Preview
@ Flled
07 June 27 P1:36
isso
Distt Clerk
Hans District
ASBESTOS MDL CASE
CAUSE NO. 2006-71957
BILL A. PARKER IN THE DISTRICT COURT
Plaintiff,
vs. HARRIS COUNTY, TEXAS
ALFA LAVAL, INC., et al.,
Defendants. 11" JUDICIAL DISTRICT
TRANSFERRED FROM
CAUSE NO. 06-11195
BILL A. PARKER IN THE DISTRICT COURT
Plaintiff,
vs. DALLAS COUNTY, TEXAS
ALFA LAVAL, INC., et al.,
Defendants. J-191* JUDICIAL DISTRICT
DEFENDANT IMO INDUSTRIES INC.’S AMENDED
MOTION/ORDER IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendant, IMO Industries Inc. (hereinafter IMO), who respectfully
requests that upon the calling of this case to trial, and before the voir dire examination of the
jury, opening statements of counsel to the jury, and the introduction of any evidence, that the
Court instruct Plaintiffs, counsel for Plaintiffs, and all of the Plaintiffs’ witnesses through such
counsel, to refrain from making any mention through interrogation, either directly or indirectly,
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at any stage of the trial of these cases concerning any of the matters set forth in the attached
order, without first approaching the bench and obtaining a ruling of the Court outside the
presence and hearing of all prospective jurors and the jurors ultimately selected to try this case.
1 Defendant further requests that this Court order counsel for Plaintiffs to instruct
all witnesses called by Plaintiffs not to volunteer, disclose, state or mention to the jury any of the
matters set forth in the attached order, unless questioned thereon after a prior ruling by this
Court.
2 Defendant also requests that this Court order that the violation of any or all these
instructions would constitute harm to Defendant and would deprive them of a fair and impartial
trial, and instruct counsel for Plaintiffs that the failure to abide by such order of the Court may
constitute contempt and necessitate a mistrial. Dove v. State Employees Workers Compensation
Division, 857 S.W,2d 577, 588 (Tex. App.--Houston [1st Dist.] 1993, writ denied) (Violations of
an order in limine are incurable if instructions to jury will not eliminate prejudice.)
3 The matters set forth in the attached order would be inadmissible for any purpose,
on proper objection, and they have no bearing on the issues in these cases or the rights of the
parties to this action. Permitting interrogation of witnesses, comments to jurors or prospective
jurors, or offers of evidence concerning these matters would prejudice the jury, and sustaining
objections to such questions, comments, or offers would not cure the prejudice, but reinforce it in
the minds of the jurors.
4, Defendant also moves the Court that should any matters set forth above become
material, relevant or admissible, that Plaintiffs should bring such matters to the Court’s attention
outside the presence of the jury and should receive a favorable ruling thereon before mentioning
those items before the jury. Failure of the Court to grant this motion will allow opposing counsel
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and their client a free hand to inject such inadmissible and prejudicial matters as listed above
before the jury, and that even an objection, timely and properly sustained, would not prevent the
injury Defendant would suffer.
The specific actions and/or matters which Defendant requests this Court include within
this Order in Limine are as follows:
LIABILITY INSURANCE: Plaintiffs’ counsel mentioning or asking any
questions, directly or indirectly, about liability insurance since the issue of
whether or not Defendant is protected by liability insurance is immaterial to any
issue before the jury and would be prejudicial. Dennis v. Hulse, 362 S.W.2d 308
(Tex. 1962); Jacobini v. Hall, 719 S.W.2d 396, 401 (Tex. App. -- Fort Worth
1986, writ refd n.r.e.); Ford v. Carpenter, 216 S.W.2d 558 (Tex. 1949).
AGREED GRANTED — DENIED — WITHDRAWN
BANKRUPT/INSOLVENT DEFENDANTS: Plaintiffs’ counsel mentioning or
offering into evidence the fact that any Defendant or potential responsible third
parties are bankrupt. Such testimony would create a substantial danger of unduly
prejudicing Defendant and misleading the jury. TEX. R. EVID. 401, 402, 403.
AGREED — GRANTED — DENIED — WITHDRAWN
COSTS PAID BY INSURANCE: Plaintiffs’ counsel mentioning or offering
into evidence that any portion of the costs, investigation, defense or judgment that
may be rendered herein will be paid by or was undertaken on behalf of any
insurance company.
AGREED GRANTED — DENIED — WITHDRAWN
REFERENCES TO INSURANCE EMPLOYEES WHEN QUESTIONING
WITNESSES; Plaintiffs’ counsel using or referencing the terms “insurance
adjuster,” “adjuster,” “claims man,” or any other term that would lead the jury to
believe that liability insurance is or has been involved in this case for the reason
that the same improperly interjects insurance into the case. Atchinson, Topeka &
Santa Fe Ry. v. Acosta, 435 S.W.2d 539, 549 (Tex. Civ. App. -- Houston [Ist
Dist.] 1968, writ ref d n.r.e.)
AGREED GRANTED DENIED WITHDRAWN
5. “REGARDLESS OF WHO PAYS” Plaintiffs’ counsel interrogating the jury
panel as to whether they would answer an issue of damages in accordance with
DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE. Page 3 of 41
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the evidence, regardless of who pays the damages or when they will be paid, or
whether they will ever be paid, or any similar version of such inquiry for the
reason that the same improperly injects the implication of insurance into the suit,
or making any such reference in jury argument of similar vein, Hurley v.
McMillan, 268 S.W.2d 229 (Tex. Civ. App. -- Galveston 1954, writ ref’d n.t.c.);
Griffith v. Casteel, 313 S.W.2d 149 (Tex. Civ. App. -- Houston 1958, writ ref’d
ne),
AGREED — GRANTED — DENIED —_ WITHDRAWN
MEDICAL EXPENSES: Any attempt by Plaintiffs to introduce any evidence or
mention information related to the amount of Plaintiffs medical expenses related
to the injury made the basis of this lawsuit until such time as proper predicate has
been laid establishing that the medical expenses were reasonable and necessary
and related to the injury made the basis of this lawsuit. Tex. Civil P. Rem. Code
§18.001. See also Jackson v. Gutierrez, 77 S.W.3d 898 (Tex. App. — Houston)
2002 and Rodriguez-Navarra v. Ridinger, S.W.3d 531 (Tex. App. — Fort Worth)
2000.
AGREED GRANTED DENIED — WITHDRAWN —
COMPARISON OF WEALTH: During the liability phase of this trial,
Plaintiffs’ counsel comparing or assessing the relative wealth of Plaintiff and
Defendant. Muro v. Houston Fire and Casualty Ins. Co., 329 S.W.2d 326 (Tex.
Civ. App.—San Antonio 1959, writ ref'd n.r.e.); El Paso Development Co. v.
Ravel, 339 S.W.2d 360 (Tex. Civ. App.—El Paso 1960, writ ref’d n.t.e.); Otto
Vehle v. Reserve law Officers Assn. v. Brenner, 590 $.W.2d 147, 151 (Tex. Civ.
App.—San Antonio 1979, no writ); Mortgage Co. of America v. McCord, 466
S.W.2d 868 (Tex. Civ, App. 1971, writ ref’d n.r.e).
AGREED GRANTED — DENIED — WITHDRAWN
DEFENDANTS’ COMMITMENT OF RESOURCES: Plaintiffs’ counsel
making any references to the amount of money Defendant has spent to defend this
case. The Texas Constitution provides litigants with a right to a trial by jury and
the right to a fair and impartial trial. Tex. Const., art. 1, §15. Any such statement
is improper and unfairly prejudicial. Nickens v. State, 604 $.W.2d 101, 104 (Tex.
Crim. App. 1980).
AGREED — GRANTED — DENIED — WITHDRAWN
LOST EARNINGS: Plaintiffs’ counsel eliciting any testimony or other evidence
in support of Plaintiffs’ claims for lost earnings unless and until the Court, outside
the presence of the jury or jury panel, has determined that such testimony is
adequately supported by documentary evidence, is not speculative, and is timely
DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 4 of 41
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disclosed. River Oaks Townhomes Owners’ Ass’n, Inc. v. Bunt, 712 $.W.2d 529
(Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.re.).
AGREED GRANTED DENIED WITHDRAWN
10. PLAINTIFF’S LACK OF INSURANCE: Plaintiffs’ counsel mentioning or
referencing that Plaintiff does not have insurance to compensate Plaintiff for any
injuries and/or damages.
AGREED — GRANTED DENIED WITHDRAWN
11 CONTINGENCY FEES AND EXPENSES: Plaintiffs’ counsel mentioning or
referencing in any way that any recovery by Plaintiffs in this matter will be shared
with his/her attorney, or that he/she has been required to incur expenses to bring
this suit.
AGREED GRANTED DENIED — WITHDRAWN —
12, SIZE OF LAW FIRMS: Plaintiffs’ counsel mentioning or referencing the
number of attorneys or legal assistants or the location of Defendant's attorneys’
law firm.
AGREED GRANTED — DENIED WITHDRAWN —
13. OTHER CASES INVOLVING COUNSEL: Plaintiffs’ counsel mentioning or
commenting to the jury about any other case in which counsel for Defendant or
counsel for Plaintiffs may have been involved, except with expert witnesses.
AGREED GRANTED — DENIED WITHDRAWN
14. DEFENDANTS’ ATTORNEYS: Plaintiffs’ counsel mentioning that
Defendant’s attorneys represent insurance companies in litigation or referencing
when, why or how Defendant employed its counsel to represent it in this suit.
AGREED GRANTED. DENIED — WITHDRAWN —
15, REFERENCE TO PLAINTIFF’S ATTORNEYS: Plaintiffs’ counsel
mentioning or referencing Plaintiffs’ lawyers or their law firms as “toxic tort
prosecutors, 4 ‘environmental lawyers,” or any other reference to Plaintiffs’
counsel suggesting that they constitute enforcers of the law or identifying them
with the better part of human nature. This includes suggestions that Defendant’s
counsel or Defendant represents some contrary or evil interest which is against
society’s best interests.
AGREED — GRANTED — DENIED WITHDRAWN
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16 SIDEBAR PORTIONS OF DEPOSITIONS: Plaintiffs’ counsel mentioning,
referencing, or attempting to read to the jury any nonrelevant exchanges between
counsel for Plaintiffs and counsel for Defendant during depositions or in other
discovery responses.
AGREED — GRANTED — DENIED —_— WITHDRAWN —
17. QUESTIONS TO DEFENSE COUNSEL: Plaintiffs’ counsel posing any
questions to Defendant’s counsel in front of the jury.
AGREED — GRANTED —_— DENIED — WITHDRAWN
18 LACK OF CORPORATE REPRESENTATIVE: Plaintiffs’ counsel
mentioning or referencing the presence or absence of a corporate representative
on behalf of Defendant. The Texas Rules of Civil Procedure specifically provide
that a party may prosecute or defend either in person or through an attorney. R. 7.
The presence or absence of a corporate representative has no tendency to make
the existence of any fact that is of consequence to the determination of the action
more or less probable. TEX. R. EVID. 401, 402, 403; MCCORMICK -
EVIDENCE § 185 at 433-35 (2d ed. 1972).
AGREED — GRANTED — DENIED — WITHDRAWN —
19. CORPORATE STATUS: Plaintiffs’ counsel mentioning or referencing in any
manner that, since Defendant is a corporation, it is without a heart and soul, or
make any other reference implying that Defendant as a corporation has any less
rights under the law than a natural person. The fact that Defendant is not a natural
person is totally irrelevant to this suit and therefore inadmissible under Rules 401
and 402 of the Texas Rules of Evidence. Furthermore, any reference to the fact
that Defendant is a financially solvent entity, or any related inference, is
irrelevant, prejudicial, and would unduly confuse the jury and is therefore
inadmissible under Rule 403 of the Texas Rules of Evidence.
AGREED GRANTED — DENIED — WITHDRAWN —
20. EFFECT OF JURY’S ANSWERS: Plaintiffs’ counsel mentioning, referencing
or inferring anything which might tend to inform the jury of the effect of their
answers to the questions posed in the charge, including any comments to the
effect that if questions are not answered in a certain way that no recovery would
be had. Cooper v. Argonaut Ins. Co., 430 S.W.2d 35 (Tex. Civ. App. -- Dallas
1968, writ ref'd n.r.e.); Mayes v. City of Midland, 780 S.W.2d 903 (Tex. App. --
El Paso 1989, writ denied).
AGREED GRANTED — DENIED — WITHDRAWN —
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21 TRADING PLACES; Plaintiffs’ counsel suggesting or asking the jurors to place
themselves in the position of Plaintiff because this is an improper appeal to
passions and sympathies. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850 (Tex.
App. -Houston [14th Dist.] 1993, n.w.h.); Gulf, Colorado & Santa Fe Railway
CO. v. Hampton, 358 S.W.2d 690 (Tex. Civ. App. -- Eastland 1962, writ ref’'d
n.r.e.),
AGREED — GRANTED — DENIED WITHDRAWN
22 GOLDEN RULE: Plaintiffs’ counsel mentioning or referencing any statement
that calls upon the members of the panel or the jury to treat the Plaintiffs as they
would want to be treated. This violates the prohibition against evoking the
“Golden Rule.” This includes statements such as asking the jury to, “think about
the person you love most in your whole life...Do you understand that you would
be asking twelve people in a jury to set a value on your loved one’s life?”
AGREED — GRANTED — DENIED — WITHDRAWN —
23. FAMILY OR FRIENDS ALLEGED EXPOSURE TO ASBESTOS OR
THEIR ALLEGED ILLNESSES: Plaintiffs’ counsel mentioning or referencing
the alleged exposure of family members or friends to asbestos-containing
products or their alleged illnesses or death as a result of such exposure because
the same is irreparably prejudicial and incurable by instruction. Such evidence is
“substantially outweighed” by the danger of unfair prejudice, confusion of the
issues, misleading the jury, and by considerations of delay, and not relevant to any
issue in this case. TEX. R. EVID, 401, 402, 403. In addition, such testimony
allows into evidence rank hearsay and expert medical opinions which must come
from a qualified expert witness,
AGREED — GRANTED — DENIED WITHDRAWN
24, NON-PARTY WITNESSES: Exclusion of all non-party witnesses from the
courtroom except for expert witnesses. With regard to expert witnesses, courts
have held that it is appropriately within the discretion of the trial court to allow
such experts to be present in order to hear testimony that may be pertinent to their
own expert opinion. TEX. R, EVID. 614; Elbar, Inc. v. Claussen, 774 S.W.2d 45.
51-51 (Tex. App.—Dallas 1989, writ dism’d),; Moore v. State, 493 S.W.2d 844,
845 (Tex. Crim.App. 1973).
AGREED GRANTED DENIED — WITHDRAWN
25. ABSENT WITNESSES: Plaintiffs’ counsel mentioning or making reference to
the failure to call any witness that is equally available to all parties or any witness
that is not available to or under the control of Defendant or tendering, referring to,
reading from, offering or exhibiting any ex parte statements or reports from any
witness who is not then and there present in Court to testify and subject to
DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 7 of 41
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examination by Defendant’s counsel. Highway Insurance Underwriters v. Lufkin,
215 S.W.2d 904, 914 (Tex. Civ. App. -- Beaumont 1948, writ ref’d n.r.e.); Texas
Power & Light Co. v, Walker, 559 S.W.2d 403, 406 (Tex. Civ. App. -- Texarkana
1977, no writ); Grogan v. Sanitos, 617 S.W.2d 312 (Tex. Civ. App. -- Tyler 1981,
no writ).
AGREED — GRANTED — DENIED — WITHDRAWN
26. PROBABLE TESTIMONY: Plaintiffs’ counsel mentioning or stating to the
jury the probable testimony of a witness who is absent, unavailable, or not called.
Also, mentioning any failure on the part of Defendant to call any expert witness
employed to express an opinion. Boyles v. Houston Lighting & Power Co., 464
S.W.2d 359 (Tex. 1971).
AGREED GRANTED DENIED — WITHDRAWN —
27 UNDISCLOSED PRODUCTS AND WORK SITES: Plaintiffs’ counsel
mentioning, referencing or offering any evidence regarding exposure to
Defendant’s contractors, products and work sites not divulged to Defendant in the
Plaintiff's and product identification witnesses’ depositions, work history sheets,
or in response to written discovery requests. In addition, Plaintiffs and co-
workers should be prevented from testifying about or mentioning work sites,
contractors or products not disclosed in their responses to discovery or
depositions. This tactic would unfairly surprise Defendant by interjecting fact
situations not disclosed during discovery. Sharp v. Broadway National Bank, 784
S$.W.2d 669 (Tex. 1990); Yeldell v. Holiday Hills Ret. & Nursing, 701 S.W.2d
243 (Tex. 1985); E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363 (Tex.
1987).
AGREED — GRANTED — DENIED — WITHDRAWN —
28. OF SUPERSEDED INTERROGATORY ANSWERS: Plaintiffs’ counsel
making any reference to or use of superseded interrogatory answers as direct
evidence; except to be used for impeachment.
AGREED — GRANTED — DENIED — WITHDRAWN
29. PRODUCTS USED BY CO-WORKER: Plaintiffs’ counsel making any
attempt to elicit or introduce testimony from an alleged co-worker of Plaintiff
regarding asbestos-containing products that he/she worked with and around
wherein he/she alleged he/she breathed respirable asbestos dust unless the
testimony establishes that Plaintiff was present and working with the alleged co-
worker at the time of the alleged exposure. Otherwise, the co-worker’s testimony
amounts to nothing more than speculation or conjecture regarding what
“exposure” to respirable asbestos Plaintiff might have had at a worksite that co-
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worker might have also been employed with at a particular point in time. This
testimony would be unfairly prejudicial and is not probative. TEX.R.EVID. 403.
AGREED — GRANTED — DENIED —_— WITHDRAWN
30. USE OF ASBESTOS-CONTAINING PRODUCTS: Plaintiffs’ counsel
mentioning, implying or introducing evidence regarding any asbestos-containing
products manufactured or sold by Defendant that Plaintiff did not specifically
identify working with or around where he alleges he breathed respirable asbestos
because such would be irrelevant and would be calculated to confuse and
prejudice the jury. TEX. R. EVID. 401, 402, 403; See In Re Sears, Roebuck and
Co.,123 §.W.3d 573, 578-79 (Tex. App.Houston [14th Dist.] 2003, no
pet.)(holding that "it is not enough...to guess what products may have injured a
plaintiff. Nor is it enough that a plaintiff was ‘at least potentially exposed‘ to a
product...Instead, recovery is available only from those whose products caused
[plaintiff's] disease."); see also Gaulding v. Celotex Corp., 772 S.W.2d 66, 71
(Tex. 1989)(rejecting market-share theory of liability in asbestos litigation),
AGREED — GRANTED — DENIED — WITHDRAWN
31 ILLNESSES/DEATHS OF CO-WORKERS: Plaintiffs’ counsel eliciting
testimony or other evidence offered by any friend or co-worker of Plaintiff,
wherein it is attempted to show any health condition, death, or illness that the
friend and/or co-worker allegedly has and try to associate the health condition of
the friend and/or co-worker to Plaintiff. Such attempt to link unrelated and
unproven health conditions is entirely irrelevant to any issue to be tried in this
case, and would only result in unfairly prejudicing the jury against Defendant.
AGREED GRANTED — DENIED — WITHDRAWN —
32, REFERENCES TO ALLEGED FAILURE TO COMPLY WITH
DISCOVERY REQUESTS: Plaintiffs’ counsel making any reference to an
alleged failure or refusal on the part of Defendant to provide Plaintiffs with all
required discovery, or any suggestion that Defendant has not engaged in good
faith discovery or have withheld or failed to produce any document or other
material to which Plaintiffs claim to be entitled. TEX. R. EVID. 402.
AGREED — GRANTED — DENIED — WITHDRAWN —
33 DISCLOSED WITNESSES: Plaintiffs’ counsel mentioning or calling any
witness, expert or factual, whose identity, and/or substance of testimony has not
been properly and timely disclosed in response to discovery requests directed to
the same or that has been disclosed in accordance with any applicable standing
Orders governing this litigation. Rainbo Baking Co. v. Stafford, 787 S.W.2d 41
(Tex. 1990); Yeldell v. Holiday Hills Ret. & Nursing, 701 S.W.2d 243 (Tex.
1985); E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363 (Tex. 1987).
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AGREED GRANTED — DENIED — WITHDRAWN
34, PLAINTIFF’S WITNESSES NOT DEPOSED: Plaintiffs’ counsel should
refrain from calling any witness to testify or referring to any witness statements
for any witness of Plaintiffs who was not deposed.
AGREED — GRANTED DENIED — WITHDRAWN
35. COMMENTS ON CREDIBILITY OF A WITNESS: Any inquiry of a lay
witness concerning the credibility of the Plaintiffs, Defendant, or any other
witness. Opinions of witnesses as to the truthfulness or lack of truthfulness of
another witness are generally not admissible in evidence. Duckett v. State, 797
S.W. 2d 906, 915 (Tex. Crim. App. 1990), disapproved on other grounds, 849
S.W. 2d 906 (Tex. Crim. App. 1990); James v. Tex. Dept. of Human Services,
836 S.W. 2d 236, 244 (Tex. App.—Texarkana 1992, no writ); see, e.g., Streff v.
State of Texas, 890 S.W. 2d 815 (Tex. App.—Eastland 1994, no writ). Further,
the truthfulness or untruthfulness, veracity or lack of veracity, credibility or lack
of credibility, honesty or dishonesty are improper inquiries for witnesses,
including experts.
AGREED — GRANTED DENIED — WITHDRAWN —
36. DISPARAGING OR PREJUDICIAL REFERENCES: Plaintiffs’ counsel
referencing or making disparaging remarks including use of the terms “murderer,”
“criminal,” “cheat,” or any inference that Defendant manufactured or generated
evidence for the reason that said terms and allegations have been held to be
improper and prejudicial appeals to the passions and sympathies of the jury.
Circle Y of Yoakum v. Blevins, 826 $.W.2d 753 (Tex. App. - Texarkana 1992,
writ denied); Texas Employers Insurance Assn. v. Guerro, 800 S.W.2d 859 (Tex.
App. -- San Antonio 1990, writ denied); Bridges v. City of Richardson, 354
§.W.2d 366 (Tex. 1962).
AGREED — GRANTED — DENIED — WITHDRAWN —
37. REFERENCES TO “ASBESTOS INDUSTRY” ETC.: Plaintiffs’ counsel
referring to Defendant as an “asbestos company,” as part of the “asbestos
industry,” or the use of other like terms on the grounds such terms are vague,
ambiguous and could be misleading to a jury. The use of such terms also has no
probative value and will simply inflame the jury and could create a misleading
impression. TEX, R. EVID. 401, 402, 403; Texas Employers Ins. Assoc. v.
Loesch, 538 S.W. 2d 435, 442 (Tex. Civ. App.—Waco 1976, writ ref’d n.r.e.).
AGREED GRANTED — DENIED WITHDRAWN
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38. IMPROPER COMPARISONS: Plaintiffs’ counsel referencing in any manner
or making reference to comparisons between the conduct of Defendant and other
corporate entities or products such as Ford Pintos and Firestone tires for the
reason that such references are improper and may not be cured by an instruction.
Plaintiffs, their counsel, and witnesses shall not make any reference to “Erin
Brockovich” or any insinuation that the work of Plaintiffs attorney resembles that
of Erin Brockovich. Lone Star Ford. Inc. v. Carter, 848 S.W.2d 850 (Tex. App. -
-Houston [14th Dist.] 1993, n.w.h.) (references to Ford Pintos in closing argument
and referring to corporation as “killers” was reversible error); Circle Y of
Yoakum v. Blevins, 826 S.W.2d 753 (Tex. App. -- Texarkana 1992, writ denied).
AGREED — GRANTED — DENIED — WITHDRAWN
39 CONCERT OF ACTION AMONG DEFENDANTS: Plaintiffs’ counsel
referencing, commenting or introducing evidence regarding an alleged concert of
action among the Defendants. The introduction of such evidence would be highly
improper and prejudicial. TEX. R, EVID. 401, 402, 403.
AGREED — GRANTED — DENIED — WITHDRAWN —
40 “CONSPIRACY OF SILENCE:” Plaintiffs’ counsel referencing, commenting
or introducing any hearsay opinion testimony concerning any industry-wide
“conspiracy of silence” to fix medical literature, government regulations, etc., is
improper and inadmissible. Plaintiffs cannot lay any proper factual and
admissible evidentiary foundation as to the existence of a definable “industry”
and its membership at relevant times, of an agreement and conspiracy with well-
defined objectives between and among these Defendants, and of the existence of
agency relationships between and among Defendants on issues relevant to this
lawsuit.
AGREED — GRANTED — DENIED WITHDRAWN
41 IMPUTED KNOWLEDGE: Plaintiffs’ counsel attempting to elicit or submit
any evidence from another entity or a trade association/organization to which
Defendant was not a member in order to impute the knowledge of that trade
association/organization to a Defendant who was not a member for the purpose of
showing actual knowledge. TEX. R. EVID. 403.
AGREED —_— GRANTED — DENIED — WITHDRAWN
42, REQUESTS FOR MATTERS CONTAINED IN DEFENDANT’S FILE:
Plaintiffs’ counsel making any demands or requests before the jury by Plaintiffs’
counsel for matters found or believed to be contained in Defendant’s file
including written statements, pleadings, photographs, or other documents.
Plaintiffs shall be prohibited from demanding or requesting further or additional
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examination of the premises, property or products which are the basis of this suit
during the course of the trial and in the presence of the jury.
AGREED — GRANTED DENIED — WITHDRAWN —
43 SETTLEMENTS OR NEGOTIATIONS: Plaintiffs’ counsel mentioning or
asking any questions regarding any settlement demands, offers or negotiations
between the parties in an effort to resolve this dispute. TEX. R. EVID. 403, 408;
Hall v. Birchfield, 718 S.W.2d 313 (Tex. App. -- Texarkana 1986), rev’d on other
grounds, 747 S.W.2d 361 (Tex. 1987).
AGREED GRANTED — DENIED — WITHDRAWN
44, STIPULATIONS: Plaintiffs’ counsel mentioning or referencing by Plaintiffs’
counsel the refusal of either party to enter into a stipulation prior to trial.
AGREED — GRANTED — DENIED — WITHDRAWN
45 APPEALS TO GENDER, RACIAL; ETHNIC OR AGE UNITY: Plaintiffs’
counsel making any statement which could be considered a plea to gender, racial
or age unity because the same is irreparably prejudicial and incurable by
instruction. Texas Employers Insurance Assn. v. Guerro, 800 S.W.2d 859 (Tex.
App. -- San Antonio 1990, writ denied).
AGREED —_ GRANTED — DENIED —_— WITHDRAWN
46. REFERENCES TO MEDIA ARTICLES OR REPORTS: Excluding evidence
that is admitted at trial of this case; Plaintiffs’ counsel is prohibited from
mentioning, referencing or introducing any evidence of media reports, including
without limitation and however characterized, newspaper and magazine articles,
televisions or radio broadcasts, and books or stories, generated by controversy
over asbestos because the same are inadmissible hearsay, notoriously unreliable,
and self-serving Deramus v. Thornton, 333 S.W.2d 824, 831 (Tex. 19560);
Texaco, Inc, v. Pennzoil, Inc., 729 S.W.2d 768, 841-42 (Tex. App. -- Houston [Ist
Dist.] 1987, writ ref’d n.r.c.), cert. denied, 485 U.S. 994 (1988); TEX. R. EVID.
801, 802, Admission of media reports arising from the publicity generated by the
controversy or asbestos litigation would be improper and irreparably prejudicial.
TEX. R. EVID. 403. Elder v. State, 614 S.W. 136, 137 (Tex.Crim. App. 1981)
(discussing admission of newspaper article which constituted reversible error);
Mayor of Philadelphia v. Education Equality League, 415 U.S. 605, 619, n.19
(1974) (concluding that newspaper article are inadmissible hearsay).
AGREED GRANTED DENIED WITHDRAWN
47. INFLAMMATORY PHOTOGRAPHS AND VIDEOTAPES: Plaintiffs’
counsel mentioning or informing the jury as to the content of any inflammatory
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photographs or videotapes. The probative value, if any, of such an exhibit is far
outweighed by the prejudice, horror and sympathy-evoking effect such an exhibit
would have upon the jury. TEX.R.EVID. 403.
AGREED GRANTED — DENIED — WITHDRAWN
48 ABSTRACTS OF LITERATURE: Plaintiffs’ counsel attempt to introduce into
evidence any abstracts of literature (instead of the entire article/study) without
first establishing, outside the presence of the jury, the proper predicate to allow
for same, Abstracts of literature are hearsay by their very nature and no exception
exists to allow for their introduction into evidence; except for their use with
examination of expert witnesses,
AGREED — GRANTED — DENIED — WITHDRAWN —
49. DEFENDANT’S PRIOR CONDUCT: Plaintiffs’ counsel mentioning,
suggesting or implying that Defendant may have been found guilty of any
misconduct, criminal liability, or civil liability in the past. The mere suggestion
of any such conduct would be incurably prejudicial, even with a timely objection
and favorable ruling. Air Shields v. Spears, 590 S.W.2d 574 (Tex. Civ. App. --
Waco 1979, writ ref'd n.t.e.).
AGREED GRANTED — DENIED — WITHDRAWN —
50. PRIOR “BAD ACTS”: Plaintiffs’ counsel mentioning, referencing or
introducing evidence of any prior action and/or omission on the part of Defendant
that is not related to asbestos for the reason that the same is not admissible on the
issues of negligence, character or culpable conduct in connection with the event.
TEX. R. EVID, 608; Nix v. H.R. Management Co., 733 S.W.2d 573 (Tex. App. --
San Antonio 1987, writ ref’d n.r.e.).
AGREED — GRANTED — DENIED — WITHDRAWN
St PRIOR SUITS OR ONGOING SUITS: Plaintiffs’ counsel mentioning or
referencing that Defendant may have been involved in any prior or ongoing suits
or that a party has never been involved in a prior suit; except as to expert
witnesses and corporate representatives. McClintock v. Travelers Insurance
Company, 393 S.W.2d 421 (Tex. Civ. App. -- Amarillo 1965, writ ref'd ne).
Additionally, evidence of other prior or pending cases “is substantially
outweighed” by the danger of unfair prejudice, confusion of the issues,
misleading the jury, and by considerations of delay. TEX. R. EVID. 403.
AGREED — GRANTED — DENIED — WITHDRAWN
52, SUBSEQUENT CLAIMS: Plaintiffs’ counsel mentioning or commenting to the
jury that there were claims subsequent to the date of the incident at issue for the
DEFENDANT IMO INDUSTRIES INC."S AMENDED MOTION/ORDER IN LIMINE Page 13 of 41
DALLAS 1805240v1
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reason that evidence of the same is not relevant on the issue of negligence and
would be irreparably prejudicial. Further, evidence of subsequent claims is not
relevant on the issues of gross negligence and is inadmissible. Transportation
Insurance Co. v. Moriel, 879 S.W.2d 10 (1994).
AGREED — GRANTED — DENIED — WITHDRAWN
53. SUBSEQUENT REMEDJAL MEASURES: Plaintiffs’ counsel mentioning,
referencing or introducing evidence of any subsequent remedial measures or
actions for the reason that the same are not admissible on the issues of negligence
or culpable conduct in connection with the event; except for feasibility, TEX. R.
EVID. 407(a); Pennington v. Brock, 841 S.W.2d 127, 132 App. -- Houston [14th
Dist.] 1992, n.w.h.); Federal Pacific Electric Co. v. Woodend, 735 S.W.2d 887,
892 (Tex. App. -- Fort Worth 1987, no writ), Evidence of subsequent measures is
also not relevant on the issues of gross negligence. Transportation Insurance Co.
v. Moriel, 879 S.W.2d 10 (1994).
AGREED GRANTED — DENIED — WITHDRAWN
54. OSHA AND EPA REGULATIONS OR REPORTS: Plaintiffs’ counsel
introducing evidence of Occupational Safety and Health Administration
(“OSHA”) and Environmental Protection Agency (“EPA”) regulations on
occupational asbestos exposure; except as already received into evidence by the
MDL Court. The findings of those agencies are neither conclusive nor even
probative evidence of Plaintiff's individualized risk of developing an asbestos-
related condition. Thus, they are not admissible. TEX. R. EVID. 402.
AGREED GRANTED — DENIED — WITHDRAWN
55. 8.1125 (FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2003)
OR ANY OTHER ASBESTOS LEGISLATION: Plaintiffs’ counsel making
any reference to any proposed asbestos legislation, including but not limited to
$1125. It is highly prejudicial, irrelevant and is intended to appeal to the juries’
emotions.
AGREED GRANTED DENIED — WITHDRAWN —
56. EXPERT WITNESS INVESTIGATIONS: Plaintiffs’ counsel mentioning or
referencing any expert witness’ conversations with another expert or hearsay
conversations with another person. Birchfield v. Texarkana Mem. Hospital, 747
S.W.2d 361, 365 (Tex. 1987); TEX. R. EVID. 802; United States v. Grey Bear,
883 F.2d 1382 , 1292-93 (Sth Cir. 1989), cert. denied, 493 U.S. 1047 (1990).
AGREED — GRANTED — DENIED — WITHDRAWN
DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE, Page 14 of 41
DALLAS 1805240v!
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57. REPORTS OF ABSENT DOCTORS: Plaintiffs’ counsel eliciting any
testimony by medical experts regarding medical reports prepared by any doctor(s)
not present to testify unless both doctors made the same findings and conclusions;
if the report was created solely for litigation. Texas Employers Ins. V. Draper,
658 S.W. 2d 202, 207 (Tex. 1996); TEX. R. EVID. 803.
AGREED — GRANTED — DENIED — WITHDRAWN
58. EVIDENCE OF FEAR OF CANCER OR INCREASED RISK OF
DISEASE: Plaintiffs’ counsel mentioning, referencing or introducing any
evidence of fear of cancer or increased risk of disease for the reasons that any
“fear of cancer or increased risk” evidence is not based on sound scientific
principles and it is, therefore, irrelevant. TEX. R. EVID. 401.
AGREED GRANTED — DENIED — WITHDRAWN
59. LOSS OF LIFE EXPECTANCY: Plaintiffs’ counsel referencing or presenting
any evidence concerning the reduction of Plaintiff's life expectancy as an element
of damages.
AGREED GRANTED DENIED — WITHDRAWN
60. EVIDENCE OF DUST CONTAINERS: Plaintiffs’ counsel referencing,
mentioning or introducing evidence in the form of dust-containing glass vials, or
other glass containing dust, which purportedly illustrate the concentration of
airborne asbestos (5,000,000 particles per cubic foot) deemed allowable for
human exposure under certain guidelines. Such evidence is irrelevant, lacks
proper foundation, and would necessitate undue consumption of time and create
substantial danger of undue prejudice, of confusing the issues, and of misleading
the jury. TEX. R. EVID. 401, 402, 403.
AGREED — GRANTED — DENIED — WITHDRAWN
61 EXPERT OPINIONS: Plaintiffs’ counsel eliciting testimony from Plaintiff's
expert witnesses or offering or referring to opinions at trial they did not offer at
their depositions or were not disclosed in responses to discovery. Exxon Corp. v.
West Texas Gathering Co., 868 S.W.2d 299, 306 (Tex. 1993).
AGREED — GRANTED — DENIED — WITHDRAWN
62. ADDRESSING EXPERTS: Plaintiffs’ counsel making any reference to
Defendants’ experts through the use of any term other than their names. For
example, Defendant’s experts shall not be referred to as “Dr. Defense” or
“Defense Doctor,” or in any manner which impinges upon their character or is in
any way disrespectful of their standing within the medical and/or scientific
community.
DEFENDANT IMO INDUSTRIE
Preview
@ Flled 07 June 27 P1:36 isso Distt Clerk Hans District ASBESTOS MDL CASE CAUSE NO. 2006-71957 BILL A. PARKER IN THE DISTRICT COURT Plaintiff, vs. HARRIS COUNTY, TEXAS ALFA LAVAL, INC., et al., Defendants. 11" JUDICIAL DISTRICT TRANSFERRED FROM CAUSE NO. 06-11195 BILL A. PARKER IN THE DISTRICT COURT Plaintiff, vs. DALLAS COUNTY, TEXAS ALFA LAVAL, INC., et al., Defendants. J-191* JUDICIAL DISTRICT DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendant, IMO Industries Inc. (hereinafter IMO), who respectfully requests that upon the calling of this case to trial, and before the voir dire examination of the jury, opening statements of counsel to the jury, and the introduction of any evidence, that the Court instruct Plaintiffs, counsel for Plaintiffs, and all of the Plaintiffs’ witnesses through such counsel, to refrain from making any mention through interrogation, either directly or indirectly, DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page | of 41 DALLAS 1805240v1 @ e at any stage of the trial of these cases concerning any of the matters set forth in the attached order, without first approaching the bench and obtaining a ruling of the Court outside the presence and hearing of all prospective jurors and the jurors ultimately selected to try this case. 1 Defendant further requests that this Court order counsel for Plaintiffs to instruct all witnesses called by Plaintiffs not to volunteer, disclose, state or mention to the jury any of the matters set forth in the attached order, unless questioned thereon after a prior ruling by this Court. 2 Defendant also requests that this Court order that the violation of any or all these instructions would constitute harm to Defendant and would deprive them of a fair and impartial trial, and instruct counsel for Plaintiffs that the failure to abide by such order of the Court may constitute contempt and necessitate a mistrial. Dove v. State Employees Workers Compensation Division, 857 S.W,2d 577, 588 (Tex. App.--Houston [1st Dist.] 1993, writ denied) (Violations of an order in limine are incurable if instructions to jury will not eliminate prejudice.) 3 The matters set forth in the attached order would be inadmissible for any purpose, on proper objection, and they have no bearing on the issues in these cases or the rights of the parties to this action. Permitting interrogation of witnesses, comments to jurors or prospective jurors, or offers of evidence concerning these matters would prejudice the jury, and sustaining objections to such questions, comments, or offers would not cure the prejudice, but reinforce it in the minds of the jurors. 4, Defendant also moves the Court that should any matters set forth above become material, relevant or admissible, that Plaintiffs should bring such matters to the Court’s attention outside the presence of the jury and should receive a favorable ruling thereon before mentioning those items before the jury. Failure of the Court to grant this motion will allow opposing counsel DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 2 of 41 DALLAS 1805240v1 e e and their client a free hand to inject such inadmissible and prejudicial matters as listed above before the jury, and that even an objection, timely and properly sustained, would not prevent the injury Defendant would suffer. The specific actions and/or matters which Defendant requests this Court include within this Order in Limine are as follows: LIABILITY INSURANCE: Plaintiffs’ counsel mentioning or asking any questions, directly or indirectly, about liability insurance since the issue of whether or not Defendant is protected by liability insurance is immaterial to any issue before the jury and would be prejudicial. Dennis v. Hulse, 362 S.W.2d 308 (Tex. 1962); Jacobini v. Hall, 719 S.W.2d 396, 401 (Tex. App. -- Fort Worth 1986, writ refd n.r.e.); Ford v. Carpenter, 216 S.W.2d 558 (Tex. 1949). AGREED GRANTED — DENIED — WITHDRAWN BANKRUPT/INSOLVENT DEFENDANTS: Plaintiffs’ counsel mentioning or offering into evidence the fact that any Defendant or potential responsible third parties are bankrupt. Such testimony would create a substantial danger of unduly prejudicing Defendant and misleading the jury. TEX. R. EVID. 401, 402, 403. AGREED — GRANTED — DENIED — WITHDRAWN COSTS PAID BY INSURANCE: Plaintiffs’ counsel mentioning or offering into evidence that any portion of the costs, investigation, defense or judgment that may be rendered herein will be paid by or was undertaken on behalf of any insurance company. AGREED GRANTED — DENIED — WITHDRAWN REFERENCES TO INSURANCE EMPLOYEES WHEN QUESTIONING WITNESSES; Plaintiffs’ counsel using or referencing the terms “insurance adjuster,” “adjuster,” “claims man,” or any other term that would lead the jury to believe that liability insurance is or has been involved in this case for the reason that the same improperly interjects insurance into the case. Atchinson, Topeka & Santa Fe Ry. v. Acosta, 435 S.W.2d 539, 549 (Tex. Civ. App. -- Houston [Ist Dist.] 1968, writ ref d n.r.e.) AGREED GRANTED DENIED WITHDRAWN 5. “REGARDLESS OF WHO PAYS” Plaintiffs’ counsel interrogating the jury panel as to whether they would answer an issue of damages in accordance with DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE. Page 3 of 41 DALLAS 1805240v1 @ e the evidence, regardless of who pays the damages or when they will be paid, or whether they will ever be paid, or any similar version of such inquiry for the reason that the same improperly injects the implication of insurance into the suit, or making any such reference in jury argument of similar vein, Hurley v. McMillan, 268 S.W.2d 229 (Tex. Civ. App. -- Galveston 1954, writ ref’d n.t.c.); Griffith v. Casteel, 313 S.W.2d 149 (Tex. Civ. App. -- Houston 1958, writ ref’d ne), AGREED — GRANTED — DENIED —_ WITHDRAWN MEDICAL EXPENSES: Any attempt by Plaintiffs to introduce any evidence or mention information related to the amount of Plaintiffs medical expenses related to the injury made the basis of this lawsuit until such time as proper predicate has been laid establishing that the medical expenses were reasonable and necessary and related to the injury made the basis of this lawsuit. Tex. Civil P. Rem. Code §18.001. See also Jackson v. Gutierrez, 77 S.W.3d 898 (Tex. App. — Houston) 2002 and Rodriguez-Navarra v. Ridinger, S.W.3d 531 (Tex. App. — Fort Worth) 2000. AGREED GRANTED DENIED — WITHDRAWN — COMPARISON OF WEALTH: During the liability phase of this trial, Plaintiffs’ counsel comparing or assessing the relative wealth of Plaintiff and Defendant. Muro v. Houston Fire and Casualty Ins. Co., 329 S.W.2d 326 (Tex. Civ. App.—San Antonio 1959, writ ref'd n.r.e.); El Paso Development Co. v. Ravel, 339 S.W.2d 360 (Tex. Civ. App.—El Paso 1960, writ ref’d n.t.e.); Otto Vehle v. Reserve law Officers Assn. v. Brenner, 590 $.W.2d 147, 151 (Tex. Civ. App.—San Antonio 1979, no writ); Mortgage Co. of America v. McCord, 466 S.W.2d 868 (Tex. Civ, App. 1971, writ ref’d n.r.e). AGREED GRANTED — DENIED — WITHDRAWN DEFENDANTS’ COMMITMENT OF RESOURCES: Plaintiffs’ counsel making any references to the amount of money Defendant has spent to defend this case. The Texas Constitution provides litigants with a right to a trial by jury and the right to a fair and impartial trial. Tex. Const., art. 1, §15. Any such statement is improper and unfairly prejudicial. Nickens v. State, 604 $.W.2d 101, 104 (Tex. Crim. App. 1980). AGREED — GRANTED — DENIED — WITHDRAWN LOST EARNINGS: Plaintiffs’ counsel eliciting any testimony or other evidence in support of Plaintiffs’ claims for lost earnings unless and until the Court, outside the presence of the jury or jury panel, has determined that such testimony is adequately supported by documentary evidence, is not speculative, and is timely DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 4 of 41 DALLAS 1805240v1 @ disclosed. River Oaks Townhomes Owners’ Ass’n, Inc. v. Bunt, 712 $.W.2d 529 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.re.). AGREED GRANTED DENIED WITHDRAWN 10. PLAINTIFF’S LACK OF INSURANCE: Plaintiffs’ counsel mentioning or referencing that Plaintiff does not have insurance to compensate Plaintiff for any injuries and/or damages. AGREED — GRANTED DENIED WITHDRAWN 11 CONTINGENCY FEES AND EXPENSES: Plaintiffs’ counsel mentioning or referencing in any way that any recovery by Plaintiffs in this matter will be shared with his/her attorney, or that he/she has been required to incur expenses to bring this suit. AGREED GRANTED DENIED — WITHDRAWN — 12, SIZE OF LAW FIRMS: Plaintiffs’ counsel mentioning or referencing the number of attorneys or legal assistants or the location of Defendant's attorneys’ law firm. AGREED GRANTED — DENIED WITHDRAWN — 13. OTHER CASES INVOLVING COUNSEL: Plaintiffs’ counsel mentioning or commenting to the jury about any other case in which counsel for Defendant or counsel for Plaintiffs may have been involved, except with expert witnesses. AGREED GRANTED — DENIED WITHDRAWN 14. DEFENDANTS’ ATTORNEYS: Plaintiffs’ counsel mentioning that Defendant’s attorneys represent insurance companies in litigation or referencing when, why or how Defendant employed its counsel to represent it in this suit. AGREED GRANTED. DENIED — WITHDRAWN — 15, REFERENCE TO PLAINTIFF’S ATTORNEYS: Plaintiffs’ counsel mentioning or referencing Plaintiffs’ lawyers or their law firms as “toxic tort prosecutors, 4 ‘environmental lawyers,” or any other reference to Plaintiffs’ counsel suggesting that they constitute enforcers of the law or identifying them with the better part of human nature. This includes suggestions that Defendant’s counsel or Defendant represents some contrary or evil interest which is against society’s best interests. AGREED — GRANTED — DENIED WITHDRAWN DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 5 of 41 DALLAS 1805246v1 @ @ 16 SIDEBAR PORTIONS OF DEPOSITIONS: Plaintiffs’ counsel mentioning, referencing, or attempting to read to the jury any nonrelevant exchanges between counsel for Plaintiffs and counsel for Defendant during depositions or in other discovery responses. AGREED — GRANTED — DENIED —_— WITHDRAWN — 17. QUESTIONS TO DEFENSE COUNSEL: Plaintiffs’ counsel posing any questions to Defendant’s counsel in front of the jury. AGREED — GRANTED —_— DENIED — WITHDRAWN 18 LACK OF CORPORATE REPRESENTATIVE: Plaintiffs’ counsel mentioning or referencing the presence or absence of a corporate representative on behalf of Defendant. The Texas Rules of Civil Procedure specifically provide that a party may prosecute or defend either in person or through an attorney. R. 7. The presence or absence of a corporate representative has no tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable. TEX. R. EVID. 401, 402, 403; MCCORMICK - EVIDENCE § 185 at 433-35 (2d ed. 1972). AGREED — GRANTED — DENIED — WITHDRAWN — 19. CORPORATE STATUS: Plaintiffs’ counsel mentioning or referencing in any manner that, since Defendant is a corporation, it is without a heart and soul, or make any other reference implying that Defendant as a corporation has any less rights under the law than a natural person. The fact that Defendant is not a natural person is totally irrelevant to this suit and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. Furthermore, any reference to the fact that Defendant is a financially solvent entity, or any related inference, is irrelevant, prejudicial, and would unduly confuse the jury and is therefore inadmissible under Rule 403 of the Texas Rules of Evidence. AGREED GRANTED — DENIED — WITHDRAWN — 20. EFFECT OF JURY’S ANSWERS: Plaintiffs’ counsel mentioning, referencing or inferring anything which might tend to inform the jury of the effect of their answers to the questions posed in the charge, including any comments to the effect that if questions are not answered in a certain way that no recovery would be had. Cooper v. Argonaut Ins. Co., 430 S.W.2d 35 (Tex. Civ. App. -- Dallas 1968, writ ref'd n.r.e.); Mayes v. City of Midland, 780 S.W.2d 903 (Tex. App. -- El Paso 1989, writ denied). AGREED GRANTED — DENIED — WITHDRAWN — DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 6 of 41 DALLAS 1805240v1 e @ 21 TRADING PLACES; Plaintiffs’ counsel suggesting or asking the jurors to place themselves in the position of Plaintiff because this is an improper appeal to passions and sympathies. Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850 (Tex. App. -Houston [14th Dist.] 1993, n.w.h.); Gulf, Colorado & Santa Fe Railway CO. v. Hampton, 358 S.W.2d 690 (Tex. Civ. App. -- Eastland 1962, writ ref’'d n.r.e.), AGREED — GRANTED — DENIED WITHDRAWN 22 GOLDEN RULE: Plaintiffs’ counsel mentioning or referencing any statement that calls upon the members of the panel or the jury to treat the Plaintiffs as they would want to be treated. This violates the prohibition against evoking the “Golden Rule.” This includes statements such as asking the jury to, “think about the person you love most in your whole life...Do you understand that you would be asking twelve people in a jury to set a value on your loved one’s life?” AGREED — GRANTED — DENIED — WITHDRAWN — 23. FAMILY OR FRIENDS ALLEGED EXPOSURE TO ASBESTOS OR THEIR ALLEGED ILLNESSES: Plaintiffs’ counsel mentioning or referencing the alleged exposure of family members or friends to asbestos-containing products or their alleged illnesses or death as a result of such exposure because the same is irreparably prejudicial and incurable by instruction. Such evidence is “substantially outweighed” by the danger of unfair prejudice, confusion of the issues, misleading the jury, and by considerations of delay, and not relevant to any issue in this case. TEX. R. EVID, 401, 402, 403. In addition, such testimony allows into evidence rank hearsay and expert medical opinions which must come from a qualified expert witness, AGREED — GRANTED — DENIED WITHDRAWN 24, NON-PARTY WITNESSES: Exclusion of all non-party witnesses from the courtroom except for expert witnesses. With regard to expert witnesses, courts have held that it is appropriately within the discretion of the trial court to allow such experts to be present in order to hear testimony that may be pertinent to their own expert opinion. TEX. R, EVID. 614; Elbar, Inc. v. Claussen, 774 S.W.2d 45. 51-51 (Tex. App.—Dallas 1989, writ dism’d),; Moore v. State, 493 S.W.2d 844, 845 (Tex. Crim.App. 1973). AGREED GRANTED DENIED — WITHDRAWN 25. ABSENT WITNESSES: Plaintiffs’ counsel mentioning or making reference to the failure to call any witness that is equally available to all parties or any witness that is not available to or under the control of Defendant or tendering, referring to, reading from, offering or exhibiting any ex parte statements or reports from any witness who is not then and there present in Court to testify and subject to DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 7 of 41 DALLAS 1805240v1 ® e examination by Defendant’s counsel. Highway Insurance Underwriters v. Lufkin, 215 S.W.2d 904, 914 (Tex. Civ. App. -- Beaumont 1948, writ ref’d n.r.e.); Texas Power & Light Co. v, Walker, 559 S.W.2d 403, 406 (Tex. Civ. App. -- Texarkana 1977, no writ); Grogan v. Sanitos, 617 S.W.2d 312 (Tex. Civ. App. -- Tyler 1981, no writ). AGREED — GRANTED — DENIED — WITHDRAWN 26. PROBABLE TESTIMONY: Plaintiffs’ counsel mentioning or stating to the jury the probable testimony of a witness who is absent, unavailable, or not called. Also, mentioning any failure on the part of Defendant to call any expert witness employed to express an opinion. Boyles v. Houston Lighting & Power Co., 464 S.W.2d 359 (Tex. 1971). AGREED GRANTED DENIED — WITHDRAWN — 27 UNDISCLOSED PRODUCTS AND WORK SITES: Plaintiffs’ counsel mentioning, referencing or offering any evidence regarding exposure to Defendant’s contractors, products and work sites not divulged to Defendant in the Plaintiff's and product identification witnesses’ depositions, work history sheets, or in response to written discovery requests. In addition, Plaintiffs and co- workers should be prevented from testifying about or mentioning work sites, contractors or products not disclosed in their responses to discovery or depositions. This tactic would unfairly surprise Defendant by interjecting fact situations not disclosed during discovery. Sharp v. Broadway National Bank, 784 S$.W.2d 669 (Tex. 1990); Yeldell v. Holiday Hills Ret. & Nursing, 701 S.W.2d 243 (Tex. 1985); E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363 (Tex. 1987). AGREED — GRANTED — DENIED — WITHDRAWN — 28. OF SUPERSEDED INTERROGATORY ANSWERS: Plaintiffs’ counsel making any reference to or use of superseded interrogatory answers as direct evidence; except to be used for impeachment. AGREED — GRANTED — DENIED — WITHDRAWN 29. PRODUCTS USED BY CO-WORKER: Plaintiffs’ counsel making any attempt to elicit or introduce testimony from an alleged co-worker of Plaintiff regarding asbestos-containing products that he/she worked with and around wherein he/she alleged he/she breathed respirable asbestos dust unless the testimony establishes that Plaintiff was present and working with the alleged co- worker at the time of the alleged exposure. Otherwise, the co-worker’s testimony amounts to nothing more than speculation or conjecture regarding what “exposure” to respirable asbestos Plaintiff might have had at a worksite that co- DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 8 of 41 DALLAS 1805240v1 ® ® worker might have also been employed with at a particular point in time. This testimony would be unfairly prejudicial and is not probative. TEX.R.EVID. 403. AGREED — GRANTED — DENIED —_— WITHDRAWN 30. USE OF ASBESTOS-CONTAINING PRODUCTS: Plaintiffs’ counsel mentioning, implying or introducing evidence regarding any asbestos-containing products manufactured or sold by Defendant that Plaintiff did not specifically identify working with or around where he alleges he breathed respirable asbestos because such would be irrelevant and would be calculated to confuse and prejudice the jury. TEX. R. EVID. 401, 402, 403; See In Re Sears, Roebuck and Co.,123 §.W.3d 573, 578-79 (Tex. App.Houston [14th Dist.] 2003, no pet.)(holding that "it is not enough...to guess what products may have injured a plaintiff. Nor is it enough that a plaintiff was ‘at least potentially exposed‘ to a product...Instead, recovery is available only from those whose products caused [plaintiff's] disease."); see also Gaulding v. Celotex Corp., 772 S.W.2d 66, 71 (Tex. 1989)(rejecting market-share theory of liability in asbestos litigation), AGREED — GRANTED — DENIED — WITHDRAWN 31 ILLNESSES/DEATHS OF CO-WORKERS: Plaintiffs’ counsel eliciting testimony or other evidence offered by any friend or co-worker of Plaintiff, wherein it is attempted to show any health condition, death, or illness that the friend and/or co-worker allegedly has and try to associate the health condition of the friend and/or co-worker to Plaintiff. Such attempt to link unrelated and unproven health conditions is entirely irrelevant to any issue to be tried in this case, and would only result in unfairly prejudicing the jury against Defendant. AGREED GRANTED — DENIED — WITHDRAWN — 32, REFERENCES TO ALLEGED FAILURE TO COMPLY WITH DISCOVERY REQUESTS: Plaintiffs’ counsel making any reference to an alleged failure or refusal on the part of Defendant to provide Plaintiffs with all required discovery, or any suggestion that Defendant has not engaged in good faith discovery or have withheld or failed to produce any document or other material to which Plaintiffs claim to be entitled. TEX. R. EVID. 402. AGREED — GRANTED — DENIED — WITHDRAWN — 33 DISCLOSED WITNESSES: Plaintiffs’ counsel mentioning or calling any witness, expert or factual, whose identity, and/or substance of testimony has not been properly and timely disclosed in response to discovery requests directed to the same or that has been disclosed in accordance with any applicable standing Orders governing this litigation. Rainbo Baking Co. v. Stafford, 787 S.W.2d 41 (Tex. 1990); Yeldell v. Holiday Hills Ret. & Nursing, 701 S.W.2d 243 (Tex. 1985); E.F. Hutton & Co., Inc. v. Youngblood, 741 S.W.2d 363 (Tex. 1987). DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 9 of 41 DALLAS 1805240v1 e @ AGREED GRANTED — DENIED — WITHDRAWN 34, PLAINTIFF’S WITNESSES NOT DEPOSED: Plaintiffs’ counsel should refrain from calling any witness to testify or referring to any witness statements for any witness of Plaintiffs who was not deposed. AGREED — GRANTED DENIED — WITHDRAWN 35. COMMENTS ON CREDIBILITY OF A WITNESS: Any inquiry of a lay witness concerning the credibility of the Plaintiffs, Defendant, or any other witness. Opinions of witnesses as to the truthfulness or lack of truthfulness of another witness are generally not admissible in evidence. Duckett v. State, 797 S.W. 2d 906, 915 (Tex. Crim. App. 1990), disapproved on other grounds, 849 S.W. 2d 906 (Tex. Crim. App. 1990); James v. Tex. Dept. of Human Services, 836 S.W. 2d 236, 244 (Tex. App.—Texarkana 1992, no writ); see, e.g., Streff v. State of Texas, 890 S.W. 2d 815 (Tex. App.—Eastland 1994, no writ). Further, the truthfulness or untruthfulness, veracity or lack of veracity, credibility or lack of credibility, honesty or dishonesty are improper inquiries for witnesses, including experts. AGREED — GRANTED DENIED — WITHDRAWN — 36. DISPARAGING OR PREJUDICIAL REFERENCES: Plaintiffs’ counsel referencing or making disparaging remarks including use of the terms “murderer,” “criminal,” “cheat,” or any inference that Defendant manufactured or generated evidence for the reason that said terms and allegations have been held to be improper and prejudicial appeals to the passions and sympathies of the jury. Circle Y of Yoakum v. Blevins, 826 $.W.2d 753 (Tex. App. - Texarkana 1992, writ denied); Texas Employers Insurance Assn. v. Guerro, 800 S.W.2d 859 (Tex. App. -- San Antonio 1990, writ denied); Bridges v. City of Richardson, 354 §.W.2d 366 (Tex. 1962). AGREED — GRANTED — DENIED — WITHDRAWN — 37. REFERENCES TO “ASBESTOS INDUSTRY” ETC.: Plaintiffs’ counsel referring to Defendant as an “asbestos company,” as part of the “asbestos industry,” or the use of other like terms on the grounds such terms are vague, ambiguous and could be misleading to a jury. The use of such terms also has no probative value and will simply inflame the jury and could create a misleading impression. TEX, R. EVID. 401, 402, 403; Texas Employers Ins. Assoc. v. Loesch, 538 S.W. 2d 435, 442 (Tex. Civ. App.—Waco 1976, writ ref’d n.r.e.). AGREED GRANTED — DENIED WITHDRAWN DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE, Page 10 of 41 DALLAS 1805240v1 e e 38. IMPROPER COMPARISONS: Plaintiffs’ counsel referencing in any manner or making reference to comparisons between the conduct of Defendant and other corporate entities or products such as Ford Pintos and Firestone tires for the reason that such references are improper and may not be cured by an instruction. Plaintiffs, their counsel, and witnesses shall not make any reference to “Erin Brockovich” or any insinuation that the work of Plaintiffs attorney resembles that of Erin Brockovich. Lone Star Ford. Inc. v. Carter, 848 S.W.2d 850 (Tex. App. - -Houston [14th Dist.] 1993, n.w.h.) (references to Ford Pintos in closing argument and referring to corporation as “killers” was reversible error); Circle Y of Yoakum v. Blevins, 826 S.W.2d 753 (Tex. App. -- Texarkana 1992, writ denied). AGREED — GRANTED — DENIED — WITHDRAWN 39 CONCERT OF ACTION AMONG DEFENDANTS: Plaintiffs’ counsel referencing, commenting or introducing evidence regarding an alleged concert of action among the Defendants. The introduction of such evidence would be highly improper and prejudicial. TEX. R, EVID. 401, 402, 403. AGREED — GRANTED — DENIED — WITHDRAWN — 40 “CONSPIRACY OF SILENCE:” Plaintiffs’ counsel referencing, commenting or introducing any hearsay opinion testimony concerning any industry-wide “conspiracy of silence” to fix medical literature, government regulations, etc., is improper and inadmissible. Plaintiffs cannot lay any proper factual and admissible evidentiary foundation as to the existence of a definable “industry” and its membership at relevant times, of an agreement and conspiracy with well- defined objectives between and among these Defendants, and of the existence of agency relationships between and among Defendants on issues relevant to this lawsuit. AGREED — GRANTED — DENIED WITHDRAWN 41 IMPUTED KNOWLEDGE: Plaintiffs’ counsel attempting to elicit or submit any evidence from another entity or a trade association/organization to which Defendant was not a member in order to impute the knowledge of that trade association/organization to a Defendant who was not a member for the purpose of showing actual knowledge. TEX. R. EVID. 403. AGREED —_— GRANTED — DENIED — WITHDRAWN 42, REQUESTS FOR MATTERS CONTAINED IN DEFENDANT’S FILE: Plaintiffs’ counsel making any demands or requests before the jury by Plaintiffs’ counsel for matters found or believed to be contained in Defendant’s file including written statements, pleadings, photographs, or other documents. Plaintiffs shall be prohibited from demanding or requesting further or additional DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE, Page Il of 41 DALLAS 1805240v1 e @ examination of the premises, property or products which are the basis of this suit during the course of the trial and in the presence of the jury. AGREED — GRANTED DENIED — WITHDRAWN — 43 SETTLEMENTS OR NEGOTIATIONS: Plaintiffs’ counsel mentioning or asking any questions regarding any settlement demands, offers or negotiations between the parties in an effort to resolve this dispute. TEX. R. EVID. 403, 408; Hall v. Birchfield, 718 S.W.2d 313 (Tex. App. -- Texarkana 1986), rev’d on other grounds, 747 S.W.2d 361 (Tex. 1987). AGREED GRANTED — DENIED — WITHDRAWN 44, STIPULATIONS: Plaintiffs’ counsel mentioning or referencing by Plaintiffs’ counsel the refusal of either party to enter into a stipulation prior to trial. AGREED — GRANTED — DENIED — WITHDRAWN 45 APPEALS TO GENDER, RACIAL; ETHNIC OR AGE UNITY: Plaintiffs’ counsel making any statement which could be considered a plea to gender, racial or age unity because the same is irreparably prejudicial and incurable by instruction. Texas Employers Insurance Assn. v. Guerro, 800 S.W.2d 859 (Tex. App. -- San Antonio 1990, writ denied). AGREED —_ GRANTED — DENIED —_— WITHDRAWN 46. REFERENCES TO MEDIA ARTICLES OR REPORTS: Excluding evidence that is admitted at trial of this case; Plaintiffs’ counsel is prohibited from mentioning, referencing or introducing any evidence of media reports, including without limitation and however characterized, newspaper and magazine articles, televisions or radio broadcasts, and books or stories, generated by controversy over asbestos because the same are inadmissible hearsay, notoriously unreliable, and self-serving Deramus v. Thornton, 333 S.W.2d 824, 831 (Tex. 19560); Texaco, Inc, v. Pennzoil, Inc., 729 S.W.2d 768, 841-42 (Tex. App. -- Houston [Ist Dist.] 1987, writ ref’d n.r.c.), cert. denied, 485 U.S. 994 (1988); TEX. R. EVID. 801, 802, Admission of media reports arising from the publicity generated by the controversy or asbestos litigation would be improper and irreparably prejudicial. TEX. R. EVID. 403. Elder v. State, 614 S.W. 136, 137 (Tex.Crim. App. 1981) (discussing admission of newspaper article which constituted reversible error); Mayor of Philadelphia v. Education Equality League, 415 U.S. 605, 619, n.19 (1974) (concluding that newspaper article are inadmissible hearsay). AGREED GRANTED DENIED WITHDRAWN 47. INFLAMMATORY PHOTOGRAPHS AND VIDEOTAPES: Plaintiffs’ counsel mentioning or informing the jury as to the content of any inflammatory DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE Page 12 of 41 DALLAS 1805240v1 e @ photographs or videotapes. The probative value, if any, of such an exhibit is far outweighed by the prejudice, horror and sympathy-evoking effect such an exhibit would have upon the jury. TEX.R.EVID. 403. AGREED GRANTED — DENIED — WITHDRAWN 48 ABSTRACTS OF LITERATURE: Plaintiffs’ counsel attempt to introduce into evidence any abstracts of literature (instead of the entire article/study) without first establishing, outside the presence of the jury, the proper predicate to allow for same, Abstracts of literature are hearsay by their very nature and no exception exists to allow for their introduction into evidence; except for their use with examination of expert witnesses, AGREED — GRANTED — DENIED — WITHDRAWN — 49. DEFENDANT’S PRIOR CONDUCT: Plaintiffs’ counsel mentioning, suggesting or implying that Defendant may have been found guilty of any misconduct, criminal liability, or civil liability in the past. The mere suggestion of any such conduct would be incurably prejudicial, even with a timely objection and favorable ruling. Air Shields v. Spears, 590 S.W.2d 574 (Tex. Civ. App. -- Waco 1979, writ ref'd n.t.e.). AGREED GRANTED — DENIED — WITHDRAWN — 50. PRIOR “BAD ACTS”: Plaintiffs’ counsel mentioning, referencing or introducing evidence of any prior action and/or omission on the part of Defendant that is not related to asbestos for the reason that the same is not admissible on the issues of negligence, character or culpable conduct in connection with the event. TEX. R. EVID, 608; Nix v. H.R. Management Co., 733 S.W.2d 573 (Tex. App. -- San Antonio 1987, writ ref’d n.r.e.). AGREED — GRANTED — DENIED — WITHDRAWN St PRIOR SUITS OR ONGOING SUITS: Plaintiffs’ counsel mentioning or referencing that Defendant may have been involved in any prior or ongoing suits or that a party has never been involved in a prior suit; except as to expert witnesses and corporate representatives. McClintock v. Travelers Insurance Company, 393 S.W.2d 421 (Tex. Civ. App. -- Amarillo 1965, writ ref'd ne). Additionally, evidence of other prior or pending cases “is substantially outweighed” by the danger of unfair prejudice, confusion of the issues, misleading the jury, and by considerations of delay. TEX. R. EVID. 403. AGREED — GRANTED — DENIED — WITHDRAWN 52, SUBSEQUENT CLAIMS: Plaintiffs’ counsel mentioning or commenting to the jury that there were claims subsequent to the date of the incident at issue for the DEFENDANT IMO INDUSTRIES INC."S AMENDED MOTION/ORDER IN LIMINE Page 13 of 41 DALLAS 1805240v1 ® e reason that evidence of the same is not relevant on the issue of negligence and would be irreparably prejudicial. Further, evidence of subsequent claims is not relevant on the issues of gross negligence and is inadmissible. Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (1994). AGREED — GRANTED — DENIED — WITHDRAWN 53. SUBSEQUENT REMEDJAL MEASURES: Plaintiffs’ counsel mentioning, referencing or introducing evidence of any subsequent remedial measures or actions for the reason that the same are not admissible on the issues of negligence or culpable conduct in connection with the event; except for feasibility, TEX. R. EVID. 407(a); Pennington v. Brock, 841 S.W.2d 127, 132 App. -- Houston [14th Dist.] 1992, n.w.h.); Federal Pacific Electric Co. v. Woodend, 735 S.W.2d 887, 892 (Tex. App. -- Fort Worth 1987, no writ), Evidence of subsequent measures is also not relevant on the issues of gross negligence. Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (1994). AGREED GRANTED — DENIED — WITHDRAWN 54. OSHA AND EPA REGULATIONS OR REPORTS: Plaintiffs’ counsel introducing evidence of Occupational Safety and Health Administration (“OSHA”) and Environmental Protection Agency (“EPA”) regulations on occupational asbestos exposure; except as already received into evidence by the MDL Court. The findings of those agencies are neither conclusive nor even probative evidence of Plaintiff's individualized risk of developing an asbestos- related condition. Thus, they are not admissible. TEX. R. EVID. 402. AGREED GRANTED — DENIED — WITHDRAWN 55. 8.1125 (FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2003) OR ANY OTHER ASBESTOS LEGISLATION: Plaintiffs’ counsel making any reference to any proposed asbestos legislation, including but not limited to $1125. It is highly prejudicial, irrelevant and is intended to appeal to the juries’ emotions. AGREED GRANTED DENIED — WITHDRAWN — 56. EXPERT WITNESS INVESTIGATIONS: Plaintiffs’ counsel mentioning or referencing any expert witness’ conversations with another expert or hearsay conversations with another person. Birchfield v. Texarkana Mem. Hospital, 747 S.W.2d 361, 365 (Tex. 1987); TEX. R. EVID. 802; United States v. Grey Bear, 883 F.2d 1382 , 1292-93 (Sth Cir. 1989), cert. denied, 493 U.S. 1047 (1990). AGREED — GRANTED — DENIED — WITHDRAWN DEFENDANT IMO INDUSTRIES INC.’S AMENDED MOTION/ORDER IN LIMINE, Page 14 of 41 DALLAS 1805240v! e @ 57. REPORTS OF ABSENT DOCTORS: Plaintiffs’ counsel eliciting any testimony by medical experts regarding medical reports prepared by any doctor(s) not present to testify unless both doctors made the same findings and conclusions; if the report was created solely for litigation. Texas Employers Ins. V. Draper, 658 S.W. 2d 202, 207 (Tex. 1996); TEX. R. EVID. 803. AGREED — GRANTED — DENIED — WITHDRAWN 58. EVIDENCE OF FEAR OF CANCER OR INCREASED RISK OF DISEASE: Plaintiffs’ counsel mentioning, referencing or introducing any evidence of fear of cancer or increased risk of disease for the reasons that any “fear of cancer or increased risk” evidence is not based on sound scientific principles and it is, therefore, irrelevant. TEX. R. EVID. 401. AGREED GRANTED — DENIED — WITHDRAWN 59. LOSS OF LIFE EXPECTANCY: Plaintiffs’ counsel referencing or presenting any evidence concerning the reduction of Plaintiff's life expectancy as an element of damages. AGREED GRANTED DENIED — WITHDRAWN 60. EVIDENCE OF DUST CONTAINERS: Plaintiffs’ counsel referencing, mentioning or introducing evidence in the form of dust-containing glass vials, or other glass containing dust, which purportedly illustrate the concentration of airborne asbestos (5,000,000 particles per cubic foot) deemed allowable for human exposure under certain guidelines. Such evidence is irrelevant, lacks proper foundation, and would necessitate undue consumption of time and create substantial danger of undue prejudice, of confusing the issues, and of misleading the jury. TEX. R. EVID. 401, 402, 403. AGREED — GRANTED — DENIED — WITHDRAWN 61 EXPERT OPINIONS: Plaintiffs’ counsel eliciting testimony from Plaintiff's expert witnesses or offering or referring to opinions at trial they did not offer at their depositions or were not disclosed in responses to discovery. Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 306 (Tex. 1993). AGREED — GRANTED — DENIED — WITHDRAWN 62. ADDRESSING EXPERTS: Plaintiffs’ counsel making any reference to Defendants’ experts through the use of any term other than their names. For example, Defendant’s experts shall not be referred to as “Dr. Defense” or “Defense Doctor,” or in any manner which impinges upon their character or is in any way disrespectful of their standing within the medical and/or scientific community. DEFENDANT IMO INDUSTRIE