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. )

)

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

)

Defendants. )

CBS Corporation’s Response to Plaintiff’s Motion to Limit 

Motions in Limine and Daubert Motions to Non-Dispositive Issues

_____________________________________________________________________________

Defendant CBS Corporation (“Westinghouse”)1hereby responds to Plaintiff’s Motion to 

Limit Motions in Limine and Daubert Motions to Non-Dispositive (“Motion to Limit”) and

respectfully requests that the Court deny Plaintiff’s motion on the grounds that any 

Westinghouse motion in limine and/or Daubert motion related to expert testimony and other trial 

matters are non-dispositive and proper for consideration by this trial Court. 

INTRODUCTION

While the deadline for summary judgment and other dispositive motions has passed in 

the present matter, no such deadline has passed for non-dispositive pre-trial motions. By way of 

her Motion to Limit (Dkt. # 42), Plaintiff improperly attempts to construe routine Daubert

motions and other motions addressing pre-trial matters as “dispositive motions.”

Westinghouse’s anticipated motions in limine to bar the introduction of certain expert testimony 

 

1 CBS Corporation (a Delaware corporation f/k/a Viacom, Inc.) is a successor by merger 

to CBS Corporation (a Pennsylvania corporation f/k/a Westinghouse Electric Corporation).

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are not “dispositive” as that term is used in the MDL scheduling order because they would have 

no tendency to conclude Plaintiff’s claims as a matter of law. Because these Daubert motions 

cannot be considered dispositive, they are timely and this court should hear those motions in 

anticipation of trial.

ARGUMENT

To the extent that there is a bar on any motion that would have a “case dispositive effect,” 

as Plaintiff argues, an examination of the term “dispositive” is warranted. Specifically, Black’s 

Law Dictionary defines “dispositive” as:

Being a deciding factor; (of a fact or factor) bringing about a final 

determination. BLACK’S LAW DICTIONARY 484 (7th ed. 1999). 

Any piece of evidence that is introduced may have some bearing, however miniscule, on the 

final determination of this case. Such a possibility does not make a motion dispositive. Although 

several of Westinghouse’s motions in limine address evidence that may have some bearing on 

the outcome of this suit, it would be against the spirit of MDL Judge Strawbridge’s Order to bar 

the motions because they have a “dispositive effect.” (See Second Amended Case Management 

Order, Dkt. # 42, Exhibit 4.) Simply, Westinghouse seeks to introduce motions touching on 

routine pre-trial matters that if allowed, would not dispose of the case or any of Plaintiff’s 

claims. 

As described more fully below, a pre-trial motion to exclude expert testimony cannot be 

construed as a dispositive motion because 1) the MDL court has already considered and rejected 

the argument that a motion to exclude expert witnesses is dispositive, 2) Plaintiff’s cited 

precedent is distinguishable from the facts of the present case, 3) precedent establishes what 

constitutes a “dispositive motion,” which definition does not include pre-trial Daubert motions to 

exclude expert testimony, and 4) a Wisconsin appellate court has already rejected Plaintiff’s 

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argument in an analogous and illustrative case.

A. The MDL Court has Previously Addressed and Rejected Plaintiff’s Argument.

As Plaintiff notes in her Motion to Limit (Dkt. # 42), Westinghouse previously filed, and 

Judge Robreno previously ruled on, a motion for summary judgment seeking legal disposition of 

Plaintiff’s case on two grounds: first, on the grounds that Plaintiff had not satisfied the 

“frequency, proximity, and regularity” causation standard under Illinois law and second, on the 

grounds that several of Plaintiff’s expert witnesses were not qualified to testify and, therefore, 

could provide no testimony in support of Plaintiff’s case. (See Order denying CBS 

Corporation’s MSJ, attached as Exhibit 8 to Dkt. # 42.)

In its ruling on Westinghouse’s motion for summary judgment, the MDL court first 

addressed, and dismissed, Westinghouse’s argument based on its objections to Plaintiff’s expert 

testimony. The court refused to consider Westinghouse’s argument regarding the qualifications 

of Plaintiff’s experts because, the court held, issues concerning expert qualifications are not 

dispositive. Specifically, the court stated:

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 any of the 

alleged sources of Decedent’s exposure. 

(See Doc. 42, Exhibit 8 at p. 9.) Westinghouse attempted to raise issues relating to Plaintiff’s 

experts before the MDL court and was told that the issues raised would be more properly 

addressed by the trial court. If Westinghouse is now denied the opportunity to raise these issues 

before this Court, it will be effectively prevented from being heard on question of Plaintiff’s 

expert’s qualifications. 

B. Plaintiff’s Cited Precedent is Distinguishable.

In support of her motion, Plaintiff cites to two trial court orders from the Bushmaker and 

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Morris cases. (See Dkt. # 42, Exhibits 10 and 11, respectively.) These cases are distinguishable, 

however. The Bushmark order cited by Plaintiff touches on an issue similar to the one at issue 

here, but the Case Management and Scheduling Order at issue in Bushmaker specifically 

addressed the deadline for filing of motion in limine “where the exclusion of evidence from that 

expert would be case dispositive”; whereas the language in the Scheduling Order entered in the 

present case speaks only of “dispositive motions (including any dispositive in limine claims).” 

(See Dkt. # 42, Exhibits 10 and 4, respectively.) Thus, the Bushmaker court’s ruling that 

Defendant’s Daubert motions in limine were not filed by the time prescribed by the scheduling 

order was completely in line with the language of the order requiring the parties to file those 

Daubert motions “where the exclusion of evidence form that expert would be case dispositive.” 

There is no such specific language in the scheduling order at issue in the present case, and the 

word “dispositive” therein should be taken as meaning only dispositive motions. The MDL court 

here could have used language such as that used in the Bushmaker scheduling order, but it did 

not do so. Further, the Morris order cited by Plaintiff contains no facts from which to determine 

the basis of the court’s ruling and does not discuss the type of motion Defendants sought to file 

in that matter, nor does it cite the language of the underlying case management order. One 

cannot tell from this order whether the cases are similar enough to be compared.

C. Precedent Establishes What Constitutes a “Dispositive Motion.”

Under the Federal Rules of Civil Procedure, “dispositive motions” are clearly defined, 

and that definition does not include Daubert motions regarding the qualifications of a party’s 

expert witness. For example, 28 U.S.C. 636(b)(1)(A) provides: 

a judge may designate a magistrate judge to hear and determine any pretrial 

matter pending before the court, except a motion for injunctive relief, for 

judgment on the pleadings, for summary judgment, to dismiss or quash an 

indictment or information made by the defendant, to suppress evidence in a 

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criminal case, to dismiss or to permit maintenance of a class action, to dismiss for 

failure to state a claim upon which relief can be granted, and to involuntarily 

dismiss an action. A judge of the court may reconsider any pretrial matter under 

this subparagraph (A) where it has been shown that the magistrate judge’s order is 

clearly erroneous or contrary to law.

This list of motions, which a judge may not assign to a magistrate, has been determined to 

constitute a list of “dispositive motions”: “Congress clearly has not chosen to categorize as 

‘dispositive’ any ruling that resolves an issue. Rather, it is only those rulings which finally 

resolve a party’s ‘claim or defense’ which are considered ‘dispositive’ within the meaning of § 

636(b) and Fed.R.Civ.P. 72.” Vaquillas Ranch Co. v. Texaco Expl. & Prod., Inc., 844 F. Supp. 

1156, 1160-61 (S.D. Tex. 1994), citing Robinson v. Eng, 148 F.R.D. 635, 640 (D.Neb.1993). 

The Vaquillas court went on:

Some courts have also attempted to define “dispositive” in terms of § 

636(b)(1)(A). Section 636(b)(1)(A) contains a list of eight motions that a 

magistrate judge may not determine. The terms “dispositive” and 

“nondispositive” are not used in § 636 to refer to that list, but they are found in 

the language of Rule 72. Several courts have determined that the word 

“dispositive” in Rule 72(b) refers to the listing contained in § 636(b)(1)(A). 

[internal citations omitted].

Some courts, when considering whether a particular motion is dispositive or 

nondispositive, have determined that it is not, at least in part because the motion 

in question is not listed in § 636(b)(1)(A). Maisonville v. F2 America, Inc., 902 

F.2d 746, 748 (9th Cir.1990). Discussing Rule 11 sanctions, the Maisonville court 

stated that “. . . any motion not listed [in § 636(b)(1)(A) ] nor analogous to a 

motion listed in this category, falls within the non-dispositive group of matters 

which a magistrate may determine.” Maisonville, 902 F.2d at 748; accord, 

Robinson, 148 F.R.D. at 640 (Rule 11 sanctions); City of Jackson, Mississippi v. 

Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D.Miss.1993) (motion 

to remand) (cited with approval by Searcy v. Knostman, 155 B.R. 699, 702 

(S.D.Miss.1993); Banbury v. Omnitrition International, Inc., 818 F.Supp. 276, 

279 (D.Minn.1993) (motion to remand); Adkins, 143 F.R.D. at 176 (Rule 11 

sanctions); Holt v. Tonawanda Coke Corporation, 802 F.Supp. 866, 868 

(W.D.N.Y.1991) (motion to remand); McDonough, 131 F.R.D. at 472 (motion to 

remand); North New Jersey Savings & Loan Association v. Fidelity and Deposit 

Company of Maryland, 125 F.R.D. 96, 98 (D.N.J.1988) (motion to remand); 

Acme Electric Corporation v. Sigma Instruments, Inc., 121 F.R.D. 26, 28 

(W.D.N.Y.1988) (motion to join nondiverse defendant); Jacobsen v. Mintz, Levin, 

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Cohn, Ferris, Glovsky & Popeo, P.C. et al., 594 F.Supp. 583, 586 (D.Me.1984) 

(motion to amend, motion to strike, and motion to remand).

Vaquillas Ranch Co. v. Texaco Expl. & Prod., Inc., 844 F. Supp. 1156, 1160-61 (S.D. Tex. 

1994).

Of these dispositive motions delineated in Section 636(b)(1)(A), a Daubert motion

addressing the qualifications of an opponent’s experts is not among them. Daubert motions in 

limine are therefore not “dispositive motions” as that term is generally used and understood. 

While a motion excluding any evidence will have some effect on the outcome of a matter, 

dispositive motions are those motions that dispose of a case summarily as a matter of law. A

Daubert motion does not fit this description.

D. A Wisconsin Court has Already Rejected Plaintiff’s Contention Regarding the 

Definition of a Dispositive Motion.

In another matter filed in Wisconsin, in which case Plaintiff’s counsel in the present case 

was also acting as plaintiff’s counsel, the plaintiff attempted to argue on appeal 1) that the 

defendant’s motions in limine were not timely filed because they were not filed by the deadline 

for dispositive motions, and 2) that a de novo standard of review should be employed because 

these motions in limine were actually dispositive motions. See Calewarts v. CR Meyer & Sons 

Co., 2015 WI App 37, 363 Wis. 2d 654, 862 N.W.2d 902 (unpublished opinion) (attached hereto 

as Exhibit A). The Calewarts court summarized plaintiff’s argument: 

Second, Calewarts contends independent review is appropriate because the 

defendants’ motions in limine were actually dispositive motions, which are 

reviewed independently. . . . We disagree. The circuit court’s rulings on the 

motions in limine did not conclude that Calewarts’ claims failed as a matter of 

law. Rather, it was the parties who stipulated “that plaintiff cannot establish a 

claim against any defendant based on the evidence remaining after the Court’s 

rulings on motions in limine[.]” While the ultimate effect of the circuit court’s 

decision on the motions in limine was to dispose of Calewarts’ claims, the 

motions themselves were not dispositive motions. We therefore reject Calewarts’

argument that we must employ the standard of review used for dispositive 

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motions.

2015 WI App 37, ¶ 36, 363 Wis. 2d 654, 862 N.W.2d 902.

The Wisconsin appellate court considered and rejected Plaintiff’s argument here that the 

defendant’s motions in limine were untimely because they were filed after that deadline set forth 

in the scheduling order for dispositive motions. 

CONCLUSION

Defendant’s Daubert motion in limine are not dispositive motions and are not untimely 

under the existing scheduling order. Defendant requests the Court deny the Plaintiff’s motion

and find that Westinghouse’s remaining motions are related to non-dispositive issues and, as

such, timely when filed with this Court. 

Dated this ___18th___ day of April, 2016.

Respectfully submitted,

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

 By: _ /s/ Jacob D. Sawyer____________ 

Jacob D. Sawyer #6281475

Claire C. Kossmann #6303747

 Foley & Mansfield, P.L.L.P.

 55 W Monroe, Suite 3430

Chicago, Illinois 60603 

(312) 254-3800

CBS Corporation, a Delaware corporation, f/k/a 

Viacom, Inc., successor by merger to CBS 

Corporation, a Pennsylvania, f/k/a Westinghouse 

Electric Corporation

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the Clerk of the 

Court using the CM/ECF system which will send notification of such filing to all attorneys of 

record on this __ 18th __ day of __ _April_________, 2016.

 ______ _____ /s/ Jacob D. Sawyer ______

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