Gallegos v. BNSF Ry. Co.

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EDWARD GALLEGOS, as Personal Representative of the Estate of MARY DIANA MOE, Deceased, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

No. CV 22-68-M-DLC

United States District Court, D. Montana, Missoula Division

November 27, 2023

ORDER

Dana L. Christensen, United States District Court District Judge

Defendant BNSF Railway Company (“BNSF”) has filed Combined Motions in Limine. (Doc. 77.) Plaintiff has also filed Case-Specific Motions in Limine (Doc. 78), Non-Case-Specific Motions in Limine (Doc. 80), and a Motion in Limine to Exclude Certain Testimony of Dr. Michael Van Scoy-Mosher (Doc. 82).

Factual Background^[1]

Decedent Mary Diana Moe, moved to Libby, Montana, in 1978. Ms. Moe resided in Libby until her death on December 22, 2022. Ms Moe's listed cause of death is mesothelioma caused by exposure to asbestos. Plaintiff, Edward Gallegos is the duly appointed personal representative of the estate of Mary Diana Moe.

W.R Grace operated vermiculite mines near Libby from 1963 until 1990.

BNSF operated a railyard in downtown Libby that shipped processed vermiculite ore for W.R. Grace. Vermiculite ore contains high concentrations of amphibole asbestos. As a result of the vermiculite mining and transport operations there is significant asbestos contamination in and around Libby.

Procedural Background

The First Amended Complaint alleges that BNSF negligently exposed Decedent to asbestos by:

A. Failing to properly inspect for unsafe conditions related to asbestos and asbestos contaminated vermiculite;

B. Failing to correct unsafe conditions relating to asbestos and asbestos contaminated vermiculite;

C. Failing to warn of the hazards associated with exposure to asbestos and asbestos contaminated vermiculite;

D. Failing to provide proper safeguards against exposure to asbestos and asbestos contaminated vermiculite;

E. Failing to prevent the release of an abnormally dangerous substance within its control;

F. Failing to exclude members of the public from its property containing hazardous substances;

G. Failing to conform its activities in Lincoln County to applicable statutes (e.g. § 50-78-101, MCA, et seq., and 29 U.S.C. Ch. 15) and regulations; and

H. Failing to conform its activities to its own plans, rules and standards.

(Id. ¶ 19.) Plaintiff further alleges that that BNSF is strictly liable for its abnormally dangerous activities. (Id. ¶ 24.) Plaintiff seeks compensatory and punitive damages, including damages for wrongful death. (Id. at 10-12.) BNSF denies the allegations and has asserted numerous affirmative defenses. (See Doc. 28.) The Court already addressed the parties' motions for summary judgment, (see Doc. 98), and will now address the parties' various motions in limine.

Legal Standard

A motion in limine is a “procedural mechanism” through which questions regarding the admissibility of “testimony or evidence in a particular area” may be resolved before trial. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). Such in limine rulings are preliminary, and the Court “may always change [its] mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000). “Evidence shall be excluded in limine only when it is shown that the evidence is inadmissible on all potential grounds. Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Speaks v. Mazda Motor Corp., 118 F.Supp.3d 1212, 1217 (D. Mont. 2015) (internal quotation marks and citation omitted). Furthermore, a party seeking to exclude evidence should “identify the evidence at issue and state with specificity why such evidence is inadmissible,” rather than seeking to “exclude broad categories of evidence.” Ducheneaux v. Lower Yellowstone Rural Elec. Ass'n, Inc., No. CV 19-6-BLG-TJC, 2021 WL 2109190, at *1 (D. Mont. May 25, 2021).

Discussion

I. BNSF's Combined Motions in Limine

BNSF seeks to exclude testimony, evidence, or arguments related to:

1. Lay witness testimony regarding the asbestos content of products.

Ruling: RESERVE. Lay witnesses may testify in the form of an opinion that is: “(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701.

2. Evidence or references to alleged ban on asbestos.

Ruling: RESERVE. BNSF seeks to exclude “evidence of the Environmental Protection Agency (‘EPA') hearings on asbestos, the testimony presented at the EPA hearings and the EPA's alleged ‘ban' of products containing asbestos” on the grounds that “[s]uch references are inaccurate and irreparably prejudicial,” as well as irrelevant. (Doc. 83 at 8.) BNSF has not provided a specific description of the hearings or testimony it believes will be at issue.

3. Evidence of other vermiculite exfoliation industrial activities around the country.

Ruling: RESERVE. BNSF “anticipates Plaintiff may attempt to admit testimony and evidence of other industrial exfoliation operations across the country,” and seeks to exclude such evidence on the basis that it is irrelevant and unfairly prejudicial. (Doc. 83 at 9.) Plaintiff does not dispute BNSF's request “to the extent these operations are unrelated to operations or activities involving vermiculite sourced from Libby.” (Doc. 89 at 11.) However, Plaintiff does contend that the fact “the Libby mine produced eighty percent of the world's supply of vermiculite-all of which was transported out of Libby by railcar . . . is relevant and probative to demonstrate the extent and severity of Plaintiff's exposures via the contaminated downtown Libby railyard.” (Id.) Plaintiff also points out that “much of the literature and research regarding the entrainment, dispersion, toxicity, and disease-causing potential of Libby vermiculite and Libby Amphibole Asbestos comes from studies of industrial exfoliation facilities around the country.” (Id.) Again, BNSF has failed to identify specific evidence it seeks to exclude; the Court will rule on the admissibility of each activity, individually, at the time of trial.

4. Non-party claims or diseases and statistical evidence of non party illnesses.

Ruling: RESERVE. BNSF moves to exclude evidence of “separate and distinct claims against BNSF, or claims allegedly due to asbestos exposure in Libby, Montana.” (Doc. 83 at 9.) BNSF also seeks to exclude “statistical evidence of non-parties' alleged asbestos-related illnesses or diseases in the Libby area” on the basis that it is irrelevant and misleading. (Id. at 11.) The Court agrees with BNSF that the existence of independent claims and evidence that non-parties suffered some asbestos-related diseases is likely irrelevant and more prejudicial than probative. However, to the extent Plaintiff's experts rely on such data to support their opinions, this use is appropriate. Fed.R.Evid. 703. Whether such information may be disclosed to the jury depends on if its probative value outweighs its prejudicial effect. Id. Such information may also be relevant in considering an award of punitive damages. Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1016-17 (9th Cir. 2007) (“Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible.”).

Accordingly, the Court reserves ruling until trial, where the Court will address the admissibility of each claim or instance Plaintiff seeks to introduce.

5. BNSF not calling certain witnesses.

Ruling: RESERVE. BNSF seeks to exclude evidence that “BNSF had the ability to call certain witnesses but failed to do so” and “argument by Plaintiff implying what uncalled witnesses may or may not have said.” (Doc. 83 at 13.) BNSF has failed to identify specific potential uncalled witnesses. The Court reserves ruling until trial.

6. Subsequent remedial measures.

Ruling: RESERVE. BNSF seeks to exclude evidence related to the remediation of BNSF's property in Libby and any EPA involvement on the grounds that it is irrelevant and unfairly prejudicial. (Id. at 17-18.) Fed.R.Evid. 407 excludes evidence of subsequent remedial measures if offered to prove negligence, culpable conduct, defect, or need for a warning. However, Rule 407 only applies to voluntary actions, Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir. 1991), and is limited to “the actual remedial measures themselves and not the initial steps toward ascertaining whether any remedial measures are called for,” In re Aircrash in Bali, 871 F.2d 812, 816 n.2 (9th Cir. 1989). BNSF contends that its remediation efforts were voluntarily undertaken pursuant to its Administrative Order on Consent (“AOC”) with the EPA. (Doc. 94 at 9-10; see also Doc. 89-2.)

The Court agrees with Plaintiff that BNSF's remediation efforts undertaken pursuant to the AOC fall outside the scope of Rule 407 because BNSF's decision to enter into the AOC was not entirely voluntary. The AOC was entered into only after the EPA took action to address BNSF's liability under the Comprehensive Environmental Response, Compensation, and Recovery Act (“CERCLA”). Moreover, Plaintiff has proffered that this evidence may be relevant for purposes of impeachment. (Doc. 89 at 18-19.) Nonetheless, the Court reserves ruling until trial when questions of foundation, relevance, and potential prejudice may be resolved in proper context.

7. Inadmissible testing documents.

Ruling RESERVE. BNSF seeks to exclude air sampling data from 1975 purportedly...