U.S. District Court for the Eastern District of Louisiana, September 21-23, 2020
In Asbestos Case Tracker’s third installment of the analysis of pre-trial motions in the Dempster v. Lamorak Insurance Co. matter, the U.S. District Court for the Eastern District of Louisiana has issued nine decisions on additional motions in limine filed by the defendants. By way of background, the plaintiffs alleged the decedent, Callen L. Dempster, was exposed to asbestos while employed at the Avondale Shipyards from 1962 to 1994. The case was removed to federal court pursuant to the federal officer removal statute.
In the first motion, the defendants moved the court to issue an order allowing evidence of fault of all parties and non-parties that contributed to the decedent’s alleged asbestos-related disease. The defendants assert that Louisiana Civil Code article 2323 requires the determination of fault of all persons causing or contributing to the injury, regardless of whether the person is a party to the action, where comparative fault law applies. Additionally, the defendants cite case law holding that in virile share cases, the parties may present evidence regarding all potential parties that may have exposed an injured party to asbestos.
In opposition, the plaintiffs contend that, where virile share law applies, evidence regarding fault of an entity would not be presented to the jury unless the decedent released his lung cancer claim with respect to that entity. Furthermore, even under comparative fault law, the plaintiffs argue that there are situations where the fault of the parties cannot be apportioned and in solido law applies. In this case, The plaintiffs asserted that the evidence will show that fault cannot be apportioned between The defendants according to the respective harm they caused The decedent because the medical testimony will show that The decedent’s lung cancer resulted from the cumulative burden of asbestos, and that The decedent’s exposures from various sources cannot be divided from one another. Additionally, the plaintiffs assert that the defendants can be held solidarily liable under Louisiana Civil Code article 2324 because the plaintiffs have alleged that the defendants committed intentional torts against the decedent.
According to Louisiana law, “when a Plaintiff settles with and releases a joint tortfeasor and thereby deprives the remaining tortfeasor of his right to contribution against the one who has been released, the the plaintiff’s recovery is reduced by the released tortfeasor’s virile share. Before the remaining the defendant can receive a ‘credit’ for the settling parties’ virile share, the defendant must show: (1) the plaintiff released a party and (2) the released party is liable as a joint tortfeasor.” The defendants will only be entitled to a virile share credit if both of those conditions are met. Additionally, although The plaintiffs argue that fault cannot be apportioned, here, the court found that this is a question of fact for the jury, finding evidence of fault of immune or non-parties is relevant to the defense that fault should be allocated among these non-parties. The court granted the defendants motion.
In their second motion, the defendants moved to exclude evidence of accidents at the decedent’s place of employment that are not substantially similar or related to the facts and circumstances involving the decedent’s exposure to asbestos and as evidence of non-asbestos related regulatory citations at Avondale is irrelevant and should be prohibited under Rule 402.37. The plaintiffs argued that they would be prohibited from introducing evidence regarding regulatory violations involving asbestos during the time period that the decedent was employed. The court held that this argument was unavailing because the defendants did not seek an order excluding such evidence. Federal Rule of Evidence 403 provides that “the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” In granting The defendants motion, the court found that any probative value of evidence regarding alleged safety violations by The defendants unrelated to asbestos exposure is substantially outweighed by the danger of unfair prejudice and confusion of the issues.
Next, the defendants moved to exclude the plaintiffs’ trial Exhibit 0.9, designated as a “Day-in-the-Life Video of Callen Dempster.” The film purports to show how an injury has affected the daily routine of the decedent. In determining if the file is admissible, the court underwent the same analysis regarding Federal Rules of Evidence as discussed above. The court found that the video is of limited probative value because it does not show how lung cancer affected the decedent’s daily routine or situations. Furthermore, it found that the probative value of the video is substantially outweighed by a danger of unfair prejudice, confusing the issues, and needlessly presenting cumulative evidence. The court granted the defendants’ third motion.
In the fourth motion, The defendants sought multiple areas of relief including: (1) excluding evidence regarding the amount of liability coverage; (2) requiring The plaintiffs to disclose all settlements; (3) excluding purchase orders and/or invoices as evidence of exposure; (4) excluding references to The defendants as “Asbestos Companies,” “Asbestos The defendants,” or as part of the “Asbestos Industry”; (5) excluding any testimony or evidence of take home or secondary asbestos exposure to The decedent’s family members not specifically pled in this case; (6) allowing all Section 524 asbestos settlement trusts to be considered virile shares; and (7) precluding any evidence or argument regarding fraud or conspiracy relating to The defendants.
The court agreed with three of the defendants’ arguments. Utilizing the Rules of Evidence as their guide, the court excluded The plaintiffs from referencing limits in The defendants insurance coverage as not relevant, ordered The plaintiffs to disclose the names of the parties with whom The plaintiffs have settled and precluded testimony or evidence of any alleged take home exposures from The decedent as they were not plead in this case, and therefore, are not relevant.
The court denied three of The defendants arguments finding that purchase order or invoices regarding asbestos-containing products purchased by The defendants was relevant to the issues at hand and The defendants failed to show that the probative value of this evidence was substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury. Next, the court denied any exclusion of the plaintiffs’ references of the defendants as “Asbestos Companies” or “Asbestos The defendants” as overly broad. The court would also not allow all settlement trusts the plaintiffs filed claims with to automatically be virile shares. As discussed above, in order to be considered a virile share the defendants have to show (1) the plaintiff released a party, and (2) the released party is liable as a joint tortfeasor. Finally, the court denied the defendants motion to exclude any evidence or argument regarding fraud or conspiracy relating to the defendants since they have not moved to dismiss such claims.
Next, the defendants moved the court to exclude any evidence regarding labor union activities at the decedent’s employer. Specifically, the defendants wanted “to prohibit the plaintiffs and all other parties from making any reference to, soliciting testimony about, or introducing evidence regarding whether Avondale was unionized at any time.” The court agreed to exclude such evidence finding that the probative value of such evidence is substantially outweighed by a danger of unfair prejudice.
In the sixth motion, The defendants moved the court to issue an order ruling that insurance policy documents produced by Liberty Mutual were: (1) authentic within the meaning of Federal Rule of Evidence 901; (2) admissible as business records and/or as ancient documents under Federal Rule of Evidence 803(6) and 803(16); (3) true and correct photographic duplicates of originals that have been lost or destroyed with the passage of time, and may be used in lieu of, and to the same extent as, the originals pursuant to Federal Rule of Evidence 1003; and (4) admissible into evidence at trial to the extent that they are relevant. The plaintiffs argued that the motion should be denied for two reasons: (1) the stipulations of Liberty Mutual are not binding on the plaintiffs; and (2) the documents are unauthenticated and constitute inadmissible hearsay.
Pursuant to Rule 901(b)(4), a document may be authenticated based on its “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”
The court did not address the plaintiffs’ arguments regarding the stipulations stating that the defendants have produced sufficient evidence to show that the insurance documents are what the defendants claim them to be. The court further found that the documents at issue bear the Liberty Mutual logo and describe policies of insurance between Liberty Mutual and Wayne Manufacturing or between Liberty Mutual and The defendants (the parent company of Wayne Manufacturing). Therefore, the Liberty Mutual insurance policy documents are admissible into evidence at trial to the extent that they are relevant.
The defendants next moved the court to exclude any evidence of any asbestos-related illnesses, hearing loss, and other ailments of non-parties, including witnesses and the decedent’s family members. In opposition, the plaintiffs asserted that the fact that others were exposed to asbestos on the defendants’ premises and developed asbestos-related diseases is highly relevant to showing asbestos fibers that caused lung cancer were present on the defendants’ premises. The court agreed, finding that the fact that other individuals who worked with the decedent were also exposed to asbestos and developed asbestos-related diseases relevant to the plaintiffs’ case. The defendants failed to show that the probative value of such evidence was substantially outweighed by a danger of unfair prejudice. Therefore, the court did not issue a blanket ruling excluding any evidence of asbestos-related illnesses suffered of non-parties, but precluded reference to any non-asbestos related injuries.
The next motion is similar to an argument made by The defendants in a prior motion, seeking The plaintiffs to disclose their (1) settlements with bankruptcy trusts and claims facilities; (2) settlements with all parties to this case; and (3) settlements with any non-parties whether those settlements occurred prior to or during the trial. Although the plaintiffs opposed the motion, they agreed to disclose the identities of those parties with whom the plaintiffs have settled since the inception of the instant action.
In the final motion, the defendants moved the court to issue an order excluding certain testimony that may be offered at trial by the plaintiffs. The defendants argued such testimony is inadmissible hearsay evidence, not based upon personal knowledge, and irrelevant, inflammatory and unduly prejudicial. The testimony at issue involved any statements or stories told to the plaintiffs by the decedent regarding his work and interactions with his boss, Albert L. Bossier, Jr. The plaintiffs argued that the testimony falls within an exception to the hearsay rule. Federal Rule of Evidence 803(19) provides an exception to the rule against hearsay for reputation evidence concerning personal or family history. Rule 803(19) provides that evidence concerning “reputation among a person’s family by blood, adoption, or marriage-or among a person’s associates or in the community-concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history” is not excluded by the rule against hearsay. The anticipated testimony regarding statements the decedent made about his experiences with his boss clearly does not fall within this exception. The plaintiffs also cited Rule 803(21) which provides an exception to the rule against hearsay for reputation evidence concerning a person’s character. Rule 803(21) provides that evidence concerning “reputation among a person’s associates or in the community concerning the person’s character” is not excluded by the rule against hearsay. The court, again, was not persuaded by this argument finding that being a difficult boss is not character evidence worthy of the hearsay exception here. Therefore, the court precluded the hearsay testimony.