United States District Court, W.D. Missouri, Western Division
ORDER GRANTING IN PART DEFENDANT'S MOTIONS IN
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT.
case arises out of an insurance coverage dispute. Plaintiff
Sunflower Redevelopment, LLC (“Sunflower”)
undertook a project to remediate the former Sunflower Army
Ammunition Plant (“Plant”) in order to develop it
for commercial purposes. After insurer Defendant Illinois
Union Insurance Co. (“ILU”) refused to indemnify
Sunflower for certain expenses, Sunflower sued for
declaratory judgment and breach of contract.
before the Court are ILU's two motions in limine (Docs.
145, 147). For the following reasons, ILU's
motions are granted in part.
Rule of Evidence 403 permits exclusion of otherwise relevant
evidence if “its probative value is substantially
outweighed by the danger of one or more of the following:
unfair prejudice, confusing the issues, or misleading the
jury . . . .”
district court has broad discretion to assess unfair
prejudice. United States v. Henderson, 416 F.3d 686,
693 (8th Cir. 2005). Evidence is unfairly prejudicial when
“it tends to suggest a decision on an improper
basis.” Wade v. Haynes, 663 F.2d 778, 783 (8th
Cir. 1981), aff'd sub nom. Smith v. Wade, 461
U.S. 30 (1983). Additionally, “‘[c]onfusion of
the issues warrants exclusion of relevant evidence if
admission of the evidence would lead to litigation of
collateral issues.'” Firemen's Fund Ins.
Co. v. Thien, 63 F.3d 754, 758 (8th Cir. 1995) (quoting
United States v. Dennis, 625 F.2d 782, 796-97 (8th
Motion to exclude evidence of the cost of future work at the
Plant because the estimates are speculative (Doc. 145) is
first motion seeks to exclude evidence and argument as to
what future work will be done at the Plant, when that work
will begin, how much that work will cost, and for how long
that work will continue. ILU argues Sunflower's estimate
of the work surrounding future investigation and remediation,
and the costs associated with that work, is speculative and
open to conjecture. Additionally, ILU cites authority that it
argues bars Sunflower from recovering future costs or
damages. Finally, ILU mentions this evidence presents a
danger of unfair prejudice and confusion to the jury, which
substantially outweighs any probative value.
does not argue evidence of future investigation and
remediation work is not relevant only that Sunflower's
evidence is speculative. Therefore, the issue before the
Court is whether it should exclude this otherwise relevant
seeks to exclude parts of Sunflower's expert Timothy
Stecher's (“Stecher”) expert opinion because
it argues Stecher relied on incomplete data to determine what
work remains at the Plant (i.e. no soil sampling performed to
determine existence of asbestos, only 10% of suspected
pesticide contaminated areas have been confirmed, and no soil
sampling performed to determine existence of lead based paint
a general rule, the factual basis of an expert opinion goes
to the credibility of the testimony, not the admissibility,
and it is up to the opposing party to examine the factual
basis for the opinion in cross-examination. However, it also
is true that if the expert's opinion is so fundamentally
unsupported that it can offer no assistance to the jury, it
must be excluded.” Nebraska Plastics, Inc. v.
Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th
Cir. 2005). An expert opinion that fails to consider the
relevant facts of the case is fundamentally unsupported.
Concord Boat Corp. v. Brunswick Corp., 207 F.3d
1039, 1056 (8th Cir. 2000). Doubts regarding “whether
an expert's testimony would be useful should generally be
resolved in favor of admissibility.” Clark v.
Heidrick, 150 F.3d 912, 915 (8th Cir. 1998).
Court finds Stecher's opinions are grounded in the facts
of this case. Cf. Nebraska Plastics, Inc., 408 F.3d
at 416-17 (finding expert's opinion did not take into
account facts tending to show the quantity of defective
product subject to warranty claims was limited). To the
extent ILU seeks to attack Stecher's methodology, it will
need to do so during cross-examination.
also seeks to exclude evidence and argument related to future
remediation of pesticides, asbestos, lime slurry, lead based
paint, and fuel/oil. ILU's basis relies mostly on alleged
failures in Stecher's analysis, but also on basis that
Sunflower has not been working at the Plant for the last six
years and it could not know, with any amount of certainty,
what work is required to complete the project.
of damages is sufficient as long as it is “not wholly
speculative.” Pillsbury Co. v. Illinois Cent. Gulf