IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

Luella C. Pehlke ) 

 ) 

 Plaintiff, ) No. 12 C 596 

 ) 

 v. ) Judge Virginia M. Kendall 

 ) 

A.O. Smith Corporation, et al ) 

 ) 

 ) 

 Defendants. ) 

ORDER 

For the reasons set forth below, the Court grants Plaintiff Luella Pehlke’s motion to limit 

motions in limine and Daubert motions to non-dispositive. (Dkt. No. 42.) The parties may file 

both in limine and Daubert motions, but are barred from filing such motions if the effect of those 

motions, if granted, would be case dispositive. 

STATEMENT 

Luella Pehlke, widow and special administrator of the estate of Frank Pehlke Jr., brought this 

action in January 2012 against the Defendants asserting claims sounding in products liability, 

civil conspiracy, wrongful death, and loss of consortium stemming out of her husband’s death 

allegedly caused by exposure to asbestos. (Dkt. No. 1.) The action was subsequently transferred 

to the MDL 875 in the Eastern District of Pennsylvania (“MDL court”) by the Multidistrict 

Litigation Panel (“MDL Panel”) on March 20, 2012. (Dkt. No. 15.) The MDL court issued two 

relevant orders regarding the filing of dispositive and non-dispositive motions. First, on July 18, 

2012, Magistrate Judge David Strawbridge, who was presiding over the consolidated cases, 

ordered that “any party who believes that any particular case presents a limine issue that would 

have a case dispositive effect, must present such issue to the Court as a motion for summary 

judgment.” (Dkt. No. 42-2 at 2 (emphasis in original).) Second, on August 2, 2012, Judge 

Strawbridge ordered that this case “shall be governed by the Second Amended Case 

Management and Scheduling Order for CVLO-7, dated April 11, 2012.” (Dkt. No. 42-3.) The 

April 2012 Scheduling Order provided that “[a]ny dispositive motions (including any dispositive 

in limine claims) must be filed by: January 4, 2013.” (See Dkt. No. 42-4 at 1.) The action was 

transferred back to this Court on April 27, 2015. (Dkt. No. 24.) 

Pehlke contends that this Court, consistent with the MDL court’s determinations, should limit all 

anticipated in limine and Daubert motions to non-dispositive issues. (Dkt. No. 42.) Defendants 

argue that because such motions are not dispositive motions, they do not violate the April 2012 

Scheduling Order and therefore should not be barred. (Dkt. No. 46 at 1-2.) Daubert and in 

limine motions are not per se dispositive motions in that they, unlike summary judgment motions 

Case: 1:12-cv-00596 Document #: 55 Filed: 06/08/16 Page 1 of 3 PageID #:636
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for example, do not typically resolve a party’s claim or defense in its entirety. See, e.g., Sys. 

Dev. Integration, LLC v. Computer Scis. Corp., No. 09-CV-4008, 2012 WL 2953063, at *5 

(N.D. Ill. July 19, 2012) (collecting cases); Jones v. Graco Inc., No. 05-CV-2027, 2006 WL 

2990431, at *2 (C.D. Ill. Oct. 19, 2006) (“In this case, Defendant has made various arguments, 

without factual support, that certain witnesses should not be allowed to testify. However, in 

reality, Defendant is seeking an order barring Plaintiffs from presenting any evidence in support 

of their claims and an order dismissing their case with prejudice. This court therefore concludes 

that Defendant has not filed a proper motion in limine and agrees with Plaintiffs that Defendant 

has instead essentially filed a case dispositive motion.”) (citing Jonasson v. Lutheran Child & 

Family Servs., 115 F.3d 436, 440 (7th Cir.1997)). Indeed, most courts treat pre-trial motions, 

including Daubert and in limine motions, as entirely distinct from dispositive motions. See, e.g.,

Williams v. Genie Indus., Inc., No. 3:04-CV-217 CAN, 2006 WL 1408412, at *4 (N.D. Ind. May 

19, 2006) (“It is important to note that in its August 20, 2004 scheduling order, and subsequent 

orders extending the various deadlines in this case, this Court set distinct deadlines for the filing 

of dispositive and Daubert motions.”); Watts v. 84 Lumber Co., No. 14-CV-327-SMY-DGW, 

2016 WL 379628, at *2 (S.D. Ill. Jan. 29, 2016) (same); In re Depakote, No. 14-CV-847-NJRSCW, 2015 WL 4775861, at *1 (S.D. Ill. Mar. 24, 2015) (same). However, Daubert and in 

limine motions may have the effect of being case dispositive. See, e.g., Choiceparts, LLC v. GM 

Corp., No. 01 C 67, 2005 WL 6762305, at *1 (N.D. Ill. Mar. 28, 2005). 

Regardless of the parties’ disputes, when viewing the MDL court’s rulings together, it is 

apparent that the MDL court required that all dispositive motions and all non-dispositive motions 

that had case dispositive effects be filed before that court as a motion for summary judgment by 

the January 2013 deadline. (See Dkt. No. 42-2 at 2; Dkt. No. 42-4 at 1.) The MDL court’s later 

decision to forego review of the Defendants’ objections to Pehlke’s expert evidence was 

consistent with its prior rulings as the court held that the Daubert issues were not dispositive and 

therefore should be reviewed by this Court: 

“As a preliminary matter, the Court addresses Defendant’s objections to 

Plaintiff’s expert evidence. None of this evidence is outcome-determinative in the 

analysis regarding the alleged sources of the Decedent’s exposure. Therefore the 

Court need not decide whether Plaintiff’s expert evidence is admissible in order to 

decide Defendant’s motion. It notes, instead, as it has routinely done in this 

MDL, that Daubert issues, unless essential to the determination of the issues 

raised in summary judgment, are more properly addressed by the trial court.” 

(Dkt. No. 42-8 at 9.) In its Suggestion of Remand, dated April 15, 2015, the MDL court noted 

both that it had “adjudicated all outstanding motions, including dispositive motions” and that 

“this case is prepared for trial without delay once on the transferor court’s docket, subject to any 

trial-related motions in limine (including Daubert challenges).” (Dkt. No. 42-9 at 1-2.) 

Therefore, the unmistakable conclusion from the MDL court’s orders is that the parties may file 

both in limine and Daubert motions before this Court, but are barred from filing such motions if 

the effect of those motions, if granted, would be case dispositive. This finding is consistent with 

the underlying purpose of the MDL proceedings. (See, e.g., Dkt. No. 42-10 at 4-5 (Bushmaker 

remand court stating that the goal of MDL proceedings “would be undermined if the parties were 

free to wait to file a potentially case-dispositive motion until their case was remanded to the trial 

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court.”).) Moreover, Defendants already had an opportunity to raise any potentially case 

dispositive in limine or Daubert issues with the MDL court, could have sought clarification or 

objected to the MDL court’s rulings on these issues or, at the very least, could have opposed the 

MDL court’s “designation of this case as ‘trial ready’ and ripe for remand” and presented these 

arguments to that court at that point. (Id. at 5.) The record does not reflect that the Defendants 

took any of the above actions and their failure to do so belie their contentions in opposition to the 

present motion. 

Accordingly, the Court grants Pehlke’s motion to limit motions in limine and Daubert motions to 

non-dispositive. (Dkt. No. 42.) The parties may file both in limine and Daubert motions, but are 

barred from filing such motions if the effect of those motions, if granted, would be case 

dispositive. 

 

 ________________________________________ 

Virginia M. Kendall 

 United States District Court Judge 

Northern District of Illinois 

Date: 6/8/2016 

Case: 1:12-cv-00596 Document #: 55 Filed: 06/08/16 Page 3 of 3 PageID #:638