Court: United States District Court for the District of Montana, Great Falls Division

From 1923 to 1994, Burlington Northern Santa Fe Railway Company (BNSF) transported vermiculite ore containing amphibole asbestos from a mining and processing location in Libby, Montana. Subsequently, an accumulation of airborne asbestos resulted in and around the town where plaintiffs resided. Plaintiffs allege the defendant’s railyard in downtown Libby served as the hub of the company’s vermiculate business and that it transported crushed vermiculite ore in open rail cars along its “Libby Logger” line. Further, they claimed defendants transported from 193 million to 4 billion pounds of asbestos-containing materials between 1925 and 1981. Plaintiff Wells lived approximately one-quarter mile from the railyard while plaintiff Walder alleged exposure from walking along the railroad tracks during her childhood. They brought suit and their respective estates continued their lawsuits after they died from asbestos-related diseases.

As the last remaining defendant, BNSF filed motions to strike the expert reports and testimonies of 10 expert witnesses. Plaintiffs opposed the motions and filed two motions to strike the expert reports and testimony of two of BNSF’s experts. 

“The decision on a motion in limine is consigned to the district court’s discretion – including the decision of whether to rule before trial at all.” United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999). Nevertheless, “[a] motion in limine ‘should not be used to resolve factual disputes or weigh evidence.’” BNSF R.R. v. Quad City Testing Laboratory, Inc., 2010 US Dist LEXIS 113888, 2010 WL 4337827, at *1 (D. Mont. 2010).

The court addressed plaintiffs’ motions to strike the expert reports of John Kind, Ph.D., CIH, CPS, dated June 10, 2022 and February 7, 2023. It examined the relevant scheduling order and noted defendant’s expert disclosure dated March 16, 2023 was well past the August, September, and October 2022 deadlines. Federal Rule of Civil Procedure 37(c)(1) prohibits a party from using a witness to not previously disclosed under Rule 26 “unless the failure was substantially justified or is harmless.” The report in question was actually dated June 10, 2022, and BNSF argued the untimely disclosure proved harmless. 

The court determined BNSF’s delay was indeed harmless, applying the Lanard Toys factors:

The factors a court may consider in determining whether a violation of a discovery deadline is justified or harmless are (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willingness involved in not timely disclosing the evidence.

Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 (9th Cir. 2010). The court concluded that plaintiffs would suffer no prejudice or surprise from the admission of this report as it was substantially similar to a previous report from Dr. Kind. It also concluded BNSF’s untimely disclosure did not arise from bad faith or willfulness. On the other hand, the court reasoned not permitting plaintiffs’ own experts to examine the late-served report could prove prejudicial. As a result, the court denied plaintiffs’ motion and ordered that plaintiffs could re-depose their own experts on limited basis, with BNSF bearing responsibility for the costs and fees associated with such depositions. 

Turning to the February 7, 2023 report, plaintiffs set forth that said supplemental report exceeded the bounds of permissible supplementation because it neither informed of any changes or alterations nor contemplated or corrected previously disclosed information. Plaintiffs further contended these shortcomings rendered this as a rebuttal report, whose deadline was in October 2022 as per the scheduling order. Nevertheless, the court again found BNSF’s untimely disclosure to be harmless. Despite the delay, the parties’ trial date in April 2024 provided ample time for plaintiffs to re-depose the relevant experts and thus “alleviate the potential prejudice faced by plaintiffs.” Thus, the court again denied plaintiffs’ motions to strike.

Read the full decision here.