Party Discovery: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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                                LEWIS BRISBOIS BISGAARD & SMITH LLP
       CONSTANCE MCNEIL, SBN 184526
       E-Mail: cneil @|bbslaw.                                                             ELECTRONICALLY
     | ELIZABETH C. SEARS, SBN 250450
       E-Mail:                                                                                  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

11    JAMES JORDAN,                                            ) CASE NO. 402113
                                                               )
12                                       Plaintiff,            }
13                                                             ) ASBESTOS-RELATED

14                                                               MOTION IN LIMINE, NO. 7:
      ASBESTOS DEFENDANTS, et al.,                             } TO PRECLUDE PLAINTIFF, PLAINTIFF'S
1S                                                               WITNESSES, AND PLAINTIFF'S COUNSEL
                                         Defendants.           \ FROM INTRODUCING EVIDENCE OR
16                                                               REFERRING TO “THE PLANT SITE
                                                               3} DOCUMENT”
7
                                                                    Trial Date:     January 20, 2009
18                                                             ) Action Filed:      December 6, 2001
                                                                )
19

20     L          INTRODUCTION
21                Defendant PLANT INSULATION COMPANY (hereinafter PLANT”), prior to trial and the
22     selection of a jury, moves this Court for an order in limine that Plaintiff, Plaintiff s witnesses and Plaintiff's

       counsel be barred from introducing into evidence or referring to “the Plant Site document”.
24     i          FACTUAL BACKGROUND

25                Prior to its general appearance in this case, PLANT negotiated settlement in numerous asbestos-

26     related cases against pursuant to a matrix settlement agreement. The purpose of this Agreement was to
27     work out with the various law firms representing asbestos claimants a mechanism by which cases could
28     be evaluated for potential settlement, and payments made in furtherance of such settlements. The purpose

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               MIL 7: TO PRECLUDE PIP, PTF’S WITNESSES, & PTF’S CNSL FR INTRODUCING EVIDENCE...
of this agreement, was to preserve as much as possible of Plant’s limited CIGA resources for use in making
     payments on asbestos claims once the mechanism for doing so had been worked out with the Plaintiff's

     firms involved, That mechanism was negotiated overa period of months, and came to be embodied in the
     PLANT Asbestos Case Valuation Matrix dated October 2005 and amendedin certain particulars thereafter

     (hereafter, “the Plant Matrix”).

              As part of the negotiations relatedto the Plant Matrix, a document was created which alphabetically
     list alleged PLANT job sites (“Plant Site”), a “Start Date,” an “End Date,” and a “Rating” of each alleged

     site (“the Plant Site document”). This document, which contains a list of thousands of alleged PLANT job

     sites, was not intended to be an admission of liability. Rather, pursuantto the Plant Matrix, these sites were
10   rated in an extremely broad range, from VH (very high) to VL (very low) liability, to aid in the resolution
ll   of cases pursuant to the Plant Matrix. Because the sole purpose for creating this document was to facilitate

12   settlement negotiations, it simply lists job sites in general terms without any specific details, covers an
13   overly broad range of dates, and includes an extremely vague and questionable rating system. For example,
14   the first site listed, “1 Bush Street — San Francisco, CA” 1) includes no further details regarding this
15           job site whatsoever; 2) suggests an overly broad range of dates (ie. Start Date of Jan. 1, 1980,
     particular
16   and an End Date of Dec. 31, 1990); and 3) includes a ambiguous rating of “VL” (very low).

17   Ti.       ARGUMENT

18             A        Evidence Of “The Plant Site document” Is Barred By The California Evidence Code
19             Section 1152 of the California Evidence Code provides:

20                      Evidence that a person has, in compromise or from humanitarian motives,
                        furnished or offered or promised to furnish money or any other thing, act,
2}                      of service to another who had sustained or will sustain or claims that he or
                        she has sustained or will sustain loss or damage, as well as any conduct or
22                      statements made in negotiation thereof, is inadmissible to prove his or her
                        Rability for the loss or damage of any part of it.
23

24             Any mentioning of the factthat PLANT attemptedto settle any claims, including this claim, as well
25   as all of its other pending and future asbestos claims, is a clear violation of Evidence Code Section 1152.
26             In Moving Picture Mach, Operators Union Local No, 162 v. Glasgow Theaters, Inc. (App. 1 Dist.

27   1970) 86 Cal.Rpir. 33, 6 Cal App.3d 395, the court stated that conduct or statements made in negotiation
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are inadmissible to prove liability, including offers to compromise, and also exchudes all negotiations in

      relation thereto.

                 In the present case, itis anticipated that plaintiffs will attempt to introduce evidence of the Plant Site
      document to support plaintiff's claims of liability against PLANT. However, this information contained
      in the Plant Site document was not intended to be an admission of liability. Instead, the Plant Site docu-
      rent was created to facilitate settlement negotiations between Plaintiff and PLANT.             As such, the Court

      should deem the Plant Site document inadmissible to prove liability.

                 In Fieldson Associates, Inc. V. Wyhitecliff Laboratories, Inc. (App. 1 Dist. 1969) 81 Cal. Rptr. 332,
      276 Cal.App.2d 770, the court stated that the purpose of this section prohibiting admission of evidence of

10    offer to compromise claimsto prove liability is to avoid deterring parties from making offers of settlement

11    and to facilitate candid discussion which may lead to settlement.           Again, the Plant Site document was

12    created for the sole purpose of aiding PLANT in the negotiation and resolution of asbestos-related cases
13    against it pursuant to the Plant Matrix, and thus was made in attempted compromise of litigation.
14   i Therefore, introduction of the Plant Site document would go against the policy of the law to discourage

15    litigation and to encourage compromise of doubtful rights and controversies (Brown v. Pacific Ele. Ry. Co.
16    (App. 2 Dist. 1947) 79 Cal. App. 2d 613, 180 P.2d 424.
17                B.       Evidence Of “The Plant Site document” Is Irrelevant

18                The party proffering evidence bears the burden of demonstrating its admissibility. Evidence that

19    is not relevant is not admissible.       Cal. Evid. Cade, §350.      Relevant evidence is that which has “any

20    tendency in reason to prove or disprove any disputed fact that is of consequenceto the determination of the
2h    action.” Cal. Evid. Code, §210.

22                Among the disputed facts of consequence in this case is whether Plaintiff's injuries were caused

23    by exposure to asbestos and/or asbestos-containing products for which PLANT may be liable, and the

24    amount of damages Plaintiff suffered, if any. The fact that PLANT implemented a plan to settle all of its

25    pending and future asbestos claims has no tendency to prove or disprove these facts in this particular case.
26   Val
27    Mt
28    Mt
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                                             WI
               MIL 7: TOPRECLUDE PTF’, PIP'S NESSES, & PTF'S CNSL FR INTRODUCING EVIDENCE . ...
c        Evidence Of “The Plant Site document” Will Waste Time, Unduly Prejudice PLANT,
                        And Confuse And Mislead The Jury.


               Section 352 of the California Evidence Code provides:

                        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 time or (b) create substantial danger of
                        undue prejudice, of confusing the issues, or of misleading the jury.


               Evidence of the Plant Site document has no probative value. To the extent there is any probative

     value in it, however, it is substantially outweighed by the fact that its admission will necessitate undue
      consumption of time and create substantial danger of undue prejudice, of confusing the issues, or of

10   misleading the jury. Specifically, once the Plant Site document is mentioned, PLANT will have to spend

11    vast amount of time explainingto the jury the purpose of “the Plant Site document and its relation to the

12   Plant Matrix. This will unnecessarily require the jury to understand the complex intricacies of asbestos-
13   related matrix settlement negotiations, for which there simply is no place in this personal injury action.
14   Similarly, there is grave danger of confusing these asbestos-rel     ated negotiation issues with
                                                                  matrix settlement

15   the issues that are truly at the heart of this case — the cause and extent of Plaintiff's injuries. Finally,
16   introduction of this evidence could unduly prejudice PLANT in that the jury could somehow feel that it
17   must hit PLANT with a large verdict before it attempts to enter into another asbestos-related matrix
18   settlement negotiation, orthat PLANT has done something improper or dishonest in discontinuing asbestos-
19   related matrix settlement negotiations.

20   TV.       CONCLUSION

21             For the foregoing reasons, PLANT’s motion should be granted barring Plaintiff, Plaintiff's
     witnesses and Plaintiffs counsel from introducing into evidence or referring to the Plant Site document.
23   Dated: January(G52009                                       LEWIS BRISBOIS BISGAARD & SMITH LLP

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25                                                                             OI,
                                                                      Eligabeth C. Sears
26                                                                         mey for Defendant
                                                                      PLANT INSULATION COMPANY
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