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.
environmental case is before the Court on numerous motions in
limine filed by the parties.
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, and Textron,
Inc. Doc. #43.
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.
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.
Motion in Limine Standard
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).
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.”
Meritor Defendants' Motions in Limine
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.
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.
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,
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.
EPA National Priorities List and Related Comments
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”).
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.
Federal Rules of Evidence exempt from the rule against
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
(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
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.
National Priorities List
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.” 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.
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).
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. 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
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.
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. Accordingly, the motion in limine will
be denied to the extent it seeks exclusion of the statements
for such purposes.
Testimony of Shay Harris
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.
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
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.
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).
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.
Undisclosed opinion testimony
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.
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”).
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,
” 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.
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.
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.
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.
“Unfairly Prejudicial Evidence, Testimony and
Meritor Defendants seek exclusion of certain arguments and
evidence as unfairly prejudicial.
“Criminal, ” “evil” or “similar
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.
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.
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.” 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.”).
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. The motion in limine, therefore, will
be denied in this respect.
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.
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.”
Other environmental sites
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
….” Doc. #793 at 5.
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
References to “hazardous waste”
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.
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.
Control, payment, or influence regarding EPA and
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.
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.
Former employment of attorneys with MDEQ and EPA
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.
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.
Jimmy Palmer and ...