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 Establish Admissibility of Liberty Mutual Insurance Policy Documents.”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. 68.

Wheeler, LLC and General 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 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. 144.

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, 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

II. Parties’ Arguments

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

The Avondale Interests move the Court to issue an order ruling that insurance policy

documents produced by Liberty Mutual Insurance Company (“Liberty Mutual”) are: (1) authentic

11 Rec. Doc. 1-8.

12 Rec. Doc. 1-12.

13 Rec. Doc. 1.

14 Rec. Doc. 17.

15 Rec. Doc. 68.

16 Rec. Doc. 57.

17 Rec. Doc. 144.

18 Rec. Doc. 194.

19 Rec. Doc. 225.

within the meaning of Federal Rule of Evidence 901; (2) admissible as business records and/or

as ancient documents under Federal Rule of Evidence 803(6) and 803(16); (3) true and correct

photographic duplicates of originals that have been lost or destroyed with the passage of time,

and may be used in lieu of, and to the same extent as, the originals pursuant to Federal Rule of

Evidence 1003; and (4) admissible into evidence at trial to the extent that they are relevant.20

The Avondale Interests contend that the documents are a copy of insurance policies issued

by Liberty Mutual to Wayne Manufacturing Corporation (“Wayne Manufacturing”) between

March 1, 1964 and January 1, 1988, subject to the terms, conditions, limits, and exclusions set

forth in the policies.21 According to the Avondale Interests, the documents will be offered into

evidence only to establish that Liberty Mutual issued the policies to Wayne Manufacturing,

subject to the terms, conditions, limits, and exclusions that are set forth in the policy.22 The

Avondale Interests contend that this is a narrow, collateral issue that will be decided by the Court,

and not by the jury.23 The Avondale Interests state that the jury will never see these documents.24

The Avondale Interests state that they are only seeking to establish the threshold

admissibility of the identified policies of insurance under the authenticity, hearsay, and original

writing provisions of the Federal Rules of Evidence.25 The Avondale Interests argue that the Court

should give effect to stipulations Liberty Mutual made regarding the documents.26 Therein,

20 Rec. Doc. 68 at 1.

21 Rec. Doc. 68-1 at 2.

22 Id.

23 Id.

24 Id.

25 Id.

26 Id. at 3.

Liberty Mutual stipulates: (1) the documents appear to be true and correct duplicates of original

policies that Liberty Mutual issued in the normal course of business; (2) Liberty Mutual does not

dispute that the documents are true and correct photographic duplicates of the originals; (3) the

original documents were lost or destroyed over time; and (4) the originals were authentic records

of Liberty Mutual.27

B. Plaintiffs’ Arguments in Opposition to the Motion

In opposition, Plaintiffs argue that the motion is vague, overly broad, and premature.28

Plaintiffs contend that the motion should be denied for two reasons: (1) the stipulations of Liberty

Mutual are not binding on Plaintiffs; and (2) the documents are unauthenticated and constitute

inadmissible hearsay.29

First, Plaintiffs contend that the Avondale Interests are seeking to enforce the stipulations

against Plaintiffs, who were never parties to the stipulations.30 According to Plaintiffs, “[i]f the

Avondale Interests’ arguments were true . . . the plaintiffs would be able to create their own

stipulations with settled defendants to the effect that no settled defendant caused the injuries at

issue in this case, thus precluding a non-settling defendant from obtaining a virile share

reduction.”31 Plaintiffs assert that this cannot be the case, and instead the Avondale Interests “are

required to establish the admissibility of the documents they will introduce into evidence just as

27 Rec. Doc. 68-2.

28 Rec. Doc. 144 at 1.

29 Id.

30 Id. at 3.

31 Id.

any other litigant is required to establish such admissibility.”32

Second, Plaintiffs contend that the Liberty Mutual documents are unauthenticated and

inadmissible hearsay.33 Plaintiffs assert that the stipulations are not binding on Plaintiffs and does

not show that the insurance policies are authentic and admissible as duplicates.34 Plaintiffs

contend that the stipulations were entered by Liberty Mutual’s attorney in this litigation, not a

witness, and the attorney did not state that she is the custodian of records for Liberty Mutual.35

Plaintiffs also argue that the documents are not self-authenticating, and the Avondale Interests

have not presented evidence sufficient to support a finding that the documents are what they claim

to be.36

Next, Plaintiffs assert that the Avondale Interests have not shown that the documents fall

within an exception to the rule against hearsay.37 Plaintiffs contend that the Avondale Interests

have failed to meet the requirements of Rule 803(6) as they have not presented testimony of the

custodian of records or another qualified witness.38 Furthermore, Plaintiffs argue that the source

of the information indicates a lack of trustworthiness, as the documents in question were produced

in unrelated cases and the Avondale Interests are attempting to have the documents admitted

without actually providing testimony or other evidence required to authenticate said documents.39

32 Id.

33 Id. at 4.

34 Id.

35 Id.

36 Id. at 5.

37 Id.

38 Id.

39 Id. at 6.

Plaintiffs also argue that the documents do not fall under the exception found at Rule 803(16)

because the authenticity of the documents has not be established.40

To the extent the Avondale Interests argue that they should be allowed to utilize copies of

the insurance policies under Federal Rule of Evidence 1003 because the originals were lost,

Plaintiffs contend that the Avondale Interests fail to attach any testimony from a witness with

knowledge to the fact that the originals were indeed lost.41

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

In reply, the Avondale Interests clarify that they are only seeking to establish the threshold

admissibility of the 29 identified policies of insurance under the authenticity, hearsay, and

original writing provisions of the Federal Rules of Evidence.42 The Avondale Interests state that

they are not seeking an adjudication on the liability of Wayne Manufacturing or of Liberty

Mutual.43 The Avondale Interests also state that they are not seeking an adjudication on the

relevancy of the insurance documents, and the documents will only be relevant if the liability of

Wayne Manufacturing is established at trial.44

The Avondale Interests assert that Plaintiffs’ argument that the insurance documents are

somehow offered “against” them is not a basis for denying the motion.45 The Avondale Interests

assert that they will only move to introduce the documents at trial “if Plaintiffs settle with Wayne,

40 Id.

41 Id.

42 Rec. Doc. 194 at 2.

43 Id.

44 Id.

45 Id.

and if Wayne’s fault is proved at trial, and if the policies are ultimately found to provide

coverage.”46 According to the Avondale Interests, if Plaintiffs are paid in full for Wayne

Manufacturing’s virile share of liability, all they stand to “lose” is “a windfall double recovery

for Wayne’s virile share of Plaintiffs’ damages, once in settlement and again in judgment.”47

The Avondale Interests note that Plaintiffs make no substantive objections to the insurance

documents.48 Instead, the Avondale Interests assert that Plaintiffs’ objections are tactical and

designed only “to unnecessarily multiply the burden, expense, and inconvenience of establishing”

the authenticity of these documents.49 Furthermore, the Avondale Interests assert that the

stipulation is not substantive and will not have an adverse impact on any of Plaintiffs’ claims and

cognizable substantive rights.50 The Avondale Interests contend that the potential reduction in

recovery does not impinge on Plaintiffs’ substantive rights because if Plaintiffs ultimately settle

with Wayne Manufacturing and Liberty Mutual, Plaintiffs will have already been paid in full for

Wayne Manufacturing’s virile share of liability.51

Alternatively, the Avondale Interests maintain that the insurance policy documents are

sufficiently authenticated, even without the stipulation.52 The Avondale Interests assert that

Plaintiffs’ suggestion that there must be testimony that the documents contain distinctive

characteristics which indicate that the documents are what the Avondale Interests purport them

46 Id.

47 Id. at 2–3.

48 Id. at 3.

49 Id.

50 Id. at 6.

51 Id.

52 Id. at 7.

to be is contrary to the plain language of Rule 901(b)(4) and Rule 901(b)(8).53 According to the

Avondale Interests, “[e]ven the most meticulous review reveals that every distinctive, intrinsic

characteristic of the documents with respect to appearance, content, dates, parties, corporate

logos, printed policy provision forms, and the like serves to establish beyond question that the

documents are, in fact, exactly what they appear to be.”54 Moreover, the Avondale Interests assert

that documents that have been in existence for 20 years or more are presumed to be authentic in

the absence of an affirmative showing sufficient to create suspicion to the contrary.55

Next, the Avondale Interests assert that the insurance documents are admissible under the

business records exception and the ancient documents exception to the rule against hearsay.56

Finally, the Avondale Interests contend that the duplicate copies are admissible under Rule 1003

because Plaintiffs have not raised a genuine question about the authenticity of the originals.57

III. Legal Standard

A. Authenticating Evidence

To authenticate “an item of evidence, the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it is.”58 The Fifth Circuit “does not

require conclusive proof of authenticity before allowing the admission of disputed evidence.”59

53 Id.

54 Id.

55 Id. at 8.

56 Id.

57 Id. at 10.

58 Fed. R. Evid. 901(a).

59 Daneshjou v. JPMorgan Chase Bank, N.A., 799 F. App’x 296, 298 (5th Cir. 2020) (internal citations

omitted).

Instead, Rule 901(a) merely requires some evidence which is sufficient to support a finding that

the evidence in question is what its proponent claims it to be.”60 Rule 901(b) sets forth a non-

exhaustive list of evidence that satisfied the authenticity requirement, including the following:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it

is claimed to be.

(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that

handwriting is genuine, based on a familiarity with it that was not acquired for the

current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with

an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents,

substance, internal patterns, or other distinctive characteristics of the item, taken

together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a person’s voice — whether

heard firsthand or through mechanical or electronic transmission or recording —

based on hearing the voice at any time under circumstances that connect it with

the alleged speaker.

(6) Evidence About a Telephone Conversation. For a telephone conversation,

evidence that a call was made to the number assigned at the time to:

(A) a particular person, if circumstances, including self-

identification, show that the person answering was the one called;

or

(B) a particular business, if the call was made to a business and the

call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:

(A) a document was recorded or filed in a public office as

authorized by law; or

(B) a purported public record or statement is from the office where

items of this kind are kept.

(8) Evidence About Ancient Documents or Data Compilations. For a document

or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

(9) Evidence About a Process or System. Evidence describing a process or

system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or

identification allowed by a federal statute or a rule prescribed by the Supreme

Court.

60 Id.

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.”61 Hearsay is not admissible

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

Court” provide otherwise.62 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.63

IV. Analysis

The Avondale Interests move the Court to issue an order ruling that insurance policy

documents produced by Liberty Mutual are: (1) authentic within the meaning of Federal Rule of

Evidence 901; (2) admissible as business records and/or as ancient documents under Federal Rule

of Evidence 803(6) and 803(16); (3) true and correct photographic duplicates of originals that

have been lost or destroyed with the passage of time, and may be used in lieu of, and to the same

extent as, the originals pursuant to Federal Rule of Evidence 1003; and (4) admissible into

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

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

62 Fed. R. Evid. 802.

63 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).

evidence at trial to the extent that they are relevant.64 Plaintiffs contend that the motion should be

denied for two reasons: (1) the stipulations of Liberty Mutual are not binding on Plaintiffs; and

(2) the documents are unauthenticated and constitute inadmissible hearsay.65

The Court need not address Plaintiffs’ arguments regarding the stipulations because the

Avondale Interests have produced sufficient evidence to show that the insurance documents are

what the Avondale Interests claim them to be. Pursuant to Rule 901(b)(4), a document may be

authenticated based on its “appearance, contents, substance, internal patterns, or other distinctive

characteristics of the item, taken together with all the circumstances.” The documents at issue

here bear the Liberty Mutual logo and describe policies of insurance between Liberty Mutual and

Wayne Manufacturing or between Liberty Mutual and the Hopeman Brothers (the parent

company of Wayne Manufacturing). Pursuant to Rule 901(b)(8), an ancient document is

considered authentic if: “(A) is in a condition that creates no suspicion about its authenticity; (B)

was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when

offered.”66 The insurance policies at issue here are in a condition that creates no suspicion about

authenticity, were produced by the agent for Liberty Mutual, and are over 30 years old. Therefore,

the Avondale Interests have produced evidence sufficient to support a finding that the insurance

documents are authentic. Plaintiffs do not raise any genuine issue as to the authenticity of these

documents. Accordingly, the Court concludes that the Avondale Interests have shown the

authenticity of the insurance documents.

Additionally, these documents are admissible under an exception to the hearsay rule.

64 Rec. Doc. 68 at 1.

65 Rec. Doc. 144.

66 See Fed. R. Evid. 901(b)(8).

Federal Rule of Evidence 803(16) provides that a “statement in a document that is at least 20

years old and whose authenticity is established” is admissible. Therefore, the documents at issue

here are not barred by the rule against hearsay.

Finally, “[a] duplicate is admissible to the same extent as the original unless a genuine

question is raised about the original’s authenticity or the circumstances make it unfair to admit

the duplicate.”®’ Plaintiffs have not raised a genuine question about the authenticity of the original

documents or shown that it would be unfair to admit the duplicates. Therefore, the Court finds

that the Liberty Mutual insurance policy documents are admissible into evidence at trial to the

extent that they are relevant.

Accordingly,

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

Admissibility of Liberty Mutual Insurance Policy Documents”® is GRANTED. The Liberty

Mutual insurance policy documents are admissible into evidence at trial to the extent that they

are relevant.

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

NANNETTE JOLFWETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

67 See Fed. R. Evid. 1003.

68 Rec. Doc. 68.

13