Sheppard v. Liberty Mutual Insurance Company et al

Filing 416

ORDER & REASONS denying 186 Motion in Limine; denying as moot 187 Motion to Strike ; denying 198 Motion in Limine; denying 199 Motion in Limine; denying 201 Motion in Limine; denying as moot 208 Motion for Partial Summary Judgment; denying 211 Motion for Judicial Admission Regarding Asbestosis. Signed by Judge Sarah S. Vance on 2/2/2017. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JESSE FRANK SHEPPARD
VERSUS

CIVIL ACTION
NO. 16-2401

LIBERTY MUTUAL INSURANCE
COMPANY, ET AL.

SECTION “R” (3)

ORDER AND REASONS
Jesse Frank Sheppard alleges that he suffers from lung cancer caused
by asbestos exposure. He brings claims against his former employer, several
manufacturers and distributors of asbestos-containing products, and related
insurers. The parties have filed several motions, and the Court resolves seven
of them as follows.

I.

BACKGROUND
This suit was originally filed in the Civil District Court for the Parish of

Orleans.1 Defendant Mosaic Global Holdings Inc. removed the action to this
Court on March 22, 2016. 2 In his complaint, Sheppard alleges that he was
exposed to asbestos “[o]n a daily basis” as an employee of Mosaic’s

1
2

R. Doc. 1 at 1.
Id.

predecessor company, Freeport Sulphur Company.3 This exposure allegedly
caused Sheppard to develop asbestos-related cancer, lung cancer, and/or
mesothelioma. 4 Although Sheppard stopped working for Freeport in the
early- to mid-1990s, 5 Sheppard’s asbestos-related ailments were first
diagnosed in October 2015. 6
In addition to Freeport/Mosaic, Sheppard sues several defendants
involved in the manufacture, distribution, and sale of asbestos-containing
products that Sheppard allegedly encountered in the course of his work.7
Sheppard also brings claims against insurance companies that allegedly
provided coverage to defendants for asbestos-related claims and withheld
information from Sheppard about the danger of asbestos. 8
Sheppard brings claims for “negligence, intentional tort, fraud, and
strict liability,” and alleges that all defendants are “jointly, severally, and in

R. Doc. 1-1 at 5.
Id. at 6.
5
Sheppard’s complaint is inconsistent on this point. Sheppard alleges
variously that his tenure at Freeport, and exposure to asbestos, ran from
“approximately 1967 through 1992,” from “approximately 1967 through
1994,” and “from 1967 through 1976.” R. Doc. 1-1 at 5, 6.
6
R. Doc. 1-1 at 6.
7
Id. at 6, 7.
8
Id. at 3, 4, 8.
2
3

4

solidio liable.”9 He seeks damages for, among other things, physical and
mental pain, loss of life, loss of income, and medical expenses. 10

II.

DISCUSSION
A. Motion to Strike Gayla McCluskey (R. Doc. 187)
Sheppard moves to strike Gayla McCluskey on the grounds that

defendant Reilly Power never offered McCluskey for deposition.

In

response, Reilly Power points to an email sent by its counsel to Sheppard’s
counsel on December 27, 2016. In the email, “Riley Power, Inc. offers Gayla
McCluskey for deposition by telephone at 1:00 pm EST on January 3, 2017.”11
This date is before the close of discovery,12 and plaintiffs have offered no
further briefing to suggest this dispute remains live. Accordingly, the motion
is DENIED AS MOOT.

9
10
11
12

Id. at 29.
Id.
R. Doc. 223-1 at 3.
R. Doc. 150.
3

B. Motion to Exclude Evidence Regarding Settlements (R.
Doc. 198) and Motion to Exclude Evidence Regarding
Collateral Sources (R. Doc. 199)
In these two motions, Sheppard argues that evidence that he settled
claims with other defendants in this case is inadmissible under Federal Rule
of Evidence 408 and that evidence of collateral sources of compensation,
such as insurance benefits, is inadmissible under the collateral source rule.
Under Rule 408, evidence of compromise of a claim is inadmissible for
purposes of establishing liability. Fed. R. Evid. 408. Similarly, “the collateral
source rule operates to exclude evidence of collateral benefits because it may
unfairly prejudice the jury.” Trico Marine Assets Inc. v. Diamond B Marine
Servs. Inc., 332 F.3d 779, 794 n.7 (5th Cir. 2003).
Defendants respond that both settlement agreements and evidence of
collateral sources may be admissible to show bias or prejudice in a witness,
to explain why the plaintiff’s testimony regarding settling defendants has
changed, or for other limited purposes. Defendants are correct that Rule 408
is not a blanket ban on settlement evidence. See Fed. R. Evid. 408(b); 2
McCormick On Evid. § 266 (7th ed. 2016). However, “[i]n evaluating the
‘another purpose’ exception to Rule 408, the district court must balance the
exception against the policy of encouraging settlements, and take care that
an ‘indiscriminate and mechanistic’ application of the exception does not
4

undermine the rule’s public policy objective.” Marine Power Holding, L.L.C.
v. Malibu Boats, LLC, No. 14-912, 2016 WL 4218217, at *4 (E.D. La. Aug. 8,
2016) (quoting Gulf S. Mach., Inc. v. Am. Standard, Inc., No. 97-065, 1999
WL 102752, at *2 (E.D. La. Feb. 22, 1999)). A similar balancing standard
applies to the collateral source rule. Trico Marine, 332 F.3d at 794 n.7. (“[I]n
certain circumstances, [collateral source] evidence could be admitted for a
limited purpose if there is little risk of prejudice and the court gives the jury
a limiting instruction.”).
The parties have argued these motions in generalities rather than
specifics. Neither party identifies which specific settlements should be
excluded or admitted. Sheppard does not outline why evidence of
settlements with any party would be prejudicial. Defendants, meanwhile, list
reasons why a settlement might be admissible, but offer no argument
tailored to the facts of this case. The parties’ briefing regarding collateral
sources is similarly academic.
Accordingly, the Court finds that a blanket ban on these categories of
evidence is unwarranted, and Sheppard’s motions are DENIED. However, in
view of the potential prejudice associated with evidence of prior settlements
or collateral sources of compensation, no such evidence will be admissible at
trial without express permission of the Court. Parties seeking to introduce
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evidence relating to settlements or collateral sources shall provide written
briefing on the issue, no later than midnight on the day before the proposed
offer.

C. Motion in Limine Regarding Experts That Have Not Yet
Been Deposed (R. Doc. 201)
Sheppard represents that he was unable to depose all of defendants’
experts before the Court’s deadline for Motions in limine regarding the
admissibility of expert testimony. He has accordingly filed the instant
motion “in order to preserve the plaintiff’s ability to supplement this motion
if, following the deposition of the remaining expert witnesses, it appears that
a motion in limine regarding the admissibility of the experts’ testimony is
warranted.”13 This is not a proper use of a motion in limine, and the motion
is therefore DENIED.

D. Motion for Judicial Admission Regarding Asbestosis (R.
Doc. 211)
In this motion, Sheppard argues that in moving for summary judgment
on Sheppard’s purported claims for asbestosis, defendants made a judicial

13

R. Doc. 201-1 at 2.
6

admission that Sheppard in fact has asbestosis. Defendants deny making
any such admission.
The Fifth Circuit defines a judicial admission as “a formal concession
in the pleadings or stipulations by a party or counsel that is binding on the
party making them.” Martinez v. Bally’s Louisiana, Inc., 244 F.3d 474, 476
(5th Cir. 2001). A judicial admission is conclusive and withdraws a fact from
contention. See id. Further, a statement by counsel during the course of trial
may qualify as a judicial admission if counsel intended to release the
opponent from proof of a fact. See id. An ordinary evidentiary admission, on
the other hand, is “‘merely a statement of assertion or concession made for
some independent purpose,’ and it may be controverted or explained by the
party who made it.” Id. (quoting McNamara v. Miller, 269 F.2d 511, 515
(D.C. Cir. 1959)).
Defendants’ motion concerning asbestosis plainly does not meet the
standard for judicial admissions. In their motion for summary judgment,
Defendants argue that any claim for asbestosis is prescribed because
Sheppard alleges he was diagnosed with asbestosis in 2011. 14 Defendants
make clear that they dispute the validity of this diagnosis. This is far from

14

R. Doc. 208-1.
7

the “formal concession” required to constitute a judicial admission.
Accordingly, the motion is DENIED.

E. Motion for Partial Summary
Asbestosis Claims (R. Doc. 208)

Judgment

Regarding

Defendants move for summary judgment on any claims Sheppard
brings for asbestosis. 15 Sheppard denies that he has brought such a claim. 16
To the extent the complaint is ambiguous on this point, the Court defers to
Sheppard’s more limited interpretation of his own complaint. See Gen.
Chemicals, Inc. v. Exxon Chemical Co., USA, 625 F.2d 1231, 1234 (5th Cir.
1980) (considering plaintiff’s briefing in interpreting complaint that was “not
a model of clarity”); see also Lippitt v. Raymond James Fin. Servs., Inc., 340
F.3d 1033, 1040 (9th Cir. 2003) (deferring to plaintiff’s more limited
interpretation of the claims brought in its ambiguous complaint). Therefore,
because Sheppard’s complaint brings no claim for asbestosis, defendants’
motion is DENIED AS MOOT.

15
16

Id.
R. Doc. 247.
8

F. Motion in Limine to Exclude Alleged Consultation Note
(R. Doc. 186)
Sheppard moves to exclude a “consultation note” allegedly completed
by a Dr. Smith. According to the note, dated November 7, 1989, Sheppard
had at that time “been a smoker for about 25 years with a 20 to 25 pack a
year history.” 17 The parties dispute whether the note indicates that Sheppard
had a 20-25 “pack year” history—meaning Sheppard smoked roughly a pack
of cigarettes a day for 20 to 25 years—or that Sheppard smoked roughly two
packs per month over 20 to 25 years. In other words, defendants argue that
a “pack year” is common medical term for measuring a smoking habit, that
the “a” in “pack a year history” is a typo, and that Dr. Smith meant to say that
Sheppard had a 20-25 pack year history. Sheppard, meanwhile, maintains
that Dr. Smith is saying that Sheppard smoked 20-25 packs per year for
about 25 years.
In support of his motion for exclusion, Sheppard argues that the
consultation note is hearsay, cannot be properly authenticated, and will
cause confusion and prejudice. The Court considers these purported grounds
for exclusion in turn. To counter Sheppard’s arguments regarding hearsay
and authenticity, defendants assert that the Dr. Smith record falls under the

17

R. Doc. 186-4.
9

business records exception to the hearsay rule and is self-authenticating
pursuant Federal Rule of Evidence 902(11). See Fed. R. Evid. 803(6); Fed.
R. Evid. 902(11).
“The issue of admissibility under 803(6) is chiefly a matter of
trustworthiness.” Mississippi River Grain Elevator, Inc. v. Bartlett & Co.,
Grain, 659 F.2d 1314, 1319 (5th Cir. 1981). The rule imposes “no requirement
that the records be created by the business having custody of them.” United
States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990). Nonetheless, the
assumption of trustworthiness underpinning 803(6) “collapses when ‘any
person in the process is not acting in the regular course of the business.’”
Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 279 (5th Cir. 1991) (quoting
McCormick on Evidence § 306 at 872 (3rd ed. 1984)).
In support of their positions, the parties present dueling affidavits from
Jimmie S. Coney, the custodian of records for the offices of William C. Coney,
MD.18 In the affidavit offered by defendants, Coney states that: (1) the Dr.
Smith record is drawn from “a true, accurate and complete copy of the
medical records of Jesse Frank Sheppard maintained by” the offices William
C. Coney, MD19; (2) these medical records “were made at or near the time of

18
19

R. Doc. 186-8; R. Doc. 225-3.
R. Doc. 225-3 at 1.
10

the occurrence of the matter set forth by, or from information transmitted
by, people with knowledge of those matter” 20; and (3) the records “were kept
in the course of regularly conducted business activity and it was the regular
practice of the business to make the records.”21 These declarations satisfy
Rules 803(6)(A)-(C) and 902(11), and would therefore usually provide a
proper foundation for admission.
Sheppard, however, presents a second affidavit in which Coney
specifically addresses the Dr. Smith record. In this later affidavit, Coney
states that (1) the Dr. Smith record “is not created in the course and scope of
this office” and Coney “cannot attest to the authenticity accuracy, or veracity
of said document or any statements contained therein” (2) the record was
not “prepared by anyone in the offices” of William C. Coney, MD, but rather
was “made by an individual(s) from another medical facility”; and (3) the
business practices of this other medical facility are “not known to” Coney.22
The combined effect of these affidavits is that Coney knows how the Dr.
Smith record was kept by his office—i.e. in a way that satisfies the business
records exception—and that the record was prepared by another medical
facility, but Comey does not know how that facility produced the record. The

20
21
22

Id. at 2.
Id.
R. Doc. 186-8.
11

Fifth Circuit faced very similar facts in United States v. Duncan, 919 F.2d
981 (5th Cir. 1990). In Duncan, the court considered insurance company
records, which had been authenticated by a representative of the insurance
company. Id. at 986. The insurance file contained medical records produced
by hospitals unaffiliated with the insurance company. Id. The Duncan
defendants argued that because “the insurance company records contained
other unauthenticated medical records and statements by doctors,” the
business records exception did not apply and the records could not be
sufficiently authenticated. Id.
The Fifth Circuit squarely rejected this argument. In doing so, the
court found that “[t]he insurance companies compiled their records from the
business records of hospitals,” and “[b]ecause the medical records from
which the insurance company records were made were themselves business
records, there was no accumulation of inadmissible hearsay.” Id. The court
mentioned no need for testimony regarding the practices of the hospitals
which produced the records, and the opinion’s discussion of the relevant
testimony suggests that none was offered. Id. at 986 n. 4.
The Court finds that Duncan provides sufficient authority to reject
Sheppard’s hearsay and authenticity arguments. The Court further notes
that Sheppard’s statement regarding his smoking history, which is
12

incorporated into the Dr. Smith record, is an opposing party’s statement and
therefore is not hearsay under Rule 801(d)(2). Even if Sheppard’s statement
were hearsay, it would fall under the hearsay exception for statements made
for medical diagnosis or treatment. See Fed. R. Evid. 803(4).
Furthermore, as to authenticity, the Fifth Circuit “does not require
conclusive proof of authenticity before allowing the admission of disputed
evidence.” In re McLain, 516 F.3d 301, 308 (5th Cir. 2008) (citing United
States v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993)). Rather, Rule 901 “merely
requires some evidence which is sufficient to support a finding that the
evidence in question is what its proponent claims it to be.” Accordingly, “[a]
proponent may authenticate a document with circumstantial evidence,
including the document’s own distinctive characteristics and the
circumstances surrounding its discovery.” Id. (internal quotations omitted).
Here, the characteristics and discovery of the Dr. Smith record strongly
support its authenticity. The document was produced as part of a 290 page
medical record and the parties appear to agree as to the authenticity of the
other 289 pages. Furthermore, the document’s appearance is consistent with
the countless medical records the Court has reviewed in the past.
Accordingly, the Court finds that defendants have presented sufficient

13

evidence to support a finding that the Dr. Smith record “is what its proponent
claims it to be.” Id.
Finally, Sheppard’s argument that the Dr. Smith record will lead to
confusion in unpersuasive. Evidence may sometimes be excluded if it is likely
to confuse the jury. See, e.g., Day v. Rogers, 260 F. App’x 692, 693 (5th Cir.
2007). But Sheppard provides no support that for the notion that evidence
subject to two competing interpretations should be excluded for that reason
alone. Furthermore, the Dr. Smith report speaks directly to a key issue in
this case—Sheppard’s smoking history—and its probative value therefore
outweighs any risk of confusion.
For these reasons, Sheppard’s motion in limine to exclude the Dr.
Smith report is DENIED.

III. CONCLUSION
For the foregoing reasons:
• Sheppard’s Motion to Strike Gayla McClusky (R. Doc. 187) is
DENIED AS MOOT.
• Sheppard’s Motion to Exclude Evidence Regarding Settlements
(R. Doc. 198) is DENIED. Parties seeking to introduce evidence

14

relating to settlements shall provide written briefing on the issue,
no later than midnight on the day before the proposed offer.
• Sheppard’s Motion to Exclude Evidence Regarding Collateral
Sources (R. Doc. 199) is DENIED. Parties seeking to introduce
evidence relating to collateral sources shall provide written
briefing on the issue, no later than midnight on the day before
the proposed offer.
• Sheppard’s Motion in Limine Regarding Experts That Have Not
Yet Been Deposed (R. Doc. 201) is DENIED.
• Sheppard’s Motion for Judicial Admission Regarding Asbestosis
(R. Doc. 211) is DENIED.
• Defendants’ Motion for Partial Summary Judgment Regarding
Asbestosis Claims (R. Doc. 208) is DENIED AS MOOT.
• Sheppard’s Motion in Limine to Exclude Alleged Consultation
Note (R. Doc. 186) is DENIED.
2nd
New Orleans, Louisiana, this _____ day of February, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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