Thursday, December 22, 2016

Some Evidence Questions in an Asbestos Case

Evans v. Am. Optical Corp., No. B265222 (D2d4 Nov. 22, 2016)

Evidentiary issues raised in an appeal after a defense verdict in an asbestos case. 


First one: Plaintiff alleged asbestos exposure in the late 70s and early 80s. At issue was whether Defendant’s work contracts with a utility called for use of asbestos-coated piping. The original contracts had long been destroyed under the company’s 10-year retention policy.

At trial, Defendant’s President testified, and his counsel tried to refresh his recollection of 1985 contracts by showing him a contract with the same utility that Defendant had entered in 2004. The contract wasn’t on the exhibit list and hadn’t been produced in discovery. The trial court permitted some refreshing of recollection over Plaintiff’s objection. But when Defendant tried to get into the actual terms of the contract, Plaintiff objected again, which the trial court sustained.

Plaintiff’s counsel then proceeded to extensively question the witness on the 2004 contract, displaying to the jury the language of the requirement at issue and reading parts of the contract into the record. But then on re-direct, Defendant got into various other terms of the contract. Plaintiff vigorously objected, arguing that Defendant was trying to end-around the prior sustained objection. But the court overruled this time.


Plaintiff ultimately asked for a mistrial, which the court denied. The court determined that the contract couldn’t go to the jury and offered to give a limiting instruction telling the jury that it couldn’t consider the terms of the 2004 contract in deciding the provisions of the 1985 one. But plaintiff, for some reason, didn’t take the court up on the offer. Both parties addressed the contract in closing arguments.


The Court of Appeal notes that the contract was never actually admitted into evidence. So to the extent plaintiffs appeal was grounded in the admission of the document, it was based on an erroneous factual premise. 


But it wasn’t error to use the not-in-evidence contract to refresh the witness’s recollection. Evidence Code § 771(a) says you can use a document to refresh the recollection a witness’s memory, so long as you give it to the other side during the hearing. There
s no limitation regarding the nature of the document. Then under § 771(b), the other side has the right to cross-examine on it and to enter it in the record to the extent it is pertinent to the testimony. On direct and cross in this trial, things basically worked that way.

Plaintiff also argues that the document wasn’t listed as a trial exhibit or produced in pretrial discovery. But nothing in § 711 requires advance production, and a document used to refresh needn’t be an exhibit because the rules generally don’t let the refreshing party actually enter it into evidence. So far as discovery goes, Plaintiff didn’t provide any evidence, and the trial court made no finding, that the document was deliberately withheld in discovery, which precludes an evidence sanction.


And in any event, the court finds any of these alleged errors—had they actually been errors—harmless. Plaintiff didn’t show any demonstrable prejudice, and in overall context, the significant of the document to the jury’s verdict appears to be extremely limited. The evidence  given to the jury made clear that the contract was from 2004—decades after the relevant exposure period. 


Issue two: Whether the court properly declined to admit two spec sheets—one from 1977 and one from 1994—that appeared to show that the pipe wrapping was made of asbestos. But they were not Defendant’s specs—they were the utility’s—and Plaintiff wasn’t able to elicit any testimony that Defendant received or relied on them. Defendant successfully kept them out as hearsay.


Plaintiff claims they were offered for the non-hearsay purpose of showing notice. But in the absence of any evidence they were given to Defendant, it’s hard to see how that was the case. So the court wouldn’t admit them because they were only relevant if the trier of fact make a bunch of assumptions that weren’t backed by any evidence. The inferential gaps between the specs and any relevance were just far too broad. And for that reason, the court was also on solid footing by excluding them under Evidence Code § 352 due to their limited relevance and the potential for juror confusion in admitting them.


Affirmed.

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