In an Extensive Decision, Court Excludes Many Post-Exposure Pieces of Evidence Against Brake Defendants U.S. District Court for the Eastern District of North Carolina, Western Division May 11, 2015
The plaintiff commenced this action alleging exposure to asbestos as a brake mechanic at various locations, with his last claimed exposure to Ford brakes in 1960 and Bendix brakes in 1962. In a pretrial motion in limine, defendants Ford and Honeywell sought to exclude all different types of post-exposure evidence the plaintiff sought to introduce at trial. The court issued a lengthy decision addressing many different issues. Here are some of the highlights:
As to whether post-exposure evidence generally is relevant under FRE 401 and 402, the court held that this evidence may be relevant on four grounds: “1) showing what defendants knew or should have known regarding the dangers of their products (as limited to knowledge prior to plaintiff Graham Yates’s exposures); 2) showing the feasibility of precautionary measures; 3) impeaching defendants’ contentions regarding the safety of their products; and 4) providing evidence supporting causation and the danger of defendants’ products.”
On the other hand, the court went on to rule that post-exposure evidence is not relevant to a defendant’s continuing duty to warn under North Carolina law. The plaintiff’s theory was if there was a post-exposure warning, he could have made different decisions regarding his health knowing he had been exposed to asbestos: “Plaintiffs’ allegations are similar to those addressed in Eagle-Picher, asserting that plaintiff Graham Yates could have altered ‘his healthcare and future actions’ if he had received warnings of the dangers of defendants’ products.” However, the court rejected that theory, stating: “plaintiffs do not allege what kind of actions plaintiff Graham Yates could have taken, or how these actions could have prevented or alleviated his mesothelioma. Nor do plaintiffs point to any evidence to support their assertions that plaintiff Graham Yates could have altered his healthcare and future actions. Without such evidence, plaintiffs cannot prevail on a theory of ‘continuing duty to warn.’”
With respect to post-exposure warnings and design changes, the court first discussed that FRE 407 bars this evidence as subsequent remedial measures. Rather than addressing whether this evidence was possibly excepted under FRE 407, the court ruled that it was not admissible under FRE 403, stating: “the risk of unfair prejudice from this evidence is great. As noted above, it is a small step from using this evidence for the purpose of knowledge or causation, and using it for the purposes prohibited by Rule 407. The clear inference from this use of warnings and design changes is that defendants were negligent, their products were defective, or that warnings or instructions were necessary. The risk of undue prejudice under Rule 403 substantially outweighs the probative value of warnings or design changes that constitute subsequent remedial measures, and requires exclusion.”
The court also ruled that evidence against Ford from the CCAR, an independent organization representing the automotive industry, was excludable under FRE 403 as prejudicial: “the risk that the jury will inappropriately infer from this evidence that defendant Ford was negligent, that its products were defective, or that it was required to provide a warning or instruction is strong. Nor does the probative value of the evidence justify the time that may be spent on trial exploring the circumstances behind the CCAR’s development of the materials, the relationship between CCAR and defendant Ford, and the process behind defendant Ford’s decision to adopt these statements. Accordingly, the evidence is excluded under Rule 403.4.”
With respect to the Friction Materials Standards Institute and Asbestos Textile Institute documents, the court held they were not properly authenticated and excluded them on that basis. The court also rejected the plaintiff’s argument that his expert should nevertheless be permitted to rely on these documents in offering expert opinions.
Ford also moved to: “1) prohibit any testimony, evidence or reference to foreign bans on the importation of chrysotile asbestos; 2) order counsel for plaintiffs to inform all witnesses not to refer to such bans; and 3) order that violation of any instructions would constitute irreparable harm, deprive Ford of a fair and impartial jury trial, and may constitute contempt and necessitate a mistrial.” The court granted Ford’s motion with respect to post-exposure foreign bans and reserved decision as to foreign bans when plaintiff claims exposure based on lack of detail.
The court made several additional rulings. If you represent a brake defendant, the entire decision is worth a read.