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Filing # 129350443 E-Filed 06/23/2021 02:20:56 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
JOE CARL ROGERS and
HILDA ROGERS, his wife,
GENERAL JURISDICTION DIVISION
CASE NO.: CACE-19-025692
Plaintiffs,
V
ACOUSTI ENGINEERING COMPANY
OF FLORIDA; et al.
Defendants.
i
DEFENDANT J-M MANUFACTURINGCOMPANY, INC.'S MOTION IN UMINE TO
EXCLUDE EVIDENCE OF A PROPOSED EPA dlBAN" ON ASBESTOS PRODUCTS
THAT NEVER WENT INTO EFFECT
(J-MM Motion in Limine No. 7)
Defendant J-M Manufacturing Company, Inc. ("J-MM") hereby moves this Court in
limine for an Order excluding evidence of the proposed Environmental Protection Agency
("EPA") "ban" on asbestos, which never went into effect, at trial in the above-referencedcase.
Particularly, J-MM requests this Court to issue an order in limine preventing any argument,
questions, reference or other attempts to mislead the jury to believe the EPA issued ban on
asbestos-cementpipe.
I.
INTRODUCTION
J-MM anticipates that Plaintiffs may refer to exhibits and/or testimony regarding a
proposed EPA ban on asbestos-containingproducts that was later overturnedby the Fifth Circuit
and which occurred qfter Mr. Rogers' alleged exposure to ACP. Plaintiffs should be prohibited
from making any such direct or indirectreference as all such evidence is entirelyunrelated to the
facts or claims in this case and would be unduly prejudicial and involve an undue consumption
of time. J-MM asks this Court to preclude any argument, questions, or other attempts to mislead
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/23/2021 02:20:56 PM.****
the jury to believe there was an EPA ban on asbestos-cement pipe--the alleged source of
exposure from J-MM.
II.
LEGAL ARGUMENT
While the EPA enacted regulations in 1989 phasing in an eventual ban of nearly all
asbestos products, this ban never went into effect.
In fact, EPA's proposed "ban" was
invalidated by the U.S. Court of Appeal for the Fifth Circuit on the ground that the ban as not
justified by reliable scientific data. Corrosion Proof Fittings v. EPA, 941 F.ld 1201, 1215 (5th
Cir. 1991) ("We conclude that the EPA has presented insufficientevidence to justify its asbestos
ban.").
A.
The EPA ban is not relevant to the issue of causation, and its admission into
evidence would be highly preiudicialand misleading.
Plaintiffs' allegation that Mr. Rogers' exposure to ACP was a substantial contributing
factor in the development of his mesothelioma must stand or fall on reliable and relevant
scientific evidence that exposure to ACP caused mesothelioma in this case. Yet, the EPA ban is
not relevant to this question, and its admission into evidence would only serve to confuse and
mislead the jury.
It has long been established that regulatory agencies like the EPA do not have to meet
scientific standards of proof of causation but rather, can act in a broad preventative role in
promulgatingregulations. See, Industrial Union Dep't v. American Petroleum Inst., 44% lj.S.
607, 656 (1980) ("OSHA is not required to support its finding that a significantrisk exists with
anything approaching scientific certainty
[OSHA] is free to use conservative assumptions in
...
interpreting the data with respect to carcinogens, risking error on the side of overprotection
rather than under protection.").Numerous courts recognizethat regulatory standards of scientific
proofare insufficientto establish legal causation and routinelyexclude regulatory determinations
as irrelevant.
See, Rider v. Sandoz Pharm. Corp., 195 F.3d 1194, 1201 (11 Cir. 2002) ("risk-
utility analysis involves a much lower standard than that which is demanded by a court of law
[because a] regulatory agency... may choose to err on the side of caution"); Havner, 953
S.W.2d at 728, 729 (although "the FDA and EPA consider animal studies in assessing the
potential human response to drugs or pesticides" such studies "cannot supportthe jury's verdict"
because "their reliability as predictors of the effect...in humans is questionable"); Allen v.
Pennsylvania. Eng'g Corp., 102 F.3d 194, 198 (5 Cir. 1996) (agency's threshold of proof is
lower than in tort law as a result of "the preventive perspective that the agencies adopt");
Mitchell v. Gencorp Inc., 165 F.3d 778, 783 (10th Cir. 1999) (plaintiff's reliance on state
classification of substance as a "carcinogen" was "largely misplaced" because regulatory
standards differ from tort standards).
As noted by the Fifth Circuit, supra, even the EPA conceded the exposure times used to
calculate its figures in the EPA ban were much higherthan experiencewarranted. As a result, the
EPA ban is irrelevant to Plaintiffs' claim that exposure to dust from ACP caused Mr. Rogers'
mesothelioma and should be excluded.
B.
The EPA ban should be excluded because it is misleading and likelv will be
given undue weight bv the iurv.
Even if the EPA ban was found to be tangentially relevant (which is denied), evidence
that is relevant"may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, or waste oftime."1 Here, any probative value of the EPA ban regarding asbestos would be
substantiallyoutweighed by the confusing and misleading effect the ban would have on the jury.
i See, § 90.403, Fla. Stat.
As explained above, the EPA proposed its ban on asbestos-containingproducts in 1989,
one year after J-MM ceased all supply of ACP. Moreover, the EPA's ban was subsequentlystruck
down by the Fifth Circuit Court of Appeals on the basis that it was not justified by reliable
scientific data. Accordingly,any reference to the EPA's hearings on asbestos, testimony at those
hearings, or the EPA's efforts to ban asbestos-containing products would be irrelevant to
Plaintiff's claims against J-MM.
Further, any attempt to introduce evidence regarding the proposed EPA ban is highly
prejudicial and would likely lead to unnecessaryjuror confusion.2If such evidence were allowed,
the jury may improperly (and incorrectly) infer that all asbestos-containingproducts, including
ACP are unreasonably dangerous. This notion was specificallyrejected by the Fifth Circuit Court
of Appeals in the above discussed Corrosion Proof Fittings case. Accordingly, any attempt to
introduce evidence regarding the proposed EPA ban on asbestos-containingproducts would only
confuse the issues, mislead the jury, and, in turn create substantialundue prejudice against J-MM.
C.
The EPA ban constitutes hearsav for which there is no exception.
At least one court has excluded an EPA regulatory finding on asbestos as inadmissible
hearsay pursuant to Fed. R. Evid. 803(8). See, e.g, In re Eighth Judicial District Asbestos
Litigation, 576 N.Y.S.2d 757 (N.Y. Sup. Ct. Erie County 1991) (portions of EPA "final rule on
asbestos" constituted inadmissible hearsay). At the heart of Rule 803(8)(A)(iii), and its Florida
counterpart, § 90.803(8), Fla. Stat., is trustworthiness of the findings.
More importantly,
however, is that the Florida Evidence Code regarding the admission ofpublic records is narrower
than its federal counterpart - it adopted the public record exception under the Federal Rule of
Evidence %03(%), but for only two of the three types of public records, and not for the public
records regarding a civil case against the government or factual findings from a legally
2 § 90.403, Fla. Stat..
authorizedinvestigation, as recognized by Federal Rule 803 (8)(A)(iii). See C. Ehrhardt, Florida
Evidence § 90.803(8) (2020 Edition). As a result, the EPA ban is inadmissible hearsay and must
be excluded in this case.
D.
Plaintiff's experts should not be allowed to testifv about the EPA ban.
Plaintiffs should not be allowed to use his expert witnesses to introduce evidence of the
EPA ban through the back door. Pursuant to Florida Statute § 90.704, although an expert may
base his or her opinion on facts or data reasonably relied upon by experts in a particular field,
otherwise inadmissible facts or data may not be disclosedby an expert to the jury unless the court
determinestheir probative value substantiallyoutweighs their prejudicialeffect.
In this case allowing an expert to disclose the EPA ban to the jury would be far more
prejudicial than probative. In addition, the EPA ban spoke to a far different public policy issue
and relied on what the EPA conceded was inaccurate exposure data. Plaintiffs' experts should
thus be precluded from discussingthe EPA ban.
III.
CONCLUSION
Accordingly, J-MM respectfully requests an order in limine that Plaintiffs,their counsel,
and witnesses are instructed not to refer to or make any arguments about the proposed "ban," and
barring evidence regarding or inquiry into the proposed EPA "ban" on asbestos products, which
never went into effect and was overturned by the Fifth Circuit in Corrosion Proof Fittings v.
EPA,947F.ld 1201, 1215 (5th Cir. 1991).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 23, 2021, I electronically filed the foregoing with the
Clerk of the Courts by using the Florida Courts eFiling Portal which will provide notice to all
Counsel of Record.
/s/ Jeffrey W. Kirsheman
JEFFREY W. KIRSHEMAN, ESQUIRE
Florida Bar No. 0059341
Fisher Rushmer, P.A.
Post Office Box 3753
Orlando, FL 32802-3753
Tel: 407-843-2111 / Fax: 407-422-1080
com
com
[rm.com
Attorneys for Defendant, J-M Manufacturing
Company, Inc.
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Filing # 129350443 E-Filed 06/23/2021 02:20:56 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA JOE CARL ROGERS and HILDA ROGERS, his wife, GENERAL JURISDICTION DIVISION CASE NO.: CACE-19-025692 Plaintiffs, V ACOUSTI ENGINEERING COMPANY OF FLORIDA; et al. Defendants. i DEFENDANT J-M MANUFACTURINGCOMPANY, INC.'S MOTION IN UMINE TO EXCLUDE EVIDENCE OF A PROPOSED EPA dlBAN" ON ASBESTOS PRODUCTS THAT NEVER WENT INTO EFFECT (J-MM Motion in Limine No. 7) Defendant J-M Manufacturing Company, Inc. ("J-MM") hereby moves this Court in limine for an Order excluding evidence of the proposed Environmental Protection Agency ("EPA") "ban" on asbestos, which never went into effect, at trial in the above-referencedcase. Particularly, J-MM requests this Court to issue an order in limine preventing any argument, questions, reference or other attempts to mislead the jury to believe the EPA issued ban on asbestos-cementpipe. I. INTRODUCTION J-MM anticipates that Plaintiffs may refer to exhibits and/or testimony regarding a proposed EPA ban on asbestos-containingproducts that was later overturnedby the Fifth Circuit and which occurred qfter Mr. Rogers' alleged exposure to ACP. Plaintiffs should be prohibited from making any such direct or indirectreference as all such evidence is entirelyunrelated to the facts or claims in this case and would be unduly prejudicial and involve an undue consumption of time. J-MM asks this Court to preclude any argument, questions, or other attempts to mislead *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/23/2021 02:20:56 PM.**** the jury to believe there was an EPA ban on asbestos-cement pipe--the alleged source of exposure from J-MM. II. LEGAL ARGUMENT While the EPA enacted regulations in 1989 phasing in an eventual ban of nearly all asbestos products, this ban never went into effect. In fact, EPA's proposed "ban" was invalidated by the U.S. Court of Appeal for the Fifth Circuit on the ground that the ban as not justified by reliable scientific data. Corrosion Proof Fittings v. EPA, 941 F.ld 1201, 1215 (5th Cir. 1991) ("We conclude that the EPA has presented insufficientevidence to justify its asbestos ban."). A. The EPA ban is not relevant to the issue of causation, and its admission into evidence would be highly preiudicialand misleading. Plaintiffs' allegation that Mr. Rogers' exposure to ACP was a substantial contributing factor in the development of his mesothelioma must stand or fall on reliable and relevant scientific evidence that exposure to ACP caused mesothelioma in this case. Yet, the EPA ban is not relevant to this question, and its admission into evidence would only serve to confuse and mislead the jury. It has long been established that regulatory agencies like the EPA do not have to meet scientific standards of proof of causation but rather, can act in a broad preventative role in promulgatingregulations. See, Industrial Union Dep't v. American Petroleum Inst., 44% lj.S. 607, 656 (1980) ("OSHA is not required to support its finding that a significantrisk exists with anything approaching scientific certainty [OSHA] is free to use conservative assumptions in ... interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than under protection.").Numerous courts recognizethat regulatory standards of scientific proofare insufficientto establish legal causation and routinelyexclude regulatory determinations as irrelevant. See, Rider v. Sandoz Pharm. Corp., 195 F.3d 1194, 1201 (11 Cir. 2002) ("risk- utility analysis involves a much lower standard than that which is demanded by a court of law [because a] regulatory agency... may choose to err on the side of caution"); Havner, 953 S.W.2d at 728, 729 (although "the FDA and EPA consider animal studies in assessing the potential human response to drugs or pesticides" such studies "cannot supportthe jury's verdict" because "their reliability as predictors of the effect...in humans is questionable"); Allen v. Pennsylvania. Eng'g Corp., 102 F.3d 194, 198 (5 Cir. 1996) (agency's threshold of proof is lower than in tort law as a result of "the preventive perspective that the agencies adopt"); Mitchell v. Gencorp Inc., 165 F.3d 778, 783 (10th Cir. 1999) (plaintiff's reliance on state classification of substance as a "carcinogen" was "largely misplaced" because regulatory standards differ from tort standards). As noted by the Fifth Circuit, supra, even the EPA conceded the exposure times used to calculate its figures in the EPA ban were much higherthan experiencewarranted. As a result, the EPA ban is irrelevant to Plaintiffs' claim that exposure to dust from ACP caused Mr. Rogers' mesothelioma and should be excluded. B. The EPA ban should be excluded because it is misleading and likelv will be given undue weight bv the iurv. Even if the EPA ban was found to be tangentially relevant (which is denied), evidence that is relevant"may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste oftime."1 Here, any probative value of the EPA ban regarding asbestos would be substantiallyoutweighed by the confusing and misleading effect the ban would have on the jury. i See, § 90.403, Fla. Stat. As explained above, the EPA proposed its ban on asbestos-containingproducts in 1989, one year after J-MM ceased all supply of ACP. Moreover, the EPA's ban was subsequentlystruck down by the Fifth Circuit Court of Appeals on the basis that it was not justified by reliable scientific data. Accordingly,any reference to the EPA's hearings on asbestos, testimony at those hearings, or the EPA's efforts to ban asbestos-containing products would be irrelevant to Plaintiff's claims against J-MM. Further, any attempt to introduce evidence regarding the proposed EPA ban is highly prejudicial and would likely lead to unnecessaryjuror confusion.2If such evidence were allowed, the jury may improperly (and incorrectly) infer that all asbestos-containingproducts, including ACP are unreasonably dangerous. This notion was specificallyrejected by the Fifth Circuit Court of Appeals in the above discussed Corrosion Proof Fittings case. Accordingly, any attempt to introduce evidence regarding the proposed EPA ban on asbestos-containingproducts would only confuse the issues, mislead the jury, and, in turn create substantialundue prejudice against J-MM. C. The EPA ban constitutes hearsav for which there is no exception. At least one court has excluded an EPA regulatory finding on asbestos as inadmissible hearsay pursuant to Fed. R. Evid. 803(8). See, e.g, In re Eighth Judicial District Asbestos Litigation, 576 N.Y.S.2d 757 (N.Y. Sup. Ct. Erie County 1991) (portions of EPA "final rule on asbestos" constituted inadmissible hearsay). At the heart of Rule 803(8)(A)(iii), and its Florida counterpart, § 90.803(8), Fla. Stat., is trustworthiness of the findings. More importantly, however, is that the Florida Evidence Code regarding the admission ofpublic records is narrower than its federal counterpart - it adopted the public record exception under the Federal Rule of Evidence %03(%), but for only two of the three types of public records, and not for the public records regarding a civil case against the government or factual findings from a legally 2 § 90.403, Fla. Stat.. authorizedinvestigation, as recognized by Federal Rule 803 (8)(A)(iii). See C. Ehrhardt, Florida Evidence § 90.803(8) (2020 Edition). As a result, the EPA ban is inadmissible hearsay and must be excluded in this case. D. Plaintiff's experts should not be allowed to testifv about the EPA ban. Plaintiffs should not be allowed to use his expert witnesses to introduce evidence of the EPA ban through the back door. Pursuant to Florida Statute § 90.704, although an expert may base his or her opinion on facts or data reasonably relied upon by experts in a particular field, otherwise inadmissible facts or data may not be disclosedby an expert to the jury unless the court determinestheir probative value substantiallyoutweighs their prejudicialeffect. In this case allowing an expert to disclose the EPA ban to the jury would be far more prejudicial than probative. In addition, the EPA ban spoke to a far different public policy issue and relied on what the EPA conceded was inaccurate exposure data. Plaintiffs' experts should thus be precluded from discussingthe EPA ban. III. CONCLUSION Accordingly, J-MM respectfully requests an order in limine that Plaintiffs,their counsel, and witnesses are instructed not to refer to or make any arguments about the proposed "ban," and barring evidence regarding or inquiry into the proposed EPA "ban" on asbestos products, which never went into effect and was overturned by the Fifth Circuit in Corrosion Proof Fittings v. EPA,947F.ld 1201, 1215 (5th Cir. 1991). CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 23, 2021, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal which will provide notice to all Counsel of Record. /s/ Jeffrey W. Kirsheman JEFFREY W. KIRSHEMAN, ESQUIRE Florida Bar No. 0059341 Fisher Rushmer, P.A. Post Office Box 3753 Orlando, FL 32802-3753 Tel: 407-843-2111 / Fax: 407-422-1080 com com [rm.com Attorneys for Defendant, J-M Manufacturing Company, Inc.