Kirk v. Schaeffler Group USA, Inc. et al

Filing 454

ORDER Ruling on Defendants' Remaining Motions in Limine 337 343 344 349 . Signed on 2/24/16 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 RULING ON DEFENDANTS’ REMAINING 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 four defense motions in limine the Court was withholding
ruling on until it decided whether to bifurcate the trial. In a companion order, the Court has
ordered bifurcation. The Court now rules as follows on Defendants’ fourth (Doc. 337), tenth
(Doc. 343), eleventh (Doc. 344), and sixteenth motions in limine (Doc. 349).1
4.

Motion to Exclude Evidence or References to Prior Cases Involving Shannon Lewis
and Other Personal Injury Claimants Against Defendants (Doc. 337).
Defendants move to preclude Plaintiff from referring to the lawsuit filed by Shannon

Lewis in Lewis v. FAG Bearings Corp., 5 S.W.3d 579 (Mo. Ct. App. 1999), or any other
personal injury claimants against Defendants. Mot. at 3. Defendants argue that such lawsuits are
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.

not relevant to this case or probative of Plaintiff’s claims, and that to the degree there is any
probative value to them, the probative value is substantially outweighed by the danger of unfair
prejudice and confusion of the issues.
Plaintiff argues that Ms. Lewis’ injuries are relevant to demonstrate causation, that is, that
TCE contamination can generally cause “harm” in humans. Plaintiff also contends that the
circumstances giving rise to her claims are substantially similar to those that gave rise to Ms.
Lewis’ claims; therefore Ms. Lewis’ injuries are relevant to demonstrating that Defendants had
notice that TCE contamination could cause harm. Also, in her response to Defendants’ tenth
motion in limine, she argues Lewis is admissible to show the reprehensibility of Defendants’
conduct.
As the Court noted in its first order concerning collateral estoppel (Doc. 131), the
question in this case is whether the groundwater contamination at Silver Creek caused Plaintiff’s
health problems.

Ms. Lewis suffered from “brain damage, cognitive defects, personality

changes, fatigue, muscle aches, headaches, malaise, and upper respiratory problems.” Lewis, 5
S.W.3d at 581. These health problems are different from those Plaintiff allegedly suffers from—
AIH, steroid-induced diabetes, and an increased risk of cancer. Lewis and the other personal
injury cases did not litigate whether TCE causes AIH or cancer in humans, much less whether
TCE caused Plaintiff’s AIH or put her at an increased risk of cancer. Consequently, these cases
are not relevant to general causation or specific causation in this case.2
With respect to notice, the Court holds that other personal injury lawsuits are marginally
relevant to whether Defendants had notice that TCE could cause health problems. However, the
probative value of this evidence is substantially outweighed by the potential for confusion of the
2

General causation concerns whether TCE can cause AIH in humans; specific causation concerns whether TCE
caused Plaintiff’s AIH.

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issues and unfair prejudice, since the jury could easily become confused and believe the Lewis
decision established causation in this case. Further, if the Court allowed Plaintiff to refer to the
Lewis case, it would have to permit Defendants to argue the differences between Ms. Lewis’
injuries and Plaintiff’s AIH which would cause undue delay and waste of time in an already
lengthy trial.
That said, the Lewis case may be admissible to show the reprehensibility of Defendants’
conduct, subject to Plaintiff demonstrating that she was exposed to TCE after the jury in the
Lewis case reached its verdict.3
The motion is GRANTED IN PART. This evidence shall not be admissible during the
liability/compensatory damages phase of trial, but may be admissible during a punitive damages
phase of trial.
10.

Motion to Exclude References to Plaintiff’s Punitive Damages Claims (Doc. 343).
In the introduction and conclusion sections of this motion, Defendants seek to preclude

Plaintiff from making any reference to a claim for punitive damages. Mot. at 4. The body of the
motion, however, only discusses four categories of evidence, and so the Court confines the
motion and its ruling to these categories. Mot. at 2-3; see Sappington v. Skyjack, Inc., No. 045076-CV-SW-FJG, 2008 WL 895222, at *7 (W.D. Mo. Mar. 27, 2008) (denying motion in
limine which lacked specificity).
Defendants argue Plaintiff should not be permitted to:
i.

ii.

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Refer to or introduce evidence of any number of other people (including Shannon
Lewis) in Silver Creek or Saginaw allegedly exposed to and/or harmed by TCE
released on the FAG Bearings’ property.
Refer to or introduce evidence of FAG Bearings’ past conduct that Plaintiff has not
connected to her injuries, including that: FAG Bearings was “recalcitrant” in

The Court refers the parties to its ruling on Defendants’ tenth motion in limine.

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dealing with the Missouri Department of Natural Resources (“MDNR”); that “the
State of Missouri [was] forced to spend hundreds of thousands of dollars from its
own budget to investigate the contamination at FAG;” or that “FAG misled
defendants [i.e., other companies], its own experts and the Court regarding its use of
TCE.” See FAG Bearings Corp. v. Gulf States Paper Co., No. 95-5081-CV-SW-8,
1998 WL 919115, at *7, *43 (W.D. Mo. Sept. 30, 1998).
iii.

Refer to or introduce evidence of other prior conduct of FAG Bearings, such as
FAG Bearings not permitting Donald Van Dyke on its property to observe a pump
test of area groundwater, or other “wrongdoings” that FAG Bearings allegedly
committed against MDNR and the State of Missouri.

iv.

Refer to or introduce evidence of FAG Bearings’ post-1991 conduct during the
State’s investigation of the TCE contamination.

Mot. at 2-3. In support, Defendants argue Plaintiff cannot seek punitive damages based on
conduct: (1) that harmed others, but not herself; (2) that is unrelated to her alleged injury; or (3)
that the Lewis court has already held does not support an award of punitive damages.
Plaintiff responds that she is permitted to introduce evidence of harm to others to show
the reprehensibility of Defendants’ conduct. Plaintiff contends the Lewis case is distinguishable
because Ms. Lewis’ claims were based upon exposure to TCE while living in Silver Creek
between 1985 and 1989, and she failed to submit any proof that FAG Bearings was aware prior
to 1991 that any wells were contaminated with TCE.

Thus, Ms. Lewis failed to make a

submissible case for punitive damages. Plaintiff contends there is no question here that FAG
Bearings was aware of the TCE contamination during the time frame of Plaintiff’s alleged
exposed.
The Supreme Court has held that while a punitive damages award may not be used for the
purpose of punishing a defendant for harming others, “a plaintiff may show harm to others in
order to demonstrate reprehensibility,” which is part of the punitive damages equation. Philip
Morris USA v. Williams, 549 U.S. 346, 354-55 (2007). The Court explained:

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Evidence of actual harm to nonparties can help to show that the
conduct that harmed the plaintiff also posed a substantial risk of
harm to the general public, and so was particularly reprehensible—
although counsel may argue in a particular case that conduct
resulting in no harm to others nonetheless posed a grave risk to the
public, or the converse. Yet . . . a jury may not go further than this
and use a punitive damages verdict to punish a defendant directly
on account of harms it is alleged to have visited on nonparties.
Id. at 355.4 Thus, during the punitive damages phase, Plaintiff may introduce evidence that
Defendants’ behavior harmed others, or risked harming others, to demonstrate reprehensibility,
subject to any other limitations on admissibility.5 To comply with Williams, the Court will
carefully instruct the jury on this point.
Further, while the Court agrees that Defendants cannot be punished for conduct that is
unrelated to Plaintiff’s alleged injury, it appears that Plaintiff is merely complaining about the
same behavior for which Ms. Lewis sued FAG Bearings; namely, releasing TCE into the
environment from its Joplin facility, thereby exposing her to TCE.
Consequently, Defendants’ motion is DENIED. This evidence will likely be admissible
during any punitive damages phase.
11.

Motion to Exclude References to the Alleged Ineffectiveness of Defendants’
Remediation Plan (Doc. 344).
Defendants request the Court exclude any reference to the selection, appropriateness, or

alleged inadequacy of the natural attenuation remediation plan selected by the MDNR and the

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In their motion, Defendants quoted that part of the decision holding that a punitive damages award based solely on
harms done to a non-party “amount[s] to a taking of property from the defendant without due process.” Mot. at 1
(quoting Williams, 549 U.S. at 349). While Defendants accurately quoted this portion of the court’s opinion, their
failure to note that the Supreme Court held in the same decision that a plaintiff may introduce evidence of harm to
others to demonstrate reprehensibility is exasperating. The Court expects litigants to note contrary binding authority
by use of appropriate signals, for example, “but see” or “but cf.,” and then to cite that contrary binding authority; in
this case, the Williams opinion at pages 354-55.
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The Court refers the parties to its ruling on Defendants’ fourth motion in limine.

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Environmental Protection Agency (“EPA”) for the Newton County Wells Site. Mot. at 1.
Defendants argue that the plan, including how the MDNR and EPA selected it and how it has
been implemented, concerns events occurring after Plaintiff’s AIH diagnosis and is not probative
of any material fact in this case. They also contend this evidence should be excluded under
Federal Rule of Evidence 403 because it would be unfairly prejudicial to Defendants and
confusing to the jury.
Plaintiff contends the MDNR and EPA’s selection of the remediation plan is admissible
to show causation. She claims Defendants’ history of obstruction and concealment of the
contamination delayed any remediation plan for several years, thus allowing the TCE to continue
to flow uninhibited into Plaintiff’s neighborhood.
Plaintiff also argues the plan is ineffective, and that the plan’s effectiveness is relevant to
her punitive damages claim as it evidences a pattern and practice of wrongful conduct by
Defendants. This wrongful conduct includes spending years denying responsibility for the
contamination, failing to investigate the contamination, failing to assist in the remediation, and
providing the government with misleading data.

Plaintiff notes that in awarding punitive

damages, Missouri law permits a jury to consider the wrongfulness of the Defendants’ conduct
and whether it is part of a pattern and practice of misconduct. See Kerr v. Vatterott Educ.
Centers, Inc., 439 S.W.3d 802, 816 (Mo. Ct. App. 2014).
The Court holds that this evidence is not relevant to causation, but is relevant to punitive
damages. Accordingly, this evidence shall not be admissible during the liability/compensatory
damages phase, but will be during any punitive damages phase. The motion is GRANTED IN
PART.

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16.

Motion to Exclude Evidence of or References to FAG Bearings’ Prior Litigation
Beyond the Court’s Collateral Estoppel Rulings, and to Exclude
Mischaracterizations of Such Rulings (Doc. 349).
Defendants move to exclude any reference to prior litigation6 involving FAG Bearings

beyond the Court’s collateral estoppel rulings. Defendants argue that such evidence is hearsay
for which no hearsay exception exists, and that such evidence is not probative of the issues in
this case. Defendants do not identify any specific evidence or ruling from these prior cases they
seek to exclude.
Plaintiff argues that she is at a loss to respond to the motion because it does not specify
any particular evidence or ruling. She contends that decisions from prior cases generally contain
relevant information which is not hearsay or is an exception to the hearsay rule, and the
probative value of this evidence outweighs any prejudice.
The Court declines to rule on the motion because it lacks specificity. See Sappington,
2008 WL 895222, at *7. The motion is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Date: February 24, 2016

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

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This litigation includes, but is not limited to: FAG Bearings Corp. v. Gulf States Paper Co., No. 95-5081-CV-SW8, 1998 WL 919115 (W.D. Mo. Sept. 30, 1998); Lewis, 5 S.W.3d 579; Liberty Mut. Ins. Co. v. FAG Bearings Corp.,
No. 94-0241-CV-W-8, slip. op. (W.D. Mo. May 14, 1996), aff’d, 153 F.3d 919 (8th Cir. 1998); and Liberty Mut. Ins.
Co. v. FAG Bearings Corp., Case No. 99-5017-CV-SW-3, 2001 WL 34118390 (W.D. Mo. May 21, 2001), aff’d,
335 F.3d 752 (8th Cir. 2003).

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