Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                PATRICIA G. ROSENBERG, SBN. 154820 NTs : Cees
'||HAAS & NAJARIAN, LLP... : Joe : “ELECTRONICALLY

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~-4 || JAMES N. SINUNU; SBN 62802, SUN.04 2013,
JUNIPER. BACON, SBN 256087 oe oe : . wm of the Court
5.1 SINUNU:BRUNI LLP 22 > oS tn ONT is : _ Depa Cle
: 333 Pine Street, Suite 400 - te co op ae : —P
6. || San Francisco, CA 94104-3311
7 Telephone: 415.362.9700 -
Facsimile: 415.362.9707
g. || jsinunu@sinunubruni. com
|| jbacon@sinunubruni.com
Attomeys for Defendant
10. || MCCLURE ELECTRIC, INC.
ee :
WR ~ SUPERIOR COURT OF THE STATE OF CALIFORNIA os
Be CITY AND COUNTY OF SAN FRANCISCO -UNLIMITED JURISDICTION os
14° 2
16 | ROBERT ROSS and JEAN ROSS, -) Case No.: CGC-10-275731
! Plaintiffs, -) ‘DEFENDANT MCCLURE ELECTRIC,
“18 Hys. : -_). INC’S MOTION IN LIMINE TO SUBMIT
LES ) A JURY QUESTIONNAIRE TO THE :
19. |] ee ee) JURY BEFORE VOIR DIRE —
“99 |[€-C. MOORE & CO. ENGINEERS; 5 RAEN oe
_ «=. || Defendants as Reflected on Exhibit]. 4. Soe
“21 || Attached to the Summary Complaint <<)” :
“yp Het AOR 1S ) Date June, 202
2 : : Dd Dept $03
23 : “Defendants 2 eS } Judg : Hon. Teri L. Jackson :
m4 Sos ) Complaint Filed: December 17,2010
oS ——} Trial Date: June 10,2013°
os : —— )
oF _INTROD! UCTION oe : ae :
oS Defendant MCCLURE ELECTRIC, INC, Defendant”) bry requests that the Court

DEFENDANT MCCLURE ELECTRIC, INC.’S: MOTION TN. LIMINE TO. SUBMIT: A TURY. QUESTIONARER TO.
2 ofoett THE JURY VENIRE BEFORE. VOIR DIRE Se
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administer a jury questionnaire, to be provided to the venire offi jurors before voir. dire. This will assist :
counsel to pick jurors without requesting the Court to solicit background information orally from the :
jury. After the questionnaires are completed, all counsel request permission to analyze t the answers
overnight or while arguments on motions in limine proceed, Only supplemental questions to the jury.
based upon the questionnaire answers will be submitted to the Court, In other courts, this approach has
drastically reduced the time necessary for voir dire, and has increased information to attorneys for all
parties. Immediately after the trial, all questionnsites should be 3 destroyed to > protect the privacy of the ©
jurors, except for the copy. ‘lodged with the Court, :
nL ARGUMENT oe : .

"Every litigant has a fundamental right to trial by an n unbiased j jury. Defendants i in asbestos
litigation, however, have a far more difficult time than most corporate defendants i in products lability :
lawsuits in selecting an unbiased j jury to hear their defenses because of the long term and terribly
adverse media publicity about the health problems caused by asbestos. This campaign of adverse: ote
publicity about the dangers of asbestos (which defendants dispute i in many situations) goes directly to.
the central question in each case: did asbestos i injure the plaintiff? 8

“To ensure an impartial jury, the discovery of bias and prejudice uring j jury selection i is crucial. {o

Doring voir dire, counsel has the right to ask questions of prospective j jurors that are reasonably

-|| designed to. assist in the intelligent exercise of peremptory challenges for bias. (Code: Civ. Proc.
§ 222.5.) However, soliciting sufficient ‘background information from jury members to discern possible : : :

bias through oral voir dire can be a time-intensive process, and often risks preconditioning and S
polluting of the entire Panel with speeches i in open court by biased venire members. On the other hand,

the use of a jury questionnaire is extremely efficient i in identifying bias and avoids the issue of: Panel aye

preconditioning and pollution. Itis thus no surprise that such questionnaires are now. widely used by.
judges i in San Francisco, Alameda, and Solano counties in asbestos litigation in particular. Further, the:
contents of these questionnaires are usually agreed to by: plaintiff and defense counsel with a minimum
of difficulty : : : :

“In sum, jury questionnaires area proven method: of selecting Juries more likely to be impartial,

el:

DEFENDANT. MCCLURE ELECTRIC, INS MOTION IN LIMINE TO SUBMIT A JURY ‘GUESTIONNARE TO”
- 0 “THE JURY VENIRE BEFORE VOIR DIRE :
[MIL No. 6)CO we ON DAW Bow Ne

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_|| and. also : save time for panel members, the court, and. counsel As such, Defendant respectfully requests

that a jury questionnaire be employed i in the i instant case.

SAL” “The Use of a Written Jury Questionnaire Will Facilitate Selection of an Impartial
Jury. .

There has been a tremendous amount of press coverage in the past over + asbestos. related issues
such as the use of homeless men to remove asbestos (by. companies that are not defendants here),
asbestos in schools and commercial buildings, and class-action suits by homeowners for asbestos-
abatement. On almost a monthly basis, news stories appear in newspapers and on the i internet, and are
broadcast on radio and television, dramatizing the dangers to children of having asbestos-containing

J] products in schools. None of these i issues has anything to do with the issues in the case at bar. Those

unrelated i issues, however, result j in increasing bias and prejudice of venire members against
defendants. To ensure a fair and impartial j jury for defendants, erroneous beliefs that exposure to
asbestos-containing products i in any. form is inherently dangerous must be individually explored during
voir dire. It should also be done.in a fashion that will not inevitably pre-condition other venire
members. : . . : .

The use of a written questionnaire can » readily identity individuals who are themselves
plaintiffs, or relatives or friends of plaintiffs, to counsel and the court. Use of questionnaires can result
in the immediate dismissal for cause ofa prospective juror without that person contaminating the.
remaining venire ‘members with their personal views of the alleged malfeasance of the defendant, or: - :
with misinformation about asbestos health issues. A j jury. questionnaire will aid in uncovering bias

without contaminating remaining venire members with hearsay opinions about asbestos and its effets

B “The Use of Jury Questionnaires Enables Counsel to Inteligendy Exercise - :
- Peremptery Challenges. :

Using j jury questionnaires will also assist int the exercise of fer win challenges.
“The right to unbiased and unprejudiced j jurors isan inseparable and inalienable part of the right to trial

, byj jury guaranteed by the constitution.” (Combardi v. California St. Ry. Co. (1899) 124 Cal. 311, 317) :

Parties have. the Tight to voir dire for both peremptory and cause challenges.

As the court observed i in Peon vy. Williams:
3

DEFENDANT MOCLURE ELECTRIC, INC.’S MOTION IN LIMINE TO.SUBMIT A. JURY. QUESTIONNAIRE TO. S

THE TURY VENIRE BEFORE VOIR DIRE. ne
MLN NO. 6]. CeeCOUN A WR we

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Our courts have become increasingly aware the. bias often deceives its host by. distorting

his view not only of the world around him, but also of himself Hence although we must

presume that a potential juror is responding i in good faith when he asserts broadly that he

can judge | the case impartially [cites ornitted], further interrogation may reveal bias of

which he is unaware or-which, because of his impaired Shicetviny he unreasonably
“believes he can overcome..>-

(Wilts (1981) 29. Cal.3d 392, 402 (superseded by statute at Cal. Code civ. Proc. § 223). )
: ° Williams established the rule that counsel i is entitled to ask voir dire questions that are -
reasonably designed to help i in making intelligent decisions to.exercise se peremptory challenges. as well

as s challenges for cause. In reaching its decision, the court recognized that the very setting of. voir dire :

pressures the venire members to answer questions out loud to please the judge or to answer in :
conformity with previous answers of. other ‘panelists. (Ud. at 403. JA questionnaire gives each j juror time

to reflect i in private on his or her answer to key questions “about attitudes relevant to the particular

issues in ‘the case. It eliminates the pressure of public discomfort caused iby answering questions inan' |.

unfamiliar public. setting.

The ability of jury questionnaires to.uncover hidden bias i in venire members has been

established by: a jury research project. A study conducted by the University of Minnesota using a jury =

questionnaire ina district court in Minnesota concluded that using a questionnaire was more time

efficient i in the voir dire process, and that: the questionnaire provided information to assist counsel in|

uncovering bias that would not have been uncovered by conventional voir. dire. Wote, “Jury Bias -- A. |

Practical Screening Device and the Case for Permitting its Use,” 74 Minn. Li Rev. 949 (1980). ) The

questionnaire in the study attempted to measure juror bias toward coi vietion during a twelve week. Se {.

: period i in a district court i in Minneapolis. Surorsi in felony trials ona | voluntary basis filled out the.

questionnaire which | called: for respondents to indicate relative agreement ¢ or disagreement about

factual and legal i issues. The conclusions of that study were as follows:

The value ‘of the: [questionnaire] during voir dire, however, is not Merely its efficiency; :

it. provides information that conventional voir dire qui uestioning cannot provide. Asa
reliable predictor of bias, the [questionnaire] can help overcome the problem of juror.
deception during voir dire, regardless of whether the deception stems from'a- >
determination to avoid dismissal, a failure to recognize one’s own biases, the inhibiting
effect of group’ questioning by aj judge, or malice towards one of the trial Opponents. :
This is because indirect questioning like the [questionnaire] is coelly Superior t to”
~ direct i questioning | for marnasking | true attitudes. (a. at 1011, y :

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DEFENDANT MCCLURE ELECTRIC, INC?S MOTION IN LIMINE TO. SUBMIT A TORY QUESTIONNAIRE TQ: aye

“THE JURY. VENIRE BEFORE VOIR. DIRE :
IER PML ‘NO, 4 : .DAD OO NN wo ee

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: ‘The questionnaire proposed by the defendant(s) would also help to expose bias on the part of

‘|| panel members; bias which may not otherwise be readily discernible bye oral questioning by the

attorneys or by the Court. .
c California Law and California Commentators Authorize and Recommend Jury.
: “Questionnaires, . :

- The use of jury. questionnaires was speifially spprnved bys statute. Code of Civil Provedure = :

section n 205(0), adopted in n 1988 states:
The court may require a prospective j juror to complete such additional questionnaires as

~-may be deemed relevant and necessary for assisting in the voir dire Process if such.
© Procedures are established by. local court rule, LESS :

Code of Civil Procedure section 1205(4) provides: Ses

we ‘The trial judge may direct a prospective juror to o complete additional questionnaires as
proposed by counsel in.a particular case to assist the voir dire process. :

Moreover, Code of Civil Procedure section 222. 5 dictates that the “ ‘court should not sol or
unreasonably refuse to ‘submit reasonable written questionnaires” to prospective jurors.

The California Judges Benchbook of Civil Trials ((1981) at Sec. 4. 17-4 20, pp. 99-101) has :
recognized the benefits of a. jory questionnaire for years. It stated i in its 1981 edition: :

See. 4.17 Some judges use e written questions or potentially sensitive information about
“prospective jurors. The purpose of these questions is to expedite voir dire and minimize
embarrassment and inconvenience to the jurors. The questions are discussed and put in’ | -
final form with counsel at the conference before voir dire (see § 4.15); and they. are
‘handed out to the entire panel at various stages of voir dire. They may cover. such — :
Imatters as acquaintance with the parties, counsel, or witnesses in the case, biographical
~ information about the jurors, their. prior knowledge of or attitudes toward facts and
circumstances of the case, and experiences they may be: ‘sensitive about or embarrassed
to.talk about in open court but that could bear on whether they will be fair and impartial
“jurors. The j jurors’ answers usually are © given in nthe form of declarations under poly

: _ of perjury

- See.4, 19. Aj juror may have been a victim of a particularly upsetting crime or may ay have :
suffered some other r tragedy that similarly affects his or her attitude toward certain :
-witnesses. or issues in the case. Such an experience may be particularly painful or 3
embarrassing to talk : about i in-open court. If a disturbing incident happened to the juror’:

“many years ago, it may not be known to the juror’s neighbors, friends, associates, °:
employer, : fam family. Thus, the disclosure could seriously damage thej juror. Exploring |
2 these Possible a Areas sof as using written questions that vail be reviewed only. by

“DEFENDANT MCCLURE ELECTRIC Inc's MOTION INLIMINE TO SUBMIT A FURY QUESTIONNATRET TO :
: | THE JURY VENIRE BEFORE VOIR DIRE ~ : :
~ (MIL NO, 61 aSOR RON ee

10

counsel and the court thus protects a juror from unnecessary public disclosure and
- avoids unnecessary exposure of other j jurors to this information. A written question may
also encourage a juror to disclose an incident that he or she might ¢ otherwise conceal in
open court, a
~ Some judges. also use written questions to explore other possible. areas of juror bias or prejudice
in appropriate cases. They have found that attorneys usually appreciate 1 ‘this information and that it can
greatly expedite their supplemental examination. :

‘No particular method of, voir dire examination can guarantee each side a fair and impartial j jury.

: However, the use of a . questionnaire equally available tothe court and counsel can provide significant

information with which to expose juror bias without repetitive public questioning of each panel .
member by the court, - :
x D. The Use ofa Sry Questionnaire Promotes Judicial a1 Efficiency.
.. The use of a jury questionnaire also reduces voir ‘dire time. The court does not ‘have to ask a

repetitive background questions of each panel member. The panel members all work on questions

‘ simultaneously. After the panel finishes the questionnaire, the panel can be released after being

instructed by the court on a specific time to return. The copying and collating of questionnaires for the
court and counsel can be accomplished i inan afternoon. The questionnaires. can be distributed to all:
counsel. who then can spend the. evening evaluating the resporises of individual j jurors. Any remaining
voir dire questions to. panel members are supplemental questions based on individual Tesponses t0 the
questionnaire, After review of written questions, jurors with obvious or likely hardships or cause ae
challenges can abe ‘dealt with expeditiously. Written Fesponses also allow th the e court, ift necessary, to.
schedule i in camera voir dire for especially sensitive areas of i inguiry. : SS

“Besides cutting -down on oral voir dire time, the court may. use the time scheduled for fling

jout and reproduction of questionnaires to address other i issues ‘such as motions i in imine. ‘The panel 2

: members” time is saved since they do not need to sit and wait at the courthouse rather they can ibe

excused to return at specific times.

|. CONCLUSION

- Ultimately, every trial is the simultaneous reling of at east two diametrically. opposed st stories

: ofe an an alleged traumatic event, Ay t wil may touch on the hidden flings and’ biases i in almost all

6)

“DEFENDANT MCCLURE ELECTRIC, INC’S MOTION IN LIMINE TO SUBMIT A TORY QUESTIONNAIRE TO”
: : - "THE JURY VENIRE BEFORE VOIR DIRE :
: IMILNO. oeOOO NENA OR we

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BARR RR BORER BR Se Sa aE Goh 2 6S

potential jurors, making a thorough voir dire essential. Defendants in asbestos cases are in a unique
situation because of the massive adverse publicity that has been generated over the use of asbestos-
containing products in the workplace, home, and public buildings. : :

An asbestos case is far different from a typical personal injury case in which there is normally
an individual defendant about whom the venire members have no knowledge, either from their
personal lives or from the media. In asbestos cases in Northern California, there is a. probability, .
bordering on certainty, that many jury panel members will have strong personal feelings, ideas, and
attitudes adverse to the defendants on the very issues being tried. :

The widespread acceptance of jury questionnaires shows the utility and workability of a jury
questionnaire. Asbestos litigation with its built-in pre-trial publicity problems is uniquely appropriate
for a jury questionnaire both as a time-saving device and as a tool to.assist in the selection of an

impartial jury. Accordingly, Defendant respectfully requests ‘that the Court administer a jury

questionnaire, to be agreed upon by Plaintiff and defense counsel and submitted to this Court prior to

voir dire. All counsel request permission to analyze the answers overnight or while arguments on

motions in imine proceed. Only supplemental questions to thej jay! based upon the questionnaire

answers will be submitted to the court. .
Respectfully submitted, .

|| DATED: June 3, 2013 . . SINUNU BRUNI LLP

< (AMES N. SINUNU_
JUNIPER BACON
“Attorneys for Defendant _ :
MCCLURE ELECTRIC, INC,

pe

THE JURY -VENIRE BEFORE VOIR DIRE
: - ML NO. 6].

DEFENDANT. MCCLURE ELECTRIC, INC. s MOTION IN.LIMINE TO SUBMIT A JURY. ‘QUESTIONNAIRE TO.