Walters et al v. Flint et al

Filing 667

OPINION AND ORDER denying 499 Motion in Limine. Signed by District Judge Judith E. Levy. (WBar)

Case 5:17-cv-10164-JEL-KGA ECF No. 667, PageID.43731 Filed 02/08/22 Page 1 of 6

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
__________________________________/
OPINION AND ORDER DENYING DEFENDANTS VEOLIA
NORTH AMERICA, LLC, VEOLIA NORTH AMERICA, INC., AND
VEOLIA WATER NORTH AMERICA OPERATING SERVICES,
LLC’S MOTION IN LIMINE TO EXCLUDE THEORIES OF
NEGLIGENCE NOT SUPPORTED BY EXPERT TESTIMONY
[499]
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

Case 5:17-cv-10164-JEL-KGA ECF No. 667, PageID.43732 Filed 02/08/22 Page 2 of 6

exclusion of all testimony related to theories of negligence Plaintiffs no
longer offer or fail to support with expert testimony. (ECF No. 499.)
As the Court noted in its opinion resolving VNA’s motion for
summary judgment, all parties agree that Plaintiffs will not pursue
claims

regarding

TTHM

and

ferric

chloride.

(ECF

No.

606,

PageID.42705.) VNA asks the Court to “hold [Plaintiffs] to that
representation.” (ECF No. 499, PageID.37434.) As this Court has
repeatedly set forth, orders requiring compliance with previous court
orders or undisputed concessions are plainly unnecessary. (See, e.g., ECF
No. 580) (order denying as moot motion in limine to exclude Dr.
Krishnan’s causation opinions). Accordingly, this portion of VNA’s
motion is denied as moot.
VNA also asks the Court to exclude all evidence regarding its
alleged misrepresentations to the general public during a town hall
meeting. According to Plaintiffs, VNA told Flint citizens that their water
was “safe” even though it knew about the lead contamination. (ECF No.
552, PageID.41979-41980.) As the Court has held before, Plaintiffs may
not bring a separate negligence claim based on that theory because they
have not argued that such misrepresentations were causally related to
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Case 5:17-cv-10164-JEL-KGA ECF No. 667, PageID.43733 Filed 02/08/22 Page 3 of 6

their injuries. (ECF No. 606, PageID.42705-42706.) Accordingly,
Plaintiffs

may

not

put

forward

evidence

of

VNA’s

alleged

misrepresentations to the public for the purpose of establishing a
separate breach of VNA’s duties. The Court’s summary judgment opinion
governs the theories Plaintiffs may put forward at trial. (ECF No. 606.)
This is not to say, however, that Plaintiffs must be pre-emptively
barred

from

introducing

any

evidence

of

VNA’s

alleged

misrepresentations. The fact that such misrepresentations do not
constitute a separate theory of negligence does not render them
irrelevant to this case. According to Plaintiffs, VNA’s desire to win a longterm contract with the City of Flint motivated it to look away from
serious safety issues. The Court has already held that Plaintiffs may
argue this theory at trial. (ECF No. 645.) Evidence showing that VNA
misrepresented the safety of Flint’s water to the general public while it
was aware of lead contamination would certainly tend to support
Plaintiffs’ theory of the case. Accordingly, such evidence is relevant. See
United States v. Inzunza-Arenas, 831 F.App’x 778, 783 (6th Cir. 2020)
(“Evidence may not be excluded because it is insufficient to prove the
ultimate point for which it is offered, so long as ‘it has the slightest
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Case 5:17-cv-10164-JEL-KGA ECF No. 667, PageID.43734 Filed 02/08/22 Page 4 of 6

probative worth’”) (quoting United States v. Whittington, 455 F.3d. 736,
738 (6th Cir. 2006)).1
VNA also argues that evidence of its alleged misrepresentations
would be more prejudicial than probative under Federal Rule of Evidence
403. Specifically, VNA claims that without expert testimony explaining
how reasonable engineers would use the word “safe,” a jury could
misunderstand VNA’s statement and find against VNA based on its “gutreaction disapproval of that statement.” (ECF No. 499, PageID.37455.)
But VNA made the disputed statements to the general public, not (just)
to government officials or a group of qualified engineers. Accordingly, the
relevant question is not what reasonable engineers would say amongst
themselves, but what a reasonable engineer would say to the general
public. As VNA notes, the jury in this trial will be unaware of any alleged
technical meanings of the term “safe.” What VNA fails to acknowledge is
that this will put the jury in precisely the same position as VNA’s
audience at the time of the town hall meeting. There is therefore no

VNA also argues that expert testimony would be required to show that any
alleged misrepresentations to the public constituted a breach of its legal duties. That
issue is mooted by the fact that Plaintiffs may not introduce these misrepresentations
for the purpose of showing a separate breach of duty.
1

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danger that the jury will misunderstand the meaning of VNA’s
statements to that audience.
VNA next argues that introduction of this evidence could tempt a
jury to judge VNA’s statements on the basis of hindsight. It is clear that
hindsight would be an improper basis for a finding of liability. But jurors
are presumed to follow their instructions. United States v. Bradley, 917
F.3d 493, 508 (6th Cir. 2019) (citing United States v. Hynes, 467 F.3d 951,
957 (6th Cir. 2006)). Moreover, “the federal rule of evidence governing
the admission of probative evidence unless it is outweighed by the danger
of unfair prejudice…is strongly weighted toward admission.” United
States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018). Because the evidence
at issue in this motion is potentially highly probative, it is premature to
exclude it in its entirety at the in limine stage.
Accordingly, VNA’s motion in limine to exclude evidence of theories
not supported by experts is DENIED.
IT IS SO ORDERED,
Dated: February 8, 2022
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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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 February 8, 2022.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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