IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
|ROLAND LEO GRENIER, SR., et al.;MARLON CLARENCE OWENS, et al.; and OLIVER EDWARD SANDAHL, et al.,|
METROPOLITAN LIFE INSURANCE COMPANY, INC.; et al., Defendant(s).
|FILE NO. 05C-11-257 ASBFILE NO. 06C-02-241 ASB|
FILE NO. 05C-11-057 ASB
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTIONS
IN LIMINE TO EXCLUDE THE EPA PAMPHLET “GOLD BOOK FOR PREVENTING
ASBESTOS DISEASE IN AUTO MECHANICS,” AND SIMILAR
DOCUMENTS ISSUED BY REGULATORY AGENCIES
While seeking to admit regulations and guidelines by one government agency, see motions to admit OSHA permissible exposure limits filed by various Defendants, including Maremont Corporation, Defendants seek to exclude publications by the EPA. Like the OSHA regulations Defendants seek to admit, this EPA document on the hazards of asbestos is relevant and admissible. Defendants FORD MOTOR COMPANY, MAREMONT CORPORATION, and PNEUMO ABEX, LLC’s Motions in Limine to Exclude the EPA Pamphlet “Gold Book for Preventing Asbestos Disease in Auto Mechanics,” And Similar Documents Issued By Regulatory Agencies should be denied.
Table Of Contents
In 1986, the EPA, as part of its Asbestos Action Program, published a pamphlet titled “Guidance for Preventing Asbestos Disease Among Auto Mechanics,” commonly referred to as the “Gold Book” because of the color of its front cover. This EPA publication on the hazards of asbestos-containing friction materials, which the EPA has made available for almost two decades, is undeniably relevant to the question of whether Defendants’ products caused the Decedent’s injuries and whether Defendants acted with reasonable care. It is admissible under the hearsay rules, and its probative value is not substantially outweighed by any danger of unfair prejudice.
The Gold Book Is Relevant.
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” D.R.E. 401. The information reported in the EPA’s Gold Book showing the dangers of asbestos-containing friction products to brake mechanics tends to show that Defendants’ asbestos-containing friction products caused Plaintiffs’ injuries.
The Gold Book Is Admissible under the Hearsay Rules.
The Gold Book is admissible as a public report under D.R.E. 803(8), which excepts from hearsay “records, reports, statements or data compilations, in any form, of a public office or agency . . .  matters observed pursuant to duty imposed by law and as to which there was a duty to report, or  factual findings resulting from an investigation made pursuant to authority granted by law.” The EPA has a duty to disseminate information on hazardous substances, including asbestos, and its web site lists publishing such information as one of its six functions in its mission “to protect human health and the environment.” See “About EPA,” at http://www.epa.gov/epahome/aboutepa.htm. The Gold Book was published as part of the agency’s Asbestos Action Program in 1986. The EPA is given regulatory control over asbestos by both the Toxic Control Substance Act and the Clean Air Act. See 15 U.S.C. §§ 2601 et seq.; 42 U.S.C. §§ 7401 et seq. Contrary to Defendants’ claims, Mem. at 7-14, the Gold Book meets both of the above criteria. Notably, at the same time Defendants have collectively moved to exclude evidence of the EPA Gold Book, they are seeking to permit evidence of OSHA permissible exposure limits. See, e.g., Defendant Maremont Corporation’s Motion In Limine To Permit Evidence of OSHA Permissible Exposure Limits Or Other Regulations And Standards Concerning Exposure Levels. Defendants cannot be permitted to “have their cake and eat it too.”
Defendants suggest that the Gold Book does not meet the criteria because (1) it is outdated; (2) it is not relied upon by its authoring agency; (3) it has been superseded: (4) it is not a reasonable basis for an expert opinion; and (5) it is inflammatory and should be excluded under D.R.E. 403 and 703. See Maremont Mem. at 8; Ford Mem. at 1-2; Pneumo Abex Mem. at 1-3. Even if Defendants were correct that the Gold Book is inconsistent with other statements made by the EPA, that fact alone does not change the status of a report under the Rule. Neither do Defendants’ criticisms of the Gold Book as “unsupported” and “inflammatory” change its status as a public report.
Defendants’ suggestion that the Gold Book is “inflammatory” relates instead to the next portion of the rule that provides that public reports are excluded from the exception and will be inadmissible if “the sources of information or other circumstances indicate lack of trustworthiness.” D.R.E. 803(8). The public records exception to the hearsay rule is “premised on the assumption that public officials perform their duties properly without motive or interest other than to submit accurate and fair reports.” Espinoza v. Immigration & Naturalization Serv., 45 F.3d 308, 310 (9th Cir.1995). See also Reynolds v. Green, 184 F.3d 589, 596 (6th Cir. 1999). Public records are “presumed to be trustworthy, [and] the burden is on the party opposing admission to show that a report is ‘inadmissible because its sources of information or other circumstances indicated a lack of trustworthiness.’” Reynolds, 184 F.3d at 596; see also Espinoza, 45 F.3d at 310. Defendants have not begun to carry this burden.
The presumption in favor of trustworthiness may not be justified when the person preparing the public report or record “had a strong personal interest in the matter” for failure to satisfy “the rule’s fundamental tenet that the recorder of the information be under a duty to report facts objectively and accurately without bias or self-serving averments.” Sikora v. Gibbs, 726 N.E.2d 540, 543-44 (Ohio Ct. App. 1999). For example, the trustworthiness of a report will be suspect when “the records are controlled by the defendants themselves rather than by clerks assumed to be disinterested.” United States v. Spano, 421 F.3d 599, 604 (7th Cir. 2005). Defendants have made no argument, nor could they credibly make the argument, that the EPA officials who prepared the Gold Book had a strong personal interest in this matter. Defendants must find some other means of overcoming the presumption that the report is trustworthy.
Defendants suggest that the Gold Book lacks trustworthiness because, in Defendants’ opinion, it is “replete with inflammatory assertions that contradict the established science, are supported only by the citation of dubious sources . . . and contradict the authoritative regulatory pronouncement of the EPA and OSHA.” See e.g., Pneumo Abex Mem. at 11. Defendants’ suggestion that the Gold Book is untrustworthy must be rejected because the Gold Book cites dozens of published, peer-reviewed sources and has been subjected to scientific scrutiny for two decades. Cf. Horvath v. Baylor Univ. Med. Ctr., 704 S.W.2d 866 (Tex. App.—Dallas 1985) (finding that report of “recommended guidelines” did not contain such “indicia of reliability”).
Other courts have relied heavily on similar EPA Guidance documents. For example, in Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 146 F. Supp. 2d 643, 670 (D.N.J. 2001), aff’d, 359 F.3d 226 (3d Cir. 2004), the defendant denied knowledge of the hazards of in-place asbestos because the EPA had not passed regulations addressing them. The court rejected the defendant’s argument based on an EPA document similar to the one at issue here:
Prudential implies that because the EPA had not yet passed regulations addressing the hazards of in-place asbestos in commercial buildings, the EPA regulations of the 1970’s were not relevant to its activities as a commercial building owner. Yet the second EPA document, “Guidance for Controlling Friable Asbestos Containing Materials in Buildings,” also know as the EPA “Blue Book,” published in March, 1983, explicitly argues otherwise. It indicates that federal law does not mandate corrective action or set exposure standards, but asserts in its introduction that building owners are not thereby relieved of responsibility for monitoring asbestos in their buildings: “The potential for exposure to airborne asbestos in buildings and the associated risk of asbestos-related disease cannot be ignored. The decision whether or not to take action and the selection among alternative courses of action are the responsibility of the individual building owner.” The Blue Book then outlines in detail the steps a building owner should take to survey its buildings, the ways its should analyze the results of the survey and methods for controlling asbestos.
Id. (emphasis added; internal citations omitted). The admissibility of the EPA Blue Book was not an issue on appeal, but the court’s heavy reliance on the Blue Book belies Defendants’ suggestion that such Guidance documents are the unauthorized rantings of unqualified bureaucrats at the EPA. Mem. at 11.
Such Guidance documents have been characterized by courts as the EPA’s position on issues concerning asbestos. See In re Celotex Corp., 196 B.R. 973, 982 (Bkrtcy. M.D. Fla. 1996) (“In [The EPA guidance book, Asbestos-Containing Material in School Buildings: A Guidance Document, Parts 1 and 2, referred to as the “Orange Book (1979)”], the EPA took the position any exposure to asbestos was a health hazard and there was no known level of exposure which was safe.”); Bd. of Educ. of Hilton Cent. School Dist. v. Ambach, 474 N.Y.S.2d 244, 245 (N.Y. Sup. Ct. 1984) (“According to the Environmental Protection Agency ‘friable material is material that can be crumbled, pulverized or reduced to powder in the hand.’ EPA Asbestos-Containing Material In School Buildings: A Guidance Document (‘EPA Guidance Document’), Part I p. 3″).
Defendants’ argument that the Gold Book is no longer valid in light of the pending release of the Brochure is not accurate. See “Current Best Practices For Preventing Asbestos Exposure Among Brake and Clutch Repair Workers – Text Version,” at http://www.epa.gov/asbestos/pubs/goldbooktext.html. While the new Brochure the EPA plans to release will technically replace the Gold Book, nothing in the new Brochure criticizes or disavows the information contained in the Gold Book. Even if Defendants were correct, however, it would not make the Gold Book inadmissible. Indeed, each EPA Guidance document is based on “the latest scientific knowledge” and may reflect changes in understanding, but “[n]one of the books is considered to have supplanted previous EPA guidance documents.” In re Celotex Corp., 196 B.R. at 982. Evidence, even statements by the same agency, need not be consistent to be admissible—and the jury weighs all the evidence in reaching its verdict.
The cases cited by Defendants are unavailing. In Lee v. C&S, 542 A.2d 352, 355 (Del. Super. 1987), the court found inadmissible epidemiological statistics of disease prevalence – not a published official report. In Camp v. Harris Methodist Fort Worth Hosp., 983 S.W.2d 876, 882 (Tex. App. 1998)), the court excluded a report because it was not authored by a physician as required by Texas statute. Other cases consider documents that are categorically excluded under D.R.E. 803(8) as “factual findings resulting from special investigation of a particular complaint, case or incident.” See Frick v. Am. President Lines, Inc., 1975 WL 1257 (Del. Ch. June 18, 1975) (excluding Ship Valuation Committee’s opinion on value of particular vessels at issue in the case); see also Camp, 983 S.W.2d at 882.
Defendants Have Not Shown That the Gold Book Should Be Excluded under Rule 403.
Defendants have not shown that the probative value of the Gold Book is substantially outweighed by the danger of unfair prejudice, and therefore must be excluded under D.R.E. 403. When weighing the evidence’s probative value against the danger of unfair prejudice, the Court “must look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.” See Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1135 (4th Cir.1988) (holding that “in reviewing a decision under [F.R.E.] 403, the court must ‘look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect’”); United States v. Hans, 684 F.2d 343, 346 (6th Cir. 1982) (same).
Defendants cannot begin to show that the Gold Book should be excluded under Rule 403. Defendants have not even attempted to show that the evidence lacks probative value. The Gold Book draws on extensive scientific research, and the information regarding brake products is highly probative on the issues of causation and negligence. Defendants have made no attempt to explain how any danger of unfair prejudice, confusion of the issues, misleading the jury or undue delay outweighs, must less substantially outweighs, the probative value of the Gold Book.
Plaintiffs respectfully request that Defendants’ Motions in Limine to Exclude the EPA Pamphlet “Gold Book for Preventing Asbestos Disease in Auto Mechanics,” And Similar Documents Issued By Regulatory Agencies be denied in their entirety.
Date: January 12, 2007