Cooper Industries, LLC v. Toastmaster Inc. et al

Filing 162

MEMORANDUM AND AMENDED CASE MANAGEMENT ORDER (See Full Order) Bench Trial set for 1/22/2019 at 8:30 AM in Courtroom 14S before District Judge Catherine D. Perry., Pretrial Compliance due by 12/13/2018. Motion in Limine due by 12/23/2018. IT IS FURTHER ORDERED that the total trial will be limited to 24 hours, with each side to have 12 hours to complete its case. Any time spent examining or cross- examining a witness will be counted, as will be any time spent making an opening statement, c losing argument or argument on any type of motions or objections, and any deposition testimony must either be played on video or read in court with the time spent doing so included in the 12 hour time limit. Signed by District Judge Catherine D. Perry on 12/3/18. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
COOPER INDUSTRIES, LLC,
Plaintiff,
vs.
SPECTRUM BRANDS, INC.,
Defendant/Counter Plaintiff,
vs.
COOPER INDUSTRIES, LLC, et al.,
Counter Defendants.

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Case No. 2:16 CV 39 CDP

MEMORANDUM AND AMENDED CASE MANAGEMENT ORDER
In 1980, the predecessor of plaintiff Cooper (McGraw Edison) sold some property and
plant sites to the predecessor of defendant Spectrum Brands, Inc. (Toastmaster) under an Asset
Purchase Agreement.1 One of these plants is located in Macon, Missouri. After the sale,
environmental contamination from trichloroethylene (TCE)2 was discovered at the Macon site
and remediation began.
To determine responsibility for the cleanup costs, the parties have asserted claims for
contribution under §113(f) of CERCLA, and these claims are set for a four-day bench trial on a
docket beginning January 22, 2019. The parties move to exclude from trial the testimony of

1

As with prior Orders, because the parties agree that Cooper now holds all the rights and
responsibilities of McGraw Edison and Spectrum holds all the rights and responsibilities of
Toastmaster under the agreement, for ease of reference I will substitute Cooper for McGraw
Edison and Spectrum for Toastmaster in this opinion.
2

TCE is an industrial degreaser used to clean machine parts. Cooper manufactured small
appliances at the Macon site.

certain experts3 under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579 (1993), and its progeny. The purpose of such motions is to ensure that only reliable and
relevant expert testimony is presented to a jury. Russell v. Whirlpool Corp., 702 F.3d 450, 456
(8th Cir. 2012). In non-jury trials such as this one, there is less need for the Court to exercise
this gatekeeping function “‘when the gatekeeper is keeping the gate only for [her]self.’” In re
Zurn Pex Plumbing Prods. Liability Litigation, 644 F.3d 604, 613 (8th Cir. 2011) (quoting
United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)). Thus, Daubert’s application is
relaxed for bench trials. David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir.
2012).
The opinion of a qualified expert witness is admissible if: 1) it is based upon sufficient
facts or data, 2) it is the product of reliable principles and methods, and 3) the expert has applied
the principles and methods reliably to the facts of the case. Fed. R. Evid. 702.; see also Watson,
668 F.3d at 1015. A party’s mere disagreement with an expert’s assumptions and methodologies
does not warrant exclusion of expert testimony. Id. If a party thinks other assumptions and
methodologies are more appropriate, it may make this apparent through cross-examination and
its own expert witnesses. Id. “[Q]uestions of conflicting evidence must be left for [the
factfinder’s] determination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 930 (8th Cir. 2001)
(internal quotation marks and citation omitted).
I have substantial discretion in determining whether expert testimony should be allowed.
Russell, 702 F.3d at 456. If I am satisfied with the expert’s knowledge, skill, experience,
training, or education, and the expert’s testimony is reasonably based on that expertise, admitting
the testimony is not an abuse of discretion. Daubert, 509 U.S. at 588-91; Weitz Co. v. MH
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These experts are David Ledbetter, Esq., Michael Berman, P.E., and David Reynolds, Ph.D.,
for Cooper, and Tyler Gass for Spectrum.
2

Washington, 631 F.3d 510, 527 (8th Cir. 2011). I should resolve doubts regarding an expert’s
testimony in favor of admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th
Cir. 2006). “As a general rule, the factual basis of an expert opinion goes to the credibility of the
testimony, not the admissibility, and it is up to the opposing party to examine the factual basis
for the opinion in cross examination.” Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir.
2002) (internal quotation marks and citation omitted).
Applying these standards, I conclude that these challenged experts will be permitted to
testify at trial, but their opinions will be given only such weight as I deem appropriate at the
conclusion of the trial. Therefore, all motions in limine will be denied.
The parties have consented to a bench trial in St. Louis and indicate that it should take
four days to try this case to its conclusion. [Doc. # 160]. Because this case is now a bench trial,
the Court herewith enters an amended pre-trial order which imposes modified filing obligations,
including the pre-trial filing of proposed findings of fact and conclusions of law, upon the
parties. Moreover, as we ordinarily are able to complete 6 hours of trial per trial day, the total
trial will be limited to 24 hours, with each side to have 12 hours to complete its case. Any time
spent examining or cross-examining a witness will be counted, as will be any time spent making
an opening statement, closing argument or argument on any type of motions or objections.
Additionally, of course, any deposition testimony must either be played on video or read in court,
and the time spent doing so will be included in the 12 hour time limit.
Accordingly,
IT IS HEREBY ORDERED that the motions in limine [121, 128] are denied.
IT IS FURTHER ORDERED that the amended case management order previously
entered on February 28, 2018 [110] is amended only as follows: this action is now set for a

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NON-JURY trial on January 22, 2019, at 8:30 a.m in St. Louis, Missouri. This is a two week
docket.
In this case, unless otherwise ordered by the Court, the attorneys shall, not less than
twenty (20) days prior to the date set for trial:
1.
Stipulation: Meet and jointly prepare and file with the Clerk a JOINT
Stipulation of all uncontested facts, which may be read into evidence subject to any objections of
any party set forth in said stipulation.
2.

Witnesses:

(a)
Deliver to opposing counsel, and to the Clerk, a list of all proposed
witnesses, identifying those witnesses who will be called to testify and those who may be called.
(b)
Except for good cause shown, no party will be permitted to call any
witnesses not listed in compliance with this Order.
3.

Exhibits:

(a)
Mark for identification all exhibits to be offered in evidence at the trial
(Plaintiffs to use Arabic numerals and defendants to use letters, e.g., Pltf-1, Deft.-A, or Pltf
Jones-1, Deft Smith-A, if there is more than one plaintiff or defendant), and deliver to opposing
counsel and to the Clerk a list of such exhibits, identifying those that will be introduced into
evidence and those that may be introduced. The list shall clearly indicate for each business
record whether the proponent seeks to authenticate the business record by affidavit or declaration
pursuant to Fed. R. Evid. 902(11) or 902(12).
(b)
Submit said exhibits or true copies thereof, and copies of all affidavits or
declarations pursuant to Fed. R. Evid. 902(11) or 902(12), to opposing counsel for examination.
Prior to trial, the parties shall stipulate which exhibits may be introduced without objection or
preliminary identification, and shall file written objections to all other exhibits.
(c)
Except for good cause shown, no party will be permitted to offer any
exhibits not identified or not submitted by said party for examination by opposing counsel in
compliance with this Order. Any objections not made in writing at least ten (10) days prior to
trial may be considered waived.
4.

Depositions, Interrogatory Answers, and Request for Admissions:

(a)
Deliver to opposing counsel and to the Clerk a list of all interrogatory
answers or parts thereof and depositions or parts thereof (identified by page and line numbers),
and answers to requests for admissions proposed to be offered in evidence. At least ten (10) days
before trial, opposing counsel shall state in writing any objections to such testimony and shall

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identify any additional portions of such depositions not listed by the offering party which
opposing counsel proposes to offer.
(b)
Except for good cause shown, no party will be permitted to offer any
interrogatory answer, or deposition or part thereof, or answer to a request for admissions not
listed in compliance with this Order. Any objections not made as above required may be
considered waived.
5.
Findings of Fact, Conclusions of Law and Trial Brief: Submit to the Court and
to opposing counsel full, complete, and specific findings of fact and conclusions of law, together
with a trial brief, citing authorities, in support of said party’s legal theories and discussing any
anticipated substantive or procedural problems. The proposed findings of fact and conclusions
of law should also be emailed to the Court in Word format as outlined in the Administrative
Procedures Manual for Case Management/Electronic Case Filing (available on the Court’s
website). The parties should contact the Clerk’s Office with questions regarding this
requirement.
6.
Motions In Limine: File all motions in limine to exclude evidence at least ten
(10) days before trial.
IT IS FURTHER ORDERED that the total trial will be limited to 24 hours, with each
side to have 12 hours to complete its case. Any time spent examining or cross-examining a
witness will be counted, as will be any time spent making an opening statement, closing
argument or argument on any type of motions or objections, and any deposition testimony must
either be played on video or read in court with the time spent doing so included in the 12 hour
time limit.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of December, 2018.

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