Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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                                1 | John R. Brydon [Bar No. 083365]
George A. Otstott [Bar No. 184671]
2 |/Thomas J. Moses [Bar No. 116002]

BRYDON HUGO & PARKER ELECTRONICALLY
3 1/135 Main Street, 20th Floor FILED
San Francisco, CA 94105 Superior Court of California,
4 |\Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 FEB 21 2012
5 ||Email: service@bhplaw.com Clerk of the Court
6 ||Attorneys for Defendant BY: ALISON ae puty Clerk
UNION CARBIDE CORPORATION
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SUPERIOR COURT - STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
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11 | CHARLES HUSBAND, (ASBESTOS)
Case No. CGC-09-275098
12 Plaintiff,
DEFENDANT UNION CARBIDE
13 vs. CORPORATION'S MOTION IN LIMINE
NO. 5 TO EXCLUDE ALL REFERENCES
14 | ASBESTOS DEFENDANTS (BP), AT TRIAL TO INDUSTRIAL/CHEMICAL
ACCIDENTS
IS Defendants.
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17 TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD:
18 Defendant UNION CARBIDE CORPORATION (“Union Carbide”), on its own

19 | behalf, prior to trial and selection of a jury, moves for an in limine order, pursuant to

20 | Evidence Code sections 350 and 352, prohibiting Plaintiff CHARLES HUSBAND

21 |\(“Plaintiff”) from presenting, referring to, or offering evidence or argument at trial

22 | (ineluding voir dire), whether through testimony or records, regarding industrial or

23 |/chemical accidents.

24 This motion is made upon the grounds that evidence or argument at trial of Union
25 |/Carbide’s industrial or chemical accidents are not relevant to any of Plaintiff's claims. Even
26 ||if evidence related to Union Carbide’s accidents is relevant or otherwise admissible, it

27 | should be excluded because it will result in undue prejudice to Union Carbide, it will

28 ||confuse issues in this case, and it will mislead the jury. Therefore, Union Carbide

BryDON 1
Huo & PARKER
enon DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 5 TO EXCLUDE ALL

San Hance, CA Mts REFERENCES AT TRIAL TO INDUSTRIAL/CHEMICAL ACCIDENTSrespectfully requests that the Court prohibit at trial any references to industrial or chemical

2 ||accidents involving Union Carbide.

3 This motion is based on this notice, the memorandum of points and authorities

4 |/attached hereto, the pleadings and records on file herein, and upon such other documents

5 ||and oral argument as may be presented at the hearing on this motion.

6 MEMORANDUM OF POINTS AND AUTHORITIES

TAL INTRODUCTION

8 Plaintiff contends that he developed asbestosis from exposure to numerous asbestos-

9 ||containing products, and that he has suffered losses due to his injuries as a result. Plaintiff
10 ||claims that some of the products to which he may have been exposed contained asbestos
11 ||supplied by Union Carbide. Thus, to prevail, Plaintiff must prove that his injuries were
12 ||asbestos-related, that Union Carbide’s specific Calidria asbestos' was a substantial factor in
13 ||causing his injury, and if so, that Union Carbide is now liable for any harm suffered.
14 Union Carbide anticipates that Plaintiff may attempt to introduce evidence of
15 ||irrelevant incidents with which Union Carbide may be connected but that are not related in
16 ||any way to Union Carbide’s alleged liability for asbestos-containing products. By way of

17 |\illustration, but without limitation, such irrelevant incidents may include:

18 1 An incident in the 1930s at Gauley Bridge, West Virginia, in which workers
19 died while tunneling through Hawk's Nest Mountain;
20 2. A 1981 incident in which propylene oxide was released into the Kanawha
4 River in West Virginia; and

3. A 1984 incident at Bhopal, India, in which a chemical plant leaked isocyanate
22 gas.
23 These incidents are wholly unrelated to any of the issues in this case. Evidence of
24 these incidents, or other incidents not related to products or premises at issue in this case, is
25 | therefore irrelevant, unfairly prejudicial, and inadmissible.
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28 ||! The type of asbestos Union Carbide sold was called “Calidria,” which refers to the fact it was mined from
the New Idria serpentine deposit in California.

BryDON 2
Huo & PARKER
enon DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 5 TO EXCLUDE ALL

San Hance, CA Mts REFERENCES AT TRIAL TO INDUSTRIAL/CHEMICAL ACCIDENTS1) IL ARGUMENT

2 Under Evidence Code section 350, only relevant evidence is admissible. Evidence
3 ||Code section 210 defines “relevant evidence” as “evidence ... having any tendency in

4 ||reason to prove or disprove any disputed fact that is of consequence to the determination
of the action.” Evidence is relevant if it “tends ‘logically, naturally, and by reasonable

inference’ to establish material facts.” (People v. Benavides (2005) 35 Cal.4th 69, 90 [citing

~ nis

People v. Garceau (1993) 6 Cal.4th 140, 177].) Although a trial court has broad discretion in
8 ||\determining the relevance of evidence, it has no discretion to admit irrelevant evidence.

9 || (Benavides, supra, 35 Cal.4th at 90.)
10 Evidence, although otherwise relevant, may still not be admissible. Under Evidence
11 }|Code section 352, a court has the discretion to exclude relevant evidence if “its probative
12 ||value is substantially outweighed by the probability that its admission will (a) necessitate
13 ||tundue consumption of time, or (b) create substantial danger of undue prejudice, of
14 | confusing the issues, or of misleading the jury.” (Evid. Code, § 352; see also Robinson v.
15 ||Grossman (1997) 57 Cal.App.4th 634, 647 [holding that only relevant evidence is admissible
16 | and court had discretion to exclude relevant evidence if probative value was substantially
17 |joutweighed by probability that admission would necessitate undue consumption of time or
18 ||create substantial danger of undue prejudice, of confusing issues, or of misleading jury].)
19 Plaintiff may attempt to introduce evidence of irrelevant incidents with which Union
20 |/ Carbide may be connected but that are not related in any way to Union Carbide’s alleged
21 | liability to Plaintiff caused by products allegedly containing asbestos. Evidence of prior
22 | accidents, occurrences, and injuries is relevant only when there is similarity between the
23 |/issue to be tried and the other accidents, occurrences, or injuries. (See Elsworth v. Beech
24 || Aircraft Corp. (1984) 37 Cal.3d 540, 555; Genrich v. State of Calif. (1988) 202 Cal_App.3d 221,
25 |/227-228.) Plaintiff cannot reasonably contend that the above-mentioned accidents, or any

26 |/other non-asbestos-related incidents, meets the similarity requirement under California

27 |ilaw.
28 This case involves Union Carbide’s supply of Calidria asbestos to certain tape joint
BRYDON 3
Huo & PARKER
enon DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 5 TO EXCLUDE ALL

San Hance, CA Mts REFERENCES AT TRIAL TO INDUSTRIAL/CHEMICAL ACCIDENTS1 ||compound manufacturers at various points in time, beginning, at the earliest, in 1964, and
2 ||ending at the latest in 1978. None of the other incidents mentioned above have any

3 ||connection to Plaintiff's claims against Union Carbide for its production of Calidria, or

4 ||happened with any similarity of time, place, condition, or circumstances to any of the
events related to claims brought by Plaintiff in this case. Any attempt by Plaintiff to

introduce any of these incidents into this trial would serve only to improperly influence the

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jury with irrelevant evidence. Evidence of these incidents is therefore inadmissible.

8 Further, even if any of the above-mentioned incidents were in any way relevant to

9 ||Union Carbide’s liability in this case, evidence related to them should still be excluded as
10 ||unfairly prejudicial and confusing under Evidence Code section 352. (See, e.g., Kessler v.
11 ||Gray (1978) 77 Cal.App.3d 284, 291; Robinson v. Grossman (1997) 57 Cal. App.4th 634, 647.)
12 }|Section 352 seeks to prevent unfair prejudice that results from the tendency to suggest a
13 ||decision on an improper basis, commonly, though not necessarily, an emotional one. “The
14 | ‘prejudice’ referred to in California Evidence Code Section 352 applies to evidence which
15 |/uniquely tends to evoke an emotional bias against the defendant as an individual and
16 ||which has very little effect on the issues.” (People v. Karis (1988) 46 Cal.3d 612, 638.)
17 The probative value of these industrial accidents, if any, is extremely low, while the
18 ||potential prejudice to Union Carbide is significant. Such evidence would allow Plaintiff to
19 | divert the jurors’ attention away from the issues in this case and onto other alleged “bad
20 | conduct” of a highly inflammatory nature that would force Union Carbide to defend
21 {multiple unrelated claims in this action. For these reasons, other courts have refused to
22 | admit such irrelevant evidence. (See, e.g., Union Carbide Corp. v. Montell, N.V., 28 F.Supp.2d
23 |/833, 838 (S.D.N.Y. 1998) [granting motion in limine in antitrust case to exclude references to
24 | Bhopal incident due to its prejudicial and confusing effect].) Allowing any of the above-
25 |/mentioned incidents into evidence would serve no purpose other than to allow Plaintiff to
26 ||try to inflame the passions of the jury, and give the jury license to find Union Carbide liable
27 || for events wholly unrelated to any asbestos-related claim made by Plaintiff in this case.

28 || Therefore, such evidence should be excluded at trial.

BryDON 4
Huo & PARKER
enon DEFENDANT UNION CARBIDE CORPORATION'S MOTION IN LIMINE NO. 5 TO EXCLUDE ALL

San Hance, CA Mts REFERENCES AT TRIAL TO INDUSTRIAL/CHEMICAL ACCIDENTS1) 11. CONCLUSION
2 For the foregoing reasons, Union Carbide respectfully request that the Court
3 || prohibit Plaintiff from presenting, referring to, or offering evidence or argument at trial
4 ||(including voir dire) regarding industrial or chemical accidents.
5 ||Dated: February 21, 2012 BRYDON HUGO & PARKER
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7 By: /s/ Thomas |]. Moses
John R. Brydon
8 George A. Otstott
Thomas J. Moses
9 Attorneys for Defendant
10 UNION CARBIDE CORPORATION
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BRYDON 5
Henne
20” Floor DEFENDANT UNION CARBIDE CORPORATION’S MOTION IN LIMINE NO. 5 TO EXCLUDE ALL
Sn Fraesn CA TO5 REFERENCES AT TRIAL TO INDUSTRIAL/CHEMICAL ACCIDENTS