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  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview
  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview
  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview
  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview
  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview
  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview
  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview
  • ARTHUR KLIMACK VS. ASBESTOS DEFENDANTS (B/P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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                                LEWIS BRISBOIS BISGAARD & SMITH LLP
CONSTANCE MCNEIL, SBN 184526

E-Mail: meneil@lbbslaw.com ELECTRONICALLY
ANJALI LILANI, SBN 252015 F I L E D

E-Mail: Hlani@ Ibbsiaw.com Superior Court of California,
One Sansome Street, Suite 1400 County of San Francisco
San Francisco, CA 94104
Te: 415.362.2580 GORDON PARK Blerk
Fax: 415.434.0882 BY: JUDITH NUNEZ

Deputy Clerk

Attomeys for Defendant

PLANT INSULATION COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ARTHUR KLIMACK, CASE NO.438260

)
)
Plaintiff, ) ASBESTOS-RELATED
)
) MOTION IN LIMINE NO. 19:
) TO EXCLUDE AND/OR LIMIT
) TESTIMONY CONCERNING PLAINTIFF'S
) CLAEM FOR “LOST YEARS”, FUTURE
ASBESTOS DEFENDANTS, er al., ) SOCIAL SECURITY AND RETIREMENT
) PENSION BENEFITS
Defendants. )
) Trial Date: October 20, 2008
) Action Filed: January 31, 2005
)
)

L PRELIMINARY STATEMENT

At trial, defendant PLANT INSULATION COMPANY anticipates plaintiff will attempt to offer
evidence or opinion that plaintiff may not receive Social Security benefits and/or future retirement pension.
benefits as a result of her decreased life expectancy, and that plaintiff's non-receipt of these future benefits
is part of his economic damages.

Itis undisputed there will be no loss of plaintiff's future Social Security and retirement benefits in
the event she passes away. Plaintiff will enjoy these benefits until he passes away. Plaintiff will not suffer
any damages as a result of not receiving his future Social Security or pension benefits after her death.
During plaintiff's lifetime, he will never suffer the loss of these benefits. Any such damages would be
suffered by a spouse and/or other family member of the plaintiff. However, in the instant matter, there is

4842.1995-2131.1 1
MIL 19: TO EXCL AND/OR LIMIT TESTIMONY CONCERNING PTE’S CLAIM FOR “LOST YEARS”, ....no spouse plaintiff nor any other family member plaintiffs. Therefore, testimony regarding loss of future
Social Security and retirement pension benefits is improper.

Should this court permit recovery for “lost years” future Social Security and retirement pension
benefits, these future damages must be classified as general/non-economic damages and not special/
economic damages. (Beeman v. Burling, 216 Cal.App.3d 1586, 1599-1600(1990); Handelman v. Victor
Equipment Co., 21 Cal. App.3d 902, 906 (1977), Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483,
489 (1957), Ridley v. Grifall Trucking Co., 136 Cal.App.2d 684, 688 (1955).)

Il. PLAINTIFF IS NOT ENTITLED TO AN AWARD OF FUTURE SOCIAL SECURITY
AND/OR RETIREMENT PENSION BENEFITS.

A. There Is No Loss Of Future Social Security And/Or Retirement Pension Benefits Since
They Will Be Paid To Plaintiff Until Her Demise.

Despite any claim to the contrary, there has not been and will not be any loss of future Social
Security and retirement pension benefits. Plaintiff will have received these benefits until her death.
Unlike a person’s earning capacity, as a result of her ability to work, which no longer exists and hence is
lost upon death, future Social Security and retirement benefits continue to existafter death. Asnoted above,
these benefits would have been paid to plaintiff's husband or other family member plaintiff. Thus, there
will be no “lost years” of plaintiff's future Social Security and retirement pension benefits, if any.

B. Plaintiff's Claim For Future Social Security And Retirement Pension Benefits Is Not

An Item Of Economic Damages.

This court should preclude plaintiff's experts and plaintiff's counsel from arguing these alleged
damages should be classified as specia/economic damages. As a matter of law, the California courts hold
that estimates of future damages are classified as general/non-economic damages. Beeman v. Burling, 216
Cal. App.3d 1586, 1599-1600 (1990); Handelman v. Victor Equipment Co.,21 Cal App.3d 902,906 (1977);
Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483, 489 (1957); Ridley v. Grifall Trucking Co., 136
Cal. App 2d 684,688 (1955), As explained by the Beeman court, the plaintiff's claim for future lost earnings
and future lost profits must be considered as general/non-economic damages:

Two of the remaining items comprising the damage award, moving
expenses and actual loss of earnings prior to the default hearing, are clearly
special damages, as losses as they are based on actual out-of pocket losses
proved byreference to receipts and business records (citation omitted). For
similar reasons, the other two types of damages awarded, for the present
cash value of future earnings, and the present cash value of the lost future

4842.1995-2131.1 2
MIL 19: TO EXCL AND/OR LIMIT TESTIMONY CONCERNING PTE’S CLAIM FOR “LOST YEARS”, ....possessory interest in the rent controlled apartment, are general damages.
Unlike the moving expenses and lost earnings. which compensate for
actual monetary losses already incurred, these damages compensate for
future losses that can be estimated, but not fixed. (Emphasisadded.) 216
Cal.App.3d at 1600.

Beeman and Handelman have also recently been cited by various treatises in support of the basic
rule that future damages, such as those claimed by plaintiff herein, are properly classified as general/
non-economic and not special/economic damages. Cal. Prac. Guide: Personal Injury, Sections 3:5.3 in the
supplement and sections 3:7-3:8.2 in the main volume (TRG 1992); Bancrofi Whitney’s California Civil
Practice, Compensatory Damages, Section 5:15, p. 17 (1992). As recognized in Compensatory Damages:

Lost earnings or income are usually treated as special damages because
they can be proved with reasonable certainty. [Handelman v. Victor
Equipment Co. (1971, 2nd Dist) 21 Cal.App.3d 902, 99 Cal Rptr 90; but
see Gersick v. Shilling (1950) 97 Cal.App.2d 641,218 P.2d 583 (treating
plaintiffs lost actual earnings as item of general damages, apparently
assuming all lost earnings are general damages in order to avoid double
recovery of damages for both lost earnings and lost earning capacity.)] On
the other hand, when a plaintiff claims loss of earning capacity it is treated
as general damages. This distinction may have significant consequences
for recovery of damages where there are multiple defendants, since CC
§1431.2 creates joint liability for economic damages among all defendants
and several liability for noneconomic damages. Bancroft-Whitney’s
California Civil Practice, Compensatory Damages, Section 5:15, p. 17
(1992).

Accordingly, this court should find that any claim by plaintiff for future Social Security and
retirement pension benefits, if recoverable, must be classified as general/non-economiic damages and not
special/economic damages. These alleged damage claims are not objectively verifiable and/or capable of
being fixed, since they are based on many intangible factors, such as when the recipients ultimately may
die and the variable rate of future payments by the federal government for Social Security benefits. This
is precisely why damages for shortened life expectancy/impaired enjoyment of life, are considered as

general damages. Cal. Prac. Guide: Personal Injury, Sections 3:185 (TRG 1992); BAJI No. 14 13.

iif
dit
it

4842.1995-2131.1 3
MIL 19: TO EXCL AND/OR LIMIT TESTIMONY CONCERNING PTE’S CLAIM FOR “LOST YEARS”, ....Ti. CONCLUSION
Based upon the foregoing, PLANT INSULATION COMPANY respectfully request this court to
grant their motion in imine and exclude and/or limit any evidence or testimony proffered by plaintiff

concerning “lost years” future social security and retirement pension benefits.

Dated: October 13, 2008 LEWIS BRISBOIS BISGAARD & SMITH LLP

By: 4/Anjali Lilani

ANJALI LILANI
Attorney for Defendant
PLANT INSULATION COMPANY

4842.1995-2131.1 4

MIL 19: TO EXCL AND/OR LIMIT TESTIMONY CONCERNING PTE’S CLAIM FOR “LOST YEARS”, ....