Products Liability: Noerr-Pennington Doctorine

Hernandez v. Amcord (2013) 215 Cal.App.4th 659, 156 Cal.Rptr.3d 90

A man who was diagnosed with mesothelioma brought a products liability action against the manufacturer of a plastic cement which contained asbestos. The plaintiff alleged that while working as a carpenter and in the construction industry his exposure to asbestos in the product was a substantial factor contributing to his risk of developing cancer.  At trial the plaintiffs sought to introduce evidence of the defendant’s government lobbying activities, and that the defendant had successfully lobbied for an exemption to a ban on asbestos spray construction products.

The trial court granted a motion to exclude the evidence, finding that it was barred by the Noerr-Pennington doctrine, which shields defendants from liability for actions based upon their legitimate right to petition government officials. Following a nonsuit in favor of the defendant, the plaintiffs appealed, contending the trial court had erroneously excluded the evidence. The court of appeal agreed and reversed, holding that the trial court had abused its discretion in excluding evidence of the defendant’s government lobbying activities:

[T]he Noerr–Pennington doctrine is not a rule of evidence. As the Supreme Court clarified in Pennington :

“It would of course still be within the province of the trial judge to admit this evidence [of efforts to influence public officials], if he deemed it probative and not unduly prejudicial, under the ‘established judicial rule of evidence that testimony of prior or subsequent transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny.’”

(Pennington, supra, 381 U.S. at p. 670, fn. 3, 85 S.Ct. 1585.)

In other words, while a corporation’s petitioning of government officials may not itself form the basis of liability, evidence of such petitioning activity may be admissible if otherwise relevant to show the purpose and character of other actions of the corporation.

. . .
The trial court’s reliance on the Noerr–Pennington doctrine to exclude evidence in this negligence/strict liability case is a misapplication of the doctrine. As discussed above, the Noerr–Pennington doctrine shields defendants from liability for their actions in petitioning government officials. It does not provide a basis for exclusion of evidence of lobbying activities that might be relevant to show a defendant’s knowledge of the dangerous nature of its product or a failure to exercise ordinary care. The evidentiary ruling is therefore reversed.

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