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9/15/2014 7:06:42 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2500411
By: Euniecy Gentry
CAUSE NO. 2011-76724
HARRIS COUNTY, TEXAS, Plaintiff, IN THE DISTRICT COURT OF
and
THE STATE OF TEXAS, acting by and
through the TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY, a necessary
and indispensable party,
HARRIS COUNTY, TEXAS
Vv.
INTERNATIONAL PAPER COMPANY,
McGINNES INDUSTRIAL MAINTENANCE
CORPORATION, WASTE MANAGEMENT,
INC., AND WASTE MANAGEMENT OF
TEXAS, INC., Defendants. 295TH JUDICIAL DISTRICT
MIMC’S MOTION TO EXCLUDE EVIDENCE AND MOTION IN LIMINE
Defendant McGinnes Industrial Maintenance Corporation (“MIMC’”) files this Motion to
Exclude Evidence and Motion in Limine, and in support thereof respectfully state.
I INTRODUCTION
The items listed below are inadmissible under the Texas Rules of Evidence and other
applicable authorities. As a matter of law, these items either have no bearing on the issues
presented in this case or involve inadmissible evidence. Any mention of the following matters in
front of prospective or actual members of the jury, during voir dire or the trial, risks prejudice to
MIMC. These matters should be excluded from evidence! or, in the alternative, should only be
raised outside the presence of the jury and a ruling obtained before the subject is introduced.
' Under Texas Rule of Evidence 103, this Court may make a definitive ruling on a pretrial motion to exclude
evidence and thereby dispense with the need to reoffer excluded evidence or to renew an overruled objection at trial.
See Huckaby y. A.G. Perry & Son, Inc., 20 S.W.3d 194, 204 (Tex. App—Texarkana 2000, pet. denied) (holding a
“trial court has authority to make a pretrial ruling” on a “motion to exclude evidence”); Owens-Corning Fiberglass
Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App—Houston [1st Dist.] 1996) (“A trial court has the authority to
make a pretrial ruling on the admissibility of evidence.”), aff'd, 972 S.W.2d 35 (Tex. 1998).
Before the commencement of voir dire examination of the jury panel, MIMC respectfully
objects to the admission of any evidence regarding these matters and requests that this Court
grant its motion to exclude the evidence and instruct Harris County of Texas and the State of
Texas (collectively, “Plaintiffs””) and their respective counsel not to mention, refer to,
interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly,
evidence on any of the matters listed below.
Alternatively, MIMC requests that the Court grant its motion in limine and instruct
Plaintiffs and their respective counsel not to mention, refer to, interrogate about, or attempt to
convey to the jury in any manner, either directly or indirectly, evidence on any of the matters
listed below without first obtaining a ruling from the Court outside the presence and hearing of
the jury, and to instruct Plaintiffs and their respective counsel to warn and caution each of their
witnesses to follow the same instructions.
Tl. MATTERS TO BE EXCLUDED
1 GCE, WMOT, and WMI Are Separate Corporations from MIMC and Have Never
Merged with MIMC. Any mention, reference, comment, testimony or allusions to, directly or
indirectly, G.C. Environmental, Inc. (“GCE”), Waste Management of Texas, Inc. (“WMOT”),
and Waste Management, Inc. (“WMI”) being the same entity as MIMC should not be permitted.
GCE, WMOT, and WML are separate entities from MIMC, have never merged with MIMC, and
any such testimony or argument would mislead the jury and would unfairly prejudice MIMC.
See TEX. R. EvID. 403.
Motion to Exclude: GRANTED: DENIED:
Motion in Limine: GRANTED: DENIED:
? By statute, the State of Texas is a “necessary and indispensable party” to this case, but the State of Texas has
declined to adopt or join the allegations made by Harris County. The referral to the State of Texas as a “Plaintiff” is
for convenience only.
2 Improper Use of Legal Opinion Regarding Potential Future Liability in MIMC’s
1992 Shareholder Disclosure. Any mention, reference, comment, testimony, suggestion or
allusion to, directly or indirectly, the statements in MIMC’s 1992 Shareholder Disclosure to
GCE regarding potential future environmental liabilities as being an admission of current
liability should not be permitted. The 1992 Shareholder Disclosure does not say that the Site is
an environmental liability; instead, it merely states that “due to the expansive nature of the
Environmental Laws, the Company [MIMC] may at some point incur a liability under the
Environmental Laws with respect to such land.’ This statement is a legal opinion about
potential future liability contingent on changes in the law. Accordingly, any reference or
allusion to this statement by MIMC’s shareholders as some form of an admission of liability
would be an improper attempt to elicit testimony from a witness regarding a legal opinion or
conclusion. Mega Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory Servs., 29 S.W.3d
303, 309 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“We first observe that no witness is
authorized to offer an opinion on a pure question of law.”). The law is to be read or given to the
jury only by the Court, and not through the statements of counsel or witnesses. Moreover, this
legal opinion is purely speculative as it is dependent upon future events and, consequently, is
misleading and highly prejudicial to MIMC. The danger of unfair prejudice and misleading the
jury with such evidence far outweighs any probative value the evidence might have. TEX. R.
Evi. 402, 403.
Motion to Exclude: GRANTED: DENIED:
Motion in Limine: GRANTED: DENIED:
See January 30, 1992 Shareholder Disclosure to GCE, attached as Exhibit 1 at Appendix 2.01(d).
3 Improper Attribution of Environmental Responsibilities. Any mention, reference,
comment, testimony or allusion, directly or indirectly, that WMI or WMOT accepted all of
MIMC’s environmental responsibilities or that WMI or WMOT are responsible for Champion
Papers Inc.’s (“Champion”) or MIMC’s waste disposal practices should not be permitted.
Whether WMI or WMOT accepted all of GCE’s or MIMC’s environmental responsibilities, or
WMI or WMOT is responsible for Champion’s or MIMC’s waste disposal practices are entirely
legal issues. Any attempt by Plaintiffs to elicit testimony from a witness regarding any statement
of law is improper. See Mega Child Care, Inc., 29 S.W.3d at 309 (“We first observe that no
witness is authorized to offer an opinion on a pure question of law.”); see also Nat'l Convenience
Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.)
(noting both (1) that “an expert is not competent to give an opinion or state a legal conclusion
regarding a question of law because such a question is exclusively for the court to decide and is
not an ultimate issue for the trier of fact,” and (2) that “the existence ofa duty is a question of
law”). The law is to be read or given to the jury only by the Court, and not through the
statements of counsel or witnesses. The danger of unfair prejudice and misleading the jury with
such evidence far outweighs any probative value the evidence might have. TEX. R. Evip. 402,
403.
Motion to Exclude: GRANTED: DENIED:
Motion in Limine: GRANTED: DENIED:
4. Allegations that MIMC Owned the Site or the Purported Waste at the Site. Any
mention, reference, comment, testimony or allusion, directly or indirectly, that MIMC owned the
Site or the purported waste at the Site should not be permitted. Plaintiffs have not been able to
produce any credible, admissible evidence substantiating that MIMC owned the Site or the
purported waste at the Site. The Plaintiffs have not produced a written conveyance of the Site
from Virgil C. McGinnes, Trustee to MIMC, a written trust agreement, or a document that
references such a trust or conveyance. In addition, any testimony or argument that MIMC owns
the purported waste would be contrary to Plaintiffs’ allegations and, thus, is not permitted.’ See
Kennesaw Life & Acc. Ins. Co. v. Goss, 694 S.W.2d 115, 117 (Tex. App.—Houston [14th Dist.]
1985, writ ref’d n.r.e.) (“An admission in a trial pleading is regarded as a judicial admission
requiring no proof of the admitted fact and authorizing the introduction of no evidence which
contradicts it.”); see also Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983)
(“The facts alleged or admitted in the live pleadings of a party are accepted as true by the court
and jury and are binding on the pleader. The party relying on his opponent’s pleadings as
judicial admissions of fact, however, must protect his record by objecting to the introduction of
evidence contrary to that admission of fact and by objecting to the submission of any issue
bearing on the fact admitted.”); Houston Shoe Hosp. v. State, 423 S.W.2d 624, 625 (Tex. Civ.
App.—Houston [14th Dist.] 1968, no writ) (“An admission in pleadings cannot be contradicted
by evidence until the pleading is withdrawn by amendment.”). Moreover, the issue of ownership
of the Site is a purely legal issue, and any attempt by Plaintiffs to elicit testimony from a witness
regarding a statement of law is improper. See Mega Child Care, Inc., 29 S.W.3d at 309 (“We
first observe that no witness is authorized to offer an opinion on a pure question of law.”); see
also Nat’l Convenience Stores Inc., 987 S.W.2d at 149 (noting both (1) that “an expert is not
competent to give an opinion or state a legal conclusion regarding a question of law because such
a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact,”
and (2) that “the existence of a duty is a question of law”). The law is to be read or given to the
* See Harris County’s Response to Defendant International Paper Co.’s Summary Judgment Motions, attached as
Exhibit 2 at p. 54-55.
jury only by the Court, and not through the statements of counsel or witnesses. The danger of
unfair prejudice and misleading the jury with such evidence far outweighs any probative value
the evidence might have. TEX. R. Evip. 402, 403.
Motion to Exclude: GRANTED: DENIED:
Motion in Limine: GRANTED: DENIED:
5 Mischaracterizations of MIMC’s Counsel’s Statement Regarding Ownership of
the Site. Any mention, reference, comment, testimony or allusion, directly or indirectly, that
MIMC’s counsel admitted or stated that MIMC owned the Site should not be permitted. At the
very least, the introduction of this evidence or arguments about it would be misleading because
those likely would be based on a mischaracterization of a statement in a letter to the U.S.
Environmental Protection Agency by MIMC’s counsel in which he was attempting to get access
to the Site for MIMC and International Paper so they could perform an investigation of the Site.
Indeed, nowhere in that letter did MIMC’s counsel admit that MIMC owned the Site; rather, he
stated that MIMC “may have” a beneficial interest in the Site. EPA rejected this position and
required MIMC and International Paper to obtain consents to access the Site from all of Virgil C.
McGinnes’ heirs. Moreover, any statements by MIMC’s counsel are purely legal opinions and
thus inadmissible. See Mega Child Care, Inc., 29 S.W.3d at 309 (“We first observe that no
witness is authorized to offer an opinion on a pure question of law.”); see also Nat’l Convenience
Stores Inc., 987 S.W.2d at 149 (noting both (1) that “an expert is not competent to give an
opinion or state a legal conclusion regarding a question of law because such a question is
exclusively for the court to decide and is not an ultimate issue for the trier of fact,” and (2) that
“the existence ofa duty is a question of law”). The law is to be read or given to the jury only by
the Court, and not through the statements of counsel or witnesses. The danger of unfair
prejudice and misleading the jury with such evidence far outweighs any probative value the
evidence might have. TEX. R. Evip. 402, 403. Therefore, any related evidence or argument
would have no probative value and would certainly mislead the jury and unfairly prejudice the
jury against MIMC. TEx. R. EviD. 402, 403.
Motion to Exclude: GRANTED: DENIED:
Motion in Limine: GRANTED: DENIED:
PRAYER
MIMC respectfully requests that this Court grant its Motion to Exclude Evidence and
Motion in Limine and enter an Order prohibiting Plaintiffs, their respective counsels and all
witnesses called on behalf of those parties, from mentioning or referencing, directly or indirectly,
in any manner whatsoever, including the offering of documentary evidence, testimony regarding
any of the matters set forth in this motion within the presence and hearing of the jury without
first approaching the bench and obtaining a ruling as to admissibility. MIMC also seeks such
other and further relief, both at law and in equity, to which it may show itself to be justly
entitled.
Dated: September 15, 2014 Respectfully Submitted,
WINSTON & STRAWN LLP
/s/ Paula W. Hinton
Paula W. Hinton
Texas State Bar No. 09710300
Email: PHinton@winston.com
Melanie Gray
Texas State Bar No. 08327980
Email: MGGray@winston.com
Jennifer M. Nelsen
Texas State Bar No. 24070321
Email: JNelsen@winston.com
Renee T. Wilkerson
Texas State Bar No. 24084097
Email: RWilkerson@winston.com
William N. (“Bill”) Collins
Texas State Bar No. 24087328
Email: WCollins@winston.com
1111 Louisiana, 25" Floor
Houston, TX 77002
Telephone: (713) 651-2600
Facsimile: (713) 651-2700
WINSTEAD PC
/s/ Albert R. Axe
Peter Nolan
Texas State Bar No. 15062600
Email: pnolan@winstead.com
Albert R. Axe
Texas State Bar No. 01457400
Email: aaxe@winstead.com
401 Congress Avenue, Suite 2100
Austin, TX 78701
Telephone: (512) 370-2806
Facsimile: (512) 370-2850
Bruce R. Wilkin
Texas State Bar No. 24053549
Email: bwilkin@winstead.com
1100 JP Morgan Chase Tower
600 Travis
Houston, TX 77002
Telephone: (713) 650-8400
Facsimile: (713) 650-2400
ATTORNEYS FOR DEFENDANT
MCGINNES INDUSTRIAL MAINTENANCE
CORPORATION
CERTIFICATE OF SERVICE
I hereby certify that on this 15" day of September, 2014, a true and correct copy of the
foregoing instrument was forwarded to all known counsel of record by operation of the Court’s
electronic filing system.
/s/ Jennifer M. Nelsen
Jennifer M. Nelsen
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9/15/2014 7:06:42 PM Chris Daniel - District Clerk Harris County Envelope No. 2500411 By: Euniecy Gentry CAUSE NO. 2011-76724 HARRIS COUNTY, TEXAS, Plaintiff, IN THE DISTRICT COURT OF and THE STATE OF TEXAS, acting by and through the TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, a necessary and indispensable party, HARRIS COUNTY, TEXAS Vv. INTERNATIONAL PAPER COMPANY, McGINNES INDUSTRIAL MAINTENANCE CORPORATION, WASTE MANAGEMENT, INC., AND WASTE MANAGEMENT OF TEXAS, INC., Defendants. 295TH JUDICIAL DISTRICT MIMC’S MOTION TO EXCLUDE EVIDENCE AND MOTION IN LIMINE Defendant McGinnes Industrial Maintenance Corporation (“MIMC’”) files this Motion to Exclude Evidence and Motion in Limine, and in support thereof respectfully state. I INTRODUCTION The items listed below are inadmissible under the Texas Rules of Evidence and other applicable authorities. As a matter of law, these items either have no bearing on the issues presented in this case or involve inadmissible evidence. Any mention of the following matters in front of prospective or actual members of the jury, during voir dire or the trial, risks prejudice to MIMC. These matters should be excluded from evidence! or, in the alternative, should only be raised outside the presence of the jury and a ruling obtained before the subject is introduced. ' Under Texas Rule of Evidence 103, this Court may make a definitive ruling on a pretrial motion to exclude evidence and thereby dispense with the need to reoffer excluded evidence or to renew an overruled objection at trial. See Huckaby y. A.G. Perry & Son, Inc., 20 S.W.3d 194, 204 (Tex. App—Texarkana 2000, pet. denied) (holding a “trial court has authority to make a pretrial ruling” on a “motion to exclude evidence”); Owens-Corning Fiberglass Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App—Houston [1st Dist.] 1996) (“A trial court has the authority to make a pretrial ruling on the admissibility of evidence.”), aff'd, 972 S.W.2d 35 (Tex. 1998). Before the commencement of voir dire examination of the jury panel, MIMC respectfully objects to the admission of any evidence regarding these matters and requests that this Court grant its motion to exclude the evidence and instruct Harris County of Texas and the State of Texas (collectively, “Plaintiffs””) and their respective counsel not to mention, refer to, interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly, evidence on any of the matters listed below. Alternatively, MIMC requests that the Court grant its motion in limine and instruct Plaintiffs and their respective counsel not to mention, refer to, interrogate about, or attempt to convey to the jury in any manner, either directly or indirectly, evidence on any of the matters listed below without first obtaining a ruling from the Court outside the presence and hearing of the jury, and to instruct Plaintiffs and their respective counsel to warn and caution each of their witnesses to follow the same instructions. Tl. MATTERS TO BE EXCLUDED 1 GCE, WMOT, and WMI Are Separate Corporations from MIMC and Have Never Merged with MIMC. Any mention, reference, comment, testimony or allusions to, directly or indirectly, G.C. Environmental, Inc. (“GCE”), Waste Management of Texas, Inc. (“WMOT”), and Waste Management, Inc. (“WMI”) being the same entity as MIMC should not be permitted. GCE, WMOT, and WML are separate entities from MIMC, have never merged with MIMC, and any such testimony or argument would mislead the jury and would unfairly prejudice MIMC. See TEX. R. EvID. 403. Motion to Exclude: GRANTED: DENIED: Motion in Limine: GRANTED: DENIED: ? By statute, the State of Texas is a “necessary and indispensable party” to this case, but the State of Texas has declined to adopt or join the allegations made by Harris County. The referral to the State of Texas as a “Plaintiff” is for convenience only. 2 Improper Use of Legal Opinion Regarding Potential Future Liability in MIMC’s 1992 Shareholder Disclosure. Any mention, reference, comment, testimony, suggestion or allusion to, directly or indirectly, the statements in MIMC’s 1992 Shareholder Disclosure to GCE regarding potential future environmental liabilities as being an admission of current liability should not be permitted. The 1992 Shareholder Disclosure does not say that the Site is an environmental liability; instead, it merely states that “due to the expansive nature of the Environmental Laws, the Company [MIMC] may at some point incur a liability under the Environmental Laws with respect to such land.’ This statement is a legal opinion about potential future liability contingent on changes in the law. Accordingly, any reference or allusion to this statement by MIMC’s shareholders as some form of an admission of liability would be an improper attempt to elicit testimony from a witness regarding a legal opinion or conclusion. Mega Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“We first observe that no witness is authorized to offer an opinion on a pure question of law.”). The law is to be read or given to the jury only by the Court, and not through the statements of counsel or witnesses. Moreover, this legal opinion is purely speculative as it is dependent upon future events and, consequently, is misleading and highly prejudicial to MIMC. The danger of unfair prejudice and misleading the jury with such evidence far outweighs any probative value the evidence might have. TEX. R. Evi. 402, 403. Motion to Exclude: GRANTED: DENIED: Motion in Limine: GRANTED: DENIED: See January 30, 1992 Shareholder Disclosure to GCE, attached as Exhibit 1 at Appendix 2.01(d). 3 Improper Attribution of Environmental Responsibilities. Any mention, reference, comment, testimony or allusion, directly or indirectly, that WMI or WMOT accepted all of MIMC’s environmental responsibilities or that WMI or WMOT are responsible for Champion Papers Inc.’s (“Champion”) or MIMC’s waste disposal practices should not be permitted. Whether WMI or WMOT accepted all of GCE’s or MIMC’s environmental responsibilities, or WMI or WMOT is responsible for Champion’s or MIMC’s waste disposal practices are entirely legal issues. Any attempt by Plaintiffs to elicit testimony from a witness regarding any statement of law is improper. See Mega Child Care, Inc., 29 S.W.3d at 309 (“We first observe that no witness is authorized to offer an opinion on a pure question of law.”); see also Nat'l Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (noting both (1) that “an expert is not competent to give an opinion or state a legal conclusion regarding a question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact,” and (2) that “the existence ofa duty is a question of law”). The law is to be read or given to the jury only by the Court, and not through the statements of counsel or witnesses. The danger of unfair prejudice and misleading the jury with such evidence far outweighs any probative value the evidence might have. TEX. R. Evip. 402, 403. Motion to Exclude: GRANTED: DENIED: Motion in Limine: GRANTED: DENIED: 4. Allegations that MIMC Owned the Site or the Purported Waste at the Site. Any mention, reference, comment, testimony or allusion, directly or indirectly, that MIMC owned the Site or the purported waste at the Site should not be permitted. Plaintiffs have not been able to produce any credible, admissible evidence substantiating that MIMC owned the Site or the purported waste at the Site. The Plaintiffs have not produced a written conveyance of the Site from Virgil C. McGinnes, Trustee to MIMC, a written trust agreement, or a document that references such a trust or conveyance. In addition, any testimony or argument that MIMC owns the purported waste would be contrary to Plaintiffs’ allegations and, thus, is not permitted.’ See Kennesaw Life & Acc. Ins. Co. v. Goss, 694 S.W.2d 115, 117 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) (“An admission in a trial pleading is regarded as a judicial admission requiring no proof of the admitted fact and authorizing the introduction of no evidence which contradicts it.”); see also Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983) (“The facts alleged or admitted in the live pleadings of a party are accepted as true by the court and jury and are binding on the pleader. The party relying on his opponent’s pleadings as judicial admissions of fact, however, must protect his record by objecting to the introduction of evidence contrary to that admission of fact and by objecting to the submission of any issue bearing on the fact admitted.”); Houston Shoe Hosp. v. State, 423 S.W.2d 624, 625 (Tex. Civ. App.—Houston [14th Dist.] 1968, no writ) (“An admission in pleadings cannot be contradicted by evidence until the pleading is withdrawn by amendment.”). Moreover, the issue of ownership of the Site is a purely legal issue, and any attempt by Plaintiffs to elicit testimony from a witness regarding a statement of law is improper. See Mega Child Care, Inc., 29 S.W.3d at 309 (“We first observe that no witness is authorized to offer an opinion on a pure question of law.”); see also Nat’l Convenience Stores Inc., 987 S.W.2d at 149 (noting both (1) that “an expert is not competent to give an opinion or state a legal conclusion regarding a question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact,” and (2) that “the existence of a duty is a question of law”). The law is to be read or given to the * See Harris County’s Response to Defendant International Paper Co.’s Summary Judgment Motions, attached as Exhibit 2 at p. 54-55. jury only by the Court, and not through the statements of counsel or witnesses. The danger of unfair prejudice and misleading the jury with such evidence far outweighs any probative value the evidence might have. TEX. R. Evip. 402, 403. Motion to Exclude: GRANTED: DENIED: Motion in Limine: GRANTED: DENIED: 5 Mischaracterizations of MIMC’s Counsel’s Statement Regarding Ownership of the Site. Any mention, reference, comment, testimony or allusion, directly or indirectly, that MIMC’s counsel admitted or stated that MIMC owned the Site should not be permitted. At the very least, the introduction of this evidence or arguments about it would be misleading because those likely would be based on a mischaracterization of a statement in a letter to the U.S. Environmental Protection Agency by MIMC’s counsel in which he was attempting to get access to the Site for MIMC and International Paper so they could perform an investigation of the Site. Indeed, nowhere in that letter did MIMC’s counsel admit that MIMC owned the Site; rather, he stated that MIMC “may have” a beneficial interest in the Site. EPA rejected this position and required MIMC and International Paper to obtain consents to access the Site from all of Virgil C. McGinnes’ heirs. Moreover, any statements by MIMC’s counsel are purely legal opinions and thus inadmissible. See Mega Child Care, Inc., 29 S.W.3d at 309 (“We first observe that no witness is authorized to offer an opinion on a pure question of law.”); see also Nat’l Convenience Stores Inc., 987 S.W.2d at 149 (noting both (1) that “an expert is not competent to give an opinion or state a legal conclusion regarding a question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact,” and (2) that “the existence ofa duty is a question of law”). The law is to be read or given to the jury only by the Court, and not through the statements of counsel or witnesses. The danger of unfair prejudice and misleading the jury with such evidence far outweighs any probative value the evidence might have. TEX. R. Evip. 402, 403. Therefore, any related evidence or argument would have no probative value and would certainly mislead the jury and unfairly prejudice the jury against MIMC. TEx. R. EviD. 402, 403. Motion to Exclude: GRANTED: DENIED: Motion in Limine: GRANTED: DENIED: PRAYER MIMC respectfully requests that this Court grant its Motion to Exclude Evidence and Motion in Limine and enter an Order prohibiting Plaintiffs, their respective counsels and all witnesses called on behalf of those parties, from mentioning or referencing, directly or indirectly, in any manner whatsoever, including the offering of documentary evidence, testimony regarding any of the matters set forth in this motion within the presence and hearing of the jury without first approaching the bench and obtaining a ruling as to admissibility. MIMC also seeks such other and further relief, both at law and in equity, to which it may show itself to be justly entitled. Dated: September 15, 2014 Respectfully Submitted, WINSTON & STRAWN LLP /s/ Paula W. Hinton Paula W. Hinton Texas State Bar No. 09710300 Email: PHinton@winston.com Melanie Gray Texas State Bar No. 08327980 Email: MGGray@winston.com Jennifer M. Nelsen Texas State Bar No. 24070321 Email: JNelsen@winston.com Renee T. Wilkerson Texas State Bar No. 24084097 Email: RWilkerson@winston.com William N. (“Bill”) Collins Texas State Bar No. 24087328 Email: WCollins@winston.com 1111 Louisiana, 25" Floor Houston, TX 77002 Telephone: (713) 651-2600 Facsimile: (713) 651-2700 WINSTEAD PC /s/ Albert R. Axe Peter Nolan Texas State Bar No. 15062600 Email: pnolan@winstead.com Albert R. Axe Texas State Bar No. 01457400 Email: aaxe@winstead.com 401 Congress Avenue, Suite 2100 Austin, TX 78701 Telephone: (512) 370-2806 Facsimile: (512) 370-2850 Bruce R. Wilkin Texas State Bar No. 24053549 Email: bwilkin@winstead.com 1100 JP Morgan Chase Tower 600 Travis Houston, TX 77002 Telephone: (713) 650-8400 Facsimile: (713) 650-2400 ATTORNEYS FOR DEFENDANT MCGINNES INDUSTRIAL MAINTENANCE CORPORATION CERTIFICATE OF SERVICE I hereby certify that on this 15" day of September, 2014, a true and correct copy of the foregoing instrument was forwarded to all known counsel of record by operation of the Court’s electronic filing system. /s/ Jennifer M. Nelsen Jennifer M. Nelsen