U.S. District Court for the Eastern District of Louisiana, October 24, 2022
Plaintiffs brought this asbestos exposure case alleging that the late Callen Cortez contracted mesothelioma after extensive exposure throughout his career, as well as second-hand exposure from his father and brothers. The defendants included asbestos-related manufacturers, property owners and employers. The defendants submitted a collective application before the main hearing.
First, the defendants asked that the plaintiffs be barred from characterizing them all as “asbestos companies” or members of the “asbestos industry” on the grounds that such a blanket characterization was inaccurate, misleading, without evidentiary value and prejudicial. In addition, the defendants stated that they were never “in the business of mining, processing or manufacturing asbestos,” as the plaintiffs allege. The plaintiffs countered that the use of the term “asbestos industry” was appropriate because the defendants either manufactured or used asbestos in their products.
The court found that the use of the phrase “the asbestos industry” was inaccurate as it suggested that all of the defendants “were part of a monolithic industry devoted primarily to the manufacture and sale of asbestos.” Cortez vv Lamorak Ins. co2022 US Dist LEXIS 192934, at 2-3 (ED La 24 Oct 2022, #20-2389). The court reasoned that a company using asbestos-containing products on its premises is not related to a company that manufactures or sells asbestos. Consequently, the court granted the defendant’s motion to prevent the use of that term.
Second, the defendants requested that the plaintiffs be barred from referring to the deceased as an “asbestos victim” or “victim of asbestos,” arguing that such terms were unjustified. The court denied this request; Earlier, it had awarded the plaintiffs summary judgment as to whether asbestos caused Callen Cortez’s mesothelioma. It therefore found that these ‘sacrifice’ clauses were not prejudicial. Third, the court provisionally granted defendants’ motion to prohibit reference to the medical condition of anyone other than the deceased, finding such evidence irrelevant. The court also granted defendants’ motion in limine to bar evidence in support of an award of punitive damages on the ground that there was no evidence of conduct that would entitle the plaintiffs to such a remedy. In addition, the court rejected the plaintiff’s argument that such evidence could exist as “glib.” It found that at this point in the litigation, the plaintiffs should have known which defendants might be liable for punitive damages.
The defendants also requested that the testator and his brothers be barred from testifying asbestos dust. Defendants claimed that dust emitted from products containing asbestos was the proper subject for an expert witness, rather than the Cortez brothers as lay witnesses. Citing the Federal Rules of Evidence, the court denied that motion. It considered a lay opinion admissible if: (1) it is rationally based on the witness’s perception; (2) it is helpful to clearly understand the testimony of the witness or to establish a disputed fact; and (3) it is not based on scientific, technical or other expertise within the meaning of Rule 702. Cortez vs. Lamorak Ins. co, 2022 US Dist LEXIS 192934, at *7 (ED La 24 Oct 2022, #20-2389); Fed R Evid. 701. The Court found that all three brothers had worked extensively around or with products containing asbestos and that their conclusions about asbestos-related dust were rationally based on their own experience.
Next, in 1967, the single defendant petitioned LIGA to bar opinions about the dust on Calise Cortez’s work clothes. The plaintiffs testified that their father, Calise, returned from work at the Nine Mile Point power plant covered in white dust. The deceased later concluded that this dust was asbestos dust from his own employment, since what is believed to be the same white dust also covered his clothing. The court found that his testimony was “extrapolated” and not based on the witness’s perception of the relevant period. Therefore, this testimony was too speculative to be conclusive and hearsay. The court also granted LIGA’s motion to exclude Gustav von Bondugen’s testimony from another case. LIGA argued that Mr. von Bondugen’s testimony did not comply with Federal Civil Procedure Code 32(a)(8). The court agreed; The previous matter did not involve the same issues with the parties as the cash case.
Single defendant Hopeman Brothers, Inc. attempted to rule out evidence of his work at Halter Marine, stating there was no evidence he installed asbestos-containing wallboard at that site. However, the court denied that motion, citing its previous denial of the defendant Westinghouse’s motion for summary judgment on the same matter. Finally, Westinghouse requested that a 1987 internal memorandum be barred under Rules 401, 403, and 801 of the Federal Rules of Evidence. The court found that this memorandum on the perseveration of documents was, according to hearsay, inadmissible and more prejudicial than conclusive.
Read the full decision here