Kuiper v. Givaudan, Inc.
| Decision Date | 07 February 2009 |
| Docket Number | No. C06-4009-MWB.,C06-4009-MWB. |
| Citation | 602 F.Supp.2d 1036 |
| Parties | Ronald and Conley KUIPER, Plaintiffs v. GIVAUDAN, INC., Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Christopher R. Miller, Donald H. Loudon, Jr., J'Nan C. Kimak Judy, Kenneth Blair McClain, Scott A. Britton-Mehlisch, Scott B. Hall, Steven Edward Crick, Humphrey, Farrington & McClain, P.C., Independence, MO, Dennis M. McElwain, Smith & McElwain, Sioux City, IA, Daniel M. Homolka, Minneapolis, MN, for Plaintiffs.
Amanda M. Bruno, James D. Pagliaro, Jonathan W. Light, Kevin M. Donovan, Thomas J. Sullivan, Victoria J. Miller, Morgan, Lewis & Bockius, LLP, Philadelphia, PA, Deanne L. Miller, Michael T. Zarro, V. Thomas Meador, Morgan, Lewis & Bockius, LLP, Los Angeles, CA, Paul E. Benson, Michael Best & Friedrich, Milwaukee WI, Stephen J. Holtman, Simmons Perrine PLC, Cedar Rapids, IA, for Defendant.
AMENDED MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES' MOTIONS IN LIMINE
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND .................................................1041
II. LEGAL ANALYSIS .............................................................1042
A. Rule 104 ................................................................1042
B. Applicable Standards ....................................................1042
C. Plaintiffs'Motion In Limine .............................................1044
D. Givaudan's Unified Motion In Limine .....................................1046
1. Risks to consumers ............ .....................................1046
2. Health conditions of other American Pop Corn employees ...............1047
3. Evidence regarding Givaudan employees ................................1047
4. Evidence regarding other cases .......................................1048
5. Evidence of other hazardous products or substances ...................1049
6. Evidence of lung transplants .........................................1049
7. Cumulative evidence ..................................................1049
8. Non-Medical opinions of Dr. Egilman ..................................1050
a. Zealous advocate or objective expert? .............................1050
b. Expert testimony on corporate ethics and actions ..................1052
9. BASF Study ...........................................................1052
10. International Bakers Services litigation evidence ....................1053
11. Argument regarding exposure to diacetyl ..............................1054
12. Argument regarding punitive damage allocation ........................1054
13. Bifurcation of evidence ..............................................1055
E. Givaudan's Motion In Limine Regarding Mark Rigler .......................1056
III. CONCLUSION ...............................................................1057
On January 30, 2006, plaintiffs Ronald Kuiper and Conley Kuiper ("the Kuipers") filed their Complaint against defendant Givaudan Flavors Corp. ("Givaudan") alleging causes of action for negligence (Count I), fraudulent concealment (Count II), civil conspiracy (Count III), and a combined claim for loss of consortium and medical expenses (Count IV).1 The Complaint alleges that this court has subject matter jurisdiction by virtue of diversity of citizenship of the parties, 28 U.S.C. § 1332. The Kuipers' lawsuit alleges that Ronald Kuiper developed a respiratory disease, bronchiolitis obliterans, as a result of his exposure to butter flavorings while he was employed at the American Pop Corn Company ("American Pop Corn") plant in Sioux City, Iowa. Defendant Givaudan subsequently filed a motion to dismiss Counts II and III, the fraudulent concealment and civil conspiracy claims found in the Complaint. Specifically, defendant Givaudan asserted that Count II, the Kuipers' fraudulent concealment claim, should be dismissed for failure to plead fraud with particularity, and that Count III, the Kuipers' civil conspiracy claim, should be dismissed because it is based entirely on the fraudulent concealment claim. The court granted defendant Givaudan's motion to dismiss and dismissed both Counts II and III of the Complaint.
The parties have each filed motions in limine in this case. The Kuipers have filed a motion in limine (Dkt. No. 252) in which they seek the exclusion of evidence of Ronald Kuiper's allegedly dirty living conditions. Defendant Givaudan has filed a Unified Motion In Limine (Dkt. No. 326) in which it seeks the exclusion or limitation of the following evidence: (1) evidence of claims by consumers or of the alleged risks to consumers; (2) evidence regarding the health conditions of other American Pop Corn Company employees; (3) evidence regarding Givaudan employees; (4) evidence of other cases brought against or resolved by Givaudan; (5) evidence of other allegedly hazardous products or substances; (6) evidence regarding lung transplantation; (7) cumulative evidence regarding medical condition, diagnosis, prognosis and causation; (8) nonmedical opinions of Dr. David Egilman; (9) argument that an unpublished 1993 study conducted by BASF provides notice; (10) evidence regarding the International Bakers Services litigation; (11) evidence or argument that there is no safe level of exposure to diacetyl; (12) evidence or argument regarding Iowa's law on the allocation of punitive damages; and, (13) evidence regarding the net worth or financial condition of Givaudan. Defendant Givaudan has also filed a motion in limine to exclude the opinions and testimony of the Kuipers' expert witness, Mark. W. Rigler (Dkt. No. 331). The parties have each filed responses to the other's motions in limine.
Oral arguments have been requested on some or all of these motions. However, the court's crowded schedule has not permitted the timely scheduling of such oral arguments, and the court finds that all of the motions have been extensively briefed, so that it is unlikely that oral arguments will enhance the court's understanding of the issues presented. Therefore, the motions are deemed fully submitted on the written submissions.
As a preliminary matter, the court notes that Rule 104 of the Federal Rules of Evidence provides, generally, that "[p]reliminary questions concerning ... the admissibility of evidence shall be determined by the court...." FED.R.EVID. 104. Such preliminary questions may depend upon such things as whether the factual conditions or legal standards for the admission of certain evidence have been met. See id., Advisory Committee Notes, 1972 Proposed Rule. This rule, like the other rules of evidence, must be "construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined." FED.R.EVID. 102. The court concludes that preliminary determination of the admissibility of evidence presented or challenged in the parties' respective motions in limine will likely serve the ends of a fair and expeditious presentation of issues to the jury. Therefore, the court turns to consideration, in turn, of the admissibility of the evidence put at issue in the parties' motions in limine.
The parties base their motions in limine frequently on the alleged irrelevance or prejudicial nature of certain challenged categories of evidence. Rule 401 of the Federal Rules of Evidence defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED.R.EVID. 401. Rue 402 provides that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority" and that "[e]vidence which is not relevant is not admissible." FED.R.EVID. 402. Rule 403 provides for exclusion of even relevant evidence on various grounds, as follows:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The Eighth Circuit Court of Appeals has explained "prejudice" within the meaning of Rule 403 as follows:
Under Rule 403, district courts have broad discretion to assess unfair prejudice, and are reversed only for an abuse of discretion. United States v. Henderson, 416 F.3d 686, 693 (8th Cir. 2005), cert. denied, 546 U.S. 1175, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006). Rule 403 Wade v. Haynes, 663 F.2d 778, 783 (8th Cir.1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).
United States v. Myers, 503 F.3d 676, 681 (8th Cir.2007); United States v. Farrington, 499 F.3d 854, 858-59 (8th Cir.2007). The Advisory Committee Notes to Rule 403 explain that a decision on an "improper basis" is "commonly, though not necessarily, an emotional one." FED.R.EVID. 403, Advisory Committee Notes; see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir.2007) (quoting this note); United States v. Dierling, 131 F.3d 722, 730-31 (8th Cir.1997) (...
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