PLAINTIFFS’ TRIAL BRIEF REGARDING LOBBYING
AND TRADE ASSOCIATION MINUTES
The arguments made by Defendant Garlock Sealing Technologies LLC (“Garlock”) reflect a fundamental misunderstanding of the Noerr-Pennington doctrine and constitutional law. It is well settled that evidence of a company’s involvement in trade associations is admissible to show knowledge and the “state of the art.”
ARGUMENTS AND AUTHORITIES.
Garlock relies on Diaz v. Southwest Wheel, Inc., 736 S.W.2d 770, 774 (Tex. App. – Corpus Christi 1987, writ denied), in which the court held that the Noerr-Pennington doctrine barred a conspiracy claim against members of the National Wheel & Rim Association. See id. at 774. The Noerr-Pennington doctrine has no bearing on this case. The doctrine exempts companies from liability under the federal antitrust laws for certain activities designed to influence government policy. The doctrine has also been extended to other contexts and in some circumstances “bars litigation arising form injuries received as a consequence of First Amendment petitioning activity.” RRR Farms, Ltd. v. American Horse Protection Ass’n, Inc., 957 S.W.2d 121, 129 (Tex. App. – Houston [14th Dist.] 1997) (emphasis added). The injuries in this case were caused by defective products, not “First Amendment petitioning activity.” The Noerr-Pennington doctrine does not, and never has, required the exclusion of evidence relevant to a product manufacturer’s knowledge. Moreover, even if Garlock were entitled to assert an affirmative defense based on Noerr-Pennington, it would have the burden to plead and prove all elements of the defense. Id.
The Noerr-Pennington doctrine does not bar the admission of otherwise relevant evidence. In United Mine Workers v. Pennington, 381 U.S. 657 (1965), one of the cases that established the doctrine, the U.S. Supreme Court explicitly stated that evidence regarding activities protected by the Noerr-Pennington doctrine could still be admitted “under the established judicial rule of evidence that testimony of prior or subsequent transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny.” Id. at 670 n.3. More broadly, evidence of constitutionally protected speech is routinely admissible to show knowledge, motive and intent. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) (“The First Amendment … does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”); Dawson v. Delaware (1992) 503 U.S. 159, 165 (“[T]he Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations . . . simply because those beliefs and associations are protected by the First Amendment.”); Hrynda v. U.S. (M.D. Fla. 1996), 933 F.Supp. 1047, 1053 (noting “the abundance of law throughout the country concerning the use of speech as evidence in proving violations of conduct-based laws”).
Under Texas law, a defendant’s involvement in industry associations is admissible on issues such as knowledge and “state of the art.” For example, in Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex. 1998), the Supreme Court of Texas considered Mobil’s membership in the National Safety Council and the American Petroleum Institute as evidence that Mobil was aware of “the extreme degree of risk associated with benzene exposure.” Id. at 922. In Brown & Root Inc. v. Shelton, __ S.W.3d ___, 2003 WL 21771917, (Tex. App. – Tyler 2003, no pet.) (noting that defendant’s membership in National Safety Council was evidence that the defendant “was aware of the health hazards related to its use of asbestos.”).
The Fifth Circuit explained in Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir. 1985) that minutes from a meeting of the Asbestos Textile Institute (“ATI”) were relevant to the “state of the art,” i.e. the dangers of asbestos that were “scientifically discoverable.” Id. at 461-65. The minutes of the trade association were relevant to show that the members “were aware of the risks associated with asbestos products.” Id. at 465. Documents related to Garlock’s participation in trade associations are likewise admissible to demonstrate what Garlock knew or should have known about the hazards of its asbestos-containing products.
Garlock argues that all trade association minutes should be excluded if (1) Garlock was not a member of the association; (2) Garlock was a member but not in attendance or (3) Garlock was in attendance but the speaker was not a direct employee of Garlock. Garlock has offered no legal basis for excluding such evidence. As discussed above, evidence related to trade associations is highly probative with respect to the “state of the art,” demonstrating what was known or should have been known about asbestos. See Dartez, 765 F.2d at 461. The fact that a manufacturer was not a member of a particular association or was not present at a particular meeting is immaterial, because the evidence is offered to show what the manufacturer should have known or could have known during the relevant time frame. In Dartez, the defendants argued that such evidence was irrelevant because they were not members of the ATI. The court explained that “these factors do not affect the relevance of this evidence to the state of the art issue.” Id. at 465; see also Hamilton v. Garlock, Inc. (S.D.N.Y. 2000), 96 F.Supp.2d 352, 355 (trade association documents admissible even though defendant not copied on them); George v. Celotex Corp. (C.A.2, 1990), 914 F.2d 26, 29-30 (unpublished report that defendant never saw was admissible to establish dangers of asbestos that defendant could have discovered).