Motion,Ex Parte: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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207634,4 1077.28787

RICHARD D. DUMONT (SBN 107967)

rdumont@seimanbreitman.com ELECTRONICALLY
PAUL J. GAMBA (SBN 146097) ONIC
amba(@selmanbreitman.com FILED
ILMAN BREITMAN LLP Superior Court of California,
33 New Montgomery, Sixth Floor County of San Francisco
San Francisco, CA 94105 OCT 29 2010
Telephone: (415) 979-0400 Clerk of the Court
Facsimile: (415) 979-2099 BY: JUANITA D. MURPHY
Deputy Clerk

Attorneys for Defendant
LAMONS GASKET COMPANY

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA, Case No. CGC-07-274230
Plaintiff, MOTION IN LIMINE TO EXCLUDE
THE TESTIMONY OF DR. BARRY
v. CASTLEMAN - Motion in Limine No.
ASBESTOS DEFENDANTS (BP),
Action Filed: June 6, 2007
Defendant. Trial Date: October 29, 2010

LAMONS GASKET COMPANY (hereinafter “Lamons”) hereby moves this court
in limine, prior to trial and the selection of a jury, for an Order that any opinion or
conclusory testimony offered by Dr. Barry Castleman as an expert witness at trial be
excluded on the grounds that it fails to meet the requirements of California Evidence Code
Section 720.

L SUMMARY OF MOTION

Lamons files this motion to bring to the court's attention the substantial material
evidentiary problems created by the proposed testimony of Dr. Barry Castleman, who has
been designated by plaintiffs as an expert witness on the corporate knowledge of certain.
defendants concerning the health hazards of exposure to asbestos fiber and asbestos-
containing insulation products. This expert opinion is a summary, founded upon

Dr. Castleman's reading of medical literature and other documents, and a graduate degree

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207634.) 1077.28787

in public health, unaccompanied by any claim of medical expertise. Dr. Castleman, will
offer his opinion on corporate knowledge during the 1950s, when he was a child becoming
an adolescent. To the extent he expresses opinions about corporate knowledge in the
1930s and early 1940s, he is expressing a view prior to the time he was bora.

Dr. Castleman's opinions have provoked a host of litigation nationwide.
Dr. Castleman's testimony has been severely limited or rejected by, among others, Judge
Stuart R, Pollack of the San Francisco Superior Court and Chief Judge Robert F. Peckham
of the United States District Court for the Northern District of California. Moreover,
Dr. Castleman steadfastly refuses to produce documents other than those he deems
relevant. For these reasons, Dr. Castleman has been barred from testifying by a number of
courts, both federal and state.
IL MEMORANDUM OF POINTS AND AUTHORITIES

A.  Qnily a Person Who Has Special Knowledge, Skill, Experience, Training,
or Education Sufficient to Qualify Him as an Expert May Testify as an

Expert.

The question of qualification of a witness to testify as an expert is set forth in
California Evidence Code Section 720(a), which states:

A person is qualified to testify as an expert if he has special
knowledge, skill, experience, training, or education sufficient to
qualify him as an oxpert on the subject to which his testimony
relates, against the objection of a party. Such special
knowledge, skill, experience, training or education must be
shown before the witness may testify as an expert.

Because the jury may give undue weight to expert testimony, Section 720(a) states
the existing California practice of limiting expert testimony by several standards. First, the
subject of the testimony must be so distinctly related to some science, profession, business,
or occupation as to be beyond the knowledge of the average layman. In Vallejo Ete. R.R.
Co. v. Reed Orchard Co, (1915) 169 Cal. 545, the court stated:

... It is not because a man has a reputation for superior
sagacity and judgment, and power of reasoning, that his

opinion is admissible. ... [I]t is because a man's professional
pursuit, his peculiar skill and knowledge in some department of
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2076341 107728787

science, not common to men in general, enables him to draw an
inference, where men of common experience, after all the facts
proved, would be left in doubt.

id, at p. S71.

In addition, California courts have held that the matters upon which an expert may
offer an opinion must be such that are perceived or personally known to him. People y.
Price (1991) | Cal 4th 324, 420 (expert's opinions and testimony were excluded where
opinions were not based on matters perceived or personally known to the expert).

Dr. Castleman's testimony has been tendered by plaintiffs in other cases to identify
and authenticate medical literature on asbestos health effects, presumably to show what
literature was available at various times to those having reason to conduct research. In the
past, courts in California, Texas, Oklahoma, and Alabama have disallowed and/or limited
the testimony of Dr. Castleman because, variously, he is not a medical doctor and has no
expertise to interpret medical literature; he could not and cannot properly authenticate
records to be used in connection with his testimony; he has refused to produce records he
has reviewed or relied upon in his background research (see People v. Price, supra, |
Cal.4th at 420 [testimony properly excluded where expert refused on cross-examination to
disclose sources upon which he based his opinions, thus frustrating cross-examination]);
and/or his offered testimony was not properly the subject of opinion/expert testimony, in
that it would not be helpful to the trier of fact. Jn Re Related Asbestos Cases 543 F. Supp.
1142, 1149-50 (N_D. Cal. 1982).

Recently, Dr. Castleman has collected his opinions in a book and plaintiffs now call
Dr. Castleman to testify as an “expert” on the much broader issue of his opinions
concerning “industry knowledge" (what he believes corporations did know or should have
known based on available information) of the hazards of asbestos at different times during
the twentieth century. Specifically, having read medical literature, documents supplied to
him by others (predominantly plaintiffs’ attorneys), and public records, and having
interviewed others (but ot the officials of these defendants), Dr. Castleman has formed

opinions (and will be called to testify) concerning what "industry" members did conclude

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or should have concluded concerning the health effects of asbestos.
In In Re Related Asbestos Cases, supra, 543 F. Supp. 1142, the defendants' motion
to disqualify Dr. Castleman as an expert was granted. The court applied Federal Rule of
Evidence 720 (which is virtually identical to California Evidence Code section 720), and
held:
We are not persuaded that Castleman, as a lay person,
possesses the expertise necessary to read complex, technical
medical articles and discern which portions of the articles
would best summarize the authors’ conclusions. Moreover,
even if the articles did contain discreet summaries of their
contents which could be read by Mr. Castleman, plaintiffs
concede that Mr. Castleman would be unable to describe the
reaction of the medical community to the articles at the time
they were first published.

Id. at 1149.

Although the Federal Court did not preclude the plaintiffs in that case from using
Dr. Castleman as a foundational witness to identify articles which he had located, the
court, nevertheless, ruled that Dr. Castleman's "articles or list of articles [would] not be
admitted into evidence unless plaintiffs elicit, from a qualified expert witness, testimony
which [would] clarify for the trier of fact what the content of each article [was], whether
the source which published each article was well known or obscure, and how each article

was received by the medical community." Jd. at 1150.

B. Expert Testimony is not Admissible Where the Subject of Testimony is
Susceptible of Intelligent Consideration by a Layman.

As stated above, the test for the necessity of expert opinions and conclusions
depends upon several factors. One factor is the expert's skill and knowledge, as discussed
above. A second factor is whether the trier of fact can satisfactorily appraise the evidence
without the expert's help. As was pointed out in People v. Arguelio (1966) 244 Cal. App.
2d 413 (overruled on other grounds):

The decisive consideration in determining the admissibility of
expert opinion evidence is whether the subject of inquiry is one
of such common knowledge that men of ordinary education
could reach a conclusion as intelligently as the witness or

whether, on the other hand, the matter is sufficiently beyond
common experience that the opinion of an expert would assist

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the trier of fact.
Id. at page 420.

Here, the jurors will clearly be able to use their own common sense and knowledge
to determine the import of the medical articles, if any, referred to by Dr. Castleman. All
that Dr. Castleman has done is make a compilation of certain documents which he, or his
assistants, may have found. There is no recognized specialty or field of expertise which
comprehends or encompasses the opinions Dr, Castleman would express on these broad
subjects,

Dr. Castleman is not a medical doctor and has no practical experience, in or out of
industry or government, on the subjects to which he claims expertise. Dr. Castleman's
opinions would not be helpful to the trier of fact because they relate to issues (states of
mind and knowledge) on which the trier of fact uniquely is qualified (by judging degrees
of relevance and credibility) to pass judgment and because his opinions rely on
unauthenticated hearsay.

WL RELIEF SOUGHT

Lamons’ motion seeks to confine this trial to its proper limits and Dr. Castleman to
his proper limited area of competency. Lamons moves that plaintiffs be required to make a
showing and an offer of proof to meet the following objections that are apparent from Dr.
Castleman's opinions:

Ll. Issues of knowledge and states of mind are uniquely within common
experience and the province of the trier of fact. These issues turn on questions of
credibility and weight. There is no field of expertise on the subject of “corporate states of
mind." This is not a proper subject of expert testimony and, therefore, would not “assist
the trier of fact." Evidence Code Section 801 (a).

2. Unauthenticated hearsay, documents provided over the years to
Dr. Castleman by plaintiffs' lawyers or taken variously from archives or public filings, or
conversations with others about their hearsay-based opinions on corporate knowledge

cannot reasonably be relied upon by any legitimate expert for expressing opinions in a

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court of law. 1 Witkin, California Evidence, Section 482, pp. 452-453 (3d Ed. 1986).
Where, as here, there is no expert or scientific community which has accepted these as
legitimate foundations and sources of information or as reliable sources of information for
purposes of judging corporate knowledge, guilt, or other states of mind, the opinions and
the bases for any such opinions should be viewed with extreme skepticism. Evidence
Code Section 801(b); cf, People v. Kelly (1976) 17 Cal. 3d 24, 30; 2 Witkin, California
Evidence, Sections 862-864, pp. 828-31 (3d Ed. 1986). Dr. Castleman, in reality, is
tendered here to avoid substantial Evidence Code barriers of authenticity and admissibility
(in the latter case, mainly, barriers relating to hearsay) not surmountable by conventional
evidentiary means. This is a misuse of Evidence Code Sections 800 ez seg. People v.
Coleman (1985) 38 Cal. 3d 69, 90-92. Under these circumstances, so-called "expert"
testimony is no more than premature closing argument on issues of guilt and knowledge,
not supported by admissible evidence or testable on cross-examination.

3. Hearsay opinion testimony concerning any industry-wide "conspiracy of
silence” to fix medical literature, government regulations, etc., is improper and
inadmissible. Plaintiffs cannot lay any proper factual and admissible evidentiary
foundation as to the existence of a definable "industry" and its membership at relevant
times, of an agreement and conspiracy with well-defined objectives between and among
these defendants, and of the existence of agency relationships between and among
defendants on issues relevant to this lawsuit.

4. Evidence concerning (a) the conduct or knowledge of companies which are
not defendants; (b) defendants’ knowledge or notice of risks of disease other than these
alleged here; and (c) defendants’ knowledge or notice of risks from exposure to asbestos
other than in the precise circumstances present in this case is not admissible and should be
excluded,

5. Dr. Castleman still refuses to produce to these defendants the same records
and materials going to the foundation of his testimony that the federal courts in Houston,

Texas, and Galveston, Texas, have ordered him to produce and has barred him from.

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testifying as an expert until he produces.

This is a trial on issues of strict liability and alleged negligence of these defendants
concerning decedent’s exposure to asbestos at particular sites. As a perennial advocate of
the plaintiffs' cause outside the courtroom, Dr. Castleman has developed omnibus views
concerning discoveries of the health effects of asbestos in occupational use. Unless this
trial is to become a protracted multi-media event, Dr. Castleman's global opinions should
remain his own freely to express outside the courtroom.

IV. CONCLUSION

For all the foregoing reasons, Lamons respectfully request that any opinion or
conclusory testimony offered by Barry Castleman as an expert witness at trial be excluded
on the grounds that it fails to meet the requirements of California Evidence Code Section
720 and applicable California law.

If the court is inclined to allow Dr. Castleman to testify at this trial, Lamons
respectfully request that:

(1) Plaintiff be required to make a detailed offer of proof respecting the scope
and content of Dr. Castleman's testimony; and

(2) Dr. Castleman's qualifications and the foundation(s) for his testimony be

established through voir dire and tested by objections before he is allowed to appear before

this jury.

DATED: October 28, 2010 SELMAN BREITMAN LLP

By:__/s/ Paul J. Gamba
RICHARD D, DUMONT
PAUL J. GAMBA

Attomeys for Defendant

LAMONS GASKET COMPANY

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Louis Castagna v. Asbestos Defendants (BP)
San Francisco Superior Court Case No. CGC-07-274230
Defendant: LAMONS GASKET COMPANY
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

lam employed in the County of San Francisco, State of California. I am over the
age of 18 years and am not a party to the within action; my business address is 33 New
Montgomery, Sixth Floor, San Francisco, CA 94105.

On the date shown below, I electronically served the following document(s) via
LexisNexis File & Serve described as MOTION IN LIMINE TO EXCLUDE THE
TESTIMONY OF DR. BARRY CASTLEMAN - MOTION IN LIMINE NO. 39 on
the recipients designated on the Transaction Receipt located on the LexisNexis File &
Serve website.

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

Executed on October 2 2010, at San Francisco, California.

Ay
Loh be

/Oyithi Elrod
LS

MOTION EN LIMINE TO EXCLUDE THE TESTIMONY OF DR. BARRY CASTLEMAN - MIL NG. 39