Products Liability Law Daily Wrap Up, EVIDENTIARY ISSUES—CHEMICAL PRODUCTS—D.P.R.: Claims that Safety-Kleen chemical caused man’s leukemia move closer to trial, (Jan 11, 2016)

By John W. Scanlan, J.D.

A federal district court in Puerto Rico issued a series of rulings in limine in a case brought against Safety-Kleen by a man (and his family) who asserted that his exposure to chemical agent SK-105 caused him to develop chronic myelogenous leukemia (CML). Claims against National Rental and Sales, Inc., Tool Box, Inc., and Makita USA, Inc. previously had been dismissed (Campos v. Safety-Kleen Systems, Inc., January 8, 2016, Delgado-Hernández, P.).

Witness testimony. The court refused to prohibit Safety-Kleen from relying on the testimony of a doctor for the family to establish that there were no known causes of CML. The family asserted that she was designated as a fact witness rather than an expert witness, she testified that she had not reviewed the relevant data on the subject, and she also testified that she would defer on the issue of causation to experts who had studied the matter in depth. However, the family originally intended for the doctor to testify on matters relating to the patient’s exposure to benzene and his subsequent diagnosis. Her failure to review the relevant causation data or her preference to leave it to experts could be elicited on cross-examination. However, Safety-Kleen could not read excerpts from her deposition to the jury as none of the reasons for allowing it were present.

Safety-Kleen’s motion to exclude the testimony of 10 of the family members, friends, and work supervisors as inflammatory and cumulative was found to be moot in part after the family agreed to call only two or three witnesses and to focus their testimony to limit their cumulativeness. However, Safety-Kleen can restate these arguments at the time they are called to testify.

The court granted the family’s request to exclude expert reports and the experts’ curriculum vitae be excluded because Safety-Kleen did not oppose the request as long as the ruling applied to all experts.

The family was precluded from introducing into evidence excerpts of deposition testimony from 17 of 18 prior Safety-Kleen employees and expert witnesses because the family did not address how they would be unavailable to testify at trial or how their deposition transcripts would otherwise be admissible. 16 of the witnesses’ testimony was given in different cases that did not involve virgin SK-105 or CML, as in the present case. The testimony of one was admissible for impeachment purposes, and the family did not explain how the final witness—who did testify for the present trial—was unavailable at trial.

Other issues. More than 260 exhibits from the family’s list would not be excluded at this time because the court needed more time to consider the context, although it noted that some of the documents are inadmissible. The court will rule during the trial upon their admissibility.

The family would be prohibited from making any reference at trial to components of SK-105 not alleged to have caused the patient’s CML, along with any comments regarding recycled SK-105 or the recycling process or alleging that SK-105 recycling is banned in the United States, as no recycled product was purchased by the company during the time he was exposed to SK-105. They also would not be allowed to mention any dermal exposure, or refer to safer alternative designs, but while the family could not suggest that the company had a duty to warn going beyond federal standards, it could refer to California’s Proposition 65.

The case is No. 12-1529 (PAD).

Attorneys: James K. Clark (Clark, Robb, Mason, Coulombe and Buschman, PA) for Gerardo Campos. Giancarlo Font-Garcia (Rivera-Carrasquillo, Martinez & Font Law Offices) and Heather J. Forgey (Jones Carra McGoldrick, LLP) for Safety-Kleen Systems, Inc.

Companies: Safety-Kleen Systems, Inc.

Cases: CourtDecisions EvidentiaryNews ExpertEvidenceNews ChemicalNews PuertoRicoNews