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 BRISHOIS BISGAARD & SMITH LLP CONSTANCE MCNEIL, SBN 184526 E-Mail: meneil@Ibbslaw.com ELECTRONICALLY ELIZABETH C. SEARS, SBN 250450 E-Mail: sears@|bbslaw.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: 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 i JAMES JORDAN, ) CASE NO.402113 } 12 Plaintiff, ) 13 } ASBESTOS-RELATED 14 MOTION IN LIMINE NO. 21: ) TO EXCLUDE MENTIONING OR 15 ASBESTOS DEFENDANTS, ef al., REFERRING TO DEFENDANTS AS “THE ASBESTOS INDUSTRY” 16 Defendants. } OR “ASBESTOS DEFENDANTS” 17 Trial Date: Jarmary 20, 2009 } Action Filed: December 6, 2001 18 ) 19 20 L PRELIMINARY STATEMENT 21 Defendant PLANT INSULATION COMPANY moves the court for an order in limine preventing 22 plaintiff from referring to defendants as “The Asbestos Industry” and/or “Asbestos Defendants”. Such 23 references are specifically subject to exclusion as they have no relevance to the issues in this.case. of 24 Furthermore, the probative value of such references is substantially outweighed by the undue confusion 25 issues and undue prejudice which would result to defendants. 26 Mi 27 Mt 28 it 4852~4350-5923.1 1 DEFS" Milor TO EXCL MENTIONING OR REFERRING 10 DEFS AS ‘THE ASBESTOS INDUSTRY” OR ASBESTOS A Reference To Defendants As “The Asbestos Industry” And/Or “Asbestos Defen- dants” And In Any Other Collective Terms Implying Concerted Action Would Be Irrelevant In California, only relevantevidence is admissible. (Evid. Code, §350.) “Relevant evidence means evidence .. . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code §210.) The issue of whether plaintiff would be ableto referto defendants in asbestos litigationin collective terms was previously considered by the Honorable John E. Benson of the San Francisco Superior Court during motions to consolidate all asbestos cases. As part of the consolidated motions, defendants moved to preclude plaintiff from referringto defendants during trial as “The Industry” or “The Asbestos Industry”. 10 After hearing and argument, the court concluded that reference to defendants in these collective terms i would be born irrelevant and prejudicial. (see San Francisco Superior Court, General Order 26; see also in 12 Inve Related Asbestos Cases (ND. Cal, 1982) 543 F.Supp. 1152, 1159 [ruling on motions in limine 13 consolidated asbestos actions, Chief Judge Peckham prohibited plaintiff from using the terms “conspiracy” 14 or concert of action].) 1S Reference to defendants herein as “The Asbestos Industry” and/or “Asbestos Defendants” would 16 create an inference that defendants were and are involved in a “conspiracy” or “concerted action”. As 17 numerous courts have recognized such references are wholly irrelevant and should be excluded. 18 1 Any Reference To Defe eri dants As “The Industry”, “The Asbestes Industry”, And/Or “The Brake In dustry” Or In Any Other Collective Terms Implying ing 19 Concerted Action Would Be Unduly Prejudicial, Confusing, And Mislead 20 The court is empowered to grant this motion on the basis of Evidence Code section 352, which 21 states: 22 The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probabil ity that its admissions will (a) 23 necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. 24 Code, §352.) Terms such as “The Asbestos Industry” have no logical meaningas they relateto PLANT INSULA- 26 TION COMPANY herein. Many if ot ail of the defendants in this action may have either manufactured, to refer to 27 sold, supplied or distributed products which contained asbestos. Plaintiff should not be allowed may contain 28 defendants as members of “The Asbestos Industry” simply because some of their products 4852-4350-5923.1 2 OR ASBESTOS DEFS” MiL21- TO EXCL MENTIONING OR REFERRING TO DEFS AS ‘THE ASBESTOS INDUSTRY” some amount of asbestos as a component. If anything, the defendants presently before the court are customers of “The Asbestos Industry”, not members thereof. Plaintiff should not be allowed to prejudice these defendants by referring to defendants in collective terms which impliedly group the all defendants before the court with companies involved in the manu- facture and sale of arguably more hazardous products, Use of such terms can only serve to confuse the issues and mislead the jury as to the nature and extent of any conduct, participation, or knowledge attributable to the defendants presently before the court. In addition, reference to defendants such as “The Industry”, “The Asbestos Industry”, or similar language unfairly implies that defendants were involved in some type of joint conduct or conspiracy. 10 This implication is extremely prejudicial and has no probative value whatsoever. lt Finally, there are highly prejudicial and misleading visual implications in referring to defendants 12 as “The Industry” or “The Asbestos Industry”. At trial in the court room, a single plaintiff's attorney will 13 be seated a the counsel table, Sitting across the table will be several atiomeys representing various 14 defendants. Use of such terms combined with the scenario of several defense attorneys versus a single 15 plaintiff's attomey would unfairly suggest that defendants are acting collusively. This inference is highly 16 prejudicial and misleading, and utterly without probative value. 17 Iv, CONCLUSION 18 Plaintiff should be prevented from referring to defendants as “The Asbestos Industry” and/or 19 “Asbestos Defendants.” Any reference to defendants in such collective terms implying concerted action 20 can only be prejudicial, misleading and confusing. 21 Defendants therefore respectfully request that this court order plaintiff to abstain from any refer- 22 nin to “The Asbestos ences, comment or offer of evidence pertai g and/or “Asbestos Defendants”. Industry” 23 The court is further requested to order plaintiff’ s counsel to inform all of the plaintiff's witnesses to refrain 24 from any such references and that counsel strictly follow these instructions in opening statement and 25 argument. 26 Dated: January 6, 2009 LE RISBOIS BISGAARD & SMITH LLP 27 C, Sears 28 ftorney for Defendant PLANT INSULATION COMPANY 4852-4350-$923 1 3 DE ” MLL TO EXCL MENTIONING OR REFERRING TO DEFS AS “THE ASBESTOS INDUSTRY” OR ASBESTOS