SEATTLE (Legal Newsline) - Evidence a plaintiff sexually abused his daughter and was in an unhappy marriage were properly excluded from a trial over asbestos exposure, a Washington appeals court ruled, rejecting defense arguments the plaintiff “opened the door” by testifying about how his family life was disrupted by mesothelioma.
Raymond and Vickie Budd sued Kaiser Gypsum Co. after he was diagnosed with cancer associated with asbestos exposure, blaming his disease on Kaiser’s joint compound containing Grade 7 and Calidria chrysotile asbestos. A jury ultimately awarded Budd $13.5 million in damages, and Kaiser appealed.
Kaiser argued it should have been allowed to introduce evidence Budd had been convicted of sexual battery against his daughter and his wife had sought a divorce. But after Kaiser threatened to reveal that evidence to jurors, his wife dropped her loss-of-consortium claims. The trial judge then ruled the challenged evidence would be excluded unless Budd opened the door.
At trial, Budd testified that he used to ride bicycles with his grandson, travel with his wife and engage in other activities he could no longer do because of his illness. He introduced photos of himself riding a bicycle and at an amusement park with his grandson, while his wife testified similarly about how the disease had restricted his activities.
After Budd’s wife testified, Kaiser asked to cross-examine her about the abuse allegations and evidence of unhappiness in their marriage, claiming Budd had opened the door. The trial judge refused, saying Budd and his wife testified about his losses due to the disease, not how family members had suffered.
Washington’s Division 1 Court of Appeals, in a Feb. 22 decision, let the trial ruling stand.
“Even assuming the challenged evidence is probative to the issue of loss of enjoyment of life, evidence that Budd sexually abused his daughter and experienced marital discord is `likely to stimulate an emotional response rather than a rational decision,’” the appeals court said, citing a precedential court ruling.
The appeals court rejected Kaiser’s other arguments, including that the judge improperly restricted the jury pool to people who had previously been allowed to delay service and were under 60. The trial judge was within his discretion to decide how to assemble the pool of potential jurors and didn’t “automatically exclude” older jurors, the appeals court, but only allowed people over 60 to avoid service if they were worried about Covid.