# Dempster v. Lamorak Insurance Company

> District Court, E.D. Louisiana · September 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10185920

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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 Certain Anticipated Inflammatory Testimony of Dr. Stephen Terry Kraus.”2

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. 70.
Numerous Defendants 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 in part and denies the motion in part.

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. Docs. 57, 83, 122.
4 Rec. Doc. 140.
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
Numerous Defendants 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
In the motion, the Avondale Interests request that the Court preclude Plaintiffs’ expert

witness, Dr. Stephen Kraus (“Dr. Kraus”), from presenting certain inflammatory testimony to the
jury.19 That inflammatory testimony allegedly involves the following topics: (1) comparing a

11 Rec. Doc. 1-8.
12 Rec. Doc. 1-12.
13 Rec. Doc. 1.
14 Rec. Doc. 17.
15 Rec. Doc. 70.
16 Rec. Docs. 57, 83, 122.
17 Rec. Doc. 140.
18 Rec. Doc. 225.
19 Rec. Doc. 70-1 at 1.
mesothelioma patient’s pain and suffering to Jesus Christ’s crucifixion and (2) opining as to a
defendant corporation’s motivation to refrain from sinning.20
First, the Avondale Interests represent that Dr. Kraus previously analogized a

mesothelioma patient’s pain and suffering to Jesus Christ’s pain and suffering on the cross in an
unrelated asbestos case in 2004.21 Specifically, Dr. Kraus stated:
It’s a hideous death. I had a patient once who had mentioned to me who was
extraordinarily religious, very wise guy, he really knew how Christ had suffered
because he was going through it except Christ’s life was five or four days on the
cross and his was for months.22

In the present case, the Avondale Interests argue that comparing Decedent’s “pain and suffering
to that of Jesus Christ” will “unnecessarily raise deeply rooted emotional and religious imagery
in the jurors’ minds.”23 The Avondale Interests maintain that Dr. Kraus’s religious statements are
“irrelevant and unduly prejudicial to the defendants.”24 The Avondale Interests request exclusion
pursuant to Federal Rule of Evidence 403.25
Second, the Avondale Interests represent that Dr. Kraus made inflammatory statements
regarding a defendant corporation’s motivations in an unrelated asbestos case in 2004.26 For
instance, Dr. Kraus testified that some corporations refrain from sinning, while other corporations

20 Id. at 2.
21 Id.
22 Id. (internal citation omitted).
23 Id. at 3.
24 Id.
25 See id.
26 Id. at 2.
do not sin because they fear “hell” and “punishment.”27 The Avondale Interests contend that Dr.
Kraus’s statements regarding “corporate sinning” are highly inflammatory and unduly
prejudicial.28 The Avondale Interests assert that any such testimony should be excluded under
Federal Rule of Evidence 403.29

B. Plaintiffs’ Arguments in Opposition to the Motion
Plaintiffs make two principal arguments in opposition to the instant motion.30 First,
Plaintiffs argue that Dr. Kraus has not made any inflammatory statements in the present case.31
Plaintiffs contend that Dr. Kraus made the statements at issue—regarding Jesus Christ and
corporate sinning—more than a decade ago.32 Plaintiffs maintain that undersigned counsel
“would never ask a witness in a jury trial to comment on religion or corporate sinning.”33
Second, Plaintiffs argue that Dr. Kraus may analogize the Decedent’s death by
mesothelioma to a person’s death by crucifixion.34 Plaintiffs point to Dr. Kraus’s prior
testimony—comparing a death by mesothelioma to a death by crucifixion—in an unrelated

asbestos case in 2001:
You have to understand that when you have disease like this both above and below
the diaphragm, which he did, and you have this ascites, the death that one
experiences is very similar to a crucifixion death. In crucifixion, an individual dies

27 Id.
28 Id.
29 Id. at 2–3. The Avondale Interests also state that Dr. Kraus’s “opinions about the motivations of
corporations are certainly outside his expertise of radiation oncology and are inadmissible.” Id. at 2.
30 Rec. Doc. 140.
31 Id. at 2.
32 Id.
33 Id.
34 Id. at 4.
because they can’t use their intercostal muscles anymore and they can’t breathe.
So the only breathing they’re doing is abdomen breathing and diaphragmatic
breathing, and that’s why it’s so excruciating, because it’s such a very slow,
painful death.35

Plaintiffs argue that the quoted testimony above accurately compares “the long, slow[,] and
suffocating death caused by crucifixion to the long, slow[,] and suffocating death caused by
[mesothelioma].”36 Plaintiffs contend that Dr. Kraus’s medical analogy “accurately portrays to
the jury the pain and suffering experienced by a person dying from [mesothelioma].”37 Plaintiffs
maintain that such evidence is not unfairly prejudicial.38 Accordingly, Plaintiffs conclude that Dr.
Kraus’s medical analogy is both relevant and admissible under Rule 403.39
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.40
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

35 Id. at 4–5 (internal citation omitted).
36 Id. at 5.
37 Id. at 4.
38 Id.
39 Id.
40 Fed. R. Evid. 402.
presenting cumulative evidence.” “The exclusion of evidence under Rule 403 should occur only
sparingly[.]”41
IV. Analysis

The Avondale Interests request that the Court preclude Dr. Kraus from providing
inflammatory testimony pursuant to Federal Rule of Evidence 403.42 First, the Avondale Interests
request that the Court preclude Dr. Kraus from comparing Decedent’s death by mesothelioma to
Jesus Christ’s crucifixion.43 The Avondale Interests contend that mentioning Jesus Christ’s
crucifixion will “unnecessarily raise deeply rooted emotional and religious imagery in the jurors’
minds.”44 Plaintiffs do not dispute that conclusion.45
Comparing Decedent’s death to Jesus Christ’s crucifixion would severely inflame the
jury. The probative value of such testimony is substantially outweighed by a danger of unfair
prejudice. Accordingly, the Court excludes any testimony comparing Decedent’s death to Jesus
Christ’s crucifixion.

Nevertheless, Dr. Kraus may present testimony comparing Decedent’s death to death by
crucifixion. For example, Dr. Kraus provided the following testimony in 2001 when he was
deposed in an unrelated case:
You have to understand that when you have disease like this both above and below
the diaphragm, which he did, and you have this ascites, the death that one
experiences is very similar to a crucifixion death. In crucifixion, an individual dies
because they can’t use their intercostal muscles anymore and they can’t breathe.
So the only breathing they’re doing is abdomen breathing and diaphragmatic

41 United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).
42 Rec. Doc. 70-1.
43 Id. at 2.
44 Id. at 3.
45 Rec. Doc. 140.
breathing, and that’s why it’s so excruciating, because it’s such a very slow,
painful death.46

The quoted testimony above, or any similar variation, is permissible. Such testimony is relevant
under Rule 401 because it portrays Decedent’s pain and suffering to the jury in an understandable
manner. Furthermore, the probative value of such testimony is not substantially outweighed by
unfair prejudice.
Second, the Avondale Interests request that the Court preclude Dr. Kraus from
commenting “on why people or corporations may engage in behavior that [Dr. Kraus] considers
sinful.”47 For instance, Dr. Kraus previously testified that some corporations refrain from sinning,
while other corporations do not sin because they fear “hell” and “punishment.”48 The Avondale
Interests contend that statements involving “corporate sinning” are highly inflammatory, unduly
prejudicial, and violate Federal Rule of Evidence 403.49 Plaintiffs do not dispute that conclusion.50
Testimony regarding a corporation’s motivations to refrain from sinning is of very little
probative value. The limited probative value of such testimony is substantially outweighed by a
danger of unfair prejudice. Therefore, the Court excludes any testimony concerning a
corporation’s motivations to refrain from sinning.
Accordingly,

46 Rec. Doc. 140-2 at 3.
47 Rec. Doc. 140 at 3.
48 Rec. Doc. 70-2 at 2.
49 Id.
50 Rec. Doc. 140.
IT IS HEREBY ORDERED that the Avondale Interests’ “Motion in Limine to Exclude
Certain Anticipated Inflammatory Testimony of Dr. Stephen Terry Kraus”>! is GRANTED IN
PART and DENIED IN PART. The motion is GRANTED to the extent it requests that Dr.
Kraus be precluded from mentioning Jesus Christ, a corporation’s motivations to refrain from
sinning, or any similar religious reference. The motion in DENIED in all other respects.
NEW ORLEANS, LOUISIANA, this 2!St_ day of September, 2020.

NANNETTE JQLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

51 Rec. Doc. 70.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185920. Public record. Not legal advice.