Carroll, Ronald et al v. ABB, Inc. et al

Filing 534

ORDER on the parties' motions in limine. Signed by District Judge William M. Conley on 7/7/2017. (kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PATRICIA CARROLL, individually and as
personal representative of THE ESTATE OF
RONALD KENNETH CARROLL, deceased,

Plaintiffs,

OPINION AND ORDER

v.

15-cv-373-wmc

JOHN CRANE INC.,
Defendant.
This matter is set for trial commencing on Monday, July 17, 2017, at 9:00 a.m.
In advance of the telephonic final pretrial conference scheduled for July 11, 2017, at
12:30 p.m., the court issues the following opinion on the parties’ motions in limine.

OPINION
I.

Plaintiffs’ Motions in limine
A. Plaintiffs’ “omnibus” motions in limine (dkt. #469)
Plaintiffs first filed a single, “omnibus” motion in limine, which is riddled with

poorly developed, unnecessary and/or meaningless requests. While most can be answered
by reference to the rules of evidence, the court will address the motion in its myriad,
constituent parts in the hopes of addressing plaintiffs’ apparent, wholly unfounded
concern that this trial will be allowed to proceed like a shoot out at the O.K. Corral.

1.
Defendant should be barred from discussing whether any
money received by plaintiffs would be subject to taxation
This motion is GRANTED as unopposed. 1
2 & 3.
Defendant should be barred from discussing whether
plaintiffs have received or will receive money from the defendants
with whom they reached settlement agreements
Defendant opposes these motions to the extent that it may seek to cross-examine
a witness about the fact of settlements with other defendants (as opposed to the
substance or amount of those settlements) in order to argue the witness now has an
incentive to diminish the roles of the settling defendants in causing Mr. Carroll’s injuries
while enhancing defendant’s role. Federal Rule of Evidence 408 permits the court to
“admit [evidence of settlement] for other purposes, such as proving a witnesses’ bias or
prejudice.”

Fed. R. Evid. 408(b).

Here, the fact of plaintiffs’ settlement with other

parties may be probative of bias, but only for a witness affiliated with an entity with
whom plaintiffs settled and a plausible motive to foist causal responsibility for Mr.
Carroll’s injuries on one or more of the defendants.

Accordingly, this motion is

RESERVED pending a proffer as to the specific evidence or argument defendant intends
to offer at the final pretrial conference.
4.
Defendant should be barred from discussing the court’s rulings
on any motions
This motion is GRANTED as unopposed.
5.
Defendant should be barred from discussing whether plaintiffs
have attempted to resolve this suit with a settlement
This motion is GRANTED as unopposed.
1

Motions in limine granted as unopposed bind the opposing party to the same order.

2

6.
Defendant should be barred from discussing plaintiffs’
objections to its interrogatories and requests for production
With defendant having provided no reason why any mention of plaintiffs’
objections to its interrogatories and requests for production should be admissible, and the
court being unable to articulate one, this motion is GRANTED.
7.
Defendant should be barred from seeking any agreement or
stipulation from plaintiffs and their counsel in the jury’s presence
Given that the court will tolerate no colloquy between the parties during trial, this
motion is DENIED as wholly unnecessary.
8.
Defendant should be barred from discussing the circumstances
under which plaintiffs retained an attorney
This motion is GRANTED as unopposed.
9.
Defendant should be barred from disclosing that “any of the
corporations which once made, manufactured, mined, sold or
distributed asbestos . . . are in bankruptcy”
Defendant opposes this motion on the grounds that any claims plaintiffs have
submitted to bankruptcy trusts are admissible under Wisconsin law and relevant to
whether defendant’s products caused Mr. Carroll’s injuries.

Whether a federal court

should look to state law to determine the admissibility of this evidence, it is at least
arguable, but the court agrees any claims plaintiffs have asserted that other entities are
responsible for the development of Mr. Carroll’s mesothelioma are potentially relevant
both for purposes of deciding causation and damages.

Although the venue of that

association (whether in a formal court submission, in a letter or orally) is not nearly so.
Accordingly, the court will GRANT the motion to the extent it seeks to exclude any

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mention of court bankruptcy of others in the asbestos industry, and it will otherwise be
DENIED.
10.
Defendant should be barred from discussing whether plaintiffs
have failed to call any witness who was “equally available to both
parties”
This motion is GRANTED as unopposed.
11.
Defendant should be barred from referring to any effect of a
claim on insurance rates
This motion is GRANTED as unopposed.
12.
Defendant should be barred from making demands of plaintiffs
in the jury’s presence
For the same reasons as plaintiffs’ seventh motion was denied as unnecessary, this
motion is also DENIED.
13.
Defendant should be barred from referring to the “contents of
any interrogatory responses or discovery instruments which have
been amended or supplemented”
Having provided no explanation of the basis for this motion, plaintiffs’ motion is
DENIED. Should either side wish to offer substantive, discovery responses as that of a
party opponent, they should consult opposing counsel.
14.
Defendant should be barred from referring to any injury or
illness of Mr. Carroll other than those that are the subject of this
lawsuit
As defendant points out, Mr. Carroll’s other injuries may be relevant to damages.
Accordingly, this motion is GRANTED as to the liability phase of trial and RESERVED
as to the damages phase pending further proffer by defendant at the final pretrial
conference.
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15.
Defendant should be barred from referring to how plaintiffs’
lawyers are paid
This motion is GRANTED as unopposed.
16.
Defendant should be barred from referring to punitive damages
as “bonus monies”
This motion is also GRANTED as unopposed.
17.
Defendant should be barred from stating during voir dire that
plaintiffs’ counsel is “trying to get you off the jury”
Since the court will conduct the voir dire rather than counsel, this motion is
DENIED as unnecessary.
18.
Defendant should be barred from referring to the effects of a
judgment on insurance premiums or its ability to compete in the
marketplace
This motion is GRANTED as unopposed.
19.
Defendant should be barred from commenting on the amount
of tort litigation and lawyers in the United States
This motion is GRANTED as unopposed.
20.
Defendant should be barred from stating that it will be
required to pay a money judgment out of its own pocket or whether
its business has struggled recently
This is yet another silly motion.

Defendant will not be permitted to discuss

whether it will have to pay a money judgment out of its own pocket, but its financial
condition may be relevant to punitive damages. Therefore, this motion is GRANTED as
to the liability phase of trial and RESERVED as to the damages phase.

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21.
Defendant should be barred from suggesting that smoking
tobacco may contribute to the risk of mesothelioma for lack of
scientific support
Lacking further context and citation to authority in support, the court will
RESERVE as to this motion for a more fulsome explanation at the final pretrial
conference.

If plaintiffs have reason to believe that defendant’s experts will offer an

opinion regarding smoking tobacco and mesothelioma that is inadmissible under the
Federal Rules of Evidence, then obviously that should have been the subject of a Daubert
motion. Nor can the court conceive of defendant arguing such a link exists without
expert support. On the other hand, the cumulative impacts of smoking related diseases
and mesothelioma may be relevant at the damages phase.
22.
Defendant should be barred from suggesting that “the SV 40
virus or polio vaccine causes mesothelioma, directly or indirectly”
This motion is GRANTED as unopposed.
23.
Defendant should be barred from stating that plaintiffs had
sued other defendants in this lawsuit
This motion is RESERVED for the same reasons as plaintiffs’ second motion.
24.
Defendant should be barred from making any in-court
demonstrations of dust created by breaking or rubbing insulation
material
Of course, the parties may of use demonstrative exhibits, videos or photos to
describe the materials at issue in this lawsuit, but they will not be permitted to simulate
the dust created by working with insulation in open court. Subject to this narrowing
clarification, this motion is GRANTED.

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25.
Defendant should be barred from referring to personal
experiences regarding cancer
This motion is GRANTED as unopposed.
26.
Defendant should be barred from referring to any RICO
lawsuit filed against asbestos plaintiff’s firms
This motion is GRANTED as unopposed.
27.
Defendant should be barred from referring to any ruling in the
Garlock bankruptcy
Defendant opposes this motion, explaining that it intends to “use[] rulings and
opinions from this action to explore the basis of expert opinions and cross-examine
[plaintiffs’] experts.” This motion is RESERVED pending a specific showing as to what
“rulings and opinions” defendant intends to proffer or discuss at the final pretrial
conference.
28.
Defendant should be barred from making “any mention or
argument or use of bankruptcy claims for proof of causation”
This motion is GRANTED in part and DENIED in part for the reasons explained
and to the extent allowed above with respect to plaintiffs’ ninth motion.
29.
Defendant should be barred from making any specific reference
to the amount of asbestos insulation that was contained in the spaces
in which Mr. Carroll worked, as any estimate would be merely
speculative
Defendant opposes this motion, arguing that its expert, Captain McCloskey, will
testify about “the type of materials Mr. Carroll used while he was in the U.S. Navy.”
The court will explore this motion with the parties at the final pretrial conference, and so
it is RESERVED.

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30.
Defendant should be barred from referring to any of Mr.
Carroll’s medical conditions aside from mesothelioma
This broadly-worded motion overlaps considerably, if not fully, with plaintiffs’
fourteenth motion, and so it is also GRANTED as to the liability phase of trial and
RESERVED as to the damages phase subject to further proffer from defendant at the
final pretrial conference.
31.
Defendant should be barred from questioning plaintiffs’
witnesses about the Garlock Bankruptcy or RICO lawsuit
Subject to its rulings as to paragraphs 26 and 27 above, the court agrees with
defendant that this motion is vague and lacking sufficient explanation, and so it will be
DENIED without prejudice to further explanation by plaintiffs at the final pretrial
conference.
32.
Defendant should be precluded from arguing that “Mr. Carroll
worked with and would have been exposed to a dose or amount of
‘substantial’ asbestos insulation while working in the Navy”
Defendant opposes this motion on the basis that Mr. Carroll’s sworn statements
have earlier been used to make claims for money.

Again, with the parties having

provided little context as to their dispute regarding this motion, it is RESERVED pending
further argument at the final pretrial conference.
33.
Defendant should be barred from referring to or showing to the
jury a physical copy of any petition, complaint or amendments in this
case
Nothing will be “shown” to the jury unless admitted into evidence, except perhaps
as a demonstrative. As for “referring” to “a physical copy,” the court has no earthly idea
to

what plaintiffs’ counsel refers.

Defendant’s counsel responds by grossly
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misrepresenting the import of Fed. R. Evid. 801(d)2(D) -- “[a]ny statements made by
[plaintiffs] during the course of this case constitute admissions and are therefore relevant
and admissible.”

Having no context to decide this motion, it is DENIED and both

parties are directed to become more familiar with the federal rules of evidence before the
July 11th pretrial conference.
34.
Defendant should be barred from referring to Mr. Carroll’s
family history of cancers unrelated to asbestos
This motion is GRANTED as unopposed.
35.
Defendant should be barred from referring to any payments
that plaintiffs have received or will receive from any other source,
including settlements in this lawsuit
Although defendant generally will not be permitted to discuss any payments
plaintiffs have received or will receive, evidence of settlements or claims submitted to
bankruptcy trusts may be admissible, as already explained with respect to plaintiffs’
second, third and ninth motions. Accordingly, this motion is GRANTED in part and
RESERVED in part pending further argument at the final pretrial conference consistent
with paragraphs 2, 3 and 9 above.
36.
Defendant should be barred from referring to Mr. Carroll’s
history of smoking
Defendant opposes this motion, arguing that Mr. Carroll’s smoking had damaged
his lungs. This motion is RESERVED pending a proffer from defendant in advance of
the damages phase of trial consistent with paragraph 21 above.
37.
Defendant should be barred from referring to any claim
plaintiff has filed with any bankruptcy trust
For the reasons already explained, this motion is RESERVED.
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38.
Defendant should be precluded from arguing that it should not
be held to the knowledge of an expert regarding asbestos components
or that it does not have a duty to monitor or test for health hazards
associated with asbestos products
As defendant points out, the standards regarding knowledge and testing to which
defendant is held will be set forth in the jury instructions. Accordingly, this motion is
DENIED as moot.
39.
Defendant should be precluded from arguing that the fact that
there are no sales records for its products during the time Mr. Carroll
worked for Wisconsin Power and Light demonstrates that they were
not present during that time
In response to this motion, defendant confirms that it “will not argue that a lack
of sales documents is evidence of a lack of sales to Mr. Carroll’s work prior to 1974.”
Therefore, to the extent plaintiffs’ motion seeks to preclude such argument, it is
GRANTED as unopposed, but since defendant points out that plaintiffs have designated
deposition testimony that defendant did not retain sales records during the years Mr.
Carroll worked at Wisconsin Power and Light, plaintiffs’ motion is DENIED in all other
respects.

B.
Plaintiffs’ motion in limine to exclude opinions offered by defendant’s
experts James Crapo, Victor Roggli and Mary Beth Beasley (dkt. #470)
Plaintiffs move to preclude defendant’s experts James Crapo, Victor Roggli and
Mary Beth Beasley from offering any opinion that there exists a minimum threshold of
chrysotile exposure required to cause mesothelioma.

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The admissibility of expert

testimony in federal courts is governed principally by Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
A district court functions as a “gatekeeper” regarding expert testimony. The court
must determine whether a party’s proffered expert testimony is relevant and reliable.
Daubert, 509 U.S. at 589; see also United States v. Johnsted, 30 F. Supp. 3d 814, 816 (W.D.
Wis. 2013) (expert testimony must be “not only relevant, but reliable”). Although expert
testimony is “liberally admissible under the Federal Rules of Evidence,” Lyman v. St. Jude
Med. S.C., Inc., 580 F. Supp. 2d 719, 723 (E.D. Wis. 2008), it must satisfy the following
three-part test:
(1) the witness must be qualified “as an expert by knowledge,
skill, experience, training, or education,” Fed. R. Evid. 702;
(2) the expert’s reasoning or methodology underlying the
testimony must be scientifically reliable, Daubert, 509 U.S. at
592-93; and
(3) the testimony must assist the trier of fact to understand
the evidence or to determine a fact in issue. Fed. R. Evid.
702.
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Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). “Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596.
In support of their motion, plaintiffs cite a number of scientific sources for the
proposition that there is no recognized safe level of exposure to any type of asbestos fiber.
Plaintiffs further assert that “multiple courts” have excluded the “chrysotile threshold”
opinion, although they then cite a single Virginia state court opinion in support. That
court granted a motion in limine to preclude opinions from one of the defendant’s experts
regarding a minimum threshold of dangerous exposure to chrysotile on the grounds that
the expert failed to disclose the materials upon which he relied, either before or at his
deposition. (Pls.’ Opening Br. Ex. 16 (dkt. #471-16) at 4.)
Defendant argues that the “dose evidence” analysis to estimate the amount of
asbestos fibers to which a person was exposed is a scientific, widely-utilized method to
determine whether a given degree of exposure to asbestos can be determined to have been
a substantial cause of mesothelioma.

Defendant further asserts that determining a

threshold below which exposure to asbestos can cause mesothelioma is a basic principle
of toxicology.

In support of its experts’ opinions, defendant cites several sources,

including one peer-reviewed source concluding that “low occupational exposures to
chrysotile . . . are unlikely to cause mesothelioma.” (Def.’s Opp’n Br. Ex. G (dkt. #4997) at 211.)

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Ultimately, plaintiffs’ citations to multiple sources support a finding that there is
no scientifically recognized safe level of exposure to asbestos -- that is, a level where the
risk of contracting mesothelioma is miniscule or zero. On the other hand, where a person
has had multiple exposures to asbestos, there is support for the proposition that minor
exposure to chrysotile asbestos is likely to produce little risk of developing mesothelioma
sufficient to satisfy Fed. R. Evid. 702.

Indeed, as defendant points out, accepting

plaintiffs’ argument to the contrary would amount to endorsing an “any exposure”
liability theory: “the viewpoint that, because science has failed to establish that any
specific dosage of asbestos causes injury, every exposure to asbestos should be considered
a cause of injury.” Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 846 (E.D.N.C. 2015).
This assertion actually has been excluded by “numerous courts” for its scientific
unreliability. Id. Accordingly, the jury will have to weigh the opinions of the parties’
experts on this subject, and this motion is DENIED.
C.
Plaintiffs’ motion in limine to exclude opinion testimony from
defendant’s expert John Henshaw (dkt. #477)
In this motion, plaintiffs argue that defendant’s witness John Henshaw is
unqualified to offer expert opinion testimony because he gained all of his relevant
experience for the purpose of litigation.

While certainly fertile grounds for cross

examination the court is unaware of case law disqualifying a legitimate expert in a field
testifying simply because he developed that expertise in response to demand for these
services.

Plaintiffs also move to exclude Mr. Henshaw’s expert opinion testimony that

there is a threshold below which exposure to chrysotile asbestos does not present a risk of
developing mesothelioma as failing to meet the level of scientific reliability to satisfy Rule
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702. If Henshaw is really opining that no risk exists, then the court might agree, but an
opinion that the risk is “low” or creates no “substantial” risk is permissible for the same
reason as it denied plaintiffs’ motion as to defendant’s experts James Crapo, Victor
Roggli and Mary Beth Beasley.
As for Mr. Henshaw’s relevant experience, plaintiffs argue that Henshaw lacked
expertise regarding asbestos gaskets and packing before he began working at the
Occupational Safety and Health Administration (“OSHA”) in 2001, and he did little
work regarding gaskets and packing while at OSHA. Plaintiffs further assert that Mr.
Henshaw’s asbestos-related experience since leaving OSHA has all been acquired for the
purpose of litigation. In particular, plaintiffs point out that all four of the articles that
Mr. Henshaw has authored were published within the last four years, three of those
articles were “paid for” by defendants in asbestos litigation and only one of those articles
was a study regarding gaskets, which was funded by the defendant here. Plaintiffs would
also make much of Mr. Henshaw’s relationship with his former employer, ChemRisk,
citing several publications criticizing scientific literature generated by that firm.
In response, defendant asserts that Henshaw is more than adequately qualified as
an expert in the fields of industrial hygiene and public health. Defendant also points out,
among other things, that Mr. Henshaw has received an advanced degree in
environmental and industrial health, and he has held managerial positions related to
environmental health and industrial hygiene in both the public and private sectors.
Finally, defendant points to the hundreds of exposure monitoring and assessments that
Mr. Henshaw has conducted over his career including analyses of asbestos. Specifically
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for gaskets, Mr. Henshaw “has personally sampled for asbestos during gasket replacement
activities and assessed worker exposures to asbestos while handling asbestos-containing
gaskets and packing materials.” (Def.’s Opp’n Br. (dkt. #498) at 4.)
On balance, the court finds that defendant has established that Mr. Henshaw is
qualified to offer expert opinion testimony regarding Mr. Carroll’s exposure to asbestos in
this case, having gained sufficient relevant experience over the course of his career, except
to the extent that he would opine there is essentially no risk of contracting mesothelioma
at some level of exposure to asbestos. Accordingly, plaintiffs’ motion is DENIED.

D.
Plaintiffs’ motion in limine to exclude expert opinion testimony from
defendant’s expert Margaret McCloskey in its entirety (dkt. #484)
Plaintiffs further move to exclude testimony from defendant’s expert Margaret
McCloskey, opining on the level of Mr. Carroll’s exposure to asbestos while serving as a
“boiler tender” in the United States Navy, on the grounds that the subject of her
testimony is within the ordinary understanding of lay people. Alternatively, plaintiffs
seek to limit McCloskey’s testimony regarding exposure during Mr. Carroll’s time in the
Navy, to what can be supported by twelve affidavits Carroll executed before his death,
arguing that anything further would merely be speculative.
More specifically, plaintiffs argue that because Carroll described his tasks and the
products with which he worked while in the Navy in his affidavits, the jury can reach its
own conclusions as to the exposure to asbestos he encountered. In contrast, defendant
argues that Ms. McCloskey will offer expert opinion testimony helpful for the jury’s
understanding based on her own experience as a Captain in the Navy. Provided that a
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proper foundation is laid as to the factual basis for her assumptions about Carroll’s actual
responsibilities, the court is inclined to agree that McCloskey has technical, specialized
knowledge that may be helpful to a lay jury under Rule 702 regarding “the nature of Mr.
Carroll’s job duties while in the Navy, the asbestos-containing products and equipment
present on the USS Canberra during Mr. Carroll’s time on the ship, and the fact that the
United States Navy did not consider asbestos-containing gaskets and packing hazardous
under normal use and removal during the time of [Mr. Carroll’s] service.” The court also
agrees, however, that this opinion testimony should be limited to Mr. Carroll’s actual job
duties and the equipment with which he actually worked or was likely to work while
serving in the Navy. Therefore, plaintiff’s motion is DENIED. 2

II.

Defendant’s Motions in limine
A.

Defendant’s “omnibus” motion in limine (dkt. #452)

Although not as numerous or blatantly unnecessary, defendant, too, files an
“omnibus” motion in limine which is largely answered by the Federal Rules of Evidence,
but which the court responds to briefly below.
1.
Plaintiffs should be barred from referring to settlement
negotiations between plaintiffs and defendant
This motion is GRANTED as unopposed.

2

By virtue of this ruling, defendant’s motion to strike (dkt. #532) will be denied as moot.

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2.
Plaintiffs should be precluded from referring to defendant as
an “asbestos company” or as part of the “asbestos industry”
Defendant argues that any reference to John Crane Inc. as an “asbestos company”
or as a company in the “asbestos industry” would unfairly cause the jury to believe that it
“processed, milled or mined asbestos,” and thus it would be unduly prejudicial under Fed.
R. Evid. 403.

In response, plaintiffs argue that those characterizations are accurate

because defendant manufactured products that contained up to 85 percent asbestos. The
court agrees with defendant that any reference to defendant as an “asbestos company” or
as a company in the “asbestos industry” is misleading.

Rather it used asbestos in

manufacturing. Therefore, this motion is GRANTED; just as neither side will be allowed
to make any other representation to the jury that the evidence will not support.

3.
Plaintiffs should be precluded from presenting demonstrative
evidence or other physical evidence to the jury until the court rules
on its admissibility
Although defendant’s motion is overbroad as titled, defendant notes specifically
that the motion is simply intended to bar plaintiffs from demonstrating the dust released
by grinding asbestos components. With this limitation, the motion is GRANTED as
unopposed. Obviously, both sides should also be cautious about referring to, much less
displaying, any evidence unless confident of its admission at trial. Similarly, counsel is
advised to consult with opposing counsel about the use of a demonstrative exhibit and to
bring any objection to the court’s attention outside the jury’s presence, so as to avoid an
embarrassing admonishment in front of the jury.

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4.
Plaintiffs should be barred from referring to Mr. Carroll as an
“asbestos victim”
The court agrees with plaintiffs that any reference to Mr. Carroll as a “victim of
asbestos” or an “asbestos victim” would not be improper, assuming the evidence supports
it (i.e. Mr. Carroll was diagnosed with mesothelioma, which as the court understands it,
can only be contracted with exposure to asbestos), nor is it so inflammatory as to elicit an
inappropriate emotional response from the jury. Accordingly, this motion is DENIED.

5.
Plaintiffs should be barred from referring to the money or time
defendant has spent defending this lawsuit or to defendant’s wealth
Plaintiffs oppose this motion, arguing that the amount of time that defendant
spent working with a third party, “ChemRisk litigation consultants,” to create scientific
literature and identify testifying experts may be relevant to the experts’ bias and the
reliability of their opinions. Plaintiffs also correctly point out that defendant’s wealth
may be relevant to punitive damages. Accordingly, defendant’s broadly-worded motion is
GRANTED only as to any general references to the time or money spent defending this
lawsuit and as to any references to defendant’s wealth during the liability phase of trial.
The motion is DENIED in all other respects without prejudice to a further, specific
proffer by defendant.

6.
Plaintiffs should be barred from referring to any motions in
limine filed by the parties
This motion is GRANTED as unopposed, except by number if raised in objection
to the other party violating the court’s rulings. Defendant is similarly admonished.

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7.
Plaintiffs should be barred from referring to any friend,
relative, co-worker or other individual injured by exposure to
asbestos
Since plaintiffs have identified no individual whose asbestos exposure shares the
same characteristics as Mr. Carroll’s, defendant argues that any reference to an asbestosrelated injury suffered by any individual other than him should be precluded by Rule
403.

In response, plaintiffs argue that evidence of another individual’s exposure to

asbestos may be relevant. For example, to the extent that defendant argues that the type
of asbestos in defendant’s products cannot cause mesothelioma, examples may be
necessary. By way of further explanation, plaintiffs point out that evidence of another
individual’s exposure to asbestos may be relevant if properly relied upon by an expert in
reaching his or her opinion. Given these explanations, defendant’s broadly-titled motion
is DENIED without prejudice to a further proffer at the pretrial conference.

8.
Plaintiffs should be barred from referring to defendant’s
participation or membership in any organization without laying a
proper foundation
Plaintiffs’ response to this motion is something of a non-sequitur, arguing that
even if defendant did not participate in a trade organization at a particular time, what
was known in such an organization may be relevant to what it should have known. This
motion is therefore, RESERVED pending a further proffer from the parties at the final
pretrial conference.

9.
Plaintiffs should be barred from referring to any of defendant’s
products used after Mr. Carroll’s last claimed date of exposure
This motion is GRANTED as unopposed.
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10.
Plaintiffs should be barred from referring to any of defendant’s
products used at job sites where Mr. Carroll did not work
Plaintiffs oppose this motion, arguing that evidence of defendant’s products used
at job sites where Mr. Carroll did not work may be relevant for reasons including
defendant’s awareness of the health risks associated with its products. This motion is
RESERVED pending a further proffer by plaintiffs and argument from the parties at the
final pretrial conference.
11.
Plaintiffs should be barred from eliciting hearsay testimony
regarding whether a product contained asbestos
Defendant asserts in support of its motion that “[n]either [plaintiffs] nor any of
[Mr. Carroll’s] co-workers [have] ever tested John Crane products for asbestos, and none
of them has any foundation from which to conclude that any John Crane product
contained asbestos.” Even assuming this is true, it would only exclude plaintiffs and coworkers from offering expert opinion.

Moreover, one could conceive of a number of

hearsay exceptions that might apply to statements made to Mr. Carroll or his co-workers - statement of a party opponent or proof of knowledge come to mind.

Accordingly,

defendant’s motion is DENIED without prejudice pending a further proffer by defendant
as to the hearsay statement(s) it seeks to exclude.

12.
Plaintiffs should be barred from referring to asbestos-related
injuries of any co-workers
Defendant’s twelfth motion is similar to its seventh, although this motion only
concerns evidence of asbestos injuries suffered by co-workers.

In opposition to this

motion, plaintiffs argue that such evidence may be relevant depending on the facts and
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arguments developed at trial. Without a specific example of a co-worker who contracted
mesothelioma after exposure to asbestos similar enough to Mr. Carroll to satisfy Rule
403, however, defendant’s motion may be well-taken.

Accordingly, the court will

RESERVE on this motion subject to a proffer from plaintiffs at the final pretrial
conference as to any of Mr. Carroll’s co-workers whose injuries from asbestos exposure
may be relevant to the question of causation in the liability phase of trial.

13.
Plaintiffs should be barred from suggesting that Mr. Carroll
was exposed to crocidolite asbestos from defendant’s products
In response to this motion, plaintiffs argue that defendant’s knowledge about the
dangers of crocidolite asbestos is relevant to what it knew or should have known about
other types of asbestos it used in its products, but then agree not to argue or attempt to
present evidence that Mr. Carroll was exposed to crocidolite asbestos in defendant’s
products. Given this, the motion is GRANTED as unopposed.

14.
Plaintiffs should be precluded from eliciting lay testimony that
Mr. Carroll “would or could have” worked with any of defendant’s
products
The court agrees with plaintiffs that defendant’s fourteenth motion is both broad
and vague, and so it is DENIED, although the court will certainly sustain objections to
testimony that is not based on the witness’s personal knowledge or otherwise calls for
speculation.

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15.
Plaintiffs should be precluded from referring to any crossclaims that defendants filed against one another
Defendant’s motion is broad and poorly explained, while plaintiffs assert in
response to this motion that they must be permitted to address any arguments defendant
makes regarding another party as a cause of Mr. Carroll’s injuries. Since it is unclear
what relief defendant actually seeks given that it has affirmatively pleaded cross-claims,
albeit “to preserve the same,” or whether plaintiffs disagree with the request, the motion
is RESERVED.

16.
Plaintiffs should be precluded from arguing that Mr. Carroll
was injured by defendant’s products simply because working with
them created visible dust
Defendant asserts that any argument that Mr. Carroll was injured by its products
because they created visible dust should be precluded because there is a “very good
chance” that the dust was comprised of non-asbestos components. In response, plaintiffs
cite several sources for the proposition that visible dust released from an asbestoscontaining product signifies a dangerous level of exposure. Because defendant’s motion
presents an issue that is ultimately for the jury to decide, it is DENIED.
B.
Defendant’s motions in limine to preclude evidence of post-exposure
statements including material safety data sheets (dkt. #453), to preclude
evidence of workers’ compensation claims (dkt. #454) and to preclude
evidence of post-exposure corporate statements (dkt. #455)
In three separate motions, defendant moves to preclude evidence of workers’
compensation claims filed against it, as well as evidence of statements made or adopted
by defendant after Mr. Carroll’s last claimed date of asbestos exposure in 1974. In the
main, defendant argues that all of this evidence lacks relevance to the liability issues that
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the jury must decide at trial: first, any individuals who filed workers’ compensation
claims would not be exposed to asbestos under sufficiently similar circumstances to Mr.
Carroll; and second, statements in defendant’s documents that post-date Mr. Carroll’s
last year of asbestos exposure bear little on what defendant knew during the period of his
exposure.

Defendant also argues in particular that evidence regarding asbestos

components with which employees worked in its facilities is too attenuated from any
asbestos exposure resulting from Carroll’s working with its finished products.

As

examples of the types of documents and statements it seeks to preclude, defendant
identifies specifically: (1) memoranda internal to defendant; (2) documents related to air
monitoring at defendant’s facilities; (3) Material Safety Data Sheets (“MSDS”) required
by OSHA; and (4) warning labels attached to defendant’s products.
Plaintiff opposes each of these three motions, arguing generally that: (1) evidence
from the period of Mr. Carroll’s exposure to asbestos is relevant to defendant’s notice of
asbestos-related health hazards; and (2) evidence post-dating his exposure may be
relevant to defendant’s culpability for the purpose of deciding punitive damages, the
feasibility of earlier precautionary measures and causation. Generally speaking, the court
is unimpressed with the notion that compensation claims or remedial actions post-dating
Carroll’s exposure have much or any relevance to the liability issues here.

While

plaintiffs’ arguments may have some merit with respect to individual documents, the fail
to provide any context for the court to decide. For instance, plaintiffs fail to identify
even one piece of specific evidence they intend to introduce for any one of the several

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purposes for which they argue workers’ compensation claims and post-exposure evidence
are relevant, particularly during the liability phase of trial.
Therefore, while the court will RESERVE on these three motions (dkt. ##453455), it will be plaintiffs’ burden to overcome the general presumption as to evidence
post-dating Carroll’s exposure by proffering at the final pretrial conference specific
evidence from workers’ compensation claims, post-exposure documents or statements
from defendant that they intend to introduce during the liability phase of trial.

In

advance of the final pretrial conference, the parties are also encouraged to confer
regarding any agreement that can be reached as to undisputed issues of causation, notice
or feasibility of warnings, and to draft any factual stipulations they court might read to
the jury in lieu of live testimony.

C.
Defendant’s motion in limine to preclude “unscientific catch phrases
in lieu of causation proof” (dkt. #456)
In yet another bare-bones motion, defendant seeks to preclude plaintiffs from and
their experts from using phrases such as, “every exposure contributes” to mesothelioma,
and “there is no safe level” of exposure, which, defendant argues, are not supported by
the scientific literature.

Instead, defendant asserts that plaintiffs’ experts must

demonstrate that Mr. Carroll was exposed to sufficient amount of asbestos from
defendant’s products to have caused his mesothelioma. In response, plaintiffs deny that
their experts will offer any opinion that “every exposure” to asbestos causes
mesothelioma, but instead that “mesothelioma is caused by a person’s cumulative
asbestos exposure and that exposures that contribute to the cumulative dose by meeting
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certain well-defined criteria, can be considered a substantial factor in causing the
mesothelioma.” (Pls.’ Opp’n Br. (dkt. #508) at 1.)
Certainly, the court agrees that an “every exposure” argument or expert opinion
would not be sufficient for plaintiffs to establish that defendant’s products were a
substantial contributing factor in causing Mr. Carroll’s injuries. Cf. Tragarz v. Keene Corp.,
980 F.2d 411, 420 (7th Cir. 1992) (noting that Illinois courts look to “the frequency,
regularity, and proximity of exposure in determining whether the injured party’s exposure
to defendants’ asbestos products was a substantial factor in causing the alleged injury”).
However, this does not preclude such an observation as a starting point in thinking about
what would or should be sufficient, nor to illustrate the potential of any exposure
creating a risk of contracting mesothelioma, albeit not a substantial one.
Plaintiffs further argue that defendant incorrectly conflates the “every exposure”
opinion with the recognized opinions that “no safe level of asbestos exposure has been
established and that low levels of asbestos exposure above background levels can
contribute to cause mesothelioma,” for which they cite several sources as authority. (Pls.’
Opp’n Br. (dkt. #508) at 12.) In light of the authority plaintiffs cite in support of the
causation opinions their experts will offer at trial, the court has already found that they
satisfy the requirements of Rule 702.

Still, plaintiffs appear to use contradictory

language in their opposition brief -- on one hand, disclaiming that their experts will offer
an “every exposure” theory, but on the other, arguing that “the federal asbestos MDL has
repeatedly ruled that the opinion that every exposure to asbestos above background levels
contributes to cause mesothelioma[,] satisfy[ying] the Daubert admissibility standard for
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expert testimony.” (Id. at 20.) The latter statement is questionable at best. See Yates,
113 F. Supp. 3d at 847 (“His references to exposures ‘above background’ do not
meaningfully distinguish his theory from other ‘each and every exposure’ theories,
because the same shortcomings that plague the latter apply equally to the former.”)
(citing cases).

Given the sloppiness of both sides’ briefing regarding the experts’

opinions, therefore, the court will RESERVE on this motion, while directing the parties
to provide the court all expert reports before the telephonic pretrial conference and be
prepared to make a proffer and argument regarding this subject, including, if necessary,
setting forth explicitly the content of their experts’ opinion testimony and the underlying
methodology/sources on which they relied.

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ORDER
IT IS ORDERED that:
1) Plaintiffs’ “omnibus” motion in limine (dkt. #469) is GRANTED in part,
DENIED in part and RESERVED in part, as set forth in this opinion.
2) Plaintiffs’ motion in limine to exclude opinions offered by defendant’s experts
James Crapo, Victor Roggli and Mary Beth Beasley (dkt. #470) is DENIED.
3. Plaintiffs’ motion in limine to exclude opinion testimony from defendant’s
expert John Henshaw (dkt. #477) is DENIED.
4) Plaintiffs’ motion in limine to exclude expert opinion testimony from
defendant’s expert Margaret McCloskey (dkt. #484) is DENIED.
5) Defendant’s “omnibus” motion in limine (dkt. #452) is GRANTED in part,
DENIED in part and RESERVED in part, as set forth in this opinion.
6) Defendant’s motions in limine to preclude evidence of: post-exposure
statements including material safety data sheets (dkt. #453); workers’
compensation claims (dkt. #454); and post-exposure corporate statements
(dkt. #455) are RESERVED.
7) Defendant’s motion in limine to preclude “unscientific catch phrases in lieu of
causation proof” (dkt. #456) is RESERVED.
8) Defendant’s motion to strike (dkt. #532) is DENIED as moot.

Entered this 7th day of July, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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