Sheppard v. Liberty Mutual Insurance Company
2:16-cv-02401
E.D. La.Feb 2, 2017Background
- Plaintiff Jesse Frank Sheppard alleges daily occupational asbestos exposure while employed at Freeport Sulphur (now Mosaic) and other workplaces, leading to a 2015 diagnosis of asbestos-related cancer or mesothelioma.
- Case was removed to federal court by Mosaic Global Holdings; multiple defendants include product manufacturers, distributors, and insurers; plaintiff asserts negligence, intentional tort, fraud, and strict liability claims and seeks compensatory damages.
- Discovery and pretrial disputes produced several motions in limine and one partial summary-judgment motion addressed in this order.
- Key evidentiary dispute centers on a 1989 consultation note (Dr. Smith) that records plaintiff’s smoking history and is contested as to whether it reflects "20–25 pack-years" or "20–25 packs per year."
- Defendants moved for partial summary judgment seeking dismissal of any asbestosis claim; plaintiff disclaims asserting an asbestosis claim in his complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to strike witness Gayla McCluskey | Reilly Power never offered McCluskey for deposition | Reilly offered telephone deposition before discovery closed | Denied as moot (offer made within discovery period) |
| Exclusion of settlement evidence (FRE 408) | Settlements are prejudicial and inadmissible to show liability | Settlements may be admissible for bias, impeachment, or other "another purpose" exceptions | Blanket exclusion denied; settlement evidence requires prior court permission and written briefing before any offer |
| Exclusion of collateral-source evidence | Collateral benefits should be excluded as prejudicial | May be admissible for limited purposes with limiting instruction | Blanket exclusion denied; collateral-source evidence requires prior court permission and written briefing before any offer |
| Motion in limine re: experts not yet deposed | Preserves right to supplement Daubert/motion in limine after outstanding depositions | Procedure inappropriate; motions in limine are for rulings on admissibility now | Denied (improper use of motion in limine) |
| Motion for judicial admission that plaintiff has asbestosis | Defendants’ summary-judgment briefing conceded asbestosis | Defendants deny any formal concession; they argued prescription based on an alleged 2011 diagnosis | Denied — no formal judicial admission; statements not binding admissions |
| Defendants’ partial summary judgment on asbestosis claims | N/A | Move to dismiss any asbestosis claims as time-barred | Denied as moot — plaintiff disclaims asserting asbestosis claim in complaint |
| Motion to exclude 1989 consultation note (Dr. Smith) | Note is hearsay, unauthenticated, and confusing regarding smoking history | Note is a business record under FRE 803(6) and self-authenticating under FRE 902(11); statements fall under medical-treatment exception and party-opponent admission | Denied — custodian affidavits and precedent (including Duncan) provide sufficient foundation; probative value outweighs confusion risk |
Key Cases Cited
- Trico Marine Assets Inc. v. Diamond B Marine Servs. Inc., 332 F.3d 779 (5th Cir.) (collateral source evidence may be admitted for limited purposes with limiting instruction)
- Martinez v. Bally’s Louisiana, Inc., 244 F.3d 474 (5th Cir.) (definition and effect of judicial admissions)
- United States v. Duncan, 919 F.2d 981 (5th Cir.) (business-records exception applies where a custodian compiles records that include medical records from hospitals)
- In re McLain, 516 F.3d 301 (5th Cir.) (Rule 901 authentication requires only sufficient evidence to support finding that document is what proponent claims)
- Mississippi River Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314 (5th Cir.) (trustworthiness inquiry for business-records exception)
- United States v. Arce, 997 F.2d 1123 (5th Cir.) (authentication may rely on circumstantial evidence)