Summary
finding the "each and every exposure" theory as reaching an impermissible legal conclusion
Summary of this case from Gore v. Air & Liquid Sys. Corp.Opinion
Case No. 2:12-cv-3013-SVW-PJW Case No. 2:12-cv-3037-SVW-PJW
05-09-2013
David Sclafani, et al. v. Air and Liquid Systems Corp., et al.
CIVIL MINUTES - GENERAL
Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE Paul M. Cruz
Deputy Clerk N/A
Court Reporter / Recorder __________
Tape No. Attorneys Present for Plaintiffs: N/A Attorneys Present for Defendants: N/A Proceedings: IN CHAMBERS ORDER Re PLAINTIFFS' MOTIONS IN LIMINE Case No. 2:12-cv-3037-SVW-PJW: [114] [115] [123] [124] [125] [127] [128] [129] [130] [131] [135] [136] Plaintiffs' Motion in Limine Number 1 (Dckt. 114, 135)
All docket numbers refer to Case Number 2:12-cv-3037-SVW-PJW.
Plaintiffs' Motion in Limine Number 1 requests an Order from this Court permitting Plaintiffs to introduce "evidence of defendants' post exposure conduct"—that is, "defendants' conduct after the date of Decedent's injury or damage" as relevant to their request for punitive damages. Specifically, Plaintiffs seek to introduce evidence of "Defendants' entire course of conduct in connection with the distribution of asbestos containing products," including, but not limited to evidence that "Defendants continued to market and distribute asbestos-containing products even though the United States government was enacting bans to stop sales" of asbestos.
Plaintiffs have failed to identify which specific items of evidence they are seeking to introduce, and thus the Court will defer on ruling on this Motion in Limine until specific items are identified. Plaintiffs' Motion in Limine Number 2 (Dckt. 115, 136)
Plaintiffs' Motion in Limine Number 2 seeks to preclude Defendants from pursing two defenses: the "sophisticated user" defense and the "superseding cause" defense. These issues have been addressed in the Court's ruling on the affirmative defenses in its Pretrial Order. Plaintiff's Motion in Limine Number 3 (Dckt. 123)
Plaintiffs' Motion in Limine Number 3 seeks a "general order that evidence of post-exposure warnings and instructions are admissible." Such evidence, according to Plaintiffs, is relevant to proving that there was a defect in the product, a necessary element of their strict liability claim.
Plaintiffs have failed to identify which items of evidence they are seeking to introduce; thus, the Court will defer ruling on this motion until specific items are identified. However, the Court notes that any evidence Plaintiffs introduce must not violate Federal Rule of Evidence 407, which prohibits the introduction of evidence of measures taken by a defendant "that would have made an earlier injury or harm less likely to occur" for purposes of proving negligence, culpable conduct, design defect, or the need for warning or instruction. See Fed. R. Evid. 407. Plaintiff's Motion in Limine Number 4 (Dckt. 124)
Plaintiffs' motion referenced the California Evidence Code, which makes admissible evidence of design changes in strict liability actions (including design defect), though not negligence actions. See Cal. Evid. Code § 1151. However, Federal Rule of Evidence 407 excludes such evidence in both negligence and design defect cases. Moreover, the Federal Rules of Evidence "ordinarily govern in diversity cases," unless a state evidence rule is "'intimately bound up' with the state's substantive decision making[.]" Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). The Ninth Circuit has explicitly held that Rule 407 is "sufficiently procedural in nature to apply in diversity cases under Erie" in a diversity case dealing with California's strict liability laws. Rosa v. Taser Int'l, Inc., 684 F.3d 941, 948 (9th Cir. 2012).
Plaintiffs' Motion in Limine Number 4 seeks to admit evidence under the "consumer expectation" theory of product defect. Plaintiffs' motion is made in reference to a legal question: whether the consumer expectation or risk/benefit theory of design defect applies to this case. The Court will discuss this issue further at the May 13, 2013 pretrial conference. Plaintiffs' Motion in Limine Number 5 (Dckt. 125)
Plaintiffs' Motion in Limine Number 5 seeks to preclude Defendants from arguing that Sclafani was exposed to asbestos from products manufactured by other defendants named in this action that this Court previously dismissed via grant of summary judgment. This Court previously granted defendants Warren Pumps, LLC's and Dana Companies, LLC's motions for summary judgment, concluding that, as a matter of law, Sclafani had not been exposed to asbestos from products manufactured, distributed, or sold by Warren Pumps or Dana.
Defendants ask this Court to deny Plaintiffs' motion, arguing that, if they can prove that Sclafani was exposed to asbestos from products manufactured, distributed, or sold by other defendants, their liability will be reduced under comparative negligence principles. Specifically, Defendants are concerned that, if this Court grants Plaintiffs' motion, it will preclude them from arguing that Sclafani was exposed to asbestos while working with Warren Pumps. This concern is unfounded; as the Court previously concluded, Warren Pumps did not manufacture the packing and gaskets in its pumps; rather, it distributed them when it sold the original pumps with asbestos-containing parts. Defendants will be allowed to present evidence that Sclafani was exposed to asbestos when he removed packing and gaskets from Warren Pumps, so long as they do not seek to introduce evidence or argue that Warren Pumps was the one who distributed or sold the asbestos-laden packing and gaskets Sclafani removed from these pumps.
With this distinction in mind, the Court GRANTS Plaintiffs' Motion in Limine Number 5. Plaintiffs' Motion in Limine Number 6 (Dckt. 127)
Plaintiffs' Motion in Limine Number 6 seeks an order "allowing the introduction of prior depositions taken in prior asbestos litigation, defendant's interrogatory answers in other cases, and videotaped depositions." However, Plaintiffs fail to specify which depositions and interrogatories they are seeking to introduce. A deposition taken in one case can only be used in a different action if the two cases "involve[e] the same subject matter [and are] between the same parties," or as otherwise allowed by the Federal Rules of Evidence. See Fed. R. Civ. P. 32(a)(8). Similarly, an answer to an interrogatory—even one given in a separate action—may be used "to the extent allowed by the Federal Rules of Evidence." Fed. R. Civ. P. 33(c).
The most pertinent Rule of Evidence is Rule 804, which permits the introduction of certain hearsay statements when the declarant is unavailable. However, the Court notes that Plaintiffs have made no showing whatsoever that the depositions they seek to introduce are from persons who are unavailable—and if they are unable to make this showing at trial, the depositions they seek to introduce will necessarily be excluded.
Because Plaintiffs have failed to specify which depositions or interrogatories they are seeking to introduce, this Court cannot determine whether Plaintiffs have satisfied the Federal Rules of Civil Procedure of the Federal Rules of Evidence. Thus, the Court defers on ruling on this motion until a specific deposition or interrogatory is identified. Plaintiffs' Motion in Limine Number 7 (Dckt. 128)
Plaintiffs' Motion in Limine Number 7 seeks to preclude Defendants from eliciting expert testimony that Sclafani's exposure to asbestos from their product was not a "but for" cause of his mesothelioma—that Sclafani would have developed this disease even if he had not been exposed to the asbestos from their particular product.
Under California law, "plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth." Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 976-77 (1997) (footnote omitted). This "substantial factor standard" has been "embraced as a clearer rule of causation—one which subsumes the 'but for' test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact." Id. at 969. In other words, "but for" causation is inappropriate in the context of asbestos-related litigation: Plaintiffs need only demonstrate that Sclafani's exposure to asbestos from a particular defendant's products was a "substantial factor in contributing to the aggregate dose of asbestos" he inhaled. Moreover, testimony that Sclafani's exposure to asbestos from a particular defendant's product was not a "but for" cause of his mesothelioma would likely confuse the jury, leading them to believe that a particular defendant could not be liable because some other sources of asbestos independently would have caused Sclafani's mesothelioma. Indeed, the California Court of Appeals has held that exclusion of such testimony is proper in asbestos-related personal injury cases. See Grahn v. Dillingham Const., Inc., A098607, 2006 WL 3262552, at *6 (Cal. Ct. App. Nov. 13, 2006) ("Therefore, it is clear that causation in an asbestos case is not evaluated under a 'but for' test but under the 'substantial factor' test that was articulated in Rutherford. The trial court would not have erred had it precluded [the defendant] from asking its expert witnesses about a causation standard that was not applicable."). Thus, Plaintiffs' Motion in Limine Number 7 is GRANTED.
This ruling does not prevent Defendants from arguing that Sclafani's exposure to their product was not a "substantial factor" in the development of his mesothelioma. As Rutherford commented, "a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor." Rutherford, 16 Cal. 4th at 969. To the extent that their experts seek to offer such opinions (and to the extent that such opinions are consistent with Federal Rule of Evidence 702), Defendants will be permitted to offer them. Plaintiffs' Motion in Limine Number 8 (Dckt. 129)
Plaintiffs' Motion in Limine Number 8 seeks to preclude Defendants from introducing a portion of a treatise published by Drs. Irving Selikoff and Douglas H.K. Lee entitled Asbestos and Disease. Defendants intend to use this article to cross-examine Plaintiffs' expert witnesses, a use specifically contemplated by the Federal Rules of Evidence. See Fed. R. Evid. 803(18). Moreover, Defendants indicated that they be able to meet Rule 803(18)'s foundational requirements—that the study is from a publication "established as reliable authority by the expert's testimony, by another expert's testimony, or by judicial notice." Id. Thus, Plaintiffs' Motion in Limine Number 8 is DENIED. Plaintiffs' Motion in Limine Number 9 (Dckt. 130)
Plaintiffs' Motion in Limine Number 9 seeks an order from this Court permitting them to introduce "regulations and findings of governmental agencies responsible for regulating asbestos," as evidence of what was known or reasonably knowable regarding the hazards of asbestos and as evidence of the causal link between asbestos exposure and mesothelioma. Plaintiffs have identified six specific studies—two issued by the Occupational Safety and Health Association, one by the Environmental Protection Association, two from the United States Department of Health and Human Services, and one from the International Agency for Research on Cancer (IARC)—that they seek to introduce.
Each identified study post-dates Sclafani's alleged exposure, and thus cannot be introduced as evidence of what was "known or knowable" at the time of his exposure. However, to the extent that Plaintiffs seek to introduce these studies as evidence that exposure to asbestos can cause mesothelioma, the studies are admissible. Federal Rule of Evidence 803(8) makes admissible records or statements of a "public office" that set out 1) the office's activities; 2) matters observed while under a legal duty to report; or 3) factual findings from a legally authorized investigation; and that "neither the source of information nor other circumstances indicate a lack of trustworthiness." See O'Dell v. Hercules, Inc., 904 F.2d 1194, 1206 (8th Cir. 1990) ("EPA reports are generally admissible under Rule 803[(8)]."). Defendants do not dispute that Plaintiffs have met Rule 803(8)'s foundational requirements as to these studies. However, to the extent that Defendants do not dispute that exposure to asbestos can cause mesothelioma, the Court may exclude the studies as irrelevant. See Fed. R. Evid. 401 ("Evidence is relevant if it has any tendency to make a fact more or less probable than it would without the evidence and the fact is of consequence in determining the action.").
Thus, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' Motion in Limine Number 9. Plaintiffs' Motion in Limine Number 10 (Dckt. 131)
Plaintiffs' Motion in Limine Number 10 seeks to preclude Defendants from eliciting expert testimony that chrysotile asbestos does not increase a person's risk of mesothelioma. The Court recognizes that the connection between chrysotile asbestos and mesothelioma is a central issue in this case, and that any expert opinion on the matter must meet the requirements of Federal Rule of Evidence 702 and Daubert. However, Plaintiffs' Motion in Limine Number 10 10 refers to Plaintiffs as "Julio and Sharon Gomez," and seeks to exclude expert testimony from defendants who are no longer party to this case. Because the Court cannot assess which experts' opinions will actually be offered in this case, the Court DENIES Plaintiffs' Motion in Limine Number 10, but will reconsider it at the May 13, 2013 pretrial conference.
It appears that this Motion in Limine was copied and pasted from another action, without even a cursory review by Plaintiffs' counsel to ensure that they had correctly identified their clients. --------
__________ : __________
Initials of Preparer PMC