Motion,Ex Parte: JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al

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                                LAW OreICEs CH
PRIN DLE, DECKER & AMARO LLP

Led ik

William M. Hake, Esq. (State Bar No. 110956)
Thomas A. Steig, Esq. (State Bar No. 119341)
Jennifer M. Ways, Esq. (State Bar No. 152838) ELECTRONICALLY

FILED
PRINDLE, DECKER & AMARO, LLP Superior Court of California,
369 Pine Street, Suite 800 County of San Francisco
San Francisco, CA 94104
Tel: (415) 788-8354 MAY 16 2007
ae GORDON PARK-LI, Clerk
Fax: (415) 788-3625 BY: LUCIA RAMOS
Deputy Cler

Attorneys for Defendant
A.W. CHESTERTON COMPANY

IN ‘THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

EIN AND FOR THE COUNTY OF SAN FRANCISCO

JAMES RODAMER, et al., Case Na.: 456569
Plaintiffs, EXHIBITS H, I, J, K, L, M AND N TO
_ DEFENDANT A.W. CHESTERTON
Vv. | COMPANY’S FIFTH MOTION IN LIMINE

TO EXCLUDE VIBEOTAPED SIMULATIONS
A.W. CHESTERTON COMPANY, etal, | PERFORMED BY MAS, INC. USING HIGH
i INTENSITY LIGHTING; PROOF OF
Defendants | SERVICE

| Complaint Filed: September 29, 2006
; Trial Date: April 30, 2007
Dept: 306 Hon. Nancy L. Davis

EXHIBITS H, I, J, K, L, M AND N TC DEFENDANT A.W. CHESTERTON COMPANY'S
FIFTH MOTION IN LIMINE TO EXCLUDE VIDEOTAPED SIMULATIONS
PERFORMED BY MAS, INC. USING HIGH INTENSITY LIGHTING8
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PROOF OF SERVICE.

Lam a citizen of the United States and employed in San Francisco County, California. I
am over the age of eighteen years and not a party to the within-entitled action. My business

address is 369 Pine Street, Suite 800, San Francisco, CA 94104.

On May 16, 2007, counsel for A.W. Chesterton Company hand-served plaintiffs counsel,
Levin, Simes, Kaiser & Gomick, a copy of the following document, and electronically filed the
following documents via Lexis Nexus File and Serve:
EXHIBITS H, I, J, K, L, MAND N TO DEFENDANT A.W. CHESTERTON
COMPANY’S FIFTH MOTION IN LIMINE TO EXCLUDE VIDEOTAPED

SIMULATIONS PERFORMED BY MAS, INC. USING HIGH INTENSITY LIGHTING;
PROOF OF SERVICE

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on May 16, 2007, at San Francisco, California.

DE Bcd

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EXHIBITS H, I, J, K, L, MAND NTO DEFENDANT A.W. CHESTERTON COMPANY'S
‘TRIAL BRIEF TO EXCLUDE VIDEOTAPED SIMULATIONS
PERFORMED BY MAS, INC. USING HIGH INTENSITY LIGHTINGEXHIBIT H‘ai?

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
EN AND SOR THE CITY AND COUNTY OF SAN FRANCISCO
BEFORE THE HONORABLE DIANE ELAN WICK, JUDGE

DEPARTMENT 632

REPORTER'S TRANSCRIPT OF PROCEEDINGS
MONDAY, APRIL 3, 2000

AFTERNOON SESSION
VOLUME 6-3

REPORTED SY JOSEPH HAYDEN VICKSTEIN, CSR No

Fx.APD

ARANCES:

Por the Plaintiff:

Offices of
STEPHEN M.
Californie
Francisce,

WARTNICK, CHABER, HAROWITZ, SMITH & -TIGERMAN
TIGERMAN, Attorney at Law

‘Street, Suite 2200

Ca 94312

the Defesdant .JOaN CRANE, INC.:

Offices of

HASSARD BONNINGTON

JOUN H. COMINGS and MARGARET O’SULLIVAN BYRNE,
Attorneys at Law

Embarcadezo

Francisco,

Center, Suite 1800

Ca 94231

the Defendant GASKET HOLDINGS, INC.

Offices of

HAIGHT, BROWN & BONESTEEL

FRANK BERFIELD, Attorney at Law

Bush Streec

Prancisco,

27th Floor
Ca 94104

CKSTEIN CSR No 47Aaig

oO

observation until earlier, then please let me know, Just

bring me a 3ittle siip. You don’t have to announce it in

front of éveryone. Just bring me a little note tomotrow.
Otherwise, we will aim for recessing on Good Friday ‘by noon.
So with that, if there are no questions, Z will

rewind you of the admonition not to discuss the case among

than 8:30. Thank you.

open court; out of the presence of the jury:
THE COURT: At this time then a number of things.
Mr. Tigerman, i'm going to have to remind you that this is

not an interview, and to avoid the banter. I kiow it’s

schmoozing the jury. You know it’s not the appropriace sways

Tt's by question and answer. And so i am going to ask you
and your witnesses to -- as well as defense counsel, to
avoid doing that.

MR. TIGERMAN; Yes, Your Honor.

THE COURT
before you leeve today, you need to have the charts that
have been marked. And as a matter of fact, you may want to

ave the pages and the rest of the tablet marked chac you

know you are going to be using, because the =ecord needs to
MR. TIGERMAN Yes, Your Honor
THE COURT: Nexc, there wee 2 number of rulings

@ this morning off the record so chat che

of Dr. Longo could go forward and that wasé

668

before we had the reporter in. arid so my rulings were a;
follows:

With respect to the DeZendants’ motion to exclude
the testimony o£ Captain Messer“fuller as a naval historian
regarding ship repair, the Court denied it in part and
granted it in part. captain Messer-Fuller will, be. permitted
& Eesearchg: of Navy records.

sé to ‘che’ documents she obiained, where she obtained them,

and Eke Contents of ‘the documents she way also testify es
to what others told her about the contest; i.e., defining
certein terms.

She may not interpret the documents and she may
not. answer any hypothetical questions, as an insufficient

foundation has been established as to her expertise to do

so. It is’ questionable’ whether she would qualify 2s a naval
historian And ££ so, it would be naval with a small ‘n" as |
opposed to a U.S. Navy with a capital «N* historian.

Next, I did not rule on this this morning, but ¢
am prepared to do it.at this time. And this is regarding
the Plaintifi’s motion to exclude evidence of the Navy's
negligence and apportionment of damages to the Navy.
-Plaintifi’s motion is denied. In particular, the Richards

ease which Plaintiff was relying on is discinguishable from!

the facts cf this case Richards was based on 2 California

immunity to cobacco companies, Civil Code Section =

based upon a legislative judement that tobaccs compa:

gould aoc be held responsibi

in other words, the

JOSEPH H VICKSTEIN “SR Ne teaa | may testify about the installacion of insulation ac the :
« 2. | shipyards wnere he was employed as well as his observations
about the ‘use of gaskets and/or packing materials of the
Deicndants. He may not use any samples. He may show the
U.S. ‘Navy training film on insulation installation. He may
not testify as to any testing that he has done on gaskets or

packing materials, as-there‘s been an insufficient

foundation Jaid as to his ability to render such an opinion.
And thea with respect to the sictions concerniny
the use of videotapes on Tyndall lighting and all of the

motions rélated thereto, it was granted in part and deni:

in part. The first segment of the Millette Tyndali
videotape that shows thé Crane Packing Company gasket is
admissible. The second segment showing the Garlocke gasker +

is not admissible as it is not relevant in this case

As to the other five videotapes submitted by the

Plaintiff, they are exciuded pursuant to Evidence Cade

Section 352 as this Court believes their prejudice
substantially outweighs theiz probative value.
The Mi!

ette video portrays the movement of

airborne particles in the Tyndall light The other

videotapes have an air of doom and gloom about them as a

result ef the use of moon suits and respirators. The

enclosed tents and the movement of the persons in them.

Testimony by experts such as chat just given by

ns is admi

pr Longe, however, as to work simuiat!

long as there is sufficient foundation laid by the Plain!

ce-workers and other witnesses If the foundation“

is not laid, che Court will strike the work simulation

escimony.

‘Testimony Erom experts such as Studies or work
simulacions or experiments on reentrainment of fibers is’
excluded as it lacks a sufficient foundation as to irs
reliability in the scientific community

Plaintifé dnd: his co-workers, however, may testify.

as to theix observations of fibers on theix-clothing. When
the Plaineif#‘’s counsel then proposed using thé photograph
of one of the Tyndall ¢:

ts taken from one of the five

videos, that did not inélude the moon suits, the

“respirators, et cetera, the Court permitted that exhibit to

be used, which Dr. Longo just did.

MR TIGERMAN: May I seek some clarification j

at
em, Your Honor?

‘THE COURT: Yes.

MR. TIGERMAN: On the issue of reentrainment,
thers will be medical testimony that that is significant
exposure without attempting to, quantify it. ‘s

THE COURT: That is acceptable. There the Court
is not excluding that.

MS. BYRNE: Can I get clarification? Though it's

not to be based upon a hypothetical question based upon
Dr. Longo’s counts 3ecause as we showed in our brief,

ebsolutsiy nothing in the Literacurs coday that

allows somebody co determine whether those levels as counted
by Dr. Longo, are significant in terms of a health risk. So

= take your order to mean that 21 experts are excluded from2
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using those numbers.
MR. TIGERMAN: Your Honor, actually --
MS. BYRNE: That was our motion.
MR. TIGERMAN: The medical evidence will he thac
if there is that level of asbestes on clothing, that that is

@ significant heelth risk, period. Nobody will attempt to

thé’ clothes, Although I

do want the Court to thderstand that -- and we may have to

quantizy how many fibers come of:

do this outs:

ie the presence of the jury. There is 2
concept called ‘K Factor.* And scientists nave measured the
amount of fiber release based on K Factor. And, in fact,
Dr. Millette has even done studies on K Factors and’ fiber
welease from surfaces, and he is able to and prepared to
testify about ‘the. reléasé of fiber based on K Factor
studies.

We never did address ail of the x. F:

ox

information, because we wanted the Court to understand we

are not attempting to quantify the amount of dust that is

released from clothing, and we are not attempting to

quantify the amount of dust that’s released from surfaces.
THE COURT: All right

MR. TIGERMAN:

your wiznesses, your expert
are able to testify to that as being sufficient, chen they

may de so. However, they may noc quancifyCc
y . . ere

2 wR. TIGERMAN: Right. They wil} not quantify the |
2 | release of the fiber from the clothing and cone of them has

5 | attempted to do that. And none of them witl attempt to

2 | quancity it other than to descritie it as a significant risk

s | or a significant --
6 ‘He COURT: So they can’t tske the levels that
8g 2 | pe. tengo'has now plactd.on the clothes and attempc to.
4 a | extkagelate by showing. whac would be released

Mm. TIGERMAN: No, other than to say that would
definitely be'a risk or an area of concern.
MS. BYRNE: No.
THE COURT: Right.
MR. TIGERMAN: and medically that is very well
established and we can lay the foundation for that.

‘THE COURT: Sut they can’t estizy that that would
pe, that that amount would be reentreined.

MR. TIGERMAN: Mo, they will actually testify thac
that. amount will not be reentrained. But they will testify

that ig that were indeed the case in any work environment,

i would be something that would be very such an issue of
increased risk.

THE COURT: It can’t be quantizied That is the

court’s ruling.

MS. BYRNE: So che question cannot be asked,

want you to assume thac Dr

ae COURT: 1 am not going to eilow chac You cae

make your record at the end of tomorrow oF $9. outside the

presence of the 3 so you aave gor a record for going up.te

a

875

But I am not going to allow chat
Okay, anything else?

MS. BYRNE: Or anything even nor based on

Because that gets into the
reentrainment and there’s been insufZicieat foundation.
Now, let‘s move of. i sm not hearing more argument.

CMR. ‘TIGERMAN; Your Honor, i just want to know
when I can make a record oii the issue of the entrainment,
not quintification. Because the fact --

THE COURT: Well, is Dr. Longo gone? or is he the
one that’s going to make it?

MS. BYRNE: He admits he can’t. it's in the

MR. TIGERMAN: That's noc true, Your Horior

doesn’t admit ne can't.
MS. BYRNE: He swore under oath he can’t

MR. TIGERMAN: The record has bee:

misrepresented.
I told the Court i didn’t have an opportunity to respond to

this

MR TIGERMAN Can we return at 2:45 just to

e foundational questions from him? And then wheaEXHIBIT I= . 1
2 IK THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
+ 2 IN-AND FOR THE COUNTY OF SAN FRANCISCO
3 HONORABLE DIANE ELAN WICK, JUDGE PRESIDING
4 DEPARTMENT NO. 613
* 5 =+-000---
6 | WARTNICK GROUP #53 ) CASE NUMBER: 996240
(OfTONE GREGG)
7 5
PLAINTIFF. }
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we y
9 }
TRAILMOBILE TRAILERS, LLC )
10 )
?
al DEFENDANT. )
) IN LIMINE MOTIONS
22
~ 13 REPORTER'S: TRANSCRIPT OF PROCEEDINGS
MONDAY, FEBRUARY 7, 2000
14 THURSDAY, FEBRUARY 10, 2000
as ~--000--~
16
« 17 | APPEARANCES:
18 FOR THE PLAINTIFF: RICHARD &. "BRODY,
DIANA M. GARCIA,| _
é 19 WARTNICK CHABER HAROWITZ
SMITH & TIGERMAN .
20 101 CALIFORNIA STREET
SUITE 2200
21 SAN FRANCISCO, CA 94111
(415) 986-5566
22
FOR THE DEFENDANT: PETER LINDH &
23 JENNIFER SANCHEZ,
GIBSON & ROBB, LLP
24 275 BATTERY STREET  -
EMBARCADERO CENTER WEST
25 SUITE, 920 .
SAN FRANCISCO, CA 94111
26 (415) 283-2300
27 | REPORTED BY: BRENDA C. FIELDS
OFFICIAL REPORTER
* 28 CSR NUMBER 7235

BRENDA -C. FIELDS, CSR..NUMBER+7.235 ———————————a
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MONDAY, FEBRUARY 7, 2600 K ACK

P-R-0~¢-B-E-D-I-w-6-s
~--000-~- .
. THE COURT: WE'RE HERE IN THE WARTNICK cases.
.PRESENT ARE MR. BRODY, mR. SadoBs ; eR: -LinpE; 15)
MISS SANCHEZ, MR. CIRELLI, MR. VAGCHINA, MISS CHOY. 3

AND WE WAVE JUST VIEWED THE PROPOSED TAPE THAT

| BLAINTI¥¥ WOULD LIKE DOCTOR WILLIAM LONGO 't0 BE ABLE

TO USE DURING HIS TESTIMONY. i 1 Ms
_ AND I RECEIVED PAPERS ow BERALF oF PLAINTIFF
TO PERMIT USE OF THE TAPE. AND I HAVE OPPOSING
BRIEFS FROM CARLISLE AND LEAR SIEGLER.
BU? BECAUSE THE COURT PERMITTED JOINDER, THE

COURT IS REVIEWING THOSE AND IF ANYONE BELIEVES THAT

THEY NEED TO ADD SOMETHING, YOU CAN; OR YOU CAN
A VERBAL ARGUMENT THIS ‘MORNING. i
MR. LINDH: YOUR HONOR, ON BEHALF oF

TRAILMOBILE,.I DON'T KNOW THAT I GOT. PLAINTIFF'S

MOVING PAPERS. 1 Loe

Mat . ts

I HAVE LEFT THOSE.PAPERS HERE ; LAST

MR. BRODY
WEEK, YOUR HONOR, AND INDICATED ON THE RECORD THAT
THEY WERE AVAILABLE FOR REVIEW BY DEFENSE COUNSEL.
Do YOU HAVE EXTRA ‘COPIES?

THE COUR’
MR. BRODY: .I pO. AND I HAVE PROVEZDED A COPY

OF THAT MOTION TO MR. LINDH.

THE COURT: IF COUNSEL ARE ‘GOING TO BRING ANY
OPPOSING PAPERS IN, YOU NEED TO BRING THEM IN’

TOMORROW MORNING.

7 i
___BRENDA C. FIELDS, CSR NUMBER 72358

gEaT WIL sHow You Wir 2 nacerue PLATE Ts.
‘THE COURT: THE CASE Was suBMIT¢ED aNd x+y
PREPARED To. RODE: ANY PROBLEM?

MR. BRODY: NO, YOR HONOR. I'L stieuty

HR. TACOS?

PRE Count: Asred Viewing te sapw awy,
REVERWING dae WRITEEH ane GHE oReE ARGUMENTS, wy r
RULING IS To ExenopE) THE DoctOR Loxse OGeUEArtoNan
SIMULATION VIDEO TAPE aNp urs aEsrMoNy REGARDING: any.
SIMULATED. WORKPLACE ACTIVITIES. PURSUANT, To EVIDENCE
CODE 352.

_ 1 BELIEVE THAT THERE. IS) AN INSUFEICTENT
FOUNDATION to stow “THAT tna SIMULATION WAS.
SUFFICIENTLE SIMCLAR TO THEASBESTOS EXPOSURE oF THE
PLAINTIFFS EERE. AND, THAT THY PROBATEVE VALUE oF wHAT
EVIDENCE WOULD BE SUBSTANTIALLY OUTWEIGHED BY Ive
PREIUDICIAL EFFECT. I Also BELIEVE Tr wdULD BE

CONFUSING TO THE cuRY.

‘$0, THAT'S MY RULING. THE RECORD IS MADE, NOW
DOES FHAT ELIMINATE TEE copyRIGRT issuE?

MER. JACOBS: { THINK IT DOES.

THE COURT: OKAY. SO THAT TAXES CERE or near.

THERE'S STILL SOME MESCELLANSOUS MOTIONS. BUT
DOES. ANYONE ELSE HAVE ANYEHING ENSE FOR THIS MORWENG?

MR. BRODY: ovate, YOUR HOWOR, TEE
INDECATE THAT I'LL HAVE SOMETHING TO THE coURT AY THE

Poh ere erence BRENDA CS ~FIELDS,; CSR NUMBER 7235EXHIBIT Jwe

4

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121211 Hansen (no expert)

‘SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BEFORE THE HONORABLE ALFRED G. CHIANTELLI, JUDGE PRESIDING
DEPARTMENT NUMBER 503
DONNA HANSEN AND RUSSELLGARY =)
HANSEN, . } |

Nana OH

d
PLAINTIFES ) NO. 321639,

-
ASBESTOS DEFENDANTS, ETAL, —)

2
* ‘REPORTERS’ TRANSCRIPT OF PROCEEDINGS
1s WEDNESDAY, DECEMBER 22, 2001

36 APPEARANCES OF COUNSEL:

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REPORTED BY: MARIA ANTONIA TORREANO, CSR # 8600, RMR, CRR
OFFICIAL REPORTER

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40202 7:42 AMs
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4212101 Hansen {no expert)

PORTO-THERM.
‘THE COURT: IUNDERSTAND. ANYTHING ELSE?
MR. RUNDIN: HE DOESN'T DO ANY OF THIS CONSULTING WORK ASTO

‘AUTOMOTIVE PRODUCTS.

MR. PACKER: HEIS NOT A MECHANIC. webb
‘THE COURT: HE'S NOT A MECHANIC. .
MR, PACKER: HEDOESWT HAVE ANY EDUCATION OR TRAINING FOR

DOING BRAKE WORK,

‘THE COURT: ANYTHING ELSE? .
" MS. MCNEIL: YOUR HONOR, WE ALSO FILED A MOTION ON BEHALE OF

HAMILTON MATERIALS TO EXCLUDE HIM BASED HE HAS NEVER WORKED WITE

DRYWALL TAPING MATERIALS, THAT HIS TESTIMONY WOULD BE CUMULATIVE

AND LACKING FOUNDATION WITH RESPECT TO WORK THAT BE MAY. HAVE

BECAUSE HE'S NEVER DONE ANY ASAN INSULATOR.

‘THE COURT: BECAUSE HE'S NEVER PUT UF ANYDRAW WALI? +
MS, MCNED: YES.
‘THE COURT: ‘ANYTHING ELSE?

INLIMINE. n : os
‘THE COURT: LET THE RECORD REFLECT EVERY SINGLE MOTION °
BROUGHT BY ANY PARTICULAR DEFENDANT IS JOINED BY EVERY OTHER #2.
DEFENDANT WITHOUT REQUESTING AN ORDER. AND SOTHEY'LL ALL
APPLY, A RULING ON ANY MOTION WILL APPLY TO ALL SEVEN UNLESS YOU
INDICATE FOR YOUR OWN PURPOSES IT SHOULD NOT APPLY TO YOU.
SUBMITTED ON THIS ONE ON THE CHARLIE AY ISSUE, THE WALL
BOARDS AND ALSO TESTIFYING AS TO BRAKES? ALL RIGHT. DENIED.
OKAY.

10/602 5:08 PM 26HE © @N ao aw ww

GES

12112104 ‘Hansen (a0 expert)

NEXT. MOTION IN LIMINE NUMBER 21, WHICH IS OUR OPPOSITION

‘TO DEFENDANTS AND THERE'S SEVERAL DEFENDANTS. ISHOULD
REPRESENT, MOTION TO EXCLUDE DR. LONGO, WHICH IS THE MOTION IN
‘LIMINE, AS PHRASED, IN THIS TRIAL. PLAINTIFF WILL BE CALLING

HIS COLLEAGUE, RICHARD HATFIELD, WHICH IS ALSO Witt THE
LABORATORY IN GEORGIA. THE SUBJECT OF HIS TESTIMONY Is ‘THE,
SAME ‘THE MOTION IS THE SAME. ‘THE DEFENDANTS WANT TO EXCLUDE
RICHARD HATFIELD'S TESTIMONY AND THE VIDEOTAPHS REGARDING HIS:
‘TESTING THAT HE'S DONE, ON VARIOUS PRODUCTS, INCLUDING BRICKS,
INCLUDING DRYWALL, INCLUDING CLUTCHES. AND THEY ALSO WANT TO
EXCLUDE ANY TESTIMONY REGARDING THAT TESTING,

MR. PACKER:. YOUR HONOR, FOR ALLIED SIGNAL, WE FILED A
MOTION TO EXCLUDE LONGO-AND HATFIELD. MAY I GIVETHE.CLERK OUR.
MOTIONS?

‘THE COURT: [ALREADY HANDLED IT INTHE LAST TRIAL, IS THIS
DIFFERENT: THE ONE I JUST HAD?

‘MR PACKER: FT HAS ATWIST TO IT; YOU WILL.

‘THE COURT: TELL ME WHAT THE TWISTIS.

MR. PACKER: THE TWIST IS THE MOTION SEEKS TO EXCLUDE, IN
ADDITION TO THE VIDEO TAPES, HIS TESTIMONY, ASKING THE COURT TO
BEA GATEKEEPER. AND WE INCLUDED IN OUR MOTION, AT SOME LENGTH
INTHE MOTION, TO INCLUDE ANOTHER ORDER, FOR EXAMPLE, FROM A
COURT IN TEXAS BUT A TRIAL COURT WHICH DISQUALIFIED -
LONGO/HATFIELD CALLING HIS TESTIMONY JUNK SCIENCE.

‘THE COURT: WAS THAT OUT OF BARKER, TEXAS?

MR.PACKER: LAMAR COUNTY.

‘THE COURT: BEAUMONT?

MR. PACKER: LAMAR COUNTY.

101602 5:08 PM: ajo

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1016/02 5:08 PM 2B

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12H2101 Hansen (no expert)

‘THE COURT: IT'S NOT PRECEDENTIAL VALUE. LET ME ASK YOU
‘THIS: MAKE YOUR BEST PITCH FOR YOUR VIDEO OR DO YOU WANTTO.
SUBMIT IT ON THE PAPERS?

MR. JACKSON: ILL DO THIS TO SHORTCUT OUR ARGUMENTS. IF
‘YOU WANT ME TO GIVE YOU YOUR TENTATIVE, I'LL SUBMIT ONTHE
‘TENTATIVE. ”

THE COURT: I DONT LIKE THE VIDEOS IN. THEY DON'T GO ON
SUBSTANTIVE TESTIMONY ON THE TESTING. | ALLOW HIM TO TESTIFY:

“MR. JACKSON: 1 SUBMIY ON THE TENTATIVE.

MR. JACKSON: I'M JUST SUGGESTING TO THE COURT —

‘THE COURT: NOTHING TENTATIVE ABOUT ME, HA HA.

‘MR. JACKSON: UNLESS YOU'RE INCLINED TO CHANGE THAT.

‘THE COURT: NO,I MEAN, WANT TO DO SOMETHING THAT DOESNT
SHOW'AN ABUSE OF DISCRETION. IS THERE SOMETHING HERE IMPORTANT
‘THAT YOU WANT METO READ ON THIS NEW TWIST? I WANTTO CONSIDER, ,
TT. [GOT ERASERS AT THE END OF MY PENCILS, SO SHOW IT TO ME.

I'M MISSOURI, SHOW ME. IM NOT GOING TO GO THROUGH THAT. SHOW
IT. WHAT DO YOU HAVE? TAB WHAT.

MR. PACKER: 24.

‘THE COURT: YOU HAVE TO WORRY ABOUT THE VIDEOTAPE. SO WHAT
PAGE? :

MR. RUNDIN: YOUR HONOR, WALTER RUNDIN. MAYI SUBMIT A
BINDER TO THE COURT?

‘MR MCNEIL: YOUR HONOR, FOR THE RECORD, I WOULD LIKE THE
‘(COURT TO HAVE MY MOTION, WHICH IS A MOTION WHICH HAS NOT BEEN
SUBMITTED BEFORE.

‘THE COURT: LODGE IT, LODGE IT. SURE, OF COURSE. ARETHEYEXHIBIT k8
=

‘SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO:
Department 611
‘VICTOR TRINCHESE and No, 400787
FRANCESCA TRINCHESE, ’
Puintifis, 1

we ) TRIAL RULINGS
RAYBESTOS-MANHATTAN; INC. }
etal, pilhadsiies
eS )
To expedite the commencement of trial in the above-referenced action,
this court issues the following rulings, without prejudice, on issues

routinely presented to the trial court iri complex asbestos trials:

PROCEDURE:

L

For each sub-group of cases tried jointly, trial will be”
conducted in oné phase, except that in cases where
damages are sought, evidence of a defendant's financial
condition will be excluded untess a jury finds malice,
oppression, or fraud. -

A motion Bled by one defendant shall be deemed to

be joiticd in by all other defendants and apply to all plaintiffs,
unless a party expressly opts out. A motion filed by

‘one plaintiff shall be deemed to be joined ia by all other
plaintiffs and apply to all defendants, unless a party
expressiy apts out.3.

6.

a 7.

All potential witnesses are excluded from the courtroom.
during trial, except for parties and representatives of
corporate parties.

For each witness disclosed on the case specific witness list,

counsel shall discloge to the court and opposing counsel the

date'arid Gme the witness will testify, and the extiibity to be
followings

WESSHEYON,° NOTLATER THAN PRIOR:
Monday ‘Thursday by 4 pm,
Tuesday Friday by 4 par
Wednesday Friday by 4 pin
‘Thursday Monday by 4 pm
Friday Tuesday by 4 pm

Exhibits must be pre-marked for identification by the
courtroom clerk not later than cne court day prior to its use
_by awitness.. Exhibits not timely pre-marked may not be
‘shown to'a witness.

Each party shall disclose to the.court and opposing counsel
priot to jury selection a list of all unavailable witnesses the

number, date of transcript, and a declaration from counsel
setting forth the requirements of Evidence Code sections 240
‘and 1290-1292, Excluded from this ruling are depositions
or trial transcripts that an attomey plans to use solely to-
impeach a live witness. Page:line numbers of transcripts
shall be disclosed when instructed by the court.te

‘Atow

wa

13.

1M

1a

is.

Counsel aré required to submit proposed jury instructions
and proposed verdict forms to the coutt prior to opening
‘statements.

that bas been substantively modified and spécial (non-BAJN)
‘instructions must be submitted with a citation meee,
authority. -
Defendants are prohibited from contacting any treating
physician scheduling purposes.

‘medical couitisel appears in any trial
Phast, oily the associated miedical counsel may address the
medical issues, :
Plaintiff has the burden of proving legal causation in each
cate. Deferidants have the burden of proving comparative
fault of the plaintiff and-other persons. .

Civil Code sections 1431-1431.S (Proposition 51) will’ be
ied ia this cas BLS Pr $

EVIDENCE:

‘Testimoay by an expert witness who was not timely disclosed
to opposing counsel pursuant to this court's general orders
is excluded.

‘Testimony by known witnesses and docuinents not disclosed
during discovery isexchuded. |

Reference to any party shall be in a form that distinguishes
that party from another party with a similar name.Kye

Wes

Reference to the physical absence or attendance of a party or
the corporate represeatatve ofa partyin the courtroom fs

to punitive damages is exdluded, except for limited
snr go cas er Po

Referee toa Party pleading, its caption, or the parties
named therein, is excluded.

Referérog i the bankruptcy ‘status br insblvency of omy
dees apanactarer or supplier i xcided.

Referende to tnuratice ta excluded. | ck

Reference to a plaintiff's collateral sources of benefits is
excluded.

Reference to the asbestos industry, asbestos deferidants or
other phrase that joins defendants or non-party
manufacturers, suppliers, precise owners, or contractois is
excluded.

Reference to any concert of action or conspiracy between a
defendant or non-party is excluded without prior approval of
the court.

Referexice to any'breach of imiplied or express warranty is
excluded. . °

Reference tothe loss of enjoyment of ifs by pleintiff as a
separate element of damages is exchided.

Reference to government statistics that purport to quantify
the value of life, also referred to as “hedonic damages,” is
excluded.

Reference to the existence of any pending action, medical
condition, or health status of any person other than a
plainti—t in this trial is excluded.=
a

8

39,

Evidence, discovery responses, and documents obtained it
othet cases are excluded without prior approval of the court.
This ruling does nat apply to testimony by expert witnesses
in prior cases who are present in this court and give

Reference to thie wealth or-present support status of a
plaintiffis excluded

Refertinée to any expectation of incame alter a plaintifi's
death by'a plaintiff's spouse is ‘ekchided.

Reference to any federal, state, or local asbestos or
workplace sales} oyder or regulation is excluded.

Evidence of workers' coinperisation records is excluded.

Evidence of rninutes of the Asbestos Textile Institute is
excluded,

Caiataifon testimony by an expert witness is limited to thé
“substantial factor” rule. Exemination directed to elicit
testimony about “proximate causation,” or the “but for" test
is excluded.

Evidence of background or ambient exposure to asbestos is
admissible, :

Evidence of conduct by a plaintiff's employer or @ third party
is admissible if otherwise relevant, but not as a superseding
cause of plaintiff's disease.

Evidence of asbestos-containirig products/sites of persons or
entities not present at trial to which plaintiff was exposed is
admissible. 2
Evidence of other known causes of plaintiff's fibrosis is
excluded unless there is a raling of admissibility alter an
olfer of proof.sey cata conteaat cagesation theory State of the art
‘eviderice is admissible ‘also

and/or wit
{ prior approval of the court, und after forty-cight
Hour nofior has been given the covtand opposing coun,

Bvidende or referencé pertainitig to the market share theory
of liability is excluded.

Disclosure by a plaintiff of identities, amounts, sources; and
ates af prior setdamenta is deferred until a jury hae
awarded damages to the plaintifr

Evidence of the number of medical examinations conducted
on a plaintiffis excluded.

Reference to & medical examination of @ plaintiff as being”
independent, or performed by, court-appointed and/or court
imedical examiners, is excluded.

Referetce to a protected or invasive modical examination
requiring approval by the court pet CCP 2032(d} is
excluded. . :

Evidence of the types of examinations ar di
Brocedures conducted on plaintiff by plaintiffs tredting
physicians or other medical witnesses is admissible.

Reference to plaintiff having a “lear of cancer” is excluded,
unless there isa ruling of admissibility after an olfer of proof
has been submitted. ~Sl. Evidence of high resolution computed topography (CT) scans
is admissible.

2. Evidence of galtium scans is excluded.

WITRESSES:

Testimony ty Chastes Ay is admissible on the eubjedt of te
tos-containing products by insulators,

ao we ase 5 ary cabana Testiciony

i Videotapes

opinions as to what the documents mean. or represent or
what industry knew or should have known.

$6. Examination of Kenneth Cohen concerning an ethics _
investigation conducted by the American Industrial Hygierie
‘Association on Cohen is exctuded.

DEFENSES:

57, Evidence or reference to a government contract defense or
military specification defense is excluded.

Evidence of reference to an employer of a plaintiff being a
sophisticated user of asbestos-containing products is
excluded. .we

‘The above rulings are without piejudict, ‘and may be raised by counsel
by written motion. ‘Motions concerning issues not listed above may also
be Submitted to the court, ‘Said motions shall be submitted within two,
days of the case being assigned to Department 611 and shall inchide
‘case specific facts and law addressed. The submiscion:

to the issues and aisthority addressed in cach motion will be sithject'to
sanctions,

Dated: June 18, 2002

kee LP

Judge of the Superior CourtEXHIBIT Laren

ast

AOL

ee

NAT A NH

BYERGES BR §

20
1
22 FOR DEFENDANT ALLIEDSIGNAL, INC., SUCCESSOR IN INTEREST TO THE
BENDIX CORPORATION:

23

‘GORDON & REES, LLP
24 EMBARCADERO CENTER WEST, 20TH FL.

275 BATTERY STREET
25 SAN FRANCISCO, CALIFORNIA 94112

BY: JOSEPH J.
26 ‘STEPHANIE B. BRADSHAW

ATTORNEYS AT LAW

27
28 REPORTED BY: VALERIE PAPALE, CSRNO. 6899

JUDITH N. THOMSEN, CSR NO. $591
228

1017102 7:40 AM aeaVyvaneaune

8

G@ESBE

Ie

‘W8N2 Berning (Abraham, Ben-Zion)

‘CASE AMONGST YOURSELVES NOR WITH ANYONEELSE. IFANYONE
CONTACTS YOU IN ANY WAY, I WANT TO HEAR ABOUT IT WHEN WE.
RECONVENE AGAIN TOMORROW. THAT, AGAIN, WILL BE AT'8:30, EXPECT
AFULL DAY, 8:30 TO 1:36. AND WE WILL SEENOU THEN.

(THE FOLLOWING PROCEEDINGS WERE HEARD OUT OF THE PRESENCE OF
THEIURY —~

MR. JACKSON: YOUR HONOR, I HAVE A BRIEF ON — IN GPPOSTTION
‘TO ALLIEDSIGNAL'S MOTION IN LIMINE 10 APPLY KANSAS LAW.

1HAVENOT YET MILED THAT. HAVE THE ORIGINAL TO FILE,

DOES THE COURT REQUIRE ME TO GIVE AFI ENDORSED COPY NOW,
ORIS A COURTESY COPY TO THE CLERK SUFFICIENT? BECAUSE
HAVENT GIVE YOU A. COPY YEE.

‘THE COURT: A COURTESY COPY 1S FINE.‘ AM, OBVIOUSLY, NOT
GOING TO DECIDE THAT TODAY.

‘MR. JACKSON: OKAY. THEN I WILL PROVIDE THAT TO GAIL
@NDICATING). |

‘THE CLERK: WHAT IS THIS?

MR. JACKSON: THE MOTION IN LIMINE OPHOSTTION.

‘MR. JACKSON: YES. - |

‘THE CLERK: OKAY.

MR. JACKSON: I HAVE THE ORIGINAL TO FILE.

‘THE CLERK: OKAY. .

MR.JACKSON: AND THEN IN TERMS OF TODAY, I THINK ONE OF THE
ISSUES WE DO HAVE ‘TO RESOLVE iS THE ISSUE OF THE TESTIMONY OF
RICHARD HATFIELD IS A COLLEAGUE OF DR. BILL LONGO ATTHE MAS ~
LABORATORIES IN GEORGIA, WHO HAS DONE TESTING AND AIR SAMPLING

yorero2 5:06 PM 334et

ROR ERE POON ana HH

PROSE ERTMAE ASPENS ears nN RESTON OTE,

v02 Berning (Abraham, Ben-Zion)

ON BENDIX BRAKE PRODUCTS AND ISHERE TOMORROW TO GIVE TESTIMONY
‘REGARDING HIS AIR SAMPLING RESULTS.

AND THE PLAINTIFFS ALSO INTEND TO OFFER AS PART OF HIS
‘TESTIMONY VIDEOTAPED SIMULATIONS, WHICH HAVE VIDEGTAPED THE
‘TESTING OF THE BENDIX BRAKE LININGS THAT HE HAS DONE, WHICH *
‘WOULD INCLUDE BLOWING OUT A BRAKE DRUM, WHICH WOULD INCLUDE,
GRINDING OF 4 BRAKE, AND WHICH WOULD INCLUDE CLEANUP AFTER BRAKE
REPAIR WORK INVOLVING BENDIX BRAKE LININGS.

‘THE TESTIMONY Is TWOFOLD — . :

‘THE COURT: WELL, LET ME CUT TO THE CHASE ON THIS.

MR. JACKSON: OKAY.

‘THE COURT: THE ISSUE HERE IS WHETHER OR NOT THE EXPERIMENTS
‘THAT ARE BEING DONE ARE SUBSTANTIALLY SIMILAR TO THEEACTUAL —
SITUATION WE HAVE IN OUR CASE.

AT THIS POINT THE TESTIMONY OF THE BERNING SONS IS— ANDI
BELIEVE MR. BERNING ALSO TESTIFIED ~ 18 THAT HE DID HIS REPAIR.
WORK, BRAKE JOBS, EITHER INSIDE THE GARAGE OR OUTSIDE THE, 3:4
GARAGE, DEPENDING ON THE WEATHER. HIS GRINDER WAS INSIDE
GARAGE. HE USED A RASP, AS WELL AS A GRINDER, TO HAVE THE “0 ee
FIT THE LININGS SO THAT THEY WOULD BE ADJUSTED. HE WOULD BIC Ly "
OUTETTHER USING HIS LUNG POWER OR PERILAPS ONE OR MORE OCCASIONS
SOME KIND OF AIR COMPRESSOR THAT HE HAD IN HIS SHOP. 3 AMES

‘MY RECOLLECTION OF THE EVIDENCE ~ AND COUNSEL CAN CORRECT
ME IF 'M WRONG — IS THAT NONE OF THE WITNESSES TESTIFIED AS TO
‘THE DIMENSIONS OF THE GARAGE, CEILING HEIGHT OR THE SQUARE
FOOTAGE ORIN ANY OTHER WAY. THERE WAS A GARAGE DOOR. IT
WASN'T EVEN CLEAR TO ME AT THE TIME THAT HE WAS DOING HIS BRAKE
JOBS WHETHER THE GARAGE DOOR WAS OPENED OR CLOSED.

~ 1076/02 5:06 PM 335PSRGEGH EES ONY anaAwe®

18102 Berning (Abrabam, ‘Beo-Zion)

THERE WAS NO EVIDENCE PRESENTED AS TO THE VENTILATION OF Thiz
GARAGE, WHETHER IT WAS JUST OPEN TO THE AIR WHEN THE DOOR WAS
OPEN, WHETHER THERE WERE ANY WINDOWS OR ANYTHING ELSE. SONoT
HAVING SEEN THE, THE VIDEOS, BUT MY UNDERSTAND! n nT
REPRESENTATIONS MADE IN THE PAPERS 18 THAT THESE RAPERIMENTS
WERE CONDUCTED iN SOME KIND OF CLOSED ENVIRONMENT.

‘MR. KUBANCIK: THAT'S CORRECT, YOUR HONOR.

THE COURT: IT'S NOT CLEAR TO ME WHAT THE VENTILATION SYSTEM:
was. AND IDON'T KNOW WHAT THE SQUARE FOOTAGE OF THE
ENVIRONMENT WAS. AND SO IT APPEARS TO ME THAT THERE IS A.
POTENTIAL HERE THAT THE EXPERIMENTS WILL UNDULY EMPHASIZE THE
DISPERSAL OR THE ~- NOT DISPERSAL BUT THE LACK OF DISPERSAL OF
‘THE SUBSTANCE EITHER THROUGH VENTILATION, AN OPEN ROOR, BLOWING
WINDOW ~ I MEAN; MOWING WIND OR SOME OTHER WORK THAT WAS BEING
DONE OUTSIDE.

NOW, THE GRINDING, OBVIOUSLY, WAS DONE INSIDE.

‘THERE WAS ONE OF Til WITNESSES, ONE OF THE BERNING BROTHERS,
TESTIFIED THAT AT ONE POINT OR ANOTHER HE WAS ABLETO SEE THE
ACTUAL DUST SUSPENDED INTHE AIR BECAUSE OF THE LIGHTING | 9 =
CONDITIONS. IT WOULD APPEAR TO ME THAT JURORS ARESOMEWHAT . =. Jt
FAMILIAR WITH THE DISPERSAL OF DUST FROM THINGS. SO 1AM NOT
SURE THAT THIS —THESE EXPERIMENTS ARE SUBSTANTIALLY SIMILAR ”
ENOUGH THAT THEY SHOULD BE SHOWN TO THE JURY.

MR. JACKSON: OKAY, A COUPLE OF POINTS HERE THAT I WANT TO
MAXE ON THE PURPOSE OF MR. HATFIELD'S TESTIMONY. BECAUSE FROM
(OUR PERSPECTIVE IT IS CRITICAL AS TO THE RELEVANCE OF IT-

‘THE COURT: 1 AM NOT SAYING IT IS NOT RELEVANT, COUNSEL.

‘THE QUESTION Is IS If ~ ONE OF THE PROBLEMS IS — WITH THESE

1016/02 5:05 PM 338Speen

1 EXPERIMENTS IS 15 fT — 18 THE PREJUDICETO THE OTHER SIDE
OUTWEIGHING WHATEVER RELEVANCY THE INFORMATION HAS BECAUSE ITS
NOT SUBSTANTIALLY SIMILAR TO THE ACTUAL CONDITIONS.
AND ONE OF THE THINGS THAT THIS EVIDENCE TENDS TO SHOW IS
HOW THIS THING APPEARS TO THE NAKED EYE. AND ONROF THE

2
3

4 f
5

6 PROBLEMS I SEE WITH THIS IS [DON'T KNOW HOW BIG THIS GARAGE

7

8

9

‘WAS. SO 1 DONT KNOW WHETHER WHATEVER CONFINED SPACE THAT THESE
EXPERIMENTS WERE CONDUCTED IN ARE SIMILAR ENOUGH THATIT REALLY

x GIVES A FAIR PICTURE OF WHLAT WOULD HAVE BEEN GOING ON INTHE |
1 GARAGE. ‘BECAUSE Wa ALL KNOW THAT A PICTURE IS WORTH A THOUSAND
1 WORDS. WE HAVE TESTIMONY OF WITNESSES SAYING IT. THE JURORS
2 ‘CAN USE THEIR OWN EXPERIENCE IN DETERMINING, WELL, OBVIOUSLY,
38 ‘THERE HAS GOT 10.BE SOE KIND OF DUST GENERATED. No ONEIS
1 DISPUTING THAT, BUT THE QUESTION is HOW MUCH.
45 MR. JACKSON: BEFORE I BEGIN TO ARGUE, ISIT THE COURTS

oo 16 LEANING AT THIS POINT BASED UPON —

27. ‘THE COURT: I WILLBE HAPPY TO LOOK AT THE VIDEOS, COUNSEL.
8 MR. JACKSON: OKAY.

19 ‘THE COURT: BUTI THINK YOU HAVE GOT AN UPHILL BATTLE
20 BECAUSE I DON'T KNOW THE DIMENSIONS OF THE GARAGE.
‘. ‘MR. JACKSON: WHAT E DO WANT TO UNDERSTAND, FIRST, BEFGRE I

au
22 SPEAK TO THE ISSUE IS IS 1T THE COURT'S INTENTION TO EXCLUDE THE *
23 ‘VIDEOTAPED DEMONSTRATIONS, THE WORK PRACTICE SIMULATIONS, ON 352
24 GROUNDS BUT TO PROVIDE OR TO ALLOW MR. HATFIELD TO GIVE
25
26

‘TESTIMONY REGARDING THE TESTING THAT HE HAS DONE AND THE RESULTS
‘THAT HE HAS HAD BY HIS OWN EXPERT OPINION?

27 ‘THE COURT: [THOUGHT -- I HAD SPEED READ THESE MOTIONS.

28 BUT MY RECOLLECTION OF THE MOTION IS THE ONLY THING THEY WERE

401/02 §:08 PM 7i

+ agezzruz 43:53 pas

popstar pesnensts mee

BSRRERSRESSSESKRARSE KH SO ON OH ew Om

11a/02 Berning (Abraham, Ben-Zion)

SEEKING TO EXCLUDE WERE THE VIDEOTAPES. WERE YOU ALSO SEEKING
‘TOEXCLUDE THE TESTIMONY? '

4B. KUBANCIK: | BELIEVE THAT WAS PART OF IT, YOUR HONOR.

THECOURT: WEIL... _

(MR. JACKSON: AND THE REASONI ASKED THAT 18 BECAUSE IF WE
ARE GOING TO DISCUSS VIDEGTAPED TESTIMONY, I WILL SUBMIT A BRIEF
ONTHATISSUE. BUY IF WE ARE GOING TO TALK ABOUT THE PERTINENT
OPINIONS OF MR_HATFIELD, 1DO WANTTO EXPLAIN TO THE COURT WAY
HEISBEING OFFERED AND WHY THE TESTIMONY THAT HES GOING TO
‘GIVE ABOUT HIS RESULTS ON TESTING BENDIX IS CRITICAL TO THE
ISSUES IN THIS CASE. oo

‘THE COURT: [DONT HAVE ANY PROBLEM WITH A WITNESS
‘TESTIFYING AS TO, YOU KNOW, HE. HAS DONE'SOME EXPERIMENT. YOU |
KNOW, TS PROBABLY SIMILAR ENOUGH TO WHATIS GOING ON IN THE
‘REAL WORLD TO BE OF SOME PROBATIVE VALUE.

BUTI DO HAVE A PROBLEM WITH SOMETHING THAT UNDULY SUGGESTS, “!
‘YOU KNOW, HOW SOMETHING ACTUALLY HAPPENED BY USING SOME KIND OF
‘VISUAL MEANS.”

‘MR JACKSON: WELL, THE PURPOSE OF HIS TESTIMONY, YOUR
HONOR, 1S NOT To GIVE THE TESTIMONY THAT THIS IS WHAT ACTUAL
EXPOSURE THAT MR. BERNING HAD. AND [DONT THINK IT WOULD BE
APPROPRIATE FOR ANY INDUSTRIAL. HYGIENIST, DEFENSE OR PLAINTIFFS,
‘TODO THAT.

‘THE COURT: YES, BUT THE EXPERIMENTS ARE SUBSTANTIALLY
SIMILAR, COUNSEL.

MR JACKSON: BUT THE ISSUE, THOUGH, IS NOT TO RECREATE HIS.
ACTUAL EXPOSURE. THE ISSUE IS TG ADDRESS WHAT ARE THE DISPUTES
INTHIS CASE. r

4016/02 5:06 PM 338

weepyres cee mma ee eM a ER RN oe NTE
+ Upszzvoz 13:34 WAR

~~

SRAEKRERSSSIRAESRPE BS SOY OM ae

AND THE DISPUTE THAT I AM UP AGAINST, YOUR HONOR, 1S THAT

‘THEIR INDUSTRIAL HYGIENIST WILL SAY THAT USE OF BRAKES IS SAFE, -
‘THAT IT DOESNT RELEASE ASBESTOS, THAT WHEN YOU BLOW OUTA BRAKE

»

»

FACTTHATITSCONVERTED~ = = * .

‘Tak COURT: AND YOU WILL HAVE YOUR WITNESS CONTRADICTING
‘THAT TESTIMONY.

‘*MR.JACKSON: AND THE REASON If CONTRADICTS IT IS BECAUSE HE
1S ACTUALLY, UNLIKE THEER INDUSTRIAL HYGIENIST — HE. HAS Lok
ACTUALLY TESTED A BENDIX BRAKE, HE HAS GRINDED IT, AND HE HAS
‘TAKEN MEASUREMENTS TO SEE WHAT HAPPENS. AND IT'S THIS SIMPLE.

‘THE COURT: IF HE TESTIFIES TO THAT, I DONT HAVE ANY -
PROBLEM WITH THAT.

MR. JACKSON: OKAY, SO YOUR RULING

‘THE COURT: MY PROBLEM IS WITH THE VIDEOS.

MR. JACKSON: YOUR RULING 1S THAT MR. HATEIELD CAN GIVE HIS .
‘TEST RESULTS THAT HE HAS DONE AND THE OFINIONS THAT HE HAS DONE
BASED ON THAT AS THE FORM OF AN EXPERT. BUT THE VIDEOTAPED
‘TYNDALL BEAM DEMONSTRATIONS ARE EXCLUDED.

‘THE COURT: YES. tee

MR. JACKSON: 1 JUST WANT A CLARIFICATION, AND THEN T HAVE
NO FURTHER ARGUMENT.

‘THE COURT: ANYTHING FURTHER?,

MR. KUBANCIR: NO, YOUR HONOR. SUBMITTED.

‘THE COURT: AT THIS POINT THE MOTION IS GRANTED TO THE
EXTENT THAT THE VIDEOTAPED EXPERIMENTSARE EXCLUDED FOR THE
REASONS WHICH I HAVE STATED. ‘THE COURT DOESNT FIND THAT THEY
WOULD BE SUBSTANTIALLY SIMILAR TO THE EVIDENCE THAT IS GOING TO

x
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toVBIa2 5:06 PM #8

DRUM, YOU ONLY HAVE AVERY LITTLE AMOUNT OF FIBER BECAUSE OF THE

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28

1W8i02 Berning (Abraham, Ben-Zion}

BE BEFORE THE JURY.. ™

MR. JACKSON: AND ALSO, AS A PART OF THAT RULING, THAT THE
ACTUAL TESTING HE HAS DONE AND THE OPINIONS THAT HE HAS FORMED
BASED ON THOSE TESTS ARE ADMISSIBLE,

THE CouRTY ‘THATS WHAT I SAID, COUNSEL THATS WHATI
SAID.

MR JACKSON: THANK YOU, YOUR HONOR.

‘THE CLERK: 80 THE MONON TO EXCLUDE VIDEO DEPOSITION IS
‘TESTIMONY. .

ALRIGHT. ANYTHING ELSE WE NEED TO RESOLVE TODAY? {

MRJACKSON: NOT IN'TERMS OF SUBSTANTIVE MOTIONS. BULL
SHOULD ALERT THE COURT TO WHAT OUR SCHEDULE IS SINCE WE ARE VERS
FAR AHEAD OF SCHEDULE. ,

‘AT THIS POINT TOMORROW OUR TESTIMONY IS DR. RICHARD COHEN:
‘AND THEN MR. HATFIELD. AND WE ARE THEREAFTER DONE WITH OUR LIVE
WITNESSES. GIVEN THE TESTIMONY THAT WE HAVE HAD ON CAUSATION,
‘THE PROBLEMS THAT I HAVE HAD IN SCHEDULING DR. ALLAN SMITH, WHO
‘WAS MY LAST LIVE WIINESS, WE ARB NOT-GOING TO CALL HIM TO GIVE
‘TESTIMONY IN TRIAL. SO AFTER THE WITNESSES TOMORROW, THEN THE
BODY OF EVIDENCE THAT WE HAVE TO SUBMIT COMES IN THE FORM OF
DOCUMENTS AND DEPOSITION TESTIMONY WITH RESPECT TO THE CORPORA
‘NEGLIGENCE AND PUNITIVE DAMAGES CLAIMS AGAINST ALLIED.

‘THE COURT: ALL RIGHT. SO TOMORROW'IS THE 9TH. SO YOU CAN
PRETTY MUCH FILL TOMORROW.

‘MR. JACKSON: I CAN FILL TOMORROW WITH THE LIVE WITNESSES.

AND THEN THE DOCUMENTS REALLY SHOULD AMOUNT TO NO MORE THAD

40/6/02 5:06 PM 340EXHIBIT MIN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING

PATRICK CAMPBELL,

Plaintifé,

vs. No. 00-2-22084-78EA

ABNEY MILLS CORPORATION, et al.,

Defendant.

VIDEOTAPE TRIAL PROCEEDING |
OCTOBER 9, 2002
BEFORE THE HONORABLE SHARON ARMsTRONG

f
|

B /
= i
: 4
|
Reported by Toni Ziomas, CSR | j
ea LIKKEL & ASSOCIATES, COURT REPORTING & LEGAL VIDEO
a 2722 Colby Avenue, #706, Everett, WA 98201

(425) 253-3330Bb rersemcennatenmuer enna ommrstereie ema trane naceens

5

C 6
©
~ 5
1 . With regard to the Longo Videotape, 1 have

2| looked at the videotape, and it will be excluded as
3 | unfairly prejudicial. |

4 MR. -VEIERA: Your Honor, can Z ask the

S| jury-- it ocdurred to me that I'm looking through here ana
6 | +f see @ lot of folks that have sat on criminal juries --

7| the standard question, Do you understand the! distinction of
| the burden ‘cf proof? “r'acnit want to get inte instructing
9] folks on the law. Am I allowed. to aak at Least on that

Yo | topic? I
aL THE COURT: Yes. Yes, you my.

: i
12 MR. WILLIAMS: To just be clear, Your

13] Honor, obviously we don't want to repeat! yesterday, so I
24] will tel2 you one of the questions I want to|apk the jury
15] is, one, with respect to how they feel about | unfair --

16 | being treated unfairly. 1 don't went get into obviously

17] the issue about --

18 THE COURT: Tell me exactly what you are

19 | going to say. /

20 MR. WILLIAMS: I'm going to ask them, Have
21] you ever been wrongly accused of anything? Bow did you

22 feel? . ie

23 THE. COURT: That's fine. :

24 - MR. VEIERA: Judge, what we'te not géing to

E
25| hear is, We are here to defend our name. Welre the last
4

LIKKEL & ASSOCIATES, COURT REPORTING & LEGAL VIDEO
2722 Colby Avenue, #706, Everett, WA 98201
(425) 259-3330 LIN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

DARLENE DELLA PIAZZA, Executrix CIVIL DIVISION
of the Estate of ALBERT 6.

GAZDACKO, Deceased, and JEAN GD00-14102
GAZDACKO, in her own right,

Code: 012 — Asbestos’

ORDER OF CO"

And now, this __ day of.
foregoing Motion in Limine, it is hereby ORDERED and DECREED that plaintiffs are prechidad “2
from introducing into evidence, showing to the jury, or ofserwise utilizing in any manner at the
time of trial the April, 1998 videotape of Flintkote floor tile testing, produced by plaintiffs”

2003, upon consideration of the

BY THE COURT:

{01368781} 13 wenEXHIBIT N09/29/2083 18:13 9126388605 JB AND M LAW FIRM PAGE

IN THE CIRCUIT COURT, FOURTH
4 JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA.

MARY ELLEN TYRE, Individually and as
Executrix of the Estate of ROYCE A.
TYRE, Dereased,

Plainti¢t,
v8. CASE NO: 16-2002-CA~4837

CSX TRANSPORTATION, INC.,
Defendant.

STEPHEN T. TISON,
Plaintiff,
vs. CASE NO: 16-2002-CA-4836
DIVISION: CY-C
SX TRANSPORTATION, INC.,

Defendant,

TROY BICKOX,
Plaintiff,
vs. CASE NO: 16-2002-CA-4835.
DIVISION: CV-D
CSX TRANSPORTATION, INC.,

Defendant.
nner cette

82JUDY E. MURRAY, Individually and # ‘Exeeutrix

of the Estate of ERNEST E. MURRAY! Deceased,
Plaintiff,
vs N CASENO:
DIVISION:
CSX TRANSPORTATION, INC.,
Defendant.
veeeecceef
JAMES A, WOOD,
Plaintiff,
vs. CASE NO:
DIVISION:

SX TRANSPORTATION, INC.,

CLYDE VARNADORE,
Plaintiff,
vs. CASE NO:
DIVISION:
‘CSX TRANSPORTATION, INC.,
Defendant.

ROBERT GERALD LEAR,

Plaintiff,

vs. CASE NO:

CSX TRANSPORTATION, INC.,

Defendant.

99/29/2003 18:13 9126380605 JB AND M LAW FIRM

16-2003-CA-3021,
cVv-D

16-2002-CA-4833
CV-E

16-2002-CA-7566

i: CV-E

16-2001-CA-8235
CVE

PAGE

a309/29/2083 18:13 9126388605 3B AND M LAW FIRM PAGE ed

GLORIA V. WILLIAMSON, Individually and as
Executrix of the Estate of CARL WILLIAMSON,
Deceased,
Plaintiff,
v

vs. CASE NO: 16-2002-CA-4834
DIVISION: CV-

CSX TRANSPORTATION, INC.,

Above styled cases were consolidated for purposes of « Five hearing by order of the

Chief Judge July 3, 2003. The hearing commenced on September 8, 2003. The parties produced
multiple witnesses, mountainous documents and other evidentiary exhibits, and vigorous
argument during the three day hearing which ended on the late afternoon of September 10, 2003

The issues at hand were whether Plaintiff's expert witnesses’ methodology for counting
asbestos fibers in an industrial setting and workplace had been generally accepted in the scientific
community and, secondly, whether the testing procedures used to apply that principle to the facts
at hand have the same general acceptance as the methodology. See Brim v State, 695 So2d 268,
272 (Fla 1997), citing Ramirez v State, 65] So2d 1164, 1168 (Fla 1995).

Initially, Defendant challenged the indirect transfer method of counting fibers which was
used by the Plaintiff's experts. On the last day of the hearing, Plaintiff announced that no
attempt would be made to elicit testimony or other evidence of use of that method of counting

asbestos fibers, That consideration shall not be included in the Court’s determination of the09/29/2083 18:13 9126362605 JB AND M LAW FIRM PAGE 05

issues. (The Court notes tat EPA has approved the indirect transfer method; OSHA has not as
yet done so.)

At the heart of the issue at this time isthe question of whether Plaintiffs experts use ofa
simulation chamber for ir sampling and video taped demonstraives of “work practices”
conform to the requirements of Brim, supra.

‘The use ofa charober by which simplations may be perfiemed is agreed to by all experts
testifying on the issue, Jt appears to this Court thatthe use of a chamber is not anew of novel
method of testing, Disagreement between the experts arose, however, as to whether the chamber
had been used properiy for the test results to be used at trial and the video tapes to be used as
demonstrations of how workers are exposed to ashestos fiber during performance of occupational
function using certain tools to remove asbestos or in cutting or shaping it for installation purpose,

Defendant argues and the record supports that Plaintiff's experts did no investigation of
the environment of the Defendant's shop at Waycross, Georgia in preparation for conducting a
simulated air sampling study. In fact, each of Plaintiff's experts testified that neither had ever
visited the work area at Waycross; that their only understanding of conditions there was learned
from three individuals who, although they worked at the facility, did not work with any of the
Plaintiffs in the above styled cases. Neither the Plaintiffs in thes¢ cases nor workers with the
same functions as Plaintiff were ever interviewed by Plaintiff's experts. Each expert admitted to
a lack of experience or any knowledge of the railroad business. No information was gathered
regarding the area of the facility, its ceiling height, and whether it was an open, shed like
structure or an enclosure with forced method of ventilation which is crucial. The chambers used
herein measured 8° x 12' and 15° x 20, Bach had an 8' ceiling. it does not necessarily follow that

the ventilation method used in those facilities would be the same as the ventilation ina “muchvs cosouvey vo AND Mm LAW FIRM PAGE @6

Jarger” facility. Mr. Hatfield testified that he “was sure” the railroad facility was “inuch larger”.
In response to the failed attempt to duplicate or more nearly simulate the work place and
work practices of the Plaintiffs in these cases, Plaintiff's experts testified of doing a chamber
study individualized for the facts of each of the work practices in a work place resembling the
work place involved was impractical. However, the “impractical” type of investigation and the
facts derived has been advocated by one of the experts (Dr. William E. Longo) in a study entitled

1994, After extolling the benefit of simulations, the article addresses the validity of simulated

studies:
“On the other hand, a simulation approach is only valid if the
simulation is realistic, that is if the work conditions and worker
performance are faithfully reproduced.” p.854 (emphasis supplied)
In describing simulation procedures in the 1994 study, Dr. Longo provides the following
information regarding authentication:
“To ensure authenticity of the methods and procedures used in
performing the various tasks, we drew upon our extensive
experience (estimated at 30 man-years) in designing, implementing,
and evaluating O&M programs for buildings with ACM. In addition,
experienced service workers were interviewed regarding
procedures they typically used for each of the following tasks. .
Id, p.854
This evidence that Dr. Longo failed to follow his own procedure of “faithful
reproduction” raises a concern for the reliability of the studies, In this Court's view, while the
videotape may ably reflect a study demonstrating an exposure to asbestos fibers for training
purposes of various workers involved in each of the work practices exhibited on the tape, the
question is raised as to their reliability in an asbestos fiber counting study if precision for the

count is required. It appears that the Plaintiff's experts have not followed the “faithful03/29/2883 18:13 9126380605 JB AND M LAW FIRM PAGE 87

reproduction” and “authentication” Procedures described in the work cited above. Their failure
to interview the individual workers involved or other workers of similar functions who were
experienced and who had first-hand knowledge ofthe working environment is a flaw inthe
‘method used when viewed in light oftheir admissions that they had never visited the railroad
facility and knew nothing about the railroad business. Reliance only ona description of their
activities provided by Plaintiffs attorney and three workers who had brought suit against
Defendant are indicative of less than scientific approach toa simulated stady for counting
asbestos fiber, The procedures used indicate a desire and practice which taints the credibility of
their study. Such opens a procedure to a needed result with adjustments to obtain that result or,
in addition a disregard of precision Procedure.

Defendant offered three expert witnesses who, by their testimony, attack the validity of
the studies proffered by Plaintiffs, Mucb of their testimony addressed the weight to be given in
consideration of the study which, if admitted, n jury should consider. Of importance to this issue
however, is the agreement of the three that the difference in facility sizes between the railroad
facility and t