Pecher, Janet v. Weyerhaeuser Company et al

Filing 480

ORDER granting in part and denying in part 432 Motion in Limine; granting in part and denying in part 433 Motion in Limine to Exclude Evidence or Testimony Regarding Workers' Compensation Claim; denying as moot 473 Motion to Strike; denyin g 474 Motion for Leave to Take Preservation Depositions in Lieu of Trial Testimony; granting in part and denying in part 448 Motion in Limine. Additional briefing deadlines set, beginning with defendant's 5:00 PM deadline on 3/9/2016 to b rief any challenges to an expert's reliance on inadmissible evidence relating to defendant's Motion in Limine No. 16. Telephonic Status Conference set for 3/11/2016 at 2:30 PM. Signed by District Judge William M. Conley on 3/9/2016. (arw)

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.
This case is set for trial commencing Monday, March 14, 2016. The court held a
final pretrial conference on March 8, 2016, at which the parties appeared by counsel and
plaintiff Janet Pecher appeared personally.

The court made several rulings and set

deadlines for additional filings during that hearing, which this order now formalizes.

ORDER
IT IS ORDERED that:
1) Plaintiff’s sub-motions in limine No. 12 and 13 (dkt. #432) are GRANTED
IN PART AND DENIED IN PART. Defendant is free to argue that plaintiff
asserted claims against other entities based on in-plant exposure, but the
details about those claims and the terms of any settlement of those claims are
excluded.
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. Defendant may describe generally the availability of
worker’s compensation for injuries arising out of Mr. Pecher’s employment,
but may not introduce any evidence regarding Mr. Pecher’s claims, disposition
of those claims or any benefits.
3) Plaintiff’s motion to strike Verna Fohrman deposition designations by
defendant (dkt. #473) is DENIED AS MOOT. The parties advised the court
during the pretrial conference that neither side would be introducing
deposition designations of Fohrman.

4) Plaintiff’s motion for leave to take preservation depositions in lieu of trial
testimony (dkt. #474) is DENIED. Both witnesses may, however, appear live
by videoconference.
Plaintiff is responsible for making the necessary
arrangement for that testimony to take place in a secure, appropriate
environment, as well as coordinate with the court’s information technology
department to ensure stable, robust two-way communication.
5) Defendant’s motion in limine No. 4 (dkt. #448) is DENIED IN PART AND
RESERVED IN PART. The court overrules any hearsay objection, but will
reserve on authentication. On or before Wednesday, March 9, 2016, at 5:00
p.m., defendant may submit a brief identifying portions of the deposition that
support its authentication challenge. Defendant may also further brief any
specific hearsay challenge, if it so chooses. Plaintiff’s response is due
Thursday, March 10, 2016, at 5:00 p.m.
6) Defendant’s motion in limine No. 5 (dkt. #448) is DENIED.
7) Defendant’s motion in limine No. 14 (dkt. #448) is GRANTED IN PART
AND DENIED IN PART. Barring a further showing outside the jury’s
presence, case studies and reports are excluded, though experts are free to
testify about their reliance on case studies and reports in forming their
opinions in this case. This ruling does not impact the introduction of any case
studies or reports that were in Weyerhaeuser’s possession to demonstrate
knowledge of asbestos dangers. The court will take up challenges to those
papers at Friday’s telephonic conference, should objections to their admission
remain.
8) Defendant may have until 5:00 p.m. on March 9, 2016, to brief any challenges
to an expert’s reliance on inadmissible evidence (relating to defendant’s motion
in limine no. 16). Plaintiff’s response, if any, is due by 5:00 p.m. on March
10, 2016.
9) Plaintiff may have until 5:00 p.m. on March 9, 2016, to offer an alternative
instruction describing factors relevant to the jury’s determination of whether
the public nuisance was a substantial factor in the causation section of the
closing instructions, along with any legal support. Defendant’s response, if
any, is due by 5:00 p.m. on March 10, 2016.
10)
Either side may have until 5:00 p.m. on March 10, 2016, to submit a brief
on the appropriate burden of proof for plaintiff’s intentional public nuisance
claim.
11)
Plaintiff may have until 5:00 p.m. on March 10, 2016, to submit a brief
describing the specific evidence that was allegedly destroyed and the basis for
submitting this instruction to the jury, including clear and convincing evidence
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of defendant’s actual or imputed knowledge that (1) litigation was a distinct
possibility and (2) the destroyed evidence in its possession would be relevant
to that dispute. Defendant may respond by 5:00 p.m. on March 14, 2016.
12)
Plaintiff may have until 5:00 p.m. on March 10, 2016, to supplement or
otherwise amend her expert’s narratives. Defendant’s response, if any, is due
by 5:00 p.m. on March 11, 2016.
13)
The court will hold a follow-up telephonic conference at 2:30 p.m. on
Friday, March 11, 2016, to address remaining objections to exhibits and
deposition designations. Plaintiff is responsible for setting up the call to
Chambers at 608-264-5087. In advance of that conference, the parties’
counsel are to meet and confer in a good faith effort to narrow the remaining
objections in light of the court’s rulings to date.
Entered this 9th day of March, 2016.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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