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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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                                ATTORNEYS AT LAW

Selman Breitman Lip

28

227084.1 1076.29814

RICHARD D. DUMONT (SBN 107967)

rdumont@selmanbreitman.com ELECTRONICALLY
PAUL J. GAMBA (SBN 146097) c

pgamba@selmanbreitmar.com FILED
TIMOTHY F. BARTEAU (SBN 236112) Superior Court of California,
tharleau@selmanbreitman.com County of San Francisco
SELMAN BREITMAN LLP JUL 19 2011

33 New Montgomery, Sixth Floor Clerk of the Court
San Francisco, CA 94105 BY: WILLIAM TRUPEK
Telephone: (415) 979-0400 Deputy Clerk

Facsimile: (415) 979-2099

Attorneys for Defendant
SCOTT CO. OF CALIFORNIA

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

RODERICK BRECKLER and JOANN BRECKLER, Case No. CGC-08-274566

Plaintiffs, DEFENDANT SCOTT CO. OF
CALIFORNIA'S MOTION IN LIMINE
vy. TO ESTABLISH BURDEN OF PROOF
ASBESTOS DEFENDANTS (BP), et al. MIL NO. 2
Defendants. Complaint Filed : March £2, 2008
Trial Date 2 July 11, 2011

L INTRODUCTION

Defendant SCOTT CO. OF CALIFORNIA (hereinafter "Scott Co.") hereby moves this
court ia mine, prior to tral and before the selection of a jury, for an Order disallowing plaintiffs
from shifting the burden to Scott Co., in any way, in the present matter. [tis anticipated that
plaintiffs will seek to shift the burden of proof in this action to the defendants. In so doing,
plaintiffs scek to avoid their legal obligation, well-settled under current California law, to produce
evidence that exposure to the product(s) of a particular defendant, sued by them, was a substantial
factor in bringing about the claimed injury, e., that plaintiff’s contact with that defendant's
product was something more than transient, significant, or ephemeral. Plaintiffs also seek to
avoid even the burden of demonstrating that plaintiff was exposed to or came into contact with a

particular defendant's products.

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DEFENDANT SCOTT CO. OF CALIFORNIA'S MOTION IN LIMINE TO
ESTABLISH BURDEN OF PROOF - MIL NO. 22
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227634.) 1076.28824

This proposition is the antithesis of the principles upon which our legal system is based,
and is contrary to established legal principles.
I LEGAL ARGUMENT

AL Plaintiff is Required to Prove Legal Causation

In a negligence case such as this, plaintiffs must show that plaintiff's injury and resulting
death were legally caused by the negligent act or acts of the defendants. BAJI Instruction 3.76
defines legal cause as "[a] legal cause of injury, damage, loss or harm is a cause which is a
substantial factor in bringing about the injury, damage, logs or harm." (Emphasis added.)

At the heart of plaintiffs' burden is the obligation to establish a causal nexus between a
particular defendant's product or actions and plaintiff's injuries and resulting death in order to
establish that the particular defendant proximately caused plaintiff's injury and resulting death.

Plaintiffs are expected to demonstrate that plaintiff was exposed to a sufficient amount of
dust which contained asbestos fibers as a result of the actions or omissions of Scott Co. to enable a
finder of fact to determine whether shat defendant's conduct was a substantial factor in bringing
about that plaintiff's injury. By showing that a particular product was used or manipulated at
plaintiff's own work site during the time plaintiff was working there, that such product gave off
dust containing asbestos fibers, and that such product was used in sufficient amounts over the
course of the plaintiff's working life, a plaintiff can establish legal cause.

In the case of Rutherford v. Owens-Illinois Inc. (1997) 16 Cal.4th 953, the court stated at
968-969:

Generally, the burden falls on the plaintiff to establish causation [citation] ... In the

context of asbestos litigation, the plaintiff must prove that the defective products

supplied by the defendant were a substantial factor in bringing about his or her

injury [citation] ... [Para.] California has definitively adopted the substantial factor

test ... Under that standard, a cause in fact is something that is a substantial factor in

bringing about an injury. [Citations] [Citations} The substantial factor standard, ...

» has been embraced as a cleaner rule of causation - one which subsumes the “but

for” test while reaching beyond it to satisfactorily address other situations, such as

those involving independent or concurrent causes in fact. [Citations]

‘Therefore, in asbestos litigation such as this, plaintiffs are required to prove that plaintiff's

exposure to asbestos fibers as a result of the actions or omissions of Scott Co. was a
2

DEFENDANT SCOTT CO. OF CALIFORNIA'S MOTION IN LIMINE TO
ESTABLISH BURDEN OF PROOF - MIL NO. 2mt
CS 2 OM WM OB mw Rw Rm

ATTORNEYS AT LAW

Selman Breitman Lip

227634... 1076.28824

substantial factor in causing plaintiff's alleged illness.

B. Criteria for Burden Shifting
The criteria for burden shifting has been set forth in Swnmers v. Tice (1948) 33 Cal.2d 80;

Apodaca v. Haworth (1962) 206 Cal.App.2d 209; Pereira v. Dow Chemical Company (1982)

129 Cal App.3d 865; and Sheffield v. Eli Lilly & Co. (1983) 144 Cal_App.3d 583. Because burden
shifling is a substantial deviation from established and traditional concepts of proof, it is narrowly
construed. The principles of these cases can be condensed as follows: (a) when a plaintiff has
produced evidence clearly establishing a causal linkage between a defendant or its products and
the injury sustained; and (b) when the evidence produced by plaintiff shows that the conduct of
each defendant was simultaneous in time and nature, so that each, standing alone, could be a
substantial factor; and (c) where there are no means available to plaintiff to determine which
specific defendant, in fact, caused the injury, the court will permit the burden of proof to then shift
to each defendant to establish that the defendant (or its products) was not a substantial factor in
proximately causing plamtiff's injury.

However, burden shifting in the context of asbestos litigation is not permitted. In
Rutherford v. Owens-Illinois Inc., supra, 16 Cal.4th 953, the court noted the plaintiff's claim that
he could not scientifically prove the unknown details of cancer or trace the unknowable path of a
given asbestos fiber, but held at 976-977:

But the impossibility of such proof does not dictate the use of a burden shifl ...

Plaintiffs may prove causation in asbestos-related cancer cases by demonstrating

that the plaintiff's exposure to the defendant's asbestos-containing products in

reasonable medical probability was a substantial factor in contributing to the

aggregate dose (emphasis in the original) of asbestos that the plaintiff or plaintiff

inhaled or ingested ... [Para.] Who should bear the burden of proof, including the

risk of nonpersuasion on [the question of which exposures contributed significantly

enough to be considered substantial factors]? On this point, we agree with the

defendant: in the absence of a compelling need for shifting the burden, it should

remain with the plaintiff.

Here, there is no "compelling need" to shift the burden of proof to the defendants, There is
no colorable claim here that plaintiffs will be barred from recovery if they does not achieve burden

shifting on the level they seek. Here, it is possible for plaintiffs to show under traditional

standards as outlined in Rutherford which defendants caused plaintiffs harm. Plaintiffs can
3
DEFENDANT SCOTT CO. OF CALIFORNIA'S MOTION IN LIMINE TO
ESTABLISH BURDEN OF PROOF - MIL NO. 2i identify the type of job plaintiff performed, the types of asbestos products to which plaintiff was
2 | exposed, and the names of many, if not all, of those products.
3 | UL CONCLUSION
4 Plaintiffs seek to shifi the burden of proof to the defendants after showing only some
5 exposure by plaintiff to a collection of products. This proposition would totally avoid the
6 traditional requirements of legal causation, including the substantial factor test. Such a
7 | proposition was specifically rejected in Rutherford v. Owens-Illinois Inc, supra, 16 Cal. Ath 953, as
8 | outlined above. Therefore, Scott Co. moves this court to disallow burden shifting in any form by
9 | the plaintiff to the defendants in this case.
10
a lL | Dated: July 18, 2011 SELMAN BREITMAN LLP
oq
aq. 2
oe By: /s/ Timothy F_ Barteau
G- 13 RICHARD D. DUMONT
Se : PAUL J. GAMBA
oe 14 TIMOTHY F. BARTEAU
a uy Attorneys for Defendant
= & 15 SCOTT CO. OF CALIFORNIA
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REIL 107629824 DEFENDANT SCOTT CO. OF CALIFORNIA'S MOTION IN LIMINE TO
ESTABLISH BURDEN OF PROOF - MIL NO. 2