VON DUPRIN LLC v. MORAN ELECTRIC SERVICE, INC. et al

Filing 206

ENTRY ON PENDING MOTIONS - For the reasons explained above, the Court makes the following rulings: Major Defendants' Motion to Limit Expert Testimony at Trial (Filing No. 166 ) and Moran's Motion in Limine to Exclude Expert Opinions of S am Williams (Filing No. 168 ) are DENIED. Von Duprin's Motion in Limine to Exclude Opinions of Adam H. Love, Ph.D. (Filing No. 169 ) is DENIED. Moran's Motion for Leave to File Sur-Reply in Opposition to Von Duprin's Motion to Exc lude the Opinions of Adam H. Love, Ph.D. ( Filing No. 191 ) is DENIED as moot. Von Duprin's Motion in Limine (Filing No. 186 ) is DENIED. The Major Defendants' Motion for Separation of Witnesses (Filing No. 194 ) is GRANTED. The Court directs the parties to instruct their witnesses to not discuss their testimony with anyone else either before or after it is given. Von Duprin's Motion to Exclude or Limit Major Defendants' Designation of Deposition Testimony (Filing No . 195 ) is DENIED. Von Duprin's Motion to Exclude Certain Exhibits Proposed by Major Defendants (Filing No. 196 ) is GRANTED in part and DENIED in part. It is granted as to the admissibility of evidence regarding the Major Defendants' investigation into vapor intrusion at properties outside the comingled plume area. It is denied as to the admissibility of the Phelps Deposition and the Fye Deposition. And finally, Von Duprin's Motion to Exclude Certain Exhibits Proposed by Moran (Filing No. 197 ) is DENIED. (See Entry.) Signed by Judge Tanya Walton Pratt on 6/14/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VON DUPRIN LLC,
Plaintiff,
v.
MORAN ELECTRIC SERVICE, INC.,
MAJOR HOLDINGS, LLC,
MAJOR TOOL AND MACHINE, INC.,
ZIMMER PAPER PRODUCTS
INCORPORATED, Defaulted on 7/24/2017,
Defendants.
MAJOR HOLDINGS, LLC,
MORAN ELECTRIC SERVICE, INC.,
MAJOR HOLDINGS, LLC,
MORAN ELECTRIC SERVICE, INC.,
MAJOR TOOL AND MACHINE, INC.,
MORAN ELECTRIC SERVICE, INC.,
Counter Claimants,
v.
VON DUPRIN LLC,
MAJOR HOLDINGS, LLC,
VON DUPRIN LLC,
VON DUPRIN LLC,
MAJOR HOLDINGS, LLC,
VON DUPRIN LLC,
VON DUPRIN LLC,
MAJOR TOOL AND MACHINE, INC.,
Counter Defendants.
MAJOR HOLDINGS, LLC,
MAJOR HOLDINGS, LLC,
MAJOR TOOL AND MACHINE, INC.,

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Case No. 1:16-cv-01942-TWP-DML

Cross Claimants,

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v.
MORAN ELECTRIC SERVICE, INC.,
MORAN ELECTRIC SERVICE, INC.,
VON DUPRIN LLC,
Cross Defendants.

ENTRY ON PENDING MOTIONS
This litigation seeks to determine the responsibility of various parties for the release of
hazardous substances at several properties located on the northeast side of downtown Indianapolis,
Indiana. Plaintiff Von Duprin, LLC (“Von Duprin”) brought suit against Moran Electric Service,
Inc. (“Moran”) and Major Holdings, LLC and Major Tool and Machine, Inc. (collectively, the
“Major Defendants”) in an attempt to get them to contribute to the costs of cleaning up the
contaminated properties. This matter is scheduled for final pretrial conference on June 26, 2019
and trial on July 22, 2019.
There are nine pending motions: (1) Major Defendants’ Motion to Limit Expert Testimony
at Trial (Filing No. 166); (2) Moran’s Motion in Limine to Exclude Expert Opinions of Sam
Williams (Filing No. 168); (3) Von Duprin’s Motion in Limine to Exclude Opinions of Adam H.
Love, Ph.D. (Filing No. 169); (4) Moran’s Motion for Leave to File Sur-Reply in Opposition to
Von Duprin’s Motion to Exclude the Opinions of Adam H. Love, Ph.D. (Filing No. 191); (5) Von
Duprin’s Motion in Limine (Filing No. 186); (6) Major Defendants’ Motion for Separation of
Witnesses (Filing No. 194); (7) Von Duprin’s Motion to Exclude or Limit Major Defendants’
Designation of Deposition Testimony (Filing No. 195); (8) Von Duprin’s Motion to Exclude
Certain Exhibits Proposed by Major Defendants (Filing No. 196); and (9) Von Duprin’s Motion
to Exclude Certain Exhibits Proposed by Moran (Filing No. 197).

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The factual background of this case is recited in detail in the Court’s Entry on the Parties’
Cross-Motions for Summary Judgment (Filing No. 203) and are addressed only sparingly in this
Entry.
I.

MAJOR DEFENDANTS’ MOTION TO LIMIT EXPERT TESTIMONY AT
TRIAL (Filing No. 166) AND MORAN’S MOTION IN LIMINE TO
EXCLUDE EXPERT OPINIONS OF SAM WILLIAMS (Filing No. 168)
Major Defendants and Moran move to limit or exclude the expert testimony of Sam

Williams. They assert “Williams’ opinions are deficient or incorrect in several respects,” Major
Defendants “seek to limit the opinions offered by Williams that lack required evidentiary support
or that would otherwise be unhelpful to the Court at trial.” (Filing No. 166.) Moran also seeks to
limit Williams’ testimony. (Filing No. 168.) The motions overlap substantially.
Federal Rule of Evidence 702 permits expert testimony—defined as testimony regarding
scientific, technical, or other specialized knowledge—if the testimony (a) is given by a person
qualified as an expert by his knowledge, skill, experience, training, or education; (b) will assist the
trier of fact to understand evidence or determine a fact at issue in the case; and (c) is sufficiently
reliable—that is, it is based on “sufficient facts or data,” “is the product of reliable principles and
methods,” and “the witness has applied the principles and methods reliably to the facts of the case.”
The Court serves as gatekeeper to weed out expert testimony that is not sufficiently reliable
or relevant to issues in the case or testimony offered by a person not sufficiently expert in the field
of study that his testimony concerns. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 589 (1993). Determining whether expert testimony is sufficiently reliable for the fact-finder
to consider requires a flexible approach, and the Court has “great latitude in determining not only
how to measure the reliability of the proposed expert testimony but also whether the testimony is,
in fact, reliable.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (emphasis in

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original). The Court’s gatekeeping role is thus focused on whether the expert testimony pertains
to an issue in the case and whether the methodology underlying the testimony is sound. Smith v.
Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 159 (1999)).
Major Defendants argue that all three conclusions that Williams’ report reaches should be
excluded for lack of evidentiary support. Williams’ first conclusion is that “Von Duprin has
incurred necessary response costs for site investigation and remediation activities associated with
the release and threatened release of hazardous substances on the Defendants’ properties.” (Filing
No. 167-1 at 12.) Major Defendants argue that Williams’ conclusion lacks evidentiary support
because he merely asserts that the Indiana Department of Environmental Management (“IDEM”)
has directed Von Duprin to perform investigation and remedial response actions, but IDEM’s
direction is irrelevant to which response costs are necessary under the Comprehensive
Environmental Response, Compensation, and Liability Act. (Filing No. 167 at 3-4.) Second,
Williams opines that “Site investigation activities performed at the Property and Study Area have
been performed in substantial compliance with the National Contingency Plan.” (Filing No. 1671 at 14.) Major Defendants contend this opinion should be excluded because investigative costs
need not comply with the National Contingency Plan (“NCP”), so the opinion is irrelevant.
Additionally, Major Defendants argue that Williams’ testimony should be excluded because he
“intends to testify that multiple environmental consultants have incurred costs consistent with the
NCP,” even though “when asked whether he had performed a specific analysis to support an
opinion that any consultant complied with the NCP, Mr. Williams expressly conceded that he had
not done so.” (Filing No. 167 at 5-6) (emphasis deleted). Third, Williams opined that “Remedy
selection and remediation within the Study Area has been performed in substantial compliance

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with the NCP.” (Filing No. 167-1 at 25.) Major Defendants argue this opinion should be excluded
as well because Williams’ report only discusses removal action, not remedial action or remedy
selection. (Filing No. 167 at 8.)
Moran’s objections follow largely the same logic. It argues that Williams admitted that he
performed no NCP compliance analysis for any consultants other than Geosyntec, Von Duprin’s
consulting firm, and yet Von Duprin is seeking to recover costs incurred by other consultants.
(Filing No. 168 at 3.) Moran also complains that Williams’ report does not provide any “analysis
or explanation of how Von Duprin’s response actions satisfied the NCP’s public participation
requirement.” Id. at 6.
Von Duprin responds that Williams is qualified to testify as an expert on NCP compliance,
that he need not opine that Von Duprin was in total compliance with the NCP, and that his opinions
that Von Duprin incurred necessary response costs and that it complied with the NCP are reliable
and based on sufficient facts. (Filing No. 175 at 3-4.) Von Duprin argues the Defendants “simply
misconstrue[] the nature of the opinion and testimony Williams was proffered to provide.” Id. at
12. He was not hired to create an itemized list of Von Duprin’s response costs and determine if
each complied with the NCP, he was hired to “look at the response as a whole and determine
whether it substantially complied with the NCP.” Id. Von Duprin also contends that Geosyntec
reports and IDEM documents provide a sufficient factual basis for Williams’ opinion that removal
costs were NCP-compliant. Id. at 12-15.
Defendants do not allege that Williams has insufficient knowledge, skill, experience,
training or education to serve as an expert witness. Rather, they argue that his testimony is not
based on sufficient facts or data and that, even if it were, much of it would not be helpful to the
trier of fact. The Court disagrees. Williams’ report is based on sufficient data to qualify him as

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an expert witness, and Defendants’ qualms with the report are a matter for cross-examination, not
a motion in limine.
Major Defendants dispute that the report contains a sufficient factual basis to form the
opinion that Von Duprin undertook necessary response costs. However, Williams’ report lists the
consultant reports that he reviewed to come to the conclusion that Von Duprin did take response
actions and it discusses the costs of those actions. (Filing No. 167-1 at 16-17.) Major Defendants
also questions Williams’ ability to speak to the reports of consultants other than Geosyntec because
“when asked whether he had performed a specific analysis to support an opinion that any
consultant complied with the NCP, Williams expressly conceded that he had not done so.” (Filing
No. 167 at 5-6) (emphasis deleted). Importantly, Williams reviewed the reports written by those
other consultants, and as an expert in the field his testimony will be useful in helping the factfinder
make sense of those reports. His report details his opinion that Von Duprin incurred remedial
costs that were substantially in compliance with the NCP.
The Defendants make valid arguments that cast doubt on Williams’ report and expected
testimony. But those arguments do not go to the admissibility of his testimony under Federal Rule
of Evidence 702. They only go to his credibility—whether the factfinder should credit certain
conclusions he reached. As such, they are appropriate questions for cross-examination, but not
enough to limit his testimony. Thus, Major Defendants’ Motion to Limit Expert Testimony at
Trial (Filing No. 166), and Moran’s Motion in Limine to Exclude Expert Opinions of Sam
Williams (Filing No. 168) are denied.
II.

Von Duprin’s Motion in Limine to Exclude Opinions of Dr. Love (Filing No. 169)
Von Duprin moves to exclude the opinions of Moran’s expert Adam H. Love, Ph.D. (“Dr.

Love”). The legal standard applied to this motion is the same standard recited in Section I of this

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Order: Federal Rule of Evidence 702 permits expert testimony—defined as testimony regarding
scientific, technical, or other specialized knowledge—if the testimony (a) is given by a person
qualified as an expert by his knowledge, skill, experience, training, or education; (b) will assist the
trier of fact to understand evidence or determine a fact at issue in the case; and (c) is sufficiently
reliable—that is, it is based on “sufficient facts or data,” “is the product of reliable principles and
methods,” and “the witness has applied the principles and methods reliably to the facts of the case.”
Von Duprin does not challenge Dr. Love’s qualifications, rather, it argues that his report
and testimony rely “on insufficient, selectively chosen data,” rendering them “unreliable and not
adequately related to the facts at issue in the litigation.” (Filing No. 170 at 4.) Von Duprin contends
that Dr. Love’s report is inaccurate because, in an effort to determine the contribution of Moran’s
properties to the contaminant plume, he analyzed soil samples from Moran’s property that had
possibly contaminated soil removed and replaced with clean soil. Id. at 5. Moran responds that
Dr. Love’s data comes from soil samples taken either pre-excavation or during excavation. (Filing
No. 173 at 7.) Because Dr. Love has declared that “only 1 soil samples [sic] (SME-2) among
approximately 470 unique soil samples (0.2% of all soil data) utilized in the soil database was
collected from a location that may have marginally overlapped a previously excavated area,” Von
Duprin’s argument is unpersuasive. (Filing No. 155-1 at 4.) (Emphasis in original.) The challenge
is one that Von Duprin may raise with Dr. Love on cross-examination, but not one that requires
exclusion of this evidence.
Von Duprin next contends that Dr. Love’s report “excludes data … that would hurt
Moran’s case and support Von Duprin’s.” (Filing No. 170 at 9.) Specifically, it argues Dr. Love’s
dataset “excluded upgradient sample locations … that demonstrated the presence of PCE
contamination near the Moran site,” that Dr. Love “ignored and excluded soil data at 1929

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Columbia Avenue which demonstrated lower and/or inconsistent amounts of PCE contamination
in the soil near the facility,” and that Dr. Love “knowingly disregards and excludes the impact of
other neighboring sites known to have used chlorinated solvents.” Id. at 9-10. Moran responds
that some of the data Von Duprin alleges Dr. Love has excluded is actually considered by his
report. (Filing No. 173 at 8-9.) Regardless, the data Von Duprin alleges Dr. Love to have excluded
does not make his testimony less reliable. His report is based on sufficient facts that qualify him
to testify under Federal Rule of Evidence 702, and any additional facts Von Duprin believes he
should have considered can be brought to his attention during cross-examination.
Finally, Von Duprin argues Dr. Love’s methodology is not acceptable because it cannot be
accurately replicated and because his “chemical signature” for contaminants at 1929 Columbia
Avenue differs from his own recommended practices. (Filing No. 170 at 13-19.) The Court is
convinced that Dr. Love’s report is the product of reliable methods and that it is detailed enough
for other scientists to probe the report and attempt to replicate his investigation. The 30-page
report is heavily footnoted with the documents Dr. Love relied upon in preparing his report. (Filing
No. 135-1.) Nothing in Von Duprin’s motion persuades the Court that Dr. Love’s methodology
was so flawed that it should be excluded. Von Duprin’s Motion to Exclude the Opinions of Adam
H. Love, Ph.D. (Filing No. 169) is denied.
III.

Moran’s Motion for Leave to File Sur-Reply in Opposition to Von Duprin’s Motion
to Exclude the Opinions of Dr. Love (Filing No. 191)
Having denied Von Duprin’s Motion to Exclude the Testimony of Adam H. Love, Ph.D,

Moran’s Motion for Leave to File a Sur-Reply (Filing No. 191) is denied as moot.
IV.

Von Duprin’s Motion in Limine (Filing No. 186)

Von Duprin filed a short but sweeping Motion in Limine asking the Court to preclude
Moran and the Major Defendants from introducing evidence on the following topics: (1) Claims
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not previously disclosed in Defendants’ Pleadings or Discovery Responses; (2) Witnesses,
exhibits, or opinions not disclosed in Defendants’ expert witness disclosures, interrogatory
response, witness lists, or exhibit lists; (3) Opinions not offered by qualified and disclosed expert
witnesses; (4) Legal conclusions offered by any witness. (Filing No. 186.) The Court agrees with
Moran that Von Duprin’s motion might be “better described as a request for the parties to follow
the Rules of Evidence at trial.” (Filing No. 190.) Von Duprin does not ask the Court to exclude
any specific evidence; it asks the Court to exclude broad categories of evidence. The Court
declines to issue an expansive ruling that merely reiterates the Rules of Evidence, but the parties
can rest assured that the Court will enforce those rules when resolving specific evidentiary disputes
at trial. Therefore, Von Duprin’s Motion in Limine (Filing No. 186) is denied.
V.

Major Defendants’ Motion for Separation of Witnesses (Filing No. 194)

The Major Defendants have moved for separation of witnesses. (Filing No. 194.) In the
absence of an objection from another party, the Court grants the motion.
VI.

Von Duprin’s Motion to Exclude or Limit Major Defendants’ Designation of
Deposition Testimony (Filing No. 195)

The Court excludes evidence on a motion in limine only if the evidence clearly is not
admissible for any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp.
1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings
must be deferred until trial, so questions of foundation, relevancy, and prejudice may be resolved
in context. Id. at 1400–01. Moreover, denial of a motion in limine does not necessarily mean that
all evidence contemplated by the motion is admissible; rather, it only means that, at the pretrial
stage, the court is unable to determine whether the evidence should be excluded. Id. at 1401.

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Major Defendants designated Richard W. Phelps’ (“Phelps”) 125-page deposition as
evidence they intend to present during their case-in-chief. (Filing No. 180.) Von Duprin asks the
Court to exclude this evidence because Major Defendants’ designation did not comply with the
Case Management Plan. (Filing No. 195.) Section VIII.A.4 of the Case Management Plan states:
A party who intends to offer any depositions into evidence during the party’s case
in chief shall prepare and file with the Court and copy to all opposing parties either:
a. brief written summaries of the relevant facts in the depositions will be offered.
(Because such a summary will be used in lieu of the actual deposition testimony
to eliminate the time reading depositions in a question and answer format, this
is strongly encouraged.); or
b. if a summary is inappropriate, a document which lists the portions of the
deposition(s), including the specific page and line numbers, that will be read….
(Filing No. 98 at 8.) Von Duprin asks the Court to exclude the Phelps deposition because the
Major Defendants designated the entire 125-page deposition instead of complying with the Court’s
instruction.
The Major Defendants are unable call Phelps to testify in person because he has passed
away. They respond that they did not intend to flout the Case Management Plan, but merely
decided not to follow it “because they intend to ask the Court to take notice of the entire Phelps
Deposition.” (Filing No. 199.) “However, in the spirit of acquiescence, Major Tool has designated
page and line numbers of particularly relevant portions of the Phelps Deposition” as an exhibit to
its response. Id. at 2; Filing No. 199-1. Moreover, the Major Defendants do not intend to have
the entire 125-page deposition read into the record. They merely ask the Court to take notice of
the whole deposition because it is relevant.
The Court finds that the Major Defendants’ have cured any non-compliance with the Case
Management Plan by highlighting particularly relevant parts of the deposition in an exhibit to their

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response. The Court will take notice of Phelps’ Deposition. Von Duprin’s motion to exclude it is
denied.
VII.

Von Duprin’s Motion to Exclude Certain Exhibits Proposed by Major Defendants
(Filing No. 196)
Von Duprin asks the Court to exclude two other types of exhibits the Major Defendants

intend to offer: the Deposition of Michael Fye (“Fye”) (and accompanying exhibits) and
“[e]xhibits concerning off-site vapor intrusion investigation activities determined unrelated to the
co-mingled plume.” (Filing No. 196.) Von Duprin argues Fye’s Deposition should be excluded
because the Major Defendants did not summarize or abridge it in compliance with the Case
Management Plan. Id. at 2-3.
The Major Defendants named Fye, a former Von Duprin employee, on their witness list
and, in response to Von Duprin’s motion, note that they intend to call him to testify in person at
trial regarding Von Duprin’s operations and use of chemicals and hazardous substances. (Filing
No. 199 at 2.) They explain that Fye’s deposition is included on their exhibit list, only because
[t]he Major Defendants are not in regular contact with Mr. Fye and are currently
unaware of his status and availability to testify at the trial. The Major Defendants
therefore included Mr. Fye’s deposition, which was taken in another matter to
which the Major Defendants were not a party, on their Trial Exhibit List in the event
Mr. Fye is shown to be unavailable to testify at the trial.
Id.
Because the Major Defendants do not intend to offer Fye’s deposition testimony unless he
is unavailable to testify at trial, the Court denies Von Duprin’s motion as to the Fye Deposition.
If the Major Defendants do ultimately move to admit the deposition into evidence at trial, Von
Duprin may renew its objection, a ruling will be made on unavailability and Von Duprin may
explain why the evidence should be excluded.

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Von Duprin also asks the Court to exclude exhibits concerning the Major Defendants’
investigation of possible vapor intrusion as St. Rita’s Catholic Church. (Filing No. 196 at 3.) Von
Duprin alleges that because the property falls outside the comingled plume at issue in this case,
the investigation into St. Rita’s Catholic Church is irrelevant. Id. The Major Defendants argue the
investigation is relevant because it will serve as a response to Von Duprin’s claims that the Major
Defendants’ response to contamination was inadequate. (Filing No. 199 at 3.)
Federal Rule of Evidence 401 defines “relevant evidence” as evidence having any tendency
to make the existence of any facts that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. By that definition, evidence that
the Major Defendants have incurred investigation costs related to contamination of properties not
at issue in this case is irrelevant. Whether the Major Defendants have attempted to clean other
contaminated properties is irrelevant to the Court’s inquiry here: how much the Major Defendants
contributed to the contamination of the comingled plume and what amount, if any, they must
contribute to help remediate the contamination. Therefore, Von Duprin’s motion is granted as to
the evidence that the Major Defendants investigated vapor intrusion at St. Rita’s Catholic Church.
VIII. Von Duprin’s Motion to Exclude Certain Exhibits Proposed by Moran (Filing No. 197)
Finally, Von Duprin seeks a pre-trial order excluding two of Moran’s proposed exhibits:
(1) Exhibit No. 600 – Redacted version of Confidential Release, Indemnification, Hold Harmless,
and Settlement Agreement between Major Defendants and Moran dated September 11, 2017 (the
“Settlement Agreement”); and (2) Demonstrative Exhibits – Any and all of the figures and tables
that are in the expert report of Dr. Adam Love, Ph.D. (Filing No. 197). Moran did not respond to
this Motion.

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Von Duprin asserts that the Settlement Agreement as redacted will be “unhelpful and a
waste of time.” (Filing No. 197 at 2.) It asks the Court either to exclude the Settlement Agreement
under Federal Rule of Evidence 403 or require Moran to produce and unredacted version of the
Settlement Agreement pursuant to the Court’s protective order (Filing No. 22) or under seal to the
Court. (Filing No. 197 at 2-3.)
Rule 403 allows the Court to exclude relevant evidence “if its probative value is
substantially outweighed by a danger of … undue delay [or] wasting time.” Moran designated the
redacted Settlement Agreement in support of its cross-motion for summary judgment against the
Major Defendants (Filing No. 153-19.) In its cross-motion for summary judgment, Moran
explained that it was engaged in litigation with the Major Defendants, and as part of the settlement
of that litigation, “Major agreed to undertake any responsibility and pay the costs associated with
any environmental response action required in response to any residual contamination at the Moran
Property or the Zimmer Parcel.” (Filing No. 152 at 4.) An unredacted part of the Settlement
Agreement supports that assertion. (Filing No. 153-19 at 10.)
Moran’s assertion that it discharged any responsibility for cleaning up the Moran Property
and the Zimmer Parcel in its settlement with the Major Defendants is relevant to this litigation,
which aims to apportion the costs of cleaning up contaminated areas including those two
properties. Von Duprin argues that “[e]xcessive redaction will not provide the Court or Von Duprin
an adequate opportunity to determine whether the Agreement contains any admissions,
obligations, recitals, or other terms pertinent to the Defendants’ liability in this case.” (Filing No.
197 at 2.) The Court is not persuaded.

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Unredacted portions of the Settlement Agreement indicate that the Major Defendants
released Moran from liability as to the Moran Property. 1 Von Duprin does not explain how
redacted portions of the Settlement Agreement would cause an undue delay or waste the Court’s
time. By failing to do so, Von Duprin has not demonstrated that the Settlement Agreement’s
probative value would be outweighed by a waste of time associated with its admission. Because
Von Duprin has not shown that the Settlement Agreement is inadmissible under Rule 403, the
Court declines to exclude the Settlement Agreement.
Von Duprin also asks the Court to exclude “any figure, table, or other matter from the
expert report of Adam H. Love, Ph.D.,” if “Dr. Love’s opinions and testimony are excluded from
trial.” Id. at 3. Because Section II of this order denies Von Duprin’s Motion to exclude Dr. Love’s
opinions and testimony, and because this motion relies on the success of that motion, the Court
also declines the request to exclude Dr. Love’s demonstrative exhibits. Accordingly, Von Duprin’s
Motion to Exclude Certain Exhibits Proposed by Moran (Filing No. 197) is denied.
IX. CONCLUSION
For the reasons explained above, the Court makes the following rulings:
Major Defendants’ Motion to Limit Expert Testimony at Trial (Filing No. 166) and
Moran’s Motion in Limine to Exclude Expert Opinions of Sam Williams (Filing No. 168) are
DENIED. Von Duprin’s Motion in Limine to Exclude Opinions of Adam H. Love, Ph.D. (Filing
No. 169) is DENIED. Moran’s Motion for Leave to File Sur-Reply in Opposition to Von Duprin’s

Specifically, an unredacted portion of the Settlement Agreement reads: “In exchange for payment of the
SETTLEMENT AMOUNT to MAJOR TOOL by the MORAN INSURERS on behalf of MORAN, MAJOR TOOL
grants to MORAN and the MORAN INSURERS a full, complete and final release, discharge and settlement of all
CLAIMS, DAMAGES and EXPENSES that MAJOR TOOL has, known or unknown, suspected, or unsuspected,
against MORAN and the MORAN INSURERS arising from CONTAMINATION or KNOWN CONTAMINATION
of or on the MORAN PROPERTIES, as asserted or that could have been asserted in the LAWSUIT, which have been
incurred by MAJOR TOOL, for which MAJOR TOOL has sought to hold MORAN liable in the LAWSUIT.” (Filing
No. 153-19 at 10.)
1

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Motion to Exclude the Opinions of Adam H. Love, Ph.D. (Filing No. 191) is DENIED as moot.
Von Duprin’s Motion in Limine (Filing No. 186) is DENIED.
The Major Defendants’ Motion for Separation of Witnesses (Filing No. 194) is
GRANTED. The Court directs the parties to instruct their witnesses to not discuss their testimony
with anyone else either before or after it is given. Von Duprin’s Motion to Exclude or Limit Major
Defendants’ Designation of Deposition Testimony (Filing No. 195) is DENIED. Von Duprin’s
Motion to Exclude Certain Exhibits Proposed by Major Defendants (Filing No. 196)

is

GRANTED in part and DENIED in part. It is granted as to the admissibility of evidence
regarding the Major Defendants’ investigation into vapor intrusion at properties outside the
comingled plume area. It is denied as to the admissibility of the Phelps Deposition and the Fye
Deposition. And finally, Von Duprin’s Motion to Exclude Certain Exhibits Proposed by Moran
(Filing No. 197) is DENIED.
SO ORDERED.
Date: 6/14/2019

DISTRIBUTION:
Glenn David Bowman
STOLL KEENON OGDEN, PLLC (Indianapolis)
[e-mail]
Alexandra Robinson French
BARNES & THORNBURG LLP
[e-mail]
Samuel B. Gardner
ICE MILLER LLP
[e-mail]
Edward S. Griggs
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BARNES & THORNBURG LLP (Indianapolis)
[e-mail]
Bruce L. Kamplain
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]
Angela Pease Krahulik
ICE MILLER LLP
[e-mail]
Cynthia Elaine Lasher
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]
Marc Andrew Menkveld
STOLL KEENON OGDEN, PLLC (Indianapolis)
[e-mail]
Nicholas B. Reuhs
ICE MILLER LLP
[e-mail]

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