Dempster v. Lamorak Insurance Company

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 Exclude Anticipated Hearsay and Irrelevant or Prejudicial Testimony.”2 Defendants Foster

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. 67.

Wheeler LLC and General Electric Company 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 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

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

3 Rec. Doc. 57.

4 Rec. Doc. 143.

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 Company join the motion.16 On March 17,

2020, Plaintiffs filed an opposition to the instant motion.17 On May 5, 2020, the Court continued

the May 18, 2020 trial date due to COVID-19.18

II. Parties’ Arguments

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

The Avondale Interests move the Court to issue an order excluding certain anticipated

testimony that may be offered at trial by Plaintiffs because the Avondale Interests assert such

testimony is inadmissible hearsay evidence, not based upon personal knowledge, and irrelevant,

11 Rec. Doc. 1-8.

12 Rec. Doc. 1-12.

13 Rec. Doc. 1.

14 Rec. Doc. 17.

15 Rec. Doc. 65.

16 Rec. Doc. 57.

17 Rec. Doc. 143.

18 Rec. Doc. 225.

inflammatory and unduly prejudicial.19 Specifically, the Avondale Interests assert that during her

deposition Plaintiff Tanna Faye Dempster testified regarding several comments Decedent

allegedly made about Defendant Albert L. Bossier, Jr. being a difficult boss.20 The Avondale

Interests contend that this anticipated testimony is inadmissible hearsay evidence, which is not

based on personal knowledge.21 Additionally, the Avondale Interests argue that this anticipated

testimony is irrelevant or, in the alternative, any probative value of the evidence is substantially

outweighed by the danger of unfair prejudice.22

B. Plaintiffs’ Arguments in Opposition to the Motion

In opposition, Plaintiffs argue that the motion is premature.23 Plaintiffs assert that a ruling

on the motion should be deferred until a party seeks to introduce specific evidence so that

questions of foundation, competency, relevancy, and judicial prejudice may be weighed in the

proper context with regard to the specific evidence sought to be admitted.24 Plaintiffs contend that

Tanna Faye Dempster’s anticipated testimony falls under the exceptions to the rule against

hearsay set forth in Federal Rule of Evidence 803(19) and 803(21).25 Additionally, Plaintiffs

assert that this evidence is relevant to the core issue in this litigation––the work conditions

Decedent was exposed to at Avondale.26 Furthermore, Plaintiffs assert that the anticipated

19 Rec. Doc. 67-1 at 1.

20 Id. at 2.

21 Id. at 2–3.

22 Id. at 3–4.

23 Rec. Doc. 143 at 2.

24 Id.

25 Id. at 3–4.

26 Id. at 4.

testimony does not create the risk of unfair prejudice to warrant exclusion.27

III. Legal Standard

A. Relevancy and Prejudice

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.” Under Federal Rule of Evidence 402, relevant evidence

is admissible unless the United States Constitution, a federal statute, the Federal Rules of

Evidence or other rules prescribed by the Supreme Court provide otherwise. 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 Fifth Circuit instructs that “[t]he exclusion of evidence under Rule 403 should

occur only sparingly[.]”28 “Relevant evidence is inherently prejudicial; but it is only unfair

prejudice, substantially outweighing probative value, which permits exclusion of relevant matter

under Rule 403.”29

B. Hearsay

Under the Federal Rules of Evidence, hearsay is defined as “a statement that: (1) the

declarant does not make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.”30 Hearsay is not admissible

27 Id.

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

29 Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862

(1979)).

30 Fed. R. Evid. 801(c)(1)–(2). Federal Rule of Evidence 801(d) further provides that opposing party’s

unless a federal statute, the Federal Rules of Evidence, or “other rules prescribed by the Supreme

Court” provide otherwise.31 After a party properly objects to the admission of evidence as

hearsay, the proponent of evidence bears the burden to show that statement is not offered as

hearsay or falls within an exception to the hearsay rule.32

IV. Analysis

The Avondale Interests move the Court to issue an order excluding certain anticipated

testimony that may be offered at trial by Plaintiffs because the Avondale Interests assert such

testimony is inadmissible hearsay evidence, not based upon personal knowledge, and irrelevant,

inflammatory and unduly prejudicial.33 The Avondale Interests move the Court to exclude

testimony concerning any statements or stories told to Plaintiffs by Decedent regarding his work

at Avondale and interactions with Albert L. Bossier, Jr.34 Specifically, the Avondale Interests

point to testimony presented by Plaintiff Tanna Faye Dempster during her deposition regarding

several comments Decedent allegedly made about Defendant Albert L. Bossier, Jr. being a

difficult boss.35

statements and certain prior statements by declarant-witnesses used to impeach or rebut the witness are not hearsay.

31 Fed. R. Evid. 802.

32 See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“The preponderance standard ensures that

before admitting evidence, the court will have found it more likely than not that the technical issues and policy

concerns addressed by the Federal Rules of Evidence have been afforded due consideration.”); Loomis v. Starkville

Mississippi Pub. Sch. Dist., 150 F. Supp. 3d 730, 742–43 (N.D. Miss. 2015) (“Once a party has ‘properly objected

to [evidence] as inadmissible hearsay,’ the burden shifts to the proponent of the evidence to show, ‘by a

preponderance of the evidence, that the evidence [falls] within an exclusion or exception to the hearsay rule and was

therefore admissible.’” (citations omitted)); see also Randle v. Tregre, 147 F. Supp. 3d 581, 596 (E.D. La. 2015)

(Africk, J.); Broad. Music, Inc. v. Tex Border Mgmt., Inc., No. 10-2524, 2012 WL 4119111, at *4 (N.D. Tex. Sept.

18, 2012).

33 Rec. Doc. 67-1 at 1.

34 Id. at 4.

35 Id. at 2.

Plaintiffs do not dispute that Tanna Faye Dempster’s anticipated testimony is hearsay.

Plaintiffs, as the proponents of evidence, bear the burden to show that the statements fall within

an exception to the hearsay rule.36 Plaintiffs contend that Tanna Faye Dempster’s anticipated

testimony falls under the exceptions to the rule against hearsay set forth in Federal Rule of

Evidence 803(19) and 803(21).37

Federal Rule of Evidence 803(19) provides an exception to the rule against hearsay for

reputation evidence concerning personal or family history. Rule 803(19) provides that evidence

concerning “reputation among a person’s family by blood, adoption, or marriage—or among a

person’s associates or in the community—concerning the person’s birth, adoption, legitimacy,

ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts

of personal or family history” is not excluded by the rule against hearsay. Tanna Faye Dempster’s

anticipated testimony regarding statements Decedent made about his experiences with Albert L.

Bossier, Jr. clearly does not fall within this exception. This testimony does not relate to Bossier’s

birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption,

or marriage, or similar facts of personal or family history.

Rule 803(21) provides an exception to the rule against hearsay for reputation evidence

concerning a person’s character. Rule 803(21) provides that evidence concerning “reputation

among a person’s associates or in the community concerning the person’s character” is not

excluded by the rule against hearsay. Plaintiffs do not cite to a single case, and the Court has

found none, where being a “difficult boss” has been recognized as a proper character trait falling

within the Rule 803(21) hearsay exception. Even if being a “difficult boss” were proper character

36 See Loomis, 150 F. Supp. 3d at 742–43.

37 Rec. Doc. 143 at 3–4.

trait evidence, Federal Rule of Evidence 404(a)(1) states that “[e]vidence of a person’s character

or character trait is not admissible to prove that on a particular occasion the person acted in

accordance with the character or trait.” Plaintiffs assert that this evidence is relevant to the core

issue in this litigation—the work conditions Decedent was exposed to at Avondale.** The hearsay

statements are clearly inadmissible for this purpose because Plaintiffs attempt to use them as

evidence to show that Bossier being a “difficult boss” caused Decedent to be exposed to harmful

working conditions at Avondale. Such use of character trait evidence is barred by Rule 404(a)(1).

Other witnesses with personal knowledge of the working conditions at Avondale would be better

suited to offer any testimony regarding those conditions at trial.

Accordingly,

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

Anticipated Hearsay and Irrelevant or Prejudicial Testimony”? is GRANTED. Hearsay

testimony regarding statements or stories told to Plaintiffs by Decedent regarding his work at

Avondale and interactions with Albert L. Bossier, Jr. is excluded.

NEW ORLEANS, LOUISIANA, this _21St day of September, 2020.

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NANNETTE JQLIVETTE BROWN (ou?

CHIEF JUDGE

UNITED STATES DISTRICT COURT

39 Rec. Doc. 67.