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Holder v. Interlake Steamship, Co.

United States District Court, W.D. Wisconsin

April 10, 2018

JAMES HOLDER, Plaintiff,
v.
THE INTERLAKE STEAMSHIP CO., and CAPSTAN CORP., Defendants, THE INTERLAKE STEAMSHIP CO., Cross-Claimant,
v.
FRASER SHIPYARDS, INC., Cross-Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         This case is set for a jury trial commencing April 30, 2018, to resolve plaintiff James Holder's negligence claims stemming from lead exposure while working on the Herbert C. Jackson. Following summary judgment, his claims against the ship's owner, The Interlake Steamship Company, and Capstan Corporation remain; also remaining is a cross-claim by Interlake against Fraser Shipyards. Having reviewed the parties' voluminous briefing on various motions in limine, the court cannot help but comment on the sheer number and needlessness of many of these motions. The parties can rest assured that the Federal Rules of Evidence will apply to the trial here, and motions that appear intended to confirm that, or worse appear to ask the court to ignore those rules, are not only pointless, but a waste of both counsel's and the court's time, to say nothing of the parties' money. Still, as will be emphasized again at the final pretrial conference, the court is eager to address as many non-frivolous evidentiary issues as possible in advance of trial out of respect for the jurors' time. Accordingly, the court has taken pains to issue this detailed opinion and order in advance of the final pretrial conference scheduled for April 12 and will allow the parties to seek clarification and address any issues on which the court has reserved at that time.

         OPINION

         I. Plaintiff's Motions in Limine (dkt. #205)

         A. MIL No. 1: Exclude Evidence of, Reference to, or Argument regarding Holder's Use of Cocaine, Marijuana or Alcohol.

         Plaintiff's first motion in limine seeks to exclude evidence concerning his use of cocaine, marijuana and alcohol because: (1) Dr. Marion Fedoruk's references “hardly rise to the level of opinion” and are instead “only throw-away comments, ” based on “ancient facts” that are “too tenuous and remote to be relevant”; and (2) even if relevant, the evidence of drug use is unfairly prejudicial as shown by “the existence of stereotypes and prejudices held against individuals who have had substance abuse issues.” (Dkt. #206 at 4-5.) Plaintiff also argues that Fedoruk's report neither discloses “reliable facts or sound methodology” to allow him to opine about cocaine, marijuana or alcohol, nor explains “how these drugs or alcohol could have actually contributed to Mr. Holder's acute physical symptoms . . . and his ongoing cognitive problems.” (Id. at 2, 4.) Plaintiff further argues that people with past addictions “are stigmatized as ‘dangerous, immoral, to blame for their disorder, [and] criminal'” and admitting this evidence “is only one small step removed” from allowing the defendants to argue that plaintiff is all those things, thus jeopardizing the fairness of the trial. (Id. at 5.)

         Defendants respond that Holder's use of alcohol, marijuana and cocaine is relevant as “evidence of alternative causes of his purported mild cognitive disability” and is presentable to the jury because its probative value is not substantially outweighed by risk of prejudice. (Dkt. #248 at 6; see also dkt. #250 at 3-4, 7-9.) Interlake argues that all the experts agree that alcohol and substance abuse can cause neurocognitive deficits and that this evidence is vital to its defense because it challenges plaintiff's experts' opinions on causation. (Dkt. #248 at 7, 10.) Further, Interlake contends that withholding this evidence from the jury would create “a false impression” and that it is not “more inflammatory than other alternative forms of evidence.” (Id. at 11.) Similarly, Capstan argues that Fedoruk opines that alcohol, marijuana and cocaine can cause neuropsychological impairments, test abnormalities, and functioning, and that plaintiff's long-term alcohol and drug use “could serve as an alternative explanation for Mr. Holder's claimed symptoms.” (Dkt. #250 at 3-4.) Capstan further argues that Fedoruk's opinions are admissible because they evaluate “alternative causes of Mr. Holder's injuries, ” “are not speculative and apply appropriate scientific methodology.” (Id. at 6.) Capstan adds that plaintiff bears the burden of establishing that lead poisoning caused his injuries and ruling out other possible causes, while providing alternative causes is one way for defendants to show that plaintiff did not meet his burden, and Fedoruk found it unlikely that plaintiff began his relevant work without neurocognitive issues. (Id. at 7-8.)

         Obviously, plaintiff has the burden of proof at trial to establish that his injuries were more likely than not caused by lead exposure, and defendants may defend by providing alternative causes. However, their ability to do so is cabined by the rules of evidence. Dr. Fedoruk criticizes plaintiff's experts, Drs. Parker and Crossen, for failing “to account for the potential impact of substance abuse on Mr. Holder's neuropsychological complaints, ” opining that: (1) “Cannabis use can impair a variety of neuropsychological functions”; (2) “Cocaine use has been associated with neuropsychological test abnormalities”; and (3) “Alcohol abuse has been associated with neuropsychological problems” and “[p]ast heavy use of alcohol can lead to long-standing abnormalities in neuropsychological functioning.” (Dkt. #209 at 37-39.) Fedoruk does not appear to opine that plaintiff's drug or alcohol use was the cause of his symptoms, but rather that plaintiff's experts failed to consider his history of use.

         As the parties recognize, plaintiff's drug and alcohol use is not insignificant. He began using marijuana in high school and continued until 2015. He was fired from a job in 2009, because of a positive marijuana drug test. At some point, he used it once a day after work to relax, but testified that he has decreased his use to once or twice a month for anxiety. As for cocaine, plaintiff acknowledged use once or twice a week for seven years.[1]Finally, as to alcohol use, Holder was apparently arrested for and pled guilty to driving under the influence in 2001, although the admissibility of this information is also unlikely given the potential prejudice.

         Indeed, the significance of plaintiff's substance abuse cuts both ways generally. On the one hand, it is potentially probative of the cause of his neurocognitive complaints. On the other hand, it increases the risk of unfair prejudice. The court will, therefore, GRANT plaintiff's MIL No. 1 as to the first two phases of trial and as to any related criminal activity in all phases of the trial. Plaintiff's motion is otherwise DENIED. Defendants may otherwise introduce evidence of drug and alcohol use during the damages phase of trial, and Dr. Fedoruk may testify as to its possible impacts. Defendants should be prepared to make a proffer as to admissible proof of use at the final pretrial conference.

         B. MIL No. 2: Exclude Evidence of, Reference to, or Argument regarding Fraser's OSHA Citations and the Lack of OSHA Citations to Others.

         Because this motion is intimately related to Capstan's ninth motion in limine, the court addresses both motions together below.

         C. MIL No. 3: Exclude Opinions of Dr. Paul Nausieda.

         Plaintiff next asks the court to exclude the opinions of Dr. Paul Nausieda because they are not the product of reliable principles and methods. (See dkt. #206 at 11.) Specifically, plaintiff argues that Nausieda's report “fails to cite to or rely on a single piece of medical or scientific literature, ” instead “connect[ing] his observations of Mr. Holder's health (i.e. the data) with his opinions through only his own ipse dixit, ” making his opinions impossible to judge under Daubert and therefore unreliable. (Id. at 12, 14.) Plaintiff adds that these deficiencies cannot be corrected through testimony. (Id. at 12-13.)

         Capstan argues that Nausieda's two reports (an independent medical examination and a causation report) both satisfy Rule 26(a)(2)(B) by detailing his conclusions and methods or reasons. (Dkt. #250 at 14-15.)[2] Based on Nausieda's experience and knowledge, Capstan explains that his causation report appropriately compares plaintiff's symptoms and medical history with the symptoms and medical history of a typical patient with neurological disease caused by lead exposure. (Id. at 16-17.)

         Because Nausieda's conclusions and reasons are provided “in great detail, ” plaintiff's main objection would appear to be that Nausieda fails to cite supporting scientific or medical literature. Rule 26(a)(2)(B) instructs what must be included in an expert's written report: “a complete statement of all opinions . . . and the basis and reasons for them”; “facts or data considered”; summary or supporting exhibits; the expert's qualifications, including publications from the past decade and prior expert experience in the past four years; and a compensation disclosure. Fed.R.Civ.P. 26(a)(2)(B). Since Nausieda's causation report appears to satisfy this standard, Capstan argues, plaintiff's objection really stems from Rule 702, which permits an expert -- qualified “by knowledge, skill, experience, training, or education” -- to testify if her “specialized knowledge will help the trier of fact”; the testimony is “based on sufficient facts or data” and “is the product of reliable principles and methods”; and “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702.

         In applying Rule 702, a district court is to function as a “gatekeeper, ” determining whether a party's proffered expert testimony is relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); see also United States v. Johnsted, 30 F.Supp.3d 814, 816 (W.D. Wis. 2013) (expert testimony must be “not only relevant, but reliable”). Although “liberally admissible under the Federal Rules of Evidence, ” Lyman v. St. Jude Med. S.C., Inc., 580 F.Supp.2d 719, 723 (E.D. Wis. 2008), expert testimony must satisfy the following three-part test:

[1)]the witness must be qualified “as an expert by knowledge, skill, experience, training, or education, ” Fed.R.Evid. 702; [2] the expert's reasoning or methodology underlying the testimony must be scientifically reliable, Daubert, 509 U.S. at 592-93; and [3] the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702.

Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Accordingly, the Seventh Circuit has cautioned, an expert cannot “offer credentials rather than analysis, ” “[a]n opinion has a significance proportioned to the sources that sustain it” and “an expert's report that does nothing to substantiate [its] opinion is worthless, and therefore inadmissible.” Minasian v. Standard Chartered Bank, PLC, 109 F.3d 1212, 1216 (7th Cir. 1997) (internal citations and quotation marks omitted). Still, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

         Here, Dr. Nausieda's opinions are based on his review of documents in this case, “a 45 year history of Neurologic practice, ” and his “extensive clinical evaluation of [approximately 10, 000] shipyard welders from 2001 through 2011, ” as well as experience as faculty at two medical colleges. (Dkt. #210 at 1.) Given his background and experience, Nausieda is plainly qualified to testify about neurologic impairments caused by lead exposure. Further, he “provided a complete statement of all opinions which he will express, and his reports ‘provide the substantive rationale in detail with respect to the basis and reasons for the proffered opinions.'” McCoy v. Whirlpool Corp., 214 F.R.D. 646, 655 (D. Kan. 2003) (internal citations omitted). Likewise, Nausieda “show[ed] a grounding in the methods and procedures of science . . . based on actual knowledge and not subjective belief or unacceptable speculation.” Id. at 651. As Capstan points out, this case is very different than the situation in Ciomber, where the expert report was “woefully deficient” and consisted of “eight terse statements” blaming the defendant for plaintiff's home explosion. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 638, 641 (7th Cir. 2008). Likewise, Nausieda's report is different from that in Minasian, where the expert submitted an affidavit “full of vigorous assertion (much of it legal analysis in the guise of banking expertise), carefully tailored to support plaintiffs' position but devoid of analysis.” 109 F.3d at 1216. Nausieda will obviously be limited to the opinions and underlying support set forth in his report, and plaintiff's counsel to free to point out the absence of specific studies or scientific literature supporting his opinions, but plaintiff's MIL No. 3 will be DENIED.

         D. MIL No. 4: Strike Errata Sheets for James Farkas and Grant Huttel.

         Plaintiff asks that the changes in the errata sheets of Fraser Shipyards' CEO James Farkas and Capstan's Safety Director Grant Huttel be stricken because the changes substantively alter the witnesses' testimony. (Dkt. #206 at 14.) He argues that the Seventh Circuit instructs that under Rule 30(e)(1)(B) “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.'” (Id. at 15 (quoting Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000)) (quotation marks omitted).) Plaintiff then identifies changes he contends “run afoul of the rules.” (Id. at 15-18.) He also asks the court to strike Huttel's entire errata sheet because it does not provide any reasons for the changes, thus failing to comply with Rule 30(e). (Id. at 17.) Defendant Interlake “joins” in this motion as relating to Farkas and provides its own list of “substantive changes [to] be stricken.” (Dkt. #264 at 1-2.)

         Unsurprisingly, Capstan opposes this motion, arguing generally that Rule 30(e) allows a deponent to change his testimony, and the factfinder can judge his credibility with errata sheet in hand. (Dkt. #250 at 21.) Capstan convincingly distinguishes Thorn from the present situation procedurally, as Thorn addressed errata sheets at summary judgment -- comparing them to sham affidavits that cannot create genuine disputes of fact -- as opposed to credibility determinations appropriately made at trial before the jury. (Id. at 21-24.)

         Capstan is correct on both counts as to Farkas's errata sheet. Thorn and the sham affidavit doctrine that underlies it are applicable at summary judgment to prevent “clever counsel” from unfairly manufacturing genuine disputes of material fact. United States ex rel. Robinson v. Indiana University Health Inc., 204 F.Supp.3d 1040, 1044 (S.D. Ind. 2016). “At every other stage of proceedings, counsel is free to argue that a contradictory affidavit or errata change warrants little or no weight -- and the court or jury is free to agree or disagree.” Id.; see also Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D. Ill. 1981) (overruling objections to 69 substantive changes to deponent's answers, explaining that “[t]he original answer to the deposition questions will remain part of the record and can be read at the trial”).[3] Therefore, the court will not strike Farkas's errata sheet.[4]

         The analysis is different for Huttel's errata sheet. While his edits are far fewer in number and far less substantive that those proposed by Farkas, he fails to provide any reason justifying the changes. (See Dkt. #206-15.) “If the [deponent] wishes to invoke the privilege accorded deponents by Rule 30(e), . . . he must comply with the instructions which the Rule gives for making changes in deposition testimony. . . . [A]fter each change, the deponent must state the specific reason for that particular change.” Lugtig, 89 F.R.D. at 641; see also Fed. R. Civ. P. 30(e)(1)(B) (“if there are changes in form or substance, [the deponent must] sign a statement listing the changes and the reasons for making them” (emphasis added)). Because Huttel did not comply with Rule 30(e), his errata sheet is stricken unless within 5 days of this order he sets forth in writing the specific reason for each change in an amended errata sheet and Capstan electronically files and sends the amended sheet within 24 hours of its completion.[5]

         Accordingly, plaintiff's MIL No. 4 is GRANTED IN PART and DENIED IN PART.

         E. MIL No. 5: Prevent Defendants from Eliciting Expert Opinions Not Properly Disclosed under Rule 26(a)(2)(A).

         Plaintiff also unnecessarily asks that the court prevent defendants from eliciting expert testimony unless disclosed in defendants' expert disclosures. (Dkt. #206 at 18.) The defendants do not appear to oppose this request. (See dkt. #250 at 24 (Capstan's opposition: “No dispute.”).) Nor could they. Nevertheless, plaintiff's motion is DENIED AS MOOT. All parties will be limited to eliciting expert opinions and the underlying basis for those opinions to those set forth in the expert's report, or in the case of uncompensated experts in their Rule 26(a)(2)(C) disclosures, and the proponent's counsel should be prepared to cite page and lines in response to any objection on that basis.

         F. MIL No. 6: Exclude Improper Character Evidence of James Holder.

         Plaintiff next asks the court to bar evidence of his past convictions for a drug possession misdemeanor in 1997 and driving under the influence in 2001. (Dkt. #206 at 18-19.) He argues that evidence of either should be excluded because: (1) neither crime involved dishonesty; (2) there is no evidence showing either was punishable by imprisonment for over a year; and (3) each conviction is over a decade old. (Id. at 19.)

         While both defendants oppose this motion, the prejudicial nature of this evidence is manifest and arguments that they are outweighed by its probative value border on the frivolous, except perhaps if plaintiff were to open the door by denying his habitual use of alcohol or drugs during the third phase of trial. Accordingly, the court will GRANT plaintiff's MIL No. 6.

         G. MIL No. 7: Exclude Evidence of, Reference to, or Argument regarding Holder's Sexual Conduct or How He Found His Lawyers.

         Plaintiff's final motion in limine asks the court to “bar reference to Mr. Holder's sexual conduct or how he found his lawyers.” (Dkt. #206 at 20.) He explains that defense expert, neuropsychologist Dr. Lawrence Binder, prepared a report based on an exam and interview. (Id. at 19.) In one paragraph, Binder addresses Holder's “‘ability to initiate activity, '” which details how Holder retained his counsel and “a purported quotation from Mr. Holder about a camping trip with a girlfriend where he was ‘f**king all night.'” (Id.) Holder argues that these details are irrelevant and should be excluded under Rules 401 and 402 because he has not alleged a loss of sexual function/capacity due to his lead poisoning and Binder could show Holder's capacity “to initiate activity and make plans” by other means. (Id. at 19-20.)

         This motion is opposed by both Interlake and Capstan. Interlake argues that Holder's “ability to independently research and retain counsel” and his sexual conduct “are relevant and critical to Interlake's causation defenses” because the former was important to Dr. Binder's analysis whether Holder had a neurocognitive disability and the latter showed Holder's “life is normal in terms of activities and ability to function, ” with both showing “that any cognitive disabilities were nuisance level and not disabling.” (Dkt. #244 at 1-2, 4.)[6] Capstan is not as blatant in its attempt to parade prurient material before the jury, partially opposing plaintiff's motion by arguing that Holder “offered the example of conducting an internet search to locate and retain his attorneys to demonstrate his ability to initiate activity” and because of the very limited interview Holder permitted Binder to conduct, “there are limited other examples of Mr. Holder's ability to initiate activity.” (Dkt. #250 at 28 (emphasis original).) Unlike Interlake, however, Capstan represents that it does not plan to inquire about plaintiff's sexual conduct, so long as Holder or his experts do not open the door by “introduc[ing] evidence that Mr. Holder's sex life has been affected by, or may be affected in the future by, his alleged lead exposure.” (Id.)[7]

         To his credit, plaintiff concedes that there may be probative value in illustrating his ability to initiate activity or make plans (see dkt. #206 at 20), but argues that Dr. Binder could have relied on “numerous other means” to do so, rather than the two examples detailed in Binder's report: (1) Holder's retention of his attorneys and (2) his trip to Cannon Beach, Oregon. (Dkt. #211 at 6.)[8]

         Assuming plaintiff is correct and that there are other examples of plaintiff's facile use of the internet to search and plan, his doing so to search for counsel in this case strikes the court as a needless and potentially prejudicial side show, more likely to waste time than its probative value would justify under Fed.R.Evid. 403, unless plaintiff opens the door by denying his skills in this area or intimating disinterest in being compensated for his claimed injuries. Moreover, because plaintiff is not claiming his lead exposure has caused any loss of sexual capacity or function (see dkt. #206 at 19-20), the probative value of this evidence is far outweighed by the possible unfair prejudice caused by the crudeness of the statement Binder would attribute to the plaintiff, unless again plaintiff were to open the door by suggesting a loss in this area. Defendants may, however, reference plaintiff's ability to plan and execute the trip as Capstan suggests, sans reference to any sexual activities. Thus, plaintiff's MIL No. 7 is GRANTED.

         II. Defendant Capstan's Motions in Limine (dkt. #192)

         A. MIL No. 1: Exclude Nicholas Minardi's Sworn Statement.

         Capstan's first motion in limine seeks to exclude as hearsay and as unfairly prejudicial the sworn statement of Nicholas Minardi from January 16, 2017, which was taken without notice to Capstan and without any defense counsel present. (Dkt. #193 at 3.) To the extent the purpose of this motion is to prevent admission of this sworn statement into evidence, it is wholly unnecessary since the court can think of no circumstances under which it would admit rank hearsay.[9] To the extent it is intended to prevent use of the sworn statement to refresh recollection, it is frivolous. Indeed, Capstan notes that it reserves the right to use the sworn testimony for impeachment purposes if necessary. (Id. at 4 n.2.)

         This then leaves plaintiff's use of the sworn statement “by experts, ” which plaintiff notes both his experts and Interlake's experts have relied upon in forming their opinions. (Dkt. #257 at 6-7.) As plaintiff points out, Rule 703 permits an expert to rely on inadmissible evidence “[i]f of a type reasonably relied upon by experts in the particular field” and to testify about her opinions based thereon. Fed.R.Evid. 703; see also U.S. v. Rollins, 862 F.2d 1282, 1293 (7th Cir. 1988). The question then is whether specific references meet this threshold. Since the court is concerned some may not -- particularly as related to the Jackson repowering project, and assertions that decisions were made prioritizing profit over safety and that Capstan was responsible for the lead poisoning of workers (Dkt. #193 at 3-4) -- the court will allow plaintiff to make a specific proffer at the final pretrial conference as to the specific hearsay statements its experts may refer to in testimony at trial (as opposed to statements by Minardi admitted into evidence at trial). Accordingly, Capstan's MIL No. 1 is GRANTED IN PART, DENIED IN PART and RESERVED IN PART.

         B. MIL No. 2: Exclude Evidence of or Reference to Lead Causing a Loss of Brain Volume.

         Capstan next seeks to exclude all evidence that exposure to lead causes a decrease in brain volume, as shown by MRI studies, because no expert has testified that plaintiff has lost any brain volume and plaintiff has not had any MRI studies taken. (Dkt. #193 at 7.) Specifically, Capstan argues that this evidence would be irrelevant and unfairly prejudicial. (Id.) This motion is joined by Defendant Interlake. (See dkt. #263 at 1.)

         In response, plaintiff argues that if his motion in limine seeking to exclude his drug and alcohol use is denied, then Dr. Parker should, as a matter of fairness, be permitted to discuss scientific literature that showed loss of brain volume in workers exposed to lead in studies that controlled for drug and alcohol use. (Dkt. #257 at 7-8.)[10] The court agrees, and consistent with its ruling on plaintiff's first motion in limine, the court will GRANT Capstan's MIL No. 2 as to the first two phases of trial and DENY as to the last phase.

         C. MIL No. 3: Exclude All References to Asbestos and Other Heavy Metals.

         Next, Capstan seeks to exclude references to heavy metals and asbestos exposure aboard the Jackson as irrelevant, unfairly prejudicial to Capstan and otherwise confusing to the jury. (Dkt. #193 at 8.) This motion is joined by Defendant Interlake. (See dkt. #263 at 1.) Capstan explains that plaintiff's expert, Dr. Parker, references exposure to asbestos (and its risk of lung cancer, mesothelioma, and asbestosis), hexavalent chromium (and its status as a carcinogen and specific risk of lung cancer) and other iron oxides, while Dr. Crossen refers to other materials. (Dkt. #193 at 7.) Yet, Parker does not offer opinions on exposure, other than lead exposure, and even testified that it was “unlikely” plaintiff was injured by other exposures. (Id. at 8.)

         Despite asking for this motion to be denied in its entirety, plaintiff confirms that the only toxin-exposure giving rise to his claims is lead. (Dkt. #257 at 8, 10.) He argues that “certain important events involving asbestos are critical to the narrative, ” specifically that: (1) the Repowering Contract specified that “it is the Contractor's responsibility to safely remove any and all asbestos and lead paint that is disturbed as a result of this conversion”; (2) the kick-off meeting addressed asbestos abatement, but did not address a lead abatement program; (3) on January 6, 2016, an OSHA inspector expressed “concerns about ventilation and smoke, hexavalent chromium, asbestos and lead, ” with the comments being discussed by Capstan and Fraser management. (Id. at 8-10.) Finally, he argues that excluding this evidence would “change the narrative of what happened” and that any potential prejudice can be cured with a limiting instruction. (Id. at 10.)

         Capstan's MIL No. 3 is GRANTED IN PART and DENIED IN PART. Because plaintiff is not seeking to recover for injuries caused by other hazards -- and is not offering an expert opinion that he was harmed by them -- there is a risk that the jury may find defendants liable because plaintiff was exposed to many dangerous compounds. Accordingly, references to non-lead exposure are generally inadmissible. The analysis is slightly different regarding asbestos, however, since its abatement is specifically referenced with lead in the Repowering Contract. Plaintiff and his experts will be able to contrast the existence of the asbestos abatement plan with the contested existence of a lead abatement program. To avoid prejudice, however, the parties are not to suggest or intimate that plaintiff's exposure to asbestos, if any, was a contributing factor to defendants' possible negligence, nor to any injury he may have suffered while working on the Jackson. Similarly, the jury will be admonished not to consider exposure to asbestos in determining negligence, causation or damages. The form of this admonition will be addressed at the final pretrial conference.

         D. MIL No. 4: Exclude Evidence or Reference to Flint, Michigan and Other Examples of Water Contamination.

         Capstan argues that “[a]ny evidence or reference to the Flint Water Crisis or other water contamination should be prohibited as irrelevant to whether Plaintiff was exposed to lead while working on the Herbert Jackson” and that even if relevant its probative value would be substantially outweighed by the prejudicial effect. (Dkt. #193 at 8-9.) Plaintiff does not oppose this motion (dkt. #257 at 1). Capstan's MIL No. 4 will, therefore, be GRANTED as unopposed.

         E. MIL No. 5: Exclude Evidence Concerning Any Examination of Plaintiff Performed by Dr. Parker.

         At the time Dr. Parker was deposed, Capstan explains that he had already issued his report and addendum, but had not examined the plaintiff, yet testified that he might do so. Accordingly, Capstan requests that any evidence concerning a later examination be excluded because such information was not disclosed. (Dkt. #193 at 9-10.) Defendant Interlake joins this motion. (See dkt. #263 at 1.) Capstan's MIL No. 5 is GRANTED as unopposed. (See Dkt. #257 at 1.)

         F. MIL No. 6: Exclude Any Legal Conclusions Offered by Plaintiff's Experts.

         Capstan asks the court to exclude opinions by plaintiff's experts that constitute legal conclusions. (Dkt. #193 at 10-11.) Interlake joins this motion (dkt. #263 at 1) and plaintiff does not oppose it. (Dkt. #257 at 1.) Accordingly, Capstan's MIL No. 6 is GRANTED as unopposed.

         G. MIL No. 7: Exclude References to ...


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