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CAUSE NO. 2005-07058
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F. ROMAN KORONCZOK § IN THE DISTRICT COURT OF
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vs.
DALLAS COUNTY, TEXAS.
ANDERSON GREENWOOD & CO.; J
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LESLIE CONTROLS, INC.; HOKE
INCORPORATED, ET AL. § 298™ JUDICIAL DISTRICT
TRANSFERRED
CAUSE NO. DC-05-12927
FROM
ASBESTOS
F. ROMAN KORONCZOK § IN THE DISTRICT COURT OF
§
vs. §
§ DALLAS COUNTY, TEXAS
ANDERSON GREENWOOD & CO.; §
LESLIE CONTROLS, INC.; HOKE
INCORPORATED, ET AL. ; 298™ JUDICIAL DISTRICT
DEFENDANT LESLIE CONTROL, INC.'S
MOTION IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Leslie Controls, Inc., and before the case has begun,
and before receipt of any evidence, makes and presents this its Motion in Limine, and
would show unto the Court the following:
|
Defendant moves the Court to instruct counsel for the Plaintiffs, Plaintiff
himself, and witnesses for said Plaintiffs to refrain from mentioning, referring, or
eluding to, either directly or indirectly, during voir dire examination, opening
statements, interrogation of witnesses, introduction of any evidence, opening or
Koronczok v. Leslie Controls, et al. Page - 1 -
Defendant's Motion in Limine RECORDER'S MEMORANDUM
This instrument is of poor quality
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closing arguments, objections before the jury, reading of any portion of the pleadings,
or by any other means or in any other manner any attempt to inform the jury, or bring
to the jury's attention any of the matters set forth in the numbered paragraphs below,
unless or until such matters have been first called to the attention of the Court, out of
the presence and/or hearing of the jury, and a ruling obtained from the Court as to the
admissibility and relevance of any of the matters set out hereinbelow.
1 That Defendant may have a liability insurance policy covering, in whole or in
part, the occurrence or occurrences made the basis of this suit; or use of the
word "insurance" in any form or fashion, either directly, or by implication.
Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex.1962); Beall v. Ditmore, 867
S.W.2d 791, 794 (Tex.App.-El Paso 1993, writ den.).
GRANTED DENIED. GIVEN
2 Any questioning of the jury panel with respect to whether any of the jurors are
connected with the insurance industry in any manner, as well as similar
questions, the exact language of which is impossible to anticipate, but which
essentially are designed to convey the impression that Leslie Controls, Inc., has
or may have insurance.
GRANTED DENIED. GIVEN
3 Comparisons about the relative size or worth of Defendant, Leslie Controls, Inc.,
as compared to that of the Plaintiffs.
GRANTED DENIED. GIVEN
4 That Defendant has failed to call any particular witness that would be equally
available to either Plaintiff or Defendants or Third-Party Defendants through the
subpoena process.
GRANTED DENIED GIVEN
5 That there will probably be testimony or any reference to anticipated testimony
of certain facts by witnesses who are not later called to testify at trial.
Koronczok v. Leslie Controls, et al. Page- 2 -
Defendant's Motion in Limine
GRANTED DENIED. GIVEN
6 The existence or contents of any ex parte reports which have not been properly
admitted into evidence with the author or custodian thereof present, either in
person, by affidavit, deposition, or by agreement of the parties, and subject to
cross-examination or objection by Defendant's counsel.
GRANTED DENIED GIVEN
7 That Plaintiff or other witness has been told anything by any doctor, osteopath,
or other medical witness concerning the Plaintiff's or witness’ physical
condition, disability, or incapacity for the reason such revelation would refer to
hearsay, not subject to proper cross-examination by Defendant's and Third-Party
Defendants’ counsel, and for the further reason that such would be an attempt
to introduce for the jury expert testimony without a proper predicate concerning
the expert's qualifications and abilities to give such testimony. Tex. R. Evid.
701, 802; Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337
(Tex.1963).
GRANTED DENIED GIVEN
8 That Plaintiff be prohibited from calling any witness, lay or expert, to testify at
trial, other than the witnesses expressly identified by Plaintiff in Designation of
Experts or as disclosed by agreement of the parties.
GRANTED DENIED GIVEN
9 That Plaintiff be prohibited from offering any prior deposition or trial transcript
testimony from any proceeding to which this Defendant was not a party.
GRANTED DENIED GIVEN
10. That Plaintiff and Plaintiff's counsel be instructed not to make demands or
requests before the jury for matters found or believed to be contained in
Defendant's file, which would include statements, pleadings, photographs, and
other documents; or make any other requests of Defendant or Defendant's
counsel in the course of this trial and in the presence of the jury, since the only
purpose for such requests would be to harass and embarrass Defendant before
the jury, and such requests, if felt to be absolutely necessary could easily be
made outside the presence and hearing of the jury, or at a time when the jury
is not present in the courtroom.
“_
Koronczok v. Leslie Controls, et al. Page - 3 -
Defendant's Motion in Limine
GRANTED DENIED GIVEN
11. That Plaintiff be prohibited from informing the jury in any way that answering
any of the jury questions submitted in this case with any particular response
would excuse, decrease, increase or maximize (or any other word of similar
import) the payment, if any, to be made by Defendant or to Plaintiff, or that
answering any jury question with any particular response would require that
some other jury question be answered with a particular response.
GRANTED DENIED GIVEN
12. That Plaintiff, Plaintiff’s counsel and Plaintiff's witnesses not mention or
suggest to the jury that Defendant or any of Defendant’s employees are in the
habit of doing any particular thing, or have a routine practice of doing any
particular thing, unless and until it is first established outside the presence of
the jury by sufficient probative evidence that there have occurred numerous
instances of consistent specific behavior sufficient to raise the behavior in
question to the status of "habit."
GRANTED DENIED. GIVEN
13. From making any mention of, or suggesting to the jury, the manner in which
Defendant has contested, settled, disposed of or paid any other claim in the
past.
GRANTED DENIED GIVEN
14. The "Golden Rule" or that the jury panel should "do unto others as you would
have them do unto you." Fambrough v. Wagley, 169 S.W.2d 478, 480-481
(Tex.1943); Lone Star Ford, Inc. V. Carter, 848 S.W.2d 850, 855
(Tex. App.—Houston [14" Dist.] 1993, no writ).
GRANTED DENIED GIVEN
15. From suggesting that the jury or the jury panel should attempt to make the
Defendant "knows what the price of injustice is in our industry and/or
community" or, "to send the Defendant’s management a message" or any such
inflammatory and prejudicial language which is calculated to have the jury
assess damages on some basis other than proper compensation as provided by
the court's charge to the jury.
GRANTED DENIED. GIVEN
Koronczok v. Leslie Controls, et al. Page - 4-
Defendant's Motion in Limine
16. Mentioning or stating before the jury that the Plaintiff is or may be under any
financial hardships as such evidence is of no probative value and would serve
only to prejudice the jury.
GRANTED DENIED GIVEN
17. From stating that the Plaintiff's injuries have caused suffering, pain, distress, or
any type of mental anguish to any family members other than the Plaintiff, in
that none of these family members are parties to this cause of action.
GRANTED DENIED. GIVEN
18. Any reference to any industry wide "conspiracy of silence."
GRANTED DENIED GIVEN
19. The firm of Kent, Good & Anderson, P.C., attorneys for Defendant, specializes
in handling insurance cases or specialize in the defense of lawsuits.
GRANTED DENIED GIVEN
20. From mentioning that this Motion has been filed or any ruling by the Court in
regard to this Motion, suggesting or inferring to the jury that Defendant or Third-
Party Defendants have moved to prohibit proof or that the Court has excluded
proof of any particular matter.
GRANTED DENIED GIVEN
21. From mentioning that there were in the past, or are currently pending claims or
lawsuits against this Defendant or any other firms, persons, corporations, or
entities concerning asbestosis, cancer, mesothelioma, or any other physical
condition alleged to be due, in whole or in part, to the inhalation or ingestion of
asbestos.
GRANTED DENIED GIVEN
22. From mentioning that asbestos-containing products have been declared
defective or unreasonably dangerous by any Court or any other official entity,
or by any jury. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923
S.W.2d 549, 556 (Tex. 1995).
Koronczok v. Leslie Controls, et al. Page- 5 -
Defendant's Motion in Limine
GRANTED DENIED. GIVEN
23. From mentioning the contents of newspaper or magazine articles or television
programs about or concerning asbestos and disease.
GRANTED DENIED GIVEN
24. From mentioning any testimony concerning the state of the medical and
scientific knowledge at any time in the past with regard to exposure and
working conditions of asbestos textile workers, asbestos manufacturing
workers, asbestos mining workers, or any other type of worker whose exposure
to asbestos may have been of a different type, quantity, quality and duration
from that of this Plaintiff.
GRANTED DENIED GIVEN
25. Mentioning workers' compensation claims, reports, studies, or compilations
with regard to this Defendant.
GRANTED DENIED. GIVEN
26. Any evidence of the state or knowledge of any party where such evidence is
introduced, for any purpose, against a party not privy to the creation of such
evidence.
GRANTED DENIED. GIVEN
27. That no statement or argument be made with respect to a unit of time breaking
down a time span into smaller parts of weeks, days or even hours and
multiplying it by a dollar amount, because this is not permissible and would tend
to produce an excessive verdict. See Westbrook v. General Tire and Rubber
Co., 754 F.2d 1233, 1239 (5th Cir. 1985).
GRANTED DENIED. GIVEN
28. That neither Plaintiff, his witnesses, or counsel be permitted to display, show,
mention or refer in any way to any pictures, movies, videotapes, or other
electronic reproductions of any sort showing or intending to show any Plaintiff
or other victim of any disease in a condition of ill health or weakness without
first displaying said pictures, movies, videotapes, or electronic reproductions to
the Judge and defense counsel outside the presence of the jury or any
Koronczok v. Leslie Controls, et al. Page - 6 -
Defendant's Motion in Limine
prospective juror so that Defendant may have an opportunity to examine said
items and make objections prior to the time that any juror or prospective juror
is allowed to see or hear said items. Otherwise inadmissible and highly
prejudicial material may be brought to the attention of the jurors and such
materials would be of such a prejudicial nature that an instruction by the Court
could not cure the error and a mistrial would be necessary.
GRANTED DENIED GIVEN
29. That no photographic evidence, newspaper articles, or any other exhibits in any
form be shown, exhibited, or placed in such position that prospective jurors and
the jurors ultimately selected to try this case can in any way view or see such
items without their being properly admitted into evidence beforehand.
GRANTED DENIED. GIVEN
30. That Plaintiff and counsel for Plaintiff makes no reference that "since these
Defendant is a corporation, it is without a heart and soul," or make any other
reference implying that this Defendant as a corporation has any less rights under
the law than a natural person. The fact that this Defendant is not a natural
person is totally irrelevant to this suit and therefore inadmissible. Furthermore,
any such reference is prejudicial and would unduly confuse the jury, and would
be likewise contrary to the Court's instructions in this regard.
GRANTED DENIED GIVEN
31. That Plaintiff be prohibited from commenting, referring to, or exhibiting any prior
statement of any witness who is available at trial if such statements are offered
for purposes other than impeachment or rebuttal. Such statements are
inadmissible as hearsay, and not subject to any hearsay exception.
GRANTED DENIED. GIVEN
32. That no mention be made or testimony given concerning the future
consequences of any injury or disease in the absence of medical testimony
beforehand that in reasonable medical probability the anticipated conditions will
occur.
GRANTED DENIED. GIVEN
33. Further, Defendant anticipates that Plaintiff will call certain witnesses in this
case who have had or currently do have a pending lawsuit similar to the instant
Koronczok v. Leslie Controls, et al. Page - 7 -
Defendant’s Motion in Limine
case in which it is or was alleged that those Plaintiff’s witnesses herein, have
injuries or disease related to their exposure to asbestos. In that connection, the
Defendant would make the following items subject to this Motion:
(a) Any mention of that witness' physical condition or the diagnosis of any
doctor or any of said witnesses, except to say that said witnesses had
or have a lawsuit in which they claim or claimed injury or disease;
(b) Of any mention that any witness may have settled his or her lawsuit with
one or more Defendants;
(c) Any mention that any witness has an increased risk of cancer, or that he
or she suffers from mental anguish or fear from any increased risk of
cancer.
Such matters are irrelevant and immaterial to this case. Furthermore, they
involve subjects which are only properly admissible by expert testimony and
would be hearsay to such witnesses. Any such testimony would be calculated
only to inflame and prejudice the jury.
GRANTED DENIED GIVEN
34. That no evidence, argument or other exhibit in any form be admitted alleging
Leslie Controls, Inc., is liable for the sale, distribution, application or
manufacture of any asbestos-containing product by any former or current
subsidiary or predecessor.
GRANTED DENIED. GIVEN
35. Any reference that Plaintiff, or any other lay witnesses, believe certain
consequences resulted from Plaintiff's exposure to products containing
asbestos.
GRANTED DENIED GIVEN
36. That any friend, relative, co-worker, or other specific individual who had been
exposed to asbestos suffered any injury as a result of said exposure or died
from an illness related to said exposure. Such evidence is irrelevant to
Plaintiff’s lawsuit, and would require that the other person's health be put in
issue and litigated, which would result in confusion and would mislead the jury.
Further, the health of other persons with alleged asbestos-related illnesses is
Koronczok v. Leslie Controls, et al. Page - 8 -
Defendant's Motion in Limine
totally immaterial and irrelevant to Plaintiff's claims, and calculated only to
prejudice Defendant in the eyes of the jury.
GRANTED DENIED GIVEN
37. That no mention be made of the fact that certain questions or certain lines of
questions were objected to by the attorneys in this case at the deposition of any
person deposed in this case, and that no reference be made to the comments
by and between the various attorneys who were present at the said depositions.
GRANTED DENIED GIVEN
38. Any mention or reference to school district asbestos-related litigation, asbestos
in schools, or any effects suffered by children as a result of exposure to
asbestos in schools.
GRANTED DENIED GIVEN
39. Any evidence of actual knowledge or awareness by other companies of the
hazards of asbestos-containing products, unless either:
(a) such knowledge or awareness was published in medical or scientific
literature;
(b) such knowledge or awareness was furnished directly to Leslie Controls,
Inc.,; and/or
(c) that companies are Defendants at trial and Leslie Controls, Inc., receive
an appropriate limiting instruction.
GRANTED DENIED GIVEN
40. The nature of Plaintiff’s counsel's legal practice, including the types of cases
handled by Plaintiff's counsel, and the types of clients represented by Plaintiff's
counsel.
GRANTED DENIED GIVEN
41. That Plaintiff's counsel be prohibited from introducing hearsay statements
through Plaintiff or Plaintiff's witnesses regarding statements made by doctors
or others believed to be in the same way associated with Defendant, unless and
until Plaintiff obtains an affirmative ruling from the Court that a proper predicate
Koronczok v. Leslie Controls, et al. Page -9-
Defendant's Motion in Limine
has first been laid showing that such doctors or other persons are (or were)
agents or employees of Defendant, in that such statements were made
concerning a matter within the course and scope of such agency or
employment, and that such statements were made during the existence of that
relationship.
GRANTED DENIED GIVEN
42. That Plaintiff, Plaintiff's counsel and Plaintiff's witnesses be instructed that they
are not permitted to inform the jury either directly or indirectly that Defendant
has voluntarily paid Plaintiff's medical expenses or any portion thereof, if any,
since such payment is immaterial and irrelevant to any fact issue to be
determined herein, and is not an admission that Plaintiff's claimed injury, if any,
was legally attributable to Defendant or Third-Party Defendants herein.
GRANTED DENIED GIVEN
43. Evidence tending to exhibit the net worth of Defendant as the probative value
of such evidence, if any, is greatly outweighed by the severe prejudicial effect
of such evidence; such evidence violates the due process clause and equal
protection clause of the United States Constitution; a Defendant's wealth or net
worth is an impermissible factor in the assessment of punitive damages as
punitive damages must be grounded in proof or specific misconduct; Robinson
v. California, 370 U.S. 660.
GRANTED DENIED. GIVEN
44. Defendant further moves the Court to prohibit any mention of the Wellington
Agreement, Wellington Group, Asbestos Claims Facility, or any other mention
indicating or identifying any agreements, litigation managements procedures,
centers, or facilities concerning the settlement, arbitration, resolution, and/or
trial of asbestos claims as such evidence is immaterial, irrelevant, and any
probative value is far outweighed by its prejudicial impact.
GRANTED DENIED GIVEN
45. Any reference to the bankruptcy of any company involved with asbestos or the
trusts, or trust funds created in connection with any such bankruptcy or
bankruptcies.
GRANTED DENIED. GIVEN
Koronczok v. Leslie Controls, et al. Page- 10-
Defendant’s Motion in Limine
cme
46 Any reference in a document, or the document itself, that relates to the
misconduct of a company that is not a Defendant in this trial. Tex. R. Evid.
402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995);
Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex. 1963).
GRANTED DENIED GIVEN
47. Any reference or conduct engaged in by a person or entity absent evidence that
one or more of the specific Defendants in this trial engaged in such conduct.
Tex. R. Evid. 402, 802; £./. du Pont de Nemours & Co., 923 S.W.2d 549, 556
(Tex. 1995); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337
(Tex. 1963).
GRANTED DENIED GIVEN
48. Any reference to attempts by a person or entity other than the specific
Defendants in this trial to alter a manuscript or article by any author, doctor, or
other scientific researcher. Tex. R. Evid. 402, 802; E./. du Pont de Nemours &
Co., 923 S.W.2d 549, 556 (Tex. 1995); Hartford Acc. & Indem. Co. v.
McCardell, 369 S.W.2d 331, 337 (Tex. 1963).
GRANTED DENIED. GIVEN
49. Any reference to attempts by a person or entity other than the specific
Defendants in this trial to oppose efforts to ban asbestos or to require that
warnings be placed on asbestos containing products or their containers. Tex.
R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex.
1995); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.
1963).
GRANTED DENIED GIVEN
50. Any reference to Plaintiffs in this case as “asbestos victims” or “victims” or
similar language meant to imply that Plaintiffs are victims of some conduct by
Defendants. They are merely Plaintiffs as in any other litigation. Lone Star
Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.-Houston [14" Dist.]
1993, no writ).
GRANTED DENIED GIVEN
non
51. Any reference to Defendants as “asbestos companies”, asbestos Defendants”,
“asbestos industry” or other similar language. Defendants should be referred
to as “Defendants” or by their proper corporate names. Lone Star Ford, Inc.
Koronczok v. Leslie Controls, et al. Page
- 11 -
Defendant’s Motion in Limine
v. Carter, 848 S.W.2d 850, 855 (Tex.App.—Houston [14" Dist.] 1993, no
writ).
GRANTED DENIED GIVEN
52. Any reference to defense counsel as “asbestos defense lawyers non
, asbestos
won
company lawyers , “asbestos industry lawyers” or similar language. Defense
counsel should be referred to as by name or as “defense counsel” or “defense
attorneys” or as counsel for a specific Defendant. Lone Star Ford, Inc. v.
Carter, 848 S.W.2d 850, 855 (Tex.App.—Houston [14" Dist.] 1993, no writ).
GRANTED DENIED. GIVEN
53. Any reference to any parties’ attorneys as “environmental lawyers”, or any
variance thereon. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855
(Tex. App.—Houston [14" Dist.] 1993, no writ).
GRANTED DENIED GIVEN
54. Any reference to a Defendant’s discovery responses made in a case other than
the one on trial. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923
S.W.2d 549, 556 (Tex. 1995); Hartford Acc. & Indem. Co. v. McCardell, 369
S.W.2d 331, 337 (Tex. 1963).
GRANTED DENIED. GIVEN
55. Any reference to Defendants having filed cross-actions against each other. Tex.
R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex.
1995).
GRANTED DENIED GIVEN
56. Any reference to any recovery of Plaintiff being shared with his attorney, or that
he has incurred expenses to bring this suit. Tex. R. Evid. 402, 802; E./. du Pont
de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Lone Star Ford, Inc. v.
Carter, 848 S.W.2d 850, 855 (Tex.App.—-Houston [14" Dist.] 1993, no writ).
GRANTED DENIED GIVEN
57. Any reference to the jury sending Defendants a message or any other language
which is calculated to have the jury assess damages based upon an emotional
response and not upon the evidence admitted, and the Court’s charge.
Southwestern Greyhound Lines, Inc. v. Dickson, 236 S.W.2d115, 119
(Tex.1951); Lone Star Ford, Inc. V. Carter, 848 S.W.2d 850, 855
(Tex.App.—-Houston [14"” Dist.] 1993, no writ).
Koronczok v. Leslie Controls, et al. Page
- 12 -
Defendant's Motion in Limine
“-_~
GRANTED DENIED GIVEN
58. Any reference to settlement negotiations, settlement demands or offers. Tex.
R. Evid. 408; Ford Motor Company v. Leggat, 904 S.W.2d 643, 649
(Tex.1995).
GRANTED DENIED GIVEN
59. Any reference to other asbestos lawsuits pending in Gregg County or
elsewhere, whether this Defendant is a party to that litigation or not, wherein
Plaintiffs are claiming damages stemming from exposure to asbestos as the
presence or absence of other litigation is immaterial to the issues in this suit.
Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556
(Tex. 1995); Clark Equipment Co. v. Pitner, 923 S.W.2d 117, 124-125
(Tex.App.—Houston [14 Dist.] 1996, writ den.).
GRANTED DENIED GIVEN
60. That asbestos or asbestos-containing insulation products being or having been
a nationwide causes of death. Tex. R. Evid. 402, 802; E./. du Pont de Nemours
& Co., 923 S.W.2d 549, 556 (Tex. 1995); Lone Star Ford, Inc. v. Carter, 848
S.W.2d 850, 855 (Tex.App.- Houston Dist.] 1993, 14"
no writ);
Southwestern Greyhound Lines, Inc. v. Dickson, 236 S.W.2d115, 119
(Tex.1951).
GRANTED DENIED GIVEN
61. Any reference to the jury setting the safety standards for Texas or any other
area. Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 857 (Tex.App.— San
Antonio 1977, writ ref’d n.r.e.).
GRANTED DENIED. GIVEN
62. Any reference to any objections by this Defendant to discovery requests
propounded by Plaintiff or as part of Master Discovery in any county or state.
Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556
(Tex. 1995).
GRANTED DENIED. GIVEN
63. Any statements or appeals to the jury to act as the conscience of the
community when deliberating or deciding the issues in this case. Southwestern
Greyhound Lines, Inc. v. Dickson, 236 S.W.2d115, 119 (Tex.1951); Lone Star
Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.—Houston {14" Dist.]
1993, no writ).
Koronczok v. Leslie Controls, et al. Page- 13-
Defendant's Motion in Limine
GRANTED DENIED GIVEN
64. Any reference to a witness, a relative of the Plaintiff or a relative of a witness
having filed or contemplating filing their own asbestos-related lawsuit, including
references to that person’s present physical condition, settlement of their suit,
or their increased risk of developing an asbestos-related illness in the future.
Tex. R. Evid. 402; F./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex.
1995).
GRANTED DENIED GIVEN
65. Any reference to Plaintiff having an increased risk of contracting cancer,
mesothelioma or other diseases unless prior to such reference there is offered
competent expert medical testimony that a specific person will in reasonable
medical probability contract cancer, mesothelioma or some other disease as a
result of his/her alleged asbestos exposure. Tex. R. Civ. Evid. 403; Gideon v.
Johns-Manville Sales Corp., 761 F.2d 1129, 1137-38 (5" Cir. 1985); Natural
Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632 (Tex.App.-Amarillo 2000,
rev. granted); Pustejavsky v. Rapid-American Corp., 35 S.1.3d 643 (Tex.
2000).
GRANTED DENIED. GIVEN
66 Any reference to Plaintiff’s fear of cancer or mesothelioma without a prior offer
in accordance with the procedure set forth in the preceding paragraph. Tex. R.
Evid. 403, 710, 802; Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129,
1137-38 (5" Cir. 1985); Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-
632 (Tex.App.—Amarillo 2000, rev. granted).
GRANTED DENIED GIVEN
67. Any reference to non-party clients of the attorney involved or any reference to
particular lawsuits or matters that the attorneys have handled as such matters
are immaterial to the issues to this suit. Tex. R. Evid. 402; E./. du Pont de
Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995).
GRANTED DENIED. GIVEN
68. Any reference to a Defendant paying its “fair share”, a “market share”, or
“enterprise share” as Texas does not recognize theories of recovery based upon
market share liability, enterprise liability or alternative liability. Cimino v.
Raymark Industries, Inc., 151 F.3d 297, 313-314 (5™ Cir. 1998).
Koronczok v. Leslie Controls, et al. Page - 14
Defendant's Motion in Limine
GRANTED DENIED. GIVEN
69. Any reference to juries in other asbestos cases having awarded damages,
whether compensatory or punitive, to other Plaintiffs as such matters are
immaterial to the issues in this suit. Tex. R. Evid. 402; £./. du Pont de Nemours
& Co., 923 S.W.2d 549, 556 (Tex. 1995); Clark Equipment Co. v. Pitner, 923
S.W.2d 117 (Tex.App—Houston [14* Dist.] 1996); Group Hosp. Services, Inc.
v. Daniel, 704 S.W.2d 870, 879-880 (Tex.App.—Corpus Christi 1985, no writ).
GRANTED DENIED GIVEN
70. Argument that Defendant was negligent for failure to recall its products which
contained asbestos as no such duty exists under the law of Texas. Tex. R. Evid.
402; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Bell
Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 531-532 (Tex.Civ.App.—Corpus
Christi 1979, writ ref’d n.r.e.).
GRANTED DENIED GIVEN
71. Any reference to any changes in a product, a product's warnings or instructions
made subsequent to the relevant periods of use or exposure in this suit. Tex.
R. Evid. 407; Brookshire Bros., Inc. v. Lewis; 911 S.W.2d 791, 795
(Tex.App.-Tyler 1995, writ den.).
GRANTED DENIED. GIVEN
72. Any reference to the principal place of business or place of incorporation of
Defendant or that it is not a Texas corporation. Tex. R. Evid. 402; £./. du Pont
de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Whitehead v. Food Max
of Mississippi, Inc., 163 F.3d 265, 276-277 (5*" Cir.); Lone Star Ford, Inc. v.
Carter, 848 S.W.2d 850, 855 (Tex.App.—-Houston [1 4" Dist.] 1993, no writ).
GRANTED DENIED. GIVEN
73. Any reference to members of the jury taking or not taking any amount of money
to be in the position of the Plaintiff or his family or any other language
attempting to have the jurors place themselves in the position of the Plaintiff or
his family. World Wide Tire Co. V. Brown, 644 S.W.2d 144
(Tex.App.—-Houston [14" Dist.] 1982, writ ref’d n.r.e.).
GRANTED DENIED GIVEN
74. Any reference to the emotional drain on the Plaintiff or his/her family, or similar
language conveying this type of appeal to the jury’s sympathy. Tex. R. Evid.
403; Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632
Koronczok v. Leslie Controls, et al. Page- 15 -
Defendant's Motion in Limine
{Tex.App.—Amarillo 2000, rev. granted); Missouri Pac. R. Co. v. Watson, 3465
S.W.2d 640 (Tex.Civ.App.-1961, writ ref. n.r.e.); Hobbs v. Slayton, 265
S.W.2d 838, 841 (Tex.Civ.App.-1954, writ ref. n.r.e.).
GRANTED DENIED GIVEN
75. Any reference to the Plaintiff or Plaintiff's family having to live with this illness,
disease or death, or similar language conveying this type of appeal to the jury’s
sympathy. Tex. R. Evid. 403; Natura/ Gas Pipeline Co. v. Pool, 30 S.W.3d 618,
631-632 (Tex.App.—Amarillo 2000, rev. granted); Missouri Pac. R. Co. v.
Watson, 346 S.W.2d 640 (Tex.Civ.App.-1961 writ ref. n.r.e.).
GRANTED DENIED GIVEN
76. Any evidence of any type, whether testimonial or documentary, which seeks to
impute the knowledge of one Defendant to another Defendant for the purpose
of showing actual knowledge. Tex. R. Evid. 403, 802; Natural Gas Pipeline Co.
v. Pool, 30 S.W.3d 618, 631-632 (Tex.App.—Amarillo 2000, rev. granted);
Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963).
GRANTED DENIED. GIVEN
77. Any testimony from a co-worker about products he/she may have used on job
sites where he was not working with the Plaintiff on whose behalf he is
testifying. Tex. R. Evid. 402; £./. du Pont de Nemours & Co., 923 S.W.2d 549,
556 (Tex. 1995).
GRANTED DENIED. GIVEN
78. Any reference to this Defendant being held strictly liable until Plaintiff offers
proof outside the presence of the jury that a product of this Defendant has
reached the consumer without substantial change in the condition in which it
was sold. Rourke v. Garza, 530 S.W.2d 794, 798, 801 (Tex.1975).
GRANTED DENIED. GIVEN
79. Any reference by Plaintiff to this Defendant’s alleged negligent failure to
adequately warn or failure to adequately warn until Plaintiff offers proof outside
the presence of the jury that Plaintiff read the allegedly inadequate warnings on
this Defendant’s products. Chandler v. Gene Messer Ford, Inc., 81 S.W.3d
493,505-506 (Tex.App.—Eastland 2002, n.w.h.).
GRANTED DENIED. GIVEN
Koronczok v. Leslie Controls, et al. Page- 16-
Defendant's Motion in Limine
80 Any reference to testing of Defendant’s products or testing of a product similar
to Defendant’s unless the materials used in the actual testing, any reports
generated by the testing, any videotaped simulation or memorialization of the
testing, and the underlying testing data have been produced to Defendant. Tex.
R. Evid. 403, 802; Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331,
337 (Tex.1963); Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632
(Tex.App.-Amarillo 2000, rev. granted); Lopez v. Foremost Paving, Inc., 796
S.W.2d 473,481 (Tex.App.—San Antonio 1990, no writ).
GRANTED DENIED GIVEN
81. Any mention or evidence of Defendant's marketing literature and advertising
unless it is first shown that Plaintiffs read such literature and relied upon such
literature. Tex. R. Evid. 402,802.
GRANTED DENIED. GIVEN
82. Any statements that Plaintiff have incurred in the past or will incur any medical
expenses which are not reflected by invoices, expert opinion or other
documentation tendered to all counsel by Plaintiff's attorney of record at least
30 days in advance of trial. Tex. R. Evid. 802; Tex. R. Civ. P. 193.5.
GRANTED DENIED GIVEN
83. Any reference to any additional research done or any opinions not previously
expressed or any modification of any previous opinion by any of Plaintiff's
expert witnesses in this case. Any additional research and any new or modified
Opinion to be expressed by Plaintiff's expert witnesses would serve as a surprise
to Defendant since all of Plaintiff's experts have been deposed. Norfolk
Southern Ry. Co. v. Bailey, 92 S.W.3d 577,580-81 (Tex.App.—Austin 2002
n.w.h.).
GRANTED DENIED. GIVEN
84. Any reference or testimony as to the charitable activities of any witness called
by Plaintiff including those of Dr. David Egilman, as it is not relevant to his
qualifications to give an opinion in this matter.
GRANTED DENIED GIVEN
85. Any reference to the charitable activities of Plaintiffs as it is not relevant to the
issues in this lawsuit and only serves to inflame the jury and arouse sympathy.
GRANTED DENIED. GIVEN
Koronczok v. Leslie Controls, et al. Page
- 17 -
Defendant’s Motion in Limine
86. Any responses or testimony of Plaintiff's own witnesses elicited by Plaintiff’s
counsel through improper leading questions on direct examination.
GRANTED DENIED GIVEN
87. Any reference to claims, lawsuits or settlements, now or in the past, against
this Defendant or any other Defendant, or the amount thereof. References to
other settlements is not admissible. Birchfield v. Texarkana Memorial Hospital,
747 S.W.2d 361,265 (Tex. 1987); Tex. R. Civ. Evid. 408. Furthermore,
evidence of other lawsuits is not relevant to any claim or defense in this action
and is therefore inadmissible under Tex. R. Civ. Evid. 401 and 402. Further, the
prejudicial value of the evidence would substantially outweigh the probative
value, and must be excluded under Tex. R. Civ. Evid. 403.
GRANTED DENIED GIVEN
88. Testimony about or reference to epidemiological studies or articles that do not
satisfy the minimum objective standards for relevance and reliability adopted by
the Texas Supreme Court in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953
S.W.2d 706 (Tex. 1997). Havner requires that to be admissible,
epidemiological studies must not only be relevant (i.e., the subjects of those
studies are substantially similar to the Plaintiffs at trial), but the studies must
also meet the objective criteria for reliability. Under Havner, the studies must
find a relative risk of two or more, have a confidence level of 95% or greater,
and have a con
Preview
— P20 CAUSE NO. 2005-07058 41 Ot [ow . F. ROMAN KORONCZOK § IN THE DISTRICT COURT OF Po wv % vs. DALLAS COUNTY, TEXAS. ANDERSON GREENWOOD & CO.; J “ae LESLIE CONTROLS, INC.; HOKE INCORPORATED, ET AL. § 298™ JUDICIAL DISTRICT TRANSFERRED CAUSE NO. DC-05-12927 FROM ASBESTOS F. ROMAN KORONCZOK § IN THE DISTRICT COURT OF § vs. § § DALLAS COUNTY, TEXAS ANDERSON GREENWOOD & CO.; § LESLIE CONTROLS, INC.; HOKE INCORPORATED, ET AL. ; 298™ JUDICIAL DISTRICT DEFENDANT LESLIE CONTROL, INC.'S MOTION IN LIMINE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant Leslie Controls, Inc., and before the case has begun, and before receipt of any evidence, makes and presents this its Motion in Limine, and would show unto the Court the following: | Defendant moves the Court to instruct counsel for the Plaintiffs, Plaintiff himself, and witnesses for said Plaintiffs to refrain from mentioning, referring, or eluding to, either directly or indirectly, during voir dire examination, opening statements, interrogation of witnesses, introduction of any evidence, opening or Koronczok v. Leslie Controls, et al. Page - 1 - Defendant's Motion in Limine RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging closing arguments, objections before the jury, reading of any portion of the pleadings, or by any other means or in any other manner any attempt to inform the jury, or bring to the jury's attention any of the matters set forth in the numbered paragraphs below, unless or until such matters have been first called to the attention of the Court, out of the presence and/or hearing of the jury, and a ruling obtained from the Court as to the admissibility and relevance of any of the matters set out hereinbelow. 1 That Defendant may have a liability insurance policy covering, in whole or in part, the occurrence or occurrences made the basis of this suit; or use of the word "insurance" in any form or fashion, either directly, or by implication. Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex.1962); Beall v. Ditmore, 867 S.W.2d 791, 794 (Tex.App.-El Paso 1993, writ den.). GRANTED DENIED. GIVEN 2 Any questioning of the jury panel with respect to whether any of the jurors are connected with the insurance industry in any manner, as well as similar questions, the exact language of which is impossible to anticipate, but which essentially are designed to convey the impression that Leslie Controls, Inc., has or may have insurance. GRANTED DENIED. GIVEN 3 Comparisons about the relative size or worth of Defendant, Leslie Controls, Inc., as compared to that of the Plaintiffs. GRANTED DENIED. GIVEN 4 That Defendant has failed to call any particular witness that would be equally available to either Plaintiff or Defendants or Third-Party Defendants through the subpoena process. GRANTED DENIED GIVEN 5 That there will probably be testimony or any reference to anticipated testimony of certain facts by witnesses who are not later called to testify at trial. Koronczok v. Leslie Controls, et al. Page- 2 - Defendant's Motion in Limine GRANTED DENIED. GIVEN 6 The existence or contents of any ex parte reports which have not been properly admitted into evidence with the author or custodian thereof present, either in person, by affidavit, deposition, or by agreement of the parties, and subject to cross-examination or objection by Defendant's counsel. GRANTED DENIED GIVEN 7 That Plaintiff or other witness has been told anything by any doctor, osteopath, or other medical witness concerning the Plaintiff's or witness’ physical condition, disability, or incapacity for the reason such revelation would refer to hearsay, not subject to proper cross-examination by Defendant's and Third-Party Defendants’ counsel, and for the further reason that such would be an attempt to introduce for the jury expert testimony without a proper predicate concerning the expert's qualifications and abilities to give such testimony. Tex. R. Evid. 701, 802; Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963). GRANTED DENIED GIVEN 8 That Plaintiff be prohibited from calling any witness, lay or expert, to testify at trial, other than the witnesses expressly identified by Plaintiff in Designation of Experts or as disclosed by agreement of the parties. GRANTED DENIED GIVEN 9 That Plaintiff be prohibited from offering any prior deposition or trial transcript testimony from any proceeding to which this Defendant was not a party. GRANTED DENIED GIVEN 10. That Plaintiff and Plaintiff's counsel be instructed not to make demands or requests before the jury for matters found or believed to be contained in Defendant's file, which would include statements, pleadings, photographs, and other documents; or make any other requests of Defendant or Defendant's counsel in the course of this trial and in the presence of the jury, since the only purpose for such requests would be to harass and embarrass Defendant before the jury, and such requests, if felt to be absolutely necessary could easily be made outside the presence and hearing of the jury, or at a time when the jury is not present in the courtroom. “_ Koronczok v. Leslie Controls, et al. Page - 3 - Defendant's Motion in Limine GRANTED DENIED GIVEN 11. That Plaintiff be prohibited from informing the jury in any way that answering any of the jury questions submitted in this case with any particular response would excuse, decrease, increase or maximize (or any other word of similar import) the payment, if any, to be made by Defendant or to Plaintiff, or that answering any jury question with any particular response would require that some other jury question be answered with a particular response. GRANTED DENIED GIVEN 12. That Plaintiff, Plaintiff’s counsel and Plaintiff's witnesses not mention or suggest to the jury that Defendant or any of Defendant’s employees are in the habit of doing any particular thing, or have a routine practice of doing any particular thing, unless and until it is first established outside the presence of the jury by sufficient probative evidence that there have occurred numerous instances of consistent specific behavior sufficient to raise the behavior in question to the status of "habit." GRANTED DENIED. GIVEN 13. From making any mention of, or suggesting to the jury, the manner in which Defendant has contested, settled, disposed of or paid any other claim in the past. GRANTED DENIED GIVEN 14. The "Golden Rule" or that the jury panel should "do unto others as you would have them do unto you." Fambrough v. Wagley, 169 S.W.2d 478, 480-481 (Tex.1943); Lone Star Ford, Inc. V. Carter, 848 S.W.2d 850, 855 (Tex. App.—Houston [14" Dist.] 1993, no writ). GRANTED DENIED GIVEN 15. From suggesting that the jury or the jury panel should attempt to make the Defendant "knows what the price of injustice is in our industry and/or community" or, "to send the Defendant’s management a message" or any such inflammatory and prejudicial language which is calculated to have the jury assess damages on some basis other than proper compensation as provided by the court's charge to the jury. GRANTED DENIED. GIVEN Koronczok v. Leslie Controls, et al. Page - 4- Defendant's Motion in Limine 16. Mentioning or stating before the jury that the Plaintiff is or may be under any financial hardships as such evidence is of no probative value and would serve only to prejudice the jury. GRANTED DENIED GIVEN 17. From stating that the Plaintiff's injuries have caused suffering, pain, distress, or any type of mental anguish to any family members other than the Plaintiff, in that none of these family members are parties to this cause of action. GRANTED DENIED. GIVEN 18. Any reference to any industry wide "conspiracy of silence." GRANTED DENIED GIVEN 19. The firm of Kent, Good & Anderson, P.C., attorneys for Defendant, specializes in handling insurance cases or specialize in the defense of lawsuits. GRANTED DENIED GIVEN 20. From mentioning that this Motion has been filed or any ruling by the Court in regard to this Motion, suggesting or inferring to the jury that Defendant or Third- Party Defendants have moved to prohibit proof or that the Court has excluded proof of any particular matter. GRANTED DENIED GIVEN 21. From mentioning that there were in the past, or are currently pending claims or lawsuits against this Defendant or any other firms, persons, corporations, or entities concerning asbestosis, cancer, mesothelioma, or any other physical condition alleged to be due, in whole or in part, to the inhalation or ingestion of asbestos. GRANTED DENIED GIVEN 22. From mentioning that asbestos-containing products have been declared defective or unreasonably dangerous by any Court or any other official entity, or by any jury. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995). Koronczok v. Leslie Controls, et al. Page- 5 - Defendant's Motion in Limine GRANTED DENIED. GIVEN 23. From mentioning the contents of newspaper or magazine articles or television programs about or concerning asbestos and disease. GRANTED DENIED GIVEN 24. From mentioning any testimony concerning the state of the medical and scientific knowledge at any time in the past with regard to exposure and working conditions of asbestos textile workers, asbestos manufacturing workers, asbestos mining workers, or any other type of worker whose exposure to asbestos may have been of a different type, quantity, quality and duration from that of this Plaintiff. GRANTED DENIED GIVEN 25. Mentioning workers' compensation claims, reports, studies, or compilations with regard to this Defendant. GRANTED DENIED. GIVEN 26. Any evidence of the state or knowledge of any party where such evidence is introduced, for any purpose, against a party not privy to the creation of such evidence. GRANTED DENIED. GIVEN 27. That no statement or argument be made with respect to a unit of time breaking down a time span into smaller parts of weeks, days or even hours and multiplying it by a dollar amount, because this is not permissible and would tend to produce an excessive verdict. See Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1239 (5th Cir. 1985). GRANTED DENIED. GIVEN 28. That neither Plaintiff, his witnesses, or counsel be permitted to display, show, mention or refer in any way to any pictures, movies, videotapes, or other electronic reproductions of any sort showing or intending to show any Plaintiff or other victim of any disease in a condition of ill health or weakness without first displaying said pictures, movies, videotapes, or electronic reproductions to the Judge and defense counsel outside the presence of the jury or any Koronczok v. Leslie Controls, et al. Page - 6 - Defendant's Motion in Limine prospective juror so that Defendant may have an opportunity to examine said items and make objections prior to the time that any juror or prospective juror is allowed to see or hear said items. Otherwise inadmissible and highly prejudicial material may be brought to the attention of the jurors and such materials would be of such a prejudicial nature that an instruction by the Court could not cure the error and a mistrial would be necessary. GRANTED DENIED GIVEN 29. That no photographic evidence, newspaper articles, or any other exhibits in any form be shown, exhibited, or placed in such position that prospective jurors and the jurors ultimately selected to try this case can in any way view or see such items without their being properly admitted into evidence beforehand. GRANTED DENIED. GIVEN 30. That Plaintiff and counsel for Plaintiff makes no reference that "since these Defendant is a corporation, it is without a heart and soul," or make any other reference implying that this Defendant as a corporation has any less rights under the law than a natural person. The fact that this Defendant is not a natural person is totally irrelevant to this suit and therefore inadmissible. Furthermore, any such reference is prejudicial and would unduly confuse the jury, and would be likewise contrary to the Court's instructions in this regard. GRANTED DENIED GIVEN 31. That Plaintiff be prohibited from commenting, referring to, or exhibiting any prior statement of any witness who is available at trial if such statements are offered for purposes other than impeachment or rebuttal. Such statements are inadmissible as hearsay, and not subject to any hearsay exception. GRANTED DENIED. GIVEN 32. That no mention be made or testimony given concerning the future consequences of any injury or disease in the absence of medical testimony beforehand that in reasonable medical probability the anticipated conditions will occur. GRANTED DENIED. GIVEN 33. Further, Defendant anticipates that Plaintiff will call certain witnesses in this case who have had or currently do have a pending lawsuit similar to the instant Koronczok v. Leslie Controls, et al. Page - 7 - Defendant’s Motion in Limine case in which it is or was alleged that those Plaintiff’s witnesses herein, have injuries or disease related to their exposure to asbestos. In that connection, the Defendant would make the following items subject to this Motion: (a) Any mention of that witness' physical condition or the diagnosis of any doctor or any of said witnesses, except to say that said witnesses had or have a lawsuit in which they claim or claimed injury or disease; (b) Of any mention that any witness may have settled his or her lawsuit with one or more Defendants; (c) Any mention that any witness has an increased risk of cancer, or that he or she suffers from mental anguish or fear from any increased risk of cancer. Such matters are irrelevant and immaterial to this case. Furthermore, they involve subjects which are only properly admissible by expert testimony and would be hearsay to such witnesses. Any such testimony would be calculated only to inflame and prejudice the jury. GRANTED DENIED GIVEN 34. That no evidence, argument or other exhibit in any form be admitted alleging Leslie Controls, Inc., is liable for the sale, distribution, application or manufacture of any asbestos-containing product by any former or current subsidiary or predecessor. GRANTED DENIED. GIVEN 35. Any reference that Plaintiff, or any other lay witnesses, believe certain consequences resulted from Plaintiff's exposure to products containing asbestos. GRANTED DENIED GIVEN 36. That any friend, relative, co-worker, or other specific individual who had been exposed to asbestos suffered any injury as a result of said exposure or died from an illness related to said exposure. Such evidence is irrelevant to Plaintiff’s lawsuit, and would require that the other person's health be put in issue and litigated, which would result in confusion and would mislead the jury. Further, the health of other persons with alleged asbestos-related illnesses is Koronczok v. Leslie Controls, et al. Page - 8 - Defendant's Motion in Limine totally immaterial and irrelevant to Plaintiff's claims, and calculated only to prejudice Defendant in the eyes of the jury. GRANTED DENIED GIVEN 37. That no mention be made of the fact that certain questions or certain lines of questions were objected to by the attorneys in this case at the deposition of any person deposed in this case, and that no reference be made to the comments by and between the various attorneys who were present at the said depositions. GRANTED DENIED GIVEN 38. Any mention or reference to school district asbestos-related litigation, asbestos in schools, or any effects suffered by children as a result of exposure to asbestos in schools. GRANTED DENIED GIVEN 39. Any evidence of actual knowledge or awareness by other companies of the hazards of asbestos-containing products, unless either: (a) such knowledge or awareness was published in medical or scientific literature; (b) such knowledge or awareness was furnished directly to Leslie Controls, Inc.,; and/or (c) that companies are Defendants at trial and Leslie Controls, Inc., receive an appropriate limiting instruction. GRANTED DENIED GIVEN 40. The nature of Plaintiff’s counsel's legal practice, including the types of cases handled by Plaintiff's counsel, and the types of clients represented by Plaintiff's counsel. GRANTED DENIED GIVEN 41. That Plaintiff's counsel be prohibited from introducing hearsay statements through Plaintiff or Plaintiff's witnesses regarding statements made by doctors or others believed to be in the same way associated with Defendant, unless and until Plaintiff obtains an affirmative ruling from the Court that a proper predicate Koronczok v. Leslie Controls, et al. Page -9- Defendant's Motion in Limine has first been laid showing that such doctors or other persons are (or were) agents or employees of Defendant, in that such statements were made concerning a matter within the course and scope of such agency or employment, and that such statements were made during the existence of that relationship. GRANTED DENIED GIVEN 42. That Plaintiff, Plaintiff's counsel and Plaintiff's witnesses be instructed that they are not permitted to inform the jury either directly or indirectly that Defendant has voluntarily paid Plaintiff's medical expenses or any portion thereof, if any, since such payment is immaterial and irrelevant to any fact issue to be determined herein, and is not an admission that Plaintiff's claimed injury, if any, was legally attributable to Defendant or Third-Party Defendants herein. GRANTED DENIED GIVEN 43. Evidence tending to exhibit the net worth of Defendant as the probative value of such evidence, if any, is greatly outweighed by the severe prejudicial effect of such evidence; such evidence violates the due process clause and equal protection clause of the United States Constitution; a Defendant's wealth or net worth is an impermissible factor in the assessment of punitive damages as punitive damages must be grounded in proof or specific misconduct; Robinson v. California, 370 U.S. 660. GRANTED DENIED. GIVEN 44. Defendant further moves the Court to prohibit any mention of the Wellington Agreement, Wellington Group, Asbestos Claims Facility, or any other mention indicating or identifying any agreements, litigation managements procedures, centers, or facilities concerning the settlement, arbitration, resolution, and/or trial of asbestos claims as such evidence is immaterial, irrelevant, and any probative value is far outweighed by its prejudicial impact. GRANTED DENIED GIVEN 45. Any reference to the bankruptcy of any company involved with asbestos or the trusts, or trust funds created in connection with any such bankruptcy or bankruptcies. GRANTED DENIED. GIVEN Koronczok v. Leslie Controls, et al. Page- 10- Defendant’s Motion in Limine cme 46 Any reference in a document, or the document itself, that relates to the misconduct of a company that is not a Defendant in this trial. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex. 1963). GRANTED DENIED GIVEN 47. Any reference or conduct engaged in by a person or entity absent evidence that one or more of the specific Defendants in this trial engaged in such conduct. Tex. R. Evid. 402, 802; £./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex. 1963). GRANTED DENIED GIVEN 48. Any reference to attempts by a person or entity other than the specific Defendants in this trial to alter a manuscript or article by any author, doctor, or other scientific researcher. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex. 1963). GRANTED DENIED. GIVEN 49. Any reference to attempts by a person or entity other than the specific Defendants in this trial to oppose efforts to ban asbestos or to require that warnings be placed on asbestos containing products or their containers. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex. 1963). GRANTED DENIED GIVEN 50. Any reference to Plaintiffs in this case as “asbestos victims” or “victims” or similar language meant to imply that Plaintiffs are victims of some conduct by Defendants. They are merely Plaintiffs as in any other litigation. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.-Houston [14" Dist.] 1993, no writ). GRANTED DENIED GIVEN non 51. Any reference to Defendants as “asbestos companies”, asbestos Defendants”, “asbestos industry” or other similar language. Defendants should be referred to as “Defendants” or by their proper corporate names. Lone Star Ford, Inc. Koronczok v. Leslie Controls, et al. Page - 11 - Defendant’s Motion in Limine v. Carter, 848 S.W.2d 850, 855 (Tex.App.—Houston [14" Dist.] 1993, no writ). GRANTED DENIED GIVEN 52. Any reference to defense counsel as “asbestos defense lawyers non , asbestos won company lawyers , “asbestos industry lawyers” or similar language. Defense counsel should be referred to as by name or as “defense counsel” or “defense attorneys” or as counsel for a specific Defendant. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.—Houston [14" Dist.] 1993, no writ). GRANTED DENIED. GIVEN 53. Any reference to any parties’ attorneys as “environmental lawyers”, or any variance thereon. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex. App.—Houston [14" Dist.] 1993, no writ). GRANTED DENIED GIVEN 54. Any reference to a Defendant’s discovery responses made in a case other than the one on trial. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex. 1963). GRANTED DENIED. GIVEN 55. Any reference to Defendants having filed cross-actions against each other. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995). GRANTED DENIED GIVEN 56. Any reference to any recovery of Plaintiff being shared with his attorney, or that he has incurred expenses to bring this suit. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.—-Houston [14" Dist.] 1993, no writ). GRANTED DENIED GIVEN 57. Any reference to the jury sending Defendants a message or any other language which is calculated to have the jury assess damages based upon an emotional response and not upon the evidence admitted, and the Court’s charge. Southwestern Greyhound Lines, Inc. v. Dickson, 236 S.W.2d115, 119 (Tex.1951); Lone Star Ford, Inc. V. Carter, 848 S.W.2d 850, 855 (Tex.App.—-Houston [14"” Dist.] 1993, no writ). Koronczok v. Leslie Controls, et al. Page - 12 - Defendant's Motion in Limine “-_~ GRANTED DENIED GIVEN 58. Any reference to settlement negotiations, settlement demands or offers. Tex. R. Evid. 408; Ford Motor Company v. Leggat, 904 S.W.2d 643, 649 (Tex.1995). GRANTED DENIED GIVEN 59. Any reference to other asbestos lawsuits pending in Gregg County or elsewhere, whether this Defendant is a party to that litigation or not, wherein Plaintiffs are claiming damages stemming from exposure to asbestos as the presence or absence of other litigation is immaterial to the issues in this suit. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Clark Equipment Co. v. Pitner, 923 S.W.2d 117, 124-125 (Tex.App.—Houston [14 Dist.] 1996, writ den.). GRANTED DENIED GIVEN 60. That asbestos or asbestos-containing insulation products being or having been a nationwide causes of death. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.- Houston Dist.] 1993, 14" no writ); Southwestern Greyhound Lines, Inc. v. Dickson, 236 S.W.2d115, 119 (Tex.1951). GRANTED DENIED GIVEN 61. Any reference to the jury setting the safety standards for Texas or any other area. Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 857 (Tex.App.— San Antonio 1977, writ ref’d n.r.e.). GRANTED DENIED. GIVEN 62. Any reference to any objections by this Defendant to discovery requests propounded by Plaintiff or as part of Master Discovery in any county or state. Tex. R. Evid. 402, 802; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995). GRANTED DENIED. GIVEN 63. Any statements or appeals to the jury to act as the conscience of the community when deliberating or deciding the issues in this case. Southwestern Greyhound Lines, Inc. v. Dickson, 236 S.W.2d115, 119 (Tex.1951); Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.—Houston {14" Dist.] 1993, no writ). Koronczok v. Leslie Controls, et al. Page- 13- Defendant's Motion in Limine GRANTED DENIED GIVEN 64. Any reference to a witness, a relative of the Plaintiff or a relative of a witness having filed or contemplating filing their own asbestos-related lawsuit, including references to that person’s present physical condition, settlement of their suit, or their increased risk of developing an asbestos-related illness in the future. Tex. R. Evid. 402; F./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995). GRANTED DENIED GIVEN 65. Any reference to Plaintiff having an increased risk of contracting cancer, mesothelioma or other diseases unless prior to such reference there is offered competent expert medical testimony that a specific person will in reasonable medical probability contract cancer, mesothelioma or some other disease as a result of his/her alleged asbestos exposure. Tex. R. Civ. Evid. 403; Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137-38 (5" Cir. 1985); Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632 (Tex.App.-Amarillo 2000, rev. granted); Pustejavsky v. Rapid-American Corp., 35 S.1.3d 643 (Tex. 2000). GRANTED DENIED. GIVEN 66 Any reference to Plaintiff’s fear of cancer or mesothelioma without a prior offer in accordance with the procedure set forth in the preceding paragraph. Tex. R. Evid. 403, 710, 802; Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1137-38 (5" Cir. 1985); Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631- 632 (Tex.App.—Amarillo 2000, rev. granted). GRANTED DENIED GIVEN 67. Any reference to non-party clients of the attorney involved or any reference to particular lawsuits or matters that the attorneys have handled as such matters are immaterial to the issues to this suit. Tex. R. Evid. 402; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995). GRANTED DENIED. GIVEN 68. Any reference to a Defendant paying its “fair share”, a “market share”, or “enterprise share” as Texas does not recognize theories of recovery based upon market share liability, enterprise liability or alternative liability. Cimino v. Raymark Industries, Inc., 151 F.3d 297, 313-314 (5™ Cir. 1998). Koronczok v. Leslie Controls, et al. Page - 14 Defendant's Motion in Limine GRANTED DENIED. GIVEN 69. Any reference to juries in other asbestos cases having awarded damages, whether compensatory or punitive, to other Plaintiffs as such matters are immaterial to the issues in this suit. Tex. R. Evid. 402; £./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Clark Equipment Co. v. Pitner, 923 S.W.2d 117 (Tex.App—Houston [14* Dist.] 1996); Group Hosp. Services, Inc. v. Daniel, 704 S.W.2d 870, 879-880 (Tex.App.—Corpus Christi 1985, no writ). GRANTED DENIED GIVEN 70. Argument that Defendant was negligent for failure to recall its products which contained asbestos as no such duty exists under the law of Texas. Tex. R. Evid. 402; E./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 531-532 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n.r.e.). GRANTED DENIED GIVEN 71. Any reference to any changes in a product, a product's warnings or instructions made subsequent to the relevant periods of use or exposure in this suit. Tex. R. Evid. 407; Brookshire Bros., Inc. v. Lewis; 911 S.W.2d 791, 795 (Tex.App.-Tyler 1995, writ den.). GRANTED DENIED. GIVEN 72. Any reference to the principal place of business or place of incorporation of Defendant or that it is not a Texas corporation. Tex. R. Evid. 402; £./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995); Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265, 276-277 (5*" Cir.); Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 855 (Tex.App.—-Houston [1 4" Dist.] 1993, no writ). GRANTED DENIED. GIVEN 73. Any reference to members of the jury taking or not taking any amount of money to be in the position of the Plaintiff or his family or any other language attempting to have the jurors place themselves in the position of the Plaintiff or his family. World Wide Tire Co. V. Brown, 644 S.W.2d 144 (Tex.App.—-Houston [14" Dist.] 1982, writ ref’d n.r.e.). GRANTED DENIED GIVEN 74. Any reference to the emotional drain on the Plaintiff or his/her family, or similar language conveying this type of appeal to the jury’s sympathy. Tex. R. Evid. 403; Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632 Koronczok v. Leslie Controls, et al. Page- 15 - Defendant's Motion in Limine {Tex.App.—Amarillo 2000, rev. granted); Missouri Pac. R. Co. v. Watson, 3465 S.W.2d 640 (Tex.Civ.App.-1961, writ ref. n.r.e.); Hobbs v. Slayton, 265 S.W.2d 838, 841 (Tex.Civ.App.-1954, writ ref. n.r.e.). GRANTED DENIED GIVEN 75. Any reference to the Plaintiff or Plaintiff's family having to live with this illness, disease or death, or similar language conveying this type of appeal to the jury’s sympathy. Tex. R. Evid. 403; Natura/ Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632 (Tex.App.—Amarillo 2000, rev. granted); Missouri Pac. R. Co. v. Watson, 346 S.W.2d 640 (Tex.Civ.App.-1961 writ ref. n.r.e.). GRANTED DENIED GIVEN 76. Any evidence of any type, whether testimonial or documentary, which seeks to impute the knowledge of one Defendant to another Defendant for the purpose of showing actual knowledge. Tex. R. Evid. 403, 802; Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632 (Tex.App.—Amarillo 2000, rev. granted); Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963). GRANTED DENIED. GIVEN 77. Any testimony from a co-worker about products he/she may have used on job sites where he was not working with the Plaintiff on whose behalf he is testifying. Tex. R. Evid. 402; £./. du Pont de Nemours & Co., 923 S.W.2d 549, 556 (Tex. 1995). GRANTED DENIED. GIVEN 78. Any reference to this Defendant being held strictly liable until Plaintiff offers proof outside the presence of the jury that a product of this Defendant has reached the consumer without substantial change in the condition in which it was sold. Rourke v. Garza, 530 S.W.2d 794, 798, 801 (Tex.1975). GRANTED DENIED. GIVEN 79. Any reference by Plaintiff to this Defendant’s alleged negligent failure to adequately warn or failure to adequately warn until Plaintiff offers proof outside the presence of the jury that Plaintiff read the allegedly inadequate warnings on this Defendant’s products. Chandler v. Gene Messer Ford, Inc., 81 S.W.3d 493,505-506 (Tex.App.—Eastland 2002, n.w.h.). GRANTED DENIED. GIVEN Koronczok v. Leslie Controls, et al. Page- 16- Defendant's Motion in Limine 80 Any reference to testing of Defendant’s products or testing of a product similar to Defendant’s unless the materials used in the actual testing, any reports generated by the testing, any videotaped simulation or memorialization of the testing, and the underlying testing data have been produced to Defendant. Tex. R. Evid. 403, 802; Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963); Natural Gas Pipeline Co. v. Pool, 30 S.W.3d 618, 631-632 (Tex.App.-Amarillo 2000, rev. granted); Lopez v. Foremost Paving, Inc., 796 S.W.2d 473,481 (Tex.App.—San Antonio 1990, no writ). GRANTED DENIED GIVEN 81. Any mention or evidence of Defendant's marketing literature and advertising unless it is first shown that Plaintiffs read such literature and relied upon such literature. Tex. R. Evid. 402,802. GRANTED DENIED. GIVEN 82. Any statements that Plaintiff have incurred in the past or will incur any medical expenses which are not reflected by invoices, expert opinion or other documentation tendered to all counsel by Plaintiff's attorney of record at least 30 days in advance of trial. Tex. R. Evid. 802; Tex. R. Civ. P. 193.5. GRANTED DENIED GIVEN 83. Any reference to any additional research done or any opinions not previously expressed or any modification of any previous opinion by any of Plaintiff's expert witnesses in this case. Any additional research and any new or modified Opinion to be expressed by Plaintiff's expert witnesses would serve as a surprise to Defendant since all of Plaintiff's experts have been deposed. Norfolk Southern Ry. Co. v. Bailey, 92 S.W.3d 577,580-81 (Tex.App.—Austin 2002 n.w.h.). GRANTED DENIED. GIVEN 84. Any reference or testimony as to the charitable activities of any witness called by Plaintiff including those of Dr. David Egilman, as it is not relevant to his qualifications to give an opinion in this matter. GRANTED DENIED GIVEN 85. Any reference to the charitable activities of Plaintiffs as it is not relevant to the issues in this lawsuit and only serves to inflame the jury and arouse sympathy. GRANTED DENIED. GIVEN Koronczok v. Leslie Controls, et al. Page - 17 - Defendant’s Motion in Limine 86. Any responses or testimony of Plaintiff's own witnesses elicited by Plaintiff’s counsel through improper leading questions on direct examination. GRANTED DENIED GIVEN 87. Any reference to claims, lawsuits or settlements, now or in the past, against this Defendant or any other Defendant, or the amount thereof. References to other settlements is not admissible. Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361,265 (Tex. 1987); Tex. R. Civ. Evid. 408. Furthermore, evidence of other lawsuits is not relevant to any claim or defense in this action and is therefore inadmissible under Tex. R. Civ. Evid. 401 and 402. Further, the prejudicial value of the evidence would substantially outweigh the probative value, and must be excluded under Tex. R. Civ. Evid. 403. GRANTED DENIED GIVEN 88. Testimony about or reference to epidemiological studies or articles that do not satisfy the minimum objective standards for relevance and reliability adopted by the Texas Supreme Court in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). Havner requires that to be admissible, epidemiological studies must not only be relevant (i.e., the subjects of those studies are substantially similar to the Plaintiffs at trial), but the studies must also meet the objective criteria for reliability. Under Havner, the studies must find a relative risk of two or more, have a confidence level of 95% or greater, and have a con