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

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McKenna LONC &
ALDRIDGE LLP
ATTORNEYS AT LAW

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO. 252777)
MCKENNA LONG & ALDRIDGE LLP
10) California Street

41st Floor

San Francisco, CA 94111

Telephone: (415) 267-4000

Facsimile: (415) 267-4198

Attorneys for Defendant

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 13 2010

Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk

METALCLAD INSULATION CORPORATION

SUPERIOR Court OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOYCE JUELCH and
NORMAN JUELCH, SR.,

Plaintiffs,
v.

ASBESTOS DEFENDANTS, (BP), e7 ai.,

Defendants.

Case No. CGC-09-275212

DEFENDANT’S TRIAL BRIEF REGARDING
SPECIAL JURY INSTRUCTION ON SHARE OF
DAMAGES [MIL 25]

TRIAL DATE: APRIL 5, 2010
DEPT.: 604
JUDGE: HONORABLE Marva J. MILLER

Saw Francisco

SF:27418568.1

DEFENDANT'S TRIAL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25}3 | [INTRODUCTION ......

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MCKENNA LONG &
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IL. ARGUMENT ..........

10 TH. CONCLUSION.......

TABLE OF CONTENTS

A. ‘THE PROPOSED INSTRUCTION INFORMS THE JuRY OF THE TRUE
CONSEQUENCES OF Its VERDICT, AND THEREBY, PREVENTS THE
Jury FROM ISSUING AN UNINTENDED VERDICT AND/OR AWARD
OF DAMAGES. .....cscecccscccseeesecenecersavesssconsessecnsenccsnecsereerssaesaneansensestnesasesteceeceaetneteecane 1

B. THE PROPOSED INSTRUCTION Is IN ACCORDANCE WITH THE
Purpose AND INTENT OF C287). Cone § 1431.1, OR PROPOSITION
31, WHicH Was Passep By A Majority OF CALIFORNIA VOTERS
ON JUNE 3, 1986... cess ccscetessseessesssnrecqnersssteessavesnvecsnsessnssssettesssssetsseessnsetssteeseeeesseees 4

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ATTORNEYS AT LAW
SAN Feancisco
SF:27418568.1

DEFENDANT'S TRIAL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25]1 TABLE OF AUTHORITIES.

CASES PAGE(S)

Adkins v, Whitten
CW. Virginia 1982) 297 S.E.2d 88) ooo cesses eresneeeesecsseresssessecenneccescevseesnsecsnesenetessneeeaserses 2

| Evangeicatos v. Superior Court
(1988) 44 Cal. 3d 1188 cs esseseceeccecsseeccecerecensesereasreveeaserecanessecsnearsesasessseucsaeseseeensenees 6

(Cal. 1997) 16 Cal.4th 520

2

3

4

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6 | James Buttram v. Owens-Corning Fiberglas Corporation

7

Kaeo v. Davis

8] (Haw. 1986) 729 P.2d 387 ....csssessssesseecescecccesssssnsncsserssoneeseascsneesessuresnnesisesseessanesnvesssneestsseess 2
9 | Peair v. Home Ass’n of Enoia Legion No. 751

(1981) 287 Pa Super. 400

10 1430 A.2d 665]
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| STaTuTEs
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Civil Code

14 section 1431.2 oe cseceeeee
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16 | OTHER AUTHORITIES

17
Law Reviews
18
Nissenberg, Judicial Reapportionment of Liability in a Comparative Negligence
19 | Setting: An Efficiency Argument (1996) 44 UCLA LRev. 213 vcccccsssessecssssssesstesseessecececsceee 5

20 | Schwartz, ef al., Toward Neutral Principles of Stare Dec in Tort Law (2006) 58
South Carolina L.Rev. 317 sree reeteseeseereatenseeeesesseseseesteeenes Dy A

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ALORIDGE LLP

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Aone ae DEFENDANT'S TRIAL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25}
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McKenna LONG &
ALbRipGe LLP
ATORNEYS AT LAW
San Francisco:

I
INTRODUCTION

The above-named defendant (hereinafter “Defendant”) hereby moves this Court for the
following special jury instruction regarding the calculation of damages:

There is a reason why we treat economic damages differently from
non-economic damages in these instructions. Each defendant that
is found liable for the economic damages will be held responsible
for the total amount of the economic damages that a jury awards
less a proportionate share of any settlements that may have been
made by other defendants. As to non-economic damages, however,
each defendant is responsible only for the percentage of the total
that the jury finds is justified by the evidence.

Consequently, if you find Metalclad Insulation Corporation liable
for any percentage of fault of the economic damages, Metalclad
Insulation Corporation will be responsible for the full amount of the
economic damages less a proportionate share of any settlements
that may have been made by other defendants. However, if you
find Metalclad Insulation Corporation liable for any percentage of
fault of the non-economic damages, Metalclad Insulation
Corporation will be responsible to pay for its proportionate share of
any non-economic damages you may award.

The proposed special jury instruction informs the jury of the true consequences of its
verdict, and thereby, prevents the jury from incorrectly issuing an unintended verdict and/or
award of damages. Furthermore, the proposed special jury instruction promulgates the intention
of Proposition 51, which was implemented by voters in California in order to hold defendants
liable in closer proportion to their degree of fault. Defendant respectfully requests this Court to
grant its motion for the proposed special jury instruction regarding the calculation of economic
damages.

IL
ARGUMENT

A, ‘THE PROPOSED INSTRUCTION INFORMS THE JuRY OF THE TRUE CONSEQUENCES OF
Its VERDICT, AND THEREBY, PREVENTS THE JURY FROM ISSUING AN UNINTENDED
VERDICT AND/OR AWARD OF DAMAGES
Tn an apportionment of liability case, jury members must know and understand the effect

of their verdict and award of damages. In order to achieve this end, the Court must provide jury

DEFENDANT'S TRIAL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25}
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MCKENNA LONG &
ALDRIDGE LLP.
ATTORNEYS AT LAW
SAN FRANcHCO.

members with a fair an accurate assessment of joint and several liability with respect to economic
and non-economic damages. The special jury instruction proposed by Defendant will adequately

inform jury members of the true legal effect of their verdict and award of damages, if any, and

| thereby lead the jury to align their verdict with their intended result. (Auee y. Duviy (Haw. 1986)

719 P.2d 387, 395-396; see also -fdkins v Whitten (W. Virginia 1982) 297 SE 2d 881, 882-884,
and Peair vy. Home Axsn of Enola Legion No, 73/1 (1981) 287 Pa.Super. 400, 410-494 [430 A.2d
665, 670-672] and cases cited therein.) (See Exhibits B, C and D to Cotton Declaration filed

| concurrently.)

In Kavo y. Duvis, the Hawaii Supreme Court approved an instruction that informed the
jury that under Hawaii law, in an auto accident case, if both the drunk driver and the City are
liable to any degree, the City pays the drunk driver’s share of the judgment if the drunk driver is

unable to pay. The Avvo court thoroughly reviewed decisions from other jurisdictions on
| instructions regarding the consequences of a verdict apportioning negligence among joint
tortfeasors and concluded the Court must be the “vehicle by which the operation of the law is
| explained”:

[O]ther courts have...conclude{d] “that, ordinarily, a jury informed
of the legal effect of its findings as to percentages of negligence in a
comparative negligence trial is better able to fulfill its fact finding
function”... We are convinced too that “in most cases the jury will
in fact know which party is favored by a particular answer.”
| [Citation omitted.]... Thus an attempt to keep the jury in the dark as
to the [legal] effect of its answers is likely to be unavailing...Given
these probabilities, we cannot discount “the danger that [jurors] will
guess wrong about the law, and may shape [their] answers to the
special verdicts, contrary to [their] actual beliefs, in a mistaken
| attempt to ensure the result [they] deem [] desirable.” Nor can we
dismiss the possibility that some jurors with incomplete knowledge
of the law will exert undue influence in the deliberations. In either
event, it would be “better for the courts to be the vehicle by which
the operation of the law is explained.” (//. at 395-396) (Brackets in
original, citations omitted)

If the jury finds that Defendant has some liability, which Defendant disputes, the jury may
believe that a finding of a small percentage of liability will result in an equally small judgment

| against them. However, Defendant will share liability for economic damages less a proportionate

share of any settlements made by other defendants. With respect to non-economic damages,
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MCKENNA LONG &
Avoripce LLP
ATIoRNEYS Ar Law

Defendant is responsible only for the percentage of the total fault found by the jury. This rather
small, but significant, distinction must be adequately explained and highlighted to the jury
members, thereby preventing a miscarriage of justice.

The Honorable Stephen Allen Dombrink of the Alameda Superior Court gave the
following special instruction to an asbestos jury in February 2006 in order to highlight the unique,

and significant, differences between economic and non-economic damages:

There is a reason why we treat economic damages differently from
non-economic damages in these instructions. Each defendant that
is found liable will be held responsible for the total amount of the
economic damages that a jury awards less a proportionate share of
any settlements that may have been made by other defendants. As
to non-economic damages, however, each defendant is responsible
only for the percentage of the total that the jury finds is justified by
the evidence. (Marian Horr v, Allied Packing, et al, Alameda
Superior Court Case No. RG-03-104401; the jury returned a
defense verdict, and no appeal was taken from the instruction).
(See Exhibit A to Cotton Declaration filed concurrently).

The Honorable Stephen Allen Dombrink’s decision to give this “simple and
straightforward” instruction was favorably discussed in the Winter 2006 South Carolina Law
Review. This article, authored by, among others, Victor Schwartz, the co-author of arguably the
most widely used torts casebook, Schwartz, Kelly & Partlett, Prosser, Wade and Schwartz's Torts
(11" ed. 2005), advocates informing jury members of the true impact of joint and several liability
on their decision-making. (Schwartz. ef ul. Toward Neutred Principtes of Stare Pucisis ist Tort
Law (2006) 58 South Carolina | Rey. 317, 337-339 [hereinafter, “Schwartz”], (See Exhibit E to
Cotton Declaration filed concurrently). In the South Carolina Law Review article, Schwartz
notes that in most jurisdictions, juries do not know, and are not informed, of the effect of. joint and
several liability, which results in a “trap for the uninformed jury”:

Instead, jurors are often led to believe that a peripheral “defendant
will only be liable for a small contribution to the total damage
award and the main defendant will be liable for the remainder.
Such “blindfold rules,” no matter how well-intended, may result in
setting a “trap for the uninformed jury.” The unsuspecting jury
does not realize that “[iJn reality, this deep pocket defendant may
be liable for the entire award, with little hope of contribution from

the party that is mainly at fault.” (Schwartz. suprise. at 337-338,
footnotes omitted).

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SAN ERANCISCO

DEFENDANT'S TRIAL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25]
SF27418568.21 Schwartz explained that while “joint and several liability” was once the majority rule in
2 | the United States:
3 ..-most states have broken with this precedent because it leads to
arbitrary liability awards, subverts the jury’s intent and
4 understanding in rendering awards, and violates a basic fairness
principle that defendants should only have to pay for their fair share
5 ofaharm. Where the rule still exists, courts should inform juries so
the juries can adhere to the core principle of accurately
6 apportioning liability. (Schwartz. supra, at 339, emphasis added,
7 footnotes omitted).
8 | Plaintiffs likely will argue to the jury that Defendant should pay “its fair share” of
9 | Plaintiffs’ claimed damages, and therefore, the jury must be informed of the differences between
10 | economic and non-economic damages with respect to joint and several liability. The jury must
11 | understand the actual impact of assigning even a small amount of Liability to Defendant.
12 | Defendant’s proposed jury instruction would accomplish this fair and equitable result.
13 | B. THE PRoposED INSTRUCTION Is IN ACCORDANCE WITH THE PURPOSE AND INTENT OF
Civ. Cone § 1431.1, OR PROPOSITION 51, WHICH Was Passep BY A MAJORITY OF
14 CALIFORNIA VOTERS ON JUNE 3, 1986
15 | In addition to providing the jury with the true consequences of its verdict, the proposed
16 |) special jury instruction is in accordance with (iri! Cade § 1431.1, or Proposition 51, which was
17 | passed by a majority of informed California voters on June 3, 1986.'
18
19 |
} Civil Code section 1431.4:
20
The People of the State of California find and declare as follows:
21 |
{a} The legal doctrine of joint and several liability, also known as “the deep
22 pocket rule”, has resulted in a system of inequity and injustice that has
threatened financial bankruptcy of local governments, other public
23 agencies, private individuals and. businesses and has resulted in higher
prices for goods and services to the public and in higher taxes to the
24 taxpayers.
25 j (b} Some governmental and private defendants are perceived to have
substantial financial resources or insurance coverage and have thus been
26 included in lawsuits even though there was little or no basis for finding
them at fault. Under joint and several liability, if they are found to share
27 even a fraction of the fault, they often are held financially liable for all the
| damage. The People - taxpayers and consumers alike - ultimately pay for
28 (footnote continued on next page)
MCKENNA LONG é& -4-
ALoripge LLP ass
anor yee” DEFENDANT'S TRIAL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25}

SF:27418568.1MCKENNA LONG &
ALDRIOGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

California joint and several liability laws were placed before California voters to make the
decision as to the exact law for joint and several liability in 1986. Prior to the passage of Civi/
Code § 1431.1, both proponents and opponents engaged in extensive and thoughtful debates
regarding the benefits, drawbacks and effect of the law for joint and several liability. Voters were
able to read numerous articles, pamphlets and papers and watch several television commercials
and debates regarding the nature of the proposed section and the likely effect of the passage.

On June 3, 1986, after extensive debates, the majority of informed California voters
passed (ivi! Code § 1431.1 because voters no longer warited deep pocket defendants, especially
municipalities, treated unfairly by having to pay an entire judgment despite having only a fraction
of the responsibility. The stated intent of Civi/ Code § 1431.1 was “to protect defendants from
the perceived inequity of paying more than their fair share of non-economic damages.”
(Nissenberg, Judicial Reapportionment of Liability in a Comparative Negligence Setting: in
Efficiency Argument (1996) 44 UCLA L.Rev, 213.) (See Exhibit F to Cotton Declaration filed
concurrently.) Nissenberg states the following regarding the purpose of Civil ( vale § 1431.1:

The passage of Proposition 51 by the voters of California marked
the beginning of several liability for non-economic damages. Its
passage meant that, in actions for personal injury, wrongful death,
or property damage, defendants would be liable for a plaintiff’s
non-economic damages only in proportion to their percentage of
fault for the plaintiff’s injuries, As stated by one court, the purpose
of California’s Fair Responsibility Act “is to prevent the unfairness

(footnote continued from previous page)

these lawsuits in the form of higher taxes, higher prices and higher
insurance premiums.

{c) Local governments have been forced to curtail some essential police, fire
and other protections because of the soaring costs of lawsuits and insurance
premiums.

Therefore, the People of the State of California declare that to remedy these
inequities, defendants in tort actions shall be held financially liable in closer
proportion to their degree of fault. To treat them differently is unfair and
inequitable.

The People of the State of California further declare that reforms in the liability
laws in tort actions are necessary and proper to avoid catastrophic economic
consequences for state and local governmental bodies as well as private
individuals and businesses.

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ATTORNEYS AT LAW

of requiring a tortfeasor who is only minimally culpable as
compared to the other parties to bear all the damages.” What was
especially notable about the Act’s passage was its effective
subordination of a traditional tort goal - making the plaintiff whole -
to the goal of ensuring that no defendant bear more liability than he
fairly should. (Nissenberg. supra, at 216, footnotes omitted).

In addition to Nissenberg’s assessment of the purposed of € ivi/ Code $ 1431.1, the
Supreme Court of California held the following in James Bustrom vy. Owens-Corning regarding
this section:

...Proposition 51 was designed to rectify the situation, under
California’s comparative fault tort law, whereby a defendant who
bears only a small share of fault for an injury can be left with the
obligation to pay all or a large share of the plaintiff's damages if
more culpable tortfeasors are insolvent. The drafters of Proposition
51 attempted to alleviate the perceived inequity arising from this
situation. “While recognizing the potential inequity in a rule which
would require an injured plaintiff...to bear the full brunt of the loss
ifone of a number of tortfeasors should prove insolvent, the
drafters of the initiative at the same time concluded that it was
unfair. ..to require a tortfeasor who might only be minimally
culpable to bear all of the plaintiffs damages. As a result, the
drafters crafted a compromise solution: Proposition 51 retains the
traditional joint and several liability doctrine with respect to a
plaintiff's economic damages, but adopts a rule of several liability
for noneconomic damages, providing that each defendant is liable
for only that portion of the plaintiff's noneconomic damages which
is commensurate with that defendant’s degree of fault for the
injury.” (/omes Butiran v, Owens-Corning Fib is Corporation
(Cal. 1997) 16 Caldth $20. $28) (Evangeloutos erior Court
(1988) 44 Cal 34 1188, 1198, itatics in original.) (See Exhibit G to
Cotton Declaration filed concurrently.)

The Court has a duty to explain to the jury the elements and consequences of (iri! Code
§ 1431.1 in order for the jury to properly implement this law. (ivi/ Cus $ 1431.1 was passed by
California voters, and consequently, Civi/ Code § 1431.1 must not be concealed from the jury.
By not providing the jury with instructions regarding (ivi/ Code § |-431.1, the judicial branch is
encroaching upon the rights and powers of the legislative branch. In addition, by not providing
the jury with instructions regarding Civi/ Code § 1431.1, the judicial branch risks inequity and
unfairness in the system because it is improper to assume some jury members will not have an
understanding, rather right or wrong, regarding (ivi! Coe § 1431.1. Only by providing the jury

with fair and accurate instructions regarding (ivi! Cose § 1431.1 can the Court guarantee the

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SAN FRANCISCO

DEFENDANT'S TRUL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25]
SP:27418568.11 | rights of the California voters are adequately protected and respected and the jury receives the
2 | correct law of Civi/ Code $ 1431.1,
3 Defendant’s proposed special jury instruction fairly and accurately explains the elements
4 | and consequences of (vif Code § 1431.1. There is no evidence the jury members cannot
5 | properly implement (ivi/ Code § 1431.1, and therefore, jury members must be allowed the
6 | opportunity to fulfill the purpose of this law that was fully debated and approved by a majority of
a
7 | voters, Ifthe proposed jury instruction is not presented to jury members, the effect of Citi! Code
8 | § 1431.1 will be frustrated because jury members will not have the knowledge and information
9 | regarding the fact that defendants must be held liable for non-economic damages closer to their
10 | degree of fault.
i | i.
CONCLUSION
12
13 Based on the foregoing, Defendant respectfully requests this Court to grant its motion for
14 | the proposed special jury instruction regarding the calculation of economic damages.
15
16 | Dated: April 5, 2010 MCKENNA LONG & ALDRIDGE LLP
17 i
18 | By | Lb,
19 ISA L. OBERG
Daniet B. Hove
ALECIA E. COTTON
20
1 Attorneys for Defendant
METALCLAD INSULATION
» CORPORATION
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ATTORNEYS AT LAW DEFENDANT'S TRIAL BRIEF REGARDING SPECIAL JURY INSTRUCTION ON SHARE OF DAMAGES [MIL 25}

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