Motion,Ex Parte: ZELINDA HANSON et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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                                Lewis BRISBOISs BISGAARD & SMITH LP

‘ONE SANSOME STREET, SUITE 1400,

SAN FRANCISCO, CALIFORNIA 84104

‘TELEPHONE (418) 262-2500,

STEPHEN CARLSON, SN Loe279. ELECTRONICALLY
LEWIS BRISBOIS BISGAARD & SMITH LLP FILED

One Sansome Street, Suite 1400 Superior Court of California,
San Francison, CA 94104 County of San Francisco
Tek: 415.362.2580 Nov 27 2007

Fax: 415.434.6882 GORDON PARK-LI, Cler}

Attomeys for Defendant BY: JUDITH NUNEZ
PLANT INSULATION COMPANY Deputy Cle

SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SAN FRANCISCO,

) CASE NO, 445692
2

Plaintiff, ) ASBESTOS-RELATED
)

v ) MOTION IN LIMINE NO. 19:
) TO EXCLUDE AND/OR LIMIT
) TESTIMONY CONCERNING PLAINTIFFS
ASBESTOS DEFENDANTS, e¢ al., ) CLAIM FOR “LOST YEARS”, FUTURE
) SOCIAL SECURITY AND RETIREMENT
Defendants, ) PENSION BENEFITS
)

) Trial Date: ‘December 3, 2007
) Action Filed: September 22, 2005

L PRELIMINARY STATEMENT

At trial, defendant PLANT INSULATION COMPANY anticipates plaintiff will attempt to ofler
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.

It is 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 plaintif?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

4833.6116.6338.1 1
MIL 19: TO EXCL AND/OR LIMIT TESTIMONY CONCERNING PIF'S CLAIM FOR “LOST YEARS”,..-Lewis BRISBOISs BISGAARD & SMITH LLP

(ONE SANSOME STREET, SUITE 1400
SAN FRANCISCO, CALIFORNIA 94404

TTELFFIIONE (415) 962-2500,

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 genera/non-cconomic damages and not special/
economic damages. (Beeman v. Burling, 216 Cal. App.3d 1586, 1599-1600(1990); Handelman v. Victor
Equipment Co., 2 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).)

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

A ‘There IsNo 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 bas 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 eaming 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 exist after death.
‘As noted 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 plaintif?'s counsel from arguing these
alleged damages should be classified as specia/economic damages. As a matter of law, the Califomia
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); Handefman 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 hy the Beeman cout, the plaintiff's claim for
future lost eamings and future lost profits aust be considered as generalnon-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 by reference to receipts and business
records (citation omitted). For similar reasons, the other two types of damages awarded,

4833.6116.6388.1 2
MIL 19: TOEXCL AND/OR LIMIT TESTIMONY CONCERNING PIF'S CLAIM FOR "LOST YEARSLewis BRISBOIS BISGAARD & SMITH LP

(ONE SANSOME STREET, SUITE 1400

‘SAN FRANCISCO, CALIFORNIA 94104

TELEPHONE (415) 082-2880

for the present cash value of future earnings, and the present cash value of the lost future

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. (Emphasis added.) 216 Cal.App.3d at 1600.

Beeman zd Handelman bave 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 specieVeconomic 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); Bancroft Whitney’s California Civil
Practice, Compensatory Damages, Section 5:15, p. 17 (1992). Asrecognized in Compensatory Damages:

Lost eamings or income are usually treated as special damages because they canbe proved

with reasonable certainty. [Handelman v. Victor Equipment Co. (1971, 2nd Dist) 21

Cal. App.34902, 99 CalRptr 90; but see Gersick v. Shilling (19590) 97 Cal. App.2d 641,218

P.2d 583 (treating plaintiffs lost actual earnings as itemn of general damages, apparently

assuming all lost eamings 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 isbility 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-economic damages and not
specisVeconomic damages. These alleged damage claims are not objectively verifiable and/or capable of
being fixcd, 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 foderal 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.

\

v

4893.5116-6338.1 3

‘MIL 19: TO EXCL AND/OR LIMIT TESTIMONY CONCERNING PIF'S CLAIM FOR LOST YEARSLEWis BRISBOIs BISGAARD & SMITH LLP

‘ONE SANSOME STREET, SUITE 1400,

‘SAN FRANCISCO, CALIFORNIA s4108

"TELEPHONE (418) 362-2500

II. CONCLUSION

Based upon the foregoing, PLANT INSULATION COMPANY respectfully request this court to
grant their motion én imine and exclude and/or limit any evidence or testimony proffered by plaintiff
concerning “lost years” future social security and retirement pension benefits.

Dated: November 26, 2007 LEWIS BRISBOIS BISGAARD & SMITH LLP

By: /S/STEPHEN CARLSON
STEPHEN CARLSON
Attomey for Defendant
PLANT INSULATION COMPANY

4858-61166396.1 4
MIL 19: TO EXCL AND/OR LIMIT TESTIMONY CONCERNING PIF'S CLAIM FOR “LOST YEARS”