Motion-Secondary: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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+ 55 Harrison Street, Suite 400

Jack London Market

(510) 302-1000 +

Joseph Satterley, Esq. (C.S.B. #286890)
TedW Pelletier, Esq. (C.S.B. #172938) ELECTRONICALLY
tpe letier @) azaniaw.coni

lan A. Rivamonte, Esq. (C.S.B. # 232663) F ILE D
irivamonte@kazanlaw.com Superior Court of California,
KAZAN, McCLAIN, SATTERLEY & GREENWOOD County of San Francisco
A Professional Law Corporation JUN 24 2014

Jack London Market Clerk of the Court
55 Harrison Street, Suite 400 BY: VANESSA WU
Oakland, California 94607 Deputy Clerk

Telephone: (510) 302-1000
Facsimile: (510) 835-4913

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

HAROLD KOEPKE and NANCY KARIDIS- | No. CGC-13-276217
KOEPKE,
STANDARD MIL 6: PLAINTIFFS’
Plaintiffs, MOTION IN LIMINE TO EXCLUDE
UNAUTHENTICATED, DEFENSE-
vs. CREATED MAP OF HAMBURG,

GERMANY
FORD MOTOR COMPANY, et al.,
Dept.: 12 (Hon. Richard B. Ulmer, Jr}
Defendants. Action Filed: December 3, 2013
Trial Date: June 16, 2014

I. INTRODUCTION

The Court should exclude defendants and their experts from publishing or otherwise
relying upon an Internet-generated map of Hamburg, Germany that purportedly depicts over 70
alleged asbestos-related industrial facilities that neighbored plaintiff Harold Koepke’s former
residences, school, and worksite during the 1950s and 1960s. First, the map should be excluded
because it lacks foundation, relevance, and authentication. Second, it should be excluded under
Evidence Code section 352 because the map would necessitate undue consumption of time and
create substantial danger of undue prejudice, confusing the issues, and misleading the jury.
IL STATEMENT OF FACTS

Mary Jane Teta, Dr.PH, M.P.H., is a defense epidemiology expert who opines that
Mr. Koepke’s “occupational and possibly environmental exposures explain his mesothelioma,”

IRIVAMONTE/13 7082.2 1

Plaintitfs' Standard MIL 6 to Exclude Defense Experts' Map of Hamburg, GermanyKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

+ Oakland, California 94607

including while he lived and apprenticed in Hamburg during the 1950s and 1960s.' [Teta Depo.,
Ex, A to Rivamonte Decl. at 9:3-7, 32:24-25, 33:3-7, 37:17-22, 37:24-38:1, 38:11-15, 39:10-17
(emphasis added), 46:14-47:11, 59:25-60:5, 60:9-61:6, 61:14-20, 61:24-62:5, 62:9-17, 68:11-14,
68:16-69:10.° During her deposition, Dr. Teta produced a recently created Google map of
Hamburg with a multitude of additional information added to it. (Id. 19:17-20:4, 21:7-15; Map,
Ex. B.] This added information lacks foundation and is not authenticated.
First, on the map, are yellow pins that purport to identify Mr. Koepke’s former residences,
school, and work, including a former residence address on “Hahnenkamp” from 1949 to 1951.
{Map. Ex. B.] But Mr. Koepke did not testify about residing on Hahnenkamp. [Koepke Depo.,
Ex, D at 15:25-16:4, 18:5-19:20, 38:12-17, 39:4-17, 39:21-40:9, 44:6-11, 54:12-17, 125:20-25,

134:3-135:1, 187:13-15.] Instead, that residence comes from a Germany-based defense

consultant’s review of unknown documents from unspecified sources purportedly listing Mr.
Koepke’s former residences. [Teta Depo., Ex. A at 27:23-24, 78:2-21, 78:24-79:6, 219:19-220:24,
311:10-312:9, 312:11-314:4, 314:6-14, 314:17-19, 314:22-315:8, 315:10-23, 316:1-2, and Ex. 7.]
Dr. Teta does not know what documents that consultant reviewed or where they came from. [/dé.]
Dr. Teta merely took the consultant’s word about the documents’ contents and sources. [/d.]
Second, the map is littered with over 70 red and blue markers which Dr. Teta claims
identify industrial sites where asbestos or asbestos-containing products were manufactured or used
while Mr. Koepke lived and worked in Hamburg. [Map, Ex. B.] Again, those markers utterly
lack foundation. Dr, Teta and her staff prepared a legend listing those sites. [Map Key, Ex. C.]
This compilation was based on images of certain telephone listings from a German website. [Teta
Depo., Ex. A at 25:3-22, 27:6-14, 29:11-22, 46:14-47:11, 47:14-23, 48:4-7, 81:24-82:25, 83:3-9,
92:7-95:9, 21 1:22-212:15, 214:17-22, 214:24-25, and Ex. 15; Map Key, Ex. C.} In these German
telephone listings, Dr. Teta’s staff looked for businesses listed under “insulation,” “insulation

services,” “asbestos,” and “asbestos products.” [/d.; see also Map Key, Ex. C at 1-2, 8, 10-11, 18-

' Plaintiffs have separately filed a motion in limine to exclude Dr. Teta’s expert testimony.

? All exhibits are attached to the accompanying Rivamonte Declaration.

IRIVAMONTE/1317082.2 2
Plaintiffs’ Standard MIL 6 to Exclude Defense Experts’ Map of Hamburg, GermanyKazan, McClain, Satterley & Greenwood

A. Professional Law Corporation

55 Harrison Street, Suite 400 + Oakland, California 94607

(510) 302-1009

Jack London Marker +

+ www.kazanlaw.com,

} 835-4913

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19.] All of those listings were then indicated on the map and listed in the legend. [/d. and Map,
Ex. B.] But Dr. Teta has no way to verify the accuracy or authenticity of the website or any
downloaded images from that site. [Teta Depo., Ex. A at 217:6-218:8, 219:7-10, 219:12-20.]
Next, most of the map listings are admittedly irrelevant. The map and legend list over 70
facilities. But Dr. Teta and defense expert, Dennis O’Brien, Ph.D., admit that only 10 of the listed
facilities are relevant to their opinions — purportedly because those sites are less than one mile
from Mr. Koepke’s homes at Martha Strasse and Bahrenfeler-Chausse, or apprenticeship. [Teta
Depo., Ex. A at 22:19-24:13, 49:6-10, 49:13-50:1, 50:4-19, 50:22-23, $1:1-13, 51:19-52:1, 52:4-
17, 52:20-24, 232:16-233:10, 247:2-6, 247:8-14, 248:2-8, 271:22-272:23, 285:24-286:5, 286:9-23,
287:1-4; O’Brien Depo., Ex. E at 7:4-20, 25:5-26:24, 29:18-30:15, 34:11-14, 51:7-10, 58:22-59:8,
59:16-60:19, 61:6-62:20, 64:24-67:4, 67:18-25, 68:23-69:18, 70:5-71:23, 72:2-12, 74:12-75:2,
80:16-81:9, 81:12-14, 85:1-3, 85:7-17.)) The other 60 marked sites are admittedly irrelevant.
Further, no foundation establishes that any of the sites actually used asbestos materials ~
let alone when Mr. Koepke lived in Hamburg. Dr. Teta merely surmises that the facilities were
even in operation while Mr. Koepke was in Hamburg. [Teta Depo., Ex. A at 24:22-25:22, 46:14-
47:11, 82:13-25, 83:3-85:4, 85:7-11, 85:13-19, 85:21-24.] And Dr. Teta and Dr. O’Brien both
admit that none of the materials they rely upon state that those facilities actually manufactured or
stored asbestos-containing products. [/d. at 82:24-25, 83:3-84:11, 84:13-17, 84:19-85:4, 85:7-11,
85:13-19, 85:21-24, 86:1-4, 86:9-13, 86:15-17, 87:8-89:25, 91:14-95:12, 95:15-18, 226:8-227;23,
228:1-10, 228:12-229:8, 229:11-21, 231:2-232:9, 232:11-14, 269:22-270:12, 270:19-271:4,
272:12-274:14, 274:17-275:5, 275:8-25, 276:2-15, 276:18-23, 277: 1-278:7, 278:21-25, 279:1-21,
280:15-282:24, 283:1-12, 285:3-23; O’Brien Depo., Ex. E at 25:5-26:24, 29:18-30:15, 34:11-14,
$1:7-10, 58:22-59:8, 59:16-60:19, 61:6-62:20, 64:24-67:4, 67:18-25, 68:23-69:18, 70;5-71:23,
72:2-12, 74:12-75:2, 80:16-81:9, 81:12-14, 85:1-3, 85:7-17.] Moreover, for two of the sites, any

asbestos exposure Mr. Koepke may have had from them would have occurred so long ago (over

3 These sites are: (1) Paul Czayka; (2) BoDeWa; (3) Hoppman; (4) Carl Kaefer; (5) J.H. Thies; (6)
A. Blochmann; (7) H. Ahrens; (8) H. Munstermann; (9) Eternit; and (10) Celler Isolierwerke,
{Teta Depo., Ex. A at 271:22-272:10; Map, Ex, B; Map Key, Ex, C at 1-2, 5, 8, 10, 18-20.]

IRIVAMONTE/1317082.2 3
Plaintiffs’ Standard MIL 6 to Exchide Defense Experts' Map of Hamburg, GermanyKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

+ Oakland, Califomia 94607

ww. kazanlaw.com

1 Street, Suite 400

(510) 835.4913 +

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60 years) that they would be “borderline for the latency period.” [Teta Depo., Ex. A at 277:7-
278:20, 279:4-21,] And for another listed site, when that business was in operation, Mr. Koepke
lived in another country. [/d. at 280:15-281:11,]

i. DISCUSSION

AY The map lacks authentication.

Writings, including Dr. Teta’s map, must be authenticated before they can be received into
evidence or used as demonstrative evidence. [Evid. Code §§ 250, 1400-1401; People v. Ham
(1970) 7 Cal. App.3d 768, 780.] Defendants cannot authenticate this map. Defendants’ experts
claim that the map depicts the proximity of Mr. Koepke’s residences, school, and worksite during
the 1950s and 1960s to numerous asbestos-related industrial sites. But the map was not created
during any of the relevant years. It does not accurately depict any facilities known to be in
existence during any specific year in Hamburg. Nor do defendants provide any showing that any
of the sites ever even contained any asbestos materials. Instead, Dr. Teta’s staff simply lumped all
of those sites in a Google map, regardless on when those sites were in operation, based on
unverified and unauthenticated documents or other web-based resources. Thus, defendants or
their experts cannot show that this map accurately depicts the proximity of Mr. Koepke’s homes
and worksite in relation to the industrial sites that existed in Hamburg during a certain year or time
period. The Court should bar defendants and their experts from publishing this map to the jury.

B. The map lacks foundation and relevance.

The map should be excluded also because it lacks foundation and is irrelevant because the
information contained in the map — even if somehow authenticated ~ has no tendency in reason to
prove that Mr. Koepke was environmentally exposed to asbestos. [Evid. Code §§ 350, 702, 801.]
First, neither Dr. Teta nor Dr. O’Brien has personal knowledge about the map’s contents. [Evid.
Code §§ 702, 801.] While they may rely on hearsay evidence to form their opinions, those
opinions have no evidentiary value if they are based upon speculative or conjectural data.
[Toscano v. Greene Music (2004) 124 Cal App.4th 685, 696; accord Hyatt v, Sierra Boat Co.
(1978) 79 Cal. App.3d 325, 338-339; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743.]

Here, all of the industrial sites identified on the map were culled from (1) a website that has

IRIVAMONTE/131 7082.2 4
Plaintiffs’ Standard MIL 6 to Exclude Defense Experts’ Map of Hamburg, GermanyKazan, McClain, Satterley & Greenwood

A Professional Law Corporation

Jack London Market + 55

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images of Hamburg phone listings and (2) a consultant’s review of some unknown documents
showing Mr. Koepke’s prior residences. But Dr. Teta admits that she has no way to verify the
veracity of any of those sources. Further, Dr. Teta has no information to confirm whether any site
on the map was in operation while Mr. Koepke was in Hamburg, let alone manufactured, supplied,
or even contained any asbestos-containing products. In sum, the map — and any opinions based on
it - should be excluded because no reliable information supports the map’s contents.

c. The map is more prejudicial than probative.

This Court has discretion to exclude any evidence where its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues or misleading the jury.
(Evid. Code § 352.] In its current form, the map would mislead the jury into believing that all of
the 70 industrial sites marked on the map are relevant to the defense experts’ opinions when, in
reality, only 10 of them are at issue. Further, the jury would be misled into believing that all of
those sites existed during all of the years Mr. Koepke resided in Hamburg and, as a result, all of

those sites environmentally exposed him to asbestos, Plaintiffs would have no choice but to

unnecessarily spend time cross-examining Dr. Teta, Dr. O’Brien, or other defense experts about,
among other topics, how the map was created, the information used to create that map, and why
that information is flawed or misleading. Thus, to the extent that the map is relevant in the
slightest degree, its probative value is overwhelmingly outweighed by the near certainty that its
introduction would mislead the jury and/or necessitate undue consumption of time.
iV. CONCLUSION

Based on the foregoing, Dr. Teta’s map should be excluded.

DATED: June 23, 2014 KAZAN, McCLAIN, SATTERLEY & GREENWOOD

A Professignal Law Corporation

sete

ree Cree atte

By:
Tan A. Rivamonte
Attorneys for Plaintiffs
IRJVAMONTE/1317082.2 5

Plaintiffs’ Standard MIL 6 to Exclude Defense Experts' Map of Hamburg, Germany