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In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation

United States District Court, N.D. California

December 23, 2019

IN RE VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION This Order Relates To: CONSUMER OPT-OUT TRIAL CASES MDL Dkt. No. 6965

          ORDER GRANTING IN PART AND DENYING IN PART VOLKSWAGEN'S MOTION IN LIMINE NO. 1: TO EXCLUDE HEALTH-EFFECTS EVIDENCE

          Charles R. Breyer United States District Judge.

         Volkswagen has moved to exclude at trial all evidence about the health effects of its diesel cars' emissions. The stated grounds for exclusion are that this evidence is not relevant, and that its probative value, if any, is substantially outweighed by the risks of unfair prejudice and jury confusion. The health-effects evidence falls into two categories: personal and expert. Each is considered separately below.

         A. Personal health evidence

         During fact discovery, two of the ten plaintiffs stated that they have experienced breathing problems that may be attributable to their diesel-engine Volkswagen cars (the “TDIs”). Plaintiffs, in their response to Volkswagen's motion to exclude, confirmed that, despite this testimony, they “are not pursuing personal injury claims in this action” and do not oppose the exclusion of this evidence. (Opp'n, MDL Dkt. No. 6992 at 2.) As the motion to exclude this evidence is unopposed, the Court GRANTS it.

         B. Expert health evidence

         Plaintiffs' expert Dr. George Thurston, a Professor at NYU School of Medicine in the Department of Environmental Medicine, plans to offer the following opinions at trial:

a. Increased NOx emissions from VW TDI automobiles have resulted in increased adverse human health impacts.
b. Increased NOx emissions from VW TDI automobiles have resulted in increased ozone air pollution, which has resulted in additional adverse human health impacts.
c. Increased NOx emissions from VW TDI automobiles have resulted in increased particulate matter air pollution, which has resulted in added human health impacts.

(Thurston Report, MDL Dkt. No. 6965-8 at 9.)

         Dr. Thurston bases these opinions on (i) Volkswagen's admission that its TDIs, of which there were approximately 580, 000 nationwide, emitted NOx at levels more than 30 times the legal limits; (ii) his professional understanding that NOx, when combined with other gases in the atmosphere, forms ozone and particulate matter; (iii) his review of scientific and medical studies documenting negative health effects from exposure to increased nitrogen oxides, ozone, and particulate matter; and (iv) his professional understanding that there is “no known threshold below which no effects [from these pollutants] are experienced.” (Id. at 23.)

         Volkswagen, at this time, does not attack Dr. Thurston's factual basis, methods, or conclusions. Instead, the company maintains that his testimony is not relevant and would cause undue prejudice. See Fed. R. Evid. 402, 403. The Court does not find either challenge persuasive.

         Dr. Thurston's proposed testimony is relevant to Plaintiffs' demand for punitive damages. Under California law, the trier of fact may award punitive damages if it finds that the defendant engaged in “despicable conduct” with a “willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). The “safety of others” is threatened by conduct that negatively affects human health. So, if Dr. Thurston testifies that the TDIs' emissions negatively affected human health (as he plans to do), that testimony would weigh in favor of a punitive damages award.[1]

         Volkswagen argues that because Plaintiffs do not intend to argue that their own health has been harmed by the TDIs, evidence supporting that nonparties' health has been harmed by the TDIs is not relevant. The Court disagrees. Punitive damages are intended to measure “the enormity of [the] offense, ” not the actual damages sustained by the plaintiff. BMW ...


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