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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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                                Gordon & Rees LLP

101 W. Broadway

Suite 2000
San Diego, CA 92101

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ROGER M. MANSUKHANI (SBN: 164463)
STEVEN SOBEL (SBN; 177210)
MITCHELL B. MALACHOWSKI (SBN: 245595)

GORDON & REES LLP ELECTRONICALLY
101 West Broadway, Suite 2000 FILED
San Diego, CA 92101 i Fa
Phone: (619) 696-6700 “Cent of San Fronoisee
Fax: (619) 696-7124 JUL 11 2011

Attorneys for Defendant en K of the Court

PACIFIC SCIENTIFIC CO. Deputy Clerk

SUPERIOR COURT OF CALIFORNIA -
CITY AND COUNTY OF SAN FRANCISCO
CIVIC CENTER COURTHOUSE

RODRICK BRECKLER and )} CASE NO. CGC-08-274566
JOANN BRECKLER, )
) DEFENDANT PACIFIC SCHENTIFIC
Plaintiffs, )} CO.’S MOTION IN LIMINE TO
) EXCLUDE USE OF DEPOSITIONS
vs. } TAKEN IN OTHER ACTIONS [MIL #6
of 29}
ASBESTOS DEFENDANTS (BP) As )
Reflected on Exhibits B, B-1, C, H, I; and ) Filing date: March 12, 2008
DOES 1-8500; and SEE ATTACHED LIST.) Trial date: July 11, 2011
)

L INTRODUCTION
Defendant Pacific Scientific Co. (“Defendant”), before trial and selection of a jury,
moves this Court for an order in limine to preclude Plaintiffs from introducing into evidence, or
otherwise referring to, the deposition testimony of expert and lay witmesses taken in other
asbestos cases in lieu of live testimony. Defendant requests any evidence of, or reference to, said
deposition testimony be excluded from the instant action because:

e The deposition testimony of experts or lay witnesses taken in other actions
constitutes inadmissible hearsay for which no hearsay exceptions are applicable.
Deposition testimony taken in other actions constitutes out-of-court statements offered
to prove the truth of the matter asserted, for which no recognized hearsay exceptions
apply. (Evid. Code §§§ 1200, 1201, 1291.)

« The deposition testimony of experts or lay witnesses taken in other actions is
irrelevant. The deposition testimony of experts and lay witnesses in other actions

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MOTION IN LIMINE TO EXCLUDE USE OF DEPOSITIONS TAKEN IN OTHER ACTIONS [MIL #6 of 29]Gordon & Rees LLP

10% W. Broadway

Suite 2000
San Diego, CA 92101

does not prove or disprove any disputed facts that are of consequence to the
determination of the action. (Evid. Code §§ 210, 350.)

« The introduction of deposition testimony taken in other actions will result in the
undue consumption of time and creates a substantial danger of unduly
prejudicing Defendant. The introduction of evidence irrelevant to the action will
result in a waste of court resources. Further, even if relevant, the probative value of
such evidence, if any, is outweighed by its prejudicial effect to Defendant. (Evid.
Code § 352.)

Therefore, to ensure the fairness of the proceedings and transparency of the issues,

Defendant respectfully requests this Court grant its motion and exclude the depositions of
experts and lay witnesses taken in other asbestos actions.

i. DISCUSSION

A. The Deposition Testimony Of Experts And Lay Witnesses In Other Actions
Constitutes Inadmissible Hearsay

The hearsay rule states “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”
constitutes hearsay and is inadmissible, absent an exception provided by law. (Evid, Code
§§ 1200, 1201 (“A statement within the scope of an exception to the hearsay rule is not
inadmissible on the ground that the evidence of such statement is hearsay evidence if such
hearsay evidence consists of one or more statements each of which mects the requirements of an
exception to the hearsay rule.”).)

Here, the deposition testimony of witnesses in other asbestos actions is hearsay because
such testimony attempts to provide evidence out-of-court statements by experts and lay witnesses
from other actions, which are offered to prove the truth of the matter asserted in the current
action (i.¢., Defendant’s alleged liability to Plaintiffs), Further, the deposition testimony of
experts and lay witnesses do not meet the requirements for an exception to the hearsay rule and
are, therefore, inadmissible.

fit

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MOTION IN LIMINE TO EXCLUDE USE OF DEPOSITIONS TAKEN IN OTHER ACTIONS [MIL #6 of 29]Gordon & Rees LLP

101 W. Broadway

Suite 2000
San Diego, CA 92101

1 Deposition Testimony From Other Asbestos Actions Are Not Admissible As
Former Testimony
Plaintiffs may argue deposition testimony taken in other actions should be admitted

pursuant to the “former testimony” hearsay exception, which states,

(a) Evidence of former testimony is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and . . . (2)
The party against whom the former testimony is offered was a
party to the action or proceeding in which the testimony was given
and had the right and opportunity to cross-examine the declarant
with an interest and motive similar to that which he has at the
hearing.

(Evid. Code § 1291(a)(2).}
A witness is considered “unavailable” if the witness is,

(1) Exempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is
relevant. (2) Disqualified from testifying to the matter. (3) Dead
or unable to attend or to testify at the hearing because of then
existing physical or mental illness or infirmity. (4) Absent from
the hearing and the court is unable to compel his or her attendance
by its process. (5) Absent from the hearing and the proponent of
his or her statement has exercised reasonable diligence but has
been unable to procure his or her attendance by the court's process.
(Evid. Code § 240(a).)
The party seeking to offer the former testimony (here, the Plaintiffs) bears the burden to
prove the unavailability of a declarant. (Traxler v. Thompson (1970) 4 Cal.App.3d 278, 284 n.2.)
In other words, (1) if the witness who provided the deposition testimony in another
asbestos action is available, and (2) the Plaintiffs cannot prove otherwise, and (3) the Defendant
did not have the opportunity to cross-examine the witness in the other action with an interest and
motive similar to the interest and motive in the present action, then the testimony is inadmissible
hearsay.
For example, in Rutledge v. Electric Hose and Rubber Company (9th Cir. 1975) 511 F.2d
668, the court held that forty (40) volumes of transcribed deposition testimony from a Detroit
antitrust lawsuit were inadmissible in a separate California action because: (1) the plaintiff had
not established the witnesses were unavailable; and (2) the plaintiff had not established the
defendants were given the opportunity to cross-examine the witnesses, pursuant to Evidence

Code section 1291(a)(2). (id. at 675-676.) Further, the court held that even if the defendants

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MOTION IN LIMINE TO EXCLUDE USE OF DEPOSITIONS TAKEN IN OTHER ACTIONS [MIL #6 of 29]Gordon & Rees LLP

101 W. Broadway

Suite 2006
San Diego, CA 92101

had the opportunity to cross said witnesses, the testimony would remain inadmissible because the
interests and motives underlying the questioning in each action were different—the Detroit
action dealt with an alleged conspiracy, whereas the California action was premised on a
violation of the Sherman Act. (/d.; see also First National Bank in Greenwich v. National
Airlines (S.D.N.Y. 1958) 22 F.R.D. 46, 48 (denying plaintiffs motion to admit deposition.
testimony taken in a prior action because the parties were different, an additional issue of
liability in the current action was not raised in the prior action, and no notice of the depositions
was provided to the new party).)

Hence, the deposition testimony of available experts and lay witnesses taken in other
asbestos actions in which Defendant did not have the opportunity to cross-examine the witness
with a similar motive and intent as here, should not be permitted, pursuant to the rules above.

B. The Deposition Testimony Of Witnesses In Other Asbestos Cases Is Irrelevant

Irrelevant evidence it not admissible. (Evid. Code § 350.) Relevant evidence is evidence
which has “any tendency in reason to prove or disprove any disputed fact that is of consequence
to the determination of the action.” (Evid. Code § 210.) The test of relevance is whether
evidence tends logically, naturally, and by reasonable inference to establish material facts such
as identity, intent, or motive. (People v. Carter (2005) 36 Cal.4th 1114, 1166.) Evidence is
irrelevant if it leads only to speculative inferences. (People v. Morrison (2004) 34 Cal.4th 698,
711 (emphasis added).)

Here, the deposition testimony of experts and lay witnesses in unrelated asbestos cases is
irrelevant because its introduction does not logically, naturally, and by reasonable inference
establish material facts such as Defendant’s identity, intent, or motive. However, members of a
jury exposed to deposition testimony from unrelated asbestos cases, which allege facts
suggesting Defendant's liability, will likely conclude or infer that said evidence is applicable in
the instant action as well. Jurors will reach this conclusion despite the fact that the
circumstances, theories, and defenses underlying the other action will be necessarily different
from the circumstances, theories, and defenses asserted in the instant matter. In essence, jurors

will have inferred Defendant’s guilt without foundation, logic, and reason based upon the

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MOTION IN LIMINE TO EXCLUDE USE OF DEPOSITIONS TAKEN IN OTHER ACTIONS [MIL #6 of 29]Gordon & Rees LLP

101 W. Broadway

Suite 2000
San Diego, CA 92101

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improper deposition testimony.
Therefore, because this evidence fails to prove or disprove disputed facts at issue in this
matter, and because the introduction of such evidence naturally leads to improper conclusions

and inferences, the deposition testimony from other cases is irrelevant and should be excluded.

Cc. The Introduction Of Deposition Testimony From Other Asbestos Cases Creates A
Substantial Danger Of Prejudice To Defendant

Even if deposition testimony from other cases is deemed relevant, such evidence should
be excluded because its probative value, if any, is substantially outweighed by the potential for
undue prejudice to Defendant and the undue consumption of time to the Court. The California
Evidence Code permits courts to “exclude evidence 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.” (Evid. Code § 352.)

When determining whether to exclude evidence, the court must consider many factors in
light of the unique facts and issues of each case, rather than relying upon a mechanical
application of automatic rules. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) Among
these factors is the issue of fairness—evidence is substantially more prejudicial than probative if
it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome.
(People v. Riggs (2008) 44 Cal.4th 248, 290.) Further, a court should find “undue prejudice” if it
determines the evidence prompts an emotional reaction against the defendant while having only
slight probative value with regard to issues and tends to cause the trier of fact to decide the case
on an improper basis or with an illegitimate purpose. (Hollie, supra, 180 Cal-App.4th at 1276;
Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009; see also People v. Robinson (2005) 37 Cal.4th
592, 632; People v. Lenart (2004) 32 Cal.4th 1107, 1125.)

Pursuant to Evidence Code section 352, the introduction of deposition testimony from
other asbestos cases should be excluded because such evidence will serve only to mislead the
jury and confuse the issues at hand, thereby causing Defendant to suffer undue prejudice in the

instant action. First, by presenting evidence through deposition testimony, rather than live

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MOTION IN LIMINE TO EXCLUDE USE OF DEPOSITIONS TAKEN IN OTHER ACTIONS [MIL #6 of 29]Gordon & Rees LLP
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Suite 2600
San Diego, CA 92101

28

ANPS/1055195/0992347v.1

testimony, Defendant is deprived of its opportunity to cross-examine the witness and the jury is
similarly deprived of its right to observe the demeanor of the witness; thereby, providing
Plaintiffs with an unfair advantage. Additionally, this testimony will likely cause the jury to
improperly infer, through speculation and conjecture, that facts alleged by other witnesses in
wholly different actions (which suggest Defendant’s liability) should be equally applicable in the
instant action. As a result of this prejudicial inference, Defendant will be placed in the
undesirable and unfair position of having to disprove the inference in an effort to clarify the
issues for the jury and ensure the jury is not misled. Further, the time necessary for Defendant to
disprove the inference will result in an undue waste of the Court’s time and resources.
Therefore, to avoid the prejudice that will undoubtedly result to Defendant and to avoid an undue
waste of time for the Court, the deposition testimony of experts or lay witnesses in other asbestos
cases should not be presented to the trier of fact.
Ti. CONCLUSION

For the foregoing reasons, Defendant respectfully requests this Court grant its motion and
exclude evidence of the deposition testimony of available experts and lay witnesses from other
asbestos actions because such evidence is inadmissible hearsay, irrelevant, and would cause

undue prejudice to Defendant and an undue waste of the Court’s resources and time.

f
Dated: July’, 2011 GORDON & REES LLP

MYA

4 M. Mansukhani

Steven Sobel

Mitchell B. Malachowski
Attorneys for Defendant
PACIFIC SCIENTIFIC CO.

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MOTION IN LIMINE TO EXCLUDE USE OF DEPOSITIONS TAKEN IN OTHER ACTIONS [MIL #6 of 29]