Sheppard v. Liberty Mutual Insurance Company et al, No. 2:2016cv02401 - Document 416 (E.D. La. 2017)

Court Description: ORDER & REASONS denying 186 Motion in Limine; denying as moot 187 Motion to Strike ; denying 198 Motion in Limine; denying 199 Motion in Limine; denying 201 Motion in Limine; denying as moot 208 Motion for Partial Summary Judgment; denying 211 Motion for Judicial Admission Regarding Asbestosis. Signed by Judge Sarah S. Vance on 2/2/2017. (mmm)
Download PDF
Sheppard v. Liberty Mutual Insurance Company et al Doc. 416 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J ESSE FRANK SHEPPARD VERSUS CIVIL ACTION NO. 16-240 1 LIBERTY MUTUAL INSURANCE COMPANY, ET AL. SECTION “R” (3) ORD ER AN D REASON S J esse Frank Sheppard alleges that he suffers from lung cancer caused by asbestos exposure. He brings claims against his former em ployer, several m anufacturers and distributors of asbestos-containing products, and related insurers. The parties have filed several m otions, and the Court resolves seven of them as follows. I. BACKGROU N D This suit was originally filed in the Civil District Court for the Parish of Orleans. 1 Defendant Mosaic Global Holdings Inc. rem oved the action to this Court on March 22, 20 16. 2 In his complaint, Sheppard alleges that he was exposed to asbestos “[o]n a daily basis” as an em ployee of Mosaic’s 1 2 R. Doc. 1 at 1. Id. predecessor com pany, Freeport Sulphur Com pany. 3 This exposure allegedly caused Sheppard to develop asbestos-related cancer, lung cancer, and/ or m esotheliom a. 4 Although Sheppard stopped working for Freeport in the early- to m id-1990 s, 5 Sheppard’s asbestos-related ailm ents were first diagnosed in October 20 15. 6 In addition to Freeport/ Mosaic, Sheppard sues several defendants involved in the m anufacture, distribution, and sale of asbestos-containing products that Sheppard allegedly encountered in the course of his work. 7 Sheppard also brings claims against insurance companies that allegedly provided coverage to defendants for asbestos-related claim s and withheld inform ation from Sheppard about the danger of asbestos. 8 Sheppard brings claim s for “negligence, intentional tort, fraud, and strict liability,” and alleges that all defendants are “jointly, severally, and in 3 R. Doc. 1-1 at 5. Id. at 6. 5 Sheppard’s com plaint is inconsistent on this point. Sheppard alleges variously that his tenure at Freeport, and exposure to asbestos, ran from “approximately 1967 through 1992,” from “approxim ately 1967 through 1994,” and “from 1967 through 1976.” R. Doc. 1-1 at 5, 6. 6 R. Doc. 1-1 at 6. 7 Id. at 6, 7. 8 Id. at 3, 4, 8. 2 4 solidio liable.”9 He seeks damages for, am ong other things, physical and m ental pain, loss of life, loss of income, and m edical expenses. 10 II. D ISCU SSION A. Mo tio n to Strike Gayla McClu s ke y ( R. D o c. 18 7) Sheppard moves to strike Gayla McCluskey on the grounds that defendant Reilly Power never offered McCluskey for deposition. In response, Reilly Power points to an em ail sent by its counsel to Sheppard’s counsel on December 27, 20 16. In the em ail, “Riley Power, Inc. offers Gayla McCluskey for deposition by telephone at 1:0 0 pm EST on J anuary 3, 20 17.”11 This date is before the close of discovery, 12 and plaintiffs have offered no further briefing to suggest this dispute rem ains live. Accordingly, the m otion is DENIED AS MOOT. 9 10 11 12 Id. at 29. Id. R. Doc. 223-1 at 3. R. Doc. 150 . 3 B. Mo tio n to Exclu d e Evid e n ce Re gard in g Se ttle m e n ts ( R. D o c. 19 8 ) an d Mo tio n to Exclu d e Evid e n ce Re gard in g Co llate ral So u rce s ( R. D o c. 19 9 ) In these two m otions, Sheppard argues that evidence that he settled claim s with other defendants in this case is inadm issible under Federal Rule of Evidence 40 8 and that evidence of collateral sources of com pensation, such as insurance benefits, is inadm issible under the collateral source rule. Under Rule 40 8, evidence of com prom ise of a claim is inadm issible for purposes of establishing liability. Fed. R. Evid. 40 8. Sim ilarly, “the collateral source rule operates to exclude evidence of collateral benefits because it may unfairly prejudice the jury.” Trico Marine Assets Inc. v. Diam ond B Marine Servs. Inc., 332 F.3d 779, 794 n.7 (5th Cir. 20 0 3). Defendants respond that both settlement agreements and evidence of collateral sources m ay be adm issible to show bias or prejudice in a witness, to explain why the plaintiff’s testim ony regarding settling defendants has changed, or for other lim ited purposes. Defendants are correct that Rule 40 8 is not a blanket ban on settlem ent evidence. See Fed. R. Evid. 40 8(b); 2 McCorm ick On Evid. § 266 (7th ed. 20 16). However, “[i]n evaluating the ‘another purpose’ exception to Rule 40 8, the district court m ust balance the exception against the policy of encouraging settlem ents, and take care that an ‘indiscrim inate and m echanistic’ application of the exception does not 4 underm ine the rule’s public policy objective.” Marine Pow er Holding, L.L.C. v. Malibu Boats, LLC, No. 14-912, 20 16 WL 4218217, at *4 (E.D. La. Aug. 8, 20 16) (quoting Gulf S. Mach., Inc. v. Am . Standard, Inc., No. 97-0 65, 1999 WL 10 2752, at *2 (E.D. La. Feb. 22, 1999)). A sim ilar balancing standard applies to the collateral source rule. Trico Marine, 332 F.3d at 794 n.7. (“[I]n certain circumstances, [collateral source] evidence could be adm itted for a lim ited purpose if there is little risk of prejudice and the court gives the jury a lim iting instruction.”). The parties have argued these m otions in generalities rather than specifics. Neither party identifies which specific settlem ents should be excluded or adm itted. Sheppard does not outline why evidence of settlements with any party would be prejudicial. Defendants, meanwhile, list reasons why a settlem ent m ight be adm issible, but offer no argument tailored to the facts of this case. The parties’ briefing regarding collateral sources is sim ilarly academ ic. Accordingly, the Court finds that a blanket ban on these categories of evidence is unwarranted, and Sheppard’s m otions are DENIED. However, in view of the potential prejudice associated with evidence of prior settlem ents or collateral sources of compensation, no such evidence will be adm issible at trial without express perm ission of the Court. Parties seeking to introduce 5 evidence relating to settlem ents or collateral sources shall provide written briefing on the issue, no later than m idnight on the day before the proposed offer. C. Mo tio n in Lim in e Re gard in g Expe rts Th at H ave N o t Ye t Be e n D e p o s e d ( R. D o c. 2 0 1) Sheppard represents that he was unable to depose all of defendants’ experts before the Court’s deadline for Motions in lim ine regarding the adm issibility of expert testim ony. He has accordingly filed the instant m otion “in order to preserve the plaintiff’s ability to supplem ent this m otion if, following the deposition of the rem aining expert witnesses, it appears that a m otion in lim ine regarding the admissibility of the experts’ testim ony is warranted.”13 This is not a proper use of a m otion in lim ine, and the m otion is therefore DENIED. D . Mo tio n fo r Ju d icial Ad m is s io n Re gard in g As be s to s is ( R. D o c. 2 11) In this m otion, Sheppard argues that in m oving for sum mary judgment on Sheppard’s purported claim s for asbestosis, defendants m ade a judicial 13 R. Doc. 20 1-1 at 2. 6 adm ission that Sheppard in fact has asbestosis. Defendants deny m aking any such adm ission. The Fifth Circuit defines a judicial adm ission as “a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party m aking them .” Martinez v. Bally ’s Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 20 0 1). A judicial adm ission is conclusive and withdraws a fact from contention. See id. Further, a statement by counsel during the course of trial m ay qualify as a judicial adm ission if counsel intended to release the opponent from proof of a fact. See id. An ordinary evidentiary adm ission, on the other hand, is “‘m erely a statement of assertion or concession m ade for some independent purpose,’ and it m ay be controverted or explained by the party who m ade it.” Id. (quoting McNam ara v. Miller, 269 F.2d 511, 515 (D.C. Cir. 1959)). Defendants’ m otion concerning asbestosis plainly does not m eet the standard for judicial adm issions. In their m otion for sum m ary judgm ent, Defendants argue that any claim for asbestosis is prescribed because Sheppard alleges he was diagnosed with asbestosis in 20 11. 14 Defendants m ake clear that they dispute the validity of this diagnosis. This is far from 14 R. Doc. 20 8-1. 7 the “form al concession” required to constitute a judicial adm ission. Accordingly, the motion is DENIED. E. Mo tio n fo r Partial Su m m ary As be s to s is Claim s ( R. D o c. 2 0 8 ) Ju d gm e n t Re gard in g Defendants m ove for sum m ary judgm ent on any claim s Sheppard brings for asbestosis. 15 Sheppard denies that he has brought such a claim . 16 To the extent the com plaint is am biguous on this point, the Court defers to Sheppard’s m ore lim ited interpretation of his own com plaint. See Gen. Chem icals, Inc. v. Exxon Chem ical Co., USA, 625 F.2d 1231, 1234 (5th Cir. 1980 ) (considering plaintiff’s briefing in interpreting com plaint that was “not a m odel of clarity”); see also Lippitt v. Ray m ond Jam es Fin. Servs., Inc., 340 F.3d 10 33, 10 40 (9th Cir. 20 0 3) (deferring to plaintiff’s m ore lim ited interpretation of the claim s brought in its am biguous complaint). Therefore, because Sheppard’s com plaint brings no claim for asbestosis, defendants’ m otion is DENIED AS MOOT. 15 16 Id. R. Doc. 247. 8 F. Mo tio n in Lim in e to Exclu d e Alle ge d Co n s u ltatio n N o te ( R. D o c. 18 6 ) Sheppard m oves to exclude a “consultation note” allegedly com pleted by a Dr. Sm ith. According to the note, dated November 7, 1989, Sheppard had at that tim e “been a smoker for about 25 years with a 20 to 25 pack a year history.”17 The parties dispute whether the note indicates that Sheppard had a 20 -25 “pack year” history—m eaning Sheppard sm oked roughly a pack of cigarettes a day for 20 to 25 years—or that Sheppard sm oked roughly two packs per m onth over 20 to 25 years. In other words, defendants argue that a “pack year” is com m on medical term for measuring a sm oking habit, that the “a” in “pack a year history” is a typo, and that Dr. Sm ith m eant to say that Sheppard had a 20 -25 pack year history. Sheppard, meanwhile, m aintains that Dr. Sm ith is saying that Sheppard sm oked 20 -25 packs per y ear for about 25 years. In support of his m otion for exclusion, Sheppard argues that the consultation note is hearsay, cannot be properly authenticated, and will cause confusion and prejudice. The Court considers these purported grounds for exclusion in turn. To counter Sheppard’s argum ents regarding hearsay and authenticity, defendants assert that the Dr. Sm ith record falls under the 17 R. Doc. 186-4. 9 business records exception to the hearsay rule and is self-authenticating pursuant Federal Rule of Evidence 90 2(11). See Fed. R. Evid. 80 3(6); Fed. R. Evid. 90 2(11). “The issue of adm issibility under 80 3(6) is chiefly a m atter of trustworthiness.” Mississippi River Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314, 1319 (5th Cir. 198 1). The rule im poses “no requirement that the records be created by the business having custody of them .” United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990 ). Nonetheless, the assumption of trustworthiness underpinning 80 3(6) “collapses when ‘any person in the process is not acting in the regular course of the business.’” Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 279 (5th Cir. 1991) (quoting McCorm ick on Evidence § 30 6 at 872 (3rd ed. 1984)). In support of their positions, the parties present dueling affidavits from J im m ie S. Coney, the custodian of records for the offices of William C. Coney, MD. 18 In the affidavit offered by defendants, Coney states that: (1) the Dr. Sm ith record is drawn from “a true, accurate and complete copy of the m edical records of J esse Frank Sheppard m aintained by” the offices William C. Coney, MD 19 ; (2) these m edical records “were m ade at or near the tim e of 18 19 R. Doc. 186-8; R. Doc. 225-3. R. Doc. 225-3 at 1. 10 the occurrence of the m atter set forth by, or from information transm itted by, people with knowledge of those m atter”20 ; and (3) the records “were kept in the course of regularly conducted business activity and it was the regular practice of the business to m ake the records.”21 These declarations satisfy Rules 80 3(6)(A)-(C) and 90 2(11), and would therefore usually provide a proper foundation for adm ission. Sheppard, however, presents a second affidavit in which Coney specifically addresses the Dr. Sm ith record. In this later affidavit, Coney states that (1) the Dr. Sm ith record “is not created in the course and scope of this office” and Coney “cannot attest to the authenticity accuracy, or veracity of said docum ent or any statements contained therein” (2) the record was not “prepared by anyone in the offices” of William C. Coney, MD, but rather was “m ade by an individual(s) from another m edical facility”; and (3) the business practices of this other m edical facility are “not known to” Coney. 22 The com bined effect of these affidavits is that Coney knows how the Dr. Sm ith record was kept by his office—i.e. in a way that satisfies the business records exception—and that the record was prepared by another m edical facility, but Com ey does not know how that facility produced the record. The 20 21 22 Id. at 2. Id. R. Doc. 186-8. 11 Fifth Circuit faced very sim ilar facts in United States v. Duncan, 919 F.2d 981 (5th Cir. 1990 ). In Duncan, the court considered insurance com pany records, which had been authenticated by a representative of the insurance com pany. Id. at 986. The insurance file contained m edical records produced by hospitals unaffiliated with the insurance com pany. Id. The Duncan defendants argued that because “the insurance com pany records contained other unauthenticated m edical records and statements by doctors,” the business records exception did not apply and the records could not be sufficiently authenticated. Id. The Fifth Circuit squarely rejected this argument. In doing so, the court found that “[t]he insurance com panies compiled their records from the business records of hospitals,” and “[b]ecause the m edical records from which the insurance com pany records were made were them selves business records, there was no accum ulation of inadm issible hearsay.” Id. The court m entioned no need for testim ony regarding the practices of the hospitals which produced the records, and the opinion’s discussion of the relevant testim ony suggests that none was offered. Id. at 986 n. 4. The Court finds that Duncan provides sufficient authority to reject Sheppard’s hearsay and authenticity argum ents. The Court further notes that Sheppard’s statem ent regarding his smoking history, which is 12 incorporated into the Dr. Sm ith record, is an opposing party’s statement and therefore is not hearsay under Rule 80 1(d)(2). Even if Sheppard’s statement were hearsay, it would fall under the hearsay exception for statem ents m ade for m edical diagnosis or treatment. See Fed. R. Evid. 80 3(4). Furtherm ore, as to authenticity, the Fifth Circuit “does not require conclusive proof of authenticity before allowing the admission of disputed evidence.” In re McLain, 516 F.3d 30 1, 30 8 (5th Cir. 20 0 8) (citing United States v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993)). Rather, Rule 90 1 “m erely requires som e evidence which is sufficient to support a finding that the evidence in question is what its proponent claim s it to be.” Accordingly, “[a] proponent m ay authenticate a docum ent with circumstantial evidence, including the docum ent’s own distinctive characteristics and the circum stances surrounding its discovery.” Id. (internal quotations om itted). Here, the characteristics and discovery of the Dr. Sm ith record strongly support its authenticity. The document was produced as part of a 290 page m edical record and the parties appear to agree as to the authenticity of the other 289 pages. Furtherm ore, the docum ent’s appearance is consistent with the countless m edical records the Court has reviewed in the past. Accordingly, the Court finds that defendants have presented sufficient 13 evidence to support a finding that the Dr. Sm ith record “is what its proponent claim s it to be.” Id. Finally, Sheppard’s argument that the Dr. Sm ith record will lead to confusion in unpersuasive. Evidence may som etimes be excluded if it is likely to confuse the jury. See, e.g., Day v. Rogers, 260 F. App’x 692, 693 (5th Cir. 20 0 7). But Sheppard provides no support that for the notion that evidence subject to two com peting interpretations should be excluded for that reason alone. Furtherm ore, the Dr. Sm ith report speaks directly to a key issue in this case—Sheppard’s sm oking history—and its probative value therefore outweighs any risk of confusion. For these reasons, Sheppard’s m otion in lim ine to exclude the Dr. Sm ith report is DENIED. III. CON CLU SION For the foregoing reasons: • Sheppard’s Motion to Strike Gayla McClusky (R. Doc. 187) is DENIED AS MOOT. • Sheppard’s Motion to Exclude Evidence Regarding Settlem ents (R. Doc. 198) is DENIED. Parties seeking to introduce evidence 14 relating to settlements shall provide written briefing on the issue, no later than m idnight on the day before the proposed offer. • Sheppard’s Motion to Exclude Evidence Regarding Collateral Sources (R. Doc. 199) is DENIED. Parties seeking to introduce evidence relating to collateral sources shall provide written briefing on the issue, no later than m idnight on the day before the proposed offer. • Sheppard’s Motion in Lim ine Regarding Experts That Have Not Yet Been Deposed (R. Doc. 20 1) is DENIED. • Sheppard’s Motion for J udicial Adm ission Regarding Asbestosis (R. Doc. 211) is DENIED. • Defendants’ Motion for Partial Sum m ary J udgment Regarding Asbestosis Claim s (R. Doc. 20 8) is DENIED AS MOOT. • Sheppard’s Motion in Lim ine to Exclude Alleged Consultation Note (R. Doc. 186) is DENIED. 2nd New Orleans, Louisiana, this _ _ _ _ _ day of February, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 15