Walters et al v. Flint et al

Filing 655

OPINION AND ORDER granting 491 Motion in Limine. Signed by District Judge Judith E. Levy. (WBar)

Case 5:17-cv-10164-JEL-KGA ECF No. 655, PageID.43572 Filed 01/31/22 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases

Judith E. Levy
United States District Judge

__________________________________/

This Order Relates To:

Bellwether I Cases
Case No. 17-10164
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OPINION AND ORDER GRANTING DEFENDANTS VEOLIA
NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND
VEOLIA WATER NORTH AMERICA OPERATING SERVICES,
LLC’S MOTION IN LIMINE EXCLUDE EVIDENCE AND
ARGUMENT ABOUT OTHER CLAIMS AND LAWSUITS [491]
Before the Court is one of thirteen motions in limine filed by Veolia
North America, LLC, Veolia North America, Inc., and Veolia Water
North America Operating Services, LLC’s (collectively “VNA”) in
anticipation of the first Flint Water bellwether trial. VNA seeks the

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exclusion of argument and evidence about other claims and lawsuits filed
against it. (ECF No. 491.)
Federal Rule of Evidence 404(b) provides that evidence of prior acts,
including prior acts which resulted in lawsuits, “is not admissible to
prove the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b); McLeod v. Parsons Corp., 73 F.App’x
846, 853 (6th Cir. 2003). Such evidence could be admissible, however, if
relevant to show “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. In the Sixth
Circuit, evidence of prior acts is admissible only if it meets the following
four-part test:
(1) The evidence must be directed toward establishing something
other than a party’s propensity to commit the act charged; (2) the
other act must be similar enough and close enough in time to be
relevant to the matter at issue, (3) the evidence must be such
that the jury could find that the act occurred and that the party
in question committed it; and (4) the prejudicial effect of the
evidence must not clearly outweigh its probative value.

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McLeod, 73 F.App’x at 854 (citing Gastineau v. Fleet Mortgage Corp., 137
F.3d 490, 494-95 (7th Cir. 1998)).
Plaintiffs do not attempt to apply this four-part test to evidence
form any other lawsuit against VNA. Instead, they argue in hypothetical
terms that evidence from such lawsuits “could” be relevant for various
reasons, such as if VNA made a statement against interest, or if the
lawsuit at issue was sufficiently similar to the present case. (ECF No.
547, PageID.41606-41607.)
Since Plaintiffs do not point to any actual admission they wish to
introduce, that issue is not ripe for decision. Plaintiffs argue that
evidence from a lawsuit involving VNA’s work in Plymouth concerned a
failure to use corrosion control and is therefore sufficiently similar to this
case to be admissible. But this addresses only one of the four McLeod
factors. The Court is unable to evaluate the other factors without a
clearer proffer of evidence from Plaintiffs. As it stands, the basic rule that
prior act evidence is inadmissible applies to evidence arising out of other
lawsuits against VNA.

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Accordingly, VNA’s motion to exclude evidence and argument about
other lawsuits against it is GRANTED.
IT IS SO ORDERED,
Dated: January 31, 2022
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or first-class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 31, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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