On June 06, 2007 a Motion,Ex Parte was filed involving a dispute between Castagna, Louis, and Advocate Mines Limited, Albay Construction Company, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, American Conference Of Governmental Industrial, American Conference Of Governmental Industrial Hyg, American Standard, Inc., Ameron International Corporation, A.O. Smith Corporation, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Baugh Construction Company, Bechtel Corporation, Bell Asbestos Mines Ltd., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Briggs & Stratton Corporation, Bucyrus International, Inc., Caterpillar Inc., Cbs Corporation, A Delaware Corporation, Chevron Products Company, Chevron U.S.A. Inc., Chicago Bridge & Iron Company,, Chrysler Llc Fka Daimlerchrysler Company Llc,, Conocophillips Company, Consolidated Insulation, Inc., Contra Costa Electric, Inc., Copeland Corporation, Copeland Corporation, Llc Fka Copeland Corporation, Crane Co., Csk Auto, Inc., Daimlerchrysler Company Llc, Formerly Known As, Daimlerchrysler Corporation, Dana Corporation, Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Durametallic Corporation, Eaton Corporation, Eaton Electrical Inc., Elliott Company,, Elliott Turbomachinery Co., Inc., Emsco Asbestos Company, Fibre & Metal Products Company, Fibre & Metal Products Company, Inc., Fisher Controls International Llc, Fmc Corporation, Fmc Corporation-Chicago Pump, Forcee Manufacturing Corp., Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, Gate City Plumbing & Heating, Gatke Corporation, General Electric Company, General Motors Corporation, Genuine Parts Co., Genuine Parts Company, Henry Vogt Machine Co., H. Krasne Manufacturing Company, Honeywell International Inc.,, Hopeman Brothers, Inc., Imo Industries Inc., Ingersoll-Rand Company, Interlake Steamship Co., Johnson Controls, Inc., J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Lamons Gasket Company, Landsea Holding Company, Lasco Brake Products, Lear Siegler Diversified Holdings Corp., Lindstrom & King Co., Inc., L.J. Miley Company, Maremont Corporation, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Automotive Parts Association, National Transport Supply, Inc., Nibco Inc., Oakfabco, Inc., Owens-Illinois, Inc., Paccar Inc., Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corp., Performance Mechanical, Inc., Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Rapid-American Corporation, Red-White Valve Corporation, Republic Supply Company, Riley Power Inc., Riley Power, Inc., Erroneously Sued As Babcock, Riteset Manufacturing Company, Rockwell Automation, Inc., Rossendale-Ruboil Company, Santa Fe Braun, Inc., Schlage Lock Company, Scott Co. Of California,, Sequoia Ventures Inc., Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Special Electric Company, Inc., Special Materials, Inc.-Wisconsin, Standard Motor Products, Inc., Standco, Inc, Sta-Rite Industries, Llc, Stuart-Western, Inc., Swinerton Builders Fka Swinerton & Walberg Co., Taco, Inc., Temporary Plant Cleaners, Inc., Terry Corporation Of Connecticut, Terry Steam Turbine Co., The Budd Company, The Dow Chemical Company, The Industrial Maintenance Engineering Contracting, The William Powell Company, Thomas Dee Engineering Company, Timec Company, Inc., Tosco Refining Company, Inc., Trane Us, Inc., Triple A Machine Shop, Inc., Tyco International, Underwriters Laboratories, Inc., Uniroyal Holding, Inc., Universal Friction Materials Company, Unocal Corporation, U.S. Spring & Bumper Company, Warren Pumps, Llc, Wheeling Brake Block Manufacturing Company, Yarway Corporation, Zurn Industries, Llc, Formerly Known As Zurn, for civil in the District Court of San Francisco County.
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2 3 4 5 6 7 8 9 10 yt ond 12 a3 gi ae oe 14 mG a z 15 oe Se 16 < & oO 17 na 18 19 20 21 2 23 24 25 26 27 28 207623. 1077.28787 RICHARD D. DUMONT (SBN 107967) tdumont@selmanbreitman.com ELECTRONICALLY PAUL J. GAMBA (SBN 146097) pgamba@selmanbreitman.com F ILE D SEL BREITMAN LLP Seem Court of California, 33 New Montgomery, Sixth Floor ounly oF San Francisco San Francisco, CA "94105 OCT 29 2010 Telephone: (415) 979-0400 Clerk of the Court Facsimile: (415) 979-2099 BY: JUANITA D_ MURPHY Deputy Clerk Attorneys for Defendant LAMONS GASKET COMPANY SUPERIOR COURT OF CALIFORNIA. COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION LOUIS CASTAGNA, Case No. CGC-07-274230 Plaintiff, MOTION IN LIMINE TO ALLOW DEFENDANT TO UTILIZE STATE- v. OF-THE-ART TESTIMONY - Motion in Limine Ne. 23 ASBESTOS DEFENDANTS (BP}, Action Filed: June 6, 2007 Defendant. Trial Date: — October 29, 2010 IL INTRODUCTION AND RELIEF SOUGHT Defendant LAMONS GASKET COMPANY (hereinafter “Lamons”) hereby moves the Court in limine regarding evidence as to the state-of-the-art of gasket and packing material at the time of decedent’s alleged exposure. This evidence is relevant because plaintiffs are alleging, inter alia, that Lamons failed to warn decedent of the alleged dangers of exposure to asbestos-containing materials incorporated into its products. I. LEGAL ARGUMENT The Court of Appeal in the First District of California held in the case of Vermeulen y. Superior Court, that the trial court in a complex asbestos litigation case properly denied a pretrial motion to exclude state-of-the-art evidence. Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192. In Vermeulen, the Court was faced with a pretrial order in the Alameda County Superior Court which had denied plaintiffs’ motion to exclude state-of 1 MOTION IN LIMINE TO ALLOW DEFENDANT TO UTILIZE STATE-OF-THE-ART TESTIMONY - MOTION IN LIMINE NO. 23a 2 3 4 5 6 7 8 9 10 su ed q, 2 a: 13 =< ee 14 Me 15 Se 16 SO NM 18 19 20 21 22 3 4 25 26 2 28 207623.) 1077.28787 the-art evidence in 2 case tried on a failure to warn theory of liability. /d In reaching its decision, the Court noted that the difficulty in applying strict liability to failure to warn cases arises when the danger was “unknowable” to the manufacturer or distributor—that is, when the state of scientific and technological knowledge during the relevant period was such that the manufacturer or distributor could not have known of the danger. Jd. at 1203- 04. This appellate court ruling in Vermeulen was upheld by the California Supreme Court in Anderson v. Owens-Corning Fiberglas Corp. Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal. 3d 987. In this decision, which overruled an appellate court’s grant of a new trial in an asbestos exposure case because “state-of-the-art” evidence had been produced by the defendant, the court stated: [H]ow can one warn of something that is unknowable? The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. Therefore ... a defendant in a strict products liability action based upon an alleged failure to warn of a risk of harm ma present evidence of the state of the art, ie., evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and/or distribution. Id. at 1002-4. Ill, CONCLUSION Since the California Supreme Court has held that “state-of-the-art” evidence is relevant and admissible in failure-to-war products liability suits brought against lit lit W 2. MOTION IN LIMINE TO ALLOW DEFENDANT TO UTILIZE STATE-OF-THE-ART TESTIMONY - MOTION IN LEMINE NO. 232 3 4 5 6 7 8 9 10 mot i 5: 12 oe 14 ee 15 ae 16 & 7 n 18 19 20 21 2 23 24 25 26 27 28 207623.1 101728787 manufacturers of products containing asbestos, Lamons respectfully requests that this Court allow it to present “state-of-the-art” evidence in this case. DATED: October 28, 2010 SELMAN BREITMAN LLP By: _/s/ Paul J. Gamba RICHARD D. DUMONT PAUL J. GAMBA Attorneys for Defendant LAMONS GASKET COMPANY 3 MOTION IN LIMINE TO ALLOW DEFENDANT TO UTILIZE STATE-OF-THE-ART TESTIMONY - MOTION IN LIMINE NO. 23pent 2 3 4 5 6 7 8 9 10 eo wt as 12 go 13 Be 14 Be 15 Se 16 4 17 os 19 20 2 22 23 24 25 26 27 28 2076I3.11077.28787 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION Louis Castagna v. Asbestos Defendants (BP) San Francisco Superior Court Case No. CGC-07-274230 Defendant: LAMONS GASKET COMPANY STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO Tam employed in the County of San Francisco, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 33 New Montgomery, Sixth Floor, San Francisco, CA 94105, On the date shown below, I electronically served the following document(s) via LexisNexis File & Serve described as MOTION IN LIMINE TO ALLOW DEFENDANT TO UTILIZE STATE-OF-THE-ART TESTIMONY - Motion in Limine No. 23 on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and cortect. Executed on OctoberZ € 2010, at San Francisco, California. MOTION IN LIMINE TO ALLOW DEFENDANT TO UTILIZE STATE-OF-THE-ART TESTIMONY - MOTION IN LIMINE NO. 23