Larson et al v. Bondex International et al
MEMORANDUM DECISION AND ORDERdenying 108 Defendant Georgia-Pacific LLC's Motion in Limine to Exclude Evidence of the Post-Exposure CPSC Ban on Certain Asbestos-Containing Joint Compounds. Signed by Judge Ted Stewart on 07/18/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
DIANNA K. LARSON and MERLIN B.
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT
GEORGIA-PACIFIC LLC’S MOTION
IN LIMINE TO EXCLUDE
EVIDENCE OF THE POSTEXPOSURE CPSC BAN ON
CERTAIN ASBESTOSCONTAINING JOINT COMPOUNDS
BONDEX INTERNATIONAL, INC., et al.,
Case No. 2:08-CV-333 TS
The Court has before it Defendant Georgia-Pacific LLC’s (“Georgia-Pacific”) Motion in
Limine to Exclude Evidence of the Post-Exposure CPSC Ban on Certain Asbestos-Containing
Joint Compounds.1 Georgia-Pacific contends that such evidence is irrelevant, highly prejudicial,
and inadmissible hearsay. For the reasons set forth below, the Court will deny the Motion.
Docket No. 108. This Motion is joined by Defendant Union Carbide. See Docket No.
Georgia-Pacific contends that evidence of the Consumer Product Safety Commission’s
December 15, 1977 ban (the “CPSC ban”) on the use of asbestos in joint compound products is
irrelevant and, therefore, inadmissable. In support of this argument, Georgia-Pacific cites to
several alleged defects in the CPSC’s methodology and contends that regulatory agency
determinations are unreliable because these agencies serve in a preventative role and need not
justify their determinations with scientific certainty.
The Court finds that, while Georgia-Pacific’s contentions certainly go to the weight of
such evidence, these shortcomings do not make the CPSC ban irrelevant to the present matter.
“‘Relevant evidence’ means 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.”2 Of course, “[t]he standard is not stringent; it is aimed at each ‘brick’
of evidence potentially making a wall and not every witness ‘mak[ing] a home run.’”3 As noted
by Plaintiffs, evidence of the CPSC ban is relevant to several of Plaintiffs’ claims, including that
Defendant’s products were unreasonably dangerous based on a failure to warn of dangers known
or knowable to the Defendants. The Court will, therefore, deny this ground for relief.
Georgia-Pacific further contends that the CPSC ban is inadmissible under Fed.R.Civ.P.
Fed. R. Evid. 401.
United States v. Yazzie, 188 F.3d 1178, 1189 (10th Cir. 1999) (quoting Fed. R. Evid. 401
advisory committee’s note).)
403 because a jury is likely to give the pronouncement undue weight and introduction of such
evidence would require the investigation and development of numerous collateral issues. Rule
403 requires the Court to evaluate whether the probative value of a piece of evidence is
“substantially outweighed by the danger of unfair prejudice, confusion of the issues, or delay,
waste of time, or needless presentation of cumulative evidence.”4 In making this determination,
the Court should always be mindful that “exclusion of evidence under Rule 403 that is otherwise
admissible under the other rules ‘is an extraordinary remedy and should be used sparingly.’”5
The Court finds that the concerns cited by Georgia-Pacific do not substantially outweigh
the proposed evidence’s probative value. As persuasively explained by the Fourth Circuit, when
the issue of causation is important to the outcome of a matter,
an extended debate on the validity was not only permissible; it was to be
encouraged. That [Defendant] foresaw it would take considerable time and effort
to explain why the data were not relevant or reliable is not a reason to exclude the
data. To the contrary, if [Defendant] had a case to make, there is all the more
reason to insist the jury hear a full debate from the experts on the reliability of the
Georgia-Pacific will have an opportunity to test the validity of the CPSC data and explain
any alleged shortcoming to the jury. The Court, therefore, finds that the ban’s relevance is not
substantially outweighed by its prejudicial effect and will deny Georgia-Pacific’s Motion on this
United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001)(quoting United States v.
Rodriquez, 192 F.3d 946, 949 (10th Cir. 1999)).
Ellis v. Int’l Playtex, Inc., 745 F.2d 292, 304 (4th Cir. 1984).
Georgia-Pacific lastly contends that the CPSC ban is inadmissible hearsay because it is
not evidence “of a type reasonably relied upon by experts in the particular field.”7 GeorgiaPacific, however, fails to cite any evidence to support this assertion. By contrast, Plaintiffs
provide the Court with the testimony of its expert Dr. Jacques Legier that such findings and
pronouncements by government agencies represent a type of information routinely relied upon in
diagnosing patients. The Court, therefore, finds Georgia-Pacific’s argument unavailing and will
deny the Motion on this ground.
II. CONCLUSION & ORDER
It is therefore
ORDERED that Defendant Georgia-Pacific LLC’s Motion in Limine to Exclude
Evidence of the Post-Exposure CPSC Ban on Certain Asbestos-Containing Joint Compounds
(Docket No. 108) is DENIED.
DATED July 18, 2011.
BY THE COURT:
United States District Judge
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