On December 17, 2010 a Motion,Ex Parte was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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BRAYTON¢PURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD. POBOX 6169 NOVATO, CALIFORNIA 94948-6169 (415) 898-1555 Co ON DH Bw HN NN YN YN NY NY NN He Be Be ee Be ew eB Be SAI A A FON HF Cow AA WE BH AS GILBERT L. PURCELL, ESQ., S.B. #113603 JAMES P. NEVIN, ESQ., S.B. #220816 jnevin@braytonlaw.com BRAY TOR PURCELL LLP FILED. Attorneys at Law 222 Rush Landing Road Superior Court of Californie, P.O. Box 6169 County of San Francisco Novato, California 94948 08/11/2015 Clerk of the Court BY:RONNIE OTERO. Deputy Clerk (415) 898-1555 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ASBESTOS No. CGC-10-275731, Plaintiffs, PLAINTIFFS’ MOTION IN LIMINE vs. REGARDING IMPROPER ROESTIONING OF PROSPECTIVE C.C. MOORE & CO. ENGINEERS; JURORS DURING VOIR DIRE Defendants as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500. Trial Date: August 10, 2015 Dept.: 613 Defendants should not be allowed to pose any improper questions to prospective jurors during voir dire examination. Under California Code of Civil Procedure section 222.5 (West 2012), the Court should not permit counsel to engage in “improper questioning.” Questions not relevant to the purposes of voir dire are improper when the questions are “not likely to provide information useful in exercising a peremptory challenge or establishing a challenge for cause.” (See, People v. Williams (1981) 29 Cal.3d 392, 407.) This Court should not permit any of the following types of improper questions for the purposes of voir dire and should instruct defense counsel to refrain from asking such questions. Improper and inappropriate questions include, but are not limited to: (1) interjecting the defense counsel’s opinions; (2) summarizing the evidence or stating facts which will be introduced into evidence; (3) instructing potential jurors on how to view or weigh the evidence; (4) questions K.Mejured\19349)ialieil precl improper voir dice wp 1 JPN PLAINTIFFS’ MOTION JN LIMINE REGARDING IMPROPER QUESTIONING OF PROSPECTIVE JURORS DURING VOIR DIREco Om YN DH H PF WN =| RP RYN NY NH NNN SF eee Be ee ew ew oI AA FONH =F SOC wHM AAA R HH =D not relevant to the prospective juror’s ability to be fair or impartial in the case; (5) injecting the defense’s arguments; (6) asking argumentative or leading questions; (7) asking general questions on the law; (8) misrepresenting the applicable standards, law, and facts; and (9) any other improper questions whose purpose is other than to ascertain bias from the prospective jurors for use in a peremptory or cause challenge and are not structured in such a way as to ascertain that knowledge. Though the trial court has wide discretion in permitting counsel’s questions during voir dire, this Court may not permit questions that do not inure to the selection of a fair and impartial jury. (Cal. Rules of Court, Standards of Judicial Administration, standard 3; Cal. Rules of Court, rule 3.1540(c)); see, Cal. Civ. Proc. Code § 222.5; see also, Williams, 29 Cal.3d at 407.) Neither is it a function of the examination of prospective jurors to (1) educate the jury panel to the particular facts of the case, (2) to compel the jurors to commit themselves to vote a particular way, (3) to prejudice the jury for or against a particular party, (4) to argue the case, (5) to indoctrinate the jury, or [6] to instruct the jury into matters of law. (Rousseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 882.) In addition, Standard 3.25 of the Standards of Judicial Administration regarding the examination of prospective jurors in civil cases states that, “the trial judge [should not] allow counsel to question the jurors concerning . . . the meaning of particular words or phrases, or the comfort of the jurors, except in unusual circumstances, where, in the trial judge’s sound discretion, such questions become necessary to insure the selection of a fair and impartial jury. Under the first prong of Rousseau, whereby the jurors should not be educated as to particular facts of the case, “[v]oir dire of the jury is not the time for premature presentation of evidence, nor for the even more frequent attempts at preinstruction. Neither instruction nor the giving of evidence is the function of counsel.” (See, Rousseau, 256 Cal.App.2d at 885; see also, Sweet v. Stutch (1966) 240 Cal.App.2d 891, 894.) Moreover, “it is misconduct on the part of counsel . . . so to frame his question so that it goes beyond what is reasonably necessary to serve the legitimate purpose of eliciting the facts he is entitled to adduce in order to secure a jury free from bias or prejudice, if it is also apparent that the question may fairly be said to have K.Mpjured\19349\ealnil prec! improper voir di 2 PLAINTIFFS’ MOTION JN LIMINE REGARDING IMPROPER QUESTIONING OF PROSPECTIVE JURORS DURING VOIR DIRECo em IN DH HA BF wWN the effect of serving the illegitimate purpose of prejudicing the jury by fixing in their minds [an] idea.” (See, Arnold v. California Portland Cement Co. (1919) 41 Cal.App.420 [while holding that it was misconduct on the part of plaintiff's counsel to frame his question in a manner which suggested that defendant was protected by insurance against liability for negligence, the proposition is still pertinent to this case, as the overall purpose of voir dire is to ensure a jury free from bias and prejudice].) Plaintiffs anticipate that questions and/or statements seeking to educate the Jury as to particular facts, to present evidence, or to inject opinion will be presented by defense counsel during voir dire and, therefore, seeks to preclude them. Such questions and/or statements might include, but are not necessarily limited to: . Has anybody had experience with a small business? (This is an attempt to suggest or otherwise infer that a defendant is a small business). . The material at issue is this case is , Which is That’s the product that’s in issue. (This is an attempt to summarize facts or insert evidence. Therefore, any statement like this should be precluded, especially one which misstates or mischaracterizes the facts of this case, such as when there are several products at issue). . There is going to be “sketchy” information presented about my client. (Any statement similar to this posed by defense counsel equates to insertion of fact and opinion, as well as a mischaracterization of the evidence). . There will be evidence about the knowledge of the Navy and what the Navy knew. The defendant did not know about the dangers of asbestos. . Has anybody ever received a bill that was not theirs? . Do any of the jurors believe, as I do, that ? All such questions and/or assertions are purposefully crafted and wordsmithed attempts to precondition and indoctrinate the prospective jurors. They should not be permitted. Defense counsel should also not seek to prejudice the jury for or against another party, as this would be improper under the third prong of Rousseau. 256 Cal.App.2d at 882. Plaintiffs anticipate that questions and/or statements of this type will be presented by defense counsel during voir dire and, therefore, seeks to preclude them. Such questions and/or statements might include, but are not necessarily limited to: K.NInjured\19349\ral\nilpreel improper voir die 3 IPN PLAINTIFFS’ MOTION JN LIMINE REGARDING IMPROPER QUESTIONING OF PROSPECTIVE JURORS DURING VOIR DIREom NY DW BR WN 10 ° Just because we used asbestos in our product, does that mean we are or were wrong? . Just because we have been sued, does that mean we are wrong? . Does anyone believe where there is smoke, there is fire? . Just because we are here defending this case, does that mean we are wrong? ° Just because this case has made it this far, does that mean the case must have some merit? All questions and/or statements of this type seek to suggest that the defendant is not wrong and, thereby, might prejudice the prospective jurors against the plaintiffs, which is highly inappropriate during voir dire. Other improper questions that indoctrinate and precondition the jury include, but are not limited to: ° Can you go back in time to the past to judge the standards as they were then? . Do you expect that the defendants have to disprove the case? (The foregoing two questions presume the jurors will be adequately informed on the applicable law). ° It is not your job to “fill in the blanks .. .” can you stop yourself from filling in the blanks? (This statement implies that the jury should not draw inferences from circumstantial evidence, which is permissible, and the statement presupposes a case presents blanks). ° “It is not about connecting two things, it is actually adding information.” Can you do that? (This inappropriately endeavors to guide the jury on the law of how to evaluate the evidence). 7 Sympathy, and empathy, has “absolutely no place in this courtroom,” can you set yours aside? (Sympathy and Empathy may be an appropriate metric in assessing damages. The foregoing truncated statement does not comprehensively state the aw accurately), Moreover, this Court should not permit defense counsel to pose irrelevant, purposeless questions which indoctrinate and ingratiate the venire, such as: . “Do you believe, as Ido...” (inappropriately interjecting defense counsel’s own opinion) . “Have you paid an attorney on a contingency fee basis, and do you think the amount your attorney took was fair?” K Anjured\1934riai prec improper voir die wpa 4 IPN PLAINTIFFS’ MOTION IN LIMINE REGARDING IMPROPER QUESTIONING OF PROSPECTIVE JURORS DURING VOIR DIRESO mem IN DH BF WN (irrelevant to both peremptory and cause challenges, and preconditioning the jury) . If you were in my shoes, would you want you as a juror? . Should I be worried about you? . Does anyone think it is wrong for a defendant to choose to go to trial instead of settling the case? . Should you, Mr./Ms. , be ajuror in this case? (The foregoing four questions are irrelevant to both peremptory and cause challenges, because they are not aimed at uncovering bias or prejudice). Such impermissible questions do not serve a valid purpose under the policy of voir dire as articulated by the United States Supreme Court and the California Supreme Court; they only serve to precondition the potential jurors, waste the court’s time, and subvert the conservation policy set forth by the California courts. Dated: AUGAL 205 BRAYTON*PURCELL LLP By: _/s/ James P. Nevin James P. Nevin Attorneys for Plaintiffs KMnjured\19349\ial\nil prec improper vor dire wpd 5 PLAINTIFFS’ MOTION /N LIMINE REGARDING IMPROPER QUESTIONING OF PROSPECTIVE JURORS DURING VOIR DIRE JPNbyREPORTER'S TRANSCRIPT OF PROCEEDINGS {CIVIC CENTER SAN FRANCISCO, CALIFORNIA “TUESDAY,” JUNE’ 8, "3012" Taken Before RHONDA R. HARRIS, RPR, CSR No. 74142T 22 23 24 25 “MCKENNA LONG 6. (445). 267-4175 ALDRIGE ©... ON CORPORATION: 101 California Street, 41st Floor San Francisco, California 94111 2 BYS. cLISA LD. OBERG, - ESQ < SHEILA O'GARA, ESQ. FOR DEFENDANTS, KAISER GYPSUM COMPANY and HANSON PERMANENTE CEMENT, INC.: Oakland, Californi (510) 285-0750 BY: © JULIE A. TORR! ANNIE C. WU, DeHAY ELLISTON LLP a 94607 ES ESQ. ESQ.MICHELE C. BARNES ESQ. HUTCHINSON, ESQ.» CLIFTON. T ---900---or not? THE COURT: Could you call the next =~ THE CLERK Yes Your Honox Next,;on. the random list,.Counsél,, at.line-.28,.. the front row. (Discus ion off the record.) THE’ COURT: Good morning, Ms. Sheynkman. SHEYNKMAN: Good morning. 0.0000 7. THE COURT: I'm going to ask you to give us ‘the personal. information ‘that is asked for dn that sheet ‘and also to tell us, if you would have a iswers or. .responses ,to the questions you've heard yesterday, . lik lestions.I have been in the material business. I do not believe there .is. asbestos in cement that, is used for concrete. at. that. point...» : cere is a simple, whatever. “MR BOE: Right. Cement is the ingredient in concrete. You were also asked if you had The material at issue in this eaee.ds S£ucco. material, ‘which is that plaster material that goes on the outside of Buildings; usually, residential, I mean, other buildings as well; but very. common in residential; and ou! 11 -see'.a lot.of -houses that,were built, gosh, intheTHE COURT: It is some coating material on the How Lis that? MR. PURCELL: It is not.called stucco. “And then there ‘are other products at issue with the other defendants as well. just Ms. Torres as to just Kaiser Cement. THE COURT: She's just talking about Kaiser? OMS) TORRES: It just talking about’ Kaiser Permanente. Is anybody familiar with materials that I'mthe issue is that they « can follow | my instruction. ‘about. this. place in this courtroom. It has no place in a lawsuit. And it would be extremely unfair and prejudicial to any of the defendants sitting here. The sympathy was: one of “the things that we used to be’~-.we werecjudged by. THE COURT: Well, Me. sR OeteTE I.did read the’ -- I dia read the ‘instruction ‘that relates to “that, and obviously I'd expect people’ that are on ‘the jury to £ llow my instruction. Se i Chink that app ately . Ms. TORRES! weet: THE. COURT; Okay.. So, perhaps, that would be what you might want to ask. oMS. TORRES: Well, I- just want ~=-oneé other thing, if I might, just to clarify. why I want..to talk... beMR. DISNEY: Makes sense. _ Xou thank you can evaluate the evaluate: MS. TORRES: Let me ask you this. You talked about..-- back giiitimé,:one of thé things that will bMR. PURCELL: Objection, Your Honor. Vall improper and incorréét. 7” oe : 17 THE COURT: Well, do you have an objedtion? let me ‘see 22 ‘in court, not what might have been; ox what ‘you suppose foot 23 something to. be or have been} but what is produced as” evidence through the witnesses andthe visual or other. nce that you're handed.fill in the blanks, can you resist putting in your own information that you doesn't fill in some blanks that aré in the facts of the case? ‘Are you +- can you resist making assumption those missing facts and 6 .