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Court Grants in Part and Defends in Part Defendants’ Omnibus Motion in Limine

United States District Court for the Eastern District of Louisiana, October 24, 2022

The plaintiffs brought this asbestos exposure case alleging decedent Callen Cortez contracted mesothelioma following extensive exposure throughout his career as well as secondhand exposure from his father and brothers.  Defendants included asbestos-related manufacturers, premise owners, and employers.  The defendants filed an omnibus motion in limine prior to trial.

Firstly, defendants moved to prohibit plaintiffs from characterizing them all as “asbestos companies,” or members of the “asbestos industry,” on the grounds that this wholesale characterization was inaccurate, misleading, of no probative value, and prejudicial.  Moreover, defendants stated they were never “in the business” of mining, milling, or manufacturing asbestos,” as the plaintiffs contend.  The plaintiffs countered that the use of the term “’asbestos industry” is appropriate, since defendants either manufactured or utilized asbestos in their products. 

The court determined the use of the phrase “the asbestos industry” was inaccurate because it suggested that all defendants were “part of a monolithic industry devoted primarily to the production and sale of asbestos.”  Cortez v. v. Lamorak Ins. Co., 2022 US Dist LEXIS 192934, at 2-3 (ED La Oct 24, 2022, No. 20-2389).  The court reasoned that a company who utilized asbestos-containing products on their premises was not akin to a company who manufactured or sold asbestos.  Consequently, the court granted defendants’ motion to prevent the use of this term.

Second, defendants moved to prohibit plaintiffs from referring to the decedent as an “asbestos victim” or “victim of asbestos,” stating such terms were unfairly prejudicial.  The court denied this motion; it had previously granted summary judgment to the plaintiffs on the issue of whether asbestos caused Callen Cortez’s mesothelioma.  As such, it found that these “victim” terms were not prejudicial.  Thirdly, the court granted defendants’ motion in limine to prohibit reference to medical conditions of individuals other than the decedent, finding such evidence irrelevant.  The court also granted defendants’ motion in limine to exclude evidence to support an award of punitive damages, reasoning there was no evidence of conduct entitling plaintiffs to such relief. Moreover, the court rejected the plaintiff’s argument that such evidence could exist as “glib.”  It found that the plaintiffs should have known which defendants could be liable for punitive damages by that point in litigation.

The defendants also moved to prohibit the testimony of the decedent and his brothers concerning the issue of asbestos dust.  The defendants asserted dust emitted from asbestos-containing products was the proper subject for an expert witness, instead of the Cortez brothers as lay witnesses.  Relying on the Federal Rules of Evidence, the court denied this motion.  It found lay opinion as admissible if: (1) it is rationally based on the witness’s perception; (2) it is helpful to clearly understand the witness’s testimony or to determining a fact in issue; and (3) it is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.  Cortez v. Lamorak Ins. Co., 2022 US Dist LEXIS 192934, at *7 (ED La Oct 24, 2022, No. 20-2389); Fed R. Evid. 701.  The court determined all three brothers worked around or with asbestos-containing products extensively and their inferences about asbestos-related dust were rationally based on their own experiences.

Next, individual defendant LIGA moved to exclude opinions about the dust on Calise Cortez’s work clothing in 1967.  The plaintiffs testified their father, Calise, returned from work at the Nine Mile Point power plant covered in white dust. The decedent later concluded such dust was asbestos dust during his own employment since the presumably same white dust covered his clothing as well.  The court determined his testimony was “extrapolation” and not based on the witness’s perception from the relevant period.  Thus, this testimony was too speculative to be probative and hearsay.  The court also granted LIGA’s motion to exclude the deposition testimony of Gustav von Bondugen from an unrelated case.  LIGA argued Mr. von Bondugen’s deposition did not comply with Federal Rule of Civil Procedure 32(a)(8).  The court agreed; the previous matter did not involve the same issues with the parties as the case at bar.

Individual defendant Hopeman Brothers, Inc. sought to exclude evidence of its work at Halter Marine, stating there was no evidence to establish it installed asbestos-containing wallboard at that location.  However, the court denied this motion, pointing to its previous denial of defendant Westinghouse’s summary judgment motion on the same issue.  Finally, Westinghouse moved to exclude an in-house memorandum from 1987 under Rules 401, 403, and 801 of the Federal Rules of Evidence.  The court found this memorandum about document perseveration was inadmissible under hearsay and more prejudicial than probative.

Read the full decision here