Motion,Ex Parte: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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                                BRYDON
HUGO & PARKER
135 Mah S¥Reet
20" Foon
Sun Francisco, CA 94503

John R. Brydon [Bar No. 083365]
Brian H. Buddell [Bar No. 166103]

George A, Otstott [Bar No.184671] ELECTRONICALLY
BRYDON HUGO & PARKER CTRONIC
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 MAY 05 2010
Clerk of the Court
Attorneys for Defendant BY: RAYMOND K. WONG
BAYER CROPSCIENCE, INC., successor to Deputy Clerk

AMCHEM PRODUCTS, INC.

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

CHARLES TOBEY,. ~ (ASBESTOS)
Case No, CGC-07-274226
Plaintiff,
vs, DEFENDANT BAYER CROPSCIENCE,
INC/S MOTION IN LIMINE TO
ASBESTOS DEFENDANTS (B*P), PRECLUDE EVIDENCE REGARDING
: DEFENDANT'S MEMBERSHIP IN
Defendants. TRADE ASSOCIATIONS, OR RECEIPT
OF TRADE ASSOCIATION

PUBLICATIONS, OR OTHER
CONSTITUTIONALLY PROTECTED

ACTIVITIES

{06}

Date: May 10, 2010

Dept: 206

Judge: Hon. James J. McBride

Defendant BAYER CROPSCIENCE, INC. (‘Defendant’) hereby moves in limine for
entry of an order to preclude Plaintiff.from attempting to present at trial evidence of
Defendant's constitutionally protected activities, specifically, Delendant’s membership in
trade associations, receipt of trade association publications, or other conduct protected by
the United States and California Constitutions, such as governmental lobbying. In
addition, documents related to this Defendant's membership.in trade associations, as well
as the publications related to the activities of those associations, must be excluded.

In the alternative, Defendant moves the Court for an order instructing the parties,

1

DEFENDANT BAYER CROPSCIENCE, INC.'S MOTION IN LIMINE TO PRECLUDE EVIDENCE
REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE

ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]ec . ew WOW RR he RO

BRyDON

Huco & PARKER
138 Mani Stat

San Praneieco, CA 94105

their represeritatives and witnesses to refrain from making any direct or indirect mention
whatsoever before the jury.of the matters hereinafter set forth without first having obtained
permission from the Court outside the presence and hearing of the jury.

£ INTRODUCTION

Defendant anticipates that Plaintiff will attempt to introduce evidence regarding
Defendant's participation in and association with various trade groups. Defendant's
membership in any such organizations, receiving the publications of such groups, and
participation in the lobbying efforts and public presentations of those organizations are
protected under the First Amendment of the United States Constitution, as well as under
the California Constitution.

The only issues to be resolved in this case are whether Plaintiff's injuries were
caused by asbestos, whether Defendant was a substantial factor in causing those injuries,
and, if so, whether Defendant is now Hable to Plaintiff. Whether or not Defendant joined
trade groups, or participated in lobbying efforts, are entirely irrelevant to any of these
questions, It would be a violation of Defendant's constitutional rights for this Court to
permit Plaintiff to introduce evidence relating to these activities, particularly in a
proceeding where punitive damages.may be at issue. Accordingly, to avoid such a result,

Defendant asks the Court to preclude Plaintiff from introducing any such evidence.

A.  Plaintiff’s Attempt To Introduce Evidence Of Constitutionally Protected
Activity Is Inconsistent With The First Amendment, And Is Prejudicial In

Any Event,

The First Amendment to the United States Constitution articulates the fundamental
“right of the people to peaceably assemble, and to petition the government for a redress of
grievances.” Similarly, the California Constitution states, “The people have the right to
instruct their representatives, petition government for redress of grievances, and assemble
freely to consult for the common good,” (Cal. Const., Art. I, Sec. IIL Para, (a).) Under these
principles, the right to petition.the government is considered “fundamental to the very idea

of a republican form of governance.” (Stern v. Linited States Gypsum, Inc., 547 F.2d 1329,
2

DEPENDANT BAYER CROPSCIENCE, INC'S MOTION IN LIMINE TO PRECLUDE EVIDENCE
REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE

ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]CO OO SM DBR HW BR WN em

Bee
BRR RP BSB ES S&S SFR RGR GRE S

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Brybon

HuGo & Parker
2S MAIN STREET
AO P.0OH
San Francioco, CA 84105

1342 (7 Cir, 1977).) Accordingly, both the U.S. Supreme Court and the State of California,
as articulated below, have installed protections for a party exercising its First Amendment
right to petition the government.

Certain documents pertaining to trade association activities that Plaintiff may seek to
introduce during this trial relate to constitutionally-protected activities, and are absolutely
privileged under the First Amendment and the California State Constitution, Case law
confirms that Defendant's participation in various trade or informational organizations,
and the activities of those organizations, are protected by the First Amendment's
guarantees of freedom of association and freedom of speech.

In addition, Plaintiff may attempt to introduce documents into evidence which
purport to show what asbestos-related trade groups may have known, However, these
documents are irrelevant to Plaintiff's claims against Defendant, and, absent foundational
evidence that Defendant ever saw or had possession of trade group documents, are
irrelevant with regard to this Defendant. In any event, even if such documents are
marginally relevant, their probative value would be outweighed by the danger of unfair
prejudice to Defendant and confusion of the jury.

In the class action case of In re Asbestos School Litigation, 46 F.3d 1284 (3 Cir,1994), a
former manufacturer of asbestos-containing insulation, Pfizer, Inc., sought partial summary’
judgment on the Plaintiff's conspiracy and concert of action claims. The complaint in that
case was founded on claims surrounding Pfizer's association with the Safe Buildings
Alliance, a Defendants’ lobbying and. public education organization, and the activities of
that organization.

The Third Circuit Court of Appeals granted Pfizer an extraordinary writ and

ordered the district court to grant summary judgment on the conspiracy counts:
The district court’s (denial of summary judgment] was clearly
wrong. Worse, it has implications that broadly threaten First
Amendment rights... Joining organizations that participate in
public debate, making contributions to them, and attending

3

DEPENDANT BAYER CROPSCIENCE, INC.’S MOTION IN LIMINE TO PRECLUDE EVIDENCE
REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE

ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]So ow eo NM DO He BB WN

BRYDON

Hugo & PARKER,
125 Main StREET
20" p.ooR
‘Sia Fenacieay, CA 95195

their-meetings are activities that enjoy substantial First
Amendment protection,

(43. F.3d at 1294 (citation omitted).)

The Third Circuit's decision held that a manufacturer may properly join a trade
association that petitions the government, or publishes its views, without having those
activities used against individual members in subsequent litigation. Making these
constitutionally protected activities “risky ... would undoubtedly have an unwarranted
inhibiting effect upon them.” ([d.) The fact that Pfizer was, apparently, no longer
associated with the SBA as of the time of the summary judgment hearing did not diminish
the chilling effects potentially caused by the trial court's decision. (Id. at 1287.) Permitting
Plaintiff to present evidence regarding Defendant's past or-present trade association
activities would inhibit this and other.companies’ right to associate, to speak and to petition
the government, now and in.the future.

The Third Circuit relied heavily on N.A.A-C.P. 0. Claiborne Hardware Co. (1982) 458
US. 886, where the activity at issue was a boycott by African-Americans of allegedly
discriminatory business owners in Claiborne County, Mississippi. The boycott was not
completely non-violent. In deciding, unanimously, that the non-violent elements of the
boycott were entitled to First Amendment protection, the Court held that “[t]here isa
“profound national commitment’ to the principle that ‘debate on public issues should be
uninhibited, robust, and wide-open.” (458 U.S, at 913 (citation omitted).)

Admittedly, “the constitutionally protected conduct in Claiborne Hardware was of
much greater societal importance” than the trade association membership in question in the
Pfizer case, (Claiborne Hardware, supra, 43 F.3d at 1291.) Nevertheless, the Third Circuit
found “nothing in the Supreme Court's opinion ... that lends support to the suggestion,
that the standard it enunciated was not meant to have general applicability.” (Ikid.) Hence,
Defendant's participation in trade associations should not be inhibited by the concern that
documents reflecting these activities could be introduced by an opposing litigant decades

later.
4

DEPENDANT BAYER CROPSCIENCE, INC'S MOTION IN LIMINE TO PRECLUDE EVIDENCE
REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE

ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]The Supreme Court has consistently held that the right of association and petitioning

na

the government extends to so-called “commercial speech.” (Virginia State-Bd. of Pharmacy v.

Virginia Citizens Consumer Council (1976) 425 U.S. 748, 760-61.) As the Court noted in the
case of United Mine Workers of America v. Illinois State Bar Ass'n (1967) 389 U'S. 217, 222

(citations omitted):

We start with the premise that the rights to assemble peaceably
and to petition for a redress. of grievances are among the most
precious of the liberties safeguarded by the Bill of Rights. These
tights, moreover, are intimately connected both in origin and
purpose, with the other First Amendment rights of free speech
and free press ..... The First Amendment would, however, bea
hollow promise if it left government free to destroy or erode its
guarantees by indirect restraints so long as no law is passed that
12 prohibits free speech, press, petition, or assembly as such.

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‘Thus, to allow Plaintiff the opportunity here to base his claims, even in part, on

Defendant's attempt to seek redress from the goverrunent is precisely the “indirect

15 | restraint” prohibited by United Mine Workers.
16 While Defendant vigorously asserts that its efforts, and that of the trade associations
7 involved, were made in all good faith, motive is not an issue. First Amendment protections
18 apply regardless of motive:
9 Resort to administrative, legislative, political or judicial
20 processes is protected by the first amendment so long as the
21 petition is concerned with obtaining relief afforded by the
system .... Even if the seeking of relief is animated by.
22 malevolence or self-interest, the first amendment protects the
23 right to petition of the person whose activities are genuinely
24 aimed at procuring favorable government action,

25 || (LeBlantc-Sternberg v. Fletcher; 781 F.Supp. 261,.266 (S.D.N.Y. 1991) (citations omitted).)
26 Therefore, courts have consistently applied First Amendment protections regardless

27 \\of the speaker's goals, or even their honesty. (See,.¢.g., Stern v. United States Gypsum, Inc.,

5
Brvpon.

Hugo: a PARKER DEFENDANT BAYER CROPSCIENCE, INC.’ MOTION IN LIMINE TO PRECLUDE EVIDENCE
“a Fg REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE
ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]

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San Franciven, CA Gah05so eNO Om OM

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BRYDON

Huco & PARKER
435 Maw Sraney
208
‘Sats Francises, CA W505

547 F.2d 1329, 1342-46 (7th Cir.1977) [the sending of even false complaints to a government
employee's superiors protected by First Amendment]; Sawmill Products, Inc. 0. Town of
Cicero, 477 F.Supp. 636, 642 (ND. 11.1979) [protesting presence of plaintiff's sawmill which
was later shut down by town ordinance protected by First Amendment].)

This Court must resolve the tension between Defendant’s First Amendment rights,
and the Plaintiff's right to introduce evidence purportedly relating to matters at issue, in
favor of Defendant, The standard of review is “strict,” and Claiborne Hardware must be
given a broad interpretation. (In re Asbestos School Litigation, supra, at 1291.) To grant
Plaintiff the opportunity to introduce trade association documents cannot be squared with
the Supreme Court's unequivocal mandate protecting a corporation’s right to associate
with others, petition the goverment, and speak out on issues of concern.

In addition, admission of documentary evidence concerning the purported
knowledge and activities of asbestos-related trade groups would be extremely prejudicial
to Defendant, and would only confuse the jury. (Evid. Code, § 352.) There would be a
grave risk that a jury told that trade groups knew about the hazards of asbestos would be
inclined to paint Defendant with the same brush without any factual basis for doing so.
‘This confusion and prejudice is particularly likely to arise where, as here, the “other”
asbestos sellers or manufacturers whose documents Plaintiff would offer as evidence are
not parties to the trial, because jurors wishing to impose liability on some defendant in
order to award Plaintiff damages may be inclined to hold Defendant responsible for what
others knew or did.

Finally, if Plaintiff is permitted to introduce evidence about such trade groups,
Defendant would be forced to rebut the evidence with lengthy testimony disavowing any
of the would-be imputed knowledge. This evidentiary sideshow will not only lengthen the
trial, but will also distract the jury from the issue at hand—i.e., whether Defendant knew or
had reason to know that its products containing small amounts of encapsulated asbestos

would emit asbestos fibers when used as intended.

6

DEFENDANT BAYER CROPSCIENCE, INC’S MOTION IN LIMINE TO PRECLUDE EVIDENCE
REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE

ASSOCIATIGN PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]B. The Noerr-Pennington Doctrine Also Precludes Plaintiff’sUse Of Trade
Association Documents.

The Noerr-Pennington doctrine, which immunizes defendants from liability for their
efforts to influence legislative, executive, administrative-or judicial action, also leads to the
preclusion of the trade association documents. The doctrine shields from certain types of
liability an organization’s efforts to influence government action. (See, e.g., Eastern RR.
President's Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S, 127; United Mine Workers of
America v, Pennington (1965) 381 U.S. 657; In re IEP Confidential Business Documents Litigation
(8th Cir. 1985) 755.F.2d 1300, cert. denied, (1987) 479 U.S. 1088.) The doctrine is essentially

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similar to that expressed in Claiborne Hardware, and an atterapt by plaintiff therein to limit
11 ||Claiborne Hardware and distinguish the Noerr-Pennington doctrine was unequivocally
12 [rejected in In re Asbestos School Litigation, supra, at p. 1291,

13 The Noerr-Pennington shield is premised on the need to protect from censure an

14 | entity's exercise of its First Amendment right to petition the government for redress of

15 |igrievances and to avoid any chilling effect on the exercise of this fundamental right.

16 | (Oregon Natural Resources Counsel v. Mohla, 944 F.2d 531 (9th Cir.1991).). Although

17 | developed in the context of anti-trust litigation, courts have broadened the application of
18 | the Noerr-Pennington doctrine to shield defendants exercising their First Amendment-rights
19 | from liability in the context of civil rights and negligence cases as well. (Gorman Towers, Inc.
20 |v. Bogoslaveky, 626 F.2d 607 (8th Cir. 1980) [no liability under U.S.C. section 1983 for

21 ||defendant’s lobbying activities]; Stern v. Untled States Gypsum, Inc., 547 F.2d 1329 (7th Cir,
22'|,1977), cert, denied; (1977) 434 U.S. 975 [no liability under U.S.C. section 1985 against a

23 ||corporate defendant which filed a complaint alleging professional misconduct by the IRS},)
24 c First Amendment Protections Extend To The Issue Of Admissibility,

25 Having established that Defendant's membership in organizations and the activities
26 {lof those organizations are entitled to protection under the First Amendment and the

27 ||\California state Constitution, the question arises.as to how these rights affect the admission

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1
BRYDON
Hugo & PARKER DEFENDANT BAYER CROPSCIENCE, INC’S MOTION IN LIMINE TO PRECLUDE EVIDENCE
20" P.COR REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE

Ses Francis, CA 005 ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES (06}1 of evidence. The First Amendment and the California Constitution prohibit federal or state
2 |laction in contravention of constitutional guarantees, The requisite action would be present

3 | here were the trial court, a governmental agent, to.decide to admit the proffered

a

documents. Even private litigants can become state actors in civil lawsuits. (See, e.g.,

Edmonson v. Leesville Concrete Co, (1991) 500 U.S, 614 [private litigant in civil case becomes a

an

state actor when exercising peremptory challenges|.) State action has also been found

~

where the deprivation of constitutional rights has been caused by “the exercise of some

8 | right or privilege created by the State or by a rule of conduct imposed by the State... .”
9 || (Lugar v. Edmondson Oil Co. (1982) 457 U.S, 922,.937.)

10 In re Asbestos School Litigation, Clairborne Hardware and Noerr - Pennington all stand

11 |/for the principle that a party will not be held liable in a civil action for exercising First

12 ||Amendment rights. Yet the protection extends well beyond that axiom. Beginning with

13 | United Mine Workers. v. Pennington, supra, the protection accorded Noerr-type activity. has

14 | been extenced to the issue of admissibility. Lf the activity itself is protected ~such as

15 |ipetitioning the government—the records of a party's preparation for and meetings

16 | regarding such protected conduct are protected.as well,

7 Defendant recognizes that the papers at issue represent events which occurred

18 | decades ago. However, Defendant does not need to demonstrate a specific factual showing
19 | of achilling effect in order to support an exclusionary order in the present case, This

20 || Defendant remains a member of other trade associations, continues to petition the

21 | government, and otherwise deserves to have its Noerr and constitutional rights protected in
22 | futuro. This Court would impose a chilling effect upon all trade association members if

23 | their past Noerr-type activities were to be introduced as evidence of malicious conduct a

24 | generation later. (In re Asbestos School Litigation, 43 F.3d at 1291.)

25 Evidence of constitutionally protected advocacy and petitioning efforts is exactly the
26 |\type of evidence that should be excluded under principles of undue prejudice. (Evid.

27 \\Code., § 352.) This is so because it (1) is unrelated to Plaintiff and his claims; (2) would

g
BRYDON
Huco & Paris DEFENDANT BAYER CROPSCIENCE, INC'S MOTION IN LIMINE TO PRECLUDE EVIDENCE
Bo Fine REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE
San Francisca, 8 83198 ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES (06)HuGo & PARKER,

San Francison, CA 4105.

create collateral issues that would confuse and prolong the trial; (3) would risk inflaming
the jury, (4) would unduly prejudice Defendant, and (5) would chill constitutionally
protected activity.

Furthermore, where First Amendment protections such as the right to petition are
involved, the evidence is generally considered “presumptively prejudicial” and must be
excluded. (Linited States Football League v. National Football League, 634 F.Supp. 1155, 1171
(S.D.N.Y, 1986) [exclusion of lobbying evidence “should be the rule rather than the
exception” as being “presumptively prejudicial” ]; Weit v. Cont’L Ill. Nat’l Bank.& Trust Co.,
641 F.2d 457, 466 (7 Cir, 1981) [evidence of lobbying would confuse jury and infringe First
Amendment interests with “inevitable prejudicial effect”].)

Accordingly, even if Defendant's trade memberships or lobbying efforts were
tangentially relevant to Plaintiff's claims, such evidence is inadmissible because itis
“presumptively prejudicial,” and its probative value is substantially outweighed by the
danger of undue prejudice,
tT. CONCLUSION

This Court should preclude the Plaintiff from introducing evidence of Defendant's
constitutionally protected activities. To. do otherwise would violate and chill Defendant’s
constitutional guarantees of freedom of speech, freedom of association, and Defendant's
right to petition the government. Accordingly, Defendant asks that any documents which
evidence the exercise of such rights be excluded from evidence.

Alternatively; Defendant BAYER CROPSCIENCE, INC.requests an Order in limine
from the Court, instructing the parties, their representatives and witnesses to refrain from
i
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if
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9

DEFENDANT BAYER CROPSCIENCE, INC'S MOTION IN LIMINE TO PRECLUDE EVIDENCE
REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE
ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]1 | making any direct or indirect mention whatsoever before the jury of the matters hereinafter
2 |/set forth without first having obtained permission from the Court outside the presence and
3 ||hearing of the jury.
4 |Dated: May.5, 2010 BRYDON HUGO & PARKER
5 .
6 By: /s/ George A. Otstott
John RB. Brydon
7 Brian H, Buddell
George A. Otstott
8 Attorneys for Defendant
BAYER CROPSCIENCE, INC,, successor to
9 AMCHEM PRODUCTS, INC,
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BRYDON
HUGO & PaRKER DEFENDANT BAYER CROPSCIENCE, INC'S MOTION IN LIMINE TO PRECLUDE EVIDENCE
20" Fano REGARDING DEFENDANT'S MEMBERSHIP IN TRADE ASSOCIATIONS, OR RECEIPT OF TRADE
Sev Fansite, Ca oars ASSOCIATION PUBLICATIONS, OR OTHER CONSTITUTIONALLY PROTECTED ACTIVITIES [06]