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  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview
  • LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al ASBESTOS document preview 
						
                                
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207569.4 1077.28787

RICHARD D, DUMONT (SBN 107967)

sdumont(@selmanbreitman.com
PAUL J. GAMBA (SBN 146097) ELECTRONICALLY
pgamba@selmanbreitman.com FILED
SELMAN BREITMAN LLP Superior Court of California,
33 New Montgomery, Sixth Floor County of San Francisco
San Francisco, Ca $i 9 00 OCT 29 2010
ciephone: Clerk of the Court
Facsimile: a 1 3 979-2099 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 EXCLUDE
ADMISSION OF MEDICAL
v. TREATISES, BOOKS AND
ARTICLES AS SUBSTANTIVE
ASBESTOS DEFENDANTS (BP), EVIDENCE - Motion in Limine No. 8
Defendant. Action Filed: June 6, 2007
Trial Date: — October 29, 2010

L INTRODUCTION

Defendant LAMONS GASKET COMPANY (hereinafter referred to as
"LAMONS") herein submits the following motion in limine for an Order preventing
plaintiff from introducing medical treatises, articles, and studies as substantive evidence in
this action. Lamons makes this motion on the grounds that such evidence constitutes
inadmissible hearsay and that such evidence is only admissible to show the basis of or to
impeach an expert's opinion.
IL. ARGUMENT

Lamons anticipates that plaintiffs will attempt to introduce, through experts, the
contents and conclusions of various medical treatises, articles and studies as substantive

evidence that some defendants knew, for several years, of the dangers related to asbestos

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MOTION IN LIMINE TO EXCLUDE ADMISSION OF MEDICAL TREATISES, BOOKS AND ARTICLES
AS SUBSTANTIVE EVIDENCE - MIL NO. 82
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exposure. Such evidence, however, when offered to prove the truth of matters asserted
therein, is inadmissible hearsay. (Evid. Code § 1200; Baily v. Kreutzmann (1904) 141 Cal.
$19, 522 (medical works are hearsay and inadmissible in evidence, except perhaps on
cross-examination for purposes of impeachment); 1 Witkin, California Evidence § 380
(3rd Ed. 1986) (medical works are regarded as controversial statements of the author and
hearsay).)

It is true that articles in medical journals and brochures are a proper subject of
cross-examination of an expert who has referred to or considered such articles in
formulating his or her opinions. (Evid. Code § 271.) The law does not, however, permit
the use of such testimony as a vehicle to introduce medical articles into evidence. The
articles are hearsay and must satisfy the requirements of an exception to the hearsay rule.
(Binn vy. G.D. Searle & Co. (1984) 35 Cal.3d 691, 704.)

In Finn, the trial court permitted plaintiff, in cross-examination of defense experts,
to read certain passages from various articles in medical journals which the experts had
considered in formulating their opinions. The trial court refused, however, to admit those
articles into evidence. This ruling was upheld by the Appellate Court because the articles
were hearsay and plaintiff had not established the hearsay exception of Evidence Code
§ 1341 for publications concerning facts of general notoriety and interest. (Finn (1984) 35
Cal.3d at 704.) California Evidence Code Section 1341 provides that books and journals
of “science of art" are not made inadmissible by the hearsay rule when offered to prove
"facts of general notoriety and interest." It is well established, however, that the term
"facts of general notoriety and interest” means only those facts that are not in dispute and
that would virtually be subject to judicial notice. (See People v. Conrad (1973) 31
Cal.App.3d 308 (medical treatise or publication not within Evidence Code § 1341 hearsay
exception because medical facts are not facts of “general notoriety and interest");
Jefferson's Synopsis of California Evidence Law (Cont. Ed. Bar 1985 Supp. 1990) § 18.8.)

Finally, the law in California is clear that medical tests and articles may not be

admitted into evidence by being offered indirectly through the testimony of a party's expert

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MOTION IN LIMINE TO EXCLUDE ADMISSION OF MEDICAL TREATISES, BOOKS AND ARTICLES
AS SUBSTANTIVE EVIDENCE - MIL NO. 82
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207569. 1077.28787

witness. In People v. Odom (1980) 108 Cal.App.3d 100, 115, the court upheld the basic
rule expressed in People v. LaMacchia (1953) 41 Cal.2d 738 (overruled on other grounds),
that "prohibiting a witness from putting in evidence matters which are incompetent as
substantive evidence for the purpose of fortifying his opinion, even though they are offered
under the guise for the reasons for his opinions, and even though they might properly have
been admitted on cross-examination to test and diminish the weight to be given to his
opinion, was and is the law of this state.”

Thus, plaintiffs' medical articles may not be admitted into evidence by being offered
indirectly through the testimony of plaintiff's expert witnesses,
Ht CONCLUSION

For ali of the foregoing reasons, Lamons requests that the court grant this motion in
limine to exclude plaintiff's introduction of medical treatises, articles and/or studies for any

purpose other than for use in cross-examining on the basis of an expert's opinion.

DATED: October 28, 2010 SELMAN BREITMAN LLP

By: Af Paul J. Gamba
RICHARD D. DUMONT
PAUL J. GAMBA

Attorneys for Defendant

LAMONS GASKET COMPANY

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MOTION IN LIMINE TO EXCLUDE ADMISSION OF MEDICAL TREATISES, BOOKS AND ARTICLES
AS SUBSTANTIVE EVIDENCE - MIL NO.8tt

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2078691 1077.28787

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. [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 EXCLUDE
ADMISSION OF MEDICAL TREATISES, BOOKS AND ARTICLES AS
SUBSTANTIVE EVIDENCE - Motion in Limine No. 8 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 correct.

Executed on October FZ W10, at San Francisco, California. 7
/

(the

ie Elrod

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MOTION IN LIMINE TO EXCLUDE ADMISSION OF MEDICAL TREATISES, BOOKS AND ARTICLES
AS SUBSTANTIVE EVIDENCE - MIL NO. 8