A trial judge’s ruling that offering a product label as evidence the package contained the product noted on the label was inadmissible hearsay is an extreme, unsupportable reading of the law, plaintiffs in a California friction-products suit say.

The plaintiffs are surviving family members of a shade-tree mechanic who allegedly died of mesothelioma.  They say his illness resulted at least in part from his exposure to asbestos in friction products made by defendant, Pneumo Abex LLC.

Donald Smalley’s wife and children sued Abex in Los Angeles County Superior Court, alleging he was exposed to asbestos in the company’s brake products.  Smalley died of mesothelioma.

His sons, Michael and Mitchell, testified that they recalled accompanying their father to auto repair supply shops many times where he asked the clerks for Abex products.  They also said they recalled seeing him using brakes in Abex-labeled boxes.

The defendant said the Smalleys were unable to prove product identification because the only evidence connecting their products to Donald Smalley’s activities was from Michael and Mitchell’s testimony, which should be inadmissible as hearsay.

Judge Amy D. Hogue agreed that a product’s labeling could not be used to accurately identify the manufacturer of a particular product.

She cited DiCola v. White Bros. Performance Products, 158 Cal. App. 4th 666 (Cal. Ct. App., 4th Dist. 2008), which said offering a package label as evidence that the package contained the product noted on the label was inadmissible hearsay.

The judge characterized the sons’ testimony as also being insufficient to support product identification.

“They did not say, for example, ‘As I watched Dad install the Abex part, I noticed that embossed into the metal of the part it said Abex,’ or anything like that,” Judge Hogue noted.

She granted summary judgment in the company’s favor.

The plaintiffs appealed to the California 2nd District Court of Appeal.

In a reply brief filed Jan. 7, the plaintiffs say DiCola does not preclude litigants from identifying their products by their labeling or packaging.

“If DiCola is used as the trial court did in this case, the hearsay rules would prevent litigants from ever identifying any product.  How else – other than reading the emblem on its fender or trunk lid – does one make a prima facie showing that a Chevrolet is a Chevrolet?,” the plaintiffs argue.

The Smalleys are asking the appeals court to find that Michael and Mitchell’s testimony should have been admitted and summary judgment must be reversed.

Smalley et al. v. Pneumo Abex LLC, No. B223233, reply brief filed (Cal. Ct. App., 2d Dist. Jan. 7, 2011).