CASE NO. 1:12-CV-00596

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LUELLA C. PEHLKE, individually and as )

Special Administrator of the Estate of )

FRANK PEHLKE, JR., Deceased, )

)

Plaintiff, ) CASE NO. 1:12-CV-00596

)

V. ) Honorable Virginia M. Kendall

)

A. O. SMITH CORPORATION, et al., )

)

Defendants. )

DEFENDANT CBS CORPORATION’S MOTION IN LIMINE 

TO BAR EVIDENCE OF POST-SALE MANUFACTURING OF PRODUCTS

MOTION IN LIMINE #7

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 (“Westinghouse”), by and through its attorneys, Foley & Mansfield, PLLP, moves 

this Court for an order in limine barring Plaintiff from arguing that Westinghouse manufactured 

additional equipment that may have contained asbestos after its equipment was delivered to 

Decedent’s employer(s) and/or worksites. Such information is irrelevant, prejudicial, and 

confusing. As such, Westinghouse seeks to bar references to the same during voir dire, opening 

statements, trial, and closing arguments. In support, Westinghouse states as follows: 

ARGUMENT

Evidence that Westinghouse manufactured additional equipment that may have contained 

asbestos after its equipment was sold and/or delivered to Decedent’s employer and/or work sites 

is irrelevant. The issue in this case is whether Westinghouse branded equipment sold and 

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delivered at a specific point in time caused Decedent’s alleged injuries, and whether 

Westinghouse is legally liable to Plaintiff for damages associated with such injuries. Plaintiff 

alleges that Westinghouse caused injuries to Decedent because Westinghouse failed to warn of 

the dangers of asbestos. The proper focus here is on what was known or done at the time the 

particular items of equipment at issue were sold. Thus, arguments based on evidence that 

Westinghouse branded equipment continued to be manufactured and supplied are completely 

irrelevant.

For example, Plaintiff alleges that Westinghouse knew that Westinghouse branded 

equipment was dangerous. This theory necessarily focuses only on knowledge at the time of the 

sale of equipment at issue. The law is clear that any knowledge that Westinghouse may have 

obtained later in time is irrelevant. See In Dillon v. U.S. Steel Corp., 159 Ill. App. 3d 186, 511 

N.E.2d 1349 (Ill. Ct. App. 1st Dist. 1987); see also Litton Sys., Inc. v. Am. Tel. & Tel Co., 700 

F2d 785, 819 (2d Cir. 1983); Julander v. Ford Motor Co., 488 F.2d 839, 845-46 (10th Cir. 

1973). Thus, any Westinghouse branded equipment manufactured or sold after the equipment at 

issue in this case is irrelevant to establish knowledge of the alleged hazards or danger at the time 

of sale of the equipment at issue.

Similarly, evidence that Westinghouse manufactured equipment does not establish that 

Westinghouse had a post-sale duty to warn. See Modelski v. Navistar Int’l Transp. Corp., 302 Ill. 

App. 3d 879, 888, 707 N.E.2d 239, 246 (Ill. Ct. App. 1st Dist. 1999); Collins v. Hyster Co., 174 

Ill. App. 3d 972, 977, 529 N.E.2d 303 (Ill. Ct. App. 3d Dist. 1988). Instead, arguments regarding 

the post-sale manufacture or distribution of Westinghouse branded equipment will do no more 

than impermissibly confuse the jury and prejudice Westinghouse. The jury may improperly 

conclude that Westinghouse had a continuing duty to warn. Similarly, the jury may 

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impermissibly conclude that Westinghouse knew of potential hazards of asbestos at an earlier 

point in time. Thus, it is completely irrelevant, prejudicial, and confusing to argue that 

Westinghouse branded equipment was manufactured after products were sold to Decedent’s

employer and/or work sites.

CONCLUSION

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 respectfully requests that the Court enter an order in limine barring Plaintiff from 

arguing or presenting evidence or testimony that Westinghouse manufactured additional 

equipment that may have contained asbestos after it sold and/or delivered equipment to 

Decedent’s employer and/or work sites. Westinghouse seeks to bar references to the same during 

voir dire, opening statements, trial, and closing arguments.

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

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

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 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 9th day of September, 2016. 

/s/ William C. Foote

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CASE NO. 1:12-CV-00596

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LUELLA C. PEHLKE, individually and as )

Special Administrator of the Estate of )

FRANK PEHLKE, JR., Deceased, )

)

Plaintiff, ) CASE NO. 1:12-CV-00596

)

V. ) Honorable Virginia M. Kendall

)

A. O. SMITH CORPORATION, et al., )

)

Defendants. )

ORDER FOR MOTION IN LIMINE #7

THIS CAUSE coming on to be heard pursuant to the Defendant’s Motion in Limine 

barring Plaintiff from arguing or presenting evidence or testimony that Westinghouse, its 

branded equipment was sold and/or delivered to Plaintiff’s employer and/or work site, 

manufactured additional equipment that may have contained asbestos and references same 

during voir dire, opening statements, trial and closing arguments.

IT IS HEREBY ORDERED that Defendant’s Motion is GRANTED.

, 2016

DATE:

JUDGE

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