Friday, May 19, 2017

Ancient History, Present Evidence

Phillips v. Honeywell Intl Inc., No. F070761 (D5 Mar. 17. 2017)

A weird thing about asbestos cases is that the same general evidence about the defendant’s actions can get introduced in scores or even hundreds of separate cases. Sometimes even to the point where the practice treatises on asbestos litigation actually address strategies for dealing with specific pieces of evidence. 

At issue here is a “now-infamous” letter that one of Defendant’s Predecessor’s employees wrote in 1966 seemingly mocking a trade publication article that said it there was some suggestion, but not proof, that asbestos was a significant health hazard. The letter gets offered against to show the predecessor’s awareness of the risks of asbestos fifty years ago.

The trial court let the letter in, but with a limiting instruction that it was relevant only to whether Predecessor had notice of the danger posed by asbestos. Defendant argues on appeal that the letter is irrelevant to any issue in dispute and unduly prejudicial. 

The Court of Appeal disagrees. It finds that the letter was relevant as to whether Predecessor was aware of the health risks in 1966. Defendant put that fact in dispute when it offered testimony that it did not first become aware of the risks until 1968. That the author’s sarcasm showed he disagreed with with the publication doesn’t vitiate the fact that the letter potentially shows that he (and thus Predecessor) was at least aware of the issue.

As to prejudice, Defendant notes that appellate courts in Illinois and Florida have previously held that the letter shouldn’t have come into evidence in its entirety due to the potential for prejudice. But in the Illinois case the letter was offered for a different issue—evidence of conspiracy to suppress the truth—for which the court found it irrelevant. And in the Florida case, the letter was offered for the same issue, but Plaintiff’s first exposure wasn’t until many years later, substantially reducing its probative value. Moreover, the trial court in Florida didn’t give a limiting instruction.

There’s also an issue regarding Plaintiff’s causation expert. The trial court had granted an in limine ruling on the “every exposure” theory, which is that each and every exposure to asbestos beyond background levels is a cause of mesothelioma. The expert testified at trial that such a theory took the science too far. But he did testify that every identified significant exposure to which Plaintiff was subjected did, in fact, increase his risk. The Court here finds that testifying that identified significant exposures were causes is not the same as testifying that “every exposure” was, so the testimony was admissible and didn’t violate the motion in limine.


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