Products Liability Law Daily Wrap Up, EVIDENTIARY ISSUES—CHEMICAL PRODUCTS—E.D. Mich.: Evidentiary rulings issued by court in benzene exposure action, (Jan 14, 2014)

By Kathleen Bianco, J.D.

In an action against the producer of a cleaning solvent containing benzene filed by the wife of a man who died from leukemia after being exposed to the cleaning solvent in the course of his employment, a federal district court in Michigan granted in part, denied in part, and deferred in part various motions to exclude evidence filed by both parties to the product liability action, (Hendrian v. Safety-Kleen Systems, Inc., January 13, 2014, Cook, J.).

Background. Judith Hendrian, acting individually and as the personal representative of the estate of her late husband, Howard G. Hendrian, filed a product liability action alleging failure to warn, strict liability, negligence, and loss of consortium against Safety-Kleen Systems, Inc. In her complaint, Mrs. Hendrian alleged that her husband had been exposed to a cleaning solvent in the course of his employment with Ford Motor Company. The cleaning solvent (105 Solvent), produced by Safety-Kleen, contained benzene, a chemical that is allegedly carcinogenic to humans. As a result of his exposure, Hendrian’s husband developed serious medical problems including an acute form of myelogenous leukemia, which ultimately led to his death. Both parties have filed a number of motions seeking to exclude a variety of evidence.

Admissibility of evidence. Under the Federal Rules of Evidence, relevant evidence is admissible if it tends to make a material fact more or less probable. Evidence deemed admissible may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Overly broad exclusions. Both parties sought to exclude the entry of a wide variety of broad categories of evidence, including among others: expert opinions that have not been disclosed, evidence of assumption of risk, effect of the verdict on the community, media reports about defendant or its witnesses, evidence of unrelated diseases and medical conditions, evidence of unreliable or irrelevant studies, and witness testimony inferring corporate knowledge. All of the motions were overly broad, contained little if any reference to specific evidence, and lacked the context necessary for the formulating of a well-reasoned decision. As such, all of the above referenced motions were denied.

Corporate size/financial well-being. Defendant sought to preclude the admission of all evidence concerning its corporate size and financial condition. Plaintiff challenged this exclusion, arguing that the defendant’s financial viability was relevant to its design defect claim because the financial viability of the company played a role in determining if an alternative design for an unsafe product was feasible. The court denied the defendant’s motion but limited the scope of the evidence to the defendant’s financial well-being during the time period in which Mr. Hendrian was actually exposed to the 105 Solvent.

Expert witness testimony. Based on the assertions that the defendant’s primary experts had failed to render risk assessment analysis or identify any causes or risk factors unrelated to benzene, obesity, or idiopathic origin, the plaintiff sought an order to preclude any line of expert testimony on subjects that were not previously disclosed. The court rejected this request, finding that there is no requirement that an expert definitively identify all possible causes of a plaintiff’s injuries or condition.

Warnings. The defendant filed motions seeking to exclude evidence related to potential warning issues, including any reference to Proposition 65 warnings or material data safety sheets, warnings, labels, and safe use instructions unrelated to benzene. Defendant contended that such materials were neither relevant nor sufficient for establishing causation or the actual benzene content of the cleaning solvent. The court agreed in part, finding that evidence of Proposition 65 warnings could not be used to establish causation, but could be used to show how the warnings issued in California under Proposition 65 may have differed in substance and form from those issued in Michigan. Furthermore, the court concluded that the warnings, the material data safety sheets, the labels, as well as the “safe use” instructions that were unrelated to benzene had no direct bearing on the underlying claim; thus, the motion to exclude such evidence was granted.

Alternative designs. The defendant argued that the plaintiff should not be permitted to expand the universe of parts washers or solvents to those outside the scope of its complaint. According to plaintiff, Safety-Kleen manufactures two products that are safer than 105 Solvent and had two safer machines available for use. The plaintiff contended that she should be permitted to offer evidence of “safer feasible alternatives” in support of her design defect claim. The court agreed in part, granted the motion to exclude evidence of safer alternative equipment and denied the motion to exclude evidence of safer alternatives to the use of 105 Solvent available during the time period in which the plaintiff’s husband had been exposed to the benzene-containing product.

Damages. Plaintiff sought entry of an order confirming that her non-economic damages were not limited under Michigan Compiled Laws. The plaintiff based her pleading upon an allegation that the defendant had actual knowledge that the 105 Solvent was defective and likely to cause leukemia. The court denied the plaintiff’s motion finding it to be procedurally deficient because it required the court to weigh the totality of the evidence and sought relief that was dispositive in nature. As such, a motion in limine was not the proper procedure for this matter. According to the court, resolution of this matter required a summary judgment analysis. Unfortunately, under the scheduling order issued by the court, all dispositive motions in the case should have been filed on or before January 27, 2012. Because nearly two years has passed and the plaintiff had neglected to offer any explanation as to why the court should accept the very late filing, the plaintiff’s motion was denied.

The case number is 08-14371.

Attorneys: Donald A. Krispin (The Jaques Admiralty Law Firm, PC) for Judith A. Hendrian. Cynthia M. Filipovich (Clark Hill PLC) for Safety-Kleen Systems, Inc.

Companies: Safety-Kleen Systems, Inc.

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