Benzene trial set to begin Aug. 16 in Madison County

Steve Korris Aug. 12, 2010, 6:17am



Jurors in a benzene trial shouldn't hear that plaintiff Veto Kleinatis smokes tobacco and marijuana, according to Ted Gianaris of the Simmons Law Firm.

On Aug. 2, Gianaris moved to prevent 3M from referring to marijuana and tobacco at a trial set to start on Aug. 16 before Chief Judge Ann Callis.

Kleinatis claims 3M exposed him to benzene that caused non-Hodgkins lymphoma.

"3M should be precluded from creating a prejudicial sideshow over the matter of smoking, including any strained attempts to relate it to some other issue," Gianaris wrote.

Kleinatis seeks to exclude from the trial his discipline for marijuana use in the U.S. Air Force and his administrative discharge.

"Why Mr. Kleinatis was discharged from the Air Force has no relevance to any issue in this case," Gianaris wrote.

Kleinatis also seeks to exclude his termination by Flight Express in 1999, in connection with a random drug screening.

"Mr. Kleinatis did, admittedly, fail to properly disclose the reason why his employment with Flight Express was terminated," Gianaris wrote.

"He also failed to disclose that, as a consequence, he received medical treatment for drug and alcohol abuse in 1999," Gianaris wrote.

"Neither his marijuana use nor the reason that his employment was terminated, however, makes any relevant fact more or less likely to be true," he wrote.

"Neither of those incidents nor plaintiff's failure to disclose the same has any bearing on his credibility with respect to anything that is actually at issue in this case," he wrote.

Kleinatis also seeks to exclude a guilty plea to misdemeanor paraphernalia possession.

"Possessing paraphernalia is not an offense that implicates deception or untruthfulness," Gianaris wrote.

"In the absence of some relevant subject upon which 3M legitimately intends impeachment, evidence relating to marijuana use can have only one intended purpose – to make plaintiff look bad to the jury," he wrote.

He wrote that 3M's medical expert would testify that alcohol, not marijuana, caused Kleinatis's disease.

He reserved the right to take a specific position on the parameters of evidence about his client's alcohol consumption and rehabilitation treatment.

As for tobacco, Gianaris wrote that Kleinatis smoked cigarettes since the 1980s.

"Even if plaintiff's smoking had some tangential relevance to a disputed issue of fact (which it does not), allowing the jury to hear such evidence would be extremely prejudicial," Gianaris wrote.

Evidence that he inhaled potential toxins other than benzene would confuse and mislead the jury on causation, he wrote.

"At the very least, such references would require extensive clarification (including, most likely, limiting instructions), that would delay proceedings and distract the jury," he wrote.

Gianaris also moved to keep jurors from learning that Kleinatis receives disability payments from Social Security and private insurer Lincoln Financial.

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