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

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28

BRYDON

Hugo & PARKER
435 Mant saser

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

George A. Otstott [Bar No.184671]. ELECTRONI
BRYDON HUGO & PARKER CTRONICALLY
135 Main Street, 20" Floor FILED
San Francisco, CA 94105 Superior Court of California,
Telephone: (415) 808-0300 County of San Francisco
Faesimile: (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. DEPENDANT BAYER CROPSCIENCE,
INC’S MOTION IN LIMINE
ASBESTOS DEFENDANTS (B*P), PROHIBITING USE IN THE PRESENCE
OF THE JURY OF THE TERMS
Defendants. “ASBESTOS INDUSTRY” OR “MEMBER
OF THE ASBESTOS INDUSTRY”
[04]
Date: May 10, 2010
Dept.: 206
Judge: Hon. James J, McBride

Defendant BAYER CROPSCIENCE, INC, (“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 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 they are misleading descriptions as applied to this Defendant; and 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 and not by implications to

the conduct of other entities which may or may not have produced asbestos-containing,

1

DEFENDANT BAYER CROPSCIENCE, INC’S MOTION IN LIMINE PROHIBITING USE IN THE PRESENCE
OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY”
fol)BRYDON

Huco & PARKER
135 Mais Sas
2) FLOR

Son Franelsco, CA 94108

insulation.

1 PLAINTIFF'S REFERENCES TO DEFENDANT BEING PART OF THE
“ASBESTOS INDUSTRY” ARE CONFUSING AND INACCURATE

Defendant anticipates that Plaintiff's counsel will attempt to include Defendant in a
group pejoratively identified by Plaintiff's counsel as “the asbestos industry.” This term
falsely implies. that, during the time period of importance here, all of the defendants
belonged to a recognized single group defined with reference to “asbestos.” In fact,
asbestos was an.ingtedient that was used by numerous companies in many disparate
“industries” to make widely varying products. No one ever thought those firms were in
the same “industry.”

The term is particularly prejudicial at trial for two reasons, First, it falsely implies
that Deferidant is recognized as sharing with other entities such important asbestos-related
interests that they were spoken of as the same “industry.” Second, the imprecision of the
term facilitates painting with a broad brush. Rather than saying “company X knew thus
and so,” Plaintiff states that “the asbestos industry knew thus and so,” inaccurately and
unfairly tarring this Defendant. Further, the use of this term as applied to Defendant
implies that Defendant's sole purpose was to produce asbestos, which is not the case at all.

If Plaintiff is permitted to impose the false “asbestos industry” label on Defendant,
that label will create the unfairly prejudicial implication (arising from the jury's general
understanding of the purposes and behavior of groups) that Defendant possessed certain
knowledge, or committed certain acts, or would be likely to have entered into agreements
related to advancing the use of asbestos, simply by linking it to others in the purported
“asbestos industry” who had such knowledge, or committed such acts, or made such
agreements, Plaintiff should not be allowed to use a false label as an inflammatory

substitute for evidentiary proof.

2

DEFENDANT BAYER CROPSCIENCE, INC.’S MOTION IN LIMINE PROHIBITING USE IN THE PRESENCE
OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY”

(01)BRYDON

HUGO & PARKER,
iS Mamsrager

‘Sian Prancisen, CA 96305

IL PLAINTIBFE’S REFERENCES TO DEFENDANT AS PART OF THE “ASBESTOS
INDUSTRY” OR A “MEMBER OF THE ASBESTOS INDUSTRY” ARE
UNFAIRLY PREJODICIAL

Throughout the long history of asbestos litigation, plaintiffs generally have referred
to all defendants collectively as the “asbestos industry,” or “members of the asbestos
industry.” That label is false as applied to this Defendant.

First, Defendant has never referred to itself as a member of the “asbestos industry.”
Second, Plaintiff does not have any evidence in this case which will demonstrate that there
ever was ary group that held itself out as the “asbestos industry,” much less that
Defendant was a member of it.

Third, use of the false label “asbestos industry” is unfairly prejudicial, because this
collective noun connotes by its mere usage an agreement, or a disposition toward
agreement, among certain parties. This connotation has no basis in fact. Plaintiff's counsel
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 context of
asbestos litigation, 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 ina

manner that minimizes prejudice and confusion and maximizes the jury’s understanding of

jand reliance upon the evidence, (People-v. Branch (2001) 91 Cal. AppAth 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, 319.) The Court has also noted that trial judges should have prevented
3

DEFENDANT BAYER CROPSCIENCE, INC’S MOTION IN LIMINE PROHIBITING USE IN THE PRESENCE
OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY”

(01)BRYDON

Hugo & Parc
A3$ MAIN STREET
20" FOO

Son Framclsco, CA 98108

usage of terms such as “claims agent defense” and “sent from New York.” (See United
States v. Socony-Vacuum Oil Co. (1940) 310 US. 150, 239 (“trial courts should ever be alert [to
prevent] appeals to class prejudice”); cf Hallinan v. United States, 182 F.2d 880, 885 (9th
Cir,1950), cert. denied, (1951) 341 U.S, 952 (trial court may preclude unproved prejudicial
epithets).) ‘The trial court's authority extends to all who appear before it: “It is quite as
necessary to protect a party against the improper remarks made to a jury by a witness.as it
is against such remarks when uttered by counsel.” (Beck v. Wings Field, Inc.,.122 F.2d 114,
117 (rd Cir.1941).)

Where the use of unfair or prejudicial language can be foreseen, it properly is
prohibited in limine, thus avoiding a problematic exercise in attempting to unring the bell,
(See In Related Asbestos Cases, 543 F, Supp. 1152, 1159 (N.D. Cal. 1982).) Thus, where a
plaintiffs’ counsel demonstrates an intent to use.the term “asbestos industry” in a
prejudicial context, trial courts have prohibited its use.

Applying these principles here, this Court should prohibit use of the terms the
“asbestos industry” or “member of the asbestos industry” as unfairly and unduly
prejudicial. They improperly imply the existence of a group, and group behavior, that
would improperly bias the jury and/or distract it from basing its verdict solely on an
evaluation of the evidence.

Hi, CONCLUSION

For the reasons set forth above, Defendant BAYER CROPSCIENCE, INC. requests
this Court enter an order prohibiting the parties, their attorneys and witnesses from using
terms such as “asbestos industry” or “member of the asbestos industry,” and from

referring to Defendant as the “asbestos industry” ora “member of the asbestos industry.”
g y

Dated: May 5, 2010 BRYDON HUGO.& PARKER
By: Js] George A, Otstott
John R. Brydon
Brian H. Buddell
George A. Otstott
Attorneys for Defendant
BAYER CROPSCIENCE, INC, successor to
AMCHEM PRODUCTS, INC.

4

DEFENDANT BAYER CROPSCIENCE, INC,'S MOTION IN LIMINE PROHIBITING USE IN THE PRESENCE
OF THE JURY OF THE TERMS “ASBESTOS INDUSTRY” OR “MEMBER OF THE ASBESTOS INDUSTRY*

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