Opinion

Dempster v. Lamorak Insurance Company

Court
District Court, E.D. Louisiana
Filed
Sep 21, 2020
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALLEN DEMPSTER et al. CIVIL ACTION

VERSUS NO. 20-95

LAMORAK INSURANCE CO. et al. SECTION: “G”(1)

ORDER AND REASONS

In this litigation, Plaintiffs Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster

Martinez, Marla Dempster Loupe, Callen Dempster, Jr., Annette Dempster Glad, and Barnett

Dempster’s (collectively, “Plaintiffs”) allege that Decedent Callen L. Dempster (“Decedent”) was

exposed to asbestos and asbestos-containing products that were designed, manufactured, sold,

and/or supplied by a number of Defendant companies while Decedent was employed by

Huntington Ingalls Incorporated (“Avondale”).1 Pending before the Court is Defendants

Huntington Ingalls Incorporated (“Avondale”), Albert L. Bossier Jr. (“Bossier”), and Lamorak

Insurance Company’s (“Lamorak”) (collectively, the “Avondale Interests”) “Motion in Limine

to Prohibit References to Labor Union Activities.”2 Defendants Foster Wheeler, LLC and General

1 See Rec. Doc. 1-2; Rec. Doc. 1-8. On August 6, 2020, Tanna Faye Dempster, Steven Louis Dempster,

Janet Dempster Martinez, Marla Dempster Loupe, Callen Louis Dempster, Jr., Annette Ruth Dempster Glad, and

Barnett Lynn Dempster were substituted as plaintiffs for Louise Ella Simon Dempster. Rec. Doc. 239. Plaintiffs

bring claims against Lamorak Insurance Company, Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett,

Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler LLC, General Electric Co., Hopeman Brothers, Inc., McCarty

Corporation, Taylor-Seidenbach, Inc., CBS Corporation, Uniroyal, Inc., International Paper Company, Houston

General Insurance Company, Berkshire Hathaway Specialty Insurance Company, Northwest Insurance Company,

United Stated Fidelity and Guaranty Company, Fist State Insurance Company, The American Insurance Company,

Louisiana Insurance Guaranty Association, and the Traveler’s Indemnity Company. Rec Doc. 1-8 at 2–3.

2 Rec. Doc. 69.

Electric join the motion.3 Plaintiffs oppose the motion in limine.4 Considering the motion, the

memoranda in support and in opposition, the record, and the applicable law, the Court grants the

motion.

I. Background

In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to

1994.5 During that time, Plaintiffs aver that Decedent was exposed to asbestos and asbestos-

containing products in various locations and work sites, resulting in Decedent breathing in

asbestos fibers and later developing asbestos-related cancer.6 Plaintiffs assert strict liability and

negligence claims against various Defendants.7

Decedent filed a “Petition for Damages” in the Civil District Court for the Parish of

Orleans, State of Louisiana, on March 14, 2018.8 Defendants Huntington Ingalls Incorporated,

Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the “Removing Parties”)

removed the case to the United States District Court for the Eastern District of Louisiana for the

first time on June 21, 2018.9 On January 7, 2019, this Court remanded the case to the Civil District

Court for the Parish of Orleans.10

Decedent passed away on November 24, 2018, and a First Supplemental and Amending

3 Rec. Doc. 57.

4 Rec. Doc. 142.

5 Rec. Doc. 1-2 at 5.

6 Id.

7 Id. at 7–8.

8 Id. at 2–3

9 Case No. 18-6158, Rec. Doc. 1 at 2.

10 Case No. 18-6158, Rec. Doc. 89.

Petition for Damages was filed in state court substituting Decedent’s heirs as Plaintiffs on January

17, 2019.11 Trial was scheduled to begin before the state trial court on January 13, 2020.12

However, on January 9, 2020, Avondale removed the case to the United States District Court for

the Eastern District of Louisiana for a second time.13 On January 28, 2020, the Court denied the

motion to remand, finding that this case was properly removed to this Court under the federal

officer removal statute.14

On February 26, 2020, the Avondale Interests filed the instant motion in limine.15

Defendants Foster Wheeler, LLC and General Electric join the motion.16 On March 17, 2020,

Plaintiffs filed an opposition to the instant motion.17 On April 6, 2020, Defendants, with leave of

Court, filed a reply brief in further support of the motion.18 On May 5, 2020, the Court continued

the May 18, 2020 trial date due to COVID-19.19

II. Parties’ Arguments

A. The Avondale Interests’ Arguments in Support of the Motion

The Avondale Interests move the Court to exclude any evidence regarding labor union

11 Rec. Doc. 1-8.

12 Rec. Doc. 1-12.

13 Rec. Doc. 1.

14 Rec. Doc. 17.

15 Rec. Doc. 69.

16 Rec. Doc. 57.

17 Rec. Doc. 142.

18 Rec. Doc. 192.

19 Rec. Doc. 225.

activities at Avondale.20 According to the Avondale Interests, the issue of whether Avondale was

unionized or not has no bearing on the outcome of this litigation, because Plaintiffs cannot show

any correlation between safety and unionization.21 Therefore, the Avondale Interests assert that

any reference to whether Avondale was unionized is wholly irrelevant.22

Additionally, the Avondale Interests contend that some members of society, including

potential jurors, maintain preconceived notions regarding union activity.23 Therefore, even if

evidence of union activity would be relevant, the Avondale Interests assert it should be excluded

on the basis that any probative value is greatly outweighed by the danger of the unfair prejudice

and misleading the jury.24 Finally, the Avondale Interests argue that the introduction of evidence

regarding union activity would also constitute an inappropriate attempt to use character evidence

to prove that Avondale acted wrongly in this case.25

B. Plaintiffs’ Arguments in Opposition to the Motion

Plaintiffs assert that the motion should be denied because it is premature and overly

broad.26 Plaintiffs contend that certain newspaper articles referencing union activities at Avondale

are admissible under Federal Rule of Evidence 902.27 Furthermore, Plaintiffs assert that “evidence

of other acts performed by a defendant, preceding or subsequent to an incident, are relevant to

20 Rec. Doc. 69-1 at 1.

21 Id.

22 Id.

23 Id. at 2.

24 Id.

25 Id.

26 Rec. Doc. 142 at 1.

27 Id. at 2–3.

show knowledge of the defendant at the time of the incident.”28 Because it is impossible to

determine exactly what evidence the Avondale Interests seek to exclude, Plaintiffs argue that the

motion in limine should be denied and deferred until trial.29

C. The Avondale Interests’ Arguments in Further Support of the Motion

In reply, the Avondale Interests clarify that they are seeking “to prohibit Plaintiffs and all

other parties from making any reference to, soliciting testimony about, or introducing evidence

regarding whether Avondale was unionized at any time.”30 The Avondale Interests contend that

this evidence has no bearing on whether Avondale breached a duty owed to Decedent.31

Furthermore, the Avondale Interests argue that such evidence would be highly prejudicial given

the likelihood that jurors may possess preconceived notions about unionization.32 Finally, the

Avondale Interests maintain that evidence of labor union activities is specifically prohibited under

Articles 404 of the Federal Rules of Evidence, relating to character evidence.33

The Avondale Interests contend that Plaintiffs failed to show why evidence of union

activity at Avondale should be admissible in this case.34 The Avondale Interests assert that

Plaintiffs’ argument regarding that newspaper articles referencing unionization at Avondale are

admissible under Federal Rule of Evidence 902 is unavailing.35 The Avondale Interests note that

28 Id. at 3.

29 Id. at 2.

30 Rec. Doc. 192 at 1–2.

31 Id. at 2.

32 Id.

33 Id.

34 Id. at 3.

35 Id.

Rule 902 has nothing to do with the admissibility of evidence, and instead merely sets forth

instances in which certain evidence may be self-authenticating.36

III. Legal Standard

Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency

to make a fact more or less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Relevant evidence is deemed admissible unless the

United States Constitution, a federal statute, or the Federal Rules of Evidence mandate

exclusion.37

Pursuant to Federal Rule of Evidence 403, “the court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence.” “The exclusion of evidence under Rule 403 should occur only

sparingly[.]”38

IV. Analysis

The Avondale Interests move the Court to exclude any evidence regarding labor union

activities at Avondale.39 Specifically, the Avondale Interests are seeking “to prohibit Plaintiffs

and all other parties from making any reference to, soliciting testimony about, or introducing

evidence regarding whether Avondale was unionized at any time.”40

36 Id.

37 Fed. R. Evid. 402.

38 United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).

39 Rec. Doc. 69-1 at 1.

40 Rec. Doc. 192 at 1–2.

In opposition, Plaintiffs argue that certain newspaper articles referencing union activities

are admissible under Federal Rule of Evidence 902.41 Rule 902 sets forth instances where

evidence may be self-authenticating; it does not pertain to the relevancy of a piece of evidence

for admissibility purposes.

Plaintiffs also assert that “evidence of other acts performed by a defendant, preceding or

subsequent to an incident, are relevant to show knowledge of the defendant at the time of the

incident.”42 Plaintiffs have not shown that evidence regarding unionization at Avondale is

relevant to the central issue in this case––whether Avondale (and the other defendants) breached

a duty owed to Decedent.43 Furthermore, potential jurors may possess preconceived notions either

in favor of or against unionization. Considering the limited relevancy of this evidence, the Court

finds that the probative value of such evidence is substantially outweighed by a danger of unfair

prejudice. Therefore, the Court excludes any evidence regarding labor union activities at

Avondale.

Accordingly,

41 Rec. Doc. 142 at 3.

42 Id. Plaintiffs cite Federal Rule of Evidence 407. Id. Rule 407 provides that “evidence of subsequent

remedial measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a

need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment

or—if disputed—proving ownership, control, or the feasibility of precautionary measures.” Plaintiffs provide no

explanation how evidence regarding union activity at Avondale would be admissible under Rule 407.

43 See Rec. Doc. 142.

IT IS HEREBY ORDERED that the Avondale Interests’ “Motion in Limine to Prohibit

References to Labor Union Activities”** is GRANTED. Evidence regarding labor union activities

at Avondale is excluded.

NEW ORLEANS, LOUISIANA, this 21st day of September, 2020.

NANNETTE C Jol BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

#4 Rec. Doc. 69.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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