Pecher, Janet v. Weyerhaeuser Company et al

Filing 477

ORDER granting in part, denying in part and reserving in part 432 Plaintiff's Omnibus Motion in Limine as set forth in the order; granting in part and denying in part 433 Plaintiff's Motion in Limine; granting in part, denying in part a nd reserving in part 448 Defendant's Motion in Limine as set forth in the order; denying 454 Plaintiff's Motion for Leave to File amended response; reserving on 473 Plaintiff's Motion to Strike deposition designations; reserving on 474 Plaintiff's Motion for Leave to Take Preservation Depositions in Lieu of Trial Testimony. Signed by District Judge William M. Conley on 03/07/2016. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JANET PECHER, Individually and as Special
Administrator on behalf of the Estate of Urban Pecher,
OPINION AND ORDER
Plaintiff,
v.
14-cv-147-wmc
WEYERHAEUSER COMPANY,
Defendant.
The first of three related asbestos cases is set for trial March 14, 2016. In advance
of the final pretrial conference on March 8, 2016, the court issues the following rulings
on the parties’ respective motions in limine (dkt. ##432, 433, 488), as well as a motion
by plaintiff to claw back an admission made during the course of summary judgment
(dkt. #454), and two other recently-filed motions (dkt. ##473, 474).

OPINION
I. Plaintiff’s Motions
A. “Omnibus” Motion in Limine (dkt. #432)
Plaintiff filed two motions in limine, the first is titled an “omnibus motion” and
lists twenty items plaintiff seeks to exclude from evidence and argument. As defendant
points out, plaintiff’s motion is deficient for the most part. Still, for most of the items on
the list, defendant does not object, because it does not intend to offer such evidence or
make such argument. For purposes of clarity at trial, therefore, the court will address
each item as a distinct, sub-motion, grouping related items where appropriate.

i.

Testimony about Law Firms

Plaintiff seeks to exclude evidence and argument about (#1) how plaintiff’s
lawyers are paid for their services; (#2) the time or circumstances under which plaintiff
employed an attorney; (#3) plaintiff’s law firm Cascino Vaughn Law Officers and Motley
Rice LLC’s involvement in other asbestos-related lawsuits; and (#6) asbestos lawsuits
being “lawyer made.” Defendant does not object to these requests and further represents
that the parties have agreed that neither side will introduce this type of evidence or
argument. These sub-motions are GRANTED AS UNOPPOSED.1
ii.

Court’s prior rulings

Plaintiff seeks to exclude any reference to other defendants who were granted
summary judgment in this case.

(#4.)

As defendant points out, the court has not

granted summary judgment to any other defendants, and therefore this motion is
DENIED AS MOOT. Plaintiff also seeks to exclude any evidence or argument that any
expert called by plaintiff has been barred or the testimony has been limited by this court
or any other court. (#8.) Defendant represents that the parties have agreed not to raise
the limitation or exclusion of expert testimony.

Accordingly, this sub-motion is

GRANTED AS UNOPPOSED.

As for sub-motion No. 3, defendant further requests that the court bar plaintiff from presenting
evidence or argument of other individuals bringing asbestos-related lawsuits against Weyerhaeuser
-- the same request made in defendant’s own motions in limine. The court will address this
request in the decision below on Weyerhaeuser’s motions in limine.
1

2

iii.

Analogies

Plaintiff seeks an order excluding “[a]ny argument inaccurately analogizing the
burden of proof to a football game or stating that the Plaintiff has to ‘get past the 50
yard line.’” (Pl.’s Omnibus Mot. (dkt. #432) #5.) In response, defendant represents
that it does not intend to offer this analogy, but that it will offer proper analogies or
characterizations to describe the preponderance of the evidence standard to the jury.
The explicit request made in this sub-motion is GRANTED AS UNOPPOSED without
ruling on the propriety of other, unspecified analogies, except to caution both sides
generally that the court will not only err on the side of excluding any attempt to redefine
or alter its legal instructions to the jury, but likely admonish counsel for attempting to do
so.
iv.

Witnesses

Plaintiff seeks to exclude any reference, other than during jury selection, to
“names of persons as being potential witnesses or that they were identified in
interrogatory answers or other discovery documents as potential witnesses.”

(Pl.’s

Omnibus Mot. (dkt. #432) #7.) Defendant does not oppose this motion so long as
plaintiff is similarly barred from making references about witnesses Weyerhaeuser could
have called. Accordingly, this sub-motion is GRANTED AS UNOPPOSED, and plaintiff
is bound by the same exclusion.

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v.

Screening for non-malignant asbestos diseases

Next, plaintiff seeks an order excluding “[a]ny comment, inference, evidence,
testimony, document or questioning concerning screening for non-malignant asbestos
diseases or individuals employed to conduct such screenings.” (Pl.’s Omnibus Mot. (dkt.
#432) #9.) In support, plaintiff simply asserts that these matters “are irrelevant and
prejudicial pursuant to Fed. R. Evid. 402.” (Id.) Defendant opposes this request and
reasonably points out that “evidence of Dr. Andersons’ involvement with thousands of
such screenings under Cascino Vaughan’s employ is certainly relevant for his crossexamination and credibility as an expert and a paid witness.” (Def.’s Opp’n (dkt. #466)
p.5.) The court agrees, especially since plaintiff offered no explanation as to why this
evidence is irrelevant or unduly prejudicial. Accordingly, this sub-motion is DENIED.
vi.

Plaintiff’s habits and other personal information

Plaintiff requests that the court bar any evidence of “Plaintiff’s personal habits,
drinking habits, social habits or any other type of personal information designed to
embarrass, humiliate or prejudice Plaintiff.” (Pl.’s Omnibus Mot. (dkt. #432) #10.) In
so moving, plaintiff appears particularly concerned about introducing evidence reflecting
plaintiff’s smoking habits in light of the fact there is no allegation that such habits
contributed to his mesothelioma. Once again, plaintiff’s only “support” for this submotion is an assertion that this evidence would be “irrelevant and prejudicial” under Rule
402.

In response, defendant contends that it will not offer evidence of any of Mr.

Pecher’s habits to embarrass Mrs. Pecher. Defendant also offers that there is no evidence
of a smoking habit. Still, defendant maintains that other evidence “of personal and social
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habits that impacted Mr. Pecher’s health, quality of life or life expectancy is relevant to
claims for compensatory damages.” (Def.’s Opp’n (dkt. #466) p.5.) The court again
agrees with defendant.

Accordingly, this sub-motion is GRANTED IN PART AND

DENIED IN PART as follows: Any evidence of Mr. Pecher’s personal and social habits
are excluded from the liability phase, but may be offered during damages; and the request
to exclude any evidence of a smoking habit is granted as unopposed.
vii.

“Threshold limit values”

In this request, plaintiff seeks to exclude evidence or argument “[t]hat the
‘threshold limit values’ for asbestos exposure or levels stated in Wisconsin Industrial
Commission regulations are ‘safe’ levels of exposure which could prevent mesothelioma.”
(Pl.’s Omnibus Mot. (dkt. #432) #11.) In support, plaintiff contends that the OSHA
regulations in 1972 did not take into account prevention of mesothelioma, and therefore,
this evidence should be excluded. In response, defendant represents that it does not
intend to offer this evidence in support of an argument that there is a safe level of
asbestos exposure for purposes of preventing mesothelioma. Rather, defendant contends
that this evidence is relevant to “whether Weyerhaeuser knew or should have known that
any alleged emission could or would cause injury.” (Def.’s Opp’n (dkt. #466) p.6.) The
court agrees this evidence is relevant to knowledge, which is certainly relevant to
plaintiff’s claim of intentional public nuisance.

Weyerhaeuser, however, may neither

offer this evidence to prove nor to argue that there is a safe level of asbestos emission for
purposes of preventing mesothelioma. Accordingly, this sub-motion is GRANTED IN
PART AS UNOPPOSED AND DENIED IN PART.
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viii.

Settlements, other payments

Plaintiff seeks an order excluding evidence and argument about (#12) settlement
amounts from other parties or nonparties; (#13) plaintiff’s claims in bankruptcy trusts;
and (#14) receipt of social security, insurance benefits, and life insurance proceeds.
On sub-motion No. 12, plaintiff relies on Federal Rule of Evidence 408, which
excludes evidence of a settlement offer or acceptance of that offer to compromise “the
claim” or any conduct or statement made during compromise negotiations about “the
claim.” Fed. R. Evid. 408(a). In its opposition, defendant eschews an intent to introduce
evidence of “the substance of settlement discussions or the amounts of any such
settlements.” (Def.’s Opp’n (dkt. #466) p.6.) Instead, defendant seeks to introduce
evidence “(1) that Plaintiff previously alleged another party was responsible for Mr.
Pecher’s exposure to asbestos or (2) that the claim was settled with that particular party
or non-party defendant.”

(Id. at p.7.)

Defendant maintains that such evidence is

relevant to counteract any “downplaying the fault of those now-settled parties,
potentially raising the allocation of fault for Weyerhaeuser.” (Id. (citing Hareng v. Blanke,
279 N.W.2d 437 (Wis. 1979)).)
Defendant’s position is at least consistent with Rule 408 to the extent it provides
that the court “may admit [evidence of settlement] for another purposes, such as proving
a witnesses’ bias or prejudice.” Fed. R. Evid. 408(b). With that framework in mind, the
court will RESERVE ruling on this sub-motion pending reference to specific evidence
and/or argument defendant intends to offer. The parties should be prepared to address
the relevance of this evidence further at the final pretrial conference.
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As for sub-motion No. 13, plaintiff seeks to exclude evidence that plaintiff
submitted claims to funds in several bankruptcy trusts on the basis that the evidence is
not probative of any fact or is unduly prejudicial even if probative. Plaintiff also argues
that the claim submissions contain affidavits of co-workers about asbestos exposure that
are hearsay and should be excluded.2 Defendant opposes this motion, arguing that such
evidence is expressly admissible under state law.

Wis. Stat. § 802.025(3)(a) (“Trust

claims materials and trust governance documents are admissible in evidence.”). Putting
aside the outstanding question of whether a federal court would look to state law to
determine the admissibility of evidence, defendant also argues that such evidence is
relevant because it has a tendency to show that plaintiff “made claims that another entity
is responsible for Mr. Pecher’s development of mesothelioma.”

(Def.’s Opp’n (dkt.

#466) p.9.) The court agrees with defendant that at least some of this evidence may be
relevant to both causation -- which will be determined during the liability stage of trial -and damages. Accordingly, the court will also RESERVE on this sub-motion, with the
caveat that non-party affidavits attached to the claims submissions will be EXCLUDED
as hearsay unless offered for truth of the matter asserted. The parties should again be
prepared to address whether any relevance of this evidence outweighs possible prejudice
to plaintiff.
Finally, in sub-motion No. 14, plaintiff raises a third related request, seeking
exclusion of any evidence of “benefits of any kind from a collateral source,” namely

Plaintiff acknowledges that Pecher’s own affidavit constitutes a statement of a party opponent
and is, therefore, admissible under Federal Rule of Evidence 801(d)(2).
2

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“[b]enefits from hospitalization, medical or other collateral insurance coverage; [s]ocial
security and pensions, whether a union pension or otherwise; and [l]ife insurance
proceeds.” (Pl.’s Omnibus Mot. (dkt. #432) #14.) Plaintiff contends that this evidence
is properly excluded under the collateral source rule. Defendant does not object to this
request, except if it covers excluding evidence of the workers’ compensation system
generally or the fact that Pecher filed a workers’ compensation claim. Plaintiff filed her
own separate motion on the workers’ compensation claim, which the court addresses
below. As for the explicit evidence identified in this sub-motion, it is GRANTED AS
UNOPPOSED.
ix.

Effect of claim on insurance rates

Plaintiff seeks an order excluding any evidence or argument about the “effect or
result of a claim, suit or judgment upon the insurance rates or charges” with respect to
both plaintiff and defendants.

(Pl.’s Omnibus Mot. (dkt. #432) #15.) Defendant does

not oppose this sub-motion. Accordingly, it, too, is GRANTED AS UNOPPOSED.
x.

Weyerhaeuser’s knowledge (or lack thereof)

In sub-motion No. 16, plaintiff seeks an order excluding Weyerhaeuser from
arguing that “the absence of records” showing its “knowledge of the dangers of asbestos”
or “knowledge of the release of asbestos into the Marshfield community from the
Marshfield plant” is proof that Weyerhaeuser did not know. (Pl.’s Omnibus Mot. (dkt.
#432) #16.)

Plaintiff contends that this evidence (really, the lack of evidence) is

inadmissible because defendant’s records are incomplete, and therefore defendant cannot

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lay the necessary foundation for such evidence to be admissible under Federal Rule of
Evidence

803(7).

In

its

response,

defendant

argues

that

the

“absence

of

contemporaneous documents discussing the dangers of alleged community emissions is
relevant” to Weyerhaeuser’s knowledge of the dangers of non-occupational exposures.
(Def.’s Opp’n (dkt. #466) 12.)
The court agrees with defendant that an absence of evidence can be relevant.
Plaintiff’s simple assertion that the records are incomplete is insufficient to prevent
Weyerhaeuser from pointing to the apparent lack of proof of knowledge. Of course,
plaintiff is free to challenge defendant on its record-keeping practices, and to offer this as
an explanation for the lack of direct evidence of knowledge.

Without more from

plaintiff, however, the court sees no basis to exclude Weyerhaeuser from arguing the
possible significance of a lack of records kept in the normal course of business on the
dangers of non-occupational asbestos exposures. Accordingly, this motion is DENIED.
xi.

United States government’s treatment of asbestos

Finally, plaintiff submits four related requests excluding evidence and argument of
the United States government’s treatment of asbestos. The first two can be considered
together. Plaintiff seeks orders excluding argument that: (#17) “the use of asbestos by
the U.S. government without warnings is evidence that private entities need not warn or
instruct about precautionary matters;” and (#18) “the United States stockpiled
evidence.” (Pl.’s Omnibus Mot. (dkt. #432) ##17, 18.) Defendant does not oppose
these requests, other than to note that plaintiff should be bound by the same order.
Subject to that caveat, therefore, these motions are GRANTED AS UNOPPOSED.
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Plaintiff also seeks an order excluding any argument that “asbestos insulation
products ‘won the war’ or any reference to such products being necessary during World
War II or any other war.” (Pl.’s Omnibus Mot. (dkt. #432) #19.) Defendant does not
object to plaintiff’s request to exclude any “won the war” reference, but does oppose the
motion to extent that plaintiff seeks to exclude all evidence of the use of asbestos in
World War II or subsequent wars on that basis that this evidence is relevant to plaintiff’s
allegation that Weyerhaeuser needlessly continued to use asbestos despite knowledge of
its dangers. On this, the court agrees with plaintiff. Defending the use of asbestos in the
manufacture of household doors on the grounds that the government continued to use
asbestos in waging war is a classic case of an unreasonable comparison. Indeed, one
could hardly come up with a less apt comparison than cost-benefit analysis for use of
asbestos to manufacture a household product and for use in waging war! Accordingly,
plaintiff’s motion is GRANTED.
Finally, plaintiff seeks on order excluding evidence or argument that “the U.S.
Government or any other governmental (state or municipal) entity in any way approved
of, required or specified the use of asbestos products.” (Pl.’s Omnibus Mot. (dkt. #432)
#20.) In support, plaintiff cites to a Ninth Circuit case for the proposition that such
information “cannot provide a defense upon which Defendants may rely.” (Id. (citing In
re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992).) As defendant explains in
response, the holding in that case is not applicable here, because a similar “government
contractor defense” is not at issue.

(Def.’s Opp’n (dkt. #466) pp.12-13.)

To the

contrary, evidence of government specifications, including building codes, is relevant to
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whether and what Weyerhaeuser knew about the dangers of asbestos exposure.
Accordingly, this motion is DENIED unless plaintiff can demonstrate the comparison is
inapt.
B. Motion in Limine on Workers’ Compensation (dkt. #433)
Plaintiff also seeks to exclude any evidence or argument about plaintiff applying
for or receiving workers’ compensation benefits. Plaintiff contends that this evidence is
irrelevant and unduly prejudicial, as well as barred by Wisconsin’s collateral source rule.
Specifically, plaintiff argues that the issue for the jury will be the amount of damages
caused by defendant, making the amount of other compensation irrelevant.

In its

response, defendant does not oppose the motion to the extent that plaintiff seeks to
exclude the amount of other benefits available to Pecher. Defendant, however, seeks to
introduce evidence and argument generally about the workers’ compensation system for
several purposes, including (1) to explain that the occupational exposure is not the focus
of plaintiff’s claims and cannot form the basis of a damages award; (2) to place plaintiff’s
motive for bringing a nuisance claim in the context of the workers’ compensation act’s
exclusivity provision; and (3) to argue that the cause of Pecher’s injuries was his
occupational exposures.
The court agrees with defendant that the workers’ compensation system -specifically its availability to cover occupational injuries -- may be relevant to the jury’s
determination of damages.

Therefore, the court is inclined to allow evidence and

argument as to the existence of this system and its exclusivity provision in the damages
phase. The court, however, is disinclined to allow this evidence and argument in the
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liability phase, unless either side opens the door, except to explain that any liability to
plaintiff for work exposure has been addressed in a separate proceeding.
Of course, this ruling does not prohibit defendant from describing the
occupational exposures and arguing that those alone are the cause (or at least the only
substantial cause) of plaintiff’s injury, while any non-occupational exposure was not a
substantial contributing cause. This argument, however, need not involve an explanation
of the workers’ compensation system.
Accordingly, this motion is GRANTED IN PART, DENIED IN PART AND
RESERVED IN PART as follows:

evidence and argument concerning the workers’

compensation system generally or reference to plaintiff’s specific application or any
receipt of benefits is excluded from the liability phase; any general evidence and
argument is admissible during the damages phase of the trial; and the court reserves as to
the admissibility of any specific evidence or argument as to plaintiff’s specific application
or benefits.
C. Motion to Amend Response (dkt. #454)
In an unusual motion, plaintiff seeks to “amend” its prior response to a proposed
finding of fact submitted by defendant in support of its motion for summary judgment,
based on the testimony of one of its experts during the Daubert hearing. At summary
judgment, defendant submitted the following proposed finding:
Plaintiffs’ experts, including Dr. Anderson and Dr. Abraham,
testified that the in-plant exposures were the “heaviest” and
sufficient alone to have caused the asbestos-related disease.

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(Def.’s PFOFs (dkt. #200) ¶ 144 (citing deposition testimony).)

In her response to

defendant’s proposed findings of facts, plaintiff responded “admit.” (Pl.’s Resp. to Def.’s
PFOFs (dkt. #318) ¶ 144.)
At the December 3, 2015, hearing on defendant’s motion to strike Dr. Anderson’s
and other experts’ testimony, Dr. Anderson testified as follows:
Q My question is for Mr. Boyer, if you were to -- let’s say
the occupational exposure is blue, the household exposure is
red and the exposure from living in the community is yellow.
If you were to eliminate one of those exposures from his life,
could you still say that it would be more likely or not he
would have developed mesothelioma when he did?
A

Yes.

Q

What would you --

A

Oh, no. It might have -- now when he did --

Q

Yes.

A
-- would have probably changed.
changed, I can’t tell you how much.
Q

It might well have

And he might not have gotten the disease at all.

A He might not have gotten the disease because the risk is
somewhat lower if you had lower total exposure.
Q
Once someone has the disease, is there any way
scientifically that you know of that you can say okay, I can
back out some significant component of his exposure and still
say it was -- that he would have developed the disease?
A

No.

Q Do you need a quantitative measurement or estimate of
any subcomponent exposure as long as they are the nature
and type of exposure that has been shown in literature to
cause mesothelioma?
A

No.
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(12/3/15 Hearing Tr. (dkt. #412) 113-14.)

Plaintiff contends that based on this

testimony there is “an actual dispute as to whether Plaintiffs’ experts have ‘testified that
the in-plant exposures were the ‘heaviest’ and sufficient alone to have caused the
asbestos-related disease.” (Pl.’s Br. (dkt. #455) 2.)
As an initial matter, a plaintiff can walk back at trial an admission made for
purposes of summary judgment, although typically a party would expressly admit “for
purposes of summary judgment only.” Arguably, a party should not be able to walk back
so-called “admissions” made in opposition to a Daubert motion, at least as far as being
estopped from backtracking on a party’s material representations of fact to the court. Of
course, if defendant really wanted to bind plaintiff, that is what requests for admissions
under Fed. R. Civ. P. 36 are intended to accomplish.
But all of that is irrelevant, since the court does not read Anderson’s testimony
before the court to conflict directly with his earlier testimony that the occupational
exposures suffered by Pecher were sufficient alone to cause his mesothelioma.
Anderson’s hearing testimony that there can be multiple sources of exposure and that no
one source can be said to have been the sole cause is not to say that any one source was
insufficient by itself to have caused mesothelioma. Indeed, Anderson appears to have
conceded to his testimony that Pecher’s (and the other plaintiff’s) substantial
occupational exposures over time were “sufficient alone to have caused the asbestosrelated disease,” and the court is of the view that he would be hard-pressed to say

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anything else credibly at trial,3 but plaintiff remains free to explore this topic at trial with
Dr. Anderson, and the jury can assess whether his reaction to a hypothetical situation
with three sources of unknown amounts is different from his prior deposition testimony
-- and, if so, whether this later testimony is credible.

Accordingly, this motion is

DENIED as moot.
D. Motions Regarding Testimony by Witnesses (dkt. ##473, 470)
Plaintiff filed two other motions concerning witness testimony.
motion, plaintiff seeks to strike deposition designations by defendant.

In the first
(Dkt. #473.)

Plaintiff designated certain portions of the deposition of Verna Fohrman taken on June
15, 2011, in the In re Asbestos Products Liability Litigation (No. VI), E.D. Pa. (“MDL 875”).
(Pl.’s Depo. Designations (dkt. #430) p.4.) In its objections and counter-designations,
defendant designated portions of Fohrman’s deposition taken on May 28, 1998, in the
Stini v. Owens Corning, No. 95-CV-325 (Wood Cnty. Cir. Ct.). (Def.’s Objs. & CounterDesignations (dkt. #470) p.7; 5/28/98 Fohrman Depo. (dkt. #472).)

In its filing,

defendant explained that the counter-designations were necessary for the sake of
completeness. (Id.) Relying on this court’s earlier order on defendant’s motion to strike
certain deposition testimony from other cases (2/19/16 Op. & Order (dkt. #441) 8-11),
plaintiff maintains, however, that she was not a party to the prior lawsuit and, therefore,
the testimony does not fall within the limited exception to hearsay under Federal Rule of
Evidence 804(b)(1). While the court finds plaintiff’s argument persuasive, particularly
Indeed, Dr. Anderson previously opined that virtually any exposure to asbestos from any source
is sufficient alone to cause mesothelioma.
3

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since reference to testimony from an entirely different deposition is not normally a basis
for a “completeness” objection, the court will RESERVE ruling until defendant has a
chance to respond at the final pretrial conference.
Plaintiff also filed a motion to take so-called “preservation depositions” in lieu of
trial testimony for two witnesses who are unavailable to appear in person. (Dkt. #474.)
Jim Gallatin is the former superintendent of the Weyerhaeuser plant, and plaintiff
represents that he cannot travel to Madison because he is the primary caretaker for his
mentally-limited son. Plaintiff would also like to take a videotaped deposition to play at
trial of Everett Burt, who plaintiff represents, recently advised that his doctor will not
permit him to travel to Madison due to recent heart attacks.

The court is strongly

disinclined to order the taking of depositions in the week leading up to trial, unless both
sides request it, but will RESERVE ruling on this motion, pending discussion with the
parties at the final pretrial conference. In the interim, plaintiff’s counsel should arrange
for either or both of these witnesses to appear live via videoconference for testimony at
trial.

II. Defendant’s Motions in Limine (dkt. #448)
Like plaintiff, defendant similarly presents a long list – 27! -- requests to exclude
evidence and argument, but, unlike plaintiff, defendant presented developed arguments
in a brief filed with the motion.

The court will address each motion in turn, again

grouping motions where appropriate.

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A. Duplicative Motions
Several of defendant’s motions overlap with those submitted by plaintiff. For the
same reasons as explained above, the following motions are GRANTED AS
UNOPPOSED:

#21 (seeking an order barring statements, references, or evidence

regarding liability insurance); #24 (seeking an order excluding any reference or comment
by counsel regarding the amount of money or time spent by Weyerhaeuser in the defense
of this matter); #25 (seeking an order barring any reference to defense counsel as
“asbestos defense lawyers”); and #27 (seeking an order excluding any evidence of the
amount of benefits available under Wisconsin Workers’ Compensation Act).
B. Other Lawsuits
Defendant seeks an order excluding other personal injury actions involving
Weyerhaeuser based on alleged exposure to asbestos.

(#1.)

Plaintiff opposes the

motion, arguing that previous lawsuits or claims for workers’ compensation are relevant
because they tend to show defendant knew or had reason to know of health hazards
associated with asbestos exposure. To the extent the lawsuits or other claims occurred
during the period of time when Weyerhaeuser was using asbestos in the manufacturing of
fireproof doors (i.e., pre-1978), the court agrees with plaintiff,4 although it is not at all
clear from plaintiff’s submission that it has such evidence. If plaintiff’s evidence of other
Plaintiff indicates that lawsuits against other manufacturers are also relevant to Weyerhaeuser’s
knowledge of the danger of asbestos exposure. Assuming that these lawsuits occurred before
1978, such evidence may be relevant, but plaintiff will need to make a satisfactory proffer to the
court outside the jury’s presence regarding the specific claims at issue in other lawsuits, whether
those claims are sufficiently similar to the claimed non-occupational exposures at issue in this
case, and grounds to believe that Weyerhaeuser knew or should have known of these lawsuits.
Otherwise, evidence of other lawsuits will be excluded.
4

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lawsuits or claims against Weyerhaeuser post-date the relevant period of exposure at issue
in this lawsuit, then Weyerhaeuser’s subsequent knowledge is not material to plaintiff’s
claims. Accordingly, the motion is GRANTED as to any post-1978 lawsuit or claim.
C. “Dust”
Next, defendant seeks to exclude testimony from fact witnesses discussing “dust.”
(#2.)

This motion is similar to a challenge raised in defendant’s Daubert motion

concerning plaintiff’s expert Frank Parker’s reliance on anecdotal evidence of dust. As
the court acknowledged in its opinion on the Daubert motion and on defendant’s motion
for summary judgment, there is conflicting evidence from (1) witnesses as to the color of
the dust (black or some other color than off-white), (2) the fact that dust was present
both before and after Weyerhaeuser’s use of asbestos, and (3) the fact that there were
other sources of “dust” at the Weyerhaeuser plant and in the community. (2/19/16 Op.
& Order (dkt. #441) 25-26, 37-39.) All of this is proper fodder for cross-examination,
but does not constitute a basis for striking the testimony of fact witnesses or reliance by
experts on that testimony in forming opinions. This motion is, therefore, DENIED.
D. Plaintiff’s Take Home Exposure
Defendant seeks an order precluding plaintiff from basing her claim of nonoccupational exposure on asbestos fibers brought home on his work clothes. As the court
explained in its prior opinion and order on defendant’s motion to dismiss, such a claim is
barred by the exclusivity provision in Wisconsin’s Workers’ Compensation Act, because
those fibers “still ‘arose out of his employment.’” (8/22/14 Op. & Order (dkt. #64)

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(citing Boyer v. Weyerhaeuser, No. 14-cv-286, slip op. *9 (W.D. Wis. Aug. 22, 2014) (dkt.
#94)).) While acknowledging this ruling, plaintiff contends that evidence of fibers on
plaintiff’s work clothes is still relevant to (1) Anderson’s testimony about cumulative
lifetime asbestos exposure and (2) Weyerhaeuser’s knowledge “by 1960, or by 1965 at
the latest, that both domestic and neighborhood exposure to asbestos can cause
mesothelioma.” (Pl.’s Opp’n (dkt. #461) pp.5-6.)
As for plaintiff’s first basis for allowing testimony of exposure from asbestos on
work clothes, the court will not preclude Dr. Anderson’s testimony about cumulative
exposure, but the jury will be instructed that the non-occupational exposure does not
include any asbestos fibers Pecher brought home on his clothing, since this, too, was the
subject of a separate proceeding. As for plaintiff’s second basis for allowing this evidence,
plaintiff utterly fails to provide any explanation as to why Pecher’s take home exposure
demonstrates Weyerhaeuser’s knowledge of the risk of asbestos exposure. Absent such
an explanation, the court will not allow evidence or argument based on Pecher’s home
exposure from his own work clothes. Accordingly, the motion is GRANTED IN PART
AND DENIED IN PART. The motion is denied as to Dr. Anderson’s general testimony
about cumulative exposure for context purposes, but granted in all other respects.
E. D. B. Allen Report
In a prior opinion and order, the court addressed the admissibility of a 1975
report by D. B. Allen. (#4.) The court concluded that the document was not properly
authenticated for purposes of considering it at summary judgment, though reserved on a
ruling as to its admissibility at trial pending Allen’s deposition and any testimony on his
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part that may indicate the document falls within an exception to the hearsay rule.
(2/19/216 Op. & Order (dkt. #441) 4-8.) In its motion and in plaintiff’s response, the
parties raise several arguments with respect to whether: (1) the document was properly
authenticated by D. B. Allen in a 2015 deposition in a separate lawsuit; and (2) it falls
under an exception to hearsay rule. The court opts to RESERVE on this motion pending
argument at the final pretrial conference.
F. Asbestos Exposure
In addition to the motions described above, defendant seeks to exclude evidence
of community exposure for the years plaintiff did not live in Marshfield (#5); evidence
concerning conditions at or around landfills (#6); and hearsay testimony regarding
complaints in the community (#7).

On the first motion, plaintiff opposes it to the

extent that activities within the 1.25 mile radius of the plant for the years plaintiff did
not live in Marshfield are still relevant to Dr. Anderson’s testimony about cumulative
exposure.

Though these activities, standing alone, would not support Dr. Anderson’s

and the other’s experts’ opinions that Pecher had substantial non-occupational exposures
and that these non-occupational exposures were a significant factor contributing to his
mesothelioma, plaintiff may make a proffer at the final pretrial conference as to the
arguable relevance of this evidence for a more limited purpose. Except to that extent,
however, while the court will also RESERVE on motion #5 as to a further proffer, absent
the court’s satisfaction, this evidence will not be offered at trial.
As for the motion concerning evidence of the conditions of landfills, plaintiff
contends that the motion is premature because the experts will be able to testify “to the
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significance of the dust emitted from trucks en route from the plant to Pecher’s
residence.”

(Pl.’s Opp’n (dkt. #461) p.11.)

Plaintiff, however, failed to respond to

defendant’s motion concerning the landfills themselves.

Accordingly, this motion is

GRANTED as to the condition of the landfills, but DENIED as to evidence that trucks
from Weyerhaeuser carrying asbestos to the landfill were uncovered or otherwise exposed
to the air within 1.25 miles of the plant or otherwise near the Pecher home.
Next, defendant seeks an order excluding testimony from witnesses of complaints
regarding dust in the community. In response, plaintiff contends that this testimony is
not offered for the truth of the matter -- that there was dust in the community -- but
rather that Weyerhaeuser received and was aware of these complaints. The problem with
plaintiff’s argument is that there is no indication that the testimony in dispute (namely,
that of Verna Fohrman) can be tied to Weyerhaeuser or otherwise show Weyerhaeuser’s
knowledge of these complaints -- as opposed to Fohrman’s knowledge of complaints.
Absent some further proffer for finding that the testimony either falls outside of the
confines of hearsay or falls within an exception, this motion is GRANTED.
G. Mr. Pecher’s Death
Defendant brings two motions concerning Mr. Pecher’s death. In the first motion,
defendant seeks to exclude his death certificate as unduly prejudicial under Federal Rule
of Civil Procedure 403 (#8), and in the second motion, defendant seeks to exclude
autopsy photographs (#9).

In her response, plaintiff does not oppose either, and

specifically notes with regard to the first, that the parties have stipulated to advise the

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jury that the diagnosis of mesothelioma is correct.

These motions are, therefore,

GRANTED AS UNOPPOSED.
H. Information About Other Weyerhaeuser Locations
Defendant seeks to exclude evidence regarding any other Weyerhaeuser facility or
location on the basis that this claim is limited to the Marshfield plant. (#9.) While the
court credits defendant’s argument, as plaintiff points out in her response, to the extent
evidence from other locations or facilities demonstrates Weyerhaeuser’s knowledge of the
dangers of asbestos exposure, the evidence is relevant.

Accordingly, this motion is

DENIED as to evidence specific to Weyerhaeuser’s knowledge of dangers from asbestos
exposure before or during the period of plaintiff’s relevant, non-occupational exposure,
but GRANTED in all other respects.
I.

Elwood Schiller Deposition

Defendant seeks to exclude the deposition of Elswood Schiller. (#10.) The court
is perplexed by this motion since it already granted a motion to exclude this deposition in
a prior opinion and order. (2/19/16 Op. & Order (dkt. #441) 10-11.) Accordingly, this
motion is DENIED AS MOOT.
J. Warnings Placed on Fireproof Doors
Next, defendant seeks to exclude under Federal Rule of Evidence 402, warnings or
labels placed on fireproof doors that warned end-users that the doors contained asbestos.
(#11.) Plaintiff argues that this evidence is relevant to Weyerhaeuser’s knowledge of the
hazards of asbestos exposure. The court agrees with plaintiff that such evidence could be
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relevant, again provided the warnings or labels were present during the relevant time
period. Accordingly, this motion is GRANTED, except for warnings or labels that were
placed on doors during or before 1978.
K. Expert Testimony
Defendant brings three motions concerning expert testimony.

First, defendant

seeks to exclude Frank Parker from testifying that “he interpreted epidemiological studies
to find exposures within ‘one and a half miles or a half mile’” on the basis that this
opinion was not described in his report. (Def.’s Br. (dkt. #449) 22 (quoting Parker
Depo. (dkt. #222) 107-08).) (#13.) In his general report, Parker certainly reviewed and
cited as support the relevant epidemiological studies, even if he stopped short of
explicitly describing the 1.25 mile radius.

(Parker Rept. (dkt. #230) pp.30-31.)

Defendant is free to question Parker about whether he relied on this specific radius in
opining that Pecher experienced substantial, non-occupational exposures, but the court
will not preclude Parker from relying on the findings of the epidemiological studies
described in his report. Defendant also challenges whether Parker is qualified to discuss
the epidemiological studies based on his deposition testimony that this is more Dr.
Anderson’s area of expertise. Again, defendants are free to question Parker about his
knowledge of and expertise in applying these studies, but the court will not preclude his
testimony regarding either subject. Moreover, to the extent Parker relied on Anderson’s
description of the studies, such reliance is wholly appropriate. See Walker v. Soo Line R.
Co., 208 F.3d 581, 588 (7th Cir. 2000) (“Indeed, courts frequently have pointed to an

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expert’s reliance on the reports of others as an indication that their testimony is
reliable.”) Accordingly, this motion is DENIED.
Defendant further seeks to exclude so-called “case studies or case reports,” but it is
not at all clear what falls within this category. (#14.) As far as the court can tell, the
defendant appears to be challenging the use of epidemiological studies describing
community exposure on the grounds that they are not sufficiently reliable for the jury to
consider or for plaintiff’s experts to purport to rely on them. The court already dealt
with this argument in its prior opinion and order granting in part and denying in part
defendant’s Daubert motion. (2/11/16 Op. & Order (dkt. #441) 46-47.) As the court
explained in that opinion, defendant remains free to challenge plaintiff’s experts on crossexamination as to whether the communities described in these studies are sufficiently
similar to Marshfield to form the basis of expert opinion in this case, but the court will
not exclude reference to the studies or expert opinions based on those studies. To this
extent, defendant’s motion is DENIED. The court will, however, RESERVE as to the
formal admission of these studies into evidence.
Finally, defendant seeks an order barring plaintiff’s experts from testifying
regarding inadmissible evidence.

(#15.) In support of its argument, defendant cites

cases which pre-date the 2000 Amendment to Rule 703. The rule now expressly provides
that “[i]f experts in the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be admissible for the opinion to
be admitted.” Fed. R. Evid. 703. Of course, there is an exception to this rule if the
prejudicial effect of the inadmissible facts or data outweighs its probative value. Id. In
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light of this balancing test, defendant’s general, vague request for exclusion of expert
testimony regarding inadmissible evidence is wholly insufficient. Defendant would need
to identify a particular piece of evidence; the court would then need to determine
whether the evidence is inadmissible; and assuming it were, defendant would then have
to explain why its prejudicial effect outweighs any probative value.

This motion is

DENIED without prejudice to defendant identifying at the final pretrial conference any
specific challenges to specific pieces of evidence on which plaintiff’s experts are expected
to testify.
L. Pre-1965 Evidence
In this motion, defendant contends that it is well established that the risks
associated with non-occupational exposure “were not known or reasonably knowable
until 1965 at the earliest.” (Def.’s Br. (dkt. #449) 28 (citing cases).) As such, defendant
seeks an order excluding all pre-1965 claims, evidence, testimony or references based on a
general lack of knowledge that harm could result from non-occupational exposure.
(#16.) In response, plaintiff points to medical literature cited by Dr. Anderson which
pre-dates 1965, but appears to concern more generally the dangers of asbestos fibers
without specific reference to non-occupational exposure. Still, plaintiff points out that
the Wagner paper -- one of the epidemiological studies considered by the experts and
included in the Bourdès study-of-studies -- is from 1960.
On this limited record, the court will not bar evidence of knowledge of asbestos
generally pre-dating 1965, nor will it preclude the jury from considering claims which
pre-date 1965. Defendant may, of course, argue that there was an insufficient basis for
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Weyerhaeuser to be aware of the risks of non-occupational asbestos exposure before 1965,
or even later should the evidence support it, but it will be up to the jury to weigh all
evidence and argument. Accordingly, this motion is DENIED.
M. Untimely Evidence
Defendant seeks an order excluding evidence that was not timely or properly
disclosed.

(#17.)

This is another example of a motion which is difficult, if not

impossible, to decide without specific references to evidence.
In its motion, defendant mentions only one category of evidence:

plaintiff

claimed damages for medical bills and funeral expenses in her Rule 26(a) disclosures, but
failed to disclose a computation as required under Federal Rule of Civil Procedure
26(a)(1)(A)(iii).

In her response to defendant’s motion to exclude, plaintiff

acknowledges that she failed to provide a computation, but contends that this oversight
was justified or harmless, and therefore the court should not exclude the evidence from
trial pursuant to Federal Rule of Civil Procedure 37(c)(1).
Considering the relevant facts for determining whether an omission is justified or
harmless, the court agrees with plaintiff that the prejudice or surprise to defendant is
limited at best, particularly since plaintiff timely disclosed the underlying documentation
for these claims. Moreover, there is sufficient time for plaintiff to cure this oversight by
providing a computation (to the extent that she has not already). Finally, while this
omission is consistent with plaintiff counsel’s lamentable and general lack of attention to
detail in this case as a whole, there is no evidence that this omission was in bad faith or
otherwise willful. On the contrary, some of counsel’s failures are due to understandable
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triage given the numerous claims it is pursuing, the need for large numbers of claimants
to make the representation of individuals cost-effective and the uncertainty of recovery.
Accordingly, while this motion is DENIED, plaintiff is ordered to supplement its 26(a)
disclosures with a damages computation no later than March 11, 2016, with annotations
to specific evidence timely produced in this case.

To the extent defendant seeks to

exclude other evidence that was not timely disclosed, or not timely disclosed as required
by the applicable federal rules, the motion is DENIED without prejudice to defendant
raising specific challenges with reference to a specific piece of evidence at the final
pretrial conference.
N. Punitive Damages
There are two motions concerning punitive damages. First, pursuant to Federal
Rule of Civil Procedure 42, defendant seeks an order that any punitive damages claim
will be considered separately in a third phase of trial, rather than be included in the
second damages phase. (#18.) In its brief, defendant argues that “the evidence relevant
to compensatory damages and punitive damages, if admitted during the liability stage, . .
. would likely cause confusion to the jury or potentially bias the jury’s decision on
existence of a nuisance.” (Def.’s Br. (dkt. #449) 31.)
On this much, the court agrees, but it does not explain why punitive damages
should be tried separately from compensatory damages. Here, the evidence of intentional
disregard of plaintiff’s rights that would support an award of punitive damages will likely
overlap significantly with that presented during the liability phase on Weyerhaeuser’s
knowledge of community exposure to asbestos.
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Of course, there may be additional

evidence specific to the punitive damages’ factors, but the court sees no reason to
separate that evidence from evidence supporting a compensatory damages award. The
jury will be expressly instructed as to what it should consider in awarding compensatory
damages, as compared to what it should consider in determining whether an award of
punitive damages is appropriate, and if so, the amount.

Consistent with its typical

practice, therefore, the court will try damages separate from liability, but sees no good
reason for adding a third phase to this trial. Accordingly, this motion is DENIED.
Second, defendant seeks an order excluding any evidence of Weyerhaeuser’s
financial condition until after plaintiff proves she is entitled to punitive damages. (#19.)
The jury will be asked two questions with respect to a punitive damages award: (1) did
plaintiff demonstrate by clear and convincing evidence that she is entitled to punitive
damages and (2) if the answer to the first question is “yes,” what amount do you award?
In its argument, defendant can stress that the jury should consider various factors,
including Weyerhaeuser’s financial condition, only if it answers the first question “yes,”
but the court will not postpone the introduction of this evidence to a third phase of trial.
The court also notes that defendant is free to seek a directed verdict on a claim of
punitive damages after the first phase of trial, at which point the court would have had
the benefit of considering the evidence of Weyerhaeuser’s knowledge of the extent of
asbestos emissions into the community and of the risk of such emissions. Accordingly,
this motion is also DENIED.

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O. Trade Organization Information
Defendant seeks to exclude any argument that Weyerhaeuser received notice of
the hazards of asbestos from trade organizations, such as the National Safety Council,
based merely on one Weyerhaeuser employee’s membership in that organization. (#20.)
In response, plaintiff argues that evidence of any trade associations that defendant was a
member of or participated in is relevant to show that defendant knew, or should have
known, of the health hazards associated with asbestos exposure. The court agrees with
plaintiff.
At the final pretrial conference, defendant can make specific challenges to specific
pieces of evidence on the basis that the evidence is not sufficiently tied to what
Weyerhaeuser knew or should have known, but the court will not grant a blank
exclusion. Accordingly, this motion is DENIED.
P. Weyerhaeuser’s Record-Retention Policy
In this motion, defendant seeks an order excluding evidence or argument
concerning Weyerhaeuser’s document retention policy. (#22.) As explained above, the
court denied plaintiff’s motion to exclude defendant’s argument that the absence of
records about the dangers of asbestos exposure as evidence of a lack of knowledge. (See
infra Opinion § I.A.x.)

But defendant cannot have it both ways.

If Weyerhaeuser

intends to open the door by arguing that a lack of contemporaneous records evinces a
lack of knowledge of asbestos emissions into the community or of the risks of such
exposure, then plaintiff can introduce evidence and argument concerning Weyerhaeuser’s
document-retention policy. This motion is DENIED.
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Q. Descriptions or Characterizations of Plaintiff
Defendant seeks an order barring “any references by plaintiff or her counsel to
plaintiff’s status as a veteran or other comment intended to incite an emotional
response.”

(#36.)

The court agrees with plaintiff that a blanket exclusion is

inappropriate. Instead, the court will address the specific references defendant contends
are inappropriate. First, defendant seeks to exclude any reference to Mr. Pecher as an
“asbestos victim.” The court does not find this phrase or similar phrases so inflammatory
as to illicit an inappropriate emotional response from the jury. On the contrary, there is
no dispute that Mr. Pecher contracted mesothelioma from his asbestos exposure or that
mesothelioma caused his death.

Of course, the jury will be instructed that its

consideration of both causation and damages are limited to non-occupational exposure,
but that does not make Mr. Pecher any less a victim of asbestos exposure.
Second, defendant seeks to exclude any reference to Mr. Pecher as a veteran. To
the extent Mr. Pecher’s status as a veteran was an important aspect of his life, plaintiff is
free to introduce that fact in a depiction of Mr. Pecher. While simple testimony of that
fact is not likely to incite a strong emotional response from the jury, plaintiff is cautioned
that such a reference should not be emphasized in testimony, and especially in argument.
Third, defendant seeks to exclude any statement from plaintiff that the jury
should “send a message” in determining Mr. Pecher’s damages. While the court agrees
that this statement is not relevant to an award of compensatory damages, it is relevant to
an award of punitive damages, and plaintiff is free to use that phrase or a similar phrase
in arguing that the jury should assess a punitive damage award that will “serve as an
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example or warning to defendant or others not to engage in similar conduct in the
future.” With respect to the specific challenges in the motion, therefore, it is DENIED.
R. Depiction of Weyerhaeuser as an “Asbestos Company”
Finally, defendant seeks an order excluding plaintiff from using the terms
“asbestos company,” asbestos defendants,” or the “asbestos industry.”

Defendant

contends that the terms are highly prejudicial and do not accurately fit Weyerhaeuser’s
role or history. Specifically, defendant contends that Weyerhaeuser has never mined
asbestos and that it only used asbestos for approximately a 20-year period in its 115-year
history. Plaintiff opposes the motion on the basis that Weyerhaeuser’s undisputed use of
asbestos in manufacturing doors renders it as an “asbestos company” in the “asbestos
industry,” arguing that those terms have never been limited to those companies or the
industry involved in mining or milling asbestos. As to referring to Weyerhaeuser as an
“asbestos company or defendant,” the court agrees with Weyerhaeuser.

There is no

evidence that Weyerhaeuser was a manufacturer, distributor or retailer of asbestos. At
most, it was a customer, who used asbestos in manufacturing and contributed to the
demand for this product. Of course, just as defendant is free to stress its limited role in
the asbestos industry – namely, that it only purchases and used asbestos in the
production of a product, and even that for a relatively limited period of its history -plaintiff is free to argue as tot eh harm this use created for the larger community
generally and plaintiff in particular. This motion is GRANTED.

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ORDER
IT IS ORDERED that:
1) Plaintiff Janet Pecher’s “omnibus motion in limine to exclude unsupported,
irrelevant, and unfairly prejudicial arguments and evidence” (dkt. #432) is
GRANTED IN PART, DENIED IN PART AND RESERVED IN PART as set
forth above.
2) Plaintiff’s motion in limine to exclude evidence or testimony regarding
workers’ compensation claim (dkt. #433) is GRANTED IN PART AND
DENIED IN PART.
3) Plaintiff’s motion for leave to file plaintiffs’ amended response to defendant
Weyerhaeuser’s Company’s consolidated statement or proposed findings of
fact (dkt. #454) is DENIED.
4) Defendant Weyerhaeuser Company’s motions in limine (dkt. #448) are
GRANTED IN PART, DENIED IN PART AND RESERVED IN PART as set
forth above.
5) Plaintiff’s motion to strike deposition designations by defendant (dkt. #473) is
RESERVED.
6) Plaintiff’s motion for leave to take preservation depositions in lieu of trial
testimony (dkt. #474) is RESERVED.
Entered this 7th day of March, 2016.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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