McCalvey v. Atlas Copco Compressors, L.L.C. et al

Filing 449

ORDER DENYING First Motion in Limine No. 1 and No. 2 with Supporting Memorandum filed by Gerald D McAlvey [Doc. 421], and GRANTING in part and DENYING in part Motion in Limine filed by John Crane Inc. [Doc. 419]. Signed by Judge Staci M. Yandle on 10/15/15. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

GERALD D. MCALVEY,
Plaintiff,
vs.
ATLAS COPCO COMPRESSORS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 14-CV-64-SMY-SCW

MEMORANDUM AND ORDER
YANDLE, District Judge:
Pending before the Court are John Crane’s Motions in Limine (Doc. 419) and Plaintiff’s
Motions in Limine (Doc. 421). The Court rules as follows:
Plaintiff’s Motions in Limine
•

Motion in limine No. 1 – to prohibit Defendant, its counsel and witnesses from testifying
about, relying upon, or referring to any evidence or testimony regarding whether Plaintiff or
witnesses tried, smoked, or consumed tobacco products in the past. The Motion is DENIED.

•

Motion in limine No. 2 – to prohibit John Crane and its experts from testifying about, relying
upon, or referring in any way to speculative and unreliable asbestos fiber potency ratios
contained in, or referenced in, the following studies: (i) Berman & Crump (2003), (2008a),
and (2008b); (ii) Brattin & Crump (2008); and (ii) Hodgson & Darnton (2000). The Motion
is construed as a Daubert motion. As Daubert motions were due to be filed on or before
April 10, 2015, the Motion is DENIED as untimely.
Defendant’s Motions in Limine

1. The Court GRANTS the following unopposed motions in limine:
•

Motion in limine No. 2 – to exclude evidence, testimony, or reference to
settlement offers and/or negotiations;

•

Motion in limine No. 7 – to exclude evidence regarding motions in limine;

•

Motion in limine No. 17 – to exclude testimony or documentary evidence
suggesting John Crane Inc. is liable for injuries caused by another manufacturer’s

product;
•

Motion in limine No. 20 – to exclude expert testimony not previously disclosed;

•

Motion in limine No. 21 – to exclude previously undisclosed medical bills; and

•

Motion in limine No. 29 – to exclude cross-claims of co-defendants.

2. The following motions in limine are opposed by the parties and decided by the Court as
follows:
•

Motion in limine No. 1 – to exclude testimony regarding John Crane’s insurance
against liability. The Motion is GRANTED.

•

Motion in limine No. 3 – To exclude references to John Crane as an
“Asbestos Company” or as Part of the “Asbestos Industry.” There is no
legal support for the exclusion of such references nor would Defendant be
unduly or unfairly prejudiced by such references. Therefore, the Motion
is DENIED.

•

Motion in limine No. 4 – to exclude demonstrative evidence or real
physical evidence until court rules on admissibility. The Motion is
GRANTED.

•

Motion in limine No. 5 – to exclude references to Plaintiff as an
“Asbestos Victim” or Any Other Such “Inflammatory Characterizations”
of Plaintiff. The Court finds no legal support for excluding such
characterizations and, therefore, the Motion is DENIED.

•

Motion in limine No. 6 – to exclude evidence regarding the amount of
money or time spent by John Crane in defending this matter or any
reference to John Crane’s wealth. The Motion is GRANTED as to the
amount of money or time spent by John Crane in defending this matter.
The Motion is DENIED as to references to John Crane's wealth to the
extent that those references are based upon evidence which has been
admitted.

•

Motion in limine No. 8 – to exclude witnesses’ medical diagnosis. The
Motion is taken UNDER ADVISEMENT subject to an offer of proof
prior to Plaintiff’s Counsel making any reference to or eliciting any
testimony regarding this subject matter.

•

Motion in limine No. 9 – to exclude reference, testimony or evidence that
any friend, relative, co-worker, or other person was injured as a result of
exposure to asbestos. The Motion is taken UNDER ADVISEMENT
subject to an offer of proof prior to Plaintiff’s Counsel making any
reference to or eliciting any testimony regarding this subject matter.

2

•

Motion in limine No. 10 – to exclude evidence of workers’ compensation
claims involving John Crane. The Motion is GRANTED.

•

Motion in limine No. 11 – to exclude references to John Crane’s alleged
participation and/or membership in any organizations (without proof).
The Motion is DENIED.

•

Motion in limine No. 12 – to exclude evidence regarding John Crane
products in use at job sites after Plaintiff’s last date of claimed exposure
(time). The Motion is GRANTED.

•

Motion in limine No. 13 – to exclude any trial testimony regarding John
Crane Inc. products used at job sites where Plaintiff did not work
(location). The Motion is taken UNDER ADVISEMENT subject to an
offer of proof prior to Plaintiff’s Counsel making any reference to or
illiciting any testimony regarding this subject matter.

•

Motion in limine No. 14 – to exclude hearsay testimony as to whether a
product contained asbestos. The Motion concerns testimony that the
word “asbestos” appeared on a package labels and, as such is DENIED.

•

Motion in limine No. 15 – to exclude reference, testimony, or evidence of
warnings affixed to John Crane Inc. products post exposure. The Motion
is GRANTED.

•

Motion in limine No. 16 – to exclude reference or testimony regarding
evidence of co-workers’ injuries or deaths related to asbestos exposure.
The Motion is taken UNDER ADVISEMENT subject to an offer of
proof prior to Plaintiff’s Counsel making any reference to or eliciting any
testimony regarding this subject matter.

•

Motion in limine No. 18 – to exclude evidence, testimony, or argument
regarding any other lawsuit involving John Crane. The Motion is
DENIED.

•

Motion in limine No. 19 – to exclude speculative fact witnesses. The
Motion is DENIED as vague.

•

Motion in limine No. 22 – to exclude suggestions that Plaintiff was
exposed to crocidolite asbestos fibers from his work with products
supplied by John Crane. The Motion is DENIED.

•

Motion in limine No. 23 – to exclude testimony regarding John Crane
Inc.’s “legal duties.” The Motion is DENIED.

•

Motion in limine No. 24 – to exclude testimony or documentary evidence
suggesting that John Crane owed a duty to warn Plaintiff post-sale. The
Motion is DENIED.

3

•

Motion in limine No. 25 – to exclude law testimony, not based on
personal observations that Plaintiff would or could have worked with or
around any John Crane products. The Motion is DENIED.

•

Motion in limine No. 26 – to exclude speculative lay testimony, not based
on personal observations, that the Plaintiff “would or could have” worked
with or around any John Crane products. The Motion is DENIED.

•

Motion in limine No. 27 – to exclude evidence of post-sale manufactured
products. The Motion is taken UNDER ADVISEMENT subject to an
offer of proof prior to Plaintiff’s Counsel making any reference to or
eliciting any testimony regarding this subject matter.

•

Motion in limine No. 28 – to exclude argument or evidence regarding
Defendant’s knowledge or conduct post-dating Plaintiff’s last alleged
exposures. The Motion is GRANTED.

•

Motion in limine No. 30 – to exclude argument that because Plaintiff or
any person through whom exposure is alleged saw visible dust while
utilizing John Crane’s products was exposed to asbestos through that
product. The Motion is DENIED.

•

Motion in limine No. 31 – to exclude prior deposition testimony and prior
court testimony not stipulated to by John Crane. The Motion is taken
UNDER ADVISEMENT pending arguments at the Final Pre-trial
Conference.

•

Motion in limine No. 32 – to take judicial notice of the Feres Doctrine.
The Motion is DENIED.

•

Motion in limine No. 33 – to exclude photographs (allegedly) taken
during Plaintiff’s VATS procedure. The Motion is taken UNDER
ADVISEMENT pending arguments at the Final Pre-trial Conference.

IT IS SO ORDERED.
DATED: October 15, 2015
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

4