ASARCO v. British Petroleum et al

Filing 339

ORDER denying 330 Motion in Limine; denying 334 Motion in Limine to the extent that the Court views them as superfluous. The Court will resolve questions of foundation, relevancy, and potential prejudice at the evidentiary hearing. Signed by Judge Dana L. Christensen on 2/2/2021. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
ASARCO LLC, a Delaware
Corporation,

CV 12–53–H–DLC

Plaintiff,
ORDER

v.
ATLANTIC RICHFIELD COMPANY,
a Delaware Corporation,
Defendant.

In advance of the February 4, 2021 evidentiary hearing, Plaintiff ASARCO
LLC (“ASARCO”) has filed two motions in limine. (Docs. 330, 334.) ASARCO
represents that Defendant Atlantic Richfield Company (“Atlantic Richfield”)
objects to both motions. (Docs. 330 at 2; 334 at 2.) Atlantic Richfield has not yet
responded to ASARCO’s motions to specify the nature of its objections; however,
with the hearing just around the corner, the Court will indicate how it will rule on
the motions in limine to allow the parties to adequately prepare.
INTRODUCTION
In its first motion in limine, ASARCO asks the Court to limit the scope of
testimony of two witnesses from the Montana Environmental Trust Group
(“METG”) as irrelevant and unfairly prejudicial, pursuant to Federal Rules of

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Evidence 402 and 403. (Doc. 331 at 7.) ASARCO argues that because METG
“does not have the authority to act or incur costs without the direction or approval
of the [Environmental Protection Agency], any testimony [METG Witness]
Roberts or [METG Witness] Roby may offer related to costs ‘incurred’ at the [East
Helena Superfund] Site” is of no import to the issue to be decided on remand. (Id.)
Thus, ASARCO asks the Court to limit testimony from METG Witness Roberts to
“authenticating and providing foundation for the METG budgets, and [to] limit[]
any testimony from [METG Witness] Roby to authenticating and providing
foundation for Corrective Measures studies and reports prepared by METG.”
(Doc. 331 at 9.)
Second, ASARCO seeks an order in limine limiting the testimony of Donald
Booth. (Doc. 335 at 2.) At bottom, ASARCO predicts that Atlantic Richfield will
use Witness Booth to challenge the allocation of incurred response costs that this
Court and the Ninth Circuit have previously determined is Atlantic Richfield’s
equitable share. (Id.) ASARCO argues that any efforts by Atlantic Richfield to
reopen the allocation question, by way of testimony from Witness Booth, would be
irrelevant and prejudicial. (Id. at 10.) Accordingly, ASARCO asks the Court to
preclude Witness Booth from “testifying that certain costs are related to selenium
instead of arsenic, and are therefore not allocable.” (Id.) Further, ASARCO
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requests an order preventing Witness Booth “from challenging the Court’s decision
to allocate Atlantic Richfield a (sic) 25 percent responsibility for all costs response
(sic) incurred at the East Helena Superfund Site.” (Id.)
LEGAL STANDARD
“A motion in limine is a procedural mechanism to limit in advance
testimony or evidence in a particular area.” United States v. Heller, 551 F.3d 1108,
1111 (9th Cir. 2009). Although the Federal Rules of Evidence do not explicitly
prescribe it, the Supreme Court authorizes trial judges to rule on motions in limine
pursuant to their authority to manage trials. Luce v. United States, 469 U.S. 38, 41
n.4 (1984). By ruling in limine, the court “gives counsel advance notice of the
scope of certain evidence so that admissibility is settled before attempted use of the
evidence before the jury.” Id. at 1111–12.
“A district court is accorded wide discretion in determining the admissibility
of evidence under the Federal Rules.” Sprint/United Mgm’t Co. v. Mendelsohn,
552 U.S. 379, 384 (2008) (citation omitted). Still, a motion in limine should not be
used to resolve factual disputes or weigh evidence. See C & E Servs., Inc. v.
Ashland, Inc., 539 F.Supp.2d 316, 323 (D.D.C. 2008). Instead, “the evidence must
be inadmissible on all potential grounds” to exclude it on a motion in limine. See,
e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004).
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“Unless evidence meets this high standard, evidentiary rulings should be deferred
until trial so that questions of foundation, relevancy and potential prejudice may be
resolved in the proper context.” Hawthorne Partners v. AT&T Tech., Inc., 831
F.Supp. 1398, 1400 (N.D. Ill. 1993).
Finally, the Court reminds the parties that rulings in limine are provisional.
“[I]n limine rulings are not binding on the trial judge, and the judge may always
change his mind during the course of trial.” Ohler v. United States, 529 U.S. 753,
758 n.3 (2000).
ANALYSIS
As already set out, ASARCO bases its motions on irrelevance and prejudice,
pursuant to Federal Rules of Evidence 402 and 403.
Evidence is relevant if: “(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed. R. Evid. 401. Even if evidence is relevant, a court
may exclude it “if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. Relevant evidence should be excluded under Rule 403 only
sparingly, as “the Rule’s major function is limited to excluding matter of scant or
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cumulative probative force, dragged in by the heels for the sake of its prejudicial
effect.” United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015) (citation
omitted).
Here, the Court understands ASARCO’s position as it relates to the
probative value of witnesses from METG, when METG purportedly can only act at
the direction or approval of the lead agency. It also understands that if the question
on remand was presented to a jury, an order in limine may be appropriate to
mitigate the danger of confusion and prejudice caused by these witness’ unfettered
testimony. And, as indicated in its previous order, the Court certainly appreciates
ASARCO’s concern that Atlantic Richfield may attempt to relitigate an allocation
amount already determined and affirmed. Again, if a jury were the factfinder on
remand, the Court would be more easily persuaded to issue an order to prevent
confusion and unfair prejudice on this point.
With that said, however, the Court—not a jury—has been the factfinder
throughout the long life of this case. Indeed, the upcoming hearing is essentially a
mini-bench trial, and the threshold evidentiary rulings that ASARCO asks the
Court to make based on relevance and prejudice are superfluous. See Heller, 551
F.3d 1108, 1112. As Ninth Circuit Judge McKeown put it, “[i]t would be, in
effect, ‘coals to Newcastle,’ asking the judge to rule in advance on prejudicial
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evidence so that the judge would not hear the evidence.” Id. The Court is familiar
with the parties, the facts, and the arguments in this case; there is no reason it
cannot hear all the evidence and weigh its probative value as it comes. Further, the
Court expects that both parties will follow its clear directives and limitations
regarding what issues the upcoming hearing is designed to allow it to consider—
and what issues are not open for reconsideration. (See Doc. 324.)
ORDER
For the foregoing reasons, IT IS ORDERED that ASARCO’s motions in
limine (Docs. 330 and 334) are DENIED to the extent that the Court views them as
superfluous. The Court will resolve questions of foundation, relevancy, and
potential prejudice at the evidentiary hearing. See Hawthorne Partners, 831
F.Supp. at 1400.
DATED this 2nd day of February, 2021.

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