On December 16, 2019 a
Motion,Ex Parte
was filed
involving a dispute between
Rogers, Hilda,
Rogers, Joe Carl,
and
Acousti Engineering Company Of Florida,
Certainteed Corporation,
Honeywell International, Inc.,
J-M Manufacturing Company, Inc.,
Kaiser Gypsum Company, Inc.,
Mckesson Corporation,
Pfizer, Inc.,
Premix-Marbletite Manufacturing Co,
Supro Corporation,
Union Carbide Corporation,
Vanderbilt Minerals, Llc,
W.W. Gay Mechanical Construction Co.,
for Products Liability/Asbestos
in the District Court of Broward County.
Preview
Filing # 129373401 E-Filed 06/23/2021 04:28:39 PM
IN THE CIRCUIT COURT OF THE 1717th
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
JOE CARL ROGERS and
HILDA ROGERS, his wife,
GENERAL JURISDICTION DIVISION
Plaintiffs,
ASBESTOS LITIGATION
VS.
CASE NO. 19-025692 (27)
ACOUSTI ENGINEERING COMPANY
OF FLORIDA, et al.,
Defendants.
'
DEFENDANT SUPRO CORPORATION'S MOTION IN LIMINE TO BAR CERTAIN
DEMONSTRATIVE EVIDENCE INCLUDING ANY VIDEO OF INDIVIDUALS
SANDING DRYWALL AND ANY VIDEO USING TYNDALL LIGHTING
Defendant Supro Corporation (hereinafter, "Defendant" or "Supro") hereby moves the
Court in limine for an order barring demonstrative evidence involving asbestos-containing or
similar
products to which Plaintiffwas not exposed and/or involving
conditions differentfrom those under which Plaintiff'sexposure actually occurred. In particular,
Supro seeks to preclude Plaintiff from introducing any video of individualssanding drywall or
dried joint compoundand any video containing the use of Tyndall lighting.
Plaintiff has alleged that he was exposed to asbestos-containingproducts manufactured
by Supro. Supro has reason to believe that Plaintiffwill attempt at trial to introduce-or make
reference to-demonstrations and/or videos, including those referred to above, involving:
(1) products with which Plaintiff did not have contact either through hands-on work or as a
bystander during work with the product by others; and/or (2) conditions different from those
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/23/2021 04:28:37 PM.****
under which Plaintiff's exposure actually occurred. If any trial demonstrationsinvolving such
products or conditions are placed before the jury, the jury could decide this case on the basis of
irrelevant, misleading, confusing, and prejudicial evidence. If a demonstration is allowed prior
to the establishment of an appropriate foundation, moreover, an objection and instruction to
disregard the evidence would be ineffective and merely serve to heighten an impact of the
evidence.
Products introduced at trial for demonstrative purposes must be substantially similar
to the products at issue in the case. See Detroit Marine Engineering Inc. v. Maloy, 419 So.2d
687, 692 (Fla. 1 st DCA 1982) (ruling that trial court properly excluded steering wheels offered
as demonstrative evidence where wheels were manufactured under different circumstances and
conditions and made with materials different from those of wheel involved in the accident at
issue). Likewise, a party seeking to introduce a re-enactment or experiment at trial must lay "a
proper foundation for its admission by showing a similarity of the circumstances and
conditions." Watts v. State, 953 So.2d 776,777-78 (Fla. 4th DCA 2007) (citations and internal
quotation marks omitted).
If Plaintiff attempt to introduce demonstrations at trial, such demonstrations should be
subjectto the following requirementsof in camera proofprior to their introductionat trial:
1.
A specific product identification;
2.
Some evidence to indicate that the specific product was present at
Plaintiff's worksite and that he worked with or around the product;
3.
A showing that the demonstration is of a type and kind similar to Plaintiff's
exposure and involves similar working conditions;
2
Furthermore, demonstrations involving dissimilar products or circumstances would be
irrelevant, prejudicial, misleading, and confusingto the jury. Thus, introductionofthis evidence
is barred by Florida Evidence Code §§ 90.401 through 90.403.
Sanding Video
There are a number of drywalljoint compound "sanding" videos in existence which are
often used to try and demonstrate dusty conditions when sanding is conducted. However, there
will be no testimony or evidence identifying the person in the video, no evidence as to what
product or products the person is using in the video, no evidence as to who manufactured the
product, no evidence as to the ingredients or constituents of the product being used, and no
evidence as to manner, motive, timing, or conditions ofthatwhich is shown in the video. There
is no evidence or testimony whatsoeverthat the productsbeing used and the demonstrationbeing
done represents anything that Plaintiff used or was exposed to or that the methodology and
conditions were similar to what Plaintiff encountered.
Plaintiffshould be precluded from introducing the such video demonstrations, or any
videotaped or computer simulateddemonstration at trial, as such demonstration fails to identify
a specific product which was present at Plaintiff's worksite(s) and that he worked with or
around the product and fails to establish that the video shows work that is of a type and kind
similar to Plaintiff's exposure and involves similar working conditions.
Tyndall LightingVideos
Defendant anticipatesthat Plaintiffmaytry to introduce a video or videos of drywall work
being performed inside a laboratorysetting using Tyndalllightingto illuminateparticlesin the air.
Such videos are re-enactments which are insufficientlysimilar to the actual work at issue in this
case and are irrelevant, confusing and misleading. Tyndall lighting is simply a way to illuminate
3
particlesand does not distinguish between asbestos particles and non-asbestosparticles. Tyndall
lighting is not used as a tool to measure concentrations of respirable fibers and may be quite
misleadingbecause it visualizes unmeasured quantities ofmany differentsubstances.
As set forth above, a party seeking to introduce a re-enactment or experiment at trial must
establish similarity of the circumstances and conditions. Demonstrations involving dissimilar
products or circumstanceswould be irrelevant, prejudicial, misleading, and confusing to the jury
and, thus, barred by Florida Evidence Code §§ 90.401 through 90.403. The admission of Tyndall
lighting videotapeswould severely prejudice Defendantbecause it would have the effectintended
by the Plaintiff, to wit, to create in the jury's collective consciousness an unshakable perception
that the use of Supro products results in substantial dust clouds of asbestos-containing fiber and
result in the misconception that "perception is reality."
Moreover, the admission of those videotapeswould most likely confuse and mislead the
jury, as well as waste the jury's time. Plaintiff can offer scientific evidence in the form of the
testimony and data from their experts as to Defendant's products. However, there is no adequate
factual or legal basis to permit Plaintiff to play these videotapes which are offered for the sole
purpose of convincing the jury that Supro's products were very dusty and released dangerous
concentrations of asbestos fibers into the ambient air.
The jury will not be able to get that image
out of their mind's eye, which is precisely why plaintiff is attempting to admit these videotapes
into evidence. This is also the precise reason why they must be excluded.
WHEREFORE, Defendant Supro Corporation requests that this Court enter an order in
limine barring demonstrative evidence involving asbestos-containing or similar non-asbestos-
containing products to which Plaintiff Joe Rogers was not exposed and/or involving
conditions differentfrom those under which Plaintiff'sexposure actually occurred- in particular,
4
any video of individualssanding drywall or dried joint compound and any video containing the
use of Tyndall lighting.
Respectfully submitted this 23rd day of June, 2021.
HAWKINS PARNELL & YOUNG LLP
isi Todd C. Alley
Evelyn F. Davis
Florida Bar No. 0162744
edavis@hpylaw.com
Todd C. Alley
Florida Bar No. 0108536
talley@hpvlaw.com
303 Peachtree Street, N.E., Suite 4000
Atlanta, Georgia 30308-3243
(404) 614-7400 - Telephone
(404) 614-7500 - Facsimile
Counselfor Defendant Supro Corporation
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy ofthe foregoing has been electronically
served to all counsel of record via the Florida Court's E-Portal and File & ServeXpress this 13ird
day ofJune, 2021.
HAWKINS PARNELL & YOUNG LLP
Isl Todd C. Allev
Evelyn F. Davis
Florida Bar No. 0162744
edavis@hpylaw.com
Todd C. Alley
Florida Bar No. 0108536
talley@hpylaw.com
303 Peachtree Street, N.E.
Suite 4000
Atlanta, Georgia 30308-3243
(404) 614-7400 - Telephone
(404) 614-7500 - Facsimile
Counselfor Defendant Supro Corporation
6
13219609v.1
Preview
Filing # 129373401 E-Filed 06/23/2021 04:28:39 PM IN THE CIRCUIT COURT OF THE 1717th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA JOE CARL ROGERS and HILDA ROGERS, his wife, GENERAL JURISDICTION DIVISION Plaintiffs, ASBESTOS LITIGATION VS. CASE NO. 19-025692 (27) ACOUSTI ENGINEERING COMPANY OF FLORIDA, et al., Defendants. ' DEFENDANT SUPRO CORPORATION'S MOTION IN LIMINE TO BAR CERTAIN DEMONSTRATIVE EVIDENCE INCLUDING ANY VIDEO OF INDIVIDUALS SANDING DRYWALL AND ANY VIDEO USING TYNDALL LIGHTING Defendant Supro Corporation (hereinafter, "Defendant" or "Supro") hereby moves the Court in limine for an order barring demonstrative evidence involving asbestos-containing or similar products to which Plaintiffwas not exposed and/or involving conditions differentfrom those under which Plaintiff'sexposure actually occurred. In particular, Supro seeks to preclude Plaintiff from introducing any video of individualssanding drywall or dried joint compoundand any video containing the use of Tyndall lighting. Plaintiff has alleged that he was exposed to asbestos-containingproducts manufactured by Supro. Supro has reason to believe that Plaintiffwill attempt at trial to introduce-or make reference to-demonstrations and/or videos, including those referred to above, involving: (1) products with which Plaintiff did not have contact either through hands-on work or as a bystander during work with the product by others; and/or (2) conditions different from those *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/23/2021 04:28:37 PM.**** under which Plaintiff's exposure actually occurred. If any trial demonstrationsinvolving such products or conditions are placed before the jury, the jury could decide this case on the basis of irrelevant, misleading, confusing, and prejudicial evidence. If a demonstration is allowed prior to the establishment of an appropriate foundation, moreover, an objection and instruction to disregard the evidence would be ineffective and merely serve to heighten an impact of the evidence. Products introduced at trial for demonstrative purposes must be substantially similar to the products at issue in the case. See Detroit Marine Engineering Inc. v. Maloy, 419 So.2d 687, 692 (Fla. 1 st DCA 1982) (ruling that trial court properly excluded steering wheels offered as demonstrative evidence where wheels were manufactured under different circumstances and conditions and made with materials different from those of wheel involved in the accident at issue). Likewise, a party seeking to introduce a re-enactment or experiment at trial must lay "a proper foundation for its admission by showing a similarity of the circumstances and conditions." Watts v. State, 953 So.2d 776,777-78 (Fla. 4th DCA 2007) (citations and internal quotation marks omitted). If Plaintiff attempt to introduce demonstrations at trial, such demonstrations should be subjectto the following requirementsof in camera proofprior to their introductionat trial: 1. A specific product identification; 2. Some evidence to indicate that the specific product was present at Plaintiff's worksite and that he worked with or around the product; 3. A showing that the demonstration is of a type and kind similar to Plaintiff's exposure and involves similar working conditions; 2 Furthermore, demonstrations involving dissimilar products or circumstances would be irrelevant, prejudicial, misleading, and confusingto the jury. Thus, introductionofthis evidence is barred by Florida Evidence Code §§ 90.401 through 90.403. Sanding Video There are a number of drywalljoint compound "sanding" videos in existence which are often used to try and demonstrate dusty conditions when sanding is conducted. However, there will be no testimony or evidence identifying the person in the video, no evidence as to what product or products the person is using in the video, no evidence as to who manufactured the product, no evidence as to the ingredients or constituents of the product being used, and no evidence as to manner, motive, timing, or conditions ofthatwhich is shown in the video. There is no evidence or testimony whatsoeverthat the productsbeing used and the demonstrationbeing done represents anything that Plaintiff used or was exposed to or that the methodology and conditions were similar to what Plaintiff encountered. Plaintiffshould be precluded from introducing the such video demonstrations, or any videotaped or computer simulateddemonstration at trial, as such demonstration fails to identify a specific product which was present at Plaintiff's worksite(s) and that he worked with or around the product and fails to establish that the video shows work that is of a type and kind similar to Plaintiff's exposure and involves similar working conditions. Tyndall LightingVideos Defendant anticipatesthat Plaintiffmaytry to introduce a video or videos of drywall work being performed inside a laboratorysetting using Tyndalllightingto illuminateparticlesin the air. Such videos are re-enactments which are insufficientlysimilar to the actual work at issue in this case and are irrelevant, confusing and misleading. Tyndall lighting is simply a way to illuminate 3 particlesand does not distinguish between asbestos particles and non-asbestosparticles. Tyndall lighting is not used as a tool to measure concentrations of respirable fibers and may be quite misleadingbecause it visualizes unmeasured quantities ofmany differentsubstances. As set forth above, a party seeking to introduce a re-enactment or experiment at trial must establish similarity of the circumstances and conditions. Demonstrations involving dissimilar products or circumstanceswould be irrelevant, prejudicial, misleading, and confusing to the jury and, thus, barred by Florida Evidence Code §§ 90.401 through 90.403. The admission of Tyndall lighting videotapeswould severely prejudice Defendantbecause it would have the effectintended by the Plaintiff, to wit, to create in the jury's collective consciousness an unshakable perception that the use of Supro products results in substantial dust clouds of asbestos-containing fiber and result in the misconception that "perception is reality." Moreover, the admission of those videotapeswould most likely confuse and mislead the jury, as well as waste the jury's time. Plaintiff can offer scientific evidence in the form of the testimony and data from their experts as to Defendant's products. However, there is no adequate factual or legal basis to permit Plaintiff to play these videotapes which are offered for the sole purpose of convincing the jury that Supro's products were very dusty and released dangerous concentrations of asbestos fibers into the ambient air. The jury will not be able to get that image out of their mind's eye, which is precisely why plaintiff is attempting to admit these videotapes into evidence. This is also the precise reason why they must be excluded. WHEREFORE, Defendant Supro Corporation requests that this Court enter an order in limine barring demonstrative evidence involving asbestos-containing or similar non-asbestos- containing products to which Plaintiff Joe Rogers was not exposed and/or involving conditions differentfrom those under which Plaintiff'sexposure actually occurred- in particular, 4 any video of individualssanding drywall or dried joint compound and any video containing the use of Tyndall lighting. Respectfully submitted this 23rd day of June, 2021. HAWKINS PARNELL & YOUNG LLP isi Todd C. Alley Evelyn F. Davis Florida Bar No. 0162744 edavis@hpylaw.com Todd C. Alley Florida Bar No. 0108536 talley@hpvlaw.com 303 Peachtree Street, N.E., Suite 4000 Atlanta, Georgia 30308-3243 (404) 614-7400 - Telephone (404) 614-7500 - Facsimile Counselfor Defendant Supro Corporation 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe foregoing has been electronically served to all counsel of record via the Florida Court's E-Portal and File & ServeXpress this 13ird day ofJune, 2021. HAWKINS PARNELL & YOUNG LLP Isl Todd C. Allev Evelyn F. Davis Florida Bar No. 0162744 edavis@hpylaw.com Todd C. Alley Florida Bar No. 0108536 talley@hpylaw.com 303 Peachtree Street, N.E. Suite 4000 Atlanta, Georgia 30308-3243 (404) 614-7400 - Telephone (404) 614-7500 - Facsimile Counselfor Defendant Supro Corporation 6 13219609v.1