Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                BRAYTON®PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169,

(415) 898-1555

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GILBERT L. PURCELL, ESQ., $.B. #113603
JAMES P. NEVIN, ESQ, $.B. #220816

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BRAY TON*PURCELL LLP pee Na
Attorneys at Law FILED

222 Rush Landing Road ‘Superior Court of Cailfornia,
P.O. Box 6169 County of San Francisco
Novato, California 94948-6169 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’ BRIEF REGARDING ANY
vs. ) | REFERENCE TO, OR EVIDENCE OF,
) PRIOR SETTLEMENTS
C.C. MOORE & CO. ENGINEERS; )
Defendants as Reflected on Exhibit 1 ) 7
attached to the Summary Complaint ) Trial Date: August 10, 2015
herein; and DOES 1-8500. )  Dept.: 613
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PLAINTIFFS’ BRIEF REGARDING ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTSSo wm ND HD BF YW HN =

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TABLE OF CONTENTS

IL INTRODUCTION ........ cece eee erent een een eee nen een ences 7

Il. LEGAL ARGUMENT... 0 eee cece eee enter n tenn e nent enee

A. PRIOR SETTLEMENT INFORMATION IS INADMISSIBLE
ACCORDING TO CALIFORNIA EVIDENCE CODE § 1152 ............

PRIOR SETTLEMENT INFORMATION IS INADMISSIBLE
UNDER CALIFORNIA EVIDENCE CODE § 1154.1... ee eee eee eee

THE AMOUNTS, TERMS AND IDENTITIES OF
DEFENDANTS WHO HAVE SETTLED PRE-TRIAL ARE
CONFIDENTIAL AND NOT DISCOVERABLE... 1 eee eee eee e eee

SETTLEMENT INFORMATION IS PRIVILEGED ..........000ee ee eee

DISCLOSURE OF PLAINTIFF’S SETTLEMENTS IN PRIOR
ASBESTOS- RELATED ACTIONS VIOLATES THE
COLLATERAL SOURCE RULE... 2... ccc ee cece cece ene en eens

THE AMOUNT AND TERMS OF PLAINTIFF’S PAST

SETTLEMENTS IN PRIOR ASBESTOS-RELATED ACTIONS

ARE ONLY RELEVANT WHEN, AND IF, A JUDGMENT IS

RENDERED AGAINST A DEFENDANT AWARDING

ECONOMIC DAMAGES... eee cece crc e eee eee eneee

G. ANY REFERENCE TO DEFENDANTS AS BANKRUPT IS
IRRELEVANT AND HIGHLY PREJUDICIAL ...........0-e ee eeee eee

CONCLUSION 2.2... cect cece cence erence net e teeter ea eeeeeeeseeesereregees

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2

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PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTS:

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TABLE OF AUTHORITIES

CASES
Arambula v. Wells (1999) 72 Cal.App.4th 1006 2.0.2... ccc cece ene eee eee 5-7
Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 16 ........ cece cece e eee eee 3
Britt v. Superior Court (1978) 20 Cal.3d 844... ec eee eeeeeeeee 3
Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520. 2.0... ccc eee e eee eee 8
Cho v. Superior Court (1995) 39 Cal. App.4th 113.0... ccc ce cece cece eee e ee 3
City of Santa Barbara v. Adamson (1980) 27 Cal.3d123 2... ccc e eee e eee eee e ee 3
Clark v. Burns Hamman Baths (1925) 71 Cal.App.571 .. 2... cece cece cence eee eee 5
Conrad v. Ball Corp, (1994) 24 Cal.App.4th 439 oo... c cece cee eee eee eee eens 10
Espinoza v. Machonga (1992) 9 Cal.App.4th 268 ...... eee cece eee e eee e ences 9, 11, 12
Greathouse v. Amcord (1995) 35 Cal.App.4th 831 0.2.0.0... cece cece eee eee 9-12
Hackett v. John Crane, Inc. (2002) 98 Cal.App.4th 1233) 60... . cee eee eee ee eee 11-13
Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 10 .............006. 5,6
Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court of Santa Clara

(1996) 51 Cal-App.4th 233... cs ccccccccteutecseceteetenetenteeeeneeeneenees 3-5
Hoch v. Allied-Signal, Inc. (1994) 24 Cal. App.4th 48.0.0... ccc cece e eens 9
Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725 1... cece cece cece nen eee 6

In re Lifschutz (1970) 2 Cal.3d 415 ......... 0. ee eee . Lede ee eee ener eae 3
Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 12, 13
Laurenzi v. Vranizan (1945) 25 Cal. 2d 806 0.0... 0c cece ect e ete e eens 6
Loder v. Municipal Court (1976) 17 Cal.3d 859 2... cece ce eee eee 3
Lund v. San Joaquin Railroad (2003) 31 Cal.4th 1... .. cece cee eee e eee eee eee eee 6
McKinney v. California Portland Cement Company (2002) 96 Cal.App.4th 1214........ 5,6
Morales v. Superior Court (1979) 99 Cal.App.3d 283.0... cc cece eee e eee ee ences 3
Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164 20... 0... cece cece eee nee 10
Pacific Gas & Electric Co. v. Superior Court (1994) 28 Cal.App.4th 174 2...........06. 5,6
Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian

(1990) 218 Cal-App.3d 1058 0. cece een nn nent n ene 3
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PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTSeo OW IQ DA HW BF BN

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TABLE OF AUTHORITIES (Cont'd)

CASES (Cont'd)
Poire v. C.L. Peck/Jones Brothers Construction Corp. (1995) 39 Cal.App.4th 1832 ..... 5,7, 8
Smock v. State of California (2006) 138 Cal.App.4th 883. 2.0... .. cece eee cece e eee ee 5
Volkswagen of America, Inc., v. Superior Court of San Francisco County

(Ist Dist. 2006) 139 Cal.App.4th 1481... ... ccc ec ccceceeceeeeetenensenenees 2,4,5
Waite v. Godfrey (1980) 106 Cal. App. 3d 760 . 6
White v. Davis (1975) 13 Cal.3d 757 6... cee ccc eet eee eee 3
Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847.20... 6. e eee eee eee eee 10
Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471 0.2... cece e eee eee eee 2
STATUTES
Code of Civil Procedure § 875 1... o.oo eee n tenet een eens 6
Code of Civil Procedure § 877)... cece cece eee eee e nena 7-9
Code of Civil Procedure § 877(a) ..... 22. cece cece eee e eee ene eee ee nee 8
Civil Code § 1431.2. 0 2c ccc cee enn een ne ee eee een ene 7,8
Evidence Code § 351... c ccc ccc eee eee ener nee ene n nee en enee 13
Evidence Code § 1152 oie ici c cece eeenntt eee e ene eee nen eees 1
Evidence Code § 1152(a) 0.0... cece eee ence ence ee Se 2
Evidence Code §1154. 0... icc cece cece eee eee n nen n eee e nee e ene eenees 2
MISCELLANEOUS
5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 48 2.0... cece cece e ee eee ee 6
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PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTSSo mI DH BF WN

I.
INTRODUCTION
Defendants should not make any reference to, or seek to introduce any evidence of,
individual or total amounts of prior settlements, claims, or awards related to plaintiffs’ asbestos-
related disease. Plaintiffs only file this brief because in a recent trial during defense opening
statement, without warning, defense counsel informed the jury that plaintiffs had already
received $x amount from other entities for his asbestos-related disease. The disclosure of this
information to the jury is highly prejudicial to plaintiffs and completely runs afoul of the current

state of the law. Plaintiffs’ prior asbestos-related settlements constitute confidential and private

information that is entirely irrelevant to issues to be tried in this case. The jury is not entitled to
know the amounts, sources, or dates of such settlements, or the total amount. Only once a verdict
has been rendered against a defendant are the prior settlements then relevant only to the Court
and verdict defendant, in which event defendant may seek to obtain credit or offset against the
economic damage award from the amounts other entities paid in the other asbestos-related
lawsuits to resolve plaintiffs’ claims.
IL.
LEGAL ARGUMENT

A. PRIOR SETTLEMENT INFORMATION IS INADMISSIBLE ACCORDING TO}
CALIFORNIA EVIDENCE CODE § 1152 :

The California Evidence Code makes prior settlement information inadmissible because
introducing these agreements will confuse and mislead the jury. Defendants seek to have prior
settlements entered into evidence to show that they are not the only parties liable for plaintiffs’
asbestos exposure. The fact that other companies have made settlements with plaintiff prior to
the present case does not release defendants from their liability. As stated in the California
Evidence Code §1152:

Evidence that a person has, in compromise or from humanitarian motives,

furnished or offered or promised to furnish money or any other thing, act, or

service to another who has sustained or will sustain or claims that he or she has

sustained or will sustain loss or damage, as well as any conduct or statements

made in negotiation thereof, is inadmissible to prove his or her liability for the
loss or damage or any part of it.

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PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTS:Cem IN DH FF WN

If the Court allows evidence of prior settlements in the case it would be unduly
prejudicial to plaintiffs. California Evidence Code §1152(a) protects plaintiffs from defendants’
attempt to use prior settlements to shift liability from themselves. Therefore, any mention of
prior settlements should be excluded from the present case.

B. PRIOR SETTLEMENT INFORMATION IS INADMISSIBLE UNDER
CALIFORNIA EVIDENCE CODE § 1154

Any information regarding money, settlement negotiations or other satisfactions of a

claim is unduly prejudicial to the plaintiffs under CEC §1154. These negotiations are
inadmissible to prove the claim, or any part of it, is invalid. In Zhou v. Unisource Worldwide
(2007) 157 Cal.App.4th 1471, the Court of Appeal agreed that letters offered to prove plaintiff's
injuries with regard to settlements were not offered to prove the invalidity of the claim at hand.
The court stated that;

Evidence Code § 1154, only precludes admission of evidence of statements made

in settlement negotiations to prove the invalidity of the claim or any part of it. The

letters were not offered to prove the invalidity of the claim under negotiation;

rather they were offered to prove the extent of plaintiff's injuries from an entirely

separate accident between different parties. [Id. at 1478.]

Similarly, in plaintiffs’ situation, any prior claims cannot be included as they are being
offered to prove that the current defendant is not liable or less liable. Any prior settlements
between plaintiffs and previous defendants should be guarded from the jury as they are not on

trial in this case.

In Volkswagen of America, Inc., v. Superior Court of San Francisco County (1st Dist.
2006) 139 Cal.App.4th 1481, the defendant sought discovery of all negotiations between plaintiff
and other defendants regarding asbestos exposure. The court acknowledged that settlement
agreements receive a "heightened standard of discovery...when dealing with information which,
though not privileged, is sensitive or confidential." (Id. at 1492.) Further, the Volkswagen court
stated that it was a priority to protect "privacy interests of third parties," from discovery. (Id. at
1492.)
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SETTLED PRE-TRIAL ARE CONFIDENTIAL AND NOT DISCOVERABLE

Cc. THE AMOUNTS, TERMS AND IDENTITIES OF DEFENDANTS WHO ny

In Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court of Santa Clara (1996)
51 Cal.App.4th 233, the Court of Appeal considered the confidentiality of settlement agreements

arrived at in litigation:

The privacy of a settlement is generally understood and accepted in our legal
system, which favors settlement and therefore supports the attendant need for
confidentiality.

In considering when and under what circumstances an adverse party could properly discover or

reveal the contents of such confidential settlement agreements, the Hinshaw court held:

Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 16, outlined the
weighing process governing discovery of private documents. “Article I, section
1's, ‘inalienable Tent of privacy is a ‘fundamental interest’ of our society,
essential to those rights ‘ “ ‘guaranteed by the First, Third, Fourth, Fifth and Ninth
Amendments to the U.S. Constitution.’ ” ' (City of Santa Barbara v. Adamson
(1980) 27 Cal.3d 123, 130; White v. Davis (1975) 13 Cal.3d 757, 774-775.) But
another state interest lies in ‘ “facilitating the ascertainment of truth in connection
with legal proceedings”-~’(_Britt v. Superior Court (1978) 20 Cal.3d 844, 857; In
re Lifschutz (1970) 2 Cal.3d 415, 432; Morales v. Superior Court (1979)

99 Cal.App.3d 283, 290.) The constitutional right of privacy is ‘not

absolute’; it may be abridged when, but only when, there is a ‘compelling’ and
opposing state interest. (City of Santa Barbara v. Adamson, supra, 27 Cal.3d p.
131; Britt v. Superior Court, supra, 20 Cal.3d pp. 855-856; Loder v. Municipal
Court (1976) 17 Cal.3d 859, 864.)

In an effort to reconcile these sometimes competing public values, it has been
adjudged that inquiry into one's private affairs will not be constitutionally justified
simply because inadmissible, and irrelevant, matter sought to be discovered might
lead to other, and relevant, evidence. When compelled disclosure intrudes on
constitutionally protected areas, it cannot be justified solely on the ground
that it may lead to relevant information. [Citations.]” (119 Cal.App.3d at p.
525, 174 Cal.Rptr. 160, italics in original.)

Thus, given the private nature of a confidential settlement of a lawsuit, the
burden rests on the proponents of discovery of this information....to justify
compelling production of this material. They must do more than show the
possibility it may lead to relevant information. Instead they must show a
compelling and opposing state interest. (Board of Trustees v. Superior Court,
supra, 119 Cal.App.3d at p. 525, 174 Cal.Rptr. 160.) [Emphasis added.]

Defendants have failed, without exception, to meet the heavy burden necessary to violate
plaintiffs’ privacy rights and those defendants who settled in plaintiffs’ prior asbestos-related
actions. In fact, defendants have not even attempted to do so and have presented no justifiable
basis whatsoever in law for their prejudicial revelation of such information to the jury.

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D. SETTLEMENT INFORMATION IS PRIVILEGED

The Court of Appeal decision in Hinshaw, Winkler, Draa, Marsh & Still, supra, remains

the foremost doctrinal authority on this issue. Hinshaw was a legal malpractice action in which

the plaintiff physicians alleged that the defendant attorneys had mishandled the physicians’
lawsuit against Kaiser Foundation Hospitals. (Id, at 235.) The doctors sought an order to compe!
the details of settlements other physicians had obtained from Kaiser be disclosed. (Id, at 235-
236.) The appellate court determined that such information was private and confidential, and
therefore could not be ordered to be produced:in the absence of any "compelling need" for it. (Id.
at 242.)

As the Hinshaw court recognized, the confidential settlement of a lawsuit is subject to the

"inalienable" and "fundamental" right of privacy embodied in Article I, section 1, of the
California Constitution, as well as implied in the First, Third, Fourth, Fifth, and Ninth
Amendments to the U.S. Constitution. (Id. at 239.) Although the right is not absolute, it may
only be abridged under extraordinary circumstances:

Thus, given the private nature of a confidential settlement of a lawsuit, the burden

rests on the proponents of discovery of this information . . . to justify compelling

production of the material. They must do more than show the possibility it may
lead to relevant information. Instead they must show a compelling and

opposing state interest. [Id. at 239, emphasis added.]

Moreover, because "[t]he privacy of a settlement is generally understood and accepted in
our legal system, "public policy" favors settlement and therefore supports attendant needs for
confidentiality." Settlement agreements, in short, are "entitled to at least as much privacy
protection as a bank account or tax information ...." (Id. at 241.)

Hinshaw remains unquestioned law in California today. In fact, the protection that

Hinshaw provides to prior settlement agreements was recently upheld in the case Volkswagen of

America, Inc., v. Superior Court of San Francisco County (Ist Dist. 2006) 43 Cal.Rptr.3d 723. I

Volkswagen, the court acknowledged that settlement agreements receive a "heightened standard
of discovery." (Id. at 729.) Further, the Volkswagen court cited Hinshaw as authority for

protecting "privacy interests of third parties" from discovery. (Id.)
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Furthermore, any settlement agreement plaintiffs have entered with other defendants
contains a confidentiality provision forbidding disclosure of its terms. Moreover, the source,
amount, and date of the agreement are entirely irrelevant to any issue to be tried in this case.

Plaintiffs acknowledge that if and when judgment is ultimately entered against
defendants, defendants may be entitled to credit for certain amounts paid to resolve plaintiffs’

claims at issue in this lawsuit. (See, e.g., Poire v. C.L. Peck/Jones Brothers Construction Corp.

(1995) 39 Cal.App.4th 1832, 1837-1841.) Until such time, however, plaintiffs have no

obligation to disclose the private information of third parties. Defendants may not obtain the
disclosure of any information as to plaintiffs’ private and confidential settlement agreements with]
other defendants. And, defendants may not use such information at trial.

E. DISCLOSURE OF PLAINTIFFS’ SETTLEMENTS IN PRIOR ASBESTOS-
RELATED ACTIONS VIOLATES THE COLLATERAL SOURCE RULE

The collateral source rule operates to prevent a defendant from reducing a plaintiff's
damages with evidence that the plaintiff received compensation from a source independent of the!
defendant. By revealing to the jury that plaintiffs have already received settlements in prior
asbestos-related actions, defendants have violated the collateral source rule. (Pacific Gas &
Electric Co. v. Superior Court (1994) 28 Cal.App.4th 174, 176.) The collateral source doctrine
has been the rule in California since at least 1925. (Clark v. Burns Hamman Baths (1925)

71 Cal.App.571, 575.) Detailed analyses of the collateral source rule, always firmly supporting

its continued vitality in California, can be found in Helfend v. Southern California Rapid Transit
Dist. (1970) 2 Cal.3d 1, 10; Arambula v. Wells (1999) 72 Cal.App.4th 1006, 1012; McKinney v.
California Portland Cement Company (2002) 96 Cal.App.4th 1214; and Smock v. State of
California (2006) 138 Cal.App.4th 883.

The Arambula court explained that “the collateral source rule operates both as a
substantive rule of damages and as a rule of evidence.” (Arambula, supra, at 1015.) Asa

substantive rule, Arambula relied on Helfend for the proposition that a plaintiff's recovery not be

reduced by virtue of payment or indemnity from collateral sources. As an evidentiary rule, “it

precludes the introduction of evidence of the plaintiff being compensated by a collateral source

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unless there is a ‘persuasive showing’ that such evidence is of ‘substantial probative value’ for
purposes other than reducing damages.” (Arambula, supra, at 1015, citing Hrnjak v. Graymar,
Ine, (1971) 4 Cal.3d 725, 733.)

The intent of the collateral source doctrine is to avoid conferring “a bonanza upon the
party causing the injury.” (Arambula, supra, at 1014.) The collateral source doctrine developed
as a matter of common law, with an emphasis on preventing tortfeasors from receiving a
“windfall from the thrift and foresight of persons who have actually or constructively secured
insurance ... to provide for themselves and their families.” (Helfend, supra, at 13-14.) For
public policy reasons, it was determined that it would be better that a plaintiff might receive a
“windfall” by recovering damages for a loss for which he had already received payment or
indemnity from a collateral source than having a tortfeasor usurp those collateral source benefits
to reduce its liability. (See, e.g., Lund v. San Joaquin Railroad (2003) 31 Cal.4th 1, 10.) A
contrary rule would mis-allocate liability for tort-caused losses and discourage people from
obtaining benefits from independent collateral sources. (McKinney, supra, 96 Cal.App.4th at
1222, citing Arambula, supra, 72 Cal.App.4th at 1009; Lund, supra, at 8 (recognizing the
collateral source rule as “generally accepted,” citing Helfend, supra, 2 Cal.3d at 6, and Rest. 2d

Torts, §§ 920, 920A).)

The collateral source rule as applied specifically to joint tortfeasors was discussed in
Pacific Gas & Electric, supra, at 180-181:

Allen and Swafford, relying upon Waite v. Godfrey (1980) 106 Cal. App. 3d 760,
contend the collateral source rule does not apply because this case involves joint
tortfeasors. The general rule is that each joint tortfeasor is jointly and severally
liable for the entire judgment, but each is entitled to credit for payments made by
or on behalf of every other joint tortfeasor. (Code Civ. Proc., § 875; Laurenzi v.
Vranizan (1945) 25 Cal. 2d 806, 813; 5 Witkin, Summary of Cal. Law (9th ed.
1988) Torts, §§ 48, 56-57, pp. 110, 116-117.) Allen and Swafford contend they
should receive credit for the payments made by Salazar’s employer’s insurance
just as they would receive credit if Salazar or Salazar’s insurance paid a judgment.
They assert the source of this payment is not independent of the tortfeasor within
the meaning of the collateral source rule.

To the extent that defendants wanted to introduce evidence of settlements paid by other
asbestos defendants, plaintiffs do not dispute that payments from joint tortfeasors are not subject
to the collateral source rule as a substantive rule. Defendants are entitled to an offset. However,

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the collateral source rule applies in full as an evidentiary rule. The law on offsets from payments
by joint tortfeasors was clearly set out in Poire v. C.L. Peck/Jones Brothers Construction Corp.
(1995), 39 Cal.App.4th 1832, 1838-1839:

The interplay between section 877 and Civil Code section 1431.2. has been
examined b a number of courts. The following principles have been established.
First, each defendant is solely responsible for its share of noneconomic damages
under Civil Code section 1431.2. Therefore, a nonsettling defendant may not
receive any setoff under section 877 for the portion of a settlement by another
defendant that is attributable to noneconomic damages. Second, where a plaintiff
has received a pretrial settlement from a different defendant, the portion of the
settlement which may be set off from a subsequent jury award of economic
damages to the plaintiff must be determined by application of the percentage of
the jury award of economic damages in relationship to the total award of damages.

The offset cannot be determined until the jury has awarded total damages and apportioned fault.
For the jury to already know before deliberations how much plaintiffs have already received in
settlement credits would affect the deliberations... The jury might feel that plaintiffs have already
received enough and therefore award less or nothing. This is highly prejudicial to plaintiffs.

Economic damages are tangible and by and large ascertainable. The jury cannot award a
figure that is significantly different from what has been proven in trial and have that verdict be
upheld. Consequently, there is no reason the jury needed to know how much plaintiffs have
already received in compensation. Non-economic damages are determined by the jury, but as
liability for non-economic damages is apportioned according to fault and there is no offset, the
amount paid by other tortfeasors is irrelevant. Providing information to the jury about settlement
monies already received serves only to confuse the deliberations, not inform them. The evidence
of such settlements is inadmissible under Arambula.

F. THE AMOUNT AND TERMS OF PLAINTIFFS’ PAST SETTLEMENTS IN

PRIOR ASBESTOS-RELATED ACTIONS ARE ONLY RELEVANT WHEN,

AND IF, A JUDGMENT IS RENDERED AGAINST A DEFENDANT
AWARDING ECONOMIC DAMAGES

Code of Civil Procedure section 877(a) provides that a judgment against a non-settling
tortfeasor in a multi-defendant action shall be reduced by the amount paid prior to verdict by a
settling joint tortfeasor.

MI

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Where a release, dismissal with or without prejudice, or a_ covenant not to sue or
not to enforce judgment is given in good faith before verdict or judgment to
one or more of a number of tortfeasors claimed to be liable for the same tort,
or to one or more other co-obligors mutually subject to contribution rights, it shall
have the following effect: (a) It shall not discharge any other such party from
liability unless its terms so provide, but it shall reduce the claims against the
others in the amount stipulated by the release, the dismissal or the covenant,
or in the amount of the consideration paid for it whichever is the greater.

This “pro tanto” reduction applies solely to the economic damages awarded against the
non-settling joint tortfeasor.

Code of Civil Procedure section 1431.2, codifying Proposition 51, clearly provides that a
defendants’ liability for non-economic damage shall be several only and shall not
be joint. Moreover, the statute states:

Each defendant shall be liable only for the amount of non-economic damages

allocated to that defendant in direct proportion to that defendant’s

percentage of fault, and a separate judgment shall be rendered against that

lefendant for that amount. [Emphasis added; see, also, Buttram v. Owens-
Corning Fiberglas Corp. (1997) 16 Cal.4th 520.]
The basic principles governing the interplay between Civil Code section 1431.2 and Code}

of Civil Procedure section 877 are now well established. (See generally, Poire v. C.L.

Peck/Jones Brothers Construction Corp. (1995) 39 Cal.App.4th 1832, 1838.)

Under Civil Code section 1431.2, a defendant is only responsible for its share of non-
economic damages as that share has been determined by the jury. Therefore, a non-settling
defendant may not receive any setoff under [Code of Civil Procedure] section 877 for the
portion of a settlement by another defendant that is attributable to non-economic damages. After
application of Civil Code section 1431.2, “there is no amount that represents'a common claim fo!
non-economic damages against the settling and nonsettling defendants” and thus Code of Civil
Procedure section 877 has no applicability to non-economic damages. (Hoch v. Allied-
Signal, Inc. (1994) 24 Cal.App.4th 48, 64.)

The case at issue herein has yet to be tried to verdict. Thus, any reference to the
approximate total amount of settlements received by plaintiffs in prior asbestos-related lawsuits
is premature, not supported by any "compelling state interest," and improperly invades the
privacy rights of plaintiffs and defendants who have already settled.

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Plaintiffs do not and will not oppose producing this information in camera to the Court
post-trial to determine relevant offsets or credits against economic damages awarded by the jury.
Plaintiffs do not and will not oppose providing the total amount and identities of settled parties,
but the individual amounts from each party is clearly confidential.

This subject is best explained by a chronological analysis of the relevant case law.
Greathouse v. Amcord (1995) 35 Cal.App.4th 831 was an asbestos case in which the plaintiff
represented by BraytonPurcell LLP achieved a verdict against Amcord. Amcord did not
contest the allocation of total settlements between personal injury and wrongful death, so that
issue was not addressed by the Court. As for economic damages versus non-economic damages,
plaintiff argued that the 20% economic allocation in his releases with other defendants should be
used to determine Amcord’s post-verdict economic damages offset. Amcord argued that the
74% economic ratio as determined by the jury verdict should control. (Id. at 838-839.)
Applying the rationale of Espinoza v. Machonga (1992) 9 Cal.App.4th 268, the Greathouse Cou
held:

By allocating the "total amount of damages" between economic and noneconomic

damages, the jury made a determination as to the economic or noneconomic

character of the indivisible injury which was directly applicable to the portion of

the damages paid under the pretrial settlement. 7

When the issue was brought before the court in plaintiffs' post-trial motion, it had

already been decided in a fully adversary proceeding-the trial itself. The jury's

apportionment of damages between economic and noneconomic damages should

be binding on the trial court. [Id., at 841.]

This established the “Greathouse ratio” or the requirement that the trial court use the

jury’s determination of economic versus non-economic damages to determine the ratio to be
Jury

applied to relevant settlements to determine the post-verdict economic damages offset available

to the losing asbestos trial defendant.
Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164! was a personal injury

and loss of consortium asbestos case. Ingalls did not challenge the.trial court’s use of the

' In the published portion of Overly, the Court of Appeal affirmed the allocation of 50% of the total settlements to
personal injury and 50% to wrongful death. The unpublished portion is included to show the Court’s reasoning in
approving such an allocation and, not for reliance purposes. Unpublished opinions may be cited if they are not
‘relied on.’ (Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 444.)

K Anjured\i9349wriahbet prior setlements 9 PN
PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTSoO YN DA HW PF WN |

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Greathouse ratio regarding economic versus non-economic damages. But, on the issue of total
settlements, Amcord challenged the trial court’s allocation of 50% to personal injury and 50% to
wrongful death based on a declaration from plaintiff’s counsel identify the amount of settlements
and that they were allocated between personal injury, loss of consortium, and wrongful death.
(Id. at 20.) The settlements did not provide a specific percentage allocation. (Id. at 22.)
However, in rejecting Ingalls’s arguments and upholding the trial court’s 50/50 split, the

Overly court noted that in fact the wrongful death case had some economic value such as funeral

expenses. (Id. 23-24.) Moreover, the court noted that non-economic damages are assessed
regardless of the financial dependance or independence of the heirs, but rather are based on the
closeness of the heirs to the plaintiff. (Id. 24.) “Absent evidence of a bad family relationship, th
trial court was certainly not required to disregard the value of [the] prospective claims. (Id.)

Wilson v. John Crane, Inc. (2000) 81 Cal.App.4"” 847, was a personal injury and loss of

consortium asbestos case in which the plaintiff represented by BraytonPurcell LLP achieved a
verdict against John Crane. For the offset motion, plaintiff's counsel provided a declaration
stating that each of the settlement releases allocated 60% to personal injury, 20% to loss of
consortium, and 20% to wrongful death. The trial Court accordingly applied 60% of the total
settlements to the Greathouse ratio in accordance with they jury’s assessment of economic and
non-economic damages. (Id. at 859.)

The Wilson court rejected John Crane’s arguments against both, and pointed out that the

case law cited by John Crane actually supported the “legal distinctness and independence of
wrongful death, loss of consortium, and personal injury claims.” (Id. at 862-863.) The Wilson

court further held: “Since the judgment includes no such award, however, we fail to discern how
sums received in settlement of the corresponding claims can be treated as a credit in defendant's
favor.” (Id. at 865.) The court also stated, that unlike its concern in Greathouse economic versus

non-economic allocations in settlement releases are “inherently suspect”, such concern is

“patently inapplicable” to allocation between personal injury and wrongful death in a case such
as Wilson (and our present case), because it does not conflict with any decision by the jury. (Id.
at 866.) The court further held:

K.Nlnjured\t9349\rillbrf prior settlements wod 10 PN
PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTS:Com IY DA HW PF WN

NON NY NN NN NN S&S Be ee ew ew Se ee
eo QI AA KR BHF SO wH RA AHR WH EH S

This brings us to defendant's claim that the settlement agreements should not have
been "binding" on it because it was not a party to them and they were never found
to be in good faith. We fail to seé the relevance of either assertion. Faced with
the undisputed fact that the settlement proceeds were consideration for the release
of three distinct claims, one of them not adjudicated by the present jury at all, the
trial court had to determine how to apportion those proceeds. The question is not
whether it (or defendant) was bound by the agreed allocations but whether it could

roperly find those allocations reasonable and exclude sums thus allocated the
irrelevant claims (wrongful death and loss of consortium) from the Espinoza
calculus. (. at 866.)

Hackett v. John Crane, Inc. (2002) 98 Cal.App.4th 1233 was a personal injury and loss of]

consortium asbestos case. Following a verdict in plaintiff's favor against John Crane, plaintiff's
counsel provided a declaration that the settlement agreements allocated 51% of the total
settlements to personal injury, 15% to loss of consortium, and 34% to wrongful death. (Id. at
1237.) The trial court used the Greathouse ratio, but it failed to include the loss of consortium
damages as part of the non-economic total damages; and it allocated 34% of the total settlements
to wrongful death and 15% to loss of consortium. (Id, 1241-1242.) In rejecting John Crane’s

argument that the allocation to wrongful death was too high, the Hackett court further held:

Here, there was ample evidence in the record to support the trial court's allocation
of 34 percent of the settlement to the heirs' potential future wrongful death
claims. The trial court noted that Lewis was.a kind and attentive father and that he
had a close relationship with his wife and sons.

As plaintiffs pointed out to the trial court, allocations of 50 to 70 percent of prior
settlements to wrongful death claims were not uncommon in cases brought by
much older plaintiffs and by plaintiffs with no minor children. [Id. 1241-1242.]

However, using the same reasoning as Greathouse and Espinoza, the Hackett court agreed with
plaintiff that the trial court had incorrectly ignored the jury’s determination of loss of consortium
in calculating both the Greathouse ratio and the amount of settlements allocated to loss of
consortium. The court concluded:

In sum, when the jury awards economic damages to the injured plaintiff as well as
loss of consortium damages to the spouse, and there are pre-verdict settlements
embracing such damages, the principles established in Espinoza, supra,

9 Cal.App.4th 268 and Greathouse, supra, 35 Cal.App-4th 831 require the trial
court to apply the ratios established by the jury's verdict to apportion the
settlement amounts between economic and noneconomic damages. [Id. at 1244-

1245.]
Ml
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K njured\19240\albf prior selements 1 PN

PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTSSO wm IN DH RF WN

RR NYY NY NR NK KN KY BS Be Be eB eB ew eB ew Ye
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The court concluded:

This can be accomplished most directly by multiplying the jury's ratio of
economic to total damages (including Toss of consortium) by the portion of the
total settlement allocable to damage claims actually adjudicated by the jury's
verdict. Alternatively, the court can apply the approach used in Wilson, supra,
864, footnote 18 of subtracting loss of consortium from both the jury's verdict and
the prior settlements. However, the amount of the settlement attributed to loss of
consortium for purposes of applying Wilson must be based on the jury's relative
valuation of the loss of consortium claim rather than on the trial court's
independent exercise of discretion. [Id. at 1245.]

Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 was a personal injury and loss of

consortium asbestos case in which the plaintiff represented by Brayton+Purcell LLP achieved
another verdict against John Crane. Similar to past cases in the Greathouse progeny, the post-

verdict motions included a declaration from plaintiff's counsel allocating 60% to personal injury,

20% to loss of consortium, and 20% to wrongful death. (Id. 1006.) The Jones court confirmed

the “well accepted framework for calculating settlement credits found in” Espinoza, Greathouse,
Wilson, and Hackett. (Id. 1006-1007.)
The Jones court affirmed the subtlety that it had made in Hackett that, like personal injury

damages, if the jury has determined the amount of loss of consortium then the jury’s
determination applies to all aspects of the settlement credit framework rather than any allocation
in settlement releases. (Id. 1008.) Moreover, the Jones court affirmed the trial court’s use of
discretion to allocate total settlements — in this case 100% to personal injury, because other than
the settlement allocations, the record was completely empty on any evidence of potential

wrongful death heirs. (Id.) The Jones court favorably quoted the trial Court:

The Court will not speculate on the issue regarding what is appropriate [to
allocate to a potential wrongful death claim] because the record before this Court
provides no basis for such a decision. The Court recalls no evidence on the
matter of the family of Edward Jones at this time. [Id. at 1008.]

The Jones court further held:

The court's task was to determine whether there was a reasonable basis on which to
justify those allocations....

e party seeking to rely on the allocation "must explain to the court and to all
other parties, by declaration or other written form, the evidentiary basis for any
allocations and valuations made....

The determination of the value of potential wrongful death claims requires, at a
minimum, some information regarding the number of heirs and the nature of their

KAlnjured\19349\riaNbrf prior settlements wod. 12 PN
PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTSSD ew IND YH FB WN

relationship with the decedent. (See Hackett, supra, p. 1241,[substantial
evidence supports allocation of 34 percent of the settlements to potential wrongful
death claims where evidence showed that decedent was a kind and attentive father
and that he had a close relationship with his wife and two sons].) The trial court
has broad discretion in evaluating the various components of a settlement. It
cannot be faulted for insisting that there be at least some evidence on which to
re the estimated value ofa potential wrongful death claim. [Id. at 1010-
1011.

One very consistent factor in all of the above cases is that the jury does not get to know what the
prior settlements are. The reason for this is because any evidence or reference to prior

settlements are highly prejudicial.

G. ANY REFERENCE TO DEFENDANTS AS BANKRUPT IS IRRELEVANT
AND HIGHLY PREJUDICIAL

Any reference to defendants as bankrupt or formerly bankrupt, or to “claims made to
trusts” is irrelevant, and to the extent it is argued that such evidence has any probative value,
such value is substantially outweighed by the probability that its admission will create a
substantial danger of undue prejudice, confusing the issues, or misleading the jury.

Only relevant evidence is admissible. (California Evidence Code §351.) “Relevant
evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay
declarant, having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action." Whether or not a potentially responsible person
or entity is bankrupt has no tendency to prove or disprove any evidence that is consequential in
this action. Such information has no bearing on whether or not plaintiff suffers from an asbestos:
related disease, or whether defendant caused that disease, or on the existence or amount of
plaintiff's damages. Consequently, the bankruptcy status of any potentially responsible person or|

entity is wholly irrelevant, and such evidence should be excluded to avoid the danger of imprope:

allocation of damages.

Ml

MI

MI

K.AUnjured\19349\tial\brf prior settlements 13 JPN

PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTS.CONCLUSION

For the reasons stated above, due to the highly prejudicial effect on the jury of allowing

any reference to or inadmissible evidence of prior settlements, defense counsel must not make

any references to settlements in argument or in evidence.
Dated: AUG 14 2015 BRAYTON“PURCELL LLP

By: _/s/ James P. Nevin

James P. Nevin
Attorneys for Plaintiffs

KMnjured\1 9349 rialibe prior cettloments upd 14
PLAINTIFFS’ BRIEF TO EXCLUDE ANY REFERENCE TO, OR EVIDENCE OF, PRIOR SETTLEMENTS:

PNBRAYTON@PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD

POBOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

Ce IN DH RF WH

NNN NY NN NN KY ee ee ew ewe ew ewe eB
eI A WA RF YHBNH FESO wHM KRU A ARDY FS

PROOF OF SERVICE BY FILE & SERVEXPRESS
Iam employed in the County of Marin, State of California. I am over the age of 18 years
and am not a party to the within action. My business address is 222 Rush Landing Road, P.O.
Box 6169, Novato, California, 94948-6169.
On AUG 11 2015 , L electronically served (E-Service), pursuant to General Order
No. 158, the following documents:

PLAINTIFFS’ BRIEF REGARDING ANY REFERENCE TO, OR EVIDENCE OF,
PRIOR SETTLEMENTS

on the interested parties in this action by causing File & ServeXpress E-service program pursuant|
to General Order No. 158, to transmit a true copy thereof to the following party(ies):

SEE ATTACHED SERVICE LIST

_The above document was transmitted by File & ServeXpress E-Service and the -
transmission was reported as complete and without error.

Executed on _AUG 11 2015, at Novato, California.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.
f é

Robert Ross, et al. v. C.C. Moore & Co. Engineers, et al.
San Francisco County Superior Court Case No. CGC-10-275731

PROOF OF SERVICE BY E-SERVICEDate Created:
(AAP)

Created by: LitSupport - ServiceList -
19349.004 - Robert Ross

Matter Number:

Adams Nye Becht LLP
222 Kearny Street, Seventh Floor
San Francisco, CA
415-982-8955 ais. 382. $042 (fax)
Defendants:

Pribuss Engineering, Inc. (PRIBUS)

Berry & Berry
P.O. Box 16070
2930 Lakeshore Avenue
Oakland, CA 94610
510-835-8330 510-835-5117 (fax)
Defendants:

Berry & Berry (B&B)

Drinker Biddle & Reath LLP
50 Fremont Street, 20" Floor
San Francisco, CA 94105-2235
415-591-7500 415-591-7510 (fax)
Defendants:

Pharmacia LLC (PHARCA)

Hugo Parker, LLP.
135 Main Street, a aes
San Francisco, CA
415-808-0300 ais. 308. “0333 (fax)
Defendants:
A. Teichert & Son, Inc. (ATEICH
Cahill Construction Co., Inc. (C.
Rountree Plumbing & Heating Inc.
(RNTPLU:
Swinerton Builders (SWINBU)
Tutor Perini Corporation (fka Perini
Corporation) (PERCOR)

ILC)

Low Ball & Lynch - SF Office
505 Montgomery Street, 7" Floor
San Francisco, CA 94111-2584
415-981-6630 415-399-1506 (fax)
Defendants:

Giampolini & Co. (GIAMPO)

Pacific Mechanical Corporation
(PACMCR)

8/10/2015-4:41:20 PM

Brayton-Purcell Service List

» BPImport

Archer Norris - Walnut Creek
2033 N. Main St. Suite 800
Walnut Creek, CA 94596
925-930-6600 925-930-6620 (fax)
Defendants:
Albay Construction Company (ALBAY)
Cahill Contractors, Inc. (CAHIL!
Cupertino Electric, Inc. (CUPELE)

Burnham Brown
1901 Harrison Street, 14" Floor
Oakland, CA 94612
510-444-6800 510-835-6666 (fax)
Defendants:

California Drywall Co. (CALDRY)

Foley & Mansfield PLLP
300 Lakeside Drive, Suite 1900
Oakland, CA 94612
510-590-9500 510-590-9595 (fax)
Defendants:
Acco Ene ineered Systems, Inc.
(ACCHE:
Dw. Nicholson Corporation (DWNICH)
Raymond Interior Systems-North
(RAYISN)
Van-Mulder Sheet Metal, Inc. (VANMSM)

Imai, Tadlock, Keeney & Cordery, LLP
100 Bush Street, Suite 1300
San Francisco, CA 94104
415-675-7000 415-675-7008 (fax)
Defendants:
ABM CMS, Inc. (fka Commair Mechanical
Services) (COMMAR)
Clausen-Patten, Inc. (CLSNPT)
Henry C. Beck ‘Compan HCBECK)
Webcor Builders, Inc, ( COR)

McDowall Cotter, APC
2070 Pioneer Court
San Mateo, CA 94403
650-572-7933 650-572-0834 (fax)
Defendants:

Beta Mechanical Contractors, Limited
(BETAMC)

Run By : Porterfield, Angela

Bassi Edlin Huie & Blum LLP - San
Francisco
500 Washington Street, ae 700
San Francisco, CA 9411
415-397-9006 415-397- 1339 (fax)
Defendants:
Balliet Bros. Construction Corporation
(BALBRO)
J.T. Thorpe & Son, Inc. (THORPE)
Maim Metal Products, Inc. (MALMSM)

Dentons US LLP -
One Market Plaza
Spear Tower, ae Floor
San Francisco, CA 94105
415-267-4000 415-267-4198 (fax)
Defendants:

J.T. Thorpe & Son, Inc. (THORPE)

San Francisco

58 Maiden Lane
Second Floor
San Francisco, CA 94108
415-788-6330 415-391-0555 (fax)
Defendants:

McClure Electric, Inc. (MCCLUR)

Law Offices of Glaspy & Glaspy, Inc.
One Walnut Creek Center
100 Pringle Avenue, Suite 750
Walnut Creek, CA 94596
925-947-1300 925-947-1594 (fax)
Defendants:

Fairmont Hotel Company (FAIRH)

Selman Breitman, LLP - San Francisco
Office
33 New Montgomery, 6" Floor
San Francisco, CA "B4105
415-979-0400 415-979-2099 (fax)
Defendants:

Rountree Plumbing & Heating Inc.
(RNTPLU)Brayton-Purcell Service List 2

Date Created: 8/10/2015-4:41:20 PM Run By : Porterfield, Angela
(AAP)
Created by: LitSupport - ServiceList - , BPImport

Matter Number: 19349.004 - Robert Ross

Sinunu Bruni LLP Wilson, Elser, Moskowitz, Edelman &

333 Pine Street, Suite ane Dicker LLP

San Francisco, CA 94104 525 Market Street, 17" Floor

415-362-9700 415-362-9707 (fax) San Francisco, CA 94105-2725

Defendants: 415-433-0990 415-434-1370 (fax)
McClure Electric, Inc. (MCCLUR) Defendants:

Anderson, Rowe & Buckley, Inc. (AR&B)

Bell Products Inc. (BELLPR)

Collins Electrical Company, Inc.
(COLELC)

Emil J. Weber Electric Co. (EMILJW)

Keriles Corporation (fka Advanced
Mechanical Contractors, Inc.) (ADVMEC)