On December 06, 2001 a Party Discovery was filed involving a dispute between Jordan, Cheryl Lynn, Jordan, James, Thomas Dee Engineering Company, and 4520 Corp., Abblummus Global, Inc., A C And S,Inc., A.H. Voss Company, Albay Construction, Allis-Chalmers Corp. Product Liability Trust, American Honda Motor Co., Inc., American Standard, Inc., Asbestos Corp. Limited, Asbestos Corporation Ltd., Asbestos Defendants, Babcock Borsig Power Inc Ref To Db Riley Inc, Blue Diamond Corp., Borg Warner Inc., Borgwarner Inc. Fka Borg-Warner Automotive, Inc., Bragg Investment Company, Inc., Bridgestone Firestone Americas Holdings, Inc., Bridgestone Firestone,Inc., Bridgestone Firestone North American Tire, Llc,, Bwd Automotive, Calaveras Cement Co., Certainteed Corporation, Chevron Products Company, Colonial Sugar Refining Company, Conocophillips Company, Consolidated Insulation, Inc., Crane Co., Crown Cork & Seal Company,Inc., Daimlerchrysler Corporation, Dana Corporation, D. Cummins Corporation, Diamond International Corp., Dillingham Construction N.A.,Inc., Dixon Boiler Works Inc, Dixon Boiler Works, Inc., Does 1-800, Dow Chemical Company, Dresser Industries Inc., D.W. Nicholson Corporation, Eaton Corporation, Elliott Company, Elliott Turbomachinery Co., Inc., Fisher Controls International, Llc, Flintkote Co., Flintkote Mines Ltd., Flowserve Us Inc, Flowserve Us Inc., Fluor Corporation, Fmc Corporation -Turbo Pump Operation, Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Ll, Gatke Corporation, General Electric Company, General Motors Corporation, General Refractories Company, Genstar Co., Genuine Parts Company, Goodrich Corporation, Grinnell Corporation, Halliburton Company, Hanson Cement, Inc., Henry Vogt Machine Co., Hercules Powder Company, Honeywell International, Inc. Fka Alliedsignal, Imo Industries Inc.,, Imo Industries, Inc., J.R.Simplot Company, J.R. Simplot Company, A Nevada Corporation,, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Keenan Properties, Inc, Kubota Corporation, Lamons Gasket Company Dba Power Engineering &, Lear Siegler Diversified Holdings Corp., Maremont Corporation, Metalclad Insulation Corporation, Monsanto Company, Morton International, Inc. A Rohm And Haas Company, Oakfabco, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Pacific Coast Building Products, Inc Dba Pacific, Parker Hannifin Corporation, Parker-Hannifin Corporation, Parsons Energy & Chemical Group, Inc., Parsons Energy & Chemicals Group Inc, Plant Insulation Company, Pnuemo Abex Corporation, As Successor, Power Engineering & Equipment Co. Inc., Quigley Company, Inc., Rapid-American Corporation, Republic Supply Company, Rheem Manufacturing Co, Rheem Manufacturing Company, Robertson-Ceco Corporation, Rosendahl Corporation, Santa Fe Braun, Inc. As Successor-In-Interest To, Sequoia Ventures, Inc., Shell Oil Company, Soo Line Railroad Company, Standard Motor Products, Stuart Radiator Core Manufacturing Co Inc, Stuart Radiator Core Manufacturing Co. Inc., Stuart-Western, Inc., Sugar City Building Materials Inc., Taylor Plumbing Supply Company, Dba Globe Plumbing, Taylor Plumbing Supply Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Thorpe Insulation Company, Tosco Corporation, Tosco Refining Company, Trimon, Inc., Union Carbide Corporation, Unocal Corporation, Viacom Inc., Successor By Merger To Cbs Corporatio, Vogt Valve Company, Waldron, Duffy, Inc., Westburne Supply, Inc., Yale Industrial Products, Inc., Zurn Industries, Inc., for ASBESTOS in the District Court of San Francisco County.
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LEWIS BRISBOIS BISGAARD & SMITH LLP CONSTANCE MCNEIL, SBN 184526 I E-Mail: meneil@Ibbslaw.com ELECTRONICALLY ELIZABETH C. SEARS, SBN 250456 | E-Mail ! law.com FILED One Sansome Street, Suite 1400 Superior Court of California, County of San Francisco San Francisco, CA 94104 Tel: 415.362.2580 J Fax: 415.434.0882 GORDON PARK-LI, Clerk BY: VANESSA WU Deputy Clerk Attomeys for Defendant PLANT INSULATION COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO i 12 JAMES JORDAN, ) CASE NO. 402113 ) 13 Plaintiff, ) 14 } ASBESTOS-RELATED 1S MOTION IN LIMINE NO. 29: } TO REQUIRE PRELIMINARY HEARING 16 ASBESTOS DEFENDANTS, et al., REGARDING ADMISSIBILITY ) OF EVIDENCE, PURSUANT TO EVIDENCE 17 Defendants. ) CODE $402 18 Trial Date: January 20, 2009 } Action Filed: December 6, 2001 19 20 2h I INTRODUCTION 22 Defendant an offer PLANT INSULATION COMPANY requests that Plaintiffbe required to make 23 of proofto demonstrate they can establish a prima facie case against based upon the causes ofaction alleged 24 inthe complaint. To establish a prima facie case, Plaintiff must produce sufficient evidence to establish 25 that Plaintiffwas exposed to asbestos fibers from asbestos-containing products and that such exposure was 26 a substantial factor in causing his alleged asbestos related injury. On the eve of trial, however, Plaintiffhas g 27 produced no specific evidence which establishes that plaintiff was exposed to any asbestos-containin 28 products. 4825-7750-1443.1 i MIL. 29: TO REQUIRE PRELIM HRG RE ADMISSIB ILITY F EVID, PURSUANT 10 EVID CODE §402 For these reasons, this court should order Plaintiff to present a pretrial offer of proof: (1) esta- blishing PLANT INSULATION COMPANY’s liability in this case; and (2) establishing that products were a substantial factor in causing plaintiff's alleged asbestos-related injury. I STATEMENT OF FACTS Plaintiff JAMES JORDAN contends that he worked around PLANT INSULATION COMPANY materials and thus was exposedto its asbestos and/or asbestos-containing products. However, plaintiffdid not provide any other specific information regarding this alleged exposure, and he was unable to identify any of the products used at this site. 10 Based on the foregoing, there is no admissible evidence establishing PLANT INSULATION ii COMPANY’s liability of in this matter. Accordingly, this court should order plaintiff to provide an offer 12 of proof regarding the liability of PLANT INSULATION COMPANY. 13 i. LEGAL ARGUMENT 14 A. Plaintiff Should Be Required To Present An Offer Of Proof Prior To Trial As To Which Job Site, If any, They Can Identify Products. 15 16 Evidence Code section 402 provides, in pertinent part, that: 17 @ When the existence of preliminary fact is disputed, its existence or non-existence shall be determined as provided in this article. 18 ®) The court may hear and determine the question of the admissibility ofevidence out 19 of the presence ofhearing of the jury. 20 Plaintiff failed to carry his evidentiary burden on the issue of causation. Under California’s new 21 statutory scheme, the burden of demonstrating the existence of a triable issue of material fact rests on the 22 party who bears the burden of proof for trial. (Hunter v. Pacific Mechanical (1995) 37 Cal.App.4th 1282, 23 1287.) The Hunter court explained: 24 [lif the non-moving party bears the burden of proof on an issue at trial, the moving party ... may simply point to the absence of evidenceto support the non-moving parties case... 25 it is [enough] to show through factually vague discovery response that [Plaintiffs lacked any significant probative evidence on the critical element of causation}. 26 Mt 27 al 28 ut 4825-775G-1443.. 2 §402 Mil. 29: TO REQUIRE PRELIM HRG RE ADMISSIBILITY F EVID, PURSUANT TO EVID CODE Here, no specific evidence exists demonstrating that plaintiff worked with or around any products for which PLANT INSULATION COMPANY is responsible. An offer of proof as to which job sites are at issue for which defendant is necessary in order to clarify and narrow the issues prior to trial. Based on the foregoing, PLANT INSULATION COMPANY requests that Plaintiff be required to make an offer of proof setting forth the specific facts to show at which job sites, if any, Plaintiff are able to identify products. B. Plaintiff Has Failed To Produce Evidence Demonstrating PLANT INSULATION COMPANY Substantially Contributed To Plaintiff's Alleged Injury Ina products liability case, plaintiff first has the burden of proving product identification. (Powell 10 v, Standard Brands Paint Co, (1985) 166 Cal. App.3d 357,367.) This court’s Complex Asbestos Litigation lL General Order No. 32, then places the substantive burden on plaintiff to prove at trial that “detendant’s 12 defective product was the legal (or proximate) cause of Plaintiff's injury and damage” and thus establishes 13 proximate cause as an essential clement of each of Plaintiff's claims. (See San Francisco Superior Court 14 General Order No. 32.} 15 Even under the most lenient causation standards, speculative (as oppose to reasonable) inferences 16 the causal link between an asbestos related are not enough to raise a triable issue of material fact regarding see 17 injury and defendant’s operations. (Hunter v. Pacific Mechanical, supra, 37 Cal_App.Ath at p. 1289; 18 also Union Bank. Superior Court of Los Angeles (1995)31 Cal App.4th 573, 584, Cal. Code Civil Proc., has been 19 §437c(b\2); Dianin v. Owens-Corning Fiberglas Corp (1994) 28 Cal.App.4th 650.) Here, there 20 no specific demonstration thatany products for which PLANT INSULATION COMPANY isresponsible, 21 let alone asbestos-containing products, were present at plaintiff s job sites. 22 Plaintiff should be required to make an offer proof establishing that PLANT INSULATION 23 COMPANY’s activities were a substantial factor in causing plaintiff's alleged asbestos-related injury. 24 In order to make this showing, Plaintiff must produce facts which show's asbestos-related activities 25 occurred with sufficient frequency and regularity in locations from which asbestos fiber could have traveled 26 to plaintiff's work area so that it was a reasonable medical probability that the exposure to PLANT plaintiff's 27 INSULATION COMPANY’s asbestos-related activities was a substantial factor in causing 28 injuries. (See Hunter v. Pacific Mechanical, supra, 37 Cal.App.4th at p. 1289.) 4824-5999-5395.1 3 CODE §402 MIL 29: TO REQUIRE PRELIM HRG RE ADMISSIBILITY F EVID, PURSUANT TO EVID IV. CONCLUSION Plaintiff should be required to make an offer of proof establishing ‘s liability in this case. In order to avoid confusion, Plaintiff should be required, prior to trial, to make an offer of proof of product identification at each specific job site so that defendant knows going into trial the precise allegations against it, Plaintiff cannot establish that PLANT INSULATION COMPANY ’s products were a factor, much less a substantial factor, in causing plaintiff's alleged asbestos-related injury. Dated: January 6, 2009 LEWIS BRISBOIS BISGAARD & SMITH LLP 10 By: C. Sears it Attomey for Defendant PLANT INSULATION COMPANY 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 26 27 28 4824-5999-5395.1 4 §402 MIL 29. TO REQUIRE PRELIM HRG RE ADMISSIBILITY F EVID, PURSUANT TO EVID CODE