United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
Frank Sheppard alleges that he suffers from lung cancer
caused by asbestos exposure. He brings claims against his
former employer, several manufacturers and distributors of
asbestos-containing products, and related insurers. The
parties have filed several motions, and the Court resolves
seven of them as follows.
suit was originally filed in the Civil District Court for the
Parish of Orleans. Defendant Mosaic Global Holdings Inc.
removed the action to this Court on March 22,
2016. In his complaint, Sheppard alleges that he
was exposed to asbestos “[o]n a daily basis” as
an employee of Mosaic's predecessor company, Freeport
Sulphur Company. This exposure allegedly caused Sheppard to
develop asbestos-related cancer, lung cancer, and/or
mesothelioma. Although Sheppard stopped working for
Freeport in the early- to mid-1990s,  Sheppard's
asbestos-related ailments were first diagnosed in October
addition to Freeport/Mosaic, Sheppard sues several defendants
involved in the manufacture, distribution, and sale of
asbestos-containing products that Sheppard allegedly
encountered in the course of his work.Sheppard also
brings claims against insurance companies that allegedly
provided coverage to defendants for asbestos-related claims
and withheld information from Sheppard about the danger of
brings claims for “negligence, intentional tort, fraud,
and strict liability, ” and alleges that all defendants
are “jointly, severally, and in
solidio liable.” He seeks damages for, among other
things, physical and mental pain, loss of life, loss of
income, and medical expenses.
Motion to Strike Gayla McCluskey (R. Doc. 187)
moves to strike Gayla McCluskey on the grounds that defendant
Reilly Power never offered McCluskey for deposition. In
response, Reilly Power points to an email sent by its counsel
to Sheppard's counsel on December 27, 2016. In the email,
“Riley Power, Inc. offers Gayla McCluskey for
deposition by telephone at 1:00 pm EST on January 3,
2017.”This date is before the close of
discovery,  and plaintiffs have offered no further
briefing to suggest this dispute remains live. Accordingly,
the motion is DENIED AS MOOT.
Motion to Exclude Evidence Regarding Settlements (R. Doc.
198) and Motion to Exclude Evidence Regarding Collateral
Sources (R. Doc. 199)
these two motions, Sheppard argues that evidence that he
settled claims with other defendants in this case is
inadmissible under Federal Rule of Evidence 408 and that
evidence of collateral sources of compensation, such as
insurance benefits, is inadmissible under the collateral
source rule. Under Rule 408, evidence of compromise of a
claim is inadmissible for purposes of establishing liability.
Fed.R.Evid. 408. Similarly, “the collateral source rule
operates to exclude evidence of collateral benefits because
it may unfairly prejudice the jury.” Trico Marine
Assets Inc. v. Diamond B Marine Servs. Inc., 332 F.3d
779, 794 n.7 (5th Cir. 2003).
respond that both settlement agreements and evidence of
collateral sources may be admissible to show bias or
prejudice in a witness, to explain why the plaintiff's
testimony regarding settling defendants has changed, or for
other limited purposes. Defendants are correct that Rule 408
is not a blanket ban on settlement evidence. See
Fed. R. Evid. 408(b); 2 McCormick On Evid. § 266 (7th
ed. 2016). However, “[i]n evaluating the ‘another
purpose' exception to Rule 408, the district court must
balance the exception against the policy of encouraging
settlements, and take care that an ‘indiscriminate and
mechanistic' application of the exception does not
undermine the rule's public policy objective.”
Marine Power Holding, L.L.C. v. Malibu Boats, LLC,
No. 14-912, 2016 WL 4218217, at *4 (E.D. La. Aug. 8, 2016)
(quoting Gulf S. Mach., Inc. v. Am. Standard, Inc.,
No. 97-065, 1999 WL 102752, at *2 (E.D. La. Feb. 22, 1999)).
A similar balancing standard applies to the collateral source
rule. Trico Marine, 332 F.3d at 794 n.7.
(“[I]n certain circumstances, [collateral source]
evidence could be admitted for a limited purpose if there is
little risk of prejudice and the court gives the jury a
parties have argued these motions in generalities rather than
specifics. Neither party identifies which specific
settlements should be excluded or admitted. Sheppard does not
outline why evidence of settlements with any party would be
prejudicial. Defendants, meanwhile, list reasons why a
settlement might be admissible, but offer no
argument tailored to the facts of this case. The parties'
briefing regarding collateral sources is similarly academic.
the Court finds that a blanket ban on these categories of
evidence is unwarranted, and Sheppard's motions are
DENIED. However, in view of the potential prejudice
associated with evidence of prior settlements or collateral
sources of compensation, no such evidence will be admissible
at trial without express permission of the Court. Parties
seeking to introduce evidence relating to settlements or
collateral sources shall provide written briefing on the
issue, no later than midnight on the day before the proposed
Motion in Limine Regarding Experts That Have Not Yet
Been Deposed (R. Doc. 201)
represents that he was unable to depose all of
defendants' experts before the Court's deadline for
Motions in limine regarding the admissibility of
expert testimony. He has accordingly filed the instant motion
“in order to preserve the plaintiff's ability to
supplement this motion if, following the deposition of the
remaining expert witnesses, it appears that a motion in
limine regarding the admissibility of the
experts' testimony is warranted.” This is not a
proper use of a motion in limine, and the motion is
Motion for Judicial Admission Regarding Asbestosis (R. Doc.
motion, Sheppard argues that in moving for summary judgment
on Sheppard's purported claims for asbestosis, defendants
made a judicial admission that Sheppard in fact has
asbestosis. Defendants deny making any such admission.
Fifth Circuit defines a judicial admission as “a formal
concession in the pleadings or stipulations by a party or
counsel that is binding on the party making them.”
Martinez v. Bally's Louisiana, Inc., 244 F.3d
474, 476 (5th Cir. 2001). A judicial admission is conclusive
and withdraws a fact from contention. See Id.
Further, a statement by counsel during the course of trial
may qualify as a judicial admission if counsel intended to
release the opponent from proof of a fact. See id.
An ordinary evidentiary admission, on the other hand, is
“‘merely a statement of assertion or concession
made for some ...