Motion,Ex Parte: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                BRAYTON¢PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD.

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 298-1555,

Oo OC NW BH HW BR WN

GILBERT L. PURCELL, ESQ., 8.B. #113603

BRAYTON‘ PURCELL LLP

Attorneys at Law ELECTRONICALLY
222 Rush Landing Road

P.O. Box 6169 FILED

Novato, California 94945
(415) 898-1555

Superior Court of California,
County of San Francisco

APR 01 2010

Attorneys for Plaintiffs Clerk of the Court
BY: VANESSA WU
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and ) ASBESTOS
NORMAN JUELCH SR., } No. CGC-09-275212
Plaintiffs, ) MOTION IN LIMINE TO PRECLUDE
) ALL REFERENCE AND TESTIMONY
VS. } REGARDING OSTENSIBLE
) “BACKGROUND” OR “AMBIENT”
ASBESTOS DEFENDANTS (B#P) ) EXPOSURE TO ASBESTOS
Trial Date: April 5, 2010
Room: TBD

Plaintiffs hereby move this Court for an order prohibiting all parties, witnesses, and
counsel from referencing the concept of “background” or “ambient” exposures to asbestos
and/or asbestos-containing products. Plaintiffs also seek to prohibit speculative testimony that
would tend to intimate that all people in the general population are breathing asbestos and all of
those persons which make up the genera! population “have millions of asbestos fibers in their
lungs,” even absent confirmed occupational exposure to asbestos. In particular, this motion is
directed to the anticipated comments of counsel in voir dire, opening statements, cross-
examination of plaintiffs’ witnesses, or testimony by defense witnesses regarding the general
population’s ostensible “background” or “ambient” exposures to asbestos contaminants in
urban air. Such speculative evidence is of limited probative value, involves undue consumption

of time, and is very likely to confuse the issues in the case. Moreover, and even more

fundamentally, the testimony is irrelevant to the facts and issues in the present action. PlaintiffsCe NR DH BF WN

submit that no expert will assign any causal role to such exposures as to their asbestos-related
jung disease.

This motion is made on the grounds that any mention of or reference to “background” or
“ambient” exposure to or levels of asbestos is irrelevant under Evidence Code § 350, and any
probative value is substantially outweighed by the probability that the admission of such
testimony will necessitate the undue consumption of time, create substantial danger of undue
prejudice, confuse the issues, or mislead the jury, therefore rendering the subject matter
inadmissible under Evidence Code § 352.

This motion is based on the attached Memorandum of Points and Authorities, the
documents and records on file herein, and on such other evidence as may be submitted at the
hearing on this motion.

Dated: __3/31/10 BRAYTON®PURCELL LLP

By: /s/ Gilbert L. Purcell
Gilbert L. Purcell
Attorneys for Plaintiffs

L

INTRODUCTION

Plaintiffs anticipate that the defense will seek to place before the jury by comment,
testimony, suggestion, or otherwise the notion that nearly everyone living in an urban
metropolitan region has been exposed to “background” or “ambient” levels of airborne asbestos
fibers and probably has “millions” of asbestos fibers in his/her lungs. The defense should be
precluded from doing this under settled law.

Evidence Code § 350 provides that only relevant evidence is admissible. Evidence
Code § 210 defines relevant evidence as that evidence having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the action.

Evidence Code § 352 similarly gives the Court broad discretion to exclude evidence if its

probative value is substantially outweighed by the probability that its admission will
WeDO Oe NY RH FW KH

(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice,

‘confusing the issues, or misleading the jury.

Defendants’ reference to and/or use of the concepts of “background” or “ambient”
asbestos exposure should be excluded under Evidence Code §§ 350 and 352 as there will be no
evidence that such exposure played any causal role in the disease at issue herein. Injecting such
irrelevant evidence into this proceeding, one which already involves complicated medical
issues, will not assist the trier of fact and indeed will do nothing more than engender confusion
and misunderstanding, which takes time to address, and to absolutely no end.

A. TESTIMONY REGARDING “BACKGROUND” OR “AMBIENT”
EXPOSURE TO ASBESTOS IS IRRELEVANT

Plaintiffs submit that the defense will proffer no expert testimony, scientific study, or

credible basis for urging that decedents’ injuries were caused by “ambient” or “background”
asbestos fiber exposure or that exposures to its products or activities below “ambient” or
“background” could not have contributed to cause said injuries. At a minimum the defense
should be required to make an offer of proof as to any admissible evidence in its possession on
this issue as a predicate to allowing comment, suggestion, or inference regarding “background”
or “ambient” airborne asbestos exposure. Plaintiffs aver that no such offer can or will be made.
It is well settled as a matter of law that causation is a question of reasonable probability.

Lineaweaver v. Plant Insulation Company (1995) 31 Cal.App.4th 1409, 1416, 37 Cal Rptr.2d

902, 906 (injury from asbestos exposure); Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th
461, 476, 38 Cal.Rptr.2d 739, 748 (samc). “Legal cause” need not be proven with certainty. Id.
However, mere possibility is insufficient to establish a prima facie case of causation, or in the
case of the defense argument, to rebut the plaintiffs’ case of causation. Id. Thus, the issue is
whether it is more likely than not that decedents’ injuries were a result of the defendants’ acts or

omissions. Id.

The accepted scientific data on the subject of asbestos-related disease has evolved from

numerous epidemiologic studies involving exposed human populations such as those working

with or near asbestos or asbestos-containing products. These groups are then compared toCer NR A A Re WD MY

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control groups of those persons who have never experienced occupational or para-occupational
exposure. The control group would have been solely exposed to so-called “ambient” or-
“background” asbestos, unlike plaintiffs herein. It will be undisputed that those exposed to
“ambient” or “background” levels of asbestos do not contract asbestos-related diseases.
Accordingly, the defense postulation that “ambient” or “background” exposure potentially
endangers us all does not in any way bear on the liability issues in this case and serves only to
confuse and mislead the triers of fact. Moreover, reference to occupational exposures suffered

by decedents’ herein as below “ambient” or “background” levels, and therefore not significant,

cannot and should not be permitted as will be demonstrated, infra. In short, the notion of
“ambient” or “background exposure” lacks “any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination” of this action and hence should
properly be barred from admission into evidence. Evidence Code §§ 210 and 350.
B. THE PROBATIVE VALUE, IF ANY, OF TESTIMONY REGARDING
“AMBIENT” OR “BACKGROUND” EXPOSURES TO ASBESTOS IS

SUBSTANTIALLY OUTWEIGHED BY AN UNDUE CONSUMPTION OF
TIME AND UNDUE PREJUDICE TO PLAINTIFFS

It is axiomatic that “the trial court has broad discretion in assessing whether the
probative value of particular evidence is outweighed by concerns of undue prejudice, confusion,
or consumption of time.” People v. Rodrigues (1994) 36 Cal.Rptr.2d 235, 8 Cal.4th 1060, 885
P.2d 1, modified on denial of the rehearing, cert denied 116 S.CT. 147, 516 US 851, 133
L.Ed.2d 93.

The lack of relevance and the prejudicial nature posed by injecting notions of
“background” or “ambient” asbestos can best be illustrated as follows. Consistent with sound
epidemiologic practice a chart is created to demonstrate the relative risk or incidence of
asbestos-related disease in occupationally exposed persons. The horizontal axis, representing
occupational levels of exposure, consists of levels ranging from zero fibers per cubic centimeter
(0 f/ec) up to one hundred fibers per cubic centimeter (100 f/ec). The vertical axis consists of
relative risk valuations ranging from a low of one (1), that of the general population, to ten- (10)

fold or a high probability of disease.

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REGARDING OSTENSIBLE
ETON UR id ARC EAFOSU TO Sa O STOR STONY REGARDING OSTOo oY A HM BB wWN

Inherent in the relative risk valuation of one (1) is a general population exposed only to
“background” or “ambient” asbestos (0.001 ficc to 0.006 f/cc). This valuation for the general
population represents no increased risk of developing asbestos-related disease and serves as a
baseline by which epidemiologists can then logically calculate the relative risk of disease in
individuals exposed over and above 0.006 f/cc (background).

Returning to the vertical axis on such chart, assume worker A was exposed
occupationally to a level of zero (0) f/cc which would by logical extension still equate to an
exposure between 0.001 - 0.006 f/cc, accounting for “ambient/background” exposure. The
horizontal axis for worker A would reveal no increased risk for asbestos disease. On the other
hand, if worker B received a 1 f/ec occupational exposure he would have a relative risk of
developing asbestos disease on the horizontal axis unlike worker A. An increased risk of
disease stems not from the “background” or “ambient” exposure, which occupationally exposed
and non-exposed individuals share in common, but rather from those asbestos exposures in
addition to “background” and/or “ambient” exposures. It is those occupational exposures
which ate the relevant exposures in this case.

Plaintiffs in the instant action are not seeking to attribute asbestos-related lung disease
of decedents to “background” or “ambient” exposures as such could never be scientifically
supported. The relevant asbestos exposures are those sustained occupationally, and which are
several magnitudes over and above any “background” or “ambient” exposures to asbestos.
Those occupational exposures constitute the biologically significant portion of the total dose of
asbestos inhaled and, hence, the risk of developing disease.

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K Anjurod\) O8688\riatinl-back. 5

TO PRECLUDE ALL REFERENCEAL OSTERSIELE
SERS BORE an ARENT ESPOSURE TO ASHES TO. REGARDINGCONCLUSION
Based on the foregoing and upon such argument as may be permitted at the hearing on
this motion, plaintiffs respectfully move the Court for an order precluding reference, comments,
or evidence pertaining to so-called “ambient” or “background” exposures to asbestos fibers, as

indicated above.

Dated: 3/31/10 BRAYTON*#PURCELL LLP

By: /s/ Gilbert L. Purcell

Gilbert L. Purcell
Attorneys for Plaintiffs

SEES EE SANS TON V REGARDING OSTENSTRLEBRAYTON*PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PODOX 6159
NOVATO, CALIFORNIA 94948-6169

(15) 898-1555

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PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE

Iam employed in the County of Marin, State of California. [ 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 March 3 , 2010, I electronically served (E-Service), pursuant to General Order
No. 158, the following documents:

MOTION IN LIMINE TO PRECLUDE ALL REFERENCE AND TESTIMONY
REGARDING OSTENSIBLE “BACKGROUND” OR “AMBIENT” EXPOSURE TO
ASBESTOS

on the interested parties in this action by causing Lexis-Nexis 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 Lexis-Nexis E-Service and the transmission
was reported as complete and without error.

Executed on March ZB , 2010, at Novato, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

AngelaPorterfield

Joyce Juelch and Norman Juelch Sr. v. Asbestos Defendants (B¢P)
San Francisco Superior Court Case No. CGC-09-275212

PROOF OF SERVICE BY E-SERVICEBrayton-Purcell Service List

Date Created: 3/31/2010-12:34:57 PM

A. (ARPS

Created by: LitSupport - Servicebist - Reporting

Matter Number:

Bassi, Edlin, Huie & Blum LLP
351 California Street, Suite 200
San Francisco, CA 9410:
415-397-9006 415-397- 339 {fax}
Defendants:
LT. Thorpe & Son, Inc. (THORPE)
Parker-Hannifin Corporation (PARKHF)

Law Offices of Lucinds L. Sterm, Esq.
610A Third Street
San Francisco, CA 94107
415-777-6990 415-777-6992 (fax)
Defendants:

Pacific Gas & Electric Company (PG&E)

Nixon Peabody LLP
One Embarcas
18 Floor
San Francisco, CA 94111
415-9841 8200 866-542-6538 (fax)
Defendani
Shell aut Company {SHLOIL)

‘ick, Detert, Moran & Arnold
ket Plaza
oe Tower, 8" Floor
San Francisco, CA 94105
415-781-7900 415-781-2635 (fax}
Defendants:
General Electric Company (GE)

108688.001 - Joyce Juelch

Berry & Berry
P.O. Box 16070
2930 Lakeshore Avenue
Oakland, CA 94610
$10-835-8330 510-835-5117 (fax)
Defendants:
Berry & Berry (B&B)

McKenna Long & Aldridge
101 California Street
41" Floor
San Francisco, CA 94111
415-267-4000 415- 367-4198 (fax)
Defendants:

Metalclad Insulation Corporation
(METALC)

Pond North, LLP

356 South Grand Avenue

Suite 3300

Los Angeles, CA 9007!
213-617-6170 213-623-3594 (fax)
Defendants:

CBS Corporation { f/k/a Viacom Inc., f/k/a
Westinghouse Electric Corporation)
(WACOM)

Genuine Company (GPC)

Sonnenschein Nath & Rosenthal, LLP
525 Market Street, 26" Floor
San Francisco, CA 94105-2708
435-882-5000 415-882-0300 (fax)
Defendants:

Rapid-Ametican Corporation (RAPID)

Run By : Porterfield, Angela

Hassard Bonnington LLP
Two Embarcadero Center
Suite 1800
San Francisco, CA 94111
415-288-9800 415-288-9802 (fax)
Defendants:

Sequoia Ventures Inc. (SEQUOA)

Morgan, Lewis & Bockius LLP
One Market, Spear Tower
San Francisco, CA 941
415-442-1000 415- 449-1001 (fax)
Defendants:

Santa Fe Braun, Inc. as Successor-in-
Interest to C.F. Braun, Inc. (CFBRAN)

Prindle, Amaro, Goetz, Hillyard, Barnes
& Reinholtz LLP.
One California Street
Suite 1910
San Francisco, CA 94111
415-788-8354 415-788-3625 (fax)
Defendants: .
Consolidated Insulation, Inc. (CONSOL)

Walsworth, Franklin, Beyins & McCall
601 Montg¢ igomiery Str Street, ” Floor
San Francisco,
415-781-7072 as: 301.6258 (fax)
Defendants:
Hamilton Materials, inc. (HAM-M)
Thomas Dee Engineering Co., Inc. (DEE)