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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1 | PAUL V. LANKFORD (State Bar No. 181506) PAUL LANNUS (State Bar No. 192551) 2? | LANKFORD CRAWFORD MORENO LLP ELECTRONICALLY 3 | 1850 Mt. Diablo Blvd., Suite 600 FILED Walnut Creek CA 94596 Superior Court of California, Telephone: 925.300.3520 County of San Francisco Facsimile: 925.300.3386 JAN 12 2011 Clerk of the Court Attorneys for Defendant BY ALISON ae puty Clerk 4 5 6 | FORD MOTOR COMPANY 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 i 5 SAMUEL LEAL, ASBESTOS 1 B *Plaintiff, BRAYTON GROUP 536 v. 14 Case No. CGC-08-274807 ASBESTOS DEFENDANTS (BP), 15 Defendants. 16 17 | LOUIS CASTAGNA, CASE No. CGC-07-274230 18 Plaintiff, 19 y. DEFENDANT ForD MOTOR COMPANY’S MOTION IN LIMINE TO EXCLUDE 20 | ASBESTOS DEFENDANTS (BP), EVIDENCE RELATED To PUNITIVE DAMAGES UNTHL PLAINTIFF 21 Defendants. ESTABLISHES DEFENDANT’S LIABILITY For ACTUAL DAMAGES 22 [MIE #15] 23 24 25 26 27 | The use of the term “plaintiff” as used herein refers to the plaintiff in a personal injury action and the decedent in a wrongful death action; and the use of “plaintiff” shall refer to both plaintiff in the singular and plural, as 28 appropriate. LANKFORD -1- CRAWFORD MORENO LLP ATTONNEYSATLAW ALANKFORD CRAWFORD MORENO LLP. ATTORNEYS ATLAW GARY COATES, Plaintiff, v. ASBESTOS DEFENDANTS (BP), Defendants. CLEM FITZHUGH, Plaintiff, v. ASBESTOS DEFENDANTS (B“P), Defendants. CASE No. CGC-08-274784 Case No, CGC-08-274645 DEFENDANT FoRD Motor ComPAny’s Motion In LiminE To EXCLUDE EVIDENCE RELATED To PuNiTIVE DAMAGES UNTIL PLAINTIFF ESTABLISHES DEFENDANT’S LIABILITY FOR ACTUAL DAMAGES [MIL #15] AoC Oo NY Dw 10 i 12 13 4 15 16 7 18 19 20 21 22 23 24 25 26 27 28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS ATLAWW IL INTRODUCTION The above-named defendant (hereinafter “Defendant”) hereby moves this court for an order: 1. Excluding all evidence, comments or references relating to claims for punitive or exemplary damages with respect to Defendant unless and until plaintiff establishes that Defendant is liable for actual damages in this action; 2. Directing plaintiffs counsel to instruct plaintiff and each and every one of plaintiffs witnesses to abstain from making any reference to claims, evidence or documents relating to punitive or exemplary damages with respect to Defendant, unless and until plaintiff has established Defendant’s liability for actual damages. This motion is made on the following grounds. Proof of Defendant’s liability for actual damages is a necessary predicate for a finding of liability for punitive damages. Evidence, statements or references relating to or offered in support of claims for punitive or exemplary damages are irrelevant to plaintiff's claims for actual damages. Thus, such evidence is devoid of probative value until such time as liability for actual damages is established. Moreover, exposing the jury to such evidence prior to such time would create a substantial danger of undue prejudice, confusing the issues and undue consumption of time. Cal. Evid. Code § 352. Accordingly, until and uniess plaintiff proves Defendant's liability for actual damages, evidence relating to punitive damages with respect to Defendant should be excluded under Cal, Evid. Code § 352. I. ARGUMENT This court has the power to regulate the order of proof at trial. People v. Warner (1969) 270 Cal.App.2d 900, 906 [76 Cal.Rptr. 160]; see also Evidence Code sections 320, 402. Motions in limine are used primarily to preclude parties, their counsel and witnesses from disclosing to jurors, or prospective jurors, irrelevant, premature or otherwise inadmissible matters that are so prejudicial or confusing that their effect cannot be nullified by a subsequent admonition or direction from the court. As one court put it, “[a] motion in limine is prophylactic in nature, made DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE 10 EXCLUDE EVIDENCE RELATED TO PUNITIVE DAMAGES UNTIL PLAINTIFF ESTABLISHES DEFENDANT'S LIABILITY FOR ACTUAL DAMAGES [MIL #15]28 LANKFORD CRAWFORD MORENO LLP ATTORNEYS ATLAW to exclude evidence before it is offered, to avoid the obviously futile attempt to ‘un-ring the bell’ in the event that a motion to strike is granted in the proceedings before the jury.” Stein-Brief Group, Inc. v. Home Indem. Co, (1998) 65 Cal.App.4th 364, 369 [76 Cal.Rptr.2d 3] (internal quotation marks and citations omitted), In this case, Defendant requests that the Court regulate the order of proof at trial so as to exclude any and all evidence, references or comments relating to punitive damages unless and until plaintiff establishes that Defendant has liability for actual damages in this action. A. THIs Court SHOULD NOT ALLOW THE ADMISSION OF EVIDENCE RELATED TO PUNITIVE DAMAGES UNTIL AFTER PLAINTIFF HAS PROVEN LIABILITY FOR ACTUAL DAMAGES 1. PROOF OF A DEFENDANT'S LIABILITY FOR ACTUAL DAMAGES Is A NECESSARY PREDICATE FOR A FINDING OF PUNITIVE DAMAGES It is proper to preclude the admission of any evidence in support of punitive damages until after proof of actual damages has been established because punitive damages cannot be awarded unless a defendant is liable for actual damages. “In California, as at common law, actual damages are an absolute predicate for an award of exemplary or punitive damages,” Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147 [279 Cal Rptr. 318]; see also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004 [25 Cal.Rptr.2d 550] (en banc) (“[PJunitive damages sometimes may be assessed . . . under Civil Code section 3294, so Jong as ‘actual, substantial damages’ have been awarded.”). The California Supreme Court has long held the view that actual damages are a predicate for punitive damages. See e.g, Mother Cobb's Chicken Turnovers, Inc, v. Fox (1937) 10 Cal.2d 203, 205-206 [73 P.2d 1185], wherein the Court held: The foundation for the recovery of punitive or exemplary damages rests upon the fact that substantial damages have been sustained by the plaintiff. Punitive damages are not given as a matter of right, nor can they be made the basis of recovery independent of a showing which would entitle the plaintiff to an award of actual damages. Actual damages must be found as a predicate for exemplary damages. (Emphasis added, citations omitted.) In short, before making a claim for punitive damages, plaintiff must first lay the foundation for such damages by proving his entitlement to actual damages. -2- DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PUNITIVE DAMAGES UNTIL PLAINTIFF ESTABLISHES DEFENDANT'S LIABILITY FOR ACTUAL DAMAGES IMIL #15}28 LANKFORD CRAWFORD MORENG LLP ATTORNEYS ATLAW To recover actual damages in this action, plaintiff must prove that: (1) the defendant(s) were negligent or their products were defective; (2) the negligence or product defect legally and proximately caused plaintiff harm; and (3) the nature and extent of plaintiff's damages. Until plaintiff has proven each and every one of these elements, plaintiff has not established any entitlement to actual damages, which is a necessary predicate for an award of punitive damage. Thus, until plaintiff proves these elements, plaintiff cannot make a claim for punitive damages. 2, CAL, EVID. CODE § 352 REQUIRES THAT EVIDENCE RELATING TO PUNITIVE DAMAGES BE EXCLUDED UNTIL AFTER PLAINTIFF HAS PROVEN LIABILITY FoR ACTUAL DAMAGES Cal. Evid. Code § 352 gives trial courts wide discretion in matters of evidentiary admission, including the power to completely exclude evidence “if its probative value is substantially outweighed by the probability” that the evidence will (1) cause “undue prejudice” or (2) confuse the issues, (3) mislead the jury or (4) “necessitate undue consumption of time.” The trial court’s discretion to exclude evidence under section 352 is broad. People v. Rodrigues (1994) 8 Cal. 4th 1060, 1124 [36 Cal. Rptr.2d 235]; Mozzetti v. City of Brisbane (1977) 67 Cal. App.3d 565, 578 [136 Cal.Rptr. 751]. This Court should exercise its discretion to exclude all evidence relating to punitive or exemplary damages, and all references to claims for such damages, unless and until plaintiff establishes Defendant’s liability for actual damages. All of the factors set forth in Cal, Evid, Code § 352 weigh against the admission of evidence relating to punitive damages. First, evidence relating to punitive damages will unduly prejudice the jury against Defendant. Evidence is prejudicial if it evokes an emotional bias against a party while having very little effect on the issues. People v. Karis (1988) 46 Cal.3d 612, 638 [250 Cal.Rptr. 659]. In this case, evidence that implies oppression, malice or fraud on the part of a defendant is virtually certain to evoke emotional bias regarding that defendant and potentially the other defendants as well. That is, if evidence relating to punitive damages is admitted prior to the determination of liability for actual damages, the jury may be swayed toward finding liability simply because they feel that a defendant’s conduct was somehow “wrong”— -3- DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PUNITIVE DAMAGES UNTIL PLAINTIFF ESTABLISHES DEFENDANT'S LIABILITY FOR ACTUAL DAMAGES EMIL #15}28 LANKFORD CRAWFORD MORENO LLP. ATTORNEYS aT LAW even if the conduct does not properly support such a finding under the law. Therefore, the admission of such evidence prior to a finding of liability creates a substantial danger of undue prejudice. Second, prematurely allowing evidence related to punitive damages will result in an undue consumption of time. If the issue of punitive damages is heard at the same time as the issue of actual damages, then the court, the jury and the parties, will be required to dedicate time to considering evidence related to punitive damages at the same time as they dedicate time to time to considering evidence related to actual damages. However, if any of the defendants are found not liable for actual damages, then there would be no need to hear evidence related to punitive damages (as to that defendant) because such damages cannot be awarded. Cheung v. Daley (1995) 35 Cal.App.4th 1673 [42 Cal.Rptr.2d 164]. Thus, allowing evidence of punitive damages during the actual damages phase will likely result in time be wasted on an issue (punitive damages) that need never be reached. Third, the premature admission of evidence related to punitive damages is also likely to confuse the jury by simultaneously placing before it two different issues of liability: liability for actual damages and liability for punitive damages. Paced with these two liability issues at the same time, the jury may mistakenly confuse the factors that go into the punitive damages liability determination with the factors that go into the actual damages liability determination, All told, the undue prejudice, undue consumption of time and confusion of issues caused by premature admission of punitive damages evidence clearly outweighs the probative value of such evidence. In short, such evidence has no relevance during the phase in which only actual damages will be considered because evidence regarding punitive damages has no tendency to prove any material facts related to the threshold issue of liability for actual damages. Thus, after weighing all the factors under Cal. Evid. Code § 352, evidence related to punitive damages should be excluded unless and until the jury determines that there is liability for actual damages. -4- DEFENDANT FORD MOTOR COMPANY'S MOTION IN LEMINE TO EXCLUDE EVIDENCE RELATED TO PUNITIVE DAMAGES UNTIL PLAINTIFF ESTABLISHES DEFENDANT'S LIABILITY FOR ACTUAL DAMAGES [Ma #15}28 LANKFORD CRAWFORD: MORENO LLP ATTORNEYS ATLAW ik. CONCLUSION For the foregoing reasons, Defendant requests that the Court exclude evidence of punitive damages unless and until plaintiff first establishes Defendant’s liability for actual damages. Dated: December 2, 2010 LANKFORD CRAWFORD MORENO LLP PAUL V. LANKFORD PAUL LANNUS Attorneys for Defendant FORD MOTOR COMPANY -5- DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PUNITIVE DAMAGES UNTIL PLAINTIFF ESTABLISHES DEFENDANT'S LIABILITY FOR ACTUAL DAMAGES MO. #15]