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Pecher v. Weyerhaeuser Co.

United States District Court, W.D. Wisconsin

March 7, 2016

JANET PECHER, Individually and as Special Administrator on behalf of the Estate of Urban Pec Plaintiff,


WILLIAM M. CONLEY District Judge

The first of three related asbestos cases is set for trial March 14, 2016. In advance of the final pretrial conference on March 8, 2016, the court issues the following rulings on the parties’ respective motions in limine (dkt. ##432, 433, 488), as well as a motion by plaintiff to claw back an admission made during the course of summary judgment (dkt. #454), and two other recently-filed motions (dkt. ##473, 474).


I. Plaintiff’s Motions

A. “Omnibus” Motion in Limine (dkt. #432)

Plaintiff filed two motions in limine, the first is titled an “omnibus motion” and lists twenty items plaintiff seeks to exclude from evidence and argument. As defendant points out, plaintiff’s motion is deficient for the most part. Still, for most of the items on the list, defendant does not object, because it does not intend to offer such evidence or make such argument. For purposes of clarity at trial, therefore, the court will address each item as a distinct, sub-motion, grouping related items where appropriate.

i. Testimony about Law Firms

Plaintiff seeks to exclude evidence and argument about (#1) how plaintiff’s lawyers are paid for their services; (#2) the time or circumstances under which plaintiff employed an attorney; (#3) plaintiff’s law firm Cascino Vaughn Law Officers and Motley Rice LLC’s involvement in other asbestos-related lawsuits; and (#6) asbestos lawsuits being “lawyer made.” Defendant does not object to these requests and further represents that the parties have agreed that neither side will introduce this type of evidence or argument. These sub-motions are GRANTED AS UNOPPOSED.[1]

ii. Court’s prior rulings

Plaintiff seeks to exclude any reference to other defendants who were granted summary judgment in this case. (#4.) As defendant points out, the court has not granted summary judgment to any other defendants, and therefore this motion is DENIED AS MOOT. Plaintiff also seeks to exclude any evidence or argument that any expert called by plaintiff has been barred or the testimony has been limited by this court or any other court. (#8.) Defendant represents that the parties have agreed not to raise the limitation or exclusion of expert testimony. Accordingly, this sub-motion is


iii. Analogies

Plaintiff seeks an order excluding “[a]ny argument inaccurately analogizing the burden of proof to a football game or stating that the Plaintiff has to ‘get past the 50 yard line.’” (Pl.’s Omnibus Mot. (dkt. #432) #5.) In response, defendant represents that it does not intend to offer this analogy, but that it will offer proper analogies or characterizations to describe the preponderance of the evidence standard to the jury. The explicit request made in this sub-motion is GRANTED AS UNOPPOSED without ruling on the propriety of other, unspecified analogies, except to caution both sides generally that the court will not only err on the side of excluding any attempt to redefine or alter its legal instructions to the jury, but likely admonish counsel for attempting to do so.

iv. Witnesses

Plaintiff seeks to exclude any reference, other than during jury selection, to “names of persons as being potential witnesses or that they were identified in interrogatory answers or other discovery documents as potential witnesses.” (Pl.’s Omnibus Mot. (dkt. #432) #7.) Defendant does not oppose this motion so long as plaintiff is similarly barred from making references about witnesses Weyerhaeuser could have called. Accordingly, this sub-motion is GRANTED AS UNOPPOSED, and plaintiff is bound by the same exclusion.

v. Screening for non-malignant asbestos diseases

Next, plaintiff seeks an order excluding “[a]ny comment, inference, evidence, testimony, document or questioning concerning screening for non-malignant asbestos diseases or individuals employed to conduct such screenings.” (Pl.’s Omnibus Mot. (dkt. #432) #9.) In support, plaintiff simply asserts that these matters “are irrelevant and prejudicial pursuant to Fed.R.Evid. 402.” (Id.) Defendant opposes this request and reasonably points out that “evidence of Dr. Andersons’ involvement with thousands of such screenings under Cascino Vaughan’s employ is certainly relevant for his cross-examination and credibility as an expert and a paid witness.” (Def.’s Opp’n (dkt. #466) p.5.) The court agrees, especially since plaintiff offered no explanation as to why this evidence is irrelevant or unduly prejudicial. Accordingly, this sub-motion is DENIED.

vi. Plaintiff’s habits and other personal information

Plaintiff requests that the court bar any evidence of “Plaintiff’s personal habits, drinking habits, social habits or any other type of personal information designed to embarrass, humiliate or prejudice Plaintiff.” (Pl.’s Omnibus Mot. (dkt. #432) #10.) In so moving, plaintiff appears particularly concerned about introducing evidence reflecting plaintiff’s smoking habits in light of the fact there is no allegation that such habits contributed to his mesothelioma. Once again, plaintiff’s only “support” for this sub-motion is an assertion that this evidence would be “irrelevant and prejudicial” under Rule 402. In response, defendant contends that it will not offer evidence of any of Mr. Pecher’s habits to embarrass Mrs. Pecher. Defendant also offers that there is no evidence of a smoking habit. Still, defendant maintains that other evidence “of personal and social habits that impacted Mr. Pecher’s health, quality of life or life expectancy is relevant to claims for compensatory damages.” (Def.’s Opp’n (dkt. #466) p.5.) The court again agrees with defendant. Accordingly, this sub-motion is GRANTED IN PART AND DENIED IN PART as follows: Any evidence of Mr. Pecher’s personal and social habits are excluded from the liability phase, but may be offered during damages; and the request to exclude any evidence of a smoking habit is granted as unopposed.

vii. “Threshold limit values”

In this request, plaintiff seeks to exclude evidence or argument “[t]hat the ‘threshold limit values’ for asbestos exposure or levels stated in Wisconsin Industrial Commission regulations are ‘safe’ levels of exposure which could prevent mesothelioma.” (Pl.’s Omnibus Mot. (dkt. #432) #11.) In support, plaintiff contends that the OSHA regulations in 1972 did not take into account prevention of mesothelioma, and therefore, this evidence should be excluded. In response, defendant represents that it does not intend to offer this evidence in support of an argument that there is a safe level of asbestos exposure for purposes of preventing mesothelioma. Rather, defendant contends that this evidence is relevant to “whether Weyerhaeuser knew or should have known that any alleged emission could or would cause injury.” (Def.’s Opp’n (dkt. #466) p.6.) The court agrees this evidence is relevant to knowledge, which is certainly relevant to plaintiff’s claim of intentional public nuisance. Weyerhaeuser, however, may neither offer this evidence to prove nor to argue that there is a safe level of asbestos emission for purposes of preventing mesothelioma. Accordingly, this sub-motion is GRANTED IN PART AS UNOPPOSED AND DENIED IN PART.

viii. Settlements, other payments

Plaintiff seeks an order excluding evidence and argument about (#12) settlement amounts from other parties or nonparties; (#13) plaintiff’s claims in bankruptcy trusts; and (#14) receipt of social security, insurance benefits, and life insurance proceeds.

On sub-motion No. 12, plaintiff relies on Federal Rule of Evidence 408, which excludes evidence of a settlement offer or acceptance of that offer to compromise “the claim” or any conduct or statement made during compromise negotiations about “the claim.” Fed.R.Evid. 408(a). In its opposition, defendant eschews an intent to introduce evidence of “the substance of settlement discussions or the amounts of any such settlements.” (Def.’s Opp’n (dkt. #466) p.6.) Instead, defendant seeks to introduce evidence “(1) that Plaintiff previously alleged another party was responsible for Mr. Pecher’s exposure to asbestos or (2) that the claim was settled with that particular party or non-party defendant.” (Id. at p.7.) Defendant maintains that such evidence is relevant to counteract any “downplaying the fault of those now-settled parties, potentially raising the allocation of fault for Weyerhaeuser.” (Id. (citing Hareng v. Blanke, 279 N.W.2d 437 (Wis. 1979)).)

Defendant’s position is at least consistent with Rule 408 to the extent it provides that the court “may admit [evidence of settlement] for another purposes, such as proving a witnesses’ bias or prejudice.” Fed.R.Evid. 408(b). With that framework in mind, the court will RESERVE ruling on this sub-motion pending reference to specific evidence and/or argument defendant intends to offer. The parties should be prepared to address the relevance of this evidence further at the final pretrial conference.

As for sub-motion No. 13, plaintiff seeks to exclude evidence that plaintiff submitted claims to funds in several bankruptcy trusts on the basis that the evidence is not probative of any fact or is unduly prejudicial even if probative. Plaintiff also argues that the claim submissions contain affidavits of co-workers about asbestos exposure that are hearsay and should be excluded.[2] Defendant opposes this motion, arguing that such evidence is expressly admissible under state law. Wis.Stat. § 802.025(3)(a) (“Trust claims materials and trust governance documents are admissible in evidence.”). Putting aside the outstanding question of whether a federal court would look to state law to determine the admissibility of evidence, defendant also argues that such evidence is relevant because it has a tendency to show that plaintiff “made claims that another entity is responsible for Mr. Pecher’s development of mesothelioma.” (Def.’s Opp’n (dkt. #466) p.9.) The court agrees with defendant that at least some of this evidence may be relevant to both causation -- which will be determined during the liability stage of trial --and damages. Accordingly, the court will also RESERVE on this sub-motion, with the caveat that non-party affidavits attached to the claims submissions will be EXCLUDED as hearsay unless offered for truth of the matter asserted. The parties should again be prepared to address whether any relevance of this evidence outweighs possible prejudice to plaintiff.

Finally, in sub-motion No. 14, plaintiff raises a third related request, seeking exclusion of any evidence of “benefits of any kind from a collateral source, ” namely “[b]enefits from hospitalization, medical or other collateral insurance coverage; [s]ocial security and pensions, whether a union pension or otherwise; and [l]ife insurance proceeds.” (Pl.’s Omnibus Mot. (dkt. #432) #14.) Plaintiff contends that this evidence is properly excluded under the collateral source rule. Defendant does not object to this request, except if it covers excluding evidence of the workers’ compensation system generally or the fact that Pecher filed a workers’ compensation claim. Plaintiff filed her own separate motion on the workers’ compensation claim, which the court addresses below. As for the explicit evidence identified in this sub-motion, it is GRANTED AS UNOPPOSED.

ix. Effect of claim on insurance rates

Plaintiff seeks an order excluding any evidence or argument about the “effect or result of a claim, suit or judgment upon the insurance rates or charges” with respect to both plaintiff and defendants. (Pl.’s Omnibus Mot. (dkt. #432) #15.) Defendant does not oppose this sub-motion. Accordingly, it, too, is GRANTED AS UNOPPOSED.

x. Weyerhaeuser’s knowledge (or lack thereof)

In sub-motion No. 16, plaintiff seeks an order excluding Weyerhaeuser from arguing that “the absence of records” showing its “knowledge of the dangers of asbestos” or “knowledge of the release of asbestos into the Marshfield community from the Marshfield plant” is proof that Weyerhaeuser did not know. (Pl.’s Omnibus Mot. (dkt. #432) #16.) Plaintiff contends that this evidence (really, the lack of evidence) is inadmissible because defendant’s records are incomplete, and therefore defendant cannot lay the necessary foundation for such evidence to be admissible under Federal Rule of Evidence 803(7). In its response, defendant argues that the “absence of contemporaneous documents discussing the dangers of alleged community emissions is relevant” to Weyerhaeuser’s knowledge of the dangers of non-occupational exposures. (Def.’s Opp’n (dkt. #466) 12.)

The court agrees with defendant that an absence of evidence can be relevant. Plaintiff’s simple assertion that the records are incomplete is insufficient to prevent Weyerhaeuser from pointing to the apparent lack of proof of knowledge. Of course, plaintiff is free to challenge defendant on its record-keeping practices, and to offer this as an explanation for the lack of direct evidence of knowledge. Without more from plaintiff, however, the court sees no basis to exclude Weyerhaeuser from arguing the possible significance of a lack of records kept in the normal course of business on the dangers of non-occupational asbestos exposures. Accordingly, this motion is DENIED.

xi. United States government’s treatment of asbestos

Finally, plaintiff submits four related requests excluding evidence and argument of the United States government’s treatment of asbestos. The first two can be considered together. Plaintiff seeks orders excluding argument that: (#17) “the use of asbestos by the U.S. government without warnings is evidence that private entities need not warn or instruct about precautionary matters;” and (#18) “the United States stockpiled evidence.” (Pl.’s Omnibus Mot. (dkt. #432) ##17, 18.) Defendant does not oppose these requests, other than to note that plaintiff should be bound by the same order. Subject to that caveat, therefore, these motions are GRANTED AS UNOPPOSED.

Plaintiff also seeks an order excluding any argument that “asbestos insulation products ‘won the war’ or any reference to such products being necessary during World War II or any other war.” (Pl.’s Omnibus Mot. (dkt. #432) #19.) Defendant does not object to plaintiff’s request to exclude any “won the war” reference, but does oppose the motion to extent that plaintiff seeks to exclude all evidence of the use of asbestos in World War II or subsequent wars on that basis that this evidence is relevant to plaintiff’s allegation that Weyerhaeuser needlessly continued to use asbestos despite knowledge of its dangers. On this, the court agrees with plaintiff. Defending the use of asbestos in the manufacture of household doors on the grounds that the government continued to use asbestos in waging war is a classic case of an unreasonable comparison. Indeed, one could hardly come up with a less apt comparison than cost-benefit analysis for use of asbestos to manufacture a household product and for use in waging war! Accordingly, plaintiff’s motion is GRANTED.

Finally, plaintiff seeks on order excluding evidence or argument that “the U.S. Government or any other governmental (state or municipal) entity in any way approved of, required or specified the use of asbestos products.” (Pl.’s Omnibus Mot. (dkt. #432) #20.) In support, plaintiff cites to a Ninth Circuit case for the proposition that such information “cannot provide a defense upon which Defendants may rely.” (Id. (citing In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992).) As defendant explains in response, the holding in that case is not applicable here, because a similar “government contractor defense” is not at issue. (Def.’s Opp’n (dkt. #466) pp.12-13.) To the contrary, evidence of government specifications, ...

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