Case No.: 1:12-CV-00596

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LUELLA C. PEHLKE, Individually and as )

Special Administrator of the Estate of )

FRANK PEHLKE, JR., Deceased, )

)

Plaintiff, )

)

v. ) Case No. 1:12-cv-00596

) 

CBS CORPORATION, et al., )

)

Defendants.

CBS CORPORATION’S MOTION TO EXCLUDE PLAINTIFF’S REFERENCE TO 

AND RELIANCE UPON “SQUARE D ARC CHUTE BLOW-OUT STUDY”

PREPARED BY MAS, LLC, OR IN THE ALTERNATIVE, 

TO ALLOW TESTIMONY OF DR. LONGO 

NOW COMES Defendant, CBS Corporation, a Delaware Corporation, f/k/a Viacom Inc., 

successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse 

Electric Corporation (hereinafter “CBS Corporation”), by and through is attorneys, Foley & 

Mansfield, P.L.L.P., and respectfully requests that this Court bar Plaintiff from making any 

reference to or allowing her experts to rely upon the document entitled “Square D Arc Chute 

Blow-Out Study” prepared by MAS, Inc. In the alterative, CBS Corporation requests that this 

Court permit Dr. William Longo to testify in rebuttal of this evidence. 

During the hearing on Thursday, Sept. 1, 2016, on Defendant CBS Corporation’s Motion 

In Limine to Bar Plaintiff’s Expert, Kenneth Garza, counsel for Plaintiff proffered an exhibit not 

previously disclosed as a document on which Mr. Garza might rely: “Square D Arc Chute BlowOut Study” prepared by Mike Mount of MAS, LLC, dated April, 2010. It is one of the 

“unpublished literature” documents upon which Mr. Garza relied in expressing his opinions in 

that hearing. See “Square D Arc Chute Blow-Out Study,” marked as Plaintiffs’ Exhibit 20 during 

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Case No.: 1:12-CV-00596

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that hearing, and attached hereto as Exhibit A. This document was not disclosed as Reliance 

Material by Mr. Garza in his previous reports of record in this case. See the four Garza reports, 

dated 10/12/2011, 10/19/2015, 11/1/2015 and 4/1/2016, attached as Exhibit B.

Pursuant to an Agreement of Counsel, each side disclosed which “unpublished reports or 

documents” it expected to use in this Hearing. No disclosure was ever made by Plaintiff that this 

study was one upon which Mr. Garza would rely. As a consequence, CBS Corporation was 

prejudiced, in that it was not given notice and was not prepared to substantively cross examine 

Mr. Garza about this unpublished hearsay study. 

Defendant CBS Corporation requests this Court exclude this document from use at trial, 

and that Mr. Garza be excluded from using and relying upon this document in his testimony and 

opinions; or, in the alternative, that CBS Corporation be allowed to call an additional witness, 

Dr. William Longo of MAS LLC, under whose supervision it was prepared, to address the 

propriety and scientific validity of using the study for the purposes sought by Plaintiff and Mr. 

Garza. CBS Corporation has prepared a brief disclosure of Dr. Longo for that purpose, which is 

contained in its Pre-Trial Witness List. 

Respectfully submitted,

FOLEY & MANSFIELD, P.L.L.P.

/s/ William C. Foote

William C. Foote #6199467

wfoote@foleymansfield.com 

101 S. Hanley Road, Suite 600

St. Louis, MO 63105

Tel: (314) 925-5700

Fax: (314) 925-5701

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Lawrence D. Wilson

LDWilson@ewhlaw.com

William Harvard

WHarvard@ewhlaw.com

Evert Weathersby Houff

3455 Peachtree Road NE, Suite 1550

Atlanta, GA 30326

Tel: (678) 651-1200

Fax: (678) 651-1201

 Attorneys for Defendant CBS

 Corporation, a Delaware corporation, 

 f/k/a Viacom Inc., successor by merger to

 CBS Corporation, a Pennsylvania

 corporation, f/k/a Westinghouse Electric

 Corporation

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was filed electronically with the 

Clerk of the Court using the CM/ECF system and is available for viewing and downloading from 

the CM/ECF system. The forgoing documents was served upon all counsel of record via the 

CM/ECF system on this 9

th day of September, 2016. 

/s/ William C. Foote

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