is “premature or moot.” Doc. #796 at 3-4, 8.

         As an initial matter, the Meritor Defendants seek exclusion of the BTEX-related opinions as a discovery sanction under Federal Rule of Civil Procedure 37(c), see Doc. #769 at 7, not under Federal Rule of Evidence 702 or under Daubert. Thus, the motion is not a Daubert motion and is not untimely. See Isola USA Corp. v. Taiwan Union Tech. Corp., No. 2:12-cv-1361, 2015 WL 12555874, at *2 (D. Ariz. Aug. 13, 2015) (Rule 37 motion not Daubert motion); see generally Dinenno v. Lucky Fin Water Sports, LLC, No. 08-5903, 2011 WL 689584, at *3 n.8 (D.N.J. Feb. 17, 2011) (noting motion was not Daubert motion when it did “not attack [witness'] qualifications, methodology, or application of scientific principles to the facts of th[e] case”).

         With regard to the motion's timeliness, the plaintiffs argue the motion is “premature or moot until such time as the plaintiffs call any witness to address BTEX or attempt to offer any opinions regarding BTEX and the Court is able to consider such proffer in context.” Doc. #796 at 8. While, generally “motions in limine should be narrowly tailored to address issues which will likely arise at trial, ”[6] the plaintiffs cite no authority for the proposition that a court must wait until an actual proffer to rule on the admissibility of evidence. Such a rule would preclude the filing of motions in limine in their entirety. Rather, as quoted above, an in limine ruling may be appropriate when a movant shows that a piece of evidence is inadmissible on all possible grounds.

         Rule 37 is clear that the failure to adequately disclose an expert opinion precludes admission of the opinion at trial “unless the failure [to disclose] was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The Meritor Defendants seek exclusion of a broad class of opinions (undisclosed opinions related to BTEX from the Facility) but have failed to identify any specific opinion they are seeking to exclude. Without such identification, this Court is in no position to conclude whether the alleged failure to disclose was substantially justified or harmless. Because the Court is unable to make such a determination, the motion in limine will be denied in this regard.

         2. Unsupported opinions

         The Meritor Defendants represent that they “believe that Plaintiffs may attempt to introduce evidence or testimony related to vapor intrusion …, alleged air contamination, and the source of any alleged chemical contamination on any Plaintiff's property.” Doc. #769 at 9. They contend any evidence related to these issues “would be mere speculation” because the plaintiffs “withdrew their only air modelling expert” and the plaintiffs' “vapor intrusion expert, [James] Fineis, admitted in his sworn testimony that he could not opine on any vapor intrusion pathway for any Plaintiff's property, nor could he opine on the source of any alleged contamination underneath or in any Plaintiff's property.” Id. Put differently, the Meritor Defendants seem to argue that because the plaintiffs lack the ability to establish causation with respect to air contamination or vapor intrusion (air contamination in buildings), all such evidence should be excluded.

         The Meritor Defendants are correct that the plaintiffs withdrew their only air modeling expert. Furthermore, this Court recently excluded Fineis' opinions related to vapor intrusion. Doc. #850 at 73. While the lack of an air modeling expert and the exclusion of Fineis' opinions will undoubtedly present problems in the plaintiffs' case, the Meritor Defendants made no effort to support their conclusory assertion that the plaintiffs are unable to prove causation in the absence of such evidence, and the Court is disinclined to preclude a large portion of the plaintiffs' case based on a skeletal argument. Indeed, as discussed in more detail below, Mississippi law allows a plaintiff to show causation with regard to air contamination without the aid of expert testimony. Accordingly, the motion in limine will be denied.

         F. “Unfairly Prejudicial Evidence, Testimony and Arguments”

         The Meritor Defendants seek exclusion of certain arguments and evidence as unfairly prejudicial.

         1. “Criminal, ” “evil” or “similar phrases”

         The Meritor Defendants argue that “religious and moral discussion” should be excluded from trial because it “will suggest to jurors that they apply a standard of judgment beyond that required by law and should not be permitted.” Doc. #771 at 3-4. The plaintiffs respond that “[w]hether any words used in argument or otherwise at trial are prejudicial depends on the context in which they are used and the evidence to which such words refer. Therefore, a contemporaneous objection during trial is the better and more appropriate means to assuage the Defendants' concern.” Doc. #793 at 2. The plaintiffs also argue that some evidence relates to alleged criminality of the defendants' conduct and that this evidence goes to the “perceived egregiousness of Defendants' conduct, which would be pertinent to the Plaintiffs' claim for intentional infliction of emotional distress.” Id. at 3.

         As discussed above, evidence (as distinct from argument) generally should not be excluded pre-trial as unduly prejudicial because Rule 403 balancing is more appropriate with an evidentiary record. Thus, to the extent the Meritor Defendants seek exclusion of evidence related to criminality, the Court will deny the motion in limine.

         With regard to argument, it is axiomatic that “[t]he jury may not return a verdict based on personal interest, bias or prejudice and an argument asking it to do so is improper.” Caudle v. District of Columbia, 707 F.3d 354, 359 (D.C. Cir. 2013). Thus, “attempts to appeal to a juror's bias or to prejudice a particular party, as well as statements made suggesting jurors apply a ‘higher authority' are inappropriate.”[7] Whitfield v. Harris, 474 F.Supp.2d 822, 823 (N.D. Miss. 2007). However, not all references to religion are necessarily improper appeals. See generally United States v. Marron, 658 Fed.Appx. 692, 694 (5th Cir. 2016) (“The prosecutor's reference to the ‘devil' was rhetorical rather than an improper religious reference or a targeted attack; the prosecutor did not directly refer to counsel or Marron or depict them as demonic but quoted a purported aphorism that the prosecutor believed to embody his argument that the jury should not be distracted by irrelevant issues.”).

         Given this authority, the Court does not believe that a wholesale ban on moral or religious words is appropriate. Rather, the Court will decide the propriety of such references based on the context of their use.[8] The motion in limine, therefore, will be denied in this respect.

         2. “Environmental justice”

         The Meritor Defendants seek exclusion of evidence and testimony “as to the concept of ‘environmental justice, '” which they contend is an “appeal to the personal interest and bias of a jury ….” Doc. #771 at 4. The plaintiffs respond that “a request to the jury to render justice for the Plaintiffs in this environmental case, whether phrased as ‘environmental justice' or not, does not constitute a prohibited Golden Rule argument.” Doc. #793 at 4.

         A prohibited “Golden Rule” argument asks “jury members to put themselves in the shoes of the plaintiff and do unto him as they would have done unto them under similar circumstances.” Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 180 (5th Cir. 2005) (quotation marks omitted). While “there is no universally accepted definition of environmental justice, ” the “concept … involves a grassroots movement that fights for the equal treatment of citizens with respect to protections under environmental, health, energy, and land use regulations. In general, the movement questions environmental decisions of private industry and governmental bodies that have potentially serious equity implications ….” Nicholas C. Christiansen, Environmental Justice: Deciphering the Maze of a Private Right of Action, 81 Miss. L.J. 843, 844-45 (2012) (footnote and quotation marks omitted). Put differently, the concept of environmental justice argues that decisions (whether public or private) resulted in unfair treatment to a group of people. This notion, which is the crux of the plaintiffs' case, in no way invokes the Golden Rule. Accordingly, the motion in limine will be denied to the extent it seeks exclusion of the term “environmental justice.”

         3. Other environmental sites

         The Meritor Defendants “request that the Court prohibit Plaintiffs from introducing any evidence, arguing, referring to, or commenting on Flint, Michigan, Erin Brockovich, or any other environmental site” on the grounds that such evidence is irrelevant and unfairly prejudicial. Doc. #771 at 6. The plaintiffs, relying on state law, argue they should be “afforded wide latitude in … analogizing the evidence introduced in this action to other well-known instances of contamination, such as that involved in the popular Erin Brockovich movie ….”[9] Doc. #793 at 5.

         As explained above, state law does not govern the propriety of arguments in federal court. Accordingly, the Court gives no weight to plaintiffs' contention that references to other toxic tort cases would be allowed under state law. Federal courts have generally excluded references to unrelated instances of similar conduct. See, e.g., Gomez v. City of Chicago, No. 13-C-05303, 2015 WL 13651138, at *9 (N.D. Ill. June 29, 2015) (in police misconduct case, excluding “evidence [and] arguments about other allegations of police misconduct”); In re Homestore.com, Inc., No. 01-11115, 2011 WL 291176, at *12 (C.D. Cal. Jan. 25, 2011) (granting motion to “exclude evidence or references to unrelated corporate ‘scandals', such as the Enron scandal or the Madoff scandal”). The Court sees no reason to depart from this general approach and, therefore, will grant the motion in limine in this regard.[10]

         4. References to “hazardous waste”

         The Meritor Defendants argue that the EPA did not codify the term “hazardous waste” until 1985 and that, therefore, the Court should exclude reference “to ‘hazardous waste' as to the Facility's waste streams before the existence of regulatory definitions and requirements.” Doc. #771 at 8. The plaintiffs and Textron object to this request. Doc. #800 at 1-4; Doc. #793 at 6-7. Textron argues that the phrase “hazardous waste” existed before 1985 and that if the motion in limine were granted “the jury would only hear that Textron produced ‘hazardous waste,' when in fact the same chemicals were utilized, and the same waste produced, under both the Meritor Defendants' and Textron's ownership of the Facility.” Doc. #800 at 1-2. The plaintiffs argue that “[i]t is of little consequence whether any federal regulation declared the … waste products to be hazardous, because the employees … had actual knowledge that the wastes were hazardous.” Doc. #793 at 6.

         “[T]he fact that a term-of-art meaning exists does not preclude a common meaning of that phrase.” See Solely v. Wasserman, No. 08-civ-9262, 2013 WL 3185555, at *7 (S.D.N.Y. June 21, 2013). Accordingly, when a term has both a legal and common meaning, pre-trial exclusion is inappropriate. Id. However, if at trial the common use of the term “appears to be confusing or unduly prejudicial, the Court may [exclude] or provide a limiting instruction.” Id. Following this approach, since the term “hazardous waste” has both common and legal meanings, the Court will deny the Meritor Defendants' motion in limine.

         5. Control, payment, or influence regarding EPA and MDEQ

         The Meritor Defendants seek to exclude as unduly prejudicial evidence or argument that the defendants or their lawyers have exerted improper influence over the EPA and the MDEQ. Doc. #771 at 8-9. The plaintiffs respond that they will not offer evidence that the EPA or MDEQ have been paid but contend that, to the extent the defendants intend to offer evidence of EPA and MDEQ actions, the plaintiffs are entitled to call into question the motivation for such decisions. Doc. #793 at 7-9. The Court agrees with the plaintiffs.

         It is axiomatic that evidence is admissible “if it tends to show bias [of a witness] in favor of or against a party.” United States v. Martinez, 962 F.2d 1161, 1165 (5th Cir. 1992). Similarly, evidence of bias is admissible to call into question the bases for government action which is relevant to a claim or defense. See, e.g., Graham v. Bennett, No. 04-2136, 2007 WL 781763, at *1 (C.D. Ill. Mar. 12, 2007) (evidence of bias of authors of government investigatory report admissible). To the extent the defendants rely on actions taken by the EPA or the MDEQ, such as the issuance of various reports, the plaintiffs are entitled to call into question the motivation for such actions.[11]

         6. Former employment of attorneys with MDEQ and EPA

         The Meritor Defendants, citing unfair prejudice, seek exclusion of references that certain attorneys for Butler Snow—a firm representing the Meritor Defendants—formerly worked for the MDEQ or the EPA. Doc. #771 at 10-11. The plaintiffs respond that “[s]uch relationships are relevant, particularly on the issue of bias of the witnesses at trial, and it would be unfair to prevent Plaintiffs from establishing such biases.” Doc. #793 at 9.

         This Court has concluded that the potential influence of the defendants and their counsel over the MDEQ and EPA represents a relevant issue for trial. To the extent the former employment of certain attorneys for the Meritor Defendants establishes connections between the defendants and the MDEQ and the EPA, the probative value of such employment outweighs any unfair prejudice. Accordingly, the motion in limine will be denied in this respect.

         7. Jimmy Palmer and ...


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