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
Avondale, Albert L. Bossier Jr. (“Bossier”), and Lamorak Insurance Company’s (“Lamorak”)
(collectively, the “Avondale Interests”) “Motion in Limine to Require Plaintiffs to Disclose all
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.
Settlements.”2 Numerous Defendants join the motion.3 Plaintiffs oppose the motion.4 Considering
the motion, the memoranda in support and in opposition, the record, and the applicable law, the
Court grants the motion in part and denies it in part.
I. Background
In this litigation, Plaintiffs allege that Mr. Dempster was employed by Avondale from
1962 to 1994.5 During that time, Plaintiffs aver that Mr. Dempster was exposed to asbestos and
asbestos-containing products in various locations and work sites, resulting in Mr. Dempster
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
2 Rec. Doc. 66.
3 Rec. Docs. 57, 78, 79, 83, 175, 177.
4 Rec. Doc. 136.
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.
Decedent passed away on November 24, 2018, and a First Supplemental and Amending
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
Numerous Defendants join the motion.16 On March 17, 2020, Plaintiffs filed an opposition to the
instant motion.17 On March 23, 2020, the Avondale Interests, 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
11 Rec. Doc. 1-8.
12 Rec. Doc. 1-12.
13 Rec. Doc. 1.
14 Rec. Doc. 17.
15 Rec. Doc. 66.
16 Rec. Docs. 57, 78, 79, 83, 175, 177.
17 Rec. Doc. 136.
18 Rec. Doc. 167.
19 Rec. Doc. 225.
II. Parties’ Arguments
A. The Avondale Interests’ Arguments in Support of the Motion
In the motion, the Avondale Interests request an order “compelling the plaintiffs to
disclose their (1) settlements with bankruptcy trusts and claims facilities; (2) settlements with all
parties to this case; and (3) settlements with any non-parties whether those settlements occurred
prior to or during the trial.”20 The Avondale Interests assert that if a party settles prior to trial, the
other defendants will receive a virile share credit for proving that party’s liability at trial.21
Therefore, the Avondale Interests argue it is critical to know the status of settlements prior to and
during trial, and to know the specific identity of all released entities.22
The Avondale Interests note that once the trial has begun, discovery will be closed.23 Thus,
the Avondale Interests contend that nothing short of an order from this Court will guarantee that
the parties to this matter are kept abreast of settlements as they might occur.24 Accordingly, the
Avondale Interests request that the Court order Plaintiffs to disclose all parties with whom they
have settled and to reveal whether those settlements have been finalized or reduced to writing.25
B. Plaintiffs’ Arguments in Opposition to the Motion
As an initial matter, Plaintiffs note that the Avondale Interest’ motion is not evidentiary,
but it is more akin to a discovery motion.26 To the extent that this motion is seeking only the
20 Rec. Doc. 66-1 at 1.
21 Id. (citing Romano v. Metro. Life Ins. Co., 2016-0954 (La. App. 4 Cir. 5/24/17), 221 So. 3d 176, 181).
22 Id.
23 Id. at 2.
24 Id.
25 Id.
26 Rec. Doc. 136 at 2.
identities of those parties with whom Plaintiffs have settled since the inception of the instant
action, Plaintiffs state that they have no objection to identifying those parties with whom they
have settled.27 However, Plaintiffs argue that evidence regarding the settlements is inadmissible
under Federal Rule of Evidence 408.28 While Plaintiffs contend that evidence regarding
settlements is inadmissible, Plaintiffs state that they have and will continue to disclose the
identities of those parties with whom they have reached a settlement agreement in the case at
bar.29
C. The Avondale Interests’ Arguments in Further Support of the Motion
In reply, the Avondale Interests argue that Rule 408 does not provide a blanket prohibition
against the production of settlement-related evidence.30 The Avondale Interests note that Rule
408 allows the introduction of settlement agreements when offered for reasons other than to prove
liability.31 In this case, the Avondale Interests assert that they do not seek to offer the settlements
“to prove or disprove the validity or amount of a disputed claim”32 Instead, the Avondale Interests
contend that they merely seek to offer the fact of a particular settlement so as to establish the
necessary basis for virile shares.33 Moreover, the Avondale Interests state that the settlement
documents will not be published to the jury; rather, the documents would be placed into evidence
27 Id.
28 Id. at 3.
29 Id. at 8.
30 Rec. Doc. 167 at 2.
31 Id.
32 Id.
33 Id.
without the jury’s knowledge of those agreements.34
III. Legal Standard
Federal Rule of Evidence 408 governs the admissibility of settlement agreements.35 Rule
408 prohibits evidence of compromise negotiations, as well as conduct or statements made during
compromise negotiations, from being admitted “either to prove or disprove the validity or amount
of a disputed claim or to impeach by a prior inconsistent statement or contradiction.”36 However,
such evidence is admissible to show the bias or prejudice of a witness.37 Although the contents
or amount of a settlement is typically inadmissible, the existence of a settlement may be
admissible to reduce a jury’s confusion about absent defendants.38 “Whether to permit the
evidence for another purpose is within the discretion of the trial court.”39
IV. Analysis
In the motion, the Avondale Interests request an order “compelling the plaintiffs to
disclose their (1) settlements with bankruptcy trusts and claims facilities; (2) settlements with all
parties to this case; and (3) settlements with any non-parties whether those settlements occurred
prior to or during the trial.”40 The instant motion is not evidentiary in nature. Instead, the motion
seeks an order compelling production of certain information and documents. Discovery in the
34 Id.
35 Fed. R. Evid. 408.
36 Fed. R. Evid. 408(a)(1).
37 Fed. R. Evid. 408(b).
38 Latiolais v. Cravins, 574 F. App’x 429, 435 (5th Cir. 2014).
39 Branch v. Fid. & Cas. Co. of New York, 783 F.2d 1289, 1294 (5th Cir. 1986).
40 Rec. Doc. 66-1 at 1.
above-captioned matter is closed,*! and no party has moved to reopen discovery. Nevertheless, to
the extent that this motion is seeking the identities of those parties with whom Plaintiffs have
settled since the inception of the instant action, Plaintiffs state that they have no objection to
identifying those parties with whom they have settled.”
Accordingly,
IT IS HEREBY ORDERED that Defendants’ “Motion in Limine to Require Plaintiffs
to Disclose all Settlements’”*? is GRANTED IN PART and DENIED IN PART. The motion is
GRANTED to the extent Plaintiffs will disclose the identities of those parties with whom
Plaintiffs have settled since the inception of the instant action. The motion is DENIED in all other
respects.
NEW ORLEANS, LOUISIANA, this 21St_day of September, 2020.
NANNETTE JOLIVETTE BROWN □□
CHIEF JUDGE
UNITED STATES DISTRICT COURT
41 See Rec. Doc. 24. The parties agreed not to reopen discovery because this case was removed to federal
court only a few days before the scheduled trial in state court.
® Rec. Doc. 136 at 2.
43 Rec. Doc. 66.