Nanouk v. The United States Air Force et al

Filing 348

ORDER denying without prejudice 313 Motion in Limine; 314 Motion in Limine; 315 Motion in Limine; 316 Motion in Limine; 318 Motion in Limine; 320 Motion in Limine; 322 Motion in Limine. Signed by Judge Ralph R. Beistline on 12/27/23. (LLR, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EMILY NANOUK,

Case No. 3:15-cv-00221-RRB

Plaintiff,

ORDER REGARDING
MOTIONS IN LIMINE
(Dockets 313, 314, 315,
316, 318, 320 & 322)

vs.
UNITED STATES OF AMERICA,
Defendant.

I.

INTRODUCTION

Before the Court are seven motions in limine.

Trial is scheduled for

February 12, 2024. The parties and the Court are familiar with the factual and procedural
background, which will not be repeated here.
“A motion in limine is a procedural mechanism to limit in advance [of trial]
testimony or evidence in a particular area.” 1 Motions in limine are part of a “district court’s
inherent authority to manage the course of trials.” 2 As Plaintiff has acknowledged, “the
motion in limine originated with attempts to prevent prejudicial evidence from interfering
with a fair and impartial jury verdict in civil litigation.” 3 In the case of a bench trial,

403.

1

United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009); see also Fed. R. Evid. 401,

2

Luce v. United States, 469 U.S. 38, 41 n.4 (1984).
Docket 346 at 2 (citation omitted).

3

therefore, this threshold ruling is “generally superfluous.” 4 Moreover, “even if nothing
unexpected happens at trial, the district judge is free, in the exercise of sound judicial
discretion, to alter a previous in limine ruling.” 5 Accordingly, the Motions in Limine are
DENIED without prejudice. However, the Court makes the following observations, which
should influence the parties’ approach to trial.
II.
A.

DISCUSSION

Defendant’s Motion to Preclude Contamination Issues Outside Area C
(Docket 313)
Defendant seeks to preclude from trial issues arising from contamination

outside of the area defined as “Area C.” 6 Defendant argues that Plaintiff’s claims stem
from alleged damages from the Hot Spot, and the Court should prevent Plaintiff from
expanding the issues for trial with theories of contamination outside of Area C. Defendant
complains that Plaintiff’s expert speculates about other contamination that may exist
outside of Area C, despite having no evidence, and having performed no testing. Defendant
asks that the Court “prevent Plaintiff from using trial to air general grievances and
unsubstantiated fears about hypothetical contamination on her land and in the Unalakleet
area outside Area C.” 7 Defendant specifically seeks to preclude testimony by Plaintiff’s
expert, Bjorn Bjorkman, regarding any contamination that “may or may not have occurred”

4

Heller, 551 F.3d at 1112 (noting that such rulings still may be appropriate for “logistical
and other reasons”).
5
Luce, 469 U.S. at 41.
6
Area C includes the PCB Hot Spot, present on Air Force Property, and associated
contamination that spread from the Hot Spot, as indicated on the relevant diagram. See Docket 313
at 5.
7
Docket 313.
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outside of Area C, as well as any testimony by Plaintiff’s real estate expert, Per Bjorn-Roli,
which relies upon the opinion of Bjorkman. Defendant argues that “Plaintiff’s Complaint
limits itself to allegations and causes of action arising solely from contamination of Area
C,” and that “Plaintiff’s expert opinions regarding contamination outside Area C are
unhelpful to the trier of fact because they are inadmissibly speculative” under F.R.E. 702. 8
Defendant argues that “an expert’s ‘unsupported speculation and subjective beliefs’ must
be excluded.” 9 Finally, Defendant argues that, even if other contamination exists, Plaintiff
has no evidence linking that contamination to Defendant. 10
Plaintiff opposes the motion, arguing that Defendant’s argument “ignores the
science of contamination and ecotoxicology, and the facts newly discovered.” 11 She argues
that her Complaint provided sufficient notice of liability regarding other sources of
contamination on her property. 12 She argues that she has alleged sufficient facts to provide
notice of her intent to pursue relief for any hazardous substances that have damaged her
allotment, noting that Defendant’s environmental expert, Michael Rafferty, noted in his
report that he identified a “buried vehicle” and a drum found on Plaintiff’s property. 13
The United States “seeks to avoid mini-trials about marginally relevant
issues at other sites, and airing general grievances about contamination in the Unalakleet

8

Id. at 8, 11.
Id. at 10 (citing Guidroz-Brault v. Missouri Pac. R. Co., 254 F.3d 825, 829 (9th Cir.
2001)) (“Rule 702 requires that expert testimony relate to scientific, technical, or other specialized
knowledge, which does not include unsupported speculation and subjective beliefs.”).
10
Docket 313 at 12.
11
Docket 330 at 5.
12
Id. at 10.
13
Id. at 13.
9

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area that will result in undue delay,” 14 and the Court agrees that the parties should not waste
time on side-quests. But, based on the diagram in Defendant’s motion, 15 the overlap
between “Area C” and Plaintiff’s allotment is very small. Most of Area C is outside the
allotment, and most of Plaintiff’s allotment is not in Area C. Moreover, Area C appears to
be an area unilaterally identified by the government for remediation purposes. 16 If Plaintiff
argues that government contamination may be located on areas of her allotment outside of
Area C, the Court will allow her to do so.
B.

Defendant’s Motion to Exclude Personal Injury Claims (Docket 314)
Defendant seeks to exclude evidence and argument of alleged personal

injury, noting that Plaintiff has not disclosed medical experts to support personal injury
claims. 17 Defendant argues that “for every unsupported personal injury claim that Plaintiff
or her family introduces, the United States will have no choice but to spend time and
resources cross examining witnesses about personal injury claims that fail as a matter of
law.” 18
But Plaintiff argues that, although they are not seeking damages for the
various maladies that her family believes may have been caused by the contamination, “she
has suffered and continues to suffer from the fear that she and her family’s lifespans have
14

Docket 341 at 10.
Docket 313 at 5.
16
“The Hot Spot and the areas surrounding Ms. Nanouk’s cabin, trail, and the main road
were designated by the Government as ‘Area C’ of the NRRRS remediation.” Amended
Complaint, Docket 300 at ¶ 20. “Since on or about July 2003, the Government has designated
Ms. Nanouk’s Alaska Native Allotment as “Area C” of the NRRRS contaminated site . . .” Id. at
¶ 35.
17
Docket 314 at 3.
18
Id. at 4.
15

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been shortened and encumbered by the exposure to dangerous contaminants over 20-plus
years.” 19 She notes that the “Agency for Toxic Substances and Disease Registry has found
PCBs cause a variety of toxic responses, including some that mirror the illnesses suffered
by the Nanouk family.” 20 Moreover, she argues, “damages for nuisance include damages
for annoyance, inconvenience, and discomfort.” 21 Citing state caselaw, she argues that
“once a cause of action for trespass or nuisance is established, a landowner may recover
for annoyance and discomfort, including emotional distress or mental anguish, proximately
caused by the trespass or nuisance, even where the trespass or nuisance involves solely
property damage.” 22 In short, Plaintiff is not pursuing a personal injury claim, but she
argues that her fear of the contamination, brought on in party by her family’s personal
research into the health risks associated with PCB exposure, is relevant to her claim of loss
of use and enjoyment of her allotment. 23

She argues that testimony of her expert

exotoxicologist, Mr. Bjorkman, regarding the effects of contaminants on human beings is
relevant to her fear of exposure to the hazardous chemicals, which is part of her theory of
damages. 24
The Government stresses that “evidence as to whether she and her family
members actually suffered illnesses from PCB exposure is superfluous and irrelevant.” 25

19
20
21
22
23
24
25

Docket 332 at 5.
Id. at 8.
Id. at 10.
Id. at 10–11.
Id. at 12.
Id. at 14–15.
Docket 342 at 4.

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The Court notes that there are no personal injury claims involved in this case. Accordingly,
medical evidence of any family member with respect to various conditions is unnecessary.
However, the Court is reluctant to issue any order prohibiting Plaintiff from testifying as
to her beliefs, which influenced her state of mind. To the extent that various maladies of
Plaintiff’s family members have played a role in Plaintiff’s reluctance to use her allotment,
the Court believes it is capable of compartmentalizing any suggestion of personal injury
accordingly. The parties are cautioned that any foray into the medical history of Plaintiff
or her family members will not be permitted.
C.

Defendant’s Motion to Exclude Expert Opinions Regarding Remediation
(Docket 315)
“A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if:
a.
Their scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact at issue;
b.

The testimony is based on sufficient facts or data;

c.
The testimony is the product of reliable
principles and methods; and
d.
The expert has reliably applied said principles
and methods to the facts of the case. 26
Defendant seeks to exclude “certain opinions of Plaintiff Emily Nanouk’s
expert, Bjorn Bjorkman, about the design, implementation, reasonableness, and/or

26

Federal Rule of Evidence 702 (subject to changes effective December 1, 2023); see also
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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effectiveness of the remedial approach or efforts at the North River Relay Station,”
arguing that they do not meet the Daubert standards. 27

Defendant argues that

Mr. Bjorkman is not qualified to offer expert opinions on these topics, because he is not an
engineer, and does not design, implement, or conduct remediation on contaminated sites. 28
Defendant argues that Mr. Bjorkman’s degrees in environmental biology and aquatic
ecology and limnology, and his expertise in evaluating the risks of contaminants to the
environment, is a distinct skillset from expertise in designing and implementing
remediation.
Plaintiff suggests that the Government ignores Mr. Bjorkman’s expertise “in
finding and locating environmental contamination caused by PCB’s [sic] and determining
its risks to human health and the environment.” 29 “Mr. Bjorkman studies the effects of
toxic chemicals on biological organisms, the community, and the ecosystem.” 30 Plaintiff
argues that the concept of “environmental remediation” cannot be condensed into a single
act, but rather requires “investigation, identification of the contaminant, and analysis and
risk to human health the contamination poses.” 31 Plaintiff explains that under CERCLA,
response and remediation procedures follow a structure of various phases. 32 Plaintiff

27

Docket 315 at 2.
Id. at 5.
29
Docket 328 at 5.
30
Id. at 10.
31
Id. at 5.
32
These phases include: discovery and notification; removal site evaluation; removal
action; remedial site evaluation; establishing remedial priorities; remedial investigation/ feasibility
study (RI/FS) and selection of remedy; remedial design/remedial action, operations and
maintenance; and planning and implementing off-site response actions. Docket 328 at 17 (citing
generally 40 C.F.R. §§ 300.405–440).
28

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argues that the Government’s expert is an engineer whose expertise is in designing and
implementing remediation technology once contamination is identified. Mr. Bjorkman, in
contrast, is an expert in identifying and analyzing the risk posed by contamination, which
includes an opinion on when and how to remediate. 33
But Defendant’s reply brief argues that Plaintiff fails to identify the
“commonly accepted principles and methodologies” that Mr. Bjorkman employed, and
Mr. Bjorkman failed to identify any specific way in which the remedial approach at NRS
was deficient or flawed. Defendant argues that Mr. Bjorkman “does not identify any
environmental practices or standards, rules, regulations, or laws that were violated or not
followed during the remediation efforts at NRS.” 34 Rather, “Mr. Bjorkman’s opinions
about the design, implementation, reasonableness, and/or effectiveness of the remedial
approach or efforts at NRS are . . . [based] solely on the length of time it took to discover
the hotspot on Air Force property without explanation or support for why this delay
indicates an ineffective remediation plan.” 35
As Plaintiff notes, “rejection of expert testimony is the exception rather than
the rule.” 36 This Court, as the finder of fact, will require expert assistance to understand
the CERCLA investigation process, and in doing so will be able to evaluate the relevance
and accuracy of the opinions rendered. Defendant will have the opportunity to challenge

33

Id. at 6.
Docket 347 at 9.
35
Id. at 7.
36
Docket 328 at 12 (citing Fed. R. Evid. 702) (Notes of Advisory Committee on 2000
amendments).
34

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Mr. Bjorkman’s testimony at trial. The Court declines to limit the expert testimony at this
juncture. The Motion at Docket 315 is DENIED.
D.

Plaintiff’s Motion to Preclude Argument of Cleanup Standard (Docket 316)
Plaintiff seeks to bar the Government from asserting that the cleanup

standard at the NRRRS was higher than 1 part per million (“ppm”), noting that “at various
depositions throughout the pendency of the case, the government has referenced a cleanup
standard for PCB contamination at the NRRRS of 50 ppm.” 37
Defendant opposes the motion, arguing that “PCB cleanup standards vary
depending on the site conditions and intended uses after remediation” and can be as high
as 50 ppm for “‘low occupancy areas’ secured by a fence and signs.” 38 Defendant concedes
that the ADEC’s goal of 1 ppm for NRRRS cleanup was the “strictest standard” for PCB
remediation, but that other standards are relevant to the nature of the handling and disposal
of the waste. It argues that other cleanup standards are “highly relevant to Plaintiff’s
nuisance claim and damages,” suggesting that the 4 ppm concentration of soil found on
Plaintiff’s property must be considered in the broader context of the various standards when
considering now much of a nuisance the contamination was, and what damages may be
appropriate. 39

37

Docket 316 at 3.
Docket 325 (citing 40 C.F.R. § 761.61(a)(4)(i)(B)(2)) (“Bulk PCB remediation wastes
may remain at a cleanup site at concentrations >25 ppm and ≤50 ppm if the site is secured by a
fence and marked with a sign including the ML mark.”).
39
Docket 325 at 4.
38

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Plaintiff’s sole concern about the mention of various PCB cleanup standards
is that it “would confuse the issues and mislead the factfinder.” 40 As the Court is the
factfinder in this matter, Plaintiff’s concern is unnecessary.
E.

Plaintiff’s Motion to Preclude Mention of Inherited Allotment (Docket 318)
Plaintiff moves to bar the Government from discussing her ownership of a

second Alaska Native Allotment, arguing that “it is irrelevant to this matter, would
needlessly confuse and mislead the factfinder, and would likely result in undue prejudice
to Ms. Nanouk.” 41 Plaintiff suggests that “the concept of Native greed has permeated
popular culture and eluding [sic] to Ms. Nanouk’s second allotment would reinforce this
stereotype, affecting her ability to receive a fair trial.” 42 Plaintiff reiterates that “the court
should disallow reference to her inherited property at trial to avoid any ethnic bias it may
engender.” 43
Once again, the Court is the factfinder in this matter. There is no jury.
Notwithstanding the irony of bringing the second allotment to the attention of the factfinder
via this motion, the parties are assured that this Court is not prejudiced by Ms. Nanouk
inheriting her husband’s Native Allotment(s). 44 In the event the parties do need to
reference any other allotment owned by Ms. Nanouk, which seems unlikely, the parties
need only clarify which allotment they are discussing.

40

Docket 316 at 2, 3, 4.
Docket 318 at 1.
42
Id. at 5.
43
Id. at 6.
44
Defendant’s brief indicates that there are two additional allotments inherited by
Plaintiff. Docket 326 at 2.
41

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F.

Plaintif’s Motion to Preclude Use of Deposition Video (Docket 320)
Plaintiff next seeks to bar the Government from using video recordings of

the 2023 depositions of two expert witnesses, arguing that the recordings were improperly
noticed under Federal Rule of Civil Procedure 30(b)(1), which states that “[t]he party who
notices the deposition must state in the notice the method for recording the testimony.”
Plaintiff alleges unfair surprise to both experts, who did not expect to be video recorded
via Zoom. 45
Plaintiff argues that “a statement that a deposition will be recorded by Zoom
fails to supply proper notice that the deposition will be video recorded,” as the type of
recording over Zoom may be stenographic, audio, or audio-video. 46 Plaintiff notes that
while her counsel and the experts were notified that the 2018 depositions would possibly
be recorded by “audio-video,” 47 the 2023 deposition notices merely stated that they would
be “Recorded by ‘Zoom’.” 48 Both 2023 depositions were then video recorded. 49 Plaintiff
argues that Zoom allows for video conferencing, but “common parlance refers to the
program’s use as a communication method and not typically to a recording medium,” 50 and
does not alleviate the need for a court officer to be present or the video taken to be
certified. 51 Moreover, Plaintiff argues that the phrasing of the 2018 subpoenas indicates

45

Docket 320.
Docket 326 at 6.
47
See Docket 321-4 at 2 (Second Amended Notice of Deposition of Per E. Bjorn-Roli,
clarifying audio-visual recording).
48
Docket 326 at 6.
49
Id. at 3.
50
Docket 320 at 6.
51
Id. at 5.
46

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that the Government knows to identify the potential of a video recording, and failure to do
so in the 2023 subpoenas violates Rule 30. 52
Defendant argues that a certified court reporter and a certified videographer
recorded the Zoom depositions. 53 It argues that the use of Zoom for video-recorded
depositions is “well-known and widespread,” relying on four district court opinions from
around the country that have found referencing “Zoom” in a deposition notice or subpoena
complied with Rule 30(b)(3)’s notice requirement on the specific facts of those cases. 54
There clearly was not a meeting of the minds with respect to the video
recording of Zoom depositions, and the Federal Rules of Civil Procedure are undoubtedly
slow to catch up with technological advances. If nothing else, this miscommunication is a
lesson to be clearer when noticing depositions, and—in the modern world—to always
expect to be video recorded. And given that Mr. Bjorn-Roli’s deposition took place several
hours after Mr. Bjorkman’s deposition, one hopes that Mr. Bjorn-Roli would have been
given some notice by Plaintiff’s counsel that a video recording was likely.
Nevertheless, the Court expects the experts will testify live at trial. To the
extent that the video recordings of the Zoom depositions are necessary for use under
Federal Rule of Evidence 613, nothing prohibits their use. And finally, once again, this is
a bench trial. Plaintiff’s concerns that Zoom recordings provide “an inside look into all the
attorneys’ home spaces, their tastes in books, photos of their families, their likely outdated

52
53
54

Id. at 7.
Docket 334 at 2.
Id. at 4–5.

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CD collections, and the occasional child or pet that inevitably makes its way into the
camera,” are less of a concern in the absence of a jury.
G.

Plaintiff’s Motion to Preclude Assertion of Trespass (Docket 322)
The Government has suggested that Plaintiff is responsible for the

contamination because she allegedly trespassed on Air Force property to access her
allotment.

Plaintiff seeks an order barring the Government from alleging that she

trespassed on the NRRRS to access her property, arguing that her access was solely across
land open to the public, that she lacked intent to trespass, that there were no warnings
posted, that any trespass is irrelevant, and that even if relevant it could lead to unfair
prejudice, confusion of the issues, or would mislead the factfinder. 55 Plaintiff explains the
two types of land used to access her property, including the public roadway and “Tract L1,” which she argues is also public land. 56
The Government opposes the motion, arguing that the Court must adjudicate
whether Plaintiff trespassed in order to rule on the motion, rendering it a late-filed summary
judgment motion. 57 It argues that a genuine dispute exists regarding whether the road or
the portion of Tract L-1 were open for public use. It further argues that whether Plaintiff
trespassed is an element relevant to Defendant’s discretionary function argument, because
if she was trespassing and the Government had no knowledge of her presence, it may justify
the designation of this property as a lower priority than other areas that involved human

55
56
57

Docket 322.
Plaintiff cites abandonment, easement, lack of signage, etc.
Docket 327.

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occupants. 58 Moreover, the Government suggests that whether people were trespassing is
relevant to the “usual course of events” analysis in determining whether the contamination
was foreseeable, and the Court already has indicated that whether Plaintiff and her family
were trespassing is a material fact in her nuisance claim. 59
Plaintiff’s Reply Brief reiterates that there was no illegal trespass and argues
that a determination of land ownership is irrelevant based on the Government’s implied
consent to use and failure to enforce its trespass authority. Moreover, she argues that any
alleged trespass is unrelated to whether the Government maintained a nuisance on its
property, breached its duty of care as a landowner, or caused a trespass on Ms. Nanouk’s
allotment. The mere presence of the contamination, she argues, has caused Plaintiff to
suffer damages, including depreciation in her property’s value and her loss of use and
enjoyment. 60
As the Government has indicated, prejudice is not a concern, as this is a
bench trial. 61 If it becomes relevant, the issue of trespass will be sorted out at trial.
III.

CONCLUSION

The Motions in Limine at Dockets 313, 314, 315, 316, 318, 320, and 322 are
DENIED without prejudice.

58

Id. at 11–12.
Docket 324 at 10.
60
Docket 346. Plaintiff’s request that, if the Court permits the government to argue that
she trespassed, she be “permitted to amend her Complaint to allege the government’s pre-1990
failure to consider community usage during its risk assessment of contaminated sites in the 1980’s
[sic]” is an entirely new issue raised in the Reply, which treads into the mire of res judicata.
Further briefing would be required to consider such an argument.
61
Docket 327 at 10.
59

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IT IS SO ORDERED this 27th day of December, 2023, at Anchorage,
Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge

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