On May 20, 2009 a Motion,Ex Parte was filed involving a dispute between Juelch, Joyce, Juelch Sr, Norman, and 3M Company, 84 Lumber Company, 84 Lumber Company, A Limited Partnership, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, Asbestos Defendants, Cbs Corporation, A Delaware Corporation, F K A, Chevron U.S.A. Inc., Consolidated Insulation, Inc., Csk Auto, Inc., Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Garlock Sealing Technologies, Llc, General Electric Company, Genuine Parts Company, Hamilton Materials, Inc., J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Metalclad Insulation Corporation, Oscar E. Erickson, Inc., Pacific Gas And Electric Company, Pacipic Bell Telephone Company, Parker Hannifin Corporation, Quintec Industries, Inc., Redwood Plumbing Co., Inc., Santa Fe Braun, Inc., Sequoia Ventures Inc., Shell Oil Company, Thomas Dee Engineering Company, Timec Company, Inc., Tosco Refining Company, Inc., Union Carbide Corporation, Union Oil Company Of California, Unocal Corporation, for ASBESTOS in the District Court of San Francisco County.
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oO OD NR A fh RB Dm NN ee aA Ww FF BN = S © we NY Dw BE H 2S 28 MCKENNA LONG & Avoripcs LLP AtrOanuys AY LAW SAM FRANCISCO LISA L. OBERG (BAR NO, 120139) DANIEL B. HOYE (BAR NO. 139683) ALECIA E. COTTON (BAR NO. 252777) MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY 101 California Street FILED 4lst Floor Superior Court of California, San Francisco, CA 94111 County of San Francisco Telephone: (415) 267-4000 0 Facsimile: (415) 267-4198 APR A 13 2010 BY: CHRISTLE ARRIOLA Attorneys for Defendant Deputy Clerk METALCLAD INSULATION CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE JUELCH and CASE No. CGC-09-275212 NORMAN JUELCH, SR., DEFENDANT’S MOTION EN LiIMINE TO EXCLUDE PERSONAL OPINIONS AND BELIEFS OF COUNSEL [MIL 7} Plaintiffs, TRIAL DATE: APRIL 5, 2010 v. Depr.: 604 JUDGE: HIONORABLE MARLA J, MILLER ASBESTOS DEFENDANTS, (BP), ef al., Defendants. iL INTRODUCTION The above-named Defendant (hereinafter “Defendant”) hereby moves this Court for an order prohibiting plaintiffs’ counsel from offering into evidence or otherwise stating during trial counsel’s personal opinions, beliefs and/or knowledge regarding factual or legal issues relating to this action. DEFENDANT'S MOTION IN LIMINE TO EXCLUDE PERSONAL OPINIONS AND BELIEFS OF COUNSEL [MIL 7} SF:274 185051Oo RP HN DA WR YW RD mee RA BW ND me 17 28 MCKENNA LONG & ALDRIDGE LLP ATTORNEYS AT Law SAN FRANCISCO Plaintiffs’ counsel has litigated a number of asbestos lawsuits, and has at least some knowledge of many other asbestos actions. Defendant anticipates that counsel may attempt to influence the jury by asserting what purportedly occurred in some other lawsuit or by offering into evidence or otherwise stating during trial proceedings, personal opinions or beliefs regarding many of the key issues being litigated in this action. These issues include whether plaintiff had an illness caused by exposure to asbestos, whether exposure to a defendant’s particular products was a “substantial factor” in causing any such illness, and the extent to which plaintiff and/or plaintiffs have sustained damages. Under California case law and the ethical code of conduct applicable to attomeys, it is improper for an attorney to offer into evidence, or otherwise express to the Court, or to the jury, her personal opinions or beliefs. Thus, plaintiffs’ counsel should be ordered not to offer into evidence or otherwise state during trial proceedings such opinions and beliefs. Tk. DISCUSSION It is improper for plaintiffs’ counsel to offer into evidence his or her own personal opinions or beliefs, “While an attorney may argue all reasonable inferences from the evidence, it is misconduct to argue matters not in evidence or to assert as fact matters allegedly within counsel’s personal knowledge.” Brokapp v. Ford Motor Co, (1977) TE Cal. App.3d 841. 862 [139 Cal. Rptr. 888] (citations omitted); see also Hawk v. Superior Court 197 AD CabApp.jd 108. 119 [116 Cal Rpur. 713] (counsel’s personal opinions and beliefs, made during his statement, were excluded as improper). Further, it is an ethical violation for an attorney to state her personal opinions or beliefs during trial. According to the American Bar Association’s (“ABA”) Model Rules, “A lawyer shall not . . . in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” Voxel Rules of Prot t Conduci 3.4(¢) (2002) (emphasis added); see also Code of Prof} Responsibility DR 7-1U0(C M3 (4) 1979). Likewise, California Rules of Professional Conduct provide, “In presenting a matter -2- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE PERSONAL OPINIONS AND BELIEFS OF COUNSEL (MIL 7] SF:27418505.1~ oC eC NH WwW PB WwW NY 28 MCKENNA LONG & ALDRIDGE LLP ATTORNEYS AT Law. SAN FRANCISCO to a tribunal, a member . . . (s)hall not assert personal knowledge of the facts at issue, except when testifying as a witness.” Cul, Rules Prof, Conduct, rule 3-2G0(F }. In short, if plaintiffs’ counsel wishes to testify regarding his or her personal opinions, | beliefs or knowledge, counsel must be designated and qualified as an expert witness. In turn, counsel must subject himself to full cross-examination. In this case, however, plaintiffs’ counsel wishes to “testify” without actually taking the witness stand or affording Defendant the opportunity to cross-examine him. As shown above, Brokopp, //uivk and the ethical standards applicable to attomeys prohibit such unchecked “testimony.” Thus, this Court should grant i Defendant’s Motion to prohibit plaintiffs’ counsel from offering into evidence, or otherwise stating during trial, counsel’s personal opinions, beliefs or knowledge. TL CONCLUSION i For the foregoing reasons, this Court should grant Defendant’s Motion Jn Limine for an order prohibiting plaintiffs’ counsel from offering into evidence, or otherwise stating during trial, counscl’s personal opinions or beliefs regarding factual or legal issues related to this action. {| Dated: April 5, 2010 MCKENNA LONG & ALDRIDGE LLP 6 | By: Lhe S, l Lisa L. OBERG DaNniEL B. Hove ALECIA E. COTTON Attorneys for Defendant, 1 METALCLAD INSULATION CORPORATION -3- i DEFENDANT'S MOTION IN LIMINE TO EXCLUDE PERSONAL OPINIONS AND BELIEFS OF COUNSEL (MIL 7} $P:27418505.1