Owens-Corning Fiberglas Corp. v. American Centennial Insurance Co.

660 N.E.2d 812, 74 Ohio Misc. 2d 247, 1995 Ohio Misc. LEXIS 63
Procedural entryThis page is a short order in Owens-Corning Fiberglas Corp. v. American Centennial Insurance Co.. Read the opinion of the Court — 74 Ohio Misc. 2d 183
Lucas County Court of Common Pleas·Decided July 17, 1995·No. No. CI90-2521·Published

Opinion

Richard W. Knepper, Judge.

This matter is before the court on the motion in limine filed by the plaintiff, Owens-Coming Fiberglas Corporation (“OCF”). Upon due consideration of the pleadings, memoranda of counsel, evidence, and applicable law, this court denies OCF’s motion in part and grants OCF’s motion in part.

I

OCF seeks exclusion at trial of a number of exhibits listed by the defendants in their Joint Exhibit List. OCF seeks to exclude the following categories of exhibits: (a) documents relating to the defendants’ “expected/intended” defense that were prepared outside the relevant time period, i.e., 1958-1973; (b) records, reports, and documents regarding testing of Kaylo insulation by Saranac laboratories; (c) documents prepared or distributed by the Asbestos Textile Institute, a trade organization to which OCF did not belong; (d) documents relating to the negotiation, underwriting, and placement of Associated’s insurance policy; (e) documents relating to notices provided to other excess carriers; (f) a memorandum from OCF’s Medical Director, Dr. Konzen, to OCF in-house counsel, R.L. Logan; (g) a memorandum by Duane Callendar, in-house attorney for OCF; (h) [251]*251documents relating to workers’ compensation claims; and (i) responses to interrogatories responses filed in other noninsurance asbestos cases.

II

A motion in limine is designed “to avoid the injection into a trial of a potentially prejudicial matter which is not relevant and is inadmissible.” Rinehart v. Toledo Blade Co. (1985), 21 Ohio App.3d 274, 278, 21 OBR 345, 349, 487 N.E.2d 920, 924. In Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 310, 3 OBR 355, 358, 444 N.E.2d 1358, 1360-1361, the court of appeals set forth the required two-step procedure:

“First, a consideration of the motion in limine as to whether any reference to the area in question should be precluded until admissibility can be ascertained during trial. Second, at the time when the party desires to introduce the evidence which is the subject of the motion in limine, there must be a second hearing or determination by the trial court as to the admissibility of the evidence, which is then determined by the circumstances and evidence adduced in the trial and the issues raised by the evidence.”

A motion in limine is, therefore, a precautionary request, directed to the inherent discretion of the trial judge. State v. Spahr (1976), 47 Ohio App.2d 221, 1 O.O.3d 289, 353 N.E.2d 624.

“The sustaining of a motion in limine does not determine the admissibility of the evidence to which it is directed. Rather it is only a preliminary interlocutory order precluding questions being asked in a certain area until the court can determine from the total circumstances of the case whether the evidence would be admissible.” Palmer, Ohio Rules of Evidence Rules Manual (1984), at 446, cited with approval in State v. Grubb (1986), 28 Ohio St.3d 199, 201, 28 OBR 285, 288, 503 N.E.2d 142, 145.

The inherent power of a court to control its proceedings is granted to it by Evid.R. 103(A) and 611(A). The use of the motion in limine serves the interest of judicial economy as well as those interests of counsel and the parties because it aids in reducing the possibility of the injection of error or prejudice into the proceedings. Grubb, supra.

Ill

A Documents Relating to the Defendants’ Expected/Intended Defense that Were Prepared Outside the Relevant Time Period

OCF argues that any documents generated during a time OCF was not manufacturing asbestos products should be excluded from evidence. The defendants must show that OCF expected or intended the injuries from asbestos [252]*252during the time OCF was manufacturing asbestos-containing products. According to OCF, the pertinent years were 1958-1973. OCF, therefore, argues that any documents generated when OCF was not manufacturing asbestos-containing products are irrelevant and any relevance is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evid.R. 401. “Unfair prejudice” does not mean damage to a party’s case that “results from the legitimate probative force of the evidence; rather, it refers to evidence which tends to suggest decision on an improper basis.” (Citations omitted.) United States v. Mendez-Ortiz (C.A.6, 1986), 810 F.2d 76, 79.

This court finds that any information OCF had regarding the dangers of asbestos prior to its period of manufacturing asbestos-containing products is entirely relevant. OCF’s knowledge of the dangers of asbestos goes directly to the issue of whether OCF expected or intended, during manufacturing, the resulting injuries from its products. The court further finds that OCF would not be unfairly prejudiced by such information. Accordingly, OCF’s motion to exclude all pre-1958 documents is denied.

OCF seeks to exclude post-1973 documents on the basis that the expected/intended defense goes only to OCF’s knowledge during its period of manufacturing of asbestos-containing products. The defendants, on the other hand, argue that OCF continued to manufacture asbestos-containing products after the 1973 cut-off suggested by OCF, that the documents cannot be neatly partitioned into fraud and expected/intended defense categories, and that records created by asbestos producers after they stopped making asbestos products are routinely admitted into evidence to show knowledge, intent and disregard of the dangers of asbestos.

The court, however, finds that the post-1973 documents are also relevant to this case and will not be excluded from the evidence presented at trial. Regardless of when the records or documents were created, if they demonstrate that OCF knew of the dangers associated with asbestos while it was manufacturing asbestos-containing products, then the evidence is probative of the expected/intended defense. Additionally, any posU-1973 evidence is relevant to the defense of fraud, as all of the insurance policies in question were entered into after 1973. Accordingly, OCF’s motion regarding all post-1973 documents is denied.

B. Saranac Laboratories’ Studies, Records, Reports and Documents Regarding Testing of Kaylo Insulation

OCF moves for exclusion of all records, reports and documents regarding the studies done by Saranac laboratories for Owens-Illinois on Kaylo insulation. [253]*253OCF argues that unless the defendants can prove actual receipt by OCF of each record, report, and related documents, the evidence must be excluded, as OCF did not have notice of them. The court, however, finds that OCF had actual or implied knowledge of all Saranac laboratories’ findings.

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Owens-Corning Fiberglas Corp. v. American Centennial Insurance Co., 660 N.E.2d 812, 74 Ohio Misc. 2d 247, 1995 Ohio Misc. LEXIS 63 (Ohio Super. Ct. 1995).

660 N.E.2d 812 (Owens-Corning Fiberglas Corp. v. American Centennial Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Rinehart v. Toledo Blade Co.
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State v. Spahr
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Coulson v. Coulson
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State v. Grubb
503 N.E.2d 142 (Ohio Supreme Court, 1986)