The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL JOHNSON, ET AL.
CIVIL ACTION
VERSUS
18-613-SDD-EWD
PACKAGING CORPORATION
OF AMERICA, ET AL.
OMNIBUS RULING
Before the Court are six Motions in Limine filed by the Defendants. All are opposed.
Each Motion is addressed below.
I. Defendant’s Motion to Strike Dr. Todd Cowen's "Amended” Life Care
Plans (Rec. Doc. 193). Opposed at Rec. Doc. 210.
Defendants move to exclude supplemental life care plans prepared by the
Plaintiffs’ life care expert, Dr. Todd Cowen. In opposing the Motion, Plaintiffs submit that
the supplemental report is both necessary and appropriate to capture the most recent
information regarding future medical care and up-to-date medical records. The movant
decries prejudice because the “supplement” is based on five additional years of medical
history and increases the aggregate alleged loss by more than 10%.1 The Court notes
that Dr. Cowan’s report is somewhat stale, having been authored in 2018. However, the
Defendants anticipated that the life care plans would be supplemented.2 The Court’s
scheduling order is silent on supplements to expert reports, and Rule 26 directs
supplementation “at least 30 days before trial.”3 The Court finds that the subject reports
1 Rec. Doc. 193-1, pp. 1, 10.
2 See Rec. Doc. 193-1, p. 8.
3 Fed. R. Civ. P. 26(a)(3)(B) & (e)(2).
are supplements. They reflect updates, which increase and decrease the individual
Plaintiffs’ estimated losses, based on the current medical condition of each Plaintiff. The
Court does not find that the Plaintiffs are attempting to pass off a wholesale modification
or change of opinion under the guise of a supplement. The cases4 cited by Defendants
are distinguishable on this point. The Motion in Limine (Rec. Doc. 193) is DENIED.
II. Defendant’s Motion in Limine to Exclude from Evidence and Prohibit
from Publication Photographs and Graphic Depictions of the Deceased
(Rec. 195). Opposition at Rec. Doc. 213.
The Court will hold a Rule 104 hearing outside the presence of the jury on the first
day of the trial of this matter. Ruling is hereby deferred.
III. Defendant’s Motion in Limine to Exclude Evidence and References
Relating to the Tomahawk Mill and Other Prior Incidents (Rec. Doc. 196).
Opposition at Rec. Doc. 212.
The Defendants move to exclude evidence of prior accidents. Defendants submit
that prior accident evidence is being offered in support of Plaintiffs’ intentional acts
exclusion to the worker’s compensation exclusive remedy bar. The intentional acts
question has been decided and is the law of the case.5 Plaintiffs, however, maintain that
prior accidents, most notably a tank explosion sparked by welding at another PCA mill in
2008 (the “Tomahawk Incident”), are probative of the Defendants notice, knowledge, and
magnitude of risk. Defendants move for exclusion under Federal Rules of Evidence
404(b) and 403.
The Tomahawk Incident involved a tank explosion that occurred on July 29, 2018,
at PCA's mill in Tomahawk, Wisconsin, which resulted in the death of three
4 Rec. Doc. 193-1, n. 47.
5 Rec. Docs. 72, 85.
employee/contractors. Defendants maintain that the Tomahawk Incident is not
“substantially similar” to the fatal accident that occurred at PCA’s mill in DeRidder, at issue
in this case.6
In this Circuit, “[w]hen evidence of other accidents or occurrences 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 or occurrences are ‘closely similar’ to
the facts and circumstances at issue—otherwise known as the ‘substantial similarity’
requirement for admissibility.”7 Defendants argue that “prior incidents at PCA’s other
facilities is not substantially similar to the [subject] DeRidder Incident and should thus be
excluded as irrelevant or inadmissible character or propensity evidence under Rule 404.”8
The Court has considered the arguments and evidence offered by both parties
regarding the Tomahawk Incident. The Court finds the Tomahawk Incident was
substantially similar to the subject accident. It involved hot work (welding) at another PCA
mill over the top of a tank that contained flammable gases which resulted in a fatal
explosion not unlike the one involved here. The flammable substance or gas in the tanks
involved was different, but common denominators were present in both the Tomahawk
and the subject accident; namely, welding near a tank with flammable gases which ignited
causing an explosion. Thus, the Tomahawk Incident is probative of the state of PCA’s
knowledge and is relevant to a material issue in this case. Accordingly, the Court finds
that FRE 404(b)(1) does not bar admission and FRE 404(b)(2) applies.
6 FRE 404(b) & 403; see also, Banks v. C.R. Bard, Inc., No. CV 17-193-SDD-RLB, 2023 WL 1100446 (M.D.
La. Jan. 30, 2023); Rec. Doc. 196-1.
7 Banks, 2023 WL 1100446, at *2 (internal quotations omitted).
8 Rec. Doc. 196-1, p. 8.
However, even in cases where “substantial similarity” is established, the Court
must conduct the balancing analysis required by FRE 403, which requires exclusion if “its
probative value is substantially outweighed by a danger of... unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or it is needlessly presenting
cumulative evidence.”9
The Court will address each exhibit related to the Tomahawk Incident and made
the subject of the Defendants’ Motion in Limine (Rec. Doc. 196) below. Objections to
testimonial evidence are deferred to trial.
P17 - an undated “Safety Alert” from the United Steelworkers to undisclosed
recipients pertaining to the July 29, 2008 Tomahawk Incident. P17 is hearsay and
lacks any indicia of reliability. The publication itself states that “[t]he cause of the
explosion remains undetermined.” The Court finds that P17 is more prejudicial than
probative and is cumulative of other evidence. P17 is EXCLUDED as inadmissible
hearsay under FRE 802 and under FRE 403.
P18 - A “News Release” dated August 15, 2008 from the U.S. Chemical Safety and
Hazard Investigation Board (“CSB”) pertaining to the Tomahawk Incident. The
news release announces that CSB will undertake an investigation into the
Tomahawk Incident. The Court does not reach the question of whether the CSB
news release meets the public records exception to the rule against hearsay or
whether 42 U.S.C. § 7412(r)(6)(G)10 applies because the Court finds that under
FRE 403, P18 shall be EXCLUDED as more prejudicial than probative.
9 Fed. R. Evid. 403.
10 See infra Section VI.
P19 - OSHA Citation and Notice of Penalty to PCA resulting from the Tomahawk
Incident. The Court defers ruling on the admissibility of P19 until the time of trial,
objections are reserved.
P21 – Excerpts of a presentation regarding the Tomahawk Incident by Bruce
Kummerfeldt, Health and Safety Manager, PCA Tomahawk Mill. The Court defers
ruling on the admissibility of P21 until the time of trial, objections are reserved.
P22 - CSB Safety Bulletin dated February 2010 regarding the Tomahawk Incident.
The Court finds that P22 is probative of the state of industry knowledge at the time
of its publication. The Court finds that 42 U.S.C. § 7412(r)(6)(G) does not bar
admission because the captioned matter did not arise out of “any matter mentioned
in such report.”11 However, P22 is hearsay. Ruling on this exhibit is thus deferred
to trial, all evidentiary objections are reserved.
P606 - EXCLUDED as a duplicate of P22.
P619 - EXCLUDED as a duplicate of P22.
P23 – CSB News Release dated March 4, 2010 regarding the Tomahawk Incident.
Ruling is deferred to trial, and all objections are reserved for the same reasons
pertaining to P22.
P97 - CSB Investigation Report regarding the subject accident marked “DRAFT –
CONFIDENTIAL” shall be EXCLUDED under FRE 403.
P26 - 2010 OSHA citations and notifications of penalty pertaining to a PCA plant
in Milwaukee, WI and 2011 Stipulation and Settlement Agreement between
USDOL/OSHA and PCA. The cited conduct documented in P26 is not substantially
11 Id., at p. 13.
similar to the subject incident and is more prejudicial than probative; it shall be
EXCLUDED under FRE 403.
P27 - Lincoln County Sheriff's Department communication and attached
statements dated July 17, 2012 regarding Tomahawk Incident shall be EXCLUDED
under FRE 403.
P28 - Incident report dated July 17, 2012 by Inland Systems Incorporated
regarding the Tomahawk Incident. Ruling is deferred to trial, all evidentiary
objections are reserved.
P30 - Article regarding Tomahawk Incident in United Steelworkers publication shall
be EXCLUDED as hearsay and under FRE 403 as more prejudicial than probative
and as cumulative of other evidence regarding the subject of the article.
P31 – OSHA Citations and Notices of Penalty to PCA regarding the Tomahawk
Incident. The Tomahawk Incident is substantially similar to the accident that is the
subject of the captioned matter, and the exhibit is probative of knowledge and
gravity of harm. Accordingly, the Motion in Limine as to P31 is DENIED.
P32 – OSHA and PCA Informal Settlement Agreement of citations and penalties
pertaining to the Tomahawk Incident. The Motion in Limine as to P32 is deferred
to trial. Plaintiff must demonstrate that the exhibit is probative of some issue other
than a prohibited purpose under FRE 408.
P37 – OSHA News Release dated July 31, 2014 shall be EXCLUDED under FRE
403.
P608 – EXCLUDED. Duplicate of P37.
P42, P43, P44, P46, P47, P48 - Shall be EXCLUDED under FRE 801/802 and for
the reasons set forth in Section V below.
Video Deposition of PCA Corporate Representative (excerpts) taken October 20,
2020. Ruling is deferred to trial; all evidentiary objections are reserved.
Video Deposition of Bruce Kummerfeldt (excerpts) taken December 14, 2023.
Ruling is deferred to trial; all evidentiary objections are reserved.
P99 – CSB Findings and Recommendations for the subject accident shall be
EXCLUDED pursuant to 42 U.S.C. § 7412(r)(6)(G) for the reasons stated in
Section VI below.
IV. Defendant’s Motion in Limine to Exclude Stale Damages Evidence (Rec.
Doc. 197). Opposition at Rec. Doc. 214.
Defendants move to exclude what they coin “stale damages evidence.”12 The
gravamen of the Defendants’ argument is that the findings in the report of Plaintiffs’
damage expert, Dr. Kenneth G. McCoin, dated February 2018, are not updated, rely on
stale assumptions, and are thus irrelevant. Plaintiffs counter that this is an out of time
Daubert motion. The challenge to Dr. McCoin’s assumptions go to the reliability of his
opinions under FRE 702. The deadline to produce expert reports was July 21, 2023.13
The Court extended the Daubert motion deadline to November 17, 2023.14 McCoin’s
2018 initial report was not updated, but a Daubert motion was not filed. The Daubert
motion deadline cannot be simply ignored in favor of a “vanilla” Motion in Limine when
the heart of the motion goes to the reliability of the expert’s opinions, as it does here.
12 Rec. Doc. 197; Rec. Doc. 214.
13 Rec. Doc. 135.
14 Rec. Docs. 155 & 176.
Accordingly, the motion (Rec. Doc. 197) is DENIED, without prejudice to urging
objections at trial. The Plaintiffs are instructed that Dr. McCoin will not be permitted to
amend his opinions at trial based on current facts. Dr. McCoin’s testimony shall be limited
to opinions stated in his 2018 reports which are reliably supported by the factual evidence
adduced at trial.
V. Defendant’s Motion in Limine to Exclude Undisclosed Expert Opinions
(Rec. 198). Opposition at Rec. Doc. 215.
On their exhibit list, Plaintiffs identify reports and affidavits of experts in other cases
involving industrial accidents at PCA facilities. Defendants move to exclude the following:
P47 and P48 are expert reports of Frederick Elder and John Carson in Hale
v. PCA in the United States District Court for the Western District of
Wisconsin.
P105, P106, P650, and P651 are expert affidavits submitted in in opposition
to Motions for Summary Judgment filed in 2021 in Rolls v. PCA, No. 2:18-
cv-188, a case filed by a different plaintiff arising out of the same incident at
issue in this suit.
Defendants urge exclusion pursuant to Rule 26 of the Federal Rules of Civil
Procedure, arguing that, because “all constitute expert opinions disclosed after the Court-
ordered deadlines for disclosure of expert witnesses and provisions of expert reports,
Plaintiffs should be precluded from offering those exhibits and the opinions they contain
at the trial of this matter.”15
Plaintiffs counter that Rule 26 is inapplicable because these are not experts
retained for this case and they are not testifying in this case. Plaintiffs argue that these
15 Rec. Doc. 198-1, p. 3.
“are simply documentary evidence that has been gathered and exchanged by the parties
in discovery.”16
The Court hereby GRANTS the Motion in Limine (Rec. Doc. 198). The expert
reports and affidavits rendered by experts in other cases constitute inadmissible hearsay.
They are beyond the reach of cross examination in this case, are more prejudicial than
probative, and risk juror confusion. Plaintiffs’ exhibits P47, P48 P105, P106, P650, and
P651 are hereby EXCLUDED.
VI. Defendant’s Motion in Limine to Exclude Evidence of OSHA and CSB
Investigations, Reports, Citations, and Settlements (Rec.199). Opposition
at Rec. Doc. 211.
Defendants move to exclude documents related to OSHA and CSB investigations.
Defendants argue that all are inadmissible hearsay. Additionally, Defendants submit that
evidence of PCA settlements of OSHA citations are inadmissible under FRE 408 and that
evidence of CSB investigative reports, videos, and other investigative materials are
inadmissible under 42 U.S.C. § 7412(r)(6)(G). Finally, Defendants move exclusion under
FRE 403 arguing that the prejudice exceeds any probative value.
Plaintiffs oppose the hearsay objection, arguing that the subject records meet the
public records exception, FRE 803(8), and that PCA’s settlements with OSHA are not
offered to “prove or disprove the validity or amount of a disputed claim” but are admissible
for another purpose, such as, notice of dangerous conditions leading up to the subject
explosion.17 As for statute 42 U.S.C. § 7412(r)(6)(G), Plaintiffs argue that this statute does
not prohibit admissibility of CSB reports of other incidents that are not at issue in this suit.
16 Rec. Doc. 215, p. 3.
17 Rec. Doc. 211, p. 4 (quoting FRE 408))(internal quotation marks omitted).
The Court will address each OSHA and CSB exhibit challenged in the Defendants’
Motion in Limine (Rec. Doc. 199) below. The Court notes that many of the exhibits
challenged by this Motion (Rec. Doc. 199) were also challenged in the Motion in Limine
to exclude evidence of the Tomahawk Incident (Rec. Doc. 196).
P93 - OSHA Citation and Notice of Penalty dated 8/3/2017 regarding the
subject accident. This is a Citation, not a settlement, so FRE 408 does not bar
admission. Ruling is deferred to trial. The hearsay and FRE 403 objections are
reserved to the time of trial.
P95 - Correspondence regarding PCA’s satisfaction of covenants of its
settlement of the OSHA citation resulting from the subject accident. Evidence
of a compromise with a regulatory agency is not admissible to show liability.
Additionally, “making the content of such a discussion available for use in
related litigation would invite the very situation that Rule 408 is designed to
avoid” and reduce the likelihood that responsible parties would volunteer to
correct occupational safety hazards.”18 The Motion in Limine is GRANTED and
P95 is EXCLUDED, without prejudice.
P103 - Duplicate of P95. The Motion in Limine is GRANTED and P103 is
EXCLUDED, without prejudice.
P100 - The Notice of Settlement of the OSHA citation for the subject accident,
dated June 25, 2081. The Motion in Limine is GRANTED, an P100 is
EXCLUDED pursuant to FRE 408.
18 Lyondell Chemical Co. v. Occidental Chemical Corp., 608 F.3d 284, 299 (5th Cir. 2010).
P19 - OSHA Notice of Citation and Penalty to PCA resulting from the Tomahawk
Incident. The Court defers ruling on the admissibility of P19 until the time of
trial; objections are reserved.
P26 - 2010 OSHA citations and notifications of penalty pertaining to a PCA plant
in Milwaukee, WI and 2011 Stipulation and Settlement Agreement between
USDOL/OSHA and PCA. The cited conduct documented in P26 is not
substantially similar to the subject incident and is more prejudicial than
probative and shall be EXCLUDED under FRE 403.
P30 - Article regarding Tomahawk Incident in United Steelworkers publication
shall be EXCLUDED as hearsay and under FRE 403 as more prejudicial than
probative and as cumulative of other evidence regarding the subject of the
article.
P31 – OSHA Citations and Notices of Penalty to PCA regarding the Tomahawk
Incident. The Motion in Limine as to P31 is DENIED for the reasons set forth in
Section III above.
P32 - OSHA and PCA Informal Settlement Agreement of citations and penalties
pertaining to the Tomahawk Incident. The Motion in Limine as to P32 is deferred
to trial. Plaintiff must demonstrate that the exhibit is probative of some issue
other than a prohibited purpose under FRE 408.
P37 – OSHA News Release dated July 31, 2014 shall be EXCLUDED under
FRE 403.
P608 – Duplicative of P37. EXCLUDED for same reasons.
P97 - draft CSB investigation report regarding the Tomahawk Incident.
EXCLUDED under FRE 403.
P99 - Investigation Report and Recommendation of the U.S. Chemical Safety
and Transportation Board shall be EXCLUDED. By statute, CSB conclusions,
findings, and recommendations related to the incident made the subject of the
captioned matter are not admissible. 42 U.S.C. § 7412(r)(6)(G) specifically
provides:
No part of the conclusions, findings, or recommendations of the
Board relating to any accidental release or the investigation
thereof shall be admitted as evidence or used in any action or suit
for damages arising out of any matter mentioned in such report.
(emphasis added).
The Motion in Limine as to P99 is hereby GRANTED.
P18 – The Motion in Limine as to P18 is hereby GRANTED and P18 is
EXCLUDED for the reasons stated in Section III above.
P22 - CSB Safety Bulletin dated February 2010 regarding the Tomahawk
Incident. The Court finds that P22 is probative of the state of industry
knowledge at the time of its publication. The Court finds that 42 U.S.C. §
7412(r)(6)(G) does not bar admission because the captioned matter did not
arise out of “any matter mentioned in such report.”19 However, P22 is hearsay.
Ruling is deferred to trial; all evidentiary objections are reserved.
P606 - EXCLUDED as a duplicate of P22.
P619 - EXCLUDED as a duplicate of P22.
19 Id.
Defendants further move to exclude Rec. Doc. 199-6 and 199-720 filed under
seal. The Motion in Limine is hereby GRANTED, and the proposed exhibits
shall be EXCLUDED pursuant to FRE 407 and 408.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana March 13, 2024
S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
20 Rec. Doc. 199 (UNDER SEAL), Exhibits 5 & 6.