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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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                                BRYDON

Huo & PARKER
US Man sane
20" KLOOK
San Francisco, CA 96105

Edward R. Hugo [Bar No. 124839]
James C. Parker [Bar No. 106149]

Shelley K. Tinkotf [Bar No. 187498] ELECTRONICALLY
BRYDON HUGO & PARKER
135 Main Street, 20 Floor FILED
San Francisco, CA 94105 Superior Court of California,
Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 OCT 01 2010
Email: tinkoff@bhplaw.com Clerk of the Court
BY: JUANITA D. MURPHY
Attorneys for Defendant Deputy Clerk
FOSTER WHEELER LLC

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA, (ASBESTOS)
Case No, CGC-07-274230

DEFENDANT FOSTER WHEELER LLC’S
vs. MOTION IN LIMINE TO EXCLUDE
INTRODUCTION OF EVIDENCE OF
ASBESTOS DEFENDANTS (B%P), DEFENDANT'S DISCOVERY RESPONSES
IN OTHER CASES AND EVIDENCE OF
Defendants. OTHER SIMILAR LAWSUITS

[14]

Plaintiff,

L INTRODUCTION
Defendant FOSTER WHEELER LLC (“Defendant”) hereby moves in limtine to
exclude introduction of evidence taken from Defendant’s responses in other cases and
the evidence of other similar lawsuits. Under Code of Civil Procedure section 2030.410,
the use at trial or other hearing of interrogatories is governed by the Evidence Code.
Such evidence is irrelevant and prejudicial, as is evidence of similar lawsuits, and thus
Defendant moves in limine under Evidence Code sections 210, 350, 352, and 1101 and

applicable case law to exclude reference to or introduction of such evidence.

DEFENDANT FOSTER WHEELER’S MOTION IN LIMINE TO EXCLUDE INTRODUCTION
OF EVIDENCE OF DEFENDANT'S DISCOVERY RESPONSES IN OTHER CASES AND EVIDENCE OF
OTHER SIMILAR LAWSUITS [14]x

BryDoN
HuGo & PARKER
135 Mate STREBT
20" Foo,

San Franciseo, CA 94105

Tl. ARGUMENT

A. Evidence Provided In A Different Action On A Different Set Of
Facts Is Irrelevant

Evidence Code section 350 provides, “[NJo evidence is admissible except relevant
evidence,” Defendant's responses in another action are limited to the facts of that case;
thus, responses in other actions are not relevant to claims in this case.

Evidence Code section 2110 states that relevant evidence “means evidence .. .
having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” The proponent of the evidence has the
burden of showing that the facts sought to be proved are material to the case and that the
evidence offered is probative of those facts. (Kaplin v. Superior Court (1971) 6 Cal.3d 150.)
Even assuming arguendo, such evidence was relevant, its probative value is substantially
outweighed by its risk of prejudice to Defendant's rights to a fair and objective
determination of the issues by the jury. Moreover, such evidence will necessitate
unnecessary trial time and confuse or mislead the jury. (Evid. Code, § 352.)

In analyzing what evidence is probative, the court should consider that the
admission of interrogatory responses done for another case, on a specific set of facts
wholly different than the case at bar, completely takes the response out of context of this
litigation and seeks to attribute to defendant something that is irrelevant to this case.
Even when an interrogatory response provided in the case being litigated “seeks to 'tie a
party down in such a way that he may be deprived of his substantive rights,’” it is
“improper” to admit that evidence. (Singer v. Superior Court (1960) 5 Cal.Rptr. 679, 701.)
While a party’s responses to interrogatories may be “relevant to the subject matter,” that
does not mean that the interrogatory responses are relevant to the issues in this case.
The court must weigh probative value of discovery responses in other actions vis a vis

that plaintiff's claims against Defendant.

iff
Ml

2

DEFENDANT FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE INTRODUCTION
OF EVIDENCE OF DEFENDANT'S DISCOVERY RESPONSES IN OTHER CASES AND EVIDENCE OF
OTHER SIMILAR LAWSUITS [14]BrybON
Huco & PARKER,
135 Mamy STREET
20" Too
Seo Fisncieng, CA 9408

B. Evidence Of Similar Lawsuits Is Irrelevant And Prejudicial.

Moreover, many jurors may be concerned about the extent of litigation in the
courts and the role that “corporations” play in that litigation. Therefore, to allow the
admission of the evidence that reflects that other plaintiffs have sued Defendant in
similar cases is highly prejudicial. The fact that Defendant has been sued previously is
not relevant to any issue in this case; moreover, any probative value of this fact is
outweighed by the prejudice. Rare cases of admitting evidence of prior lawsuits have
been done only when the evidence of pending litigation directly proved an element of the
plaintiffs’ cause of action. (See Newmeyer v. Crown Funding Corp. (1976) 56 Cal.App.2d
178, 185 (court admitted evidence of another pending lawsuit to show when.a party
committed the allegedly fraudulent transfer, not that he was a fraud by nature).)
Evidence of other lawsuits is not material to the issues in this case and must be excluded.

To the extent that Plaintiff relies on his negligence cause of action, evidence of
other lawsuits is also specifically excluded under Evidence Code section 1101. This
section provides that evidence of a person’s character (i.e., disposition toward negligence)
is inadmissible when offered to prove his conduct on a specific occasion. Moreover,
section 1101 states that evidence of other civil wrongs is inadmissible. (See Brokopp v. Ford
Motor Company (1977) 71 Cal.App.3d 841.) In Brokopp, a case involving a defective

automobile, the court stated as to defendant Ford:

[E]vidence of a trait of character (disposition to negligence) is
inadmissible when offered to prove conduct on a specified
occasion. [citations omitted| ....It is a fundamental rule of
evidence that you cannot prove the commission of an act by
showing the commission of similar acts by the same person at
other times and under other circumstances. Such evidence is
simply not relevant... ..

(Id. at p. 851.)

Such evidence is also inadmissible if Plaintiff relies on his claim for strict products
liability. The issue in a strict products liability case is whether the produce is defective,
and not whether the conduct or character of the manufacturer was inappropriate.
(Grimshaw 0. Ford Motor Company (1981) 119 Cal.App.3d 757, 803.)

3

DEFENDANT FOSTER WHEELER'S MOTION IN LIMINE TO EXCLUDE INTRODUCTION
OF EVIDENCE OF DEFENDANT'S DISCOVERY RESPONSES IN OTHER CASES ANID EVIDENCE OF
OTHER SIMILAR LAWSLITS [14]B&B

oC ew YN A Ww

BRYDON
HUGO & PARKER
138 Many StmeRT
20" FLOOR
Sen Francisvo, CA $4105

Assuming that evidence of another lawsuit is relevant, the admission of such
evidence, should be excluded under Evidence Code section 352, as the prejudice to
Defendant outweighs the probative valued. Moreover, evidence of other lawsuits will
require an undue amount of time in presentation and rebuttal, create a substantial danger
of undue prejudice against all defendants, confuse the issues and mislead the jury. It
would also raise irrelevant issue of disease, exposure and product identification that
would serve to confuse the jury as to Plaintiff's claims.

Lastly, and most potentially prejudicial, admission of evidence of other lawsuits
would mislead the jury into concluding if defendant is involved in other lawsuits, there
must be justification for Plaintiff's claims. (See In Re Related Asbestos Cases (1982) 543
F.Supp. 1152, 1159-1160 [evidence of other asbestos-related lawsuits would be excluded
from the trial on these grounds].)

Tl. CONCLUSION

Defendant requests that discovery responses from other actions and of similar

actions be excluded from the trial of this case. Such evidence is irrelevant, will prejudice

the jury, and consume undue time and court resources.

Dated: September 30, 2010 BRYDON HUGO & PARKER

By: /s/ Shelley K. Tinkoff
Edward R. Hugo
James C. Parker
Shelley K. Tinkoff
Attorneys for Defendant
FOSTER WHEELER LLC

4

OF EVIDENCE OF DEFENDANT'S DISCOVERY RESPONSES IN OTHER CASES AND RVIDENCE OF
OTHER SIMILAR LAWSUITS [14]BRYDON

iGo & PARKER,
135 MamN STREET
20" Tuco
San Fraucisco, CA S45

Edward R. Hugo [Bar No. 124839]
James C. Parker [Bar No. 106149]
Shelley K. Tinkoff [Bar No. 187498]
BRYDON HUGO & PARKER

135 Main Street, 20 Floor

San Francisco, CA 94105
Telephone: (415) 808-0300
Facsimile: (415) 808-0333

Email: tinkoff@bhplaw.com

Attorneys for Defendant
FOSTER WHEELER LLC

SUPERIOR COURT - STATE OF CALIFORNIA.
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA, (ASBESTOS)

Case No, CGC-07-274230
Plaintif€, “
DEFENDANT FOSTER WHEELER LLC’S
vs. MOTION IN LIMINE TO EXCLUDE
IRRELEVANT ADVERTISING
ASBESTOS DEFENDANTS (BP), MATERIALS AND PHOTOGRAPHS
DEPICTING ASBESTOS-CONTAINING
Defendants. PRODUCTS

[13]

I. INTRODUCTION

Defendant FOSTER WHEELER LLC (“Defendant”) moves the Court in limine for
an Order prohibiting any party or attorney from making any direct or indirect reference,
through witnesses or exhibits, to any information relative to (a) photographs depicting
asbestos-containing products, or (b) advertising materials of defendant. These
documents, which in many instances depict products that are not even at issue in this
case, should be excluded from evidence beeause they are not properly authenticated, are
incomplete (i.e., not inclusive of the warning), are poor in quality, or are otherwise

unduly prejudicial.

1

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE IRRELEVANT
ADVERTISING MATERIALS AND PHOTOGRAPHS DEPICTING ASBESTOS-CONTAINING
. PRODUCTS [13]1 Il. | DISCUSSION

2 All photographic and documentary evidence must be authenticated prior to

3 || submission to the trier of fact. (Evid. Code, § 1400; Smith v. A.C. & S., Inc. (1994) 31 Cal

4 || App. 4th 77.) Various state and federal decisions have held that a photograph must be

5 || shown to be an accurate and correct representation of the object depicted in order to be

6 || admissible. (Rich v. District of Columbia (D.C. 1979) 410 A.2d 528; Kleveland v. U.S. (2d

7 || Cir. 1975) 345 F.2d 134, 137; U.S. v. Goslee (W.D. Pa. 1975) 389 F. Supp. 490, 493-94; State

Roads Commission v. Hance (1966) 242 Md. 137, 142; McLaughlin v. State (1968) 3 Md. App.
9 || 515, 523.)

10 Before a photograph is admitted into evidence, the time at which the picture was

11 || taken must be established to fulfill the requirement of relevancy. As stated in LLS. v.

12 |) Stearns (9th Cir. 1977) 550 F.2d 1167, 1170:

8 A photograph may be distorted, and thus inadmissible as a

14 technically inaccurate representation of the seene photographed.
A picture may also be inadmissible, although technically

15 accurate, because it portrays a scene that is materially different to
one of the issues at trial. Before admitting a photograph into

16 evidence, the trial court must find that the dangers of such
distortion or wrong emphasis are sufficiently remote so that the

17 trier of fact may consider the photograph for the purposes
offered. These are principally questions of authentication.

18

19 Furthermore, Defendant anticipates that many of the exhibits may be of

20 || extremely poor quality and are thus inaccurate portrayals; they may show only one side
21 || of the cartons, or bags, without any of the instructions and warnings thereon; the

22 || lettering on the packages may appear illegible and generally unintelligible.

23 Even if they are declared to be otherwise relevant and admissible, such products
24 || to which Plaintiff claims exposure should appear in the photographic evidence. Plaintiff
25 || claims exposure to a variety of asbestos-containing products over an extended period of
26 || time. These products were subject to changes in raw material formulation and

27 |, packaging design. In light of these changes, date and product precision is required to

28 || avoid misleading the jury. Plaintiff must authenticate all photographs and

Brynon 2
Hugo & PARKER DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE IRRELEVANT
20" FLoaR ADVERTISING MATERIALS AND PHOTOGRAPHS DEPICTING ASBESTOS-CONTAINING

Sau Beaneiseo, CA 94115 PRODUCTS [13]1 || advertisement reproductions by showing far more than a simple one dimensional
2 || caricature of a product allegedly bearing the trademark of defendant.
3 Finally, the use of photographs or advertisements — under the guise of refreshing
4 || recollection or otherwise ~ renders all interrogation in connection therewith leading in
5 || nature and therefore prohibited. (Evid. Code, §§ 764, 767; see also Fed. R. Evid. 611(c);
6 || Boone v. State (1967) 2 Md. App. 80, 233 A.2d 476.)
7 Ill. CONCLUSION
8 For the reasons set forth herein, Defendant respectfully requests that the
9 || photographs (or photocopies) depicting asbestos products and advertising materials be
10 || excluded from evidence.
i
b Dated: September 30, 2010 BRYDON HUGO & PARKER
13
14 By: /s/ Shelley K. Tinkoff
Edward R. Hugo
15 James C. Parker
Shelley K. Tinkoff
16 Attorneys for Defendant
7 FOSTER WHEELER LLC
18
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Brypoy 3
HUGO & PARKER DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE IRRELEVANT
OT coe ADVERTISING MATERIALS AND PHOTOGRAPHS DEPICTING ASBESTOS-CONTAINING
fan Taneten, CA S410 PRODUCTS [13]