Motion,Ex Parte: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1 | LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
2 | HONG T. LE (BAR NO. 242335)
MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY
3 | 101 California Street FILED
4st Floor Superior Court of California,
4] San Francisco, CA 94111 County of San Francisco
Teiephone: (415) 267-4000
5 | Facsimile (415) 267-4198 APR 13 2010
6 | Attorneys for Defendant BY: CHRISTLE ‘Deputy Clerk
METALCLAD INSULATION CORPORATION
q
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 4 JOYCE JUELCH and Case No. CGC-09-275212
NORMAN JUELCH, SR.,
12 DEFENDANT’S MOTION IN LIMINE TO
Plaintiffs, EXCLUDE EVIDENCE OF PLAINTIFF JOYCE
13 JUELCH’S Exposures AS A RESULT OF HER
v. Own EmpLoyMENT [MIL 38]
14
ASBESTOS DEFENDANTS, et ai.,
15 TRIAL DATE: APRIL 5, 2010
Defendants.
16 Dept: 604
7 JUDGE: HONORABLE MARIA MILLER
18
19
20
21
22
23
24
25
26
27
28
MCKENNA LONG &
AtbRipce LLP
ATTORNEYS AT LAW DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PLAINTIFF JOYCE JUELCH'S EXPOSURES AS A RESULT OF HER OWN
SAN FRANCISCO. EMPLOYMENT [MIL 38]

S¥:27420208.2DR WwW & Ww ft

28

MCKENNA LONG &
ALDRIDGE LLP.
ASTORNEYS AT Law
SAN FRANCISCO

Inrropucrion

Defendant Metalclad Insulation Corporation (hereinafter “Metalelad” or “Defendant”)!
hereby moves in imine for a order excluding any and all testimony concerning occupational
asbestos exposure Plaintiff Joyce Juelch suffered, if any, while working as an insulator for
Metalclad. Plaintiffs Joyce Juelch and Norman Juelch both worked as insulators for Metalclad
Insulation Corporation and Northern California Insulation Corporation at various times. Mrs.
Juelch worked for Northern California Insulation Corporation in 1983 and 1984 and Metalclad
Insulation Corporation in 1983, 1984, 1985, 1990 and 1991. Mr. Juelch worked for Northern
California Insulation Corporation in 1977, 1983 and 1984 and Metalclad Insulation Corporation
in 1983, 1984 and 1985. Those claims are squarely barred by Labor Code section 3600 ef seq.,
and Plaintiffs have never asserted otherwise.

LL

ARGUMENT

Any INJURY SUSTAINED WHILE MRS. JUELCH WORKED AS AN INSULATOR FOR METALCLAD
Is PRECLUDED By CaiiroRN14 LABOR CODE SEC VION 3600

It is well-settled that Plaintiffs cannot hold Metalclad liable in tort for Mrs. Juelch’s
injuries arising from her alleged exposure to asbestos while employed as an insulator by
Metalclad. Any such injury would fall clearly within the provisions of workers’ compensation
law and thus are barred by the exclusivity provisions of /uhur (ude section 3600, That section
provides, in pertinent part:

“Liability for the compensation provided by this division, in Hew of
any other liability whatsoever to any person ... shall, without regard
to negligence, exist against an employer for any injury sustained by
his or her employees arising out of and in ihe course of the

employment and for the death of any employee if the injury
proximately causes death, in those cases where the ... conditions of

' For the purposes of this Motion, references to Metalclad or Defendant will include
Northern California Insulation Corporation, an entity associated with Metalclad Insulation
Corporation.

-2-

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PLAINTIFF JOYCE JUELCH'S EXPOSURES AS A RESULT OF HER OWN
EMPLOYMENT [MIL 33]

‘SF:27420208.2Nn

o 6 68 SR OR Bh OW

RR RR NN Dee a ae
SOR WD FB BW NH KF SF BD & QA HA B YW HH =

28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
BAN FRANCISCO.

compensation coneur....” Labor Code section 36014:15 (emphasis
added).

Thus, injured workers must seek compensation through the workers’ compensation system
when they meet the “conditions of compensation.”

The “conditions of compensation” applicable to this case include:

“(1) Where, at the time of the injury, both the employer and the
employee are subject to the compensation provisions of this
division,

(2) Where, at the time of the injury, the employee is performing
service growing out of and incidental to his or her
employment and is acting within the course of his or her
employment.

@G) Where the injury is proximately caused by the employment,
either with or without negligence.” Libor Cade
section 3600(aW 1213).

Furthermore, section 3602 provides, in pertinent part:

“Where the conditions of compensation set forth in Section 3600

concur, the right to recover such compensation is ... the sole and
exclusive remedy of the employee ... against the employer...”

Labor Cade section 3602) (emphasis added).

Finally, Labor Code section 5300 states that proceedings “[{Jor the recovery of
compensation, or concerning any right or liability arising out of or incidental thereto” “shall be
instituted before the [WCAB] and not elsewhere ....” (emphasis added.)

“California’s workers’ compensation scheme operates regardless of fault and achieves
identical purposes that underlie recovery * * * [in tort] by ensuring swift, sure compensation for
workplace injuries.” Fedmlee v. Fuleon Cable TV (998) 36 Cal Appetih 1032. 1038. citing
Privette v. Superior Court (1993) 5 Cal.4th 689. “Under workers’ compensation exclusivity rule,
the employee is afforded relatively swift and certain payment of benefits to cure or relieve the

effects of industrial injury without having to prove fault but, in exchange, gives up the wider

range of damages potentially available in tort.” Porres v. Purkinnuee Fire Service, Ine. 2001) 26
Cal.tth 995. 1001, “|The workers’ compensation system subsumes all statutory and tort
remedies otherwise available for such injuries.” Piscitetli v. Fricdenhers (2004187 CaLApp 4th

-3-

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PLAINTIFF JOYCE JUELCH'S EXPOSURES AS A RESULT OF HER OWN
EMPLOYMENT (MIL 38]

SF.27420208.228

MCKENNA LONG &
Aupripce LLP
ATTORNEYS At Law
SAN FRANCISCO

9S3_ 089, n.12, citing Charles 4. Vacanti, MLD. tne. y State Compensation Insure Pind
(2001) 24 Caldth 800.811 (‘Wancati”). “Where the essence of the wrong is personal physical
injury or death, the action is barred by the exclusiveness clause of the Workers’ Compensation
Act (WCA) no matter what its name or technical form if the usual conditions of coverage are
satisfied; in other words, the exclusivity provisions encompass all injuries collateral to or
derivative of an injury compensable by the exclusive remedies of the WCA.” Facanti, supru. 24
Caldth at 813; see also Piscitelli, supra, 87 Cal_App-4ith at 986-987,

“If the alleged injury falls within the scope of the exclusive remedy provisions, trial courts
are next to consider whether the alleged acts or motives that establish the elements of the cause of
action fall outside the risks encompassed within the compensation bargain.” | eunti supra. 24
Calsth at 811-812 (emphasis added). However, “[w]here the alleged injury-producing acts are a
‘normal’ part of the employment relationship or where the motive behind these acts does not
violate a ‘fundamental policy of this state’ then the cause of action is barred.” Vuncuri. supra. 24
Cali at 812, citing Fermino v. Fedeo, inc. (1994) 7 Cabsth 201. 717 and Ganit +. Sentry fax
992) 1 Calelth LO83. | 1G0, overruled on other graunds by Gree e Rater Engineering Co,
(1998) 19 Cal.4dth 66, 8G. 1.6 (emphasis added).

Here. it is clear that exclusivity provisions of the Labor Code apply to any injury that
Mrs. Juelch may have suffered as a result of her work as an insulator for Metalclad, Any
exposure to asbestos while both she was employed as an insulator by Metalclad was incidental to,
arose from, and occurred from the normal operations of their jobs as insulators and in the course
of her employment at various jobsites. Accordingly, any injury arising from this exposure would
necessarily be proximately caused by her employment as insulators for Metalclad and thus barred.

As such, any evidence or testimony regarding any occupational asbestos exposures is
irrelevant and should be excluded. Lvidence Code section 2}0 defines “relevant” as “having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” Information as te Plaintiff Joyce Juelch’s occupational exposure
while employed by Metalclad is simply not germane to any issues in this case and properly

excluded on relevancy grounds.
-4-

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PLAINTIFF JOYCE JUELCH S EXPOSURES AS A RESULT OF AER OWN
EMPLOYMENT [MIL 38]
SF:27420208 2Co 2 NY A WB WwW De mH

N MY NM N N NN wR YD Pe hae
Ya ase BN 8 5 Fae UF AE OH FS

28

MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT Law
SAN FRANcisco

Further, regardless of the Court’s determination on relevancy grounds, the post-exposure
documents should be excluded because their prejudicial effect outweighs their probative value
under Hridence Code section 352. Mere reference to her own occupational exposure would
clearly cause irreparable damage to Metaiclad. Such evidence would merely be used for the sole
purpose of misleading and confusing the jury. This evidence would pave the way for an
emotional decision rather than a rational one by the jury and serve no legitimate purpose.

TL
CONCLUSION

Plaintiffs cannot hold Metalclad liable in tort for Mrs. Juelch’s injuries arising from her
alleged exposure to asbestos while employed as an insulator by Metalclad. Any such injury
would fall clearly within the provisions of workers’ compensation law and thus are barred by the
exclusivity provisions of /whor Code section 3600, For these reasons, Metalclad respectfully
moves in limine to exclude all references to any and all evidence, from any source, that Plaintiff
Joyce Juelch suffered occupational exposure to asbestos as result of her employment with

Metalciad.

Dated: — April 13, 2010 MCKENNA LONG & ALDRIDGE LLP

By:

ASA L. OBERG
Danie. B. HOYE
Hons T. Le

Attorneys for Defendant

METALCLAD INSULATION
CORPORATION

-5-

DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF PLAINTIFF JOYCE JUELCH'S EXPOSURES AS A RESULT OF HER OWN
EMPLOYMENT [MIL 33}

SP.27420208 2