On June 06, 2007 a Motion,Ex Parte was filed involving a dispute between Castagna, Louis, and Advocate Mines Limited, Albay Construction Company, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, American Conference Of Governmental Industrial, American Conference Of Governmental Industrial Hyg, American Standard, Inc., Ameron International Corporation, A.O. Smith Corporation, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Baugh Construction Company, Bechtel Corporation, Bell Asbestos Mines Ltd., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Briggs & Stratton Corporation, Bucyrus International, Inc., Caterpillar Inc., Cbs Corporation, A Delaware Corporation, Chevron Products Company, Chevron U.S.A. Inc., Chicago Bridge & Iron Company,, Chrysler Llc Fka Daimlerchrysler Company Llc,, Conocophillips Company, Consolidated Insulation, Inc., Contra Costa Electric, Inc., Copeland Corporation, Copeland Corporation, Llc Fka Copeland Corporation, Crane Co., Csk Auto, Inc., Daimlerchrysler Company Llc, Formerly Known As, Daimlerchrysler Corporation, Dana Corporation, Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Durametallic Corporation, Eaton Corporation, Eaton Electrical Inc., Elliott Company,, Elliott Turbomachinery Co., Inc., Emsco Asbestos Company, Fibre & Metal Products Company, Fibre & Metal Products Company, Inc., Fisher Controls International Llc, Fmc Corporation, Fmc Corporation-Chicago Pump, Forcee Manufacturing Corp., Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, Gate City Plumbing & Heating, Gatke Corporation, General Electric Company, General Motors Corporation, Genuine Parts Co., Genuine Parts Company, Henry Vogt Machine Co., H. Krasne Manufacturing Company, Honeywell International Inc.,, Hopeman Brothers, Inc., Imo Industries Inc., Ingersoll-Rand Company, Interlake Steamship Co., Johnson Controls, Inc., J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Lamons Gasket Company, Landsea Holding Company, Lasco Brake Products, Lear Siegler Diversified Holdings Corp., Lindstrom & King Co., Inc., L.J. Miley Company, Maremont Corporation, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Automotive Parts Association, National Transport Supply, Inc., Nibco Inc., Oakfabco, Inc., Owens-Illinois, Inc., Paccar Inc., Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corp., Performance Mechanical, Inc., Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Rapid-American Corporation, Red-White Valve Corporation, Republic Supply Company, Riley Power Inc., Riley Power, Inc., Erroneously Sued As Babcock, Riteset Manufacturing Company, Rockwell Automation, Inc., Rossendale-Ruboil Company, Santa Fe Braun, Inc., Schlage Lock Company, Scott Co. Of California,, Sequoia Ventures Inc., Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Special Electric Company, Inc., Special Materials, Inc.-Wisconsin, Standard Motor Products, Inc., Standco, Inc, Sta-Rite Industries, Llc, Stuart-Western, Inc., Swinerton Builders Fka Swinerton & Walberg Co., Taco, Inc., Temporary Plant Cleaners, Inc., Terry Corporation Of Connecticut, Terry Steam Turbine Co., The Budd Company, The Dow Chemical Company, The Industrial Maintenance Engineering Contracting, The William Powell Company, Thomas Dee Engineering Company, Timec Company, Inc., Tosco Refining Company, Inc., Trane Us, Inc., Triple A Machine Shop, Inc., Tyco International, Underwriters Laboratories, Inc., Uniroyal Holding, Inc., Universal Friction Materials Company, Unocal Corporation, U.S. Spring & Bumper Company, Warren Pumps, Llc, Wheeling Brake Block Manufacturing Company, Yarway Corporation, Zurn Industries, Llc, Formerly Known As Zurn, for civil in the District Court of San Francisco County.
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a Dw BRYDON Huco & PARKER 135 Man grea 20" F008 San Francisen, CA 94105 Edward R. Hugo [Bar No. 124839] James C. Parker [Bar No. 106149] Shelley K. Tinkoff [Bar No. 187498] BRYDON HUGO & PARKER 135 Main Sireet, 20 Floor San Francisco, CA 94105 Telephone: (415) 808-0300 Facsimile: (415) 808-0333 Email: tinkoff@bhplaw.com Attorneys for Defendant FOSTER WHEELER LLC ELECTRONICALLY FILED Superior Court of California, County of San Francisco OCT 01 2010 Clerk of the Court BY: JUANITA D. MURPHY Deputy Clerk SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION LOUIS CASTAGNA, Plaintiff, vs. ASBESTOS DEFENDANTS (BP), Defendants. L (ASBESTOS) Case No. CGC-07-274230 DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE WORKERS COMPENSATION RECORDS OF FOSTER WHEELER [18] INTRODUCTION FOSTER WHEELER LLC (“Defendant”) anticipates that Plaintiff will attempt to offer into evidence Workers’ Compensation claims brought against Defendant to show that it had “knowledge” of health hazards associated with exposure to asbestos dating back to the filing of those claims. Many of these documents are incomplete. All of the documents contain hearsay, and many involve correspondence and other writings totally unrelated to proceedings before the State Industrial Accident Commission or Workers’ Compensation Appeal Board. Many of the documents contain correspondence involving insurance carriers and their insured’s, and many of the documents lack any authentication. Such records should be excluded (1) as irrelevant to the issues presented in this action, (2) as unsubstantiated hearsay and offers to compromise, and (3) under 1 DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE WORKERS COMPENSATION RECORDS OF FOSTER WHEELER [18]BRYDON Huo & PARKER LIS Mane S7RBLT 20" LOUK Son Yranclsce, CA 94105 section 352 of the California Evidence Code in that any probative value of these records is substantially outweighed by the danger of undue prejudice, confusion of the issues, misleading of the jury, and, further, that introduction of said records will entail a substantial waste of this court’s time. Il. ARGUMENT A. WORKERS’ COMPENSATION DOCUMENTS ARE IRRELEVANT. 1. The Differences Between The Evidentiary Burden And Rules Regarding Workers’ Compensation Actions And Civil Actions Support A Finding That Workers” Compensation Actions Are Irrelevant To Any Determination Of Any Knowledge Of Defendants. Evidence that is not relevant is not admissible. (Cal. Evid. Code, § 350.) Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id, at § 210.) The tiling, settlement, or adjudication of Workers’ Compensation claims by Foster Wheeler's employees is entirely irrelevant to this civil action. Workers’ Compensation claims contain no facts relevant to the finding of any knowledge of a defendant. The standard of proof in Workers’ Compensation actions is entirely different than that applicable to civil lawsuits. Inquiry into either knowledge or negligence is beyond the scope of the Workers’ Compensation statutes, which require only that a claimant establish that an injury occurred during the course and scope of employment.? The primary focus is on whether the employee was injured during the course and scope of his or her employment. Furthermore, in a Workers’ Compensation action, all reasonable doubt as to whether an injury is compensable is to be resolved in favor of the employee. (California Compensation & Fire Co. v. Workmen's Compensation Appeals Board (1968) 68 Cal. 2d 157.) ' Section 3600 of the California Labor Code, which governs procedural law pertaiming to Workers’ Compensation actions, provides in pertinent part: Liability for the compensation provided by this division, in lieu of any other liability whatever to any person .. . shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment... (Emphasis added.) 2 DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE WORKERS COMPENSATION RECORDS OF FOSTER WHEELER [18]Brypon Huco & PARKER, 135 Matn Sievert 20" HLDOR Son Francisca, CA 94105 Further, the limited opportunity to conduct discovery about Workers’ Compensation claims and the lack of any real motive to investigate these claims renders evidence of the claims irrelevant to this action. Workers’ Compensation actions typically involve numerous employers over a period of many years. Thus, it may well be cheaper, and more advisable for a defendant to share in the settlement of a claim rather than to contest or investigate the validity of the claim. In addition, settlements by the defendants may well represent merely a nuisance value determination about the claim, rather than a demonstration of knowledge by the defendants about either conditions or products which were the cause of any disease alleged in the compensation claim. 2. Assuring Workers’ Compensation Claims Are Relevant To The Issue Of Knowledge Of Asbestos-Related Health Hazards Of Plant Workers, These Claims Are Not Relevant To The Issue Of Knowledge Of Asbestos-Related Health Hazards To This Plaintiff. The relationship between “dose” of exposure and disease and the differences between the amounts of exposure typically encountered by the different trades have been and remain to be important factors in the generally accepted medical opinions regarding hazards to workers exposed to asbestos. These important differences between the exposure of plant workers who, by the nature of that employment, worked near or around raw asbestos and other compounds used in the manufacturing process, and the exposure of other persons who worked near or around finished products, destroy any shred of relevancy between knowledge of any hazard to plant workers and knowledge of any hazards to non-plant workers. B. WORKERS’ COMPENSATION RECORDS ARE INADMISSIBLE HEARSAY. Section 1200 of the California Evidence Code provides that hearsay is “is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Workers’ Compensation actions and records contain hearsay which is not within any exception. 3 DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE WORKERS COMPENSATION RECORDS OF FOSTER WHEELER [18]BRYDON Huge & PARKER 138 MamN STREET 20" Foor San Franctsev, CA 94105 Plaintiff may contend that the records are admissible under California Evidence Code section 1280, the public records exception; however, the public records exception applies only to writings made by and within the scope of duty of a public employee and, Workers’ Compensation claims and records are not made by public employees. Additionally, the source of information as well as the method and time of preparation must indicate the document's trustworthiness. Workers’ Compensation records bear no such indication of trustworthiness. On the contrary, most are unauthenticated, duplicated copies of documents prepared by persons other than public employees in the course of settling or compromising Workers’ Compensation claims. Thus, the records should be excluded pursuant to Evidence Code section 1200. Cc. THE WORKERS’ COMPENSATION RECORDS ARE INADMISSIBLE AS EVIDENCE OF COMPROMISED CLAIMS. Section 1152 of the California Evidence Code provides: Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who had sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage of any part of it. Among the documents Plaintiff may attempt to introduce are documents properly termed “settlement contracts.” They contain the detailed terms of the settlements in cach of the Workers’ Compensation claims, and are a compromise of all questions other than the extent of disability. The Petitions for Lump Sum, the docket sheets, the final reports of injury, and the final report and settlement receipts all set forth the terms of settlement. As such, they may not be offered to establish any liability of any defendant to claimants or to establish knowledge of any defendant. Since the issues of cause and effect in settled claims are neither conceded nor adjudicated, there are no facts contained therein to put the defendants on notice that they were sources of any asbestos-related health hazard. ‘Thus, evidence of the settled claims must be excluded as inadmissible 4 DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE WORKERS COMPENSATION RECORDS OF FOSTER WHEELER [18]a aa 20 Brypon HuGo & PARKER 138 MAIN STREET 20 FLOOR San Franelaco, CA 84105 hearsay pursuant to California Evidence Code section 1152. D. ASSUMING THAT PRIOR WORKERS’ COMPENSATION CLAIMS ARE RELEVANT, THEY SHOULD BE EXCLUDED FROM EVIDENCE AS THEIR PROBATIVE VALUE IS FAR OUTWEIGHED BY THEIR PREJUDICIAL EFFECT. Section 352 of the California Evidence Code provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. In In re Related Asbestos Cases (N.D. CA) 543 F.Supp. 1152, 1156 the court excluded Workers’ Compensation records and summaries on the very basis that they would be unduly prejudicial and would consume undue amounts of time: It is not clear whether each action was settted or adjudicated, [or] whether an action was merely settled for its nuisance value. These questions suggest that admitting the records may pose serious policy concerns. Moreover, the voluminous documents present innumerable collateral issues. The defendants would undoubtedly pursue such issues in detail on cross-examination, The remoteness in time of many of the actions, as well as the multiplicity of jurisdictions in which the actions occurred, insure that such an exercise would not serve to enlighten the jury as to the central issues of the case, but, instead, would cause unnecessary confusion and undue delay. Mere reference to any prior Workers’ Compensation claims would clearly cause irreparable damage to the defendants. There is grave danger that, despite any court admonition to the contrary, the records will mislead the jury to find that a defendant had knowledge of a relationship between asbestos and certain disease, simply because a claim alleging a disease was stated and compromised in an earlier claim. This reasoning is fallacious and misleading due to the many factors regarding the differing purposes, standards of proof of compensation claims, and the motivation to defendant against said claims. Moreover, inasmuch as the substantive and procedural law is different at a Workers’ Compensation hearing, any use of prior Workers’ Compensation records, claims, settlement documents, or testimony related thereto would be confusing, irrelevant, and prejudicial to Defendant. 5 DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE WORKERS COMPENSATION RECORDS OF FOSTER WHEELER [18]BRYDON HuGo & PARKER, 135 MALY STREET 20 FLOOR, San krancisso, CA 96105 Lastly, not only does the prejudicial value of Workers’ Compensation claims far outweigh any probative value, but their admission would cause an undue waste of the Court's time. The introduction into evidence of the Workers’ Compensation claims requires the defendants to demonstrate to the jury the distinctions between each such compensation claim and the case of the Plaintiff. These distinctions include a comparison between the job duties, places of claimed exposure, the type of products or raw asbestos found at each location, the duration of exposure, the medical condition and diagnosis of each claimant, and the state of the medical knowledge regarding the relationship between the exposure encountered by each category of worker and any disease alleged. In addition, a significant amount of time is required to determine whether each document found in each claim can survive hearsay objections, and whether the claims brought under the evidentiary rules regarding Workers’ Compensation claims can survive the evidentiary requirements of present-day civil actions. Ill. CONCLUSION For the foregoing reasons, this Court should issue an order instructing Plaintiff, Plaintiff's counsel, and Plaintiff's witnesses not to refer to, interrogate regarding, comment on, or attempt to suggest to the jury any evidence relating to the existence of Workers’ Compensation claims, and for an order excluding all Workers’ Compensation records and all documents, claim forms, and settlement agreements contained therein from the evidence in this case. Dated: September 30, 2010 BRYDON HUGO & PARKER By: /s/ Shelley K. Tinkoff Edward R. Hugo James C. Parker Shelley K. Tinkoff Attorneys for Defendant FOSTER WHEELER LLC 6 DEFENDANT FOSTER WITEELER LLC’S MOTION IN LIMINE TO EXCLUDE WORKERS COMPENSATION RECORDS OF FOSTER WHEELER [18]