Lawyers are gearing up for trial in the first firefighting foam lawsuit. One of the keys to winning a jury trial is controlling what evidence the jury sees. Parties file motions in limine to exclude evidence. It should be noted, that the AFFF firefighting foam class action has been divided into two different types of cases: (1) personal injury cases, and (2) water contamination cases. The personal injury cases are filed by individuals who allege that exposure to AFFF caused them to develop cancer. The water contamination cases are being filed by local municipal governments who claim that their water systems were contaminated by AFFF. The upcoming trial is in the case of City of Stuart v. 3M Co., et al., which is a water contamination case.
A motion in limine is a pretrial motion made by one party requesting that the court rule on the admissibility of evidence before the evidence is presented at trial. These motions are often made to exclude evidence the court will agree is irrelevant, prejudicial, or otherwise inadmissible at trial. By making a motion in limine, parties in the AFFF litigation can avoid the jury seeing some of that evidence when it is presented.
Understanding what the AFFF defendants are trying to keep out of evidence is instructive of the issues that matter in this trial. The AFFF defendants have sought to exclude evidence that the sky is blue, so we will not go through every piece of evidence that the defendants seek to exclude. But this page will summarize some more interesting AFFF evidence that defendant jurors never see.
The defendants have filed two motions in court. The first motion seeks to exclude evidence regarding the EPA’s proposed national drinking water standard and related public statements. The defendants argue the proposed regulation is irrelevant and risks misleading the jury. The second motion seeks to exclude evidence regarding the location, number, or cost of the defendant’s attorneys and the presence, absence, or identity of a corporate representative at trial. The defendants argue that such evidence is irrelevant and unfairly prejudicial to the case.
Motion 1: Preclude Evidence Regarding EPA’s Proposed Drinking Water Standard and Related Public Statements
The defendants argue that evidence related to the EPA’s proposed national drinking water standard should be excluded from the trial. They claim that the proposed regulation is not yet finalized and may still undergo substantial revisions or may not be adopted at all. The defendants also contend that the proposed regulation presents a risk of misleading the jury and confusing the issues because it postdates the conduct in the case by years or decades.
According to the defendants, evidence about the proposed drinking water standard and all public statements regarding its potential benefits to public health should be excluded. The defendants argue that the EPA’s press release and other public statements, which tout the proposed regulation’s potential impact on public health, should also be barred from the trial.
The defendants understandably what to keep out evidence of the government’s thinking on what safe water is. But it seems pretty relevant. Why shouldn’t the jury know the EPA’s thought process and the potential risks associated with PFAS? The proposed regulation is a public document that can be explained to the jury clearly and concisely. Yes, the proposed regulation postdates the conduct at issue, but it provides essential context and insight into the risks associated with PFAS and that it is not just plaintiffs’ experts taking these positions.
Motion 2: Preclude Evidence Regarding the Location, Number, or Cost of Attorneys and Corporate Representatives
The defendants argue that evidence related to their attorneys’ location, number, or cost and the presence, absence, or identity of a corporate representative at trial should be precluded. They argue that such evidence is irrelevant and would needlessly inject the lawyers into the factual fabric of the case.
The defendants contend this evidence should also be excluded as unfairly prejudicial and likely to confuse the jury. They assert that allowing the plaintiff to suggest that the defendants have retained numerous, expensive out-of-state attorneys with significant legal resources (or more resources than the plaintiff’s attorneys) would invite jurors to assign liability based on out-of-state bias or the implication that the defendants can afford to pay a large judgment.
This one is unimportant, but we are including it because it is funny. The defendants will spend a gazillion dollars defending this case, and as obvious as this will be to jurors, they would rather not talk about it.
Motion 3: Motion in Limine Regarding Bellwether Trial, MDL/PFAS-Related Cases, and Alleged PFAS Contamination Outside of City of Stuart
The defendants want to exclude evidence concerning the significance of the case as a “bellwether,” the number of lawsuits in the MDL or PFAS-related cases, and alleged PFAS contamination outside the City of Stuart. They argue that this evidence is irrelevant and unfairly prejudicial. They assert that evidence of the case’s significance as a bellwether trial, the number of suits in the MDL, and alleged PFAS contamination outside of Stuart lack relevance and would unduly prejudice the defendants. Additionally, they claim that evidence concerning the detection of PFAS in people, animals, and places worldwide is irrelevant and would invite the jury to impose damages for alleged contamination not at issue in this case. They argue that such evidence would be highly prejudicial and should be excluded under Federal Rules of Evidence 401 and 403.
The jury probably should not be told that this is the first bellwether trial and the number of AFFF lawsuits pending in the MDL. Fair enough. But the evidence of the number of affected water systems does not suggest that the defendants are serial tortfeasors. But it does show the extent of PFAS contamination in bodies of water outside the City of Stuart does show the extent of the defendant’s knowledge of the risks associated with PFAS and their failure to warn the public. The same holds for the harm done to plants and animals. The defendants do not want the jury to see this evidence in context.
Motion 5: Excluding the Use of “Forever Chemicals” to Refer to PFAS in Trial Proceedings
The term “forever chemicals” used to describe PFAS compounds is a popular label coined by media outlets to emphasize their potential hazards. The Defendants argue that this phrase is misleading, inflammatory, and unnecessary for a fact-based discussion and request that the court prohibits its use during the trial. So defendants assert that the phrase suggests that PFAS compounds are uniquely persistent, while other compounds can persist for long periods unless destroyed or removed. Additionally, the term is inconsistent with the plaintiff’s theory of the case that maintains that PFAS breaks down into other persistent compounds. The Defendants argue that the phrase is likely to inflame the jury and conjure up images of an infinitely long-lasting menace. Therefore, the exclusion of the use of the phrase is appropriate to prevent the use of inflammatory and pejorative labels at trial.
Please. Scientists use this term, too. Why? Because they are forever chemicals. Prejudice is not defined as inculpatory.
Motion 6: Excluding Reptile Arguments
The court should not allow certain types of arguments in a lawsuit, including “golden rule” arguments that encourage jurors to place themselves in the position of the plaintiff and “reptile theory” arguments that suggest that the defendant’s conduct threatens the safety of jurors and their families. Inflammatory and unfairly prejudicial characterizations of the defendant or their alleged conduct should also be prohibited. These arguments intentionally mislead the jury, confuse the issues, and unfairly prejudice the defendants.
The defendants throw in an argument that witnesses should be prohibited from making inflammatory and prejudicial characterizations of the Defendants or their conduct, such as referring to Defendants’ products as “poison” or a “witch’s brew” and comparing the defendants or the Firefighting Foam Coalition to cartels, which is something the plaintiffs’ lawyers did in discovery.
The reptile theory is a legal strategy trial lawyers use to appeal to jurors’ innate sense of self-preservation and danger to win a case. The theory posits that humans have a “reptilian” part of the brain responsible for instinctual responses to perceived threats, such as fear, anger, and aggression. By framing the defendant’s actions as a threat to the community, the plaintiff’s lawyers can tap into jurors’ primal instincts and emotions and convince them to award substantial damages to deter future dangerous conduct by the defendant.
What lawyers cannot do at trial is ask jurors to put themselves in the plaintiff’s shoes and decide the case based on how they would want to be treated if they were in the same situation. This is called the Golden Rule. For example, a plaintiff’s attorney might say, “Imagine if you were injured in a car accident caused by the defendant’s negligence. How would you want to be compensated for your pain and suffering?” This type of argument is considered improper because it encourages the jurors to view the case from a subjective, self-interested standpoint of a litigant rather than as dispassionate and impartial decision-makers.
This is not really a motion that can be granted. It is just giving the court a heads-up that defendants will fight any efforts to backdoor the golden rule.
Plaintiffs’ Motions in Limine
Plaintiffs have also filed motions in limine. We will not do the same deep dive, but let’s look at some evidence plaintiffs seek to exclude.
The motion in limine seeks to prohibit defense counsel from engaging in prejudicial litigation conduct during the trial. The motion identifies several areas where such conduct might occur and requests that the court prohibit certain types of evidence, testimony, and argument.
First, the motion argues that defense counsel should be barred from referring to defendants as “we,” “us,” and/or “our.” Such statements are irrelevant, inaccurate, and prejudicial. They suggest that counsel for the defendants have personal knowledge of the facts and imply that the attorneys are parties to the litigation. This language encourages the jury to base its decisions on factors other than the law and evidence. I know a public defender who would drink from the same cup as a defendant to show he was not a monster. This is a very different version of the same idea.
Efforts to Overly Personalize Defense Lawyers
Plaintiff argues that defense counsel should not be permitted to raise needless, irrelevant, and potentially prejudicial facts relating to aspects of their personal backgrounds. Such references would encourage the jury to base its decision on factors other than the law and evidence and have no probative value. Plaintiffs’ lawyers agree this rule applies to them, too. Plaintiffs also want to push back on defense counsel going over the top in expressing sympathy for the plaintiff during the trial. The argument is that such expressions would unduly prejudice plaintiffs and only diminish the defendants’ culpability while encouraging the jury to base its decisions on factors other than the law and the evidence.
Lawyers and Employees Using AFFF Products
Plaintiff argues that the court should exclude all testimony, evidence, and/or attorney commentary about the use of AFFF products by the defendants’ attorneys, employees, family members, and/or anyone other than the plaintiff. The court should also exclude all testimony and argument about witnesses, attorneys, and/or their family members and friends drinking PFAS-contaminated water. Such references are irrelevant and unfairly prejudicial, as they downplay the risks of AFFF and PFAS-contaminated water and give the false impression that the defendants’ products pose no substantial harm and/or threat to human health.
Putting the Lawyers on Trial
This is the mirror image of the “don’t talk about how many lawyers we have” motion the defendants filed. The plaintiff argues that evidence concerning the training and education available to the plaintiff’s attorneys, including Mass Torts Made Perfect (MTMP), the American Association for Justice (AAJ), The Reptile, and the Jerry Spence Trial College, is irrelevant and inadmissible. Such evidence is calculated to do nothing more than inflame the jurors and play on their biases and would be highly and unfairly prejudicial to the plaintiff. Plaintiff also seeks to exclude any talk of the circumstances leading to the plaintiff’s choice of attorneys and any advertising by the plaintiff’s attorneys.