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Boyer v. Weyerhaeuser Co.

United States District Court, W.D. Wisconsin

May 5, 2016

KATHY BOYER, individually and as Special Administrator of the Estate of Milton Boyer, Plaintiff,


WILLIAM M. CONLEY District Judge.

The second of three related asbestos cases is set for trial March 14, 2016. In advance of the final pretrial conference on May 4, 2016, the court issues the following rulings on the parties’ respective motions in limine (dkt. ##497, 504, 506) and defendant’s motion to supplement expert reports (dkt. #510).


I. Plaintiff’s Motions in Limine

Prior to the deadline for filing motions in limine, the court advised the parties that it would adopt the rulings in a related case, Pecher v. Weyerhaeuser Company. No. 14-cv-147, and that the parties need not and should not file duplicative motions. (4/7/15 Order (dkt. #488).) As such, plaintiff’s motions in limine filed in the Pecher case and the court’s rulings on those motions apply with equal force in this case, and plaintiff has preserved her arguments made in support of those motions for purposes of any appeal.

In addition to the motions filed in the Pecher action, plaintiff filed three motions in limine specific to Boyer’s claims. First, plaintiff seeks an order excluding evidence or argument that plaintiff Kathy Boyer has received, has been entitled to receive, or has applied for disability benefits. Plaintiff argues that this evidence is not material to any issue of liability, and that it is also immaterial to damages because of the collateral source rule. (Pl.’s Mot. (dkt. #506) 2.) Defendant opposes the motion, arguing that the evidence is material to damages because it will correct any jury inference that Kathy Boyer “either could not work due to her husband’s illness, or was previously a homemaker by choice such that she brought no income into the home.” (Def.’s Opp’n (dkt. #533) 2.) Defendant further argues that the evidence is not barred by the collateral source rule.

The court agrees with defendants that the collateral source rule does not apply. If nothing else, both sides agree that Kathy Boyer’s disability income is not income from injuries caused by Weyerhaeuser. See Larson v. Wisconsin Cent. Ltd., No. 10-C-446, 2012 WL 359672, at *1 (E.D. Wis. Feb. 2, 2012) (“[T]he collateral source rule generally only precludes reducing an award for damages by amounts the plaintiff recovers for the same losses from so-called collateral sources.” (emphasis added)).

The question remains, however, whether this fact is relevant to the jury’s damages determination. Consistent with Wisconsin’s standard instruction for recovery for loss of society and companionship, the jury will be instructed that:

Society and companionship includes the love, affection, care, and protection Kathy Boyer would have received from Milton Boyer had he continued to live. It does not include the loss of monetary support or the grief and mental suffering caused by the spouse’s death.

Wis. Jury Instructions -- Civil § 1870 (emphasis added). Because the jury will not be considering the degree to which Kathy Boyer relied on her husband’s income, evidence of her own income from disability payments is not relevant, or at most marginally so, with the risk of confusion outweighing any probative value. Accordingly, this motion is GRANTED.

Second, plaintiff seeks an order excluding any comment, argument or evidence that any of plaintiff’s witnesses, including Charles Reno, filed any past grievances or workers’ compensation claims against Weyerhaeuser. Plaintiff contends that this evidence is not relevant, and in anticipation of defendant’s opposition, further argues that any relevance is outweighed by the risk of confusion and waste of time. (Pl.’s Mot. (dkt. #506) 2-3.) For its part, defendant responds that this evidence is highly relevant to each witness’s credibility and bias.

Certainly, bias evidence is generally relevant to a jury’s assessment of a witness’s credibility, and despite plaintiff’s simple response that “the character of Plaintiff’s witnesses is not at issue, ” a witness’s credibility is generally at issue for any jury determination. Still, the court recognizes that at times so-called bias evidence may be more prejudicial than probative, cause significant confusion, or give rise to a side trial. The court, however, cannot weigh the probative value against any prejudicial effect without greater context. Instead, plaintiff will need to point to specific evidence or argument with respect to individual witnesses. As such, this motion is DENIED without prejudice to plaintiff sharpening its objections.

Third, in a separately-filed motion styled “motion in limine, ” plaintiff seeks reconsideration of the court’s June 2, 2015, opinion and order preventing plaintiff from relying on Environmental Protection Agency regulations in establishing the standard of care. (Pl.’s Mot. (dkt. #504).) In that order, the court granted defendant’s motion to dismiss plaintiffs’ nuisance claims on the basis that the Clean Air Act preempts state law nuisance claims, at least “to the extent that plaintiffs intend to rely on NESHAP [National Emission Standards for Hazardous Air Pollutants] or other regulatory standards under the CAA to prove negligent conduct under either a private or public nuisance claim.” (6/2/15 Op. & Order (dkt. #174) 5.) Plaintiffs previously moved for reconsideration of that decision, which the court also denied. (7/21/15 Op. & Order (dkt. #201).)

Now, with the benefit of recently-acquired evidence that Weyerhaeuser was aware of the NESHAP standards at the time of the alleged asbestos emissions, plaintiff essentially seeks reconsideration once again in the guise of a motion in limine. Critically, the court’s original decision was not based on a lack of evidence that Weyerhaeuser was aware of these standards or relied on them in setting plant quality control metrics; the court limited the scope of plaintiffs’ state law claims in order to avoid encroaching on the CAA federal regulatory scheme. ...

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