IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ASBESTOS LITIGATION
|C.A. No. 05C-07-135 ASB|
C.A. No. 05C-08-219 ASB
C.A. No. 05C-09-033 ASB
C.A. No. 05C-09-065 ASB
C.A. No. 05C-08-061 ASB
C.A. No. 05C-07-123 ASB
C.A. No. 05C-08-071 ASB
C.A. No. 05C-09-096 ASB
C.A. No. 05C-07-176 AS
PLAINTIFFS’ CONSOLIDATED RESPONSE TO MOTIONS IN LIMINE ON MEDICAL AND SCIENTIFIC ARTICLES AND OTHER “STATE OF THE ART” DOCUMENTS
1.Defendants Borg-Warner Corporation, Cleaver-Brooks, Inc., DaimlerChrysler Corporation, D.B. Riley, Inc., Ford Motor Company, Garlock Sealing Technologies, L.L.C., Georgia-Pacific Corporation, Plastics Engineering Company, and Pneumo Abex, LLC have moved in limine to exclude medical and scientific articles, trade association documents and other evidence relevant to the “state of the art.” Since the inception of asbestos litigation, courts in Delaware and throughout the country have consistently rejected these arguments. Medical articles, trade association documents and other historical records are admissible to show what manufacturers of asbestos-containing products should have known about the health effects of asbestos.
2.Many of the motions include incomplete and misleading quotations from this Court’s May 9 ruling in the Pate Trial Group. In the May 9 hearing, the Court expressly held that historical documents could be presented to the jury and that expert witnesses could “say what is said and highlight portions of the literature and information . . . chronologically or in some other orderly fashion [that] will allow the fact-finder to understand a progression or sequence of events.” This is exactly what the Plaintiffs’ expert witnesses, such as Dr. Richard Lemen, will do. Dr. Lemen, having led the federal government’s efforts to compile and disseminate information about asbestos from the 1970s onward, is uniquely qualified to address the development of knowledge in this area.
3.The Defendants also argue that the documents are not admissible unless they demonstrate the actual knowledge of a particular manufacturer. This argument simply misses the point of “state of the art” evidence. Such evidence is admissible to show “the information which was available and known within the industry” regarding asbestos. Farrell v. A. C. & S. Co., Inc., 1989 WL 70870 (Del. Super. 1989). Evidence of what was known to other product manufacturers is therefore “relevant to the issue of what information was known or should have been known to a reasonable manufacturer of asbestos products.” Id. (emphasis added). A manufacturer exercising reasonable care would “keep abreast of the literature on asbestos.” In re Asbestos Litigation, 832 A.2d 705, 712 (Del. 2003).
4.Rejecting identical arguments in Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir. 1985), the Fifth Circuit explained that the defendants’ analysis “reflects a misunderstanding of a critical issue in any product liability action: the state of the art pertaining to any possible risks associated with the product.” Id. at 461. Product manufacturers “are obliged to keep abreast of any scientific discoveries and are presumed to know the results of all such advances. Moreover, they each bear the duty to fully test their products to uncover all scientifically discoverable dangers before the products are sold. . . . The actual knowledge of an individual manufacturer is not the issue.” Id. (citing Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973), cert. denied, 419 U.S. 869 (1974)).
5.Applying similar reasoning in George v. Celotex Corp., 914 F.2d 26 (2nd Cir. 1990), the Second Circuit explained that the “state of the art . . . was defined in terms of whether the dangers of asbestos were reasonably foreseeable or scientifically discoverable at the time of plaintiff’’s exposure. . . . The document was relevant in plaintiff’s direct case not to show what Celotex knew, or even what manufacturers knew generally, but what, if the jury so determined, Celotex reasonably should have known had it either conducted its own tests or been in contact with others in the industry, such as IHF or ATI, that were testing.” Id. at 29 (emphasis added).
6.Virtually every court that has considered the issue has concluded that such evidence is admissible to show that dangers were “scientifically discoverable” at the time. See, e.g., Hamilton v. Garlock, Inc., 96 F.Supp.2d 352, 355 (S.D.N.Y. 2000) (trade association documents admissible even though defendant was not copied on them); Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 639 (Md. 1992) (“[K]nowledge can be established by evidence that the dangerous quality of the product should have been known by a manufacturer because it was known in the scientific or expert community.”); Owens-Corning Fiberglas Corp. v. Henkel, 689 A.2d 1224, 1229 (D.C. 1997) (“[T]he plaintiffs were entitled to demonstrate that experts in the field were aware of the hazards of asbestos, regardless of whether or not it was shown that OCF knew of these dangers.”); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 669 (Tex. App. 1991), cert. denied, 508 U.S. 909 (1993) (“[A]ppellees were not required to show that appellants were aware of the letters or were recipients of the letters to show that the dangers of asbestos were known in the industry at that time.”).
7.Several Defendants, particularly the automotive product manufacturers, argue that they were entitled to ignore any information that involved different asbestos-containing products. The Defendants cite no legal authority for such a proposition, and courts have consistently rejected such arguments. As the Fifth Circuit explained in Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314 (5th Cir. 1985), “[a] study indicating that exposure to asbestos fibers is likely to cause harm to one group of workers is at least suggestive of the fact that other groups of workers who are also exposed to asbestos fibers face similar dangers.” Id. at 1318.
8.In Pool, a manufacturer of liquid products argued that certain “state of the art” documents were not relevant because “the companies involved . . . did not make liquid products containing asbestos.” 813 S.W.2d at 669. The court explained that the manufacturer’s duty “was not limited to obtaining only the knowledge in some narrowly specialized field, but extended, at a minimum, to keeping abreast of scientific knowledge, discoveries and advances.” Id. Consequently, the plaintiffs were entitled to present documents pertaining to “the dangers of asbestos fibers generally when inhaled into the lungs.” Id.
9.More recently, in Hess v. Norfolk S. Ry. Co., 795 N.E.2d 91 (Ohio App. 2003), the court affirmed the admission of testimony from Dr. Lemen as to the “readily available body of knowledge as to what different industries knew about asbestos.” Id. at 101-02. Although the studies were not specific to railroad workers, the court held that Norfolk could not “hide its head in the sand and pretend that asbestos exposure was not known to be harmful for the past 43 years. What other industries knew, published, and circulated about the dangers of asbestos, the railroad also should have known.” Id. at 102.
10.Various defendants also make hearsay objections, which have no basis. Even apart from the learned treatise exception, the documents at issue are more than 20 years old and therefore admissible under D.R.E. 803(16). Moreover, the documents are not hearsay because they are being offered to show the effect they would have had on the Defendants’ state of mind, if the Defendants had exercised reasonable diligence in investigating asbestos hazards. See Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. Co., 660 N.E.2d 807, 811-12 (Ohio Com.Pl. 1995).
11.With respect to the “Sumner Simpson” papers, which are addressed in several motions, the defendants’ arguments have been specifically rejected. In Threadgill v. Armstrong World Industries, 928 F.2d 1366, 1372 (3rd Cir. 1991), the Third Circuit held that it was reversible error to exclude these documents and that no “serious” objection to their authenticity had been presented. Id. at 1375-76; see also Jackson v. Johns-Manville Sales Corp., 750 F.2d at 1317-18 (holding that Sumner Simpson papers were relevant as “state of the art” evidence); Fibreboard Corp. v. Pool, 813 S.W.2d at 669.
12.Plaintiffs respectfully request that the Court deny Defendants’ Motions in Limine on Medical and Scientific Articles and Other “State of the Art” Documents.
JACOBS & CRUMPLAR, P.A.
Date: June 22, 2006