Kirk v. Schaeffler Group USA, Inc. et al

Filing 417

ORDER granting in part 334 335 336 338 339 340 341 342 345 346 347 348 350 351 Defendants' motions in limine. Signed on 2/12/16 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JODELLE L. KIRK,
Plaintiff,
v.
SCHAEFFLER GROUP USA, INC., et al.,
Defendants.

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No. 3:13-cv-5032-DGK

ORDER GRANTING IN PART DEFENDANTS’ MOTIONS IN LIMINE
This case arises from Defendants’ release of trichloroethylene (“TCE”) into the
environment near Plaintiff Jodelle Kirk’s childhood home. Plaintiff alleges she was exposed to
the TCE, and that it caused her to develop several serious illnesses, including autoimmune
hepatitis (“AIH”).
Now before the Court are Defendants’ eighteen motions in limine (Docs. 334-351). The
Court withholds ruling on Defendants’ fourth (Doc. 337), tenth (Doc. 343), eleventh (Doc. 344),
and sixteenth motions in limine (Doc. 349) until the Court determines whether to bifurcate the
trial. The Court rules as follows on the balance.1
1.

Motion to Exclude Undisclosed Evidence (Doc. 334).
Defendants’ first motion seeks to exclude any undisclosed exhibits or witness testimony.

Specifically, Defendants move to exclude:
1. Untimely and improperly disclosed theories of exposure to TCE
at any location other than Plaintiff’s childhood residence and the
1

To save space, throughout both this Order and the Court’s order on Plaintiff’s motions in limine, when the Court
directs “Plaintiff” or “Defendants” to do something, that directive applies to the litigant and the litigant’s attorneys,
experts, witnesses, and anyone else to whom the directive could conceivably apply. Similarly, when the Court
precludes a litigant from “referring to” something, it precludes the litigant from offering, introducing, referencing, or
making any argument concerning the matter. If counsel is unsure whether a question or evidence might violate a
ruling in limine, he or she should approach the bench first, outside of the jury’s hearing.

nineteen alleged exposure locations in Plaintiff’s July 14, 2014,
affidavit (Doc. 322);
2. Any individual not identified by Plaintiff in this affidavit,
including any evidence or testimony from such individuals;
3. Any previously undisclosed and/or untimely opinion testimony
or other evidence from any of Plaintiff’s expert witnesses,
including testimony or evidence related to the supplemental
discovery period;
4. Any untimely and/or undisclosed evidence of Plaintiff’s hourly
wage, hours worked, or other earnings; and
5. Any other document or witness that Plaintiff has failed to
disclose in the time and manner required by the Federal Rules of
Civil Procedure.
Mot. at 3.
This portion of the motion is GRANTED except that the Court’s ruling does not preclude
Plaintiff from: (1) offering evidence of any in utero exposure;2 or (2) offering testimony that did
not have to be disclosed during discovery, for example, testimony offered for rebuttal or
impeachment purposes.
Defendants also move to exclude Plaintiff’s experts from introducing, referring to, or
relying on any “facts, opinions, documents, or evidence” that Plaintiff or her experts have failed
to disclose. Id. at 4. Defendants ask the Court to exclude three specific items. The Court
discusses each separately.
i.

Defendants move to exclude the expert opinions of Drs. Everett and Wells that the

estimated TCE level at Plaintiff’s childhood home is “broadly consistent with the finding of
11µg/L in a home southwest of the Kirk home (private well number 274 on Burgess Street).”

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This ruling is discussed more in the Court’s ruling on Defendants’ ninth motion in limine (Doc. 342).

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Defendants contend Plaintiff never disclosed any facts or documents supporting this statement,
thus it either does not exist or this portion of the experts’ opinions should be excluded.
Defendants contend the only evidence in the record from well number 274 is that there were no
test results for the well because its pump had been disconnected.
Plaintiff responds that the Court has already ruled on this issue in denying Defendants’
Daubert motion to exclude Drs. Everett and Wells.
Unfortunately, the existing record is underdeveloped on this point. Obviously, if Plaintiff
has provided well data to her experts that she has not identified or provided to Defendants, this
would be problematic.
The Court ORDERS Plaintiff to identify specifically the materials in which she has
disclosed to Defendants facts supporting the statement that there was a “finding of 11µg/L in a
home southwest of the Kirk home (private well number 274 on Burgess Street).” Further,
Plaintiff shall identify by pinpoint citation where in these materials these facts exist. Plaintiff
shall file a short (not to exceed five pages) brief, which makes a pinpoint citation to this material
and explains her position. This brief shall be filed within seven days. Defendants will then have
three days to file a short (not to exceed five pages) reply brief. The Court will then rule on the
matter.
ii.

Defendants also move to exclude any facts, evidence, or documents relating to any

entities that are not parties to this lawsuit. Defendants contend Plaintiff’s expert on damages, Dr.
Ward, has not identified any facts, evidence, or documents relating to the finances of either
Defendant in this action, instead using financial information for entities that are not parties to this
lawsuit. Id. at 5.

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Plaintiff responds that Defendants have not identified a single document cited to and
relied upon by Dr. Ward that they would like excluded, leaving both herself and the Court to
guess which documents Defendants believe should be excluded.
Although the Court could guess which documents Defendants seek to exclude,3 the Court
declines to do so. Motions in limine should be directed at specific evidence, not broad, vague
categories of evidence or testimony. See Sappington v. Skyjack, Inc., No. 04-5076-CV-SW-FJG,
2008 WL 895222, at *7 (W.D. Mo. Mar. 27, 2008) (denying motion in limine which lacked
specificity). Accordingly, this portion of the motion is DENIED WITHOUT PREJUDICE.
iii.

Defendants also move to limit Plaintiff’s and Dr. Ward’s testimony concerning her

hourly wage and hours worked to that given in her first deposition because during discovery she
failed to produce documents supporting her assertions about her hourly wages, hours worked, or
other claims about her earned income.
Plaintiff has not responded to this portion of Defendants’ motion, and Defendants’
request is reasonable. This portion of the motion is GRANTED.
Finally, Defendants move to exclude “any documents, opinions, or other evidence that
Plaintiff has not disclosed.” Mot. at 7. This request is DENIED WITHOUT PREJUDICE
because it is insufficiently specific. See Sappington, 2008 WL 895222, at *7.
2.

Motion to Exclude Undisclosed Research Literature or Studies (Doc. 335).
Defendants move to exclude Plaintiff’s experts from relying on any research, literature,

studies, or data that they failed to disclose during discovery. Defendants have not identified any
materials they object to other than Dr. Gilbert’s ongoing, unpublished research.

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One such document appears to be a document pertaining to the financial condition of Schaeffler’s parent
corporation, Schaeffler AG, a German corporation which is not a party to this lawsuit. It is the subject of
Defendant’s fifteenth motion in limine (Doc. 348).

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Defendants argue it would be unfair to allow Dr. Gilbert to claim that preliminary
observations from this research suggest that continuous developmental exposure of MRL+/+
mice4 to TCE generates AIH at levels of exposure lower than that found to induce AIH in adultonly exposure studies. Defendants argue this would be unfair because they have not had any
opportunity to review the data, nor has it been peer-reviewed, much less published.
Plaintiff responds that Defendants questioned Dr. Gilbert about this research during her
deposition, and she explained that her preliminary observations confirmed the existing body of
research that developmental exposure to TCE has a greater impact than adult exposure to TCE.
The Court notes that although Defendants had an opportunity to question Dr. Gilbert
about this research, Dr. Gilbert declined to provide any details about it, or, more importantly,
allow Defendants to review the data. Because this data has not been published, peer-reviewed,
or provided to Defendants, Dr. Gilbert will not be allowed to testify about her preliminary
observations or conclusions. She will, however, be permitted to testify that she is currently
conducting research into whether developmental exposure to TCE has a greater impact than adult
exposure to TCE.
For the above reasons, this motion is GRANTED IN PART.
3.

Motion Regarding Certain Statements By Plaintiff’s Experts (Doc. 336).
Defendants move to preclude Plaintiff from referring to any evidence that attempts to

deny or dispute certain statements made by Dr. Gilbert, Dr. Parmet, or Mr. Van Dyke. Mot. at 7.
The motion is DENIED. Any inconsistency in the experts’ testimony is a question for the
jury to consider in determining how much weight to give each expert’s testimony, not a question
of admissibility for the Court to decide.

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MRL+/+ is a strain of mouse used in Dr. Gilbert’s research.

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5.

Motion to Exclude References to “Unsubstantiated or Irrelevant” Medical
Conditions (Doc. 338).
Defendants move to exclude any reference to any medical conditions or procedures that,

in their opinion, have not been reliably diagnosed or connected to Plaintiff’s alleged exposure to
TCE.

Specifically, Defendants move to exclude references to “Barrett’s esophagus,

musculoskeletal injuries, general anxiety, medication for such anxiety, a current and actual case
of cancer, [and] the beginning stages to cancer.” Mot. at 5-6.
Plaintiff responds that she has no intention of offering evidence of Barrett’s esophagus,
but she does intend to offer evidence: (1) that the chronic use of steroids from her treatment for
AIH has caused her musculoskeletal injuries and put her at future risk of other musculoskeletal
injuries; (2) that her AIH caused her mental anguish; and (3) that she is at a heightened risk of
cancer as evidenced by precancerous cells on her ovary, and this heightened risk of cancer has
caused her mental anguish.
Defendants’ motion is GRANTED IN PART. Plaintiff is permitted to offer evidence of
the first two categories of injuries. Plaintiff may be permitted to present evidence that she is at
heightened risk of cancer and that this has caused her mental anguish, depending on how the
evidence develops at trial. The Court reserves ruling on this portion of the motion.
6.

Motion to Exclude Reference to Plaintiff’s Alleged Vulnerability to Developing AIH
as a Result of TCE Exposure (Doc. 339).
Defendants move to exclude any “references to the idea that Plaintiff was vulnerable or

more susceptible to developing AIH as a result of her alleged exposure to TCE.” Mot. at 4.
The Court has already addressed this argument in holding that Dr. Gilbert’s opinion is
admissible. The Court found that Dr. Gilbert’s report provided “a reliable basis for her opinion
that Plaintiff’s exposure to TCE was such that, over time, acting on a genetic predisposition, it

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caused Plaintiff to develop AIH, and it was not idiopathic.” Order Den. Mot. to Exclude Pl.’s
Experts (Doc. 285) at 5.
The motion is DENIED.
7.

Motion to Exclude References to Government Reports (Doc. 340).
Defendants move to exclude any reference to eight government reports. Mot. at 7-8.

Defendants contend they contain multiple levels of inadmissible hearsay and are also
inadmissible under Federal Rule of Evidence (“FRE”) 403 because any probative value they
might have is outweighed by the risk of confusion of the issues, undue delay, and wasting time.
Defendants are concerned that Plaintiff’s counsel will attempt to sow confusion in the jurors’
minds by waving these documents in the courtroom and claiming they prove Plaintiff was
exposed to TCE, and that this exposure caused her AIH.
Plaintiff contends the documents fall under the business record (FRE 803(6)) and public
record (FRE 803(8)) exceptions to the hearsay rule, and that the documents are admissible for
other, non-hearsay purposes such as notice.
These reports are generally admissible; the Eighth Circuit has allowed the admission of
similar government reports under the public records exception to Rule 803(8). See Kehm v.
Procter & Gamble Mfg. Co., 724 F.2d 613, 618-19 (8th Cir. 1983) (upholding the district court’s
admission of epidemiological studies conducted by the federal Center for Disease Control and
various state health departments and allowing plaintiff’s expert to testify about these studies in a
products liability action). And Defendants have failed to identify any specific portion of these
reports which are not admissible.
The motion is DENIED.

The Court cautions Plaintiff that if these documents are

admitted for a limited purpose, such as notice, she will not be permitted to use them for some

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other purpose, such as arguing during closings that the documents prove general or specific
causation.
8.

Motion to Exclude References to Locations at which Plaintiff has No Admissible
Evidence She was Exposed to TCE (Doc. 341).
Defendants move to exclude any reference to alleged TCE exposure at fifteen locations.

Mot. at 2-3. Defendant argues Plaintiff has no admissible evidence that any measurable quantity
of TCE was ever present at these locations, or that if it was present, its presence is attributable to
Defendants’ conduct.
Plaintiff’s hydrology experts have offered plausible explanations for the various low or
non-detectable levels of TCE found in the well data cited by Defendants as proof that there was
never any TCE present at these locations. Plaintiff’s experts also have developed a model
showing that there was TCE at these locations during the relevant time.

Consequently,

Defendants’ arguments go to the weight this evidence should receive, not its admissibility.
The motion is DENIED.
9.

Motion to Exclude References to Any In Utero Exposure to TCE (Doc. 342).
Defendants move to exclude any reference to Plaintiff’s purported in utero exposure to

TCE. Mot. at 5. Defendants argue Plaintiff failed to allege or disclose during discovery any in
utero exposure, nor has she identified any location where her mother was allegedly exposed to
TCE while pregnant.
After reviewing the record, the Court finds that: (1) Plaintiff disclosed this theory of
exposure in her Amended Complaint (Doc. 19 at ¶ 19); (2) Plaintiff’s expert Dr. Parmet
discussed it in his expert report (Doc. 196-1); (3) Defendants had an opportunity to question
Plaintiff’s mother about the locations she may have been exposed to TCE while Plaintiff was in
utero; and (4) Defendants’ expert Dr. Guzelian offered a rebuttal opinion as to this theory of

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exposure. Although Plaintiff’s disclosure was threadbare, Defendants have not been harmed by
any late or incomplete disclosure. That said, consistent with its earlier rulings, the Court restricts
the locations Plaintiff may claim she was exposed to TCE while in utero to her childhood home
and those nineteen locations she identified in her July 11, 2014, affidavit.
The motion is DENIED.
12.

Motion to Exclude References to Any Vapor Intrusion Theory of Exposure to TCE
(Doc. 345).
Defendants move to exclude any reference to the theory that Plaintiff was exposed to

TCE through vapor intrusion. Defendants argue there is scant credible evidence that Plaintiff
inhaled TCE emanating from the soil, thus the jury should not hear testimony or argument
relating to this theory.
Because Plaintiff’s experts have opined that Plaintiff was exposed to TCE through vapor
intrusion, Defendants’ arguments go to the weight this testimony should be given, not its
admissibility. The motion is DENIED.
13.

Motion to Exclude References to the Size, Structure, Resources, or Locations of
Defendants’ Parent Company and Defendants’ Counsel (Doc. 346).
Defendants move to exclude any reference to the size, corporate structure, resources, and

locations of any entity (or its owners or shareholders) that are not a party to this lawsuit, or to
defense counsel’s law firm, Dentons US LLP.
The motion is GRANTED. In discussing her punitive damages claim, Plaintiff is free to
introduce any admissible evidence she has concerning Defendants’ resources, but not the
resources of Defendants’ parent company or their law firm.

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14.

Motion to Exclude References to Media Depictions of Toxic Tort Litigation (Doc.
347).
Defendants move to exclude any reference to depictions of toxic tort litigation in books,

films, novels, and other media. This includes, but is not limited to, references to the film Erin
Brockovich and the book and film A Civil Action. Plaintiff does not oppose the motion.
The motion is GRANTED.
15.

Motion to Exclude Evidence of or References to Financial Information that Relates
Only to Entities that are Not Parties to This Suit (Doc. 348).
Defendants move to exclude any reference to financial information that relates only to

entities that are not parties to this lawsuit, namely, Defendants’ parent corporation, Schaeffler
Group AG, a German company.
The motion is GRANTED.
17.

Motion to Exclude Evidence or References to the Exclusion of Defendants’ Expert
Witness Dr. Guzelian in Harvey v. Rines (Doc. 350).
Defendants move to preclude Plaintiff from referring to the federal district court’s

decision in Harvey v. Rines5 excluding Dr. Guzelian as an expert witness. Defendants argue that
decision is irrelevant to this case because, as the Court previously found, the facts and issues in
Harvey were not analogous to those here, and the Harvey decision appears to have been driven
as much by the defendant’s failure to submit a well-researched brief as by the judge’s perception
that Dr. Guzelian lacked the requisite expertise. Order Den. in Part Mot. to Exclude Defs.’
Experts (Doc. 286) at 7.
In response, Plaintiff contends the Harvey court described Dr. Guzelian as an
indiscriminate expert witness.

See Harvey, 1999 WL 33117105, at *8 (“Dr. Guzelian’s

deposition testimony . . . clearly reveals that his proffered opinions are based primarily upon a
5

No. 98-85-P-DMC, 1999 WL 33117105 (D. Me. Jan. 19, 1999).

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review of certain medical literature undertaken specifically for this case;” his proposed testimony
is “more unscientific speculation offered by a genuine scientist that it is genuinely scientific.”)
Plaintiff contends this observation is highly probative of his credibility and should be admissible
for impeachment purposes.
The Court holds this evidence is inadmissible under Rule 403. The probative value of
admitting the Harvey court’s Daubert ruling would be outweighed by the danger of unfair
prejudice since a jury might give it disproportionate weight and abandon its duty to
independently consider Dr. Guzelian’s qualifications and methodology as applied to the facts and
circumstances of this case. See Estate of Thompson v. Kawasaki Heavy Indus., Ltd., 933 F.
Supp. 2d 1111, 1152 (N.D. Iowa 2013) (precluding defendant from impeaching expert witness
with previous cases in which his testimony had been excluded). It would also likely result in
undue delay and waste of time as the parties conduct a mini-trial over exactly why the Harvey
court excluded Dr. Guzelian’s testimony and discussed the differences between the two cases.
Id. Finally, admitting the Harvey ruling is unnecessary. Plaintiff can impeach Dr. Guzelian’s
credibility without mentioning the Harvey ruling by vigorously cross-examining his
qualifications and methodology used in this case and presenting more credible testimony from
better qualified experts. Id.
The motion is GRANTED.
18.

Motion to Exclude References to Burns & McDonnell (Doc. 351).
Defendants move to preclude Plaintiff from introducing any evidence or making any

reference to Burns & McDonnell that equates the company with certain conduct of its former
employee, Randy Overton. Mot. at 4. Defendants do not specify what this conduct is, or what
exactly they seek to exclude.

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Courts in previous cases have been critical of Mr. Overton’s work performing well
sampling and investigating TCE contamination at the FAG facility while employed by Burns &
McDonnell.

For example, Judge Stevens found that “FAG and Overton were clearly not

interested in discovering shallow soil or groundwater contamination at FAG during their 1996
investigation. If FAG had been interested in defining the extent of contamination at FAG or in
locating potential sources of such testing could and should have been done.” FAG Bearings
Corp. v. Gulf States Paper Co., No. 95-5081-CV-SW-8, 1998 WL 919115, at *10 (W.D. Mo.
Sept. 30, 1998).
Randy Overton is no longer with Burns & McDonnell and is not involved with this case.
But Defendant’s sole hydrology expert, Wayne Weber, who was an employee of the company
charged with oversight and engineering work at the Newton County Superfund site, and who
Plaintiff alleges has been paid millions of dollars to prepare reports for Defendants, now works at
Burns & McDonnell.
Plaintiff contends that Burns & McDonnell, through Randy Overton, was and is an
integral part of FAG’s conduct by refusing to test, control, and define the contamination, and
possibly made some of the contamination worse in the course of its testing. See id. (“It is
possible that Overton’s 1996 investigation at FAG contributed to the spread of contamination.”).
Plaintiff argues it is impossible to separate Burns & McDonnell from Defendants’ history at this
site, and that the fact that Mr. Weber has moved his employment from one company hired by
Defendants to another company hired by Defendants goes to his credibility and bias as an expert
witness because of the financial gain to him of pleasing Defendants with his testimony.

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The Court holds it does not have enough information to rule on this motion. This
evidence may or may not be admissible depending on how the evidence develops at trial and for
what purpose it is offered. Accordingly, the motion is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Date: February 12, 2016

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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