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

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MCKENNA LONG &
ALDRIDCE LLP
ATTORNEYS AT LAW
San FRANCISCO

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO. 252777)

MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY
101 California Street FILED
4lst Floor Superior Court of California,
San Francisco, CA 94111 County of San Francisco
Telephone: (415) 267-4000 APR 13 2010

Facsimile: (415) 267-4198 Clerk of the Court

BY: CHRISTLE ARRIOLA
Attorneys for Defendant Deputy Clerk

METALCLAD INSULATION CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CouNTY OF SAN FRANCISCO

JOYCE JUELCH and Case No, CGC-09-275212
NORMAN JUELCH, SR.,
DEFENDANT’S MOTION IN Limine To
EXcCLubE DOCUMENTS DATED AFTER
PLAINTIFF’s LAST ALLEGED EXPOSURE TO

Plaintiffs, ASBESTOS [MIL 19}
v. TRIAL DaTE: APRIL 5, 2010
Dept.: 604

ASBESTOS DEFENDANTS, (BP), er ai., JUDGE: HONORABLE MARLA J. MILLER

Defendants.

L
INTRODUCTION

THE ABOVE NAMED DEFENDANT (hereinafter “Defendant") moves in limine under

Evidence Code sections 21) and 352 for an order excluding from evidence all documents written
by or sent to it dated after the last date of claimed exposure to asbestos. The order excluding such
documents and testimony is essential for three reasons:

1. All such evidence is irrelevant because it cannot shed any light on the knowledge

or conduct of Defendant;

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McKenna LONG &&
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2. All such evidence would be confusing and highly prejudicial because the jury will
not be able to separate post-exposure knowledge from pre-exposure knowledge and conduct of
Defendant, and

3. All such evidence would take up a substantial amount of time (weeks) both to
introduce and rebut.

i
ARGUMENT

A. Tue Issue OF WHETHER DEFENDANT RECEIVED, PRODUCED OR COMMUNICATED ANY
INFORMATION REGARDING THE HEALTH EFFECTS OF ASBESTOS EXPOSURE AFTER

PLAINTIFF'S LAST EXPOSURE Is IRRELEVANT TO ANY OF THE DispuTeb FACTS IN
THIs ACTION

Defendant anticipates that plaintiffs will attempt to offer into evidence post-exposure
documents sent to or written by Defendant and its predecessor entities in an attempt to show that
Defendant had “knowledge” of health hazards connected with Plaintiff's employment. Any
information generated or received by Defendant regarding the potential health hazards of asbestos
exposure after Plaintiff's last exposure is irrelevant to any of the matters at issue in the instant
case.

Evidence Code section 210 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 to Defendant’s knowledge of any deleterious health effects with regard to asbestos
exposure after Plaintiff's last claimed exposure to asbestos has no bearing at all on the issue of
whether that knowledge was concealed from Plaintiff or other employees prior to that time, or on
the issue of whether Defendant otherwise failed to warn of any dangers of which it knew at the
time Plaintiff was employed.

Documents dated after Plaintiff's claimed exposure to asbestos products fail to pass the
threshold relevancy determination, If these documents were not in existence at the time of
Plaintiff's exposures, they could not possibly have had an effect on Defendant’s knowledge or
state of mind during the relevant period associated with exposures to asbestos at the time Plaintiff
was exposed to asbestos products of Defendant. By sceking to introduce these documents,

plaintiffs are attempting to prove that Defendant breached its duty of care, or acted recklessly
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DEFENDANT'S MOTION IN LIMINE TO EXCLUDE DOCUMENTS DATED AFTER PLAINTIFF S LAST ALLEGED EXPOSURE TO ASBESTOS [MIL
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MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCIECO

based upon knowledge acquired years after all of the relevant events had occurred. This would be
manifestly unfair and prejudicial to Defendant.

B. EVEN IF THE DOCUMENTS WERE RELEVANT, THEIR PROBATIVE VALUE WOULD BE
SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF CONFUSING THESE ISSUES AND
MISLEADING THE JuRY, TO THE UNFAIR PREJUDICE OF DEFENDANT

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 vidence Code section 352.

Mere reference to any post-exposure documents would clearly cause irreparable damage
to Defendant. There is a grave danger that, despite any court admonition to the contrary, post-
exposure documents will mislead the jury to find that a defendant had knowledge of a relationship
between asbestos and certain diseases simply because evidence of such a relationship was brought
to the defendant’s attention after the time of the alleged exposure.

The inherent danger of admitting the documents in question cannot be overestimated.
These documents would pave the way for an emotional decision rather than a rational conclusion
by the jury. They would encourage the jury to punish a defendant by projecting a false image of
conscious disregard for employee safety. Such an image would be completely misleading. Those
documents could have had no effect on the defendant’s knowledge or state of mind at the relevant
time of Plaintiff's employment. It is doubtful that the jury would either be willing or able to

follow a limiting instruction after hearing evidence of such prejudicial nature.

Cc THE CouRT SHOULD EXCLUDE POsT-EXPOSURE DOCUMENTS IN ORDER TO PREVENT
NEEDLESS WASTE OF TRIAL TIME

Experience of counsel in other asbestos-related cases teaches that plaintiffs’ counsel
typically spend days and days of trial time putting into evidence and explaining the meaning and
relevance of correspondence and trade association memos and minutes generated in the 1950s and
1960s. The purpose of plaintiffs’ exercise is to show that Defendant had some knowledge of the
risk of asbestos-related diseases in the 1950s and 1960s but chose not to warn about those risks.
Defendant by necessity must then spend considerable time putting into evidence documents

testimony to rebut and explain all of the 1950s and 1960s era documents. None of the documents
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DEFENDANT'S MOTION INLIMINE TO EXCLUDE DOCUMENTS DATED AFTER PLAINTIFF'S LAST ALLEGED EXPOSURE TO ASBESTOS [MIL
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MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AY LAW
SAN FRANCISCO

from the 1950s and 1960s shed any light on Defendant’s knowledge at any time relevant to this
case, before Plaintiff's last exposure. Exclusion of the documents is compelled by Mvidence Code

section 352(a), since their introduction will necessitate an undue consumption of time.

HE
CONCLUSION

There is no place in this litigation for evidence of post-exposure documents received or
produced by Defendant. The existence of content of such post-exposure documents is irrelevant
to the issue of Defendant’s knowledge at the time of Plaintiff's employment. Documents after
Plaintiff's last claimed exposure to asbestos products should also be excluded on the grounds that
such information will sorely tempt the trier of fact to attribute such after-the-fact knowledge to
Defendant, and therefore admission of such documents will be highly prejudicial to Defendant,
and will substantially outweigh any probative value they may have. Introduction of the
documents will consume days, if not weeks, of trial time, and will needlessly prolong the trial of
this action.

For the foregoing reasons, Defendant respectfully moves in limine that all post-exposure

documents received or generated by Defendant be excluded from the trial of this action.

Dated: April 5, 2010 MCKENNA me & ALDRIDGE LLP
By: Vl cic S, be
‘Lisa L. OBERG

DANIEL B. HOYE
ALECIA E. COTTON

Attorneys for Defendant,
METALCLAD INSULATION
CORPORATION

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