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  • JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) ASBESTOS document preview
  • JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) ASBESTOS document preview
  • JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) ASBESTOS document preview
  • JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) ASBESTOS document preview
  • JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) ASBESTOS document preview
  • JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) ASBESTOS document preview 
						
                                
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                                LEWIS BRISBOIS BISGAARD & SMITH LLP
     CONSTANCE MCNEIL, SBN 184526
     E-Mail:   al      w.com                                                      ELECTRONICALLY
     ELIZABETH C. SEARS, SBN 250450
     E-Mail: sears@ibbs.com                                                            FILED
                                                                                 Superior Court of California,
     One Sansome Street, Suite 1400                                               County of San Francisco
     San Francisco, CA 94104
     Tel:    415.362.2580                                                          J
     Fax:    445.434.0882                                                     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

ll

12   JAMES JORDAN,                                      ) CASE NO. 402113

13                                    Plaintiff,        )
14                                                      ) ASBESTOS-RELATED

15                                                      5} MOTION IN LIMINE NO. 13:
                                                           TO EXCLUDE EVIDENCE OF PARTS OF
16   ASBESTOS DEFENDANTS, ¢ al.,                        } LUNG, PHOTOGRAPHS OR PATHOLOGY
                                                        } SLIDES OF LUNG TISSUES, PURSUANT TO
17                                    Defendants        } EVIDENCE CODE SECTIONS 350 AND 352

18                                                         Trial Date:     J      20, 2009
                                                         } Action Filed:   December 6, 2001
19                                                      )
                                                        )
20
21   L         PRELIMINARY STATEMENT

22             Defendant PLANT INSULATION COMPANY              files this motion iz limine for the purpose of

23   preventing plaintiff from introducing into evidence actual human lungs, or graphic photographs of lungs,
24   orslidetissue from lungs. There isno purpose behind these forms of evidence other than to provoke horror
25   and inflame the jury. Accordingly, PLANT INSULATION COMPANY asks that this court exercise its
26   discretion and preclude introduction of such evidence.

27   it

28   Mt
     A849-9866-3427.1                               1
     MiL-13: TO EXCL EVID F PARTS F LUNG, FOTOS, OR PATH GY        SLIDS F LUNG TISS, PUR TO EC §§350 & 352
LEGAL ARGUMENT

                  A         Evidence Of Actual Diseased Lungs Or Graphic Photographs Of Such Lungs Are
                                                              Than Te Unduly Prejud
                                                        Other se
                            Inflammatory And ServeNo Purpo                             Warner
                                                                                 Borg-ice
                            Automotive, Inc.

                  This court is empowered to grant this motion on the basis of Evidence Code section 352 which
         affords the court the discretionto exclude evidence if its probative value is substantially outweighed by the

         probability that its admission will create a substantial danger of undue prejudice, of confusing the issues,
         or of misleading the jury.

                  California courts have used this discretionary authority to exclude, or criticize, the introduction of
         evidence that served no useful purpose other than to inflame the jury and prejudice the defendant. For
10       example, in People v. Marsh (1985) 175 Cal. App.3d 987, 998, the court held that the introduction of
11       gruesome photographs of a murder victim’s nude body, with a close-up shot of his exposed brain and

12       bloody scalp, did not enlighten the jury “one whit” and was not necessary to prove malice or to justify
13       aggravation of the crime and penalty. Likewise, in People v. Cavanaugh (1955) 44 Cal.2d 252, 267, the
14       court found that the introduction of the actual fingers of a murder victim was in error where a fingerprint
15       expert could have testified to the identity of the victim. (See People v. Burns (1952) 109 Cal. App.2d 524,

16       542 [reversible error found where introduction of certain photographs served no other purpose than to
17       inflame the jury]; Calandri v. Jone Unified School Dist. (1963) 219 Cal.App.2d 542, 552 [reversible error
18       found where introduction of certain photographs served no other purpose than to inflame the jury]; Jd.
19       [court did not err in excluding photos of bleody hand when physician had already testified as to injury].}

20                 In this case, plaintiff's medical experts have presumably reviewed the evidence prior to trial and
21       will testify as to plaintiff's condition based on that review.      Just as the fingerprint experts were the

22                                        gh experis’ testimony in this caseis the appropriate evidence,
                                      the medical
         appropriate evidence in Cavanau
     i
23   |i not the actual lungs themselves, or graphic photographs of diseased lungs.
24                 Furthermore, pieces of actual diseased lung, or slides or gruesome photographs of these lungs, will
25       not help the jury understand the medical issues in this case. Instead, they could only serve to inflame the
26       jury and, consequently, unduly prejudice defendant. To allow the jury to see a piece of human anatomy
27       preserved in ajar is nothing more than a horror tactic and should not be permitted by this court.
28

         4849-9866-3427 1                               2
         MiL-I3; TO EXCL EVID F PARTS F LUNG, FOTOS, OR PATHGY SLIDS F LUNG TISS, PUR TO EC §§350 & 352
iL.       CONCLUSION

               Expert medical testimony is appropriate evidence of plaintiff's physical condition. Specimens of
     human lung tissue, or graphic photographs of diseased lungs, are wholly inappropriate.          Rather than

     enlightening, they aremisleading. Rather than probative, they are unduly prejudicial, and for these reasons,

     they should be excluded.

     Dated: Fanuaryhf 2009                                  LEWIS BRISBOIS BISGAARD & SMITH LLP



                                                             By              COM
                                                                      wabeth C. Sears
                                                                   Attorney for Defendant
                                                                   PLANT INSULATION COMPANY
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     4849-0866-3427.1
     MIL-13: TO EXCL EVID F PARTS F LUNG, FOTOS, OR aT GY SLIDS F LUNG TISS, PUR TO EC §§350 & 352