Opinion
CASE NO. 8:00CV527 and CASE NO. 8:00CV529.
February 9, 2005
MEMORANDUM AND ORDER (Amended to correct spelling of Plaintiffs' names)
This matter is before the Court in the above-captioned cases on Defendant, IBP, Inc.'s Motion in Limine on Non-Expert Matters. (8:00CV527 at Filing No. 332; 8:00CV529 at Filing No. 315). The Court has considered the arguments of the parties and the evidence submitted. For the following reasons, which are stated in summary fashion, the motion will be granted in part and denied in part.
IBP seeks an order that Plaintiffs may not elicit testimony from any of their rebuttal experts during their cases-in-chief. This part of the motion will be granted for the reasons previously stated by the Court in Filing Nos. 313 and 362.
IBP also seeks to exclude the Exposure Investigation of the ATSDR or its contents. IBP argues that the Preliminary Exposure Investigation Report issued by the ATSDR on December 16, 1997 ("Preliminary Report") contains double or multiple hearsay, statements from unidentified speakers, and references to physical conditions for which there is no expert causation evidence that links the conditions to IBP's actions. IBP acknowledges that the report itself falls within an exception to the hearsay rule, but IBP contends that the double hearsay contained in the report is not excepted by Fed.R.Evid. 803(8). In at least one case, the Eighth Circuit Court of Appeals has affirmed a district court's decision to receive a report from the Center for Disease Control that included in its factual basis information from interviews with witnesses whom the defendant in that case had not crossexamined, over the defendant's hearsay objection, finding that Rule 803(8)(C) provided an exception for the hearsay. See Kehm v. Proctor Gamble Mfg. Co., 724 F.2d 613, 618 (8th Cir. 1983). IBP emphasizes that some of the propositions and conclusions contained in the preliminary exposure report were modified in subsequent ATSDR-related reports on the same subject. Given Rule 803(8)(C), Kehm, and because IBP is free to offer the subsequent ATSDR reports to provide the jury with additional information relative to those propositions and conclusions, I will allow the Plaintiff to offer the Exposure Investigation of the ATSDR or its contents.
IBP also seeks to exclude any testimony or argument that hydrogen sulfide exposure was a contributing cause of Linda Modlin's illness or death, or that IBP is responsible for Linda Modlin's illness or death. Linda Modlin is the Plaintiff Carol Marmo's daughter. According to IBP's brief, Linda Modlin died following an illness diagnosed as metastatic melanoma. The motion shall be granted on this issue because there is no medical expert testimony available to Plaintiff in her case-in-chief to demonstrate that hydrogen sulfide exposure caused Modlin's illness or death. Thus, any evidence that is offered in an attempt to link Linda Modlin's illness and death to IBP shall be excluded.
The Court will not prevent the Plaintiffs from offering a copy of a Consent Decree between IBP and the United States of America or its terms. This ruling does not bar counsel from objecting to its admission at the time it is offered.
IBP also has moved the Court to rule in limine to exclude "any reference or argument by opposing counsel that hydrogen sulfide was the cause of any adverse health condition of the Plaintiffs," and any reference by counsel to hydrogen sulfide as a "neurotoxin," "poison," "hazardous substance," or "toxic chemical." The Court will deny this part of the motion, except to reiterate that no reference to permanent physical injuries may be made, and bar use of the term "neurotoxin" because it connotes impairment to the nervous system that could confuse the jury if it is left to its own devices to understand it. I see no similar potential for confusion by the use of the terms "poison," "hazardous substance," or "toxic chemical."
Last, I address the portion of the motion in which IBP seeks to exclude from evidence all experience with and alleged damages from odor at locations other than the personal residence of each named Plaintiff in each case, specifically the testimony of other Plaintiffs in these cases that have been consolidated for pretrial purposes. At this early stage in the trial, when the Court has concluded just one day of trial and the Plaintiff Carol Marmo has called just one witness, this part of the motion will be denied. It may be that the testimony of the persons called as witnesses, who are also Plaintiffs in these cases consolidated for pretrial management, may become cumulative or unfairly prejudicial, but those considerations can be addressed by objections raised when the witnesses are called during the trial.
For all these reasons,
IT IS ORDERED:
The Defendant IBP, Inc.'s Motion in Limine (Non-Expert Matters) (8:00CV527 at Filing No. 332; 8:00CV529 at Filing No. 315) is granted in part and denied in part as follows:
1. The motion is granted as follows:
a. Plaintiffs shall not elicit testimony from any of their rebuttal experts during their cases-in-chief;
b. Plaintiffs shall not offer any testimony or argument that hydrogen sulfide exposure was a contributing cause of Linda Modlin's illness or death, or that IBP is responsible for Linda Modlin's illness or death;
c. Plaintiffs' counsel shall make no reference or argument that hydrogen sulfide was the cause of any permanent physical injuries sustained by the Plaintiffs;
d. Plaintiffs' counsel shall refrain from using the term "neurotoxin" to describe hydrogen sulfide; and
2. The motion is denied in all other respects.