On June 06, 2007 a Motion,Ex Parte was filed involving a dispute between Castagna, Louis, and Advocate Mines Limited, Albay Construction Company, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, American Conference Of Governmental Industrial, American Conference Of Governmental Industrial Hyg, American Standard, Inc., Ameron International Corporation, A.O. Smith Corporation, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Baugh Construction Company, Bechtel Corporation, Bell Asbestos Mines Ltd., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Briggs & Stratton Corporation, Bucyrus International, Inc., Caterpillar Inc., Cbs Corporation, A Delaware Corporation, Chevron Products Company, Chevron U.S.A. Inc., Chicago Bridge & Iron Company,, Chrysler Llc Fka Daimlerchrysler Company Llc,, Conocophillips Company, Consolidated Insulation, Inc., Contra Costa Electric, Inc., Copeland Corporation, Copeland Corporation, Llc Fka Copeland Corporation, Crane Co., Csk Auto, Inc., Daimlerchrysler Company Llc, Formerly Known As, Daimlerchrysler Corporation, Dana Corporation, Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Durametallic Corporation, Eaton Corporation, Eaton Electrical Inc., Elliott Company,, Elliott Turbomachinery Co., Inc., Emsco Asbestos Company, Fibre & Metal Products Company, Fibre & Metal Products Company, Inc., Fisher Controls International Llc, Fmc Corporation, Fmc Corporation-Chicago Pump, Forcee Manufacturing Corp., Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, Gate City Plumbing & Heating, Gatke Corporation, General Electric Company, General Motors Corporation, Genuine Parts Co., Genuine Parts Company, Henry Vogt Machine Co., H. Krasne Manufacturing Company, Honeywell International Inc.,, Hopeman Brothers, Inc., Imo Industries Inc., Ingersoll-Rand Company, Interlake Steamship Co., Johnson Controls, Inc., J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Lamons Gasket Company, Landsea Holding Company, Lasco Brake Products, Lear Siegler Diversified Holdings Corp., Lindstrom & King Co., Inc., L.J. Miley Company, Maremont Corporation, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Automotive Parts Association, National Transport Supply, Inc., Nibco Inc., Oakfabco, Inc., Owens-Illinois, Inc., Paccar Inc., Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corp., Performance Mechanical, Inc., Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Rapid-American Corporation, Red-White Valve Corporation, Republic Supply Company, Riley Power Inc., Riley Power, Inc., Erroneously Sued As Babcock, Riteset Manufacturing Company, Rockwell Automation, Inc., Rossendale-Ruboil Company, Santa Fe Braun, Inc., Schlage Lock Company, Scott Co. Of California,, Sequoia Ventures Inc., Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Special Electric Company, Inc., Special Materials, Inc.-Wisconsin, Standard Motor Products, Inc., Standco, Inc, Sta-Rite Industries, Llc, Stuart-Western, Inc., Swinerton Builders Fka Swinerton & Walberg Co., Taco, Inc., Temporary Plant Cleaners, Inc., Terry Corporation Of Connecticut, Terry Steam Turbine Co., The Budd Company, The Dow Chemical Company, The Industrial Maintenance Engineering Contracting, The William Powell Company, Thomas Dee Engineering Company, Timec Company, Inc., Tosco Refining Company, Inc., Trane Us, Inc., Triple A Machine Shop, Inc., Tyco International, Underwriters Laboratories, Inc., Uniroyal Holding, Inc., Universal Friction Materials Company, Unocal Corporation, U.S. Spring & Bumper Company, Warren Pumps, Llc, Wheeling Brake Block Manufacturing Company, Yarway Corporation, Zurn Industries, Llc, Formerly Known As Zurn, for civil in the District Court of San Francisco County.
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2 3 4 5 6 7 8 9 10 MHL sed 2 as & 2 Be oe 14 St a z 15 q s E16 SN nm 18 19 20 2 nN 23 24 25 216 2 28 207635.1 107728787 RICHARD D. DUMONT (SBN 107967) rdumont@selmanbreitman.com ELECTRONICALLY PAUL J. GAMBA (SBN 146097) amba@selmanbreitman.com F ILE D . LMAN BREITMAN LLP Spare ete alone 33 New Montgomery, Sixth Floor 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 THAT PLAINTIFF'S EXPERT CHARLES v. AY BE EXCLUDED AS AN EXPERT WITNESS OR THAT HIS ASBESTOS DEFENDANTS (BP), TESTIMONY BE LIMITED - Motion in Limine No, 40 Action Filed: June 6, 2007 Trial Date: October 29, 2010 Defendant. L INTRODUCTION Defendant LAMONS GASKET COMPANY (hereinafter “Lamons”) hereby moves this Court in limine, prior to trial and before the selection of a jury, for an Order excluding the testimony of plaintiffs' expert Charles Ay, and prohibiting plaintiffs’ counsel from referencing, introducing or attempting to introduce any testimony of Mr. Ay in this matter. This motion is based on the fact that Mr. Ay does not possess any background, qualification, experience or personal knowledge that would qualify him to testify against Lamons in this case, wherein plaintiffs alleges exposures at commercial facilities that Mr. Ay, a former naval shipyard insulator, has never worked at, studied or visited, and as to which he bas no foundation in personal knowledge. Charles Ay is not an industrial hygienist, and has no special knowledge; training or experience regarding either the 1 MOTION IN LIMINE THAT PLAINTIFF'S EXPERT CHARLES AY BE EXCLUDED AS AN EXPERT WITNESS OR THAT HIS TESTIMONY BE LIMITED - MIL NO. 462 3 4 5 6 7 8 9 10 mil - 2 I a2 e363 we oe 14 mG Me 15 Se SE 16 < & o 17 nm 18 19 20 21 22 23 24 25 26 27 28 207635,t 1077. 28787 products and materials used at such facilities during the relevant time periods, or the potential release and distribution of asbestos as a result of alleged damage to, and repair of, machinery and equipment at such facilities. i. ARGUMENT A. Charles Ay is Not Qualified As an Expert Witness Under Evidence Code Sections 720 and 801 Pursuant to California Evidence Code Section 702, “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 expert on the subject to which his testimony relates.” In addition, under Evidence Code Section 801, subparts (a) and (b), an expert can only offer his testimony in the form of an opinion if it is (a) related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and (b) based on a matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing that are of a type that reasonably may be relied upon by the expert in forming an opinion on the subject matter of his testimony. Absent such qualifications, knowledge and experience, a person cannot testify as an expert witness. In this regard, a trial court has an obligation to limit expert testimony to areas within the demonstrated expertise, training, knowledge and experience of the expert witness Korsak v. Atlas Hotels, Ine. (1992) 2 Cal. App.4th 1516, 1523-1527 According to plaintiffs’ typical expert designation, Charles Ay is a journeyman insulator with expertise in the identification, handling, application and removal of asbestos and asbestos-containing products including but not limited to shipyard and land-based applications. Plaintiffs’ typical Designation goes on to state that Mr. Ay will testify about “when and where various building materials contained asbestos, including all types of building materials,” including a laundry list of generically described allegedly asbestos- containing materials. However, plaintiffs’ counsel typically does not include in its designation of Mr. Ay any representation that Mr. Ay can or would provide testimony 2 MOTION IN LIMINE THAT PLAINTIFF'S EXPERT CHARLES AY BE EXCLUDED AS AN EXPERT WITNESS OR THAT HIS TESTIMONY BE LIMITED - MIL NO. 46pt 2 3 4 5 6 7 8 9 10 fs 1h we g s 122 & : 13 mt 9 : 14 eq z 15 s E16 “o 17 ” 18 19 20 21 22 23 24 25 26 27 28 2076351 1077.28787 regarding the specific type of gaskets and packing that decedent might have worked with or around at any of his work sites at which he claims to have worked with such products or materials plaintiffs’ attribute to Lamons. Moreover, there is no dispute that Mr. Ay never worked with decedent, never worked at, visited, or reviewed any data, studies or other information relating to those sites. As such, any testimony by Mr. Ay as to the materials that might have been present at decedent’s land-based work sites, the levels of asbestos dust and resulting fibers allegedly release form the handling of such materials, the ventilation and air flow conditions at those facilities, and the frequency, intensity an duration of any resulting exposures within those facilities, would be mere speculation and conjecture. In this regard, numerous court have found that Mr. Ay’s testimony on matters beyond his own experience as a naval shipyard insulator constituted mere speculation and was properly excluded, For example, in Paul Andrews v. Foster Wheeler LLC (1996) 138 Cal.App.4th 96), the Court found that Mr. Ay’s opinions (in the form ofa declaration opposing summary judgment) that plaintiff had more likely than not been exposed to asbestos containing packing and gaskets used in a ship’s because asbestos was commonly “required” in naval applications form the 1940’s through the early 1970’s lacked foundation and were speculative given that there was no evidence that the gaskets and packing at issue had actually contained asbestos or that any work had been done to them that had released respirable asbestos fibers into the air. Any testimony by Mr. Ay in this case, where he has never visited, worked at, performed or reviewed studies of the sites at issue, would be equally lacking in any proper foundation and should similarly be excluded. In this regard, pursuant to Evidence Code Sections 452 and 453, Lamons requests that the Court take judicial notice of the 402 hearings regarding Mr. Ay that ultimately resulted in orders excluding or limiting his testimony in the following actions, copies of which can be provided upon request: Taulagi Falealili v. Abex, San Francisco Superior Court Case No, 837640 (Dept. 18, Judge Hanlon presiding), Willie Willis v. Raybestos, San Francisco Superior Court Case No. 798766 (Dept 11, Judge Colvin presiding), Francis 3 MOTION IN LIMENE THAT PLAINTIFF'S EXPERT CHARLES AY BE EXCLUDED AS AN EXPERT WITNESS OR THAT HIS TESTIMONY BE LIMITED - MIL NO. 402 3 4 5 6 7 8 9 10 % it J 12 a3 ai 3B we eo i4 2 Mz 15 ge a 16 3 O«W7 n 18 19 20 21 22 23 24 25 26 27 28 207635... 107728787 Harrison V. Raybestos, San Francisco Superior Court Case No. 833473 Dept. 18, Judge Hanlon presiding); Leady Young v. Raybesios, San Francisco Superior Court Case No. 849804 (Dept. 28, Judge Hart presiding). B. Because Charles Ay Does Not Qualify as An Expert Under Evidence Code sections 702, 720 and 801, His Testimony is Irrelevant and Should Be Excluded Charles Ay does not qualify as an expert in this matter and his anticipated testimony regarding asbestos containing materials at decedent's land based work sites is without proper foundation. Accordingly, any testimony Mr. Ay might seek to give in this case as to alleged releases of asbestos fibers form products or materials plaintiffs attribute to Lamons at those sites is irrelevant and immaterial as to Lamons. Accordingly, such testimony is therefore inadmissible under Evidence Code sections 350 and 351. Furthermore, such irrelevant testimony, by its very nature, would result in undue confusion of the issues, cause and undue and unnecessary use of the Court and jury’s time, risks misleading the jury, and should therefore be excluded pursuant to Evidence Code Section 352. iW. CONCLUSION For all the foregoing reasons, Lamons respectfully requests this Court issue an order excluding the expert witness testimony of Charles Ay, or precluding him form opining on or offering testimony regarding the decedent's exposure, work history or working conditions. DATED: October 28, 2010 SELMAN BREITMAN LLP By:_/s/ Paul J. Gamba RICHARD D. DUMONT PAUL J. GAMBA Attorneys for Defendant LAMONS GASKET COMPANY 4 MOTION IN LIMINE THAT PLAINTIEI'S EXPERT CHARLES AY BE EXCLUDED AS AN EXPERT WITNESS OR THAT HIS TESTIMONY BE LIMITED - MIL NO. 402 3 4 § 6 7 8 9 10 & i 4 g 2 12 g zo a 2 2 14 me 1s BE oO 17 % 18 19 20 21 22 23 24 25 26 27 28 207635.) 1077.28787 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 Tam employed in the County of San Francisco, State of California. [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 THAT PLAINTIFF'S EXPERT CHARLES AY BE EXCLUDED AS AN EXPERT WITNESS OR THAT HIS TESTIMONY BE LIMITED - MOTION IN LIMINE NO. 40 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 Z&, , 2010, at San Francisco, California. 4 Cynthia Elrod 5 MOTION IN LIMINE THAT PLAINTIFF'S EXPERT CHARLES AY BE EXCLUDED AS AN EXPERT WITNESS OR THAT HIS TESTIMONY BE LIMITED - MIL NO, 40