On July 20, 2005 a Motion,Ex Parte was filed involving a dispute between First Doe Through Tenth Doe, Inclusive, Scott, Michael Gerald, Scott, Nancy Marie, Scott, Robert David, Scott, Thomas Cary, Sobolik, Mary Denise, Wolfarth, Joanne Marie, and 3M Company (Formerly Named Minnesota Mining And, Abb, Inc., Abb, Inc. Which Will Do Business In California As, Ac And S, Inc., Allied Packing & Supply, Inc., Amchem Products, Inc., Asbestos Corporation Ltd., A.W. Chesterton Company, Babcock Borsig Power, Inc.,As The Parent Alter Ego, Cbs Corporation, A Delaware Corporation,, Coltec Industries, Inc.,, Crane Co., Darcoid Company Of California, Db Riley, Inc., Dee Engineering Co., Douglass Insulation Company, Eaton Electrical Inc., Eleventh Doe Through Three Hundredth Doe,, Enpro Anchor Packaging, Foster Wheeler Llc, Foster Wheeler Llc, Survivor To A Merger With, Garlock, Inc., General Electric Company, Graybar Electric Co., Graybar Electric Company, Inc., Hill Brothers Chemical Company, Hopeman Brothers, Inc., Imo Industries Inc., Ingersoll-Rand Company, J.T. Thorpe And Son, Inc., Leslie Controls, Inc., Lucent Technologies, Inc., Lucent Technologies, Inc. As A Successor In, Metalclad Insulation Corporation, Metropolitan Life Insurance Company, Minnesota Mining Corporation, Aka 3M Company, M. Slayen And Associates, Inc., M.Slayen & Associates, Inc., New Iem, Llc, The, Quintec Industries, Inc., Rapid-American Corporation, Sb Decking, Inc., Sb Decking, Inc., Formerly Known As Selby,, Soco-Lynch Corporation, Soco West, Inc., Square D Company, Sterling Fluid Systems, Inc., Sterling Fluid Systems, Syd Carpenter Marine Contractor, Inc., Syd Carpenter Marine Engineering, T H Agriculture & Nutrition Llc, The Darcoid Company Of California, The New Iem, Llc,, Thomas Dee Engineering Company, Thorpe Insulation Company, Triple A Machine Shop, Inc., Union Carbide Corporation, Viacom Inc., As Sbm To Cbs Corp., Fka Westinghouse, for civil in the District Court of San Francisco County.
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BayooN Hugaa Part sunbrca C2 9505 Edward R, Hugo [Bar No. 124839] James C. Parker [Bar No. 106149] Charles 5, Park (Bar No. 161430] BRYDON HUGO & PARKER 135 Main Street, 20 Floor San Francisco, CA 94105 Telephone: (415) 808-0300 Facsimile: (415) 808-0333 Attorneys for Defendant Foster Wheeler LLC ELECTRONICALLY | FILED ‘Superior Court of California, County of San Francisco AUG 22 2007 GORDON PARK-LI, Cler BY: WILLIAM TRUPEK Deputy Cle SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION NANCY MARIE SCOTT, Individualh and as Successor-in-Interest to D) IL. SCOTT, Decedent; JOANNE MARIE, WOLFARTH; MICHAEL GERALD SCOTT; ROBERT DAVID SCOTT; THOMAS CARY SCOTT; MARY DENISE SOBOLIK; and FIRST DOE through (ASBESTOS) Case No, 443236 FOSTER WHEELER’S MOTION IN LIMINE FOR AN ORDER DISCLOSING THE AMOUNTS TERMS AND SOURCES OF | ALL PRIOR SETTLEMENTS; OR IN THE TENTH DOE, inclusive, | ALTERNATIVE, PRECLUDING | EVIDENCE OF DAMAGES Plaintiffs, | to71 vs. Judge: Hon. Robert L. Dondero ACand§, INC,, et al. Dept: 318 Defendants. Defendant FOSTER WHEELER, LLC (“Defendant”) hereby moves, before the start of the trial and before the selection of a jury, for an order to compel Plaintiff to disclose the amounts, terms and sources of all prior settlements in this case. I INTRODUCTION Plaintiff has sued multiple defendants in this asbestos lawsuit and several of those defendants have now settled. Defendant is entitled to know the amounts, terms and sources of all prior settlements in this case because: (1) in order to engage in meaningful settlement negotiations, it must be in the same informed state as counsel for plaintiff 1 FOSTER WHEELER'S MILFOR AN ORDER DISCLOSING THE AMOUNTS TERMS & SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGES [071 1anu ek wn Trvnow HUGO & PARKER regarding the settlements in the case; (2) defendant must be able to determine whether the existing settlements would be likely to completely offset any damages assessed against a non-settling joint tortfeasor in this case; and (3) it must be able to determine any possible biases of witnesses who may be called to testify by either the plaintiff or other defendants at trial. I PRIOR SETTLEMENTS REDUCE THE PLAINTIFF'S CLAIM AGAINST ‘HERS Public policy prohibits Plaintiff from obtaining a double recovery for any single injury. (Fletcher v, California Portland Cement Co, (1979) 99 Cal App.3d 97, 99; Milicevici v. Sacramento Medical Center (1984) 185 Cal.App.3d 997.) Moreover, California Code of Civil Procedure § 877{a) provides that when a release or dismissal has been given to a co- defendant allegedly at fault for the same tort, prior to a verdict or judgment, “it shall not discharge any other party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal, or the covenant, or in the amount of the consideration paid for it, whichever is greater.” Simply stated, the amount of Plaintiff's judgment against non-settling tortfeasors must be reduced by the amount of all prior settlements. (Arbuthnot 0. Relocation Realty Service Corp, (1991) 227 Cal. App.3d 682, 689.) “Where a plaintiff's settlement completely offsets the damages assessed against a non-settling joint tortfeasor, it reduces the judgment to zero by operation of law.” (Syverson v. Hitman (1985) 171 Cal.App.3d 106, 112,) It is the amount the plaintiff has recovered in settlement from settling defendants that diminishes the plaintiff's recovery, not the amount measured by the settling defendants’ proportionate responsibility for the injury. (See McGee v. Cessna Aircraft Co. (1978) 82 Cal.App.3d 1005, 1021-1022.) Additionally, a non-setiling defendant is entitled to a credit against the verdict for the costs waived by dismissed defendants. (See Armstrong World Industries, Inc. v. Superior Court (1989) 215 Cal.App.3d 951, 955-957.) The purpose of Code of Civil Procedure section 877 is to promote settlement and the equitable sharing of costs among joint tortfeasors. (See Abbot Ford v. Superior Court 2 FOSTER WHEELER'S MILFOR AN ORDER DISCLOSING THE AMOUNTS TERMS & SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGES [07]Brvzox Hugo & PARKER Nb Maseaser (1987) 43 Cal.3d 858, 871-872; Stambaugh v. Superior Court (1976) 62 Cal. App.3d 231, 236.) Defendants must be provided with the amounts and sources of prior settlements in order to intelligently engage in settlement negotiations and comply with the public policy behind § 877, Moreover, Defendant, as a non-settled defendant, has a “palpable financial interest” in this information. As explained by the Court of Appeal in River Garden Farms, Inc. v. Superior Court (1982) 26 Cal.App.3d 986, 993: Each prejudgment settlement effects the ultimate expense borne by each judgment debtor. Absent a prejudgment settlement, all defendants found liable would share pro rata, that is, equally, by setiling before verdict. One defendant may acquit himself by contributing something less than his equal share, leaving the other defendants saddled with the entire judgment less pro tanto credit for the setllement. The cheaper the settlement, the smaller the pro tanto credit. Thus, a non-negotiating defendant has a palpable financial interest in the amount at which the negotiating defendant settles, Finally, Plaintiff has the right to determine whether any witnesses called by the Plaintiff or co-defendants have a bias on existing settlements. (Moreno v, Sayre (1984) 162 Cal. App.3d 116. (“While evidence of a settlement agreement is inadmissible to prove liability . .. it is admissible to show bias or prejudice of an adverse party.”) Accord, Zelayeta v. Pacific Greyhound Lines (1951) 104 Cal.App.2¢ 716, 729.) Thus, Defendant has the right to be informed of all existing settlements, including the terms, source and amount of each settlement, in order to: (1) engage in intelligent settlement negotiations; (2) determine whether any ultimate judgment against it would be completely offset by existing settlements; and (3) to determine whether any witness called by the plaintiffs or co-defendants have a bias based on existing settlements. Til. ALTERNATIVELY, THE COURT SHOULD PRECLUDE INTRODUCTION OF EVIDENCE OF DAMAGES G.O. 154(3) provides that “no later than 10 days prior to the date set for the asbestos settlement conference” counsel for Plaintiff shall provide a Case Status Report, 3 FOSTER WHEELER'S MILFOR AN ORDER DISCLOSING THE AMOUNTS TERMS & SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGES [071which must include “[a] summary of prior settlements obtained in the case (with confidential settlements listed without identification of the settling party).” ‘As of the filing of this motion, to date, plaintiffs have failed to provide defendant with a summary of settlements, Defendant needs to know the accurate and current amount of prior settlements in this matter to properly assess risk of litigation and defend itself during litigation. Prior settlement information is needed to evaluate the issues presented in this case, including damages, among others. Additionally, pursuant to Proposition 51, defendant is entitled to know the amount of the settlement and the settling party. Plaintiff should either comply with their obligation to produce evidence of their settlements, or be precluded from adducing evidence of their damages. IV. CONCLUSION Based on the foregoing, as well as any evidence and argument introduced at the ! hearing on this matter, Defendant respectfully requests that the court issue an order | directing Plaintiff to immediately disclose the sources and amounts of all existing settlements to date. Dated: August 22, 2007 BRYDON HUGO & PARKER By: —/s/Charles S, Park Edward R, Hugo James C. Parker Charles 5, Park Attorneys Defendant FOSTER WHEELER LLC 4 FOSTER WHEELER'S MILFOR AN ORDER DISCLOSING THE AMOUNTS TERMS & SOURCES OF ALL PRIOR SETTLEMENTS; OR IN THE ALTERNATIVE, PRECLUDING EVIDENCE OF DAMAGES [07]