Mitchell v. Diamond Plastics Corp

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CLARENCE MITCHELL CIVIL ACTION

VERSUS

DIAMOND PLASTICS NO. 18-00919-BAJ-RLB

CORPORATION, ET AL.

RULING AND ORDER

Before the Court is Defendant Diamond Plastics Corporation’s Motion In

Limine (Doc. 139). Plaintiff opposes Diamond Plastics’ Motion. (Doc. 142). For

reasons to follow, Diamond Plastics’ Motion will be denied.

I. BACKGROUND

This action arises from an on-the-job accident. This much is undisputed: On

August 29, 2018, Plaintiff was working at Diamond Plastics’ facility in Plaquemine,

Louisiana when his right hand was caught in the gate clamp of a PEM 616B GLP

belling machine.1 Plaintiff lost his right hand due to the injuries he sustained. (Doc.

138 at 3-4).

Beyond these basic facts, the parties contest the circumstances of Plaintiff’s

accident. Plaintiff contends that his injuries are attributable to Diamond Plastics’

“removal and/or failure to replace the machine guard on the rear of the [belling

machine],” which created a certain risk of injury by exposing “the inner workings of

the beller chamber.” (Doc. 138 at 2). Diamond Plastics concedes that the belling

1 As alleged, a belling machine is used to cut and insert gaskets into PVC pipe.

machine’s original guard was removed at some point prior to Plaintiff’s accident, but

otherwise disputes Plaintiff’s account, arguing that its decision to remove the guard

was reasoned, that alternative safety measures (such as warning signs and placards)

were in place, and that Plaintiff’s accident resulted from his own negligence. (Doc.

138 at 2-3).

A jury trial is set to begin March 7, 2022, where it will be Plaintiff’s burden to

prove that Diamond Plastics’ acts and omissions amounted to an intentional tort.

Relevant here, this requires Plaintiff to show that his injuries were “substantially

certain to follow from” Diamond Plastics’ conduct. See Batiste v. Bayou Steel Corp.,

2010-1561 (La. 10/1/10), 45 So. 3d 167, 168.2 In support of the “substantial certainty”

element, Plaintiff seeks to call five witnesses at trial that will testify regarding five

additional accidents that occurred at various Diamond Plastics’ facilities, each

involving “improperly guarded PEM 616B GLP [belling machines].” (Doc. 142 at 2).

As set forth in an October 12, 2020 report prepared by Plaintiff’s occupational safety

expert, Dr. Jahan Rasty, these five additional accidents occurred within five years of

Plaintiff’s accident, and each involved similar employee conduct and the same make

and model of belling machine (with guards removed). Four of these accidents involved

employees’ hands being caught in unguarded belling machines, and resulted in

injuries ranging from bruises and lacerations to finger amputations. (Doc. 124-8 at

2 As noted in the Court’s March 31, 2021 Order denying Diamond Plastics’ motion for

summary judgment, Plaintiff’s summary judgment evidence establishes a genuine contest

regarding whether, at the time of the accident, (i) the belling machine created an

unreasonable risk of injury; (ii) Plaintiff’s injury was the first of its kind; and (iii) Diamond

Plastics was substantially certain that an injury such as Plaintiff’s would occur. (See Doc.

151 at 2).

¶¶ 55-59). The fifth accident involved an employee’s torso being caught in an

unguarded belling machine, and, tragically, resulted in the employee’s death. (Id. at

¶ 60). Dr. Rasty’s report observes that these five prior accidents each occurred “at the

exact same location of the machine where [Plaintiff’s] injury occurred,” and opines

that the employees’ “injuries would not have occurred” if guards had been in place:

The above previous injuries all involve similar moving parts in the

gasket loading chamber, at the exact same location of the machine

where Mr. Mitchell’s injury occurred. The 616B GLP beller machines are

designed with guards in place to prevent users from reaching into the

pinch-points present in the gasket loading chamber. If these guards

were present (as designed), the above injuries would not have occurred.

(Id. at ¶ 61).

Understandably, Diamond Plastics does not want the jury to know about these

five additional accidents, and now seeks to exclude all reference to these accidents at

trial. (Doc. 139). Specifically, Diamond Plastics requests an order excluding from trial

all evidence pertaining to accidents or injuries related to employees Raymundo

Correa, Scotty Bell, Valentin Gomez, Stephen McGuire, and Charles Williams. (Doc.

139-2 at 1). Plaintiff opposes Diamond Plastics’ Motion. (Doc. 142).

II. ANALYSIS

At the outset, it bears reminding that motions in limine are not favored.

Virtually any objection to the admissibility of evidence can and should

be handled in the old-fashioned way, to wit: counsel objecting at the time

the evidence is offered, thereby allowing the Court to rule on the

objection in the context of the trial. In limine relief is warranted only in

unusual situations, such as a matter so explosive or so incendiary that

sustaining an objection in the routine way may not be sufficient to

overcome the risk of undue prejudice.

Lemings, et al. v. Taylor, et al., No. 18-cv-00768, 2021 WL 3215086, at *1 (M.D. La.

July 29, 2021) (Jackson, J.) (quoting Broussard v. Board Of Supervisors Of Louisiana

State University And A&M College, et al., No. 19-cv-00527-BAJ-RLB, 2021 WL

3032666, at *1 (M.D. La. July 19, 2021). The prior accident evidence at issue here is

fairly pedestrian for this type of case, and could just as easily be dealt with at trial.

Nonetheless, Diamond Plastics’ arguments will be addressed in the order they are

presented.

Diamond Plastics offers two objections to support its request to exclude all

evidence relating to the five additional accidents: First, that “these other accidents

are not relevant to the issue of Diamond’s substantial certainty because they are too

dissimilar from the circumstances of the plaintiff’s accident”; and, second, “even if

they are deemed minimally relevant to that issue the evidence would be unduly

prejudicial to Diamond’s defense.” (Doc. 139-2 at 1).

Diamond Plastics’ first objection is easily dispatched. Federal Rule of Evidence

(“Rule”) 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.” Fed. R. Evid. 401. As set forth in Dr. Rasty’s

report, (and the parties’ briefing), each of the additional accidents at issue involved

the same make and model of belling machine that caused Plaintiff’s injuries. In each

instance, the belling machine’s guards had been removed. In each instance, an

employee was positioned “at the exact same location of the machine where [Plaintiff’s]

injury occurred.” And, in each instance, an employee was injured after reaching into

an area of the machine that would have been shielded by a guard had it not been

removed. Moreover, Dr. Rasty opines that none of these five prior accidents would

have occurred had guards been properly installed—an opinion that Diamond Plastics’

own occupational safety expert does not dispute. (See Doc. 142 at 3-5). These five prior

accidents are plainly relevant, and support Plaintiff’s claim that his injuries were

“substantially certain to follow from” Diamond Plastics’ conduct. Diamond Plastics’

first objection is overruled.

This leaves Diamond Plastics’ second objection, that evidence of these prior

accidents “would be unduly prejudicial to Diamond’s defense.” (Doc. 139-2 at 1).

Under Rule 402, relevant evidence is generally admissible. Fed. R. Evid. 402. Rule

403 provides a limited exception to admissibility, however, by authorizing the Court

“to exclude relevant evidence if its probative value is substantially outweighed by a

danger of … unfair prejudice.” Fed. R. Evid. 403.

The U.S. Court of Appeals for the Fifth Circuit has set forth multiple guiding

principles for determining the applicability of Rule 403 to evidence of prior accidents.

First, “Rule 403’s scope is narrow,” and its “application … must be cautious and

sparing.” United States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007) (quotation marks

omitted). Second, by its terms, Rule 403 is concerned only with the “danger of unfair

prejudice, not merely the danger of prejudice inherent in any relevant evidence.”

Moore v. Ashland Chem., Inc., 126 F.3d 679, 692 (5th Cir. 1997) (emphasis in

original), opinion vacated and superseded, 151 F.3d 269 (5th Cir. 1998); accord United

States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (“Relevant evidence is inherently

prejudicial; but it is only unfair prejudice, substantially outweighing probative

values, which permits exclusion of relevant matter under Rule 403.” (emphasis in

original)); Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977) (“Virtually

all evidence is prejudicial or it isn't material. The prejudice must be ‘unfair.’”).

Finally, “[w]hen evidence of other accidents … is offered for any purpose other than

to show notice, the proponent of that evidence must show that the facts and

circumstances of the other accidents … are ‘closely similar’ to the facts and

circumstances at issue.” Johnson v. Ford Motor Company, 988 F.2d 573, 579 (5th Cir.

1993). The “closely similar” inquiry includes examining factors such as whether the

prior accidents involved the same machinery and the same “mechanical defect,” and

are close in time. See id.

Applying these principles here, the Court finds that the evidence of the five

prior accidents is not so unfairly prejudicial as to require exclusion under Rule 403.

Again, each of the five prior accidents at issue was close in time to Plaintiff’s accident

(within five years), involved the same machinery (a PEM 616B GLP belling machine),

and featured the same mechanical defect (removed guards). Even more, the injured

employees were each positioned “at the exact same location of the machine where

[Plaintiff’s] injury occurred,” and suffered injuries after reaching into an area that

would have been shielded had guards not been removed. And, again, Plaintiff’s expert

contends that these five additional accidents would not have occurred had guards

been properly installed.

On this record, Plaintiff has carried his burden, and shown that these five prior

accidents are “‘closely similar’ to the facts and circumstances at issue.” Johnson, 988

F.2d at 579. Accordingly, allowing evidence of these accidents at trial is not so

unfairly prejudicial as to substantially outweigh the probative value to the issue of

Diamond Plastic’s “substantial certainty.”3 Id.; see, e.g., Ramos v. Liberty Mut. Ins.

Co., 615 F.2d 334, 340 (5th Cir. 1980) (district court abused discretion by refusing to

admit evidence of prior accidents where the accidents were not “too remote” and

plaintiff’s expert testified that circumstances resulting in the prior accidents were

“virtually identical”). Diamond Plastics’ Motion will be denied, and evidence of the

five additional accidents will be admitted at trial.4

3 Diamond Plastics cites multiple cases in support of its argument that the five prior accidents

should be excluded under Rule 403. The majority of these cases are inapposite because they

do not address admissibility of prior accidents; rather, they address whether such evidence

is sufficient to prove an employer’s “substantial certainty” of impending injury. Admissibility

and sufficiency are separate inquiries.

The few cases cited by Diamond Plastics that actually discuss the issue of

admissibility are distinguishable, because they addressed (and excluded) prior accidents that

were too remote, involved dissimilar circumstances or different equipment, or were not

properly established at trial. See Harrower v. Louisiana ex rel. Louisiana Dep't of Transp.,

327 F. App'x 501, 502 (5th Cir. 2009) (affirming exclusion of nine prior accidents at a railroad

crossing where one was too remote (having occurred 25 years before), seven involved vehicles

approaching from the opposite direction, and the last involved a malfunctioning crossing

light); Crappell v. Boh Bros. Constr. Co., LLC, No. 06-cv-1315, 2010 WL 11549530, at *2 (E.D.

La. Dec. 21, 2010) (Zainey, J.) (excluding evidence of prior “pile failure” that was not

“substantially [or] reasonably similar,” where the prior accident involved “different

contractors,” “different size piles accompanied by different sets of instructions,” different

contributing causes, and different injuries); Andrade v. Cooper/T. Smith Stevedoring Co.,

No. 06-cv-907, 2009 WL 3010108, at *3 (M.D. La. Sept. 21, 2009) (Brady, J.) (ruling that

plaintiff’s own history of work-related accidents and injuries was not relevant to a

determination of plaintiff’s “seaman status” under the Jones Act, where defendant “failed to

demonstrate precisely how such accidents relate to the current incident, [or] to establish

substantial similarities between the prior accidents and the one at issue in this case);

Maldonado v. Kiewit Louisiana Co., 2012-1868 (La. App. 1 Cir. 5/30/14), 152 So. 3d 909, 925-

26 (trial court erred by admitting “information about three accidents that had occurred more

than ten years before the instant accident,” where plaintiff failed to “establish how the

accidents occurred, where the accidents occurred, or the names of the parties involved in

those accidents”). Here, by contrast, Plaintiff has carried his burden of proving that the five

prior accidents are “‘closely similar’ to the facts and circumstances at issue,” for reasons

explained above. Johnson, 988 F.2d at 579.

4 As stated, supra n.3, admissibility and sufficiency are separate inquiries. This Order

III. CONCLUSION

Accordingly,

IT IS ORDERED that Diamond Plastics’ Motion In Limine (Doc. 139) be

and is hereby DENIED.

Baton Rouge, Louisiana, this 11th day of August, 2021

_____________________________________

JUDGE BRIAN A. JACKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

addresses the admissibility of the five prior accidents, only. Whether such evidence is

sufficient to prove Diamond Plastics’ substantial certainty of impending injury is an ultimate

question of fact reserved for the jury. See Klepsky v. Dick Enterprises, Inc., 55 F. App'x 270,

277 (6th Cir. 2003) (“While this case undoubtedly presents a close question on the issue of

whether the employer knew that injury was a substantial certainty, we are satisfied that

when the evidence and all permissible inferences are construed in the light most favorable to

Klepsky, there was sufficient evidence of record that would have permitted a reasonable jury

to conclude, as this jury did, that Trabucco knew that the strap/manlift procedure was

substantially certain to cause injury.”); Heil v. Belle Starr Saloon & Casino, Inc., 09-cv-5074,

2013 WL 943811, at *9 (D.S.D. Mar. 11, 2013) (Viken, C.J.) (“It is ultimately a question of

fact for the jury to determine whether the evidence satisfies the substantial certainty

standard.”). At trial, Diamond Plastics will obviously be afforded the opportunity to challenge

the sufficiency of this evidence through cross-examination, rebuttal evidence, and, if

appropriate, jury instructions.