Cooper v. Meritor, Inc.

• Decision Date: 04 March 2019
• Docket Number: NO. 4:16-CV-52-DMB-JMV,4:16-CV-52-DMB-JMV
• Parties: BRENDA J. COOPER, et al. PLAINTIFFS v. MERITOR, INC., et al. DEFENDANTS
• Court: U.S. District Court — Northern District of Mississippi

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

NO. 4:16-CV-52-DMB-JMV

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI GREENVILLE DIVISION

March 4, 2019

ORDER

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

IProcedural 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 cases¹ 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"). Theplaintiffs 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.

IIMotion 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.

IIIMeritor 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...