United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM ORDER REGARDING REPORT AND RECOMMENDATION
ON MOTIONS IN LIMINE NOS. 152, 154, 158, 164 AND 168
PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE.
to Rule 53 of the Federal Rules of Civil Procedure, Mary-Jo
Rebelo was - appointed Special Master on August 3,
2017. The appointment was for the purpose of
deciding the 17 Motions in Limine filed in this matter.
Because the parties subsequently filed motions for summary
judgment which implicated many of the motions in limine, it
was determined that the' Special Master would only
consider five motions at this time and defer the remainder
until after the summary judgment motions were decided by the
Court. The five motions considered were ECF Nos. 152, 154,
158, 164 and 168.
Special Master filed her Report and Recommendation on October
27, 2017 (ECF No. 298). The following recommendations were
• Grant in part and Deny in part AxialPs Motion in
Limine to Preclude Arguments and Evidence Contrary to the
Trial Court's Order and Memorandum Opinion . dated June
• Deny Axiall's Motion in Limine to Preclude
Defendant descote S.A.S.'s Argument that Compliance with
the Recommendations and/or Guidelines of the' Association
of American Railroads and/or the Chlorine Institute, Inc. is
a Defense to Plaintiffs Claims.
• Deny Axiall's Motion in Limine to Preclude the
Admissibility of the Written Warranty Between descote S.A.S.
and FC Tech, LLC.
• Grant in part and Deny in part descote's Motion in
Limine to Preclude Argument that descote Owes Punitive
Damages to Axiall.
• Grant in part and Deny in part descote's Motion in
Limine to Exclude Evidence or Argument that the Association
of American Railroads Improperly Approved descote's
Manual Dual Angle Valve.
filed Objections only as to the Recommendation on ECF No.
152. The Objections argue that the Special Master erred in
allowing descote to offer factual evidence as to whether
Axiall utilized a management of change process. ECF No. 317.
No other objections were filed by either Axiall or descote.
descote responded to Axiall's Objections on November 29,
2017. ECF No. 330. Descote argues in response that the prior
opinion of the Court did not bar factual evidence of
management of change, only expert testimony. It admits that
Norval is not entitlec to offer an opinion as to whether
Axiall should have implemented management of change
procedures. However, it does not preclude factual testimony
as to what Axiall actually did or did not do.
Court has considered the Special Master's Report and
Recommendation, Axiall's objections and descote's
response. The Court has also reviewed the transcript of the
argument on the Motions held on October 13, 2017. Given the
extensive briefing, the existence of a transcript of the oral
argument and the objections and response, the Court does not
think it is necessary to have yet another hearing on these
motions and will rule on the record before it, following a de
novo review. For the following reasons, the Court will adopt
the Special Master's Report and Recommendation as the
opinion of the Court with one clarification, as set forth
Management of Change
Conti's Order dated June 16, 2017 held that expert
witness Graeme Norval may not testify that Axiall should have
implemented a management of change process because that
testimony is not relevant to the issue of whether descote
knew or had reason to know that Axiall was relying on its
skill and judgment in selecting suitable valves. The
reasoning behind this ruling was that, whether Axial should
have implemented a management of change process, is
irrelevant to the issue outlined above, and irrelevant to the
requirements of proving breach of an implied warranty for a
particular purpose. The Court does not see any indication in
Judge Conti's Order that factual evidence of whether
Axiall should have, did, or did not, implement a management
of change process is relevant to the issue of breach of the
implied warranty of fitness for a particular purpose. To
quote Judge Conti's Order, "Norval's testimony
about what Axiall should have done, however, has no
bearing on whether descote knew or had reason to know Axiall
was relying on descote's skill and judgment." ECF
No. 141 p.7. Simply removing the word "Norval" from
the above statement, leads to the conclusion that any
testimony as to this issue is irrelevant. However, Judge
Conti ruled that Norval may testify as to how the
implementation of a management of change process could have
mitigated damages. This implicates factual testimony as to
what was done in this regard.
Special Master's recommendation was that Norval's
expert testimony as to management of change was precluded.
However, descote should be allowed to introduce factual
evidence as to (i) what descote knew or had reason to know
regarding Axiall's reliance on it; (ii) what Axiall did
or did not do with descote's valves prior to the purchase
in question, including but not limited to Axiall's
evaluation, test or use of the valves at Beauharnois, and
(iii) questions of causation or proximate cause." Axiall
argues that this factual testimony should not include
management of change. Judge Conti found that there was a lack
of fit between the testimony that Axiall should have used a
management of change process and the issue for the fact
finder to determine- what descote had reason to know relative
to Axiall's reliance on its skill and judgment. Whether
the testimony comes from an expert or otherwise, the same
lack of fit remains. To that extent, the Court agrees with
Axiall. However, there is nothing to preclude-descote from
asking "did you employ a management of change
process?" Or to enter testimony that it did not do so.
This question goes to the portion of Norval's testimony
that Judge Conti allowed. That is "the background of the
chlorine industry and how the implementation of a management
of change process ...