arrow left
arrow right
  • 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 
						
                                
Preview

                                oO DD AH

BRYDON

HUGO & PARKER
LSS MAINSSTReET
20" FLOOR
San Franeiscu, CA 94108

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

Shelley K. Tinkoff [Bar No. 187498
BRYDONTHILCO& PARKER ELECTRONICALLY
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
Plaintiff,

vs. DEFENDANT FOSTER WHEELER’S
MOTION IN LIMINE PROHIBITING USE
ASBESTOS DEFENDANTS (B“P), IN THE PRESENCE OF THE JURY OF THE
TERMS “ASBESTOS INDUSTRY” OR
Defendants. “MEMBER OF THE ASBESTOS
INDUSTRY”

[04]

Defendant FOSTER WHEELER LLC (“Defendant”), by its attorneys, 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 terms such as “asbestos industry” or
“member of the asbestos industry” and from referring to the defendant as “the asbestos
industry” or “a member of the asbestos industry.” Use of those and similar terms
should be prohibited because:

(1) they are misleading descriptions as applied to this defendant;

(2) the terms violate defendant’s right to a fair trial because defendant is

entitled to have a jury determine defendant's liability as a separate and distinct entity

1

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE PROHIBITING USE IN THE PRESENCE
OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY”
[04]| |] and not by implications to the conduct of other entities which may or may not have

2 || produced asbestos-containing insulation; and

3 (3) they are particularly improper and unfairly prejudicial when permitted in
a trial where punitive damages may be at issue.

L PLAINTIFF’S’REFERENCES TO DEFENDANTS AS THE “ASBESTOS
INDUSTRY” ARE CONFUSING AND INACCURATE

These terms falsely imply that, during the time period of importance here, the

eo WD mA ®

defendants belonged to a recognized single group defined with reference to “asbestos.”
9 || In fact, asbestos was an ingredient that was used by companies in a wide variety of

10 || disparate “industries” to make widely varying products. No one ever thought those

11 |] firms were in the same industry.

12 The term is particularly prejudicial at trial for two reasons. First, it falsely implies
13 || that Defendant is recognized as sharing with other entities such important asbestos-

14 || related interests that they were spoken of as the same “industry.” Second, the

15 || imprecision of the term facilitates painting with a broad brush. Rather than saying

16 || “company X knew thus and so,” plaintiffs state that “the asbestos industry knew thus
17 || and so,” inaccurately and unfairly tarring defendant. If plaintiffs are permitted to

18 || impose the false “asbestos industry” label on defendant, that label will create the

19 || unfairly prejudicial implication (arising from the jury’s general understanding of the

20 || purposes and behavior of groups) that defendant would be likely to have entered into
21 || agreements related to advancing the use of asbestos.

22 Plaintiff should not be allowed to use a false label as an inflammatory substitute

23 || for evidentiary proof.

24 || ff
25 || Hf
26 |) ///
27
28
BRYDON 2

Huco & PARKER DEFENDANT FOSTER WHEELER I.LC’S MOTION IN LIMINE PROHIBITING USE IN THE PRESENCE,
20" OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY”

” FLOOR,
Son Franciren, CA 94105 04UV Bw vw

aa

BRYDON
Huco & PARKER
135 Man STREET
20" FLOCK
Sau Hrandisco, CA 98108

IL PLAINTIFF’S REFERENCES TO DEFENDANTS AS THE ASBESTOS
INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY” ARE
UNFAIRLY PREJUDICIAL

Throughout the long history of asbestos litigation, plaintiffs have referred to all

defendants collectively as the “asbestos industry,” or “members of the asbestos:
industry.” That label is false as applied to defendant. First, defendant has never
referred to itself as a member of the “asbestos industry.” Second, the plaintiff hasn't
presented any evidence purporting to demonstrate that there ever was any group that
held itself out as the “asbestos industry,” much less that Defendant was a member of it.

Use of the false label “asbestos industry” is unfairly prejudicial because this
collective noun connotes by its merc usage an agreement, or a disposition toward
agreement, among certain parties. ‘This connotation has no basis in fact. Plaintiff
employs the term to suggest the existence of a group relationship in their quest to
convince the jury to find that Defendant participated in actionable group behavior. The
use of this terminology is also an attempt to impute the conduct of other parties to
defendant. Use of the broad label makes the obvious suggestion that those in a group
relationship are more likely to enter into an agreement for illegal or malicious purposes
than an individual company. Such connotations are especially prejudicial in the
punitive damages context, where the crucial issues focus on the alleged malicious
conduct of Defendant, a company which has unique facts and defenses to present to the
jury.

This Court has both the power and the duty to assure that trial is conducted in a
manner that minimizes prejudice and confusion and maximizes the jury’s understanding
of and reliance upon the evidence. (People v. Branch (2001) 91 Cal.App.4th 274; People v.
Coffman (2004) 34 Cal.4th 1.) The U.S. Supreme Court has held that a trial court should
have prevented reference to a litigant as an “eastern railroad” where the term, even
though literally true, tended to invite regional prejudice. (New York Central R.R. Co. v.
Johnson (1929) 279 U.S. 310 at p. 319.) The Court also noted that the trial judge should
have prevented the terms “claims agent defense” and “sent from New York.” (See

3

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE PROHIBITING USE IN THE PRESENCE
OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY”
{04]1 || United States v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150, 239 (“trial courts should ever
2 || be alert [to prevent] appeals to class prejudice”); of. Hallinan v. United States (9th Cir.

3 || 1950) 182 F.2d 880, 885, cert. denied, (1951) 341 U.S, 952 (trial court may preclude

4 || unproved prejudicial epithets).) The trial court’s authority extends to all who appear

5 || before it: “It is quite as necessary to protect a party against the improper remarks made
6 || to ajury by a witness as it is against such remarks when uttered by counsel.” (Beck v.

7 || Wings Field, Inc. (3d Cir. 1941) 122 F.2d 114, 117.)

8 Where the use of unfair or prejudicial language can be foreseen, it properly is

9]! prohibited in limine, thus avoiding a problematic exercise in attempting to unring the

0 |) bell. (See In Related Ashestos Cases (N.D. Cal, 1982) 543 B. Supp. 1152, 1159.) Thus, where
11 || Plaintiff’s counsel has displayed an intent to use the term “asbestos industry” in a

12 || prejudicial context, trial courts have prohibited its use. Applying these principles here,
13 |) this Court should prohibit use of the terms the “asbestos industry” or “member of the

14 || asbestos industry” as unfairly and unduly prejudicial. They improperly imply the

15 || existence of a group, and group behavior, that would improperly bias the jury and/or

16 || distract it from basing its verdict solely on an evaluation of the evidence.

17 (Il. CONCLUSION

18 For the foregoing reasons, Defendant respectfully requests that this Court enter an
19 |; order prohibiting the parties, their attorneys and witnesses from using terms such as

20 || “asbestos industry” or “member of the asbestos industry” and from referring to

21 |) defendant as the “asbestos industry” or a “member of the asbestos industry.”

22 || Dated: September 30, 2010 BRYDON HUGO & PARKER
23
24
By: /s/ Shelley K. Tinkoff
25 Edward R. Hugo
James C. Parker
26 Shelley K. Tinkoff
Attorneys for Defendant
27 FOSTER WHEELER LLC
28
BRYDON 4
Heo & PARKER DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE PROHIBITING USE IN ‘THE PRESENCE
oo Fao OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY”

San Beaneizen, GA YAT05, [04]