Products Liability Law Reporter

A federal district court held that a plaintiffs’ expert in a mesothelioma case was permitted to present testimony that compared the death of the plaintiffs’ decedent to death by crucifixion.

Callen Dempster filed suit against Huntington Ingalls Inc. and others, alleging strict liability and negligence claims. The plaintiff asserted that while employed by Huntington Ingalls from 1962 to 1994, he was exposed to asbestos and asbestos-containing products at various locations. As a result, the plaintiff claimed, he inhaled asbestos fibers and developed mesothelioma. The defendants removed the case to federal district court, which later remanded the case to Louisiana state court. After Dempster died, his relatives filed a damages petition in state court. The defense moved for removal successfully, and the district court denied the plaintiffs’ motion to remand.

The defense filed a motion in limine, seeking to exclude the expected inflammatory testimony of the plaintiffs’ expert witness, physician Stephen Kraus. First, the defense argued that Kraus had testified in a previous asbestos case and compared that patient’s pain and suffering to Jesus Christ’s pain and suffering on the cross. The defense argued that comparing Dempster’s pain and suffering to that of Jesus Christ would raise deeply rooted and emotional religious imagery in the jurors’ minds. The defense also argued that such religious statements are irrelevant and prejudicial. Second, the defense asserted that Kraus also had made inflammatory statements that raised issues regarding a defendant corporation’s motivations in a previous case and that the expert had suggested in that case that some corporations refrain from sinning and that others are fearful of hell and punishment.

The plaintiffs argued that Kraus had not made any inflammatory arguments in the case at bar and that the statements the defense had raised were made more than a decade ago. Additionally, the plaintiffs said, Kraus’s analogy accurately portrays the pain and suffering experienced by persons suffering from fatal mesothelioma.

Granting the motion in part and denying it in part, the district court found that under Fed. R. Civ. P. 401, evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the cause of action. Nevertheless, the court said that under Rule 403, a court may exclude relevant evidence where its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or presenting cumulative evidence.

Applying the federal rules, the court concluded that comparing the decedent’s death to Jesus Christ’s crucifixion would severely inflame the jury here. The probative value of the expert’s testimony is outweighed by the danger of unfair prejudice, the court said. The court found that Kraus may present testimony comparing Dempster’s death to a general death by crucifixion, however. Describing the slow painful death of a mesothelioma patient in comparison to death by crucifixion, which involves the inability to breathe, is relevant under Rule 401 because it would portray Dempster’s pain and suffering to the jury in an understandable manner. Thus, its probative value is not substantially outweighed by unfair prejudice, the court found.

Finally, the court concluded that testimony regarding a corporation’s motivation in refraining from sinning is of little probative value in this case. Statements that involve the issue of corporate sinning are highly inflammatory and prejudicial, the court found, concluding that such statements thus violate Rule 403.

Citation: Dempster v. Lamorak Ins. Co., 2020 WL 5665016 (E.D. La. Sept. 21, 2020).

Plaintiff counsel: Gerolyn Petit Roussel, Benjamin P. Dinehart, Jonathan B. Clement, Lauren Roussel Clement, and Perry J. Roussel, all of Mandeville, La.