Asbestos-Liability-Suit Judges Should Be Wary of Plaintiffs’ Expert’s “Notice” Testimony

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Anyone involved in asbestos litigation has come across the work of Barry Castleman.  By his own account, Castleman has testified for plaintiffs as an expert witness in over 400 trials in asbestos cases discussing the medical literature written about the mineral over the past 100+ years.  Castleman clearly possesses an encyclopedic knowledge of asbestos, but when considering whether his testimony is admissible, trial judges must ask:  is it all inadmissible hearsay?

The broad use of “notice” evidence as grounds to skirt the hearsay rule is problematic because it allows evidence with both a permissible nonhearsay and impermissible hearsay purpose.  A simple example of this problem is “an inspector’s statement that a customer’s tires are defective admitted to establish notice of the defective condition.”  2 Kenneth S. Broun et al., McCormick on Evidence (7th ed. 2013) § 249, p. 193.  The evidence is not subject to attack as hearsay if its only purpose is to establish “state of mind … such as receiving notice.”  Id. § 249, p. 191.  But the evidence “is susceptible of being used improperly by the trier of fact as proof that the tires were in fact defective.”  Id. § 249, p. 193.

Castleman’s testimony is offered on a similar notice theory.  Attorneys for plaintiffs offer his testimony purportedly not for its truth, but to show only what was known or should have been known about asbestos.  Although his testimony is controversial, it has frequently been allowed.  See, e.g., Krik v. Crane Co., 71 F. Supp. 3d 784, 787-88 (N.D. Ill. 2014) (noting that courts have divided on the admissibility of his testimony).

Under the federal rules of evidence, however, his testimony requires independent, anchoring evidence of the underlying facts offered to show notice.  A letter asserting that the moon is made of green cheese, for example, cannot be admitted as evidence to establish that the recipient had notice of that fact unless and until there is independent evidence proving that the moon actually is made of green cheese.

Recent decisions have expressed skepticism about such free-ranging use of hearsay evidence.  For example, the California Supreme Court held that the hearsay rule does not allow an expert witness to relate to the jury case-specific out-of-court statements.  “It cannot logically be maintained that the statements are not being admitted for their truth.”  People v. Sanchez, 63 Cal. 4th 665, 686 (2016) (emphasis added).  The court disapproved a long line of authority holding that such case-specific statements were not offered for their truth, or that curative instructions could sufficiently address the problem.  Id. at p. 686, fn. 13.

The California Court of Appeal has also held that a trial court properly refused to admit documents that were offered on the issue of notice when plaintiffs’ arguments about the relevance of those documents required “assumptions that were unsupported by any other evidence.”  Evans v. Hood Corp., 5 Cal. App. 5th 1022, 1044 (2016).

Because the plaintiffs did not present evidence to support those assumptions, the “gaps in foundational evidence were far too broad to support the admission” of the hearsay documents.  “For the jury to ‘reach that conclusion would be to “fling a plank of hypothesis over an abyss of uncertainty.” ’ ” Id. at 1044 (quoting Gradus v. Hanson Aviation, Inc., 158 Cal. App. 3d 1038, 1058 (1984).)

By similar reasoning, Castleman’s discussion of medical articles is only relevant if there is independent, anchoring evidence that the statements in the articles are true and that the information was communicated to the defendant.  But he is not a medical doctor and cannot testify to the truth of the statements, nor can he say whether the defendant was aware of them.

By way of analogy, if Castleman testified based on ancient scientific articles that the world was flat, his testimony would surely be excluded even if offered on the issue of notice.  For the same reasons, a prerequisite to the admissibility of his testimony in asbestos suits would seem to be that the statements are true and were communicated to the defendant.

In future cases, trial courts should carefully scrutinize Castleman’s testimony to determine whether it is supported by the necessary anchoring evidence, or whether it is inadmissible hearsay.

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