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.