Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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BRYDON
Huco & PARKER
135 MaIN SYREDT
20°" FLOR
Sart Francisco, CA 94108

John R. Brydon [Bar No. 083365]
George A. Otstott [Bar No. 184671]
Thomas J. Moses [Bar No. 116002]

BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, 20th Floor FILED
San Francisco, CA 94105 Superior Court of California,
Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 FEB 21 2012
Email: service@bhplaw.com Clerk of the Court
Attorneys for Defendant BY: ALISON ae puty Clerk

UNION CARBIDE CORPORATION

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO ~ UNLIMITED JURISDICTION

CHARLES HUSBAND, (ASBESTOS)
Case No. CGC-09-275098
Plaintiff,
DEFENDANT UNION CARBIDE
vs. CORPORATION’S MOTION IN LIMINE
NO. 12 TO PRECLUDE EVIDENCE
ASBESTOS DEFENDANTS (B“*P), REGARDING UNION CARBIDE’S
CORPORATE STRUCTURE OR ITS
Defendants. RELATIONSHIP TO THE DOW
CHEMICAL COMPANY

TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD:

Defendant UNION CARBIDE CORPORATION (“Union Carbide”), prior to trial
and selection of a jury, moves on its own behalf for an in limine order, pursuant to
Evidence Code sections 350 and 352, prohibiting Plaintiff CHARLES HUSBAND
(“Plaintiff”) from presenting, referring to, or offering evidence or argument at trial,
whether through testimony or records, regarding Union Carbide’s corporate structure or
its relationship to The Dow Chemical Company (“TDCC”).

This motion is made on the grounds that Union Carbide’s corporate structure or
relationship to TDCC is not relevant to any of Plaintiff's claims. Even if evidence related
to Union Carbide’s corporate structure were relevant or otherwise admissible, it should be
excluded because it will result in undue prejudice to Union Carbide, it will confuse issues

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in this case, and it will mislead the jury.
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DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 12 TO PRECLUDE
EVIDENCE REGARDING UNION CARBIDE’S CORPORATE STRUCTURE OR ITS RELATIONSHIP TO
THE DOW CHEMICAL COMPANYoD oe BSD TR DW De

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BRYDON
Huco & PARKER
135 MaIN SYREDT
20°" FLOR
Sart Francisco, CA 94108

This motion is based upon this notice, the memorandum of points and authorities
attached hereto, the pleadings and records on file herein, and upon such other documents
and oral argument as may be presented at the hearing on this motion.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Union Carbide is an industrial company whose major lines of business have
included chemicals, plastics, industrial gases, and carbon products. Union Carbide was
originally incorporated in the state of New York on November 1, 1917 as Union Carbide
and Carbon Company. In 1957, Union Carbide and Carbon Company changed its name to
Union Carbide Corporation. On February 6, 2001, Union Carbide became a subsidiary of
TDCC.

Union Carbide is being sued in this case as a raw supplier of asbestos to certain joint
compound manufacturers. The type of asbestos Union Carbide sold was called “Calidria,”
which refers to the fact that it was mined from the New Idria Serpentine Deposit in

California. Calidria is a unique short-fiber form of chrysotile asbestos uncontaminated by

tremolite. Union Carbide was only in the business of selling asbestos from 1963 to 1985,
many years before it became a subsidiary of TDCC. Throughout the time that Union
Carbide was in the asbestos business, sales were relatively small. Even as Union Carbide
attempted to develop business, it remained a relatively small participant with a narrow
focus on developing applications suitable for its unique asbestos fibers. At all relevant
times, Union Carbide’s involvement with its unique Calidria fiber was an extremely small
part of its diversified operations and never overlapped with Union Carbide’s affiliation
with TDCC. Any mention of Union Carbide’s current corporate relationship with TDCC is
thus irrelevant to the Calidria supply issues at issue in this case.
Il. ARGUMENT

Under Evidence Code section 350, only relevant evidence is admissible. Evidence

Code section 210 defines “relevant evidence” as “evidence .. . having any tendency in

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DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 12 TO PRECLUDE
EVIDENCE REGARDING UNION CARBIDE’S CORPORATE STRUCTURE OR ITS RELATIONSHIP TO
THE DOW CHEMICAL COMPANYoD oe BSD TR DW De

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BRYDON
Huco & PARKER
135 MaIN SYREDT
20°" FLOR
Sart Francisco, CA 94108

of the action.” Evidence is relevant if it “tends ‘logically, naturally, and by reasonable
inference’ to establish material facts.” (People v. Benavides (2005) 35 Cal.4th 69, 90 [citing
People v. Garceau (1993) 6 Cal.4th 140, 177].) Although a trial court has broad discretion in
determining the relevance of evidence, it has no discretion to admit irrelevant evidence.
(Benavides, supra, 35 Cal. 4th at 90.)

Evidence, although otherwise relevant, may still not be admissible. Under
Evidence Code section 352, a court has the discretion to exclude relevant evidence if “its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.” (Evid. Code, § 352; see also Robinson v.
Grossman (1997) 57 Cal.App.4th 634, 647 [holding that only relevant evidence is admissible
and court had discretion to exclude relevant evidence if probative value was substantially
outweighed by probability that admission would necessitate undue consumption of time
or create substantial danger of undue prejudice, of confusing issues, or of misleading
jury).)

Plaintiff may attempt to introduce evidence, whether through references at voir
dire, or in their opening statement or through documents or testimony, that Union
Carbide is synonymous with TDCC in an attempt to inflate the jury’s impression of the
size of the Calidria business or Union Carbide’s wherewithal to pay any judgment against
it.

Plaintiff can only assert his claims against Union Carbide because that is the entity
that sold Calidria asbestos. TDCC currently owns Union Carbide’s stock, but this
relationship was created many years after the time period relevant to this case, which is
the period during which Union Carbide sold Calidria asbestos to certain tape joint
compound manufacturers (the products to which Plaintiff claims exposure). Union
Carbide ceased doing so long before its affiliation with TDCC began. Thus, the current

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DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 12 TO PRECLUDE

EVIDENCE REGARDING UNION CARBIDE’S CORPORATE STRUCTURE OR ITS RELATIONSHIP TO
THE DOW CHEMICAL COMPANY

reason to prove or disprove any disputed fact that is of consequence to the determination
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BRYDON
Huco & PARKER
135 MaIN SYREDT
20°" FLOR
Sart Francisco, CA 94108

corporate relationship between Union Carbide and TDCC is irrelevant to the scope of this
action. (See Evid. Code, § 350.) Moreover, any reference to TDCC should be excluded.
TDCC’s acquisition of Union Carbide in 2001, years after the events at issue in this lawsuit,
and nearly 20 years after Union Carbide ceased its mining and milling of asbestos
altogether is entirely irrelevant, and references to TDCC would only serve to confuse the
jury and prejudice Union Carbide. (See Evid. Code, § 352.) Such evidence could mislead
the jury and unfairly prejudice their view of the Calidria business by inextricably linking it
with TDCC, a vastly larger company that had nothing to do with Calidria operations.
Ill. CONCLUSION

For the foregoing reasons, Union Carbide respectfully requests that the Court
prohibit Plaintiff from presenting, referring to, or offering evidence or argument regarding
its corporate structure or relationship with TDCC.

Dated: February 21, 2012 BRYDON HUGO & PARKER

By: __/s/ Thomas |. Moses
John R. Brydon
George A. Otstott
Thomas J. Moses

Attorneys for Defendant
UNION CARBIDE CORPORATION

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DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 12 TO PRECLUDE
EVIDENCE REGARDING UNION CARBIDE’S CORPORATE STRUCTURE OR ITS RELATIONSHIP TO
THE DOW CHEMICAL COMPANY