On March 02, 2009 a Motion,Ex Parte was filed involving a dispute between Husband, Charles, and Albay Construction Company, All Asbestos Defendants See Scanned Documents, American Conference Of Governmental Industrial, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Bell Asbestos Mines Ltd., Bigge Crane And Rigging Co., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Bucyrus International Inc, Carone Brothers, Inc., Cbs Corporation,, Certainteed Corporation, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Conocophillips Company, Csk Auto, Inc., Daimlerchrysler Corporation, Daimlerchrysler Corporation (And Not The Claims, Dillingham Construction, N.A., Inc., Does 1-8500, Emsco Asbestos Company, Fibre & Metal Products Company, Forcee Manufacturing Corporation, Garlock Sealing Technologies Llc, Gatke Corporation, Georgia-Pacific Corporation, Georgia-Pacific Llc,, Hamilton Materials, Inc, Hanson Permanente Cement, Inc. Fka Kaiser Cement, H. Krasne Manufacturing Company, Honeywell International Inc.,, Ingersoll-Rand Company, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Lasco Brake Products, Lear Siegler Diversified Holdings Corp., L.J. Miley Company, Maremont Corporation, Marine Engineering And Supply Company, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Transport Supply, Inc., Owens-Illinois, Inc., Pacific Gas And Electric Company, Parker Hannifin Corporation, Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Riteset Manufacturing Company, Rossendale-Ruboil Company, Santa Fe Braun, Inc. As Successor-In-Interest To, Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Standard Motor Products, Inc., Standco, Inc., Stuart-Western, Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Underwriters Laboratories, Inc., Union Carbide Corporation, Universal Friction Materials Company, U.S. Spring & Bumper Company, Wheeling Brake Block Manufacturing Company, York International Corporation, for civil in the District Court of San Francisco County.
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oe SBN DT RF DW De a a a a a a nn nu DF FF OO NY FB DS BryDON Huco & PARKER 135 Main SeREET 20" FLOOR ‘Sart Francisco, CA 94105 John R. Brydon [Bar No. 083365] George A. Otstott [Bar No. 184671] Thomas J. Moses [Bar No. 116002] BRYDON HUGO & PARKER ELECTRONICALLY 135 Main Street, 20th Floor FILED San Francisco, CA 94105 Superior Court of California, Telephone: (415) 808-0300 County of San Francisco Facsimile: (415) 808-0333 FEB 21 2012 Email: service@bhplaw.com Clerk of the Court Attorneys for Defendant BY: ALISON ae puty Clerk UNION CARBIDE CORPORATION SUPERIOR COURT ~ STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION CHARLES HUSBAND, (ASBESTOS) Case No. CGC-09-275098 Plaintiff, DEFENDANT UNION CARBIDE vs. CORPORATION’S MOTION IN LIMINE NO. 3 TO PRECLUDE CERTAIN ASBESTOS DEFENDANTS (B%P), EVIDENCE REGARDING ALLEGED HEALTH CONDITIONS OF ANY UNION Defendants. CARBIDE KING CITY ASBESTOS WORKER TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: Defendant UNION CARBIDE CORPORATION (“Union Carbide”) respectfully moves this Court in limine for an order, pursuant to Evidence Code sections 210, 352, 720, and 800-803, prohibiting Plaintiff CHARLES HUSBAND ("Plaintiff’) from presenting, referring to, or offering evidence, whether through testimony, medical records, or other documents regarding any alleged asbestos-related health conditions among former Union Carbide or KCAC, Inc. Calidria asbestos workers. This motion is based on this notice, the memorandum of points and authorities attached hereto, the pleadings and records on file herein, and upon such other documents and oral argument as may be presented at the hearing on this motion. 4 DEFENDANT UNION CARBIDE CORPORATION’S MOTION IN LIMINE NO. 3 TO PRECLUDE CERTAIN EVIDENCE REGARDING ALLEGED HEALTH CONDITIONS OF ANY UNION CARBIDE KING CITY ASBESTOS WORKERoe SBN DT RF DW De VB BF Re Be Be Be Be Be So hm UR GH RF ON SB SD BryDON Huco & PARKER 135 Main SeREET 20" FLOOR ‘Sart Francisco, CA 94105 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Union Carbide is sued in this asbestos personal injury action as one of several suppliers to manufacturers of asbestos-containing drywall joint compound that Plaintiff allegedly worked around. Plaintiff alleges that he has developed the disease "asbestosis" — a form of non-cancerous lung scarring ~ from exposure to asbestos in products manufactured by a variety of defendants. Union Carbide anticipates that the primary issue in this case will be whether Plaintiff was in fact, exposed to asbestos attributable to it. In addition, the parties may present evidence regarding differences among asbestos fiber types. Union Carbide mined, milled and sold a type of short fiber "chrysotile" asbestos, referred to as “Calidria” asbestos, from the New Idria Serpentine Deposit in California. Calidria asbestos differs chemically and physically from long “amphibole” asbestos, such as crocidolite and amosite. There is a significant body of published and peer reviewed literature discussing the impact of fiber type on the disease causing potential of asbestos. This difference among fiber types is supported by the fact that there is no reliable evidence that any of the approximately 450 workers who mined and milled Calidria asbestos has developed an asbestos related disease.! At the same time, litigating issues related to the health of former Calidria workers could result in undue and potentially prejudicial mini-trials that would be irrelevant to the real issue in this case — Plaintiff's alleged asbestosis. Plaintiff did not work for Union Carbide and was not exposed to asbestos under circumstances similar to the Calidria workforce. For these reasons, should ! Union Carbide operated its King City asbestos plant from 1963 until 1985, when the business was sold to KCAC, Inc. Union Carbide provided its Calidria workers with a comprehensive medical monitoring program conducted by outside physicians, periodic medical examinations, which included periodic chest x- rays and pulmonary function testing. Union Carbide documents reflect that throughout the course of the medical monitoring program, none of its workers were diagnosed with an asbestos-related disease. Physicians who administered the medical monitoring program sent a number of periodic reports to John Myers, a former Union Carbide and KCAC employee, confirming the absence of asbestos related-disease among the Calidria workers. These letters, written in 1984, 1988, 1989 and 1992, are attached hereto as Exhibit A. Mr. Myers retired from KCAC in 1993. 2 DEFENDANT UNION CARBIDE CORPORATION’S MOTION IN LIMINE NO. 3 TO PRECLUDE CERTAIN EVIDENCE REGARDING ALLEGED HEALTH CONDITIONS OF ANY UNION CARBIDE KING CITY ASBESTOS WORKERoe SBN DT RF DW De VB BF Re Be Be Be Be Be So hm UR GH RF ON SB SD BryDON Huco & PARKER 135 Main SeREET 20" FLOOR ‘Sart Francisco, CA 94105 the Court grant this motion, Union Carbide would also agree not to raise the health of its workers as a defense to this action. I. ARGUMENT The issue in this case is the causation of Plaintiffs disease, not the health of Union Carbide's former workers. Further, Plaintiff has failed to lay an adequate expert medical foundation to establish that, in fact, Calidria workers have experienced any asbestos-related disease. A. Evidence Unrelated To Plaintiff Is Irrelevant and Should Be Excluded Under Evidence Code 352 As discussed above, Union Carbide believes there is no reliable evidence that any former Calidria worker has developed an asbestos-related disease. However, that is not the issue in this case. This case should and must be focused on the issue of whether Plaintiff is able to present evidence to establish that he was exposed to asbestos attributable to Union Carbide. Moreover, whatever probative value could be imagined for such evidence would be vastly outweighed by undue time consumption and prejudicial effects and therefore should be excluded. (Evid. Code, § 352 [court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... necessitate undue consumption of time... .”]; Evid. Code, § 352 [court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice ....”].) For example, the diagnosis of diseases such as asbestosis is often complex and hotly disputed. Similarly, lung cancer is common among smokers and cases centering on whether a particular case of lung cancer can be related to asbestos exposure often take weeks themselves to litigate. Resolving such disputes would, of necessity, result in trials within this trial. The consumption of time and potential for jury confusion inherent in such mini-trials alone would warrant limiting the issue in this case to whether any former King City worker developed asbestosis. (See Gouskos v. Aptos Village Garage, Inc. (2001) 94 3 DEFENDANT UNION CARBIDE CORPORATION’S MOTION IN LIMINE NO. 3 TO PRECLUDE CERTAIN EVIDENCE REGARDING ALLEGED HEALTH CONDITIONS OF ANY UNION CARBIDE KING CITY ASBESTOS WORKERoe SBN DT RF DW De VB BF Re Be Be Be Be Be So hm UR GH RF ON SB SD BryDON Huco & PARKER 135 Main SeREET 20" FLOOR ‘Sart Francisco, CA 94105 CaLApp.4th 754, 760-762 [affirming trial court’s exclusion of evidence of similar acts by defendant against non-parties as unnecessarily time consuming “[b]ecause the facts of the prior incidents had not been fleshed out in discovery and the extent to which the facts would need to be fleshed out at trial was unknown.”].) Further, having to conduct peripheral mini-trials regarding the health of King City worker would be inherently prejudicial to Union Carbide. Plaintiff's primary goal would ‘be to paint Union Carbide as a bad employer that injured its own workers. Union Carbide disputes that contention, but would be placed in a hopelessly prejudiced position having to defend itself against every conceivable allegation in the context of this one case. Plaintiff's accusations would carry a weight beyond their own merit and would taint the jury's determination of the actual issue in this case— whether Plaintiff was exposed to Union Carbide’s asbestos and whether such exposure caused his alleged injury. (See Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008 [evidence is unduly prejudicial when “it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” ].) B. Plaintiff Has Not Laid An Adequate Foundation To Establish That Former Union Carbide or KCAC Workers Have Experienced Any Asbestos-Related Disease Even to the extent admission of evidence regarding health conditions among Calidria workers would otherwise be proper, Plaintiff has not designated any competent expert witness to lay a foundation for that evidence. Without the testimony of a competent expert witness, Plaintiff cannot establish, to a reasonable degree of medical certainty, that any particular Calidria worker actually had an asbestos-related disease or that it was attributable to exposures during the time when they performed that work. Without this foundation, any allegations regarding health conditions among former Calidria workers 4 DEFENDANT UNION CARBIDE CORPORATION’S MOTION IN LIMINE NO. 3 TO PRECLUDE CERTAIN EVIDENCE REGARDING ALLEGED HEALTH CONDITIONS OF ANY UNION CARBIDE KING CITY ASBESTOS WORKERoe SBN DT RF DW De a a a a a a nn nu DF FF OO NY FB DS BryDON Huco & PARKER 135 Main SeREET 20" FLOOR ‘Sart Francisco, CA 94105 would be inherently speculative, unreliable and inadmissible. (Evid. Code §§ 720, 800-803; see also Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal. 3d 689, 702 [“Tf the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case.”). Il. CONCLUSION For the reasons set forth above and based on the authorities cited herein, Union Carbide respectfully requests that this Court grant its motion in limine to preclude evidence regarding any alleged asbestos-related health conditions among former Union Carbide or KCAC Calidria asbestos workers. Union Carbide also asks the Court to order Plaintiff's counsel to so inform their respective witnesses, and to instruct such witnesses to follow the Court’s instructions. Dated: February 21, 2012 BRYDON HUGO & PARKER By: _/s/ Thomas J. Moses John R. Brydon George A. Otstott Thomas J. Moses Attorneys for Defendant UNION CARBIDE CORPORATION 5 DEFENDANT UNION CARBIDE CORPORATION’S MOTION IN LIMINE NO. 3 TO PRECLUDE CERTAIN EVIDENCE REGARDING ALLEGED HEALTH CONDITIONS OF ANY UNION CARBIDE KING CITY ASBESTOS WORKER