Various Rulings in NYCAL Case Regarding Defendants’ Motion in Limine to Preclude Certain Evidence Supreme Court of New York, New York County, January 4, 2017

The plaintiff alleged asbestos exposure through his work as a roofer, maintenance man, and carpenter. The defendants submitted a joint motion in limine to preclude certain evidence. The court issued various rulings, summarized below.

First, the defendants asserted that Dr. Jacqueline Moline would offer a scientifically unsupportable causation opinion that every occupational exposure was a substantial factor in causing the plaintiff’s mesothelioma. This was also known, among other things, as the “each and every exposure” or “cumulative exposure” theory. At the outset the court noted this was a mischaracterization of the plaintiff’s theory, as these theories were different. In support, the defendants cited to various cases around the country which have rejected the “every exposure” theory. The defendants also requested a Frye hearing on this issue. The plaintiff argued this testimony raised issues of causation for the jury, and that New York law held that an expert’s testimony that exposure to visible asbestos-containing dust was sufficient to support causation. Further, the plaintiff explained this was a cumulative exposure theory. The court denied the defendants’ motion, based on prior New York law upholding jury verdicts based on the plaintiff’s testimony of regular exposure and expert testimony that such exposure was a proximate cause of mesothelioma. Further, the defendants’ emphasis on quantifying exposures “ignores the reality that the asbestos-containing product at issue is almost always no longer on the market or otherwise available, and therefore, is not capable of being tested .. it is ‘inappropriate to set an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court.’”

Second, the defendants sought to preclude regulatory materials and public health announcements, arguing that these were irrelevant to causation where such agencies acted in a broad preventative role; such regulations were based on outdated science and included a causation standard below the legal standard required to establish causation in court actions, and were hearsay. The plaintiff replied that this request was overly broad, premature, and such regulations were regularly admitted in asbestos cases. The court issued various rulings with this request, but noted that the plaintiff seemed to acknowledge that the standards promulgated as protective measures were inadmissible to demonstrate causation.

Third, the defendants sought to preclude various “state-of-the-art” witnesses, arguing that these witnesses were little more than librarians of assorted, carefully selected articles regarding defendants’ alleged knowledge of asbestos hazards. The plaintiff argued Drs. Castleman, Rosner, and Markowitz were highly qualified to address this issue. The court denied this motion in limine; these witnesses had specialized knowledge to assist the trier of fact and the defendants were free to submit counter evidence.

Fourth, the defendants argued that the plaintiff should be precluded from imputing trade association actions and knowledge to the defendants; the plaintiff argued this motion was premature and that that such evidence was relevant. The court denied this motion in limine. Potential evidence concerning the knowledge of trade associations could be considered as a basis for a jury’s finding on a duty to warn.

Finally, the court denied the defendants’ motion in limine to use interrogatory answers and corporate representative depositions from settled and bankrupt defendants. New York rules of evidence do not allow for admission of same.

Read the full decision here.


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