On January 22, 2019 a
Motion,Ex Parte
was filed
involving a dispute between
Chulick, Carol,
Hagen, Deborah,
Hagler, Joleen,
and
Anheuser-Busch, Llc,
Anheuserbusch, Llc,
Associated Insulation Of California,
Buttner Corp.,
Columbia Mechanical Contractors, Inc.,
Cooper Brothers, Inc.,
Cosco Fire Protection, Inc.,
Does 1 Through 800, Inclusive, As Required By,
D. Zelinksy & Sons, Inc.,
D. Zelinsky & Sons, Incorporated,
Fdcc California, Inc.,
Frank Bonetti Plumbing, Inc.,
George H. Wilson, Inc.,
George Wilson Company, Inc.,
Grinnell Llc,
Grinnell Llc (Fka Grinnell Corporation, Aka,
Johnson Controls, Inc.,
Kelly-Moore Paint Company, Inc.,
Kellymoore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Metropolitan Life Insurance Company,
Monterey Mechanical Co.,
Riley Power Inc.,
Rosendin Electric, Inc.,
Rudolph And Sletten, Inc.,
Scott Co. Of California,
Texaco Inc.,
W.L. Hickey Sons, Inc.,
Chulick, Carol,
Hagen, Deborah,
Hagler, Joleen,
for ASBESTOS
in the District Court of San Francisco County.
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1 SUZANNE E. RISCHMAN (SBN CA 124421)
srischman@selmanlaw.com
2 SHELLEY K. TINKOFF (SBN CA 187498)
ELECTRONICALLY
sktinkoff@selmanlaw.com
3 SELMAN BREITMAN LLP F I L E D
33 New Montgomery, Sixth Floor Superior Court of California,
County of San Francisco
4 San Francisco, CA 94105-4537
Telephone: 415.979.0400 01/03/2022
5 Facsimile: 415.979.2099 Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
Deputy Clerk
6 Attorneys for Defendant
SCOTT CO. OF CALIFORNIA
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8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION
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11 CAROL CHULICK, as Successor-in-Interest to Case No. CGC-19-276757
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and as Wrongful Death Heir of JOHN
12 CHULICK, Deceased; and DEBORAH
Breitman
HAGEN and JOLEEN HAGLER, as Wrongful DEFENDANT SCOTT CO. OF
AT LAW
13 Death Heirs of JOHN CHULICK, Deceased, CALIFORNIA AND MONTEREY
MECHANICAL CO.’S JOINT MOTION
14 Plaintiffs, IN LIMINE TO PRECLUDE
ATTORNEYS
TESTIMONY OF MONTE MANWILL RE
15 v. ASBESTOS CONTENT OF PRODUCTS
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16 RILEY POWER INC., et al., Judge: Hon. Jeffrey S. Ross
Dept.: 502
17 Defendants. Action Filed: January 22, 2019
Trial Date: December 27, 2021
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DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE
TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCT
1076 45303 4858-0805-9144 .v1
1 PLEASE TAKE NOTICE that Defendants SCOTT CO. OF CALIFORNIA ("Scott Co.")
2 and MONTEREY MECHANICAL CO. (“Monterey Mechanical” and jointly referred to as
3 “Moving Defendants”) hereby jointly move, in limine, for an order precluding Plaintiffs’ lay
4 witness, Monte Manwill (“Manwill”), from testifying about the asbestos content of products
5 installed, removed or disturbed at various jobsites, and to preclude Manwill from testifying that
6 debris and dust on any site contained asbestos fibers and/or exposed Decedent John Chulick
7 (“Decedent”) to asbestos.
8 I. STATEMENT OF FACTS
9 Moving Defendants anticipate that Plaintiffs will offer as evidence non-party fact witness
10 Monte Manwill’s testimony that certain materials on construction sites where he allegedly
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worked with Decedent contained asbestos. Manwill, as a lay witness, is not qualified to offer an
12 opinion as to the asbestos content of any material used on a construction site. (Evid. Code § 801.)
Breitman
AT LAW
13 He is further not qualified to offer opinions that any dust or debris disturbed by Moving
14 Defendants contained asbestos fibers or that the dust and debris exposed Decedent to asbestos.
ATTORNEYS
15 These are matters for an expert to opine on. Defendants seek an order excluding any improper
Selman
16 opinion testimony from Manwill that any materials or products on the job sites where Decedent
17 worked contained asbestos or exposed Decedent to asbestos. Furthermore, Defendant seeks an
18 order excluding Plaintiffs’ experts from relying on any testimony from Manwill with respect to
19 the asbestos content of any materials present on Decedent’s job sites.
20 Manwill’s trial preservation deposition was taken in this case on October 23 and 24,
21 2019. He testified regarding his memory of working with Decedent on various jobsites.
22 A. Testimony re Scott Co.
23 Manwill testified that he and Decedent worked around Scott Co. employees at Alta Bates
24 Hospital in Berkeley and the Exxon/Humble Oil refinery in Benicia.
25 1. Alta Bates Hospital
26 Manwill testified to working with Decedent at Alta Bates on a new wing project.
27 Decedent installed a fiberglass board. Manwill stated that Scott Company installed piping.
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DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE
TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS
1076 45303 4858-0805-9144 .v1
1 (Exhibit A to Declaration of Shelley K. Tinkoff, p. 40:3-42:15.) He further stated that Scott Co.
2 was attaching piping to the ceiling that had previously been sprayed with a white and fluffy
3 material. He “[knew] it was asbestos, but [didn’t] know who made it at that particular job.” He
4 further claimed to be able to tell the difference between asbestos and non-asbestos fireproofing
5 because he “could tell the fibers in the fiber.” (Id. at 43:17-44:14.) Manwill stated that Scott Co.
6 used asbestos blankets to control sparks while welding and that he had “no doubt in his mind”
7 that they were asbestos. (Id. at 45:7-46:5.)
8 Manwill testified that he worked with Decedent for four days in 1968 at Alta Bates and
9 Scott Co. was attaching ductwork. (Exhibit B to Declaration of Shelley K. Tinkoff, p. 174:25-
10 175:20.) He stated that he saw bags of fireproofing material labeled “Monokote” with no other
11 writing on them. (Id. at 176:17-178:19.) He further testified that Scott Co. used asbestos blankets
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12 and asbestos tape on this project. He did not know the brand or manufacturer of the welding
Breitman
AT LAW
13 blankets or duct liner. (Id. at 178:20-180:2.) He claimed that knew that the tape contained
14 asbestos “just from working around it…” (Id. at 181:10-12.)
ATTORNEYS
15 2. Exxon/Humble Oil, Benicia
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16 Manwill testified that he and Decedent worked at this refinery in about 1968. (Exhibit A
17 at 47:16-23.) Apparently, Exxon Mobil has stated that this refinery utilized no asbestos.
18 However, Mr. Manwill disputes that vehemently by saying he “[doesn’t] care what Exxon
19 claims” but fails to provide any basis for that aside from his own assertions. (Id. at 48:14-49:16.)
20 Manwill testified that Scott Co. was a mechanical contractor on one of the projects at this site.
21 (Id. at 52:13-53:3.) He claims that Scott Co. was installing flanged ducts using gaskets that
22 looked like two inch white asbestos tape. (Id. at 53:18-54:16.) He further claimed that Scott Co.
23 used asbestos cloth on their scaffolding. (Id. at 56:11-57:2.) Manwill testified that Scott Co. was
24 running pre-insulated duct under a unit. (Exhibit B at 187:20-25.) They used a tape Mr. Manwill
25 described as asbestos tape but he did not know the brand or manufacturer of that product. (Id. at
26 189:20-190:4.)
27 B. Testimony re Monterey Mechanical
28 As to Monterey Mechanical Co., Manwill testified that the only site he recalled seeing
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DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE
TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS
1076 45303 4858-0805-9144 .v1
1 Monterey Mechanical work around Mr. Chulick was on one job, at the Lawrence Radiation Lab.
2 This was a remodel job. (Exhibit A at 15:23-25; 17:23-18:5; 19:5-17; 20:3-17; 111:2-9.)
3 Manwill testified, without foundation, that Monterey Mechanical installed and removed
4 the piping, the mechanical systems and a little ductwork. Monterey Mechanical installed the
5 piping and ductwork while Manwill insulated the piping and ductwork. (Id. at 21:14-25; 22:15-
6 23:17) Manwill also claimed that Monterey Mechanical removed calcium silicate (Id. at 22:15-
7 23:17), that the calcium silicate was manufactured by either Pabco or Kaylo (Id. at 23:8-21), that
8 Monterey Mechanical disturbed asbestos containing Monokote fireproofing (Id. at 27:11-25),
9 used asbestos welding blankets (29:18-30:16) and that Monterey Mechanical removed asbestos
10 gaskets (Id. at 32:6-33:25)
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II. LEGAL ARGUMENT
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A. Legal Standard
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AT LAW
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“In the context of a cause of action for asbestos-related latent injuries, the plaintiff must
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first establish some threshold exposure” to asbestos through a defendant, “and must further
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establish in reasonable medical probability that a particular exposure or series of exposures was a
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‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” (Rutherford v.
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Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982, emphasis in original; see also McGonnell v.
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Kaiser Gypsum Co., Inc. (2002), 98 Cal.App.4th 1098, 1103.)
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Evidence Code §115 sets forth the quantum of proof required for plaintiffs to prove the
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facts supporting their claims. “‘Burden of proof’ means the obligation of a party to establish by
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evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.
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. . . [¶] Except as otherwise provided by law, the burden of proof requires proof by a
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preponderance of the evidence.” While plaintiffs can rely upon circumstantial evidence to prove
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causation, that evidence must “be of sufficient weight to support a reasonable inference of
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causation.” (Dumin, supra, 28 Cal.App.4th at p. 656.) A plaintiff cannot rely upon evidence that
26
is merely speculative or creates only “a dwindling stream of probabilities that narrow into
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conjecture.” (Ibid; see also McGonnell, supra, 98 Cal.App.4th at p. 1105; Whitmire, supra, 184
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DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE
TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS
1076 45303 4858-0805-9144 .v1
1 Cal.App.4th at p. 1093; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108 [holding
2 that "the mere 'possibility' of exposure does not create a triable issue of fact"].)
3 B. Lay Witnesses Are Not Qualified to Express Opinions Regarding
Whether Certain Material Contained Asbestos.
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Manwill, as a lay witness, is not qualified to testify as to the content of the construction
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debris in general. Only qualified experts can express opinions on subjects that are beyond
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common knowledge or experience. (Evid. Code § 801; see also People v. Smith (1989) 214
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Cal.App.3d 904, 915.) If a witness is not testifying as an expert, which Manwill is not, his
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testimony is limited to “an opinion that is rationally based on the perception of the witness,” and
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it must also be helpful to the jury. (Evid. Code § 800.) Opinions offered without a proper basis
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must be excluded. (Evid. Code § 803.) Here, Manwill is not disclosed or qualified as an expert
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witness and, as a lay witness, cannot testify as to the composition of the materials he claims he
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saw on the construction sites where he claims Moving Defendants’ employees disturbed asbestos
AT LAW
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containing products in the presence of Decedent. (Evid. Code §§ 403, 800, 801, 803.) Plaintiffs
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ATTORNEYS
have provided no foundation for Mr. Manwill’s testimony on these issues.
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Plaintiffs’ own experts will admit that they did not test the construction materials or
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debris at any job sites where Mr. Manwill purportedly worked around Decedent. Plaintiffs’
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experts will also admit that it cannot be determined whether certain materials such as
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fireproofing contained asbestos without testing it first.
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Consequently, any testimony that construction debris at any site did, in fact, contain
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asbestos would be speculative at best. Speculation and conjecture does not rise to the level of
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competent, contrary evidence. (See, e.g., McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98
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Cal.App.4th 1098 1106.). As such, Manwill cannot provide lay witness opinion as to the
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composition of dust and debris on any site because the determination of the composition of such
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material on these sites has not been established. Similarly, he cannot offer testimony that
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products or material in place and installed prior to his work on the site contained asbestos. Any
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testimony of Manwill to that effect should be excluded.
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DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE
TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS
1076 45303 4858-0805-9144 .v1
1 C. Lay Witness Testimony Regarding the Composition of Construction
Materials and/or Debris is Unduly Prejudicial and Would Mislead The Jury.
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Manwill’s testimony as to the asbestos content of materials or particles on any premises
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should be excluded as unduly prejudicial. The Court is empowered to exclude evidence if its
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probative value is outweighed by the probability that admission of such evidence will be unduly
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prejudicial, would confuse the issues, or would mislead the jury. (Evid. Code § 352.) Here,
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admission of lay witness opinion testimony regarding the composition of materials that
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admittedly were never tested for asbestos would be unduly prejudicial to Moving Defendants and
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would be confusing to the jury. Moreover, admission of such evidence has little, if any, probative
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value because it is based entirely on speculation. Any probative value derived there from is, thus,
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substantially outweighed by the likelihood of undue prejudice and confusion of the issues here,
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and should be excluded on those additional grounds.
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AT LAW
D. Evidence Lacking Admissibility Under Casey v. Perini
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It is anticipated that Plaintiffs’ experts will rely on Manwill’s testimony regarding the
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asbestos content of various products. However, lay witnesses are not permitted to offer such
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testimony based solely on their visual inspections of an alleged asbestos-containing material.
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The reasonableness of an expert's opinion is a question of degree, and may well vary with
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the circumstances. An expert's opinion rendered without a reasoned explanation of why the
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underlying facts lead to the ultimate conclusion has no evidentiary value because an expert
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opinion is worth no more than the reasons and facts on which it is based. (Casey v. Perini Corp.,
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(2012) 206 Cal. App. 4th 1222.)
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Thus, Plaintiffs and Plaintiffs’ experts cannot rely on the testimony of Manwill regarding
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the asbestos content of the fireproofing material and dust at issue herein. As such, any such
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testimony by Plaintiffs’ experts based solely on Manwill’s unsubstantiated opinions should be
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excluded by the Court.
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III. CONCLUSION
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For the foregoing reasons, Moving Defendants request that this Court exclude any
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testimony from Mr. Manwill regarding the composition of any of the construction material,
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DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE
TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS
1076 45303 4858-0805-9144 .v1
1 product, or debris/dust at Decedent’s job sites, Furthermore, any expert testimony offered by
2 Plaintiffs relying on Mr. Manwill’s testimony in this regard should also be excluded.
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4 DATED: January 3, 2022 SELMAN BREITMAN LLP
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By: /s/ Shelley K. Tinkoff ______________
7 SHELLEY K. TINKOFF
Attorneys for Defendant
8 SCOTT CO. OF CALIFORNIA
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DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE
TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS
1076 45303 4858-0805-9144 .v1
1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
2 Carol Chulick (WD John), et al. v. Riley Power, Inc., et al.
San Francisco Superior Court, Case No. CGC-19-276757
3 Defendant: SCOTT CO. OF CALIFORNIA
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
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5 I am employed in the County of San Francisco, State of California. I am over the age of
6 18 years, my business address is 33 New Montgomery, Sixth Floor, San Francisco, CA 94105,
7 and my email address is mlabrador@selmanlaw.com.
8 On the date shown below, I electronically served the following document(s) via File &
9 ServeXpress described as DEFENDANT SCOTT CO. OF CALIFORNIA AND
10 MONTEREY MECHANICAL'S JOINT MOTION IN LIMINE TO PRECLUDE
11 TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS on
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Breitman
AT LAW
13 Brayton Purcell Phn: 415-898-1555
222 Rush Landing Road Fax: 415-898-1247
14 P.O. Box 6169 Attorneys for Plaintiff/s
ATTORNEYS
Novato, CA 94945
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16 and the recipients designated on the Transaction Receipt located on the File & ServeXpress
17 website.
18 I declare under penalty of perjury under the laws of the State of California that the
19 foregoing is true and correct.
20 Executed on January 3, 2022 at San Francisco, California.
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22 Michelle Labrador
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PROOF OF SERVICE
1076 45303 4858-0805-9144 .v1
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1 SUZANNE E. RISCHMAN (SBN CA 124421) srischman@selmanlaw.com 2 SHELLEY K. TINKOFF (SBN CA 187498) ELECTRONICALLY sktinkoff@selmanlaw.com 3 SELMAN BREITMAN LLP F I L E D 33 New Montgomery, Sixth Floor Superior Court of California, County of San Francisco 4 San Francisco, CA 94105-4537 Telephone: 415.979.0400 01/03/2022 5 Facsimile: 415.979.2099 Clerk of the Court BY: YOLANDA TABO-RAMIREZ Deputy Clerk 6 Attorneys for Defendant SCOTT CO. OF CALIFORNIA 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION 10 11 CAROL CHULICK, as Successor-in-Interest to Case No. CGC-19-276757 LLP and as Wrongful Death Heir of JOHN 12 CHULICK, Deceased; and DEBORAH Breitman HAGEN and JOLEEN HAGLER, as Wrongful DEFENDANT SCOTT CO. OF AT LAW 13 Death Heirs of JOHN CHULICK, Deceased, CALIFORNIA AND MONTEREY MECHANICAL CO.’S JOINT MOTION 14 Plaintiffs, IN LIMINE TO PRECLUDE ATTORNEYS TESTIMONY OF MONTE MANWILL RE 15 v. ASBESTOS CONTENT OF PRODUCTS Selman 16 RILEY POWER INC., et al., Judge: Hon. Jeffrey S. Ross Dept.: 502 17 Defendants. Action Filed: January 22, 2019 Trial Date: December 27, 2021 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCT 1076 45303 4858-0805-9144 .v1 1 PLEASE TAKE NOTICE that Defendants SCOTT CO. OF CALIFORNIA ("Scott Co.") 2 and MONTEREY MECHANICAL CO. (“Monterey Mechanical” and jointly referred to as 3 “Moving Defendants”) hereby jointly move, in limine, for an order precluding Plaintiffs’ lay 4 witness, Monte Manwill (“Manwill”), from testifying about the asbestos content of products 5 installed, removed or disturbed at various jobsites, and to preclude Manwill from testifying that 6 debris and dust on any site contained asbestos fibers and/or exposed Decedent John Chulick 7 (“Decedent”) to asbestos. 8 I. STATEMENT OF FACTS 9 Moving Defendants anticipate that Plaintiffs will offer as evidence non-party fact witness 10 Monte Manwill’s testimony that certain materials on construction sites where he allegedly 11 LLP worked with Decedent contained asbestos. Manwill, as a lay witness, is not qualified to offer an 12 opinion as to the asbestos content of any material used on a construction site. (Evid. Code § 801.) Breitman AT LAW 13 He is further not qualified to offer opinions that any dust or debris disturbed by Moving 14 Defendants contained asbestos fibers or that the dust and debris exposed Decedent to asbestos. ATTORNEYS 15 These are matters for an expert to opine on. Defendants seek an order excluding any improper Selman 16 opinion testimony from Manwill that any materials or products on the job sites where Decedent 17 worked contained asbestos or exposed Decedent to asbestos. Furthermore, Defendant seeks an 18 order excluding Plaintiffs’ experts from relying on any testimony from Manwill with respect to 19 the asbestos content of any materials present on Decedent’s job sites. 20 Manwill’s trial preservation deposition was taken in this case on October 23 and 24, 21 2019. He testified regarding his memory of working with Decedent on various jobsites. 22 A. Testimony re Scott Co. 23 Manwill testified that he and Decedent worked around Scott Co. employees at Alta Bates 24 Hospital in Berkeley and the Exxon/Humble Oil refinery in Benicia. 25 1. Alta Bates Hospital 26 Manwill testified to working with Decedent at Alta Bates on a new wing project. 27 Decedent installed a fiberglass board. Manwill stated that Scott Company installed piping. 28 2 DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS 1076 45303 4858-0805-9144 .v1 1 (Exhibit A to Declaration of Shelley K. Tinkoff, p. 40:3-42:15.) He further stated that Scott Co. 2 was attaching piping to the ceiling that had previously been sprayed with a white and fluffy 3 material. He “[knew] it was asbestos, but [didn’t] know who made it at that particular job.” He 4 further claimed to be able to tell the difference between asbestos and non-asbestos fireproofing 5 because he “could tell the fibers in the fiber.” (Id. at 43:17-44:14.) Manwill stated that Scott Co. 6 used asbestos blankets to control sparks while welding and that he had “no doubt in his mind” 7 that they were asbestos. (Id. at 45:7-46:5.) 8 Manwill testified that he worked with Decedent for four days in 1968 at Alta Bates and 9 Scott Co. was attaching ductwork. (Exhibit B to Declaration of Shelley K. Tinkoff, p. 174:25- 10 175:20.) He stated that he saw bags of fireproofing material labeled “Monokote” with no other 11 writing on them. (Id. at 176:17-178:19.) He further testified that Scott Co. used asbestos blankets LLP 12 and asbestos tape on this project. He did not know the brand or manufacturer of the welding Breitman AT LAW 13 blankets or duct liner. (Id. at 178:20-180:2.) He claimed that knew that the tape contained 14 asbestos “just from working around it…” (Id. at 181:10-12.) ATTORNEYS 15 2. Exxon/Humble Oil, Benicia Selman 16 Manwill testified that he and Decedent worked at this refinery in about 1968. (Exhibit A 17 at 47:16-23.) Apparently, Exxon Mobil has stated that this refinery utilized no asbestos. 18 However, Mr. Manwill disputes that vehemently by saying he “[doesn’t] care what Exxon 19 claims” but fails to provide any basis for that aside from his own assertions. (Id. at 48:14-49:16.) 20 Manwill testified that Scott Co. was a mechanical contractor on one of the projects at this site. 21 (Id. at 52:13-53:3.) He claims that Scott Co. was installing flanged ducts using gaskets that 22 looked like two inch white asbestos tape. (Id. at 53:18-54:16.) He further claimed that Scott Co. 23 used asbestos cloth on their scaffolding. (Id. at 56:11-57:2.) Manwill testified that Scott Co. was 24 running pre-insulated duct under a unit. (Exhibit B at 187:20-25.) They used a tape Mr. Manwill 25 described as asbestos tape but he did not know the brand or manufacturer of that product. (Id. at 26 189:20-190:4.) 27 B. Testimony re Monterey Mechanical 28 As to Monterey Mechanical Co., Manwill testified that the only site he recalled seeing 3 DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS 1076 45303 4858-0805-9144 .v1 1 Monterey Mechanical work around Mr. Chulick was on one job, at the Lawrence Radiation Lab. 2 This was a remodel job. (Exhibit A at 15:23-25; 17:23-18:5; 19:5-17; 20:3-17; 111:2-9.) 3 Manwill testified, without foundation, that Monterey Mechanical installed and removed 4 the piping, the mechanical systems and a little ductwork. Monterey Mechanical installed the 5 piping and ductwork while Manwill insulated the piping and ductwork. (Id. at 21:14-25; 22:15- 6 23:17) Manwill also claimed that Monterey Mechanical removed calcium silicate (Id. at 22:15- 7 23:17), that the calcium silicate was manufactured by either Pabco or Kaylo (Id. at 23:8-21), that 8 Monterey Mechanical disturbed asbestos containing Monokote fireproofing (Id. at 27:11-25), 9 used asbestos welding blankets (29:18-30:16) and that Monterey Mechanical removed asbestos 10 gaskets (Id. at 32:6-33:25) 11 LLP II. LEGAL ARGUMENT 12 A. Legal Standard Breitman AT LAW 13 “In the context of a cause of action for asbestos-related latent injuries, the plaintiff must 14 ATTORNEYS first establish some threshold exposure” to asbestos through a defendant, “and must further 15 establish in reasonable medical probability that a particular exposure or series of exposures was a Selman 16 ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” (Rutherford v. 17 Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982, emphasis in original; see also McGonnell v. 18 Kaiser Gypsum Co., Inc. (2002), 98 Cal.App.4th 1098, 1103.) 19 Evidence Code §115 sets forth the quantum of proof required for plaintiffs to prove the 20 facts supporting their claims. “‘Burden of proof’ means the obligation of a party to establish by 21 evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. 22 . . . [¶] Except as otherwise provided by law, the burden of proof requires proof by a 23 preponderance of the evidence.” While plaintiffs can rely upon circumstantial evidence to prove 24 causation, that evidence must “be of sufficient weight to support a reasonable inference of 25 causation.” (Dumin, supra, 28 Cal.App.4th at p. 656.) A plaintiff cannot rely upon evidence that 26 is merely speculative or creates only “a dwindling stream of probabilities that narrow into 27 conjecture.” (Ibid; see also McGonnell, supra, 98 Cal.App.4th at p. 1105; Whitmire, supra, 184 28 4 DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS 1076 45303 4858-0805-9144 .v1 1 Cal.App.4th at p. 1093; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108 [holding 2 that "the mere 'possibility' of exposure does not create a triable issue of fact"].) 3 B. Lay Witnesses Are Not Qualified to Express Opinions Regarding Whether Certain Material Contained Asbestos. 4 Manwill, as a lay witness, is not qualified to testify as to the content of the construction 5 debris in general. Only qualified experts can express opinions on subjects that are beyond 6 common knowledge or experience. (Evid. Code § 801; see also People v. Smith (1989) 214 7 Cal.App.3d 904, 915.) If a witness is not testifying as an expert, which Manwill is not, his 8 testimony is limited to “an opinion that is rationally based on the perception of the witness,” and 9 it must also be helpful to the jury. (Evid. Code § 800.) Opinions offered without a proper basis 10 must be excluded. (Evid. Code § 803.) Here, Manwill is not disclosed or qualified as an expert 11 LLP witness and, as a lay witness, cannot testify as to the composition of the materials he claims he 12 Breitman saw on the construction sites where he claims Moving Defendants’ employees disturbed asbestos AT LAW 13 containing products in the presence of Decedent. (Evid. Code §§ 403, 800, 801, 803.) Plaintiffs 14 ATTORNEYS have provided no foundation for Mr. Manwill’s testimony on these issues. 15 Plaintiffs’ own experts will admit that they did not test the construction materials or Selman 16 debris at any job sites where Mr. Manwill purportedly worked around Decedent. Plaintiffs’ 17 experts will also admit that it cannot be determined whether certain materials such as 18 fireproofing contained asbestos without testing it first. 19 Consequently, any testimony that construction debris at any site did, in fact, contain 20 asbestos would be speculative at best. Speculation and conjecture does not rise to the level of 21 competent, contrary evidence. (See, e.g., McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 22 Cal.App.4th 1098 1106.). As such, Manwill cannot provide lay witness opinion as to the 23 composition of dust and debris on any site because the determination of the composition of such 24 material on these sites has not been established. Similarly, he cannot offer testimony that 25 products or material in place and installed prior to his work on the site contained asbestos. Any 26 testimony of Manwill to that effect should be excluded. 27 28 5 DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS 1076 45303 4858-0805-9144 .v1 1 C. Lay Witness Testimony Regarding the Composition of Construction Materials and/or Debris is Unduly Prejudicial and Would Mislead The Jury. 2 Manwill’s testimony as to the asbestos content of materials or particles on any premises 3 should be excluded as unduly prejudicial. The Court is empowered to exclude evidence if its 4 probative value is outweighed by the probability that admission of such evidence will be unduly 5 prejudicial, would confuse the issues, or would mislead the jury. (Evid. Code § 352.) Here, 6 admission of lay witness opinion testimony regarding the composition of materials that 7 admittedly were never tested for asbestos would be unduly prejudicial to Moving Defendants and 8 would be confusing to the jury. Moreover, admission of such evidence has little, if any, probative 9 value because it is based entirely on speculation. Any probative value derived there from is, thus, 10 substantially outweighed by the likelihood of undue prejudice and confusion of the issues here, 11 LLP and should be excluded on those additional grounds. 12 Breitman AT LAW D. Evidence Lacking Admissibility Under Casey v. Perini 13 It is anticipated that Plaintiffs’ experts will rely on Manwill’s testimony regarding the 14 ATTORNEYS asbestos content of various products. However, lay witnesses are not permitted to offer such 15 Selman testimony based solely on their visual inspections of an alleged asbestos-containing material. 16 The reasonableness of an expert's opinion is a question of degree, and may well vary with 17 the circumstances. An expert's opinion rendered without a reasoned explanation of why the 18 underlying facts lead to the ultimate conclusion has no evidentiary value because an expert 19 opinion is worth no more than the reasons and facts on which it is based. (Casey v. Perini Corp., 20 (2012) 206 Cal. App. 4th 1222.) 21 Thus, Plaintiffs and Plaintiffs’ experts cannot rely on the testimony of Manwill regarding 22 the asbestos content of the fireproofing material and dust at issue herein. As such, any such 23 testimony by Plaintiffs’ experts based solely on Manwill’s unsubstantiated opinions should be 24 excluded by the Court. 25 III. CONCLUSION 26 For the foregoing reasons, Moving Defendants request that this Court exclude any 27 testimony from Mr. Manwill regarding the composition of any of the construction material, 28 6 DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS 1076 45303 4858-0805-9144 .v1 1 product, or debris/dust at Decedent’s job sites, Furthermore, any expert testimony offered by 2 Plaintiffs relying on Mr. Manwill’s testimony in this regard should also be excluded. 3 4 DATED: January 3, 2022 SELMAN BREITMAN LLP 5 6 By: /s/ Shelley K. Tinkoff ______________ 7 SHELLEY K. TINKOFF Attorneys for Defendant 8 SCOTT CO. OF CALIFORNIA 9 10 11 LLP 12 Breitman AT LAW 13 14 ATTORNEYS 15 Selman 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT SCOTT CO. AND MONTEREY MECHANICAL’S JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS 1076 45303 4858-0805-9144 .v1 1 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 2 Carol Chulick (WD John), et al. v. Riley Power, Inc., et al. San Francisco Superior Court, Case No. CGC-19-276757 3 Defendant: SCOTT CO. OF CALIFORNIA STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 5 I am employed in the County of San Francisco, State of California. I am over the age of 6 18 years, my business address is 33 New Montgomery, Sixth Floor, San Francisco, CA 94105, 7 and my email address is mlabrador@selmanlaw.com. 8 On the date shown below, I electronically served the following document(s) via File & 9 ServeXpress described as DEFENDANT SCOTT CO. OF CALIFORNIA AND 10 MONTEREY MECHANICAL'S JOINT MOTION IN LIMINE TO PRECLUDE 11 TESTIMONY OF MONTE MANWILL RE ASBESTOS CONTENT OF PRODUCTS on LLP 12 Breitman AT LAW 13 Brayton Purcell Phn: 415-898-1555 222 Rush Landing Road Fax: 415-898-1247 14 P.O. Box 6169 Attorneys for Plaintiff/s ATTORNEYS Novato, CA 94945 15 Selman 16 and the recipients designated on the Transaction Receipt located on the File & ServeXpress 17 website. 18 I declare under penalty of perjury under the laws of the State of California that the 19 foregoing is true and correct. 20 Executed on January 3, 2022 at San Francisco, California. 21 22 Michelle Labrador 23 24 25 26 27 28 1 PROOF OF SERVICE 1076 45303 4858-0805-9144 .v1