Caldwell, et al v. Tacc Corporation, et al
Court Docket Sheet

Eastern District of Arkansas

5:2002-cv-00385 (ared)

MOTION by defendants in limine to exclude the testimony of Intervenor Kirkham's "forensic economist" on the issue of "loss of life" damages

Case 5: 02-cv-00385-JMM Document 63 Filed 01/05/04 Page 1 of 7 EAST BEFEFOKANSAS ISAS IN THE UNITED STATES DISTRICT COURT JAN 05 2009 EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION JAMES W. McCORMACK, CLERK By: JASON CALDWELL AND KAREN CALDWELL PLAINTIFFS NO. 5: 02CV00385-JMM TACC CORPORATION AND ILLINOIS TOOL WORKS, INC. DEFENDANTS KAREN LAMB KIRKHAM, Individually and as Personal Representative of the Estate of William David Lamb, Deceased, and as Next Friend and on Behalf of Joshua Lamb and Caleb Lamb, the Minor Children and Wrongful Death Beneficiaries of William David Lamb INTERVENOR CARROLL DEAL AND PATTIE DEAL INTERVENORS II FREMONT COMPENSATION INS. CO. INTERVENOR $ III MOTION IN LIMINE Defendants TACC Corporation and Illinois Tool Works Inc. moves in limine to exclude the testimony of Intervenor Kirkham's " forensic economist " on the issue of " loss of life " damages. Assuming that loss of life damages are available at all in this case, Kirkham should not be allowed to present expert evidence of this type of damages as the proffered evidence does not meet the reliability and relevancy requirements of Arkansas Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U. S. 579, 125 L. Ed. 469 (1993).. Additionally, loss of life damages do not concen r matters outside the understanding of the jury, and therefore expert testimony is improper as to this element of damages. Ark. R. Evid. 702 (2003). 6 3 Case 5: 02-cv-00385-JMM Document 63 Filed 01/05/04 Page 2 of 7 In 1993, the United States Supreme Court addressed the standards of admissibility for scientific evidence under Federal Rule of Evidence 702. Daubert V. Merrell Dow Pharmaceuticals, 509 U. S. 579 (1993). Rule 702 provides: [i] f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Fed. R. Evid. 702. In Daubert, the Court rejected the general acceptance test for novel scientific testimony from Frye v. United States, 293 F. 1013 (D. C. Cir. 1923), and asserted flexible guidelines for admissibility of scientific evidence under Rule 702 As explained in Daubert, this Court must act as a gatekeeper to ensure that any and all expert testimony admitted in federal court satisfies the requirements of Rule 702 of the Federal Rules of Evidence. See also General Elec. Co. v. Joiner, 522 U. S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997. Indeed, the Supreme Court emphatically held that under Rule 702 " the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Daubert, 509 U. S. at 589. In doing so, as several courts of appeals have recognized, the trial court must be convinced that jurors will be exposed only to real science-based testimony. See eg, Rosen v. Ciba-Geigy Corp., 78 F. 3d 316, 319 (7th Cir. 1996) (" an expert who supplies nothing but a bottom line supplies nothing of value to the judicial process "), cert. denied, 519 U. S. 819, 117 S. C1 73 (1996) see also Surace v. Caterpillar, Inc, 111 F. 3d 1039, 1055 (3rd Cir. 1997) (stating the witness proffered to testify to specialized knowledge must be an expert) and Cummins v. Lyle Indus, 93 F. 3d 362, 367 (7th Cir. 1996) (stating that a district judge should assure himself, before admitting expert testimony, that the expert knows whereof he speaks). Case 5: 02-cv-00385-JMM Document 63 Filed 01/05/04 Page 3 of 7 With regard to reliability, the Supreme Court explained that under the terms of Rule 702. [the subject of an expert's testimony must be " scientific a phrase that both implies a grounding in the methods and procedures of science " and " connotes more than subjective belief or unsupported speculation. " Daubert, supra, 509 U. S. at 589-90. The Court elaborated: [I] n order to qualify as " scientific knowledge, " an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation-ie, " good grounds, " based on what is known. Id. at 590. " In short, the requirement that an expert s testimony pertain to " scientific knowledge " establishes a standard of evidentiary reliability. " Id. Under Rule 702, then, an expert's opinion must have a reliable basis in the knowledge and experience of his discipline. " Id. at 592 The Court in Daubert also elaborated on the relevancy requirement, which it derived from Rule 702 s admonition that expert testimony must " assist the trier of fact to understand the evidence or determine a fact in issue. " That consideration, the Court noted, " has been aptly described as one of fit. " 509 U. S. at 591 (emphasis added). The Court continued: Fit " is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. The study of phases of the moon, for example, may provide valid scientific knowledge " about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent credible grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night Rule 702's " helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. Id. at 591-92 (citation omitted). The Supreme Court has indicated that it will enforce the " fit " requirement strictly. See General Elec. Co, supra, 118 S. Ct. 512, 518 (1997 (upholding exclusion Case 5: 02-cv-00385-JMM Document 63 Filed 01/05/04 Page 4 of 7 of studies on infant mice on ground that the studies were so dissimilar to the facts presented in this litigation "). Under Daubert, the trial court must make an assessment whether the reasoning and methodology underlying the expert's testimony is valid. Daubert sets forth four non-exclusive factors to guide the trial court in determining whether proffered expert evidence is reliable: (1) whether the technique employed or relied upon by the expert has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the technique's rate of erTOr, if known; and (4) whether the technique is generally accepted by the scientific community. United States v. Reynolds, 77 F 3d 253, 254 n. 1 (8th Cir. 1996) (per curiam). The proponent of the evidence bears the burden of proving by a preponderance of the evidence that the conditions of admissibility exist More recently, the Supreme Court of Arkansas adopted the Daubert standard in Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S. W. 3d 512 (Ark. 2000). Thus, Arkansas applies the federal approach to Ark. R. Evid. 702. The willingness to pay methodology to determine loss of life or hedonic damages has been proffered in multiple jurisdictions. As discussed below, it has been rejected by an overwhelming majority of jurisdictions on the grounds that it is not sufficiently reliable based on the Daubert standards, the calculations are not helpful to the jury given the fact that loss of life damages are not susceptible to analytical calculation, and the value of this type of damage is not outside the common understanding and experience of the jury. Mr Brookshire specifically has been excluded from proffering this type of expert testimony on Daubert grounds in other jurisdictions. The West Virginia Supreme Court held that the admission of Mr Brookshire's testimony was reversible error. Wilt v. Buracker, 191 W. Va. 39, 443 Case 5: 02-cv-00385 JM Document 63 Filed 01/05/04 Page 5 of 7 S. E. 2d 196 (1993). The court went on to state that his calculations appear to controvert logic and good sense, " and that loss of life damages are not subject to an economic calculation. Id. at 205, 207. The Mississippi Supreme Court has also upheld the exclusion of Mr Brookshire's testimony on the basis that it would only serve to confuse or mislead the jury. K. M. Leasing, Inc v. Butler, 749 So 2d 310, 320 (Ct. App. Miss. 1999) (citing Upchurch v. Rotenberry, 1998 Miss. Lexis 524, 96 CA-01164-CT (Miss. 1998). The primary proponent of Mr Brookshire's methodology is Stan Smith. The trial court excluded Dr. Smith's testimony in Saia v. Sears Roebuck and Co., 47 F. Supp. 2d 141 (D. Mass. 1999). The court noted that the testimony would not assist the jury in understanding the evidence or determining a fact in issue and the value of the loss of life could be calculated independently by the jury. Id. at 149, 150. A similar conclusion was reached by the Nebraska Supreme Court in Anderson by and through Anderson/Couvillion v. Nebraska Dep' t of Social Services, 248 Neb. 651, 538 N. W. 2d 732 (1995). The court specifically found Smith's methodology to be flawed. It went on to say that even if was not flawed, it consisted solely of the compilation of a large number of individuals as to the value of human life, and these individuals have no greater expertise than the jurors themselves. Id. at 744. This conclusion was echoed by state appellate courts in California, Colorado, Louisiana, and Indiana. Loth v. Truck-A-Way Corp., 60 Cal. App. 4th 757 70 Cal. Rptr. 2d 571 (1998); Scharrel v. Wal Mart Stores, Inc., 949 P. 2d 89 (Colo. Ct App. 1997); Longman v. Allstate Ins. Co., 635 So. 2d 343 (La. Ct App. 1994); Southlake Limousine and Coach, Inc. v. Brock, 587 N. E. 2d 677 (Ct. App. Ind. 1991). Federal trial courts also excluded Smith's proffered testimony on similar grounds in Michigan, New Mexico, Illinois, Tennessee, and Kansas. Kurnez v. Honda North America, 166 Case 5: 02-cv-00385-IMM-Decument 63 Filed 01/05/04 Page 6 of 7 F. R. D. 386 (W. D. Mich. 1996); McGuire v. City of Santa Fe, 954 F. Supp. 230 (D. N. M. 1996); Ayers v. Robinson, 887 F. Supp. 1049 (N. D. Ill. 1995); Hein v. Merck & Co., 868 F. Supp. 230 (M. D. Tenn. 1994); Sullivan v. United States Gypsum Co., 862 F. Supp. 317 (D. Kan. 1994). The willingness to pay methodology is not sufficiently reliable to meet the requirements of Arkansas Rule of Evidence 702 and Daubert. The proffered testimony is not specific enough to the facts of the present case as to " fit " the present case and therefore be of assistance to the jury. The value of human life, while not capable of economic calculation, is something within the understanding, knowledge, and experience of every juror. Expert testimony on such a topic is neither necessary or appropriate. FRIDAY, ELDREDGE & CLARK 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201-3493 Attorney for Defendants TAC Corporation and Illinois Tool Works Inc./NV A lar Donald H. Bacon State Bar No. 78007 Case 5: 02-cv-00385-JMM Document 63 Filed 01/05/04 Page 7 of 7 CERTIFICATE OF SERVICE I, Donald H. Bacon, hereby certify that a copy of the foregoing pleading has been forwarded by United States Mail postage prepaid to the following counsel of record on this 31st day of December, 2003: Mr William Bridgforth Ramsay, Bridgforth, Harrelson and Starling P. O. Box 8509 Pine Bluff, Arkansas 71611-8509 Mr C. C. Gibson, III Gibson & Hashem P. O. Drawer 447 Monticello, AR 71657 Mr Brian Brooks Wilkes & McHugh 425 W. Capitol Avenue, Suite 3500 Little Rock, Arkansas 72201 Ms. Amy Huffman Roberts Law Firm 20 Rahling Circle P. O. Box 241790 Little Rock, Arkansas 72223-1790 him laun Donald H. Bacon

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1
10/21/2002
NOTICE of Petition for Removal from Drew Co Circuit Court Case Number: CV2002-171-3 ($150.00 filing fee paid with receipt # 11112) (bkj) Modified on 10/21/2002
10/21/2002
COMPLAINT with jury demand (bkj) Modified on 01/27/2003 (Text entry; no document attached.)
10/21/2002
ANSWER by defendants; jury demand (Text entry; no document attached.)
2
10/23/2002
ORDER Case reassigned to Judge James M. Moody (cc: all counsel)
3
01/16/2003
MOTION by Karen Lamb Kirkham to intervene
4
01/16/2003
BRIEF by Karen Lamb Kirkham in support of motion to intervene [3-1]
5
01/30/2003
ORDER by Judge James M. Moody granting motion by Karen Kirkham to intervene [3-1]; Karen Kirkham is directed to file an original of her complaint in intervention with the Clerk of the Court (cc: all counsel)
6
02/05/2003
INTERVENOR'S complaint with jury demand by Karen Lamb Kirkham
7
02/10/2003
ANSWER TO COMPLAINT IN INTERVENTION by defendants; jury demand
8
02/19/2003
INITIAL SCHEDULING ORDER (DOC) Rule 26(f) conference deadline 3/14/03; Rule 26(f) report deadline 3/28/03; proposed trial date 1/26/04; Rule 16(b) conference (if needed) will be scheduled within 1 week of the filing of the Rule 26(f) report (cc: all counsel)
9
02/18/2003
RETURN OF SERVICE executed upon defendant TACC Corporation on 2/5/03 by serving Sharon Priest, Secretary of State
10
02/27/2003
DEAL MOTION by movants to intervene
11
02/27/2003
BRIEF by movants in support of motion to intervene [10-1]
12
02/28/2003
ORDER by Judge James M. Moody granting Caroll and Pattie Deal's Motion to Intervene [10-1]; Carroll Deal and Pattie Deal are directed to file an original of her complaint in intervention with the Clerk of the Court (cc: all counsel)
13
03/07/2003
INTERVENOR'S DEAL COMPLAINT, with jury demand by Carroll Deal and Pattie Deal
14
03/13/2003
ANSWER TO COMPLAINT IN INTERVENTION of Carroll Deal and Pattie Deal by TACC Corporation and Illinois Tool Works
15
03/25/2003
MOTION by movant Fremont Compensation to intervene
16
03/27/2003
ORDER by Judge James M. Moody granting motion to intervene by Fremont Compensation Ins Co [15-1]; the Clerk is directed to file the complt in intervention w/in 5 days of the entry of this Order (cc: all counsel)
17
03/28/2003
RULE 26(f) REPORT by plaintiffs, defendants and intervenor plaintiff
18
03/31/2003
INTERVENOR'S complaint by Fremont Compensation (bkj) Modified on 07/15/2003
19
04/16/2003
ANSWER by defendants to intervention complaint filed by Fremont Compensation Ins Co (bkj) Modified on 04/17/2003
20
04/16/2003
ANSWER by plaintiffs to Fremont Compensation Ins Co complaint in intervention
21
04/17/2003
SEPARATE ANSWER by intervenors Deal to complaint in intervention of Fremont (bkj) Modified on 04/22/2003
22
04/29/2003
ANSWER by Karen Lamb Kirkham to complaint of intervention of Fremont
23
05/13/2003
MOTION by Fremont Compensation for leave to file first amended complaint in intervention
24
05/22/2003
ORDER by Judge James M. Moody granting motion for leave to file first amended complaint in intervention [23-1] (cc: all counsel)
25
05/28/2003
AMENDED complaint in intervention [18-1] (bkj) Modified on 06/09/2003
26
06/02/2003
SEPARATE ANSWER of intervenors Carroll and Pattie Deal to amended complaint in intervention of Fremont (bkj) Modified on 06/03/2003
27
06/04/2003
ANSWER by Jason Caldwell and Karen Caldwell to Fremont Compensation Ins Co amended complaint in intervention
28
06/05/2003
ANSWER by defendants to amended complaint in intervention of Fremont Compensation Ins Co
29
06/09/2003
ANSWER by intervenors 1 to amended complaint in intervention of Fremont
30
06/19/2003
MOTION by intervenor plaintiff Fremont Compensation for leave to file second amended complaint in intervention
31
06/27/2003
ORDER by Judge James M. Moody granting motion for leave to file second amended complaint in intervention [30-1]; intervenor Fremont Indemnity Company is directed to file an original second amended complaint in intervention by 7/7/03 (cc: all counsel)
32
07/07/2003
SECOND AMENDED COMPLAINT IN INTERVENTION by Fremont Indemnity Company (tjj) Modified on 07/08/2003
33
07/14/2003
ANSWER TO SECOND AMENDED COMPLAINT IN INTERVENTION by Illinois Tool Works and TACC Corporation
34
07/15/2003
SEPARATE ANSWER by intervenors Carroll Deal and Pattie Deal to second amended complaint in intervention of Fremont
35
07/17/2003
ANSWER by Jason Caldwell and Karen Caldwell to Fremont Compensation Ins Co second amended complaint in intervention
36
07/18/2003
FINAL SCHEDULING ORDER (DOC); jury trial set for 9:15 AM the week of 1/26/04 in Pine Bluff; discovery due 11/27/03; pretrial info sheet due 1/6/04 (cc: all counsel)
37
07/21/2003
SEPARATE ANSWER by Karen Lamb Kirkham to second amended complaint in intervention of Fremont
38
10/22/2003
MOTION by Pattie Deal, Carroll Deal and Karen Lamb Kirkham to extend time for the disclosure of experts
39
10/29/2003
ORDER by Judge James M. Moody granting motion to extend time for the disclosure of experts [38-1]; the time in which to disclose experts is extended until 11/24/03; all other deadlines are to remain the same (cc: all counsel) (tjj) Modified on 10/30/2003
40
10/29/2003
RESPONSE by defendant to motion for extension of time
41
11/03/2003
MOTION by intervenor plaintiff Karen Lamb Kirkham to compel discovery
42
11/03/2003
BRIEF by intervenor plaintiff Karen Lamb Kirkham in support of motion to compel discovery [41-1]
43
11/13/2003
RESPONSE by defendant to motion to compel discovery [41-1]
44
11/18/2003
ORDER by Judge James M. Moody finding the motion to compel discovery [41-1] moot (cc: all counsel)
45
11/20/2003
MOTION by plaintiffs to compel defendants to answer Interrogatories and Request for Production of Documents, and to be required to pay reasonable expenses incurred in making this motion including attorney fees (bkj) Modified on 11/24/2003
46
11/20/2003
BRIEF by plaintiffs in support of motion to compel defendants to answer Interrogatories and Request for Production of Documents [45-1], motion to be required to pay reasonable expenses incurred in making this motion including attorney fees [45-2]
47
11/24/2003
STATUS REPORT by plaintiffs (bkj) Modified on 11/26/2003
48
12/02/2003
STATUS REPORT by plaintiff, defendants and intervenors I II and III
49
12/02/2003
JOINT MOTION by plaintiff, defendants and intervenors I II and III to extend time of the deposition deadline (bkj) Modified on 12/03/2003
50
12/05/2003
ORDER by Judge James M. Moody granting joint motion to for extension of the deposition deadline [49-1] until 1/12/04; all other deadlines set forth in the 7/18/03 final scheduling order are unchanged (cc: all counsel)
51
12/11/2003
MOTION by intervenor plaintiffs Pattie Deal and Carroll Deal for order compelling discovery of defendants
52
12/16/2003
AMENDED RULE 26 DISCLOSURES filed by TACC Corporation and Illinois Tool Works Inc
53
12/16/2003
RESPONSE by TACC Corporation and Illinois Tool Works to motion to compel defendants to answer Interrogatories and Request for Production of Documents [45-1]
54
12/16/2003
RESPONSE by TACC Corporation and Illinois Tool Works to motion for order compelling discovery of defendants [51-1]
55
12/19/2003
ORDER by Judge James M. Moody finding the intevenors' motion for order compelling discovery of defendants [51-1] moot; pltf's motion to compel defendants to answer Interrogatories and Request for Production of Documents [45-1] is granted in part and denied in part; the objections to providing the information sought in interrogatory No. 14 and request for production No. 8 are overruled; the objection to interrogatory No. 8 is also overruled to the extent that defts are to amend their formal responses to provide this information regardless of whether it has been provided to other parties; the objections to request for production No. 5 and interrogatory No. 13 are sustained (cc: all counsel)
56
12/22/2003
CLERK'S MINUTES: HEARING (Ph.Cf.) on defendant's motion to quash deposition subpoenas for Ryan and Peer. Ruling stated on the record. (Ct. Rep. - Carolyn Fant)
57
12/22/2003
MOTION by TACC Corporation and Illinois Tool Works to quash deposition notice and relieve Kate Ryan from the necessity of attending the deposition noticed for December 30
58
12/22/2003
MOTION by TACC Corporation and Illinois Tool Works to quash deposition notice and relieve Melissa Peer from attending the deposition notice of December 30
59
12/22/2003
MOTION by TACC Corporation and Illinois Tool Works to quash the portions of all notices that request documents identified in Exhibit A to be produced at the depositions
60
12/23/2003
RESPONSE by Carroll Deal and Karen Lamb Kirkham to motion to quash notices of deposition [57-1] (bkj) Modified on 12/31/2003
61
12/24/2003
ORDER by Judge James M. Moody denying motion to quash deposition notice of Melissa Peer to the extent that Ms. Peer may choose to appear at her scheduled deposition or she can choose to travel to Little Rock, AR at deft's expense by 1/12/04 [58-1]; the Court will defer ruling on the motion to quash deposition of Kate Ryan until such time as her availability to travel can be determined; like Ms. Peer Ms. Ryan may choose to appear at her scheduled deposition but is not required to do so [57-1]; the motion to quash portions of deposition notices requiring productions of documents by witnesses is denied in part and granted in part as stated in this order [59-1]; as stated at the 12/22/03 hearing the deadline for designation of deposition testimony to be used at trial is extended to 1/15/04; counter-designations must be made by written motion indicating the specific objection and its legal basis by noon on 1/22/04; any responses to these objections are to be filed by 5:00 PM on 1/23/04 (cc: all counsel) (tjj) Modified on 12/31/2003
62
01/05/2004
MOTION by defendants in limine that at the time of the accident neither the wrongful death statute nor the survival statute had a provision for loss of life damages and should not apply retroactively (bkj) Modified on 01/06/2004
63
01/05/2004
MOTION by defendants in limine to exclude the testimony of Intervenor Kirkham's "forensic economist" on the issue of "loss of life" damages
64
01/06/2004
PRETRIAL DISCLOSURE SHEET by intervenor plaintiff Karen Lamb Kirkham; estimated length of trial, 5 days (tjj) Modified on 01/20/2004
65
01/06/2004
PRETRIAL DISCLOSURE SHEET by plaintiff; estimated length of trial, one week (bkj) Modified on 01/20/2004
66
01/06/2004
PRETRIAL DISCLOSURE SHEET by intervenor II Carroll Deal and Pattie Deal; estimated length trial, one week (bkj) Modified on 01/20/2004
67
01/06/2004
MOTION by Pltfs Karen Caldwell and Jason Caldwell, and Intervenor I, Karen Lamb Kirkham, and Intervenors II, Carroll Deal and Pattie Deal to amend pltfs' complt and complts in intervention of Kirkham and Deals (bmt) Modified on 01/20/2004
68
01/06/2004
BRIEF by Pltfs Jason Caldwell and Karen Caldwell, and Intervenor I, Karen Lamb Kirkham, and Intervenors II, Carroll Deal and Pattie Deal in support of motion to amend pltfs' complt and complts in intervention of Kirkham and Deals [67-1] (bmt) Modified on 01/20/2004
69
01/08/2004
MOTION by plaintiffs, intervenors Kirkham and Deal to compel discovery
70
01/12/2004
MOTION by Karen Lamb Kirkham to extend time to respond to motions in limine
71
01/12/2004
MOTION by Karen Lamb Kirkham for attorney Kenneth L Connor to appear pro hac vice
72
01/12/2004
MOTION by intervenor plaintiff Karen Lamb Kirkham in limine to exclude any reference to, or evidence of Karen Lamb Kirkham's remarriage
73
01/12/2004
BRIEF by Karen Lamb Kirkham in support of motion in limine to exclude any reference to, or evidence of Karen Lamb Kirkham's remarriage [72-1]
74
01/12/2004
MOTION by intervenor plaintiff Karen Lamb Kirkham in limine to exclude OSHA report
75
01/12/2004
BRIEF by intervenor plaintiff Karen Lamb Kirkham in support of motion in limine to exclude OSHA report [74-1]
76
01/12/2004
MOTION by plaintiffs in limine regarding the investigation, proposed fines, settlement, and written reports of OSHA relating to the explosion that caused the claimants' injuries and death
77
01/12/2004
BRIEF by plaintiffs in support of motion in limine regarding the investigation, proposed fines, settlement, and written reports of OSHA relating to the explosion that caused the claimants' injuries and death [76-1] (bkj) Modified on 01/13/2004
78
01/12/2004
MOTION by Carroll Deal, Pattie Deal in limine to evidence of collateral sources
79
01/13/2004
PRETRIAL DISCLOSURE SHEET by defendant; estimated length of trial, five days
80
01/14/2004
MOTION by Carroll Deal and Pattie Deal to disqualify witness, and for relief of cost and fees
81
01/14/2004
ORDER by Judge James M. Moody granting motion to extend time to respond to motions in limine [70-1] until 1/14/04 [63-1] [62-1] (cc: all counsel)
82
01/14/2004
MOTION by Karen Lamb Kirkham to compel discovery
83
01/14/2004
RESPONSE by Karen Lamb Kirkham to motion in limine as to Ark. Code Ann. 16-62-101(b) [62-1]
84
01/14/2004
RESPONSE by Karen Lamb Kirkham to motion in limine to exclude the testimony of Intervenor Kirkham's "forensic economist" on the issue of "loss of life" damages [63-1]
85
01/15/2004
ORDER by Judge James M. Moody granting motion for attorney Kenneth L Connor to appear pro hac vice [71-1] (cc: all counsel) (tjj) Modified on 01/20/2004
86
01/15/2004
RESPONSE by defendants to motion to amend pltfs' complt and complts in intervention of Kirkham and Deals [67-1] (bmt) Modified on 01/28/2004
87
01/16/2004
MOTION by plaintiffs and intervenors to extend the deadlines for trial briefs, stipulation, jury instructions and statement of case (bkj) Modified on 01/16/2004
88
01/16/2004
RESPONSE by intervenor plaintiff Fremont Indemnity to motion in limine to evidence of collateral sources and/or any materials developed by OSHA in the course of its post-accident investigation [78-1]
89
01/20/2004
ORDER (DOC) granting motion to extend the deadlines to submit trial briefs, stipulation, jury instructions and statement of case [87-1] to after the hearing scheduled on 1/20/04, or until further order of the Court (cc: all counsel)
90
01/20/2004
CLERK'S MINUTES: HEARING on motions (Docs. No. 62, 63 and 67) held before Judge James M. Moody. Court's rulings stated on the record. (Ct. Rep. -- Carolyn Fant)
91
01/20/2004
ORDER (DOC) referring the case to Mag. Judge Ray to schedule and conduct a settlement conference; a separate order setting forth details of the conference will be issued by Judge Ray forthwith (cc: all counsel)
92
01/26/2004
NOTICE (DOC) this case is set for a settlement conference before Magistrate Judge Ray on 3/16/04 at 10:00 AM in Little Rock; counsel are reminded to have a party with full authority to settle at the hearing (cc: all counsel)
93
01/26/2004
RESPONSE by Jason Caldwell, Karen Caldwell, Carroll Deal and Pattie Deal to response to motion for leave to be excuse from the additional pre-trial deadlines [88-1]
94
01/26/2004
MOTION by Jason Caldwell, Karen Caldwell, Carroll Deal and Pattie Deal to approve settlement and authorize distribution of settlement funds
95
01/28/2004
RESPONSE by defendants to motion to disqualify witness [80-1]
96
01/28/2004
RESPONSE by defendants to motion in limine regarding the investigation, proposed fines, settlement, and written reports of OSHA relating to the explosion that caused the claimants' injuries and death [76-1]
97
01/28/2004
RESPONSE by defendants to motion in limine to evidence of collateral sources [78-1]
98
01/28/2004
RESPONSE by defendant to motion in limine to exclude OSHA report [74-1]
99
01/28/2004
BRIEF by defendants in support of motion response to exclude OSHA report [98-1]
100
01/28/2004
RESPONSE by defendants to motion in limine to exclude any reference to, or evidence of Karen Lamb Kirkham's remarriage [72-1]
101
01/28/2004
BRIEF by defendants in support of response to motion in limine to exclude evidence of Kirkham's remarriage [100-1]
102
01/28/2004
RESPONSE by TACC Corporation and Illinois Tool Works to motion to compel discovery [69-1]
103
01/28/2004
RESPONSE by defendants to motion to compel discovery [82-1]
104
01/29/2004
RESPONSE by TACC Corporation and Illinois Tool Works to motion to approve settlement and authorize distribution of settlement funds [94-1]
105
01/29/2004
ORDER (DOC) setting deft's motion to approve settlement and authorize distribution of settlement funds [94-1] for a hearing to be held at 1:30 PM on 2/12/04 in Little Rock (cc: all counsel) (tjj) Modified on 02/13/2004
106
02/02/2004
RESPONSE by Fremont Indemnity to motion to approve settlement and authorize distribution of settlement funds [94-1]
107
02/03/2004
REPLY by Karen Lamb Kirkham to response to motion in limine to exclude OSHA report [74-1]
108
02/05/2004
REPLY by Carroll Deal and Pattie Deal to response to motion for leave to be excuse from the additional pre-trial deadlines [88-1]
109
02/11/2004
MOTION by Fremont Compensation to include necessary party
110
02/11/2004
BRIEF by Fremont Compensation in support of motion to include necessary party [109-1]
111
02/13/2004
ORDER (DOC) the hearing scheduled for this date on deft's motion to approve settlement and authorize distribution of settlement funds is continued until 1:15 PM on Friday, 3/5/04 in Little Rock at which time testimony and argument will be heard before final resolution of the motion (cc: all counsel)
112
02/12/2004
MOTION by Arkansas Property to intervene
113
02/12/2004
BRIEF by Arkansas Property in support of motion to intervene [112-1]
114
02/17/2004
ORDER by Judge James M. Moody granting motion to intervene by Arkansas Property & Casualty Insurance Guaranty Fund as Intervenor IV [112-1]; the motion of Fremont Compensation Ins Co to include necessary party is withdrawn [109-1] (cc: all counsel) (bmt) Modified on 02/18/2004
115
02/18/2004
AMENDED FINAL SCHEDULING ORDER (DOC); jury trial is reset for 9:15 5/24/04 before Judge James M. Moody in Pine Bluff; discovery due 3/25/04; status report due 3/25/04; pretrial info sheet due 5/4/04 (cc: all counsel)
116
02/20/2004
RESPONSE by Karen Caldwell, Jason Caldwell, Carroll Deal and Pattie Deal to motion to intervene of Arkansas Property and Casualty Guaranty Fund (bkj) Modified on 02/26/2004
117
02/20/2004
SUPPLEMENTAL RESPONSE by Fremont Indemnity and Arkansas Property to motion to approve settlement and authorize distribution of settlement funds [94-1]
118
02/20/2004
BRIEF by Fremont Indemnity and Arkansas Property in support of motion response [117-1]
119
03/04/2004
ORDER by Judge James M. Moody finding the motion to quash deposition notice and relieve Kate Ryan from the necessity of attending the deposition noticed for December 30 [57-1] moot (cc: all counsel)
120
03/04/2004
ORDER by Judge James M. Moody granting motion to amend pltfs' complt and complts in intervention of Kirkham and Deals [67-1] (cc: all counsel)
121
03/05/2004
CLERK'S MINUTES: HEARING on Motions to approve settlement and for authorization of distribution of funds by plaintiffs Caldwell and Deal held before Judge James M. Moody. At close of proof by all parties the Court takes the motions under advisement. Parties directed to file briefs on loss of consortium issue by 3/10/04. (Ct. Rep. -- Elaine Hinson)
122
03/15/2004
ORDER by Judge James M. Moody Intervenor I's motion in limine to exclude any reference to or evidence of Karen Lamb Kirkham's remarriage is denied in part and granted in part [72-1]; Intervenor I's motion in limine to exclude Occupational Safety and Health Administration (OSHA) report is denied in part and granted in part [74-1]; pltf's motion in limine which also seeks to exclude evidence of the OSHA report is denied in part and granted in part [76-1]; and Intervenors II's motion to disqualify witness and for other relief is denied in part and granted in part [80-1] (cc: all counsel)
123
03/16/2004
CLERK'S MINUTES: The parties appeared before U. S. Magistrate Judge J. Thomas Ray for a Settlement Conference. The parties reached a settlement with the contents of the settlement agreement read into the record and sealed. Plf-Brian G. Brooks. Dft-Donald H. Bacon. ERO-Kathy Swanson.
124
03/17/2004
ORDER by Mag. Judge J. T. Ray that parties have reached a settlement following a conference before Mag Judge J. Thomas Ray; pursuant to the confidentiality agreement, which has been made part of the settlement, the tape recording setting forth the terms of the settlement will remain under seal (cc: all counsel)
125
03/24/2004
UNDER SEAL ORDER by Judge James M. Moody regarding motion to approve settlement and authorize distribution of settlement funds [94-1] (cc: all counsel)
126
04/01/2004
MOTION by Fremont Indemnity and Arkansas Property to amend judgment
127
04/01/2004
BRIEF by Fremont Indemnity and Arkansas Property in support of motion to amend judgment [126-1]
128
03/31/2004
MOTION by Karen Lamb Kirkham to approve settlement and authorize distribution of settlement funds
129
04/05/2004
RESPONSE by Fremont Indemnity and Arkansas Property to motion to approve settlement and authorize distribution of settlement funds [128-1]
130
04/05/2004
BRIEF by Fremont Indemnity and Arkansas Property in support of motion response [129-1]
131
04/12/2004
RESPONSE by plaintiffs to motion to amend judgment [126-1]
132
04/12/2004
BRIEF by plaintiff in support of motion response to amend judgment [131-1]
133
04/20/2004
REPLY by Fremont Indemnity and Arkansas Property to response to motion to amend judgment [126-1]
134
04/23/2004
NOTICE of appeal by Fremont Indemnity, Arkansas Property from District Court decision [125-1] (fees paid) (2 certified copies to Clerk 8USCA), (cc: counsel)
135
05/06/2004
MOTION by Karen Lamb Kirkham for summary judgment
136
05/06/2004
BRIEF by Karen Lamb Kirkham in support of motion for summary judgment [135-1]
137
05/06/2004
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE (Local Rule 56.1) by Karen Lamb Kirkham in support of motion for summary judgment [135-1]
05/17/2004
DOCKETING LETTER: 8 USCA Number 04-2090; counsel to proceed on appendix (Text entry; no document attached.)
138
05/17/2004
CROSSCLAIM for Summary Judgment by Fremont Indemnity, Arkansas Property against Karen Lamb Kirkham
139
05/17/2004
BRIEF by Fremont Compensation, Arkansas Property in support of motion response [138-1], crossclaim for summary judgment [138-1]
140
05/17/2004
STATEMENT OF FACTS in Dispute (Local Rule 56.1) by Fremont Indemnity, Arkansas Property in support of motion response [138-1], in support of crossclaim for summary judgment [138-1]
141
06/17/2004
ORDER (DOC) setting motion to approve settlement and authorize distribution of settlement funds [128-1] In-court hearing 9:00 8/16/04 in Little Rock (cc: all counsel)
142
06/24/2004
MOTION by plaintiff to stay Judge's ruling on motion to approve settlement and disbursement of settlement funds
143
06/25/2004
ORDER by Judge James M. Moody granting motion to stay Judge's ruling on motion to approve settlement and disbursement of settlement funds [142-1] ; Status report on the pending joint petition settlement & motion to approve 3rd party settlement is due 8/2/04 (cc: all counsel)
144
07/26/2004
SUPPLEMENTAL BRIEF by intervenor pltf Karen Lamb Kirkham in support of motion for summary judgment [135-1]
145
07/26/2004
SUPPLEMENTAL STATEMENT OF MATERIAL FACTS NOT IN DISPUTE by intervenor pltf Karen Lamb Kirkham in support of motion for summary judgment [135-1] (rjh) Modified on 07/28/2004
146
08/09/2004
SUPPLEMENTAL BRIEF by Fremont Indemnity, Arkansas Property in support of motion response [138-1], crossclaim [138-1], [139-1]
147
08/09/2004
SUPPLEMENTAL STATEMENT OF FACTS (Local Rule 56.1) by Fremont Indemnity, Arkansas Property
148
08/16/2004
CLERK'S MINUTES: HEARING on motions held before Judge James M. Moody. Plaintiff presents proof on "Made Whole" issue; Court takes under advisement. Parties directed to submit briefs by 8/20/04. (Ct. Rep. -- Carolyn Fant)
149
08/13/2004
ORDER (UNDER SEAL) by Judge James M. Moody granting in part and denying in part motion to amend judgment [126-1] (cc: all counsel)
150
08/16/2004
STIPULATION by the parties Karen Lamb Kirkham, Fremont Compensation Ins Co, and Arkansas Property to the made-whole hrg
151
08/24/2004
SUPPLEMENTAL BRIEF filed by intervenor Karen Lamb Kirkham to made-whole hearing
08/25/2004
DOCKET NOTE: sealed documents #125 & 149 returned to Pine Bluff office (Text entry; no document attached.)
152
08/30/2004
ORDER (UNDER SEAL) by Judge James M. Moody granting motion to approve settlement and authorize distribution of settlement funds [128-1] (cc: all counsel)
08/31/2004
DOCKET NOTE: sealed doc #152 forwarded to Pine Bluff office (Text entry; no document attached.)
153
08/31/2004
STIPULATION FOR DISMISSAL with prejudice of claims of Plaintiffs and of Intervenors III and IV as to Plaintiffs
154
09/10/2004
ORDER by Judge James M. Moody based on the stipulation for dismissal the claims of the plaintiffs and claims of Intervenor III and Intervenor IV as they relate to the plaintiffs, and all claims, demands, and causes of action that were or could have been asserted in this action by these parties, are hereby dismissed with prejudice. Intervenor III's and Intervenor IV'S claims as they relate to Intervenor I and Intervenor II are not dismissed by this Order. [153-1] (cc: all counsel)
155
09/13/2004
ORDER by Judge James M. Moody, based upon the stipulation of dismissal with prejudice, all claims, demands, and causes of action that were or could have been asserted by plaintiffs against defendants are dismissed with prejudice and all claims, demands and causes of action that were or could have been asserted by intervenors III and intervenors IV against the plaintiffs and defendants are dismissed with prejudice in accordance with the joint petition order and order approving third party settlement entered by the Ark Workers' Compensation Commission on 7/15/04 terminating case (cc: all counsel)
156
09/16/2004
NOTICE of appeal by intervenor plaintiff Fremont Indemnity, intervenor plaintiff Arkansas Property from District Court decision [152-1]i (fees paid)
09/27/2004
DOCKET NOTE: 2 certified copies of appeal packet forwarded to Clerk USCA8 (Text entry; no document attached.)
10/19/2004
DOCKETING LETTER: 8 USCA Number 04-3404; appeal is consolidated with 04-2090 (Text entry; no document attached.)
157
11/10/2004
TRANSCRIPT (1 volume) of proceedings for the following date: 3/5/04 motions hearing ([156-1], [134-1])
158
11/10/2004
TRANSCRIPT (1 volume) of proceedings for the following date: 8/17/04 Made Whole Hearing ([156-1], [134-1])
11/12/2004
DOCKET NOTE: transcripts (2 vols); Intervenor Deal's exhibits 1, 3-6; and Freemont Comp Ins intervenors III and Ark Proberty & Casuality intervenors IV exhibits 4-6 forwarded to 8USCA (Text entry; no document attached.)
159
10/03/2005
MANDATE of USCA as to 134 Notice of Appeal filed by Fremont Indemnity Company Arkansas Property and Casualty Guaranty Fund 156 Notice of Appeal filed by Fremont Indemnity Company Arkansas Property and Casualty Guaranty Fund, judgment of the district court is affirmed in accordance with the opinion of this Court (Attachment: # 1 Opinion)(dac)
10/04/2005
Appeal Remark re 134 Notice of Appeal, 156 Notice of Appeal: 4 volumes of original files returned to Pine Bluff Office with sealed document #152 (dac) (Text entry; no document attached.)
10/04/2005
Appeal Remark re 134 Notice of Appeal, 156 Notice of Appeal: 2 volumes transcripts & exhibits remain in USCA8 (Text entry; no document attached.)
160
10/31/2005
Appeal Remark re 134 156 Notice of Appeal: 2 volumes transcripts and exhibits returned from USCA8 (dac)
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