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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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David T. Biderman, Bar No. 101577
dbiderman@perkinscoie.com
Richard S. Chon, Bar No. 197541
rchon@perkinscoie.com

PERKINS COIE Lip

Four Embarcadero Center, Suite 2400
San Francisco, CA 94111-4131
Telephone: 415.344.7000
Facsimile: 415.344.7288

Attorneys for Defendant

HONEYWELL INTERNATIONAL INC., fifa
AlliedSignal Inc., Successor-In-Interest to

The Bendix Corporation

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUL 18 2011

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and JOANN
BRECKLER,

Plaintiffs,
v.
ASBESTOS DEFENDANTS (B¢P),

Defendants.

Case No. CGC-08-274566

MOTION IN LIMINE TO EXCLUDE
RECORDS OF THE FRICTION
MATERIALS STANDARDS INSTITUTE
(FMSI)

Motion in Limine No. 1
Trial Date: June 29, 2011

Dept.: 220
Judge: Hon. Harold Kahn

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39812-0003.2018/LEGAL21246601.1eC MD

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I INTRODUCTION

Defendant Honeywell International Inc., {/k/a AlliedSignal Inc., successor-in-interest to
The Bendix Corporation (“Honeywell” or “Defendant”) moves the Court in limine for an order
preventing Plaintiffs from introducing into evidence documents and testimony relating to the
Friction Materials Standards Institute (hereinafter “EMSTI’).1 Defendants anticipate that Plaintiffs
will attempt to introduce, or elicit testimony about, documents associated with the FMSI.
Founded in 1948, the FMSI was a trade association of participants in the aftermarket brake
friction business. The FMSI was organized to develop for use by its members and their
customers a standardized parts numbering system for brakes for North American vehicles, and to
disseminate to its members relevant scientific, engineering, technological, and statistical
information obtained in the public domain regarding brake linings and other friction materials.
The FMSI documents and related testimony are inadmissible because they are unauthenticated
(and not capable of authentication), irrelevant, and inadmissible hearsay not within any exception.

Il. ARGUMENT: THE FMSI DOCUMENTS ARE INADMISSIBLE
A The FMSI Documents Are Not Capable Of Authentication

Authentication of a writing means “(a) the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment
of such facts by any other means provided by law.” A writing must be authenticated before either
the document itself, or secondary evidence of its contents, may be received in evidence. Cal.
Evid. Code § 1401.

A writing can be authenticated by the person who executed the writing, or someone who
witnessed its creation. Cal. Evid. Code §§ 1412, 1413. A writing may also be deemed authentic
if “the party against whom it is offered has at any time admitted its authenticity” or “the writing
has been acted upon as authentic by the party against whom it is offered.” Cal. Evid. Code

§ 1414. Finally, in some instances, a document can be authenticated based on its content. A

1 Los Angeles County General Orders Nos. 37.16 and 37.18 deem documents associated
with the Asbestos Textile Institute (ATI) and documents known as the “Sumner-Simpson papers”
(which relate to workers employed in the production of asbestos-containing textiles at the
Raybestos-Manhattan Mill and Factory) inadmissible for similar reasons.

2

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document is self-authenticating if there is evidence the writing “was received in response to a
communication” by the purported author of the document or “refers to or states matters that are
unlikely to be known to anyone other than the person who is claimed by the proponent of the
evidence to be the author of the writing.” Cal. Evid. Code §§ 1420, 1421.

Plaintiffs cannot establish the authenticity of the FMSI documents under these well-settled
methods of authentication. No witness will testify that he or she created or witnessed the creation
of the documents. Nor is there any evidence that Bendix has admitted the authenticity of these
documents. And there is no evidence that any of the documents were part of a chain of
correspondence with the author or contain information that would be known only to the author or
the purported author of the documents. Absent a proffer of evidence demonstrating that these

documents are what Plaintiffs claim they are, the documents are inadmissible.

B. The FMSI Documents Are Either Irrelevant Or of Such Minimal Relevance That
They Should be Excluded Under Evidence Code section 352.

“No evidence is admissible except relevant evidence.” Cal. Evid. Code, § 350. “Relevant
evidence” means evidence “having any tendency im reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” Cal. Evid. Code § 210. Even relevant
evidence is inadmissible “if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” Here, the FMSI documents
are either irrelevant or are of such marginal relevance that whatever relevance they contain is far
outweighed by consumption of time and confusion they would import into the trial.

Plaintiffs in other cases have argued that the FMSI documents are admissible to establish
a “conspiracy” among the members of the FMSI, including Honeywell, to suppress information
about the dangers of asbestos. Plaintiffs here have not made such an allegation. In any event,
nothing in the unauthenticated documents purporting to be minutes of FMSI General and
Committee meetings is relevant to prove the existence of an alleged conspiracy. Plaintiffs cannot
establish the preliminary facts upon which such relevancy would depend, i.c., FMSI members
came to some agreement to suppress information as to dangers related to asbestos. Cal. Evid.

3

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Code § 403. Plaintiffs also have no evidence regarding other essential elements of the alleged
conspiracy, such as the identity of its members, the dates of its alleged existence, or the harm
caused. Absent a determination by this court that the necessary preliminary facts can be
established, FMSI-related evidence is not relevant to an alleged conspiracy. Cal. Evid. Code
§§ 402, 403, 405.

Even if Plaintiffs could establish the preliminary facts to demonstrate the relevance of the
FMSI documents, the documents should still be excluded under Evidence Code section 352.
There are thousands of FMSI-related documents, which vary in completeness, legibility, time
sequence, authorship, etc. Any attempt to explain the purpose of the FMS] and present its
documents to a jury would consume an undue amount of time, resulting in a mini-trial on the
FMSI. The issue for the jury in this case is whether Mr. Lange was exposed to a product
manufactured by Honeywell and whether such exposure caused plaintiff's disease. Disparate
evidence purporting to establish an alleged conspiracy between Honeywell and other brake
manufacturers does not go to any of the elements of Plaintiffs’ tort claims and will confuse and
mislead the jury, resulting in prejudice to defendants. Therefore, even if they are deemed
marginally relevant, the FMS{ documents should be excluded under Evidence Code section 352.
Cc The FMSI Documents Are Inadmissible Hearsay

1. The FMSI Documents Are Hearsay

Hearsay is “evidence of a statement that was made other than by a witness while testifying
at the hearing and that is offered to prove the truth of the matter stated.” Evid. Code § 1200.
Hearsay evidence is inadmissible unless it falls within a recognized exception to the hearsay rule
or the class of hearsay evidence proposed for admission is inherently reliable. In re Cindy L.,
17 Cal. 4th 15, 28, 947 P.2d 1340, 1349 (1997) (“Even if hearsay evidence is necessary, however,
an exception to the hearsay rule is not valid unless the class of hearsay evidence proposed for
admission is inherently reliable.”). It is Plaintiffs’ burden to demonstrate that the documents fall
within a hearsay exception. See Cal. Evid. Code § 405 (Comment of Assembly Committee on

Judiciary).

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All of the FMS] documents consist of decades-old out-of-court statements and should not
be admitted. For example, the FMSI meeting minutes consist of non-verbatim, secondhand
summaries of FMSI meetings. Three different secretaries who worked for the FMSI over the
years prepared the summaries. The FMSI documents were not kept pursuant to a legal duty, were
not prepared under penalty of perjury, and were not disseminated in draft form to FMSI members
for accuracy and/or content review. In short, there is no indicia of reliability as to any of these
documents and absolutely no evidence that any of defendants’ employees or agents ever reviewed
the documents for accuracy and/or content or otherwise adopted the statements they contain.
Because Plaintiffs have not qualified and cannot qualify any of these three sets of documents
within a hearsay exception, all three documents are inadmissible, as is any testimony relating to

them.

2. The FMSI Documents Do Not Fall Within the Co-Conspirator Exception to
the Hearsay Rule

Where two or more persons are alleged to have conspired to cause injury to another, any
statement made by one in furtherance of the conspiratorial purpose is admissible in evidence
against any other member of the conspiracy. Cal. Evid. Code § 1223. In order to admit an
out-of-court statement under this exception, the proponent of the evidence must establish (1) the
statement was made in furtherance of the conspiracy; (2) the statement was made before or during
the pendency of the conspiracy; and (3) the existence of the conspiracy must be shown by
independent evidence. Jd. If, however, there is no independent, prima facie evidence of a
conspiracy, the court does not have to consider the other elements of the hearsay exception.
People v. Hardy, 2 Cal. Ath 86, 139 (1992).

As noted above, plaintiffs make no conspiracy allegations in this case. In any event,
plaintiffs could not meet the threshold foundational showing required for the application of the
co-conspirator hearsay exception under Evidence Code section 1223. A “conspiracy” within the
meaning of Evidence Code section 1223 is an agreement between two or more persons with
specific intent to achieve an unlawful objective (i.e., to commit a crime or a tort), coupled with an
overt act by at least one co-conspirator in furtherance of the agreement. People v. Earnest,

5

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53 Cal. App. 3d 734, 745 (1975). Plaintiffs have presented no independent evidence of any
agreement between Honeywell (or any other defendant) and any other entity to achieve an
unlawful objective. Plaintiffs have thus failed to meet the threshold requirement for introduction
of FMS1 documents as statements of a co-conspirator pursuant to Evidence Code section 1223.
Therefore, the Court need look no further to determine that the FMSI documents are not within
this exception to the hearsay rule.

Even if Plaintiffs could establish the existence of an alleged conspiracy independent of the
FMSI documents, they could not establish that the FMSI documents themselves were made by a
co-conspirator in furtherance and during the pendency of a conspiracy. Cal. Evid. Code § 1223;
People v. Herrera, 83 Cal. App. 4th 46, 64 (2000).

Tn sum, there is no evidence that Honeywell participated in any conspiracy, that any FMST
document furthered any alleged conspiratorial objective, or that Honeywell subsequently
participated in any alleged conspiracy. Therefore, the FMSI documents cannot be admitted into
evidence under Evidence Code section 1223.

3. The FMSI Documents Are Not Admissible As Adoptive Admissions

A hearsay statement may be admissible as an adoptive admission where a principal of the
party against whom it is offered, “with knowledge of the content thereof, has by words or other
conduct manifested [its] adoption or [its] belief in [the document’s] truth.” Cal. Evid. Code
§ 1221. Plaintiffs have not provided and cannot provide any evidence demonstrating that
Honeywell adopted or ratified the positions or comments in the FMSI documents.

4, The FMSI Documents Are Not Admissible As Business Records

In order to admit hearsay evidence under the “business records” exception, Plaintiffs must

demonstrate that:

(a) The writing was made in the regular course of [] business; (b) the
writing was made at or near the time of the act, condition, or event; (c) the
custodian or other qualified witness testifies to its identity and the mode of
its preparation; and (d) the sources of information and method and time of
preparation [are] such as to indicate its trustworthiness.

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Evid. Code § 1271. Plaintiffs cannot establish any of these elements with respect to the FMSI
documents. In the absence of such foundational evidence, the documents cannot be admitted

under the business records exception.

Iii. ALTERNATIVELY, ADMISSION OF THE INDIVIDUAL FMSI DOCUMENTS
SHOULD BE SUBJECT TO EVIDENTIARY HEARINGS
OUTSIDE THE JURY’S PRESENCE

Should the Court find that the documents in question are not collectively inadmissible,
each individual document Plaintiffs seek to have admitted should be subject to an evidentiary
hearing under Evidence Code section 402. Section 402 states that when the existence of
preliminary facts are disputed, their existence shall be determined by the judge outside the
presence of the jury. This procedure enables the trial judge to avoid the prejudicial effects of
jurors hearing evidence that may ultimately be excluded or of jurors becoming aware of debatable
grounds of admissibility.

Therefore, to the extent Plaintiffs seek admission of individual FMSI documents,
Honeywell requests that the Court conduct an evidentiary hearing outside the jury’s presence to
determine the admissibility of the individual documents. In such a hearing, defendants will be
able to make specific objections as to admissibility and Plaintiffs will be able to present counter-
argument and foundational evidence while avoiding the potential prejudice of an open court
discussion that could taint the jury’s deliberations and determinations.

IV. CONCLUSION
For the reasons set forth above, all documents and testimony relating to the FMSI should

be excluded.

DATED: July 18, 2011 PERKINS COTE tip

By: /S/ Richard S. Chon
Richard S$, Chon

Attorneys for Defendant

HONEYWELL INTERNATIONAL INC.,
Jfrk/a AlliedSignal Inc., Successor-In-Interest to
The Bendix Corporation

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