On December 06, 2001 a Motion,Ex Parte 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 E-Mail: meneil, Ibbslaw.com ELECTRONICALLY ELIZABETH C. SEARS, SBN 250450 FILED E-Mail: sears@Ibbs.com Superior Court of California, One Sansome Street, Suite 1400 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 Attorneys for Defendant PLANT INSULATION COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 11 JAMES JORDAN, ) CASE NO. 402113 12 Plaintiff, ) 13 ) ASBESTOS-RELATED 14 }. MOTION IN LIMINE NO. 17: } TO EXCLUDE EVIDENCE RELATED 15 ASBESTOS DEFENDANTS, et ai., } TO PUNITIVE DAMAGES PRIOR } TO A DETERMINATION OF LIABILITY 16 Defendants. Trial Date: Jani 20, 2009 17 } Action Filed; Decembe 6, 2001 r ) 18 19 l PRELIMINARY STATEMENT 20 Defendant PLANT INSULATION COMPANY moves this court for an order in limine that: 21 1 Evidence of punitive damages be excluded unless plaintiff first establishes the liability for actual damages of all of the defendants in this action; Plaintiff and Plaintiff's counsel be required to abstain from any reference or com- 23 ment to evidence regarding punitive or exemplary damages without first obtaining permission of the court; 24 Plaintiff's counsel be required to inform all of his witnesses not to make any 25 reference to any evidence or documents regarding punitive or exemplary damages and to strictly follow these instructions in argument to counsel. 26 27 This motion is made on the grounds that, umless plaintiff establishes the liability of all ofthe defen- 28 ts in this action, evidence of punitive or exemplary damages is irrelevant and reference to punitive 4848-3724-8259.1 L MIL 17. TO EXCL EVID RELATED TO PUNITIVE DAMAGES PRIOR TO A DETERMINATION F LIABILITY damages or to evidence regarding punitive damages during voir dire, opening statements and/or questioning pf witnesses would be highly improper and prejudicial to all of the defendants. To recover in this action, plaintiff must prove that: (1) the defendants were negligent or their products were defective; (2) the negligence or product defect legally and proximately caused plaintiff or Hecedent harm; and (3) the nature and extent of the damages. It is well established that punitive damages nnot be awarded unless actual damages are suffered, and thus a tortious act must be proved before punitive amazes may be assessed. (See Esparza v. Sprecht (1976) 55 Cal.App.3d 1, 6.) Plaintiff has not made a prima facie showing of liability entitling them to actual damages and until plaintiff has established that the defendants in this action are liable for actual damages, any evidence relating 10 ‘0 punitive damages should be excluded as confusing and prejudicial. 11 I THE COURT MAY EXCLUDE EVIDENCE UNDER CALIFORNIA EVIDENCE CODE SECTION 352. 12 13 California Evidence Code section 352 provides: 14 The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of 15 time, or (b) create substantial danger of undue prejudice of confusing the issues, or of misleading the jury. 16 17 Additionally, the trial court has the power to regulate the order of proof at trial. (Evid. Code, §320; 18 also People v. Warner (1969) 270 Cal.App.2d 900, 906; Kelemen v. Superior Court (1982) 136 19 ‘al. App.3d 861, 864.) This Court may, therefore, exclude evidence relating to punitive damages until 20 plaintiff has established that the defendants are liable for actual damages. 21 It is clear that liability must be established prior to the award of punitive damages. Any evidence garding punitive damages prior to a determination of liability will unduly prejudice and confuse the jury. 23 ULE. THE COURT SHOULD EXCLUDE EVIDENCE OF PUNITIVE DAMAGES PRIOR TO PLAINTIFF ESTABLISHING LIABILITY IN ORDER TO AVOID SUBSTANTIAL 24 DANGER OF UNDUE PREJUDICE AND UNDUE CONSUMPTION OF TIME, 25 If evidence relating to punitive damages is admitted prior to determination of liability, the jury may 26 be swayed toward finding liability simply because they feel that defendants’ conduct was wrongful. The 27 dmission of such evidence prior to a finding of liability, therefore, creates a substantial danger of undue 28 pudice. 4848-3724-8259.1 2 MIL 17; TOERCL EVID RELATED TO PUNITIVE DAMAGES PRIOR TO A DETERMINATION F LIABILITY Additionally, ifany defendants in a case are found not liable for Plaintiffs injuries, punitive damages ay not be awarded. (Esparza v. Sprecht, supra, 55 Cal.App.3d 1; Werschhull v. United California Bank 1978) 85 Cal.App.3d 981, 1002.) To require the court to hear evidence related to punitive damages, when ey cannot be awarded, would result in an undue consumption of time and may mislead and confuse the jury pe the issue of liability. CONCLUSION For the foregoing reasons PLANT INSULATION COMPANY requests that the court exclude idence of punitive damages unless plaintiff first establish the liability of this defendant for actual damages. Dated: January 2009 LEWIS BRISBOIS BISGAARD & SMITH LLP 10 ll B QQMS El C. Sears 12 ney for Defendant PLANT INSULATION COMPANY 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARAR-3724-8259.1 3 MIL 17, TO EXCL EVID RELATED TO PUNITIVE DAMAGES PRIOR TO A DETERMINATION F LIABILITY