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 & li ont S z 12 ge Bb =< 2 g 14 me is 8 E16 3o 17 n 18 19 20 21 22 23 24 25 26 27 28 209876,4 1077.28787 RICHARD D. DUMONT (SBN 107967) rdumont@selmanbreitman.com PAUL J, GAMBA (SBN 146097) ELECTRONICALLY amba@selmanbreitman.com FILED ‘LMAN BREITMAN LLP Superior Court of California, 33 New Montgomery, Sixth Floor County of San Francisco San Francisco, CA 94105 OCT 29 2010 Telephone: tats 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 PRECLUDE LAY OPINIONS THAT Vv. ASBESTOS FIBERS WERE RELEASED OR THAT VISIBLE ASBESTOS DEFENDANTS (BP), DUST CONTAINED ASBESTOS FIBERS - Motion in Limine No. 14 Action Filed: June 6, 2007 Trial Date: October 29, 2010 Defendant. Defendant LAMONS GASKET COMPANY (hereinafter referred to as "LAMONS') herein submits the following motion in limine for an Order to preclude lay opinion testimony regarding products emitting asbestos fibers. L INTRODUCTION Plaintiffs are expected to offer lay witnesses to testify that various products emitted or released asbestos fiber, i.c. those conditions at decedent's work sites "were dusty." Such lay opinion testimony is inadmissible as a matter of law and should be precluded. 1. ARGUMENT California Evidence Code section 800 provides that lay opinions are limited to opinions that are rationally based on the perception of the witness. Lay witnesses may not 1 MOTION IN LIMINE TO PRECLUDE LAY OPINIONS THAT ASBESTOS FIBERS WERE RELEASED OR THAT VISIBLE DUST CONTAINED ASBESTOS FIBERS - MIL NO. 14oO we NY DR A RB BRN pee kkk et OT Be Nm OO ATTORNEYS AT LAW Selman Breitman LLP Pp RRR SB BS BS 3 Ne x 28 207876,1 1077,28787 express opinions that are beyond common knowledge or experience. (People v. McAlpin (1991) Cal.3d 1289, 1308.) In other words, California Evidence Code section 800 and the cases interpreting and applying it require that (1) the witness actually “perceive” that matter they are opining about; and (2) that the proffered opinion not be about a matter beyond common experience. Thus, although a lay witness may be able to attest to the fact that dust of some kind was emitted or released by a product, it is beyond the capability of such a lay witness to opine whether the dust that was emitted was contained asbestos. Such a conclusion is beyond common experience and therefore, any testimony regarding the content of asbestos dust, based on the mere viewing of dust, is improper. Il. =CONCLUSION For all the foregoing reasons, defendant Lamons respectfully requests this Court issue an order precluding lay opinions that asbestos fibers were released. DATED: October 28, 2010 SELMAN BREITMAN LLP By:_A/ Paul J Gamba HARD D. DUMONT PAUL J. GAMBA Attorneys for Defendant LAMONS GASKET COMPANY 2 MOTION IN LIMINE TO PRECLUDE LAY OPINIONS THAT ASBESTOS FIBERS WERE RELEASED OR THAT VISIBLE DUST CONTAINED ASBESTOS FIBERS - MIL NO. 142 3 4 5 6 7 8 9 10 Bl wl 12 as a3 2B qe ve oe 1 hi ME 15 Se Se 16 <= & a 17 n 18 19 20 2 22 2 24 25 26 27 28 207576.1 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 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, | electronically served the following document(s) via LexisNexis File & Serve described as MOTION IN LIMINE TO PRECLUDE LAY OPINIONS THAT ASBESTOS FIBERS WERE RELEASED OR THAT VISIBLE DUST CONTAINED ASBESTOS FIBERS - Motion in Limine No. 14 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? &, 2010, at San Francisco, California. My fw < Oona Elrod 3 MOTION IN LIMINE TO PRECLUDE LAY OPINIONS THAT ASBESTOS FIBERS WERE RELEASED OR THAT VISIBLE DUST CONTAINED ASBESTOS FIBERS - MIL NO. 14