Practice Forms Motion In Limine-Opposition

Practice Forms-Motion In Limine-Opposition:

John Doe
Attorney At Law
Address  _____________
Telephone No: ___________

Attorneys for

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.

IN AND FOR THE COUNTY OF _____________ (insert name of county)
[or other court as appropriate]

                      Defendant [eg. PLANT INSULATION COMPANY] ________ (hereinafter "Defendant")
hereby opposes the plaintiff's motion in limine for an order which would preclude defendants from offering evidence of [eg. plaintiff's/plaintiff's decedent's smoking history because the alleged disease in this case is mesothelioma. Clearly evidence regarding one's smoking history is admissible to show a reduced life expectancy and a disregard of warnings.]

                                                                    ARGUMENT AND POINTS AND AUTHORITIES
                                                                                IN SUPPORT OF MOTION

                            [insert argument and supporting auto rites regarding testimony or evidence  objected to]

It is difficult to prove or disprove that cigarettes increase the body's susceptibility to mesothelioma. However, studies of other asbestos­related diseases suggest that smoking increases the risks associated withasbestos exposure. That is, even where smoking cannot independently cause a disease, it can nevertheless materially increase an asbestos‑exposed person's risk of the disease. It would appear that smoking either allows asbestos fibers to penetrate more deeply into the lung and the pleura, or makes lung and pleural tissue more susceptible to injury by asbestos fibers.
 

Defendant contends that plaintiff's/plaintiff's decedent's smoking habit is admissible to demonstrate (1) a decreased life expectancy independent of the disease mesothelioma and independent of asbestos exposure, and (2) that health warnings placed on products were disregarded. Under appropriate circumstances this evidence is relevant and should be admissible.

Further, since the evidence of smoking is admissible on these issues4, little purpose would be served by prohibiting defense experts from discussing the role of smoking in increasing susceptibility to asbestos‑related diseases including mesothelioma. Defendant will seek leave of this court to make an offer of proof on this latter additional issue only if there will be support for the argument in the medical evidence proffered at trial. Defendant contends that there can be no reason to preclude the offering of such evidence on this additional point if testimony of an expert is offered to show that there may be a link between smoking and an increased risk of developing a disease or cancer, such as mesothelioma.

There is little reason to doubt that smoking markedly decreases life expectancy. The probative value of plaintiffs reaction to the Surgeon General's cigarette warnings also bears strongly upon plaintiff's claim, if one is being made, for relief under a failure to warn theory.

CONCLUSION

For the reasons set forth hereinabove, plaintiff's motion should be

denied and the proffered evidence considered for the specific purposes which

have been enumerated above.

DATED: ___________ , 20001                                                         By:
                                                                                                          _____________________
                                                                                                            Attorneys for Defendant
                                                                                                     PLANT INSULATION COMPANY