Simoneaux et al v. E.I. du Pont de Nemours & Company

Filing 129

RULING: In light of the Relator's burden of proof under the FCA, 93 Dupont's Motion in Limine to exclude these areas of examination and testimony on the grounds of relevance must be DENIED at this pretrial stage. This ruling is without prejudice to the rights of the parties to make evidentiary objections at trial. Signed by Judge Shelly D. Dick on 12/17/2014. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SIMONEAUX, ET AL.

CIVIL ACTION NO.

VERSUS

12-219-SDD-SCR

E.I. du PONT de NEMOURS
AND COMPANY

RULING
DuPont moves to limit the opinion testimony by Relator’s experts on the grounds
of relevance.1 DuPont seeks a limine order precluding the Relator’s experts from
testifying regarding (1) the design of DuPont’s vacuum recovery/mitigation system; (2)
the lack of proper hazards analysis; and (3) the failure to adhere to process safety
management regulations as evidence of a substantive risk of injury to health or to the
environment.2 DuPont argues that since “the vacuum recovery systems and the process
hazards analysis discipline at DuPont are not relevant to whether the leaks of sulphur
gases presents a substantial risk of injury to health or the environment, they should be
excluded.”3
Considering DuPont’s reporting obligations under the TSCA4, DuPont’s argument
appears well reasoned. By its terms, the TSCA imposes a reporting obligation when

1

DuPont points out that it “is not raising a Daubert motion with respect to [Relator’s] experts and, at this
juncture, is not questioning the expertise of the Relator’s experts or their methodology.” Rec. Doc. 93.
2
Rec. Doc. 93.
3
Id.
4
Toxic Substances Control Act, 15 U.S.C. § 2607.

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DuPont “obtains information which reasonably supports the conclusion that such
substance or mixture presents a substantial risk of injury to health or the environment.”5
However, DuPont’s Motion fails to consider the Relator’s burden under the False
Claim Act6 (“FCA”). Under the FCA, Relator must prove that DuPont “knowingly
concealed or knowingly and improperly avoided or decreased an obligation to pay or
transmit money or property to the government.” 31 U.S.C. § 3729(a)(1)(G). For
purposes of the FCA:
(1) the terms ‘knowing’ and ‘knowingly’—
(A) mean that a person, with respect to information-(i)
has actual knowledge of information;
(ii)
acts in deliberate ignorance of the truth or falsity of the
information; or
(iii)
acts in reckless disregard of the truth or falsity of the
information; and
(B) requires no proof of specific intent to defraud.7

The design of DuPont’s vacuum recovery/mitigation system; DuPont’s hazards
analysis; and DuPont’s process safety management regulations may be relevant to the
factual question of whether DuPont “knowingly concealed or knowingly and improperly
avoided or decreased an obligation to pay or transmit money or property to the
government.”8
In light of the Relator’s burden of proof under the FCA, DuPont’s Motion in
Limine9 to exclude these areas of examination and testimony on the grounds of

5

15 U.S.C. §2607(e).
31 U.S.C. §3729.
7
31 U.S.C. §3729(b).
8
31 U.S.C. §3729(a)(1)(G).
9
Rec. Doc. 93.
6

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relevance must be DENIED at this pretrial stage. This ruling is without prejudice to the
rights of the parties to make evidentiary objections at trial.
Signed in Baton Rouge, Louisiana on December 17, 2014.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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