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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1 | PAUL V. LANKFORD (State Bar No. 181506)
PAUL LANNUS (State Bar No. 192551)

2 LANKFORD CRAWFORD MORENO LLP ELECTRONICALLY
1850 Mt. Diablo Blvd., Suite 600

3 ; FILED
Walnut Creek CA 94596 Superior Court of California,

Telephone: 925.300.3520 County of San Francisco
Facsimile: 925,300,3386 JAN 12 2011

Clerk of the Court
BY: ALISON AGBAY

Attorneys for Defendant Deputy Clerk

4
5
§ | FORD MOTOR COMPANY
7
8
9

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

10
11
SAMUEL LEAL, ASBESTOS
12
*Plaintiff, BRAYTON GROUP 536
13
Vv.
14 CASE No. CGC-08-274807
5 ASBESTOS DEFENDANTS (BP),
Defendants.

16

17 | LOUIS CASTAGNA, CasE No. CGC-07-274230

18 Plaintiff,
DEFENDANT FORD MOTOR COMPANY’S

19 v. Motion In Limine To EXCLUDE THE
TESTIMONY OF, VIDEOTAPES PRODUCED

20 | ASBESTOS DEFENDANTS (BP), By, AND EXPERIMENTS CONDUCTED BY
PLAINTIFF’S EXPERTS, RICHARD

21 Defendants. HATFIELD, WILLIAM LONGO AND JOHN
TEMPLIN [MIL #29]

22

23

24

25

26

27 * The use of the term “plaintiff” as used herein refers to the plaintiff in a personal injury action and the

decedent in a wrongful death action; and the use of “plaintiff” shall refer to both plaintiff in the singular and plural, as
28 appropriate.
LANKFORD -l[-

CRAWFORD
MORENO LLP

ANTORNEYSATLAW A1
GARY COATES,
2
Plaintiff, Case No. CGC-08-274784
3
Vv.
4
ASBESTOS DEFENDANTS (BP),
5
Defendants.
6
7 | CLEM FITZHUGH,
Case No. CGC-08-274645

8 Plaintiff,

9 v.
10 | ASBESTOS DEFENDANTS (B#P),
11 Defendants.
12
13
14
15

DEFENDANT Ford Motor CoMPANY’s MOTION IN LIMINE TO EXCLUDE THE
16 TESTIMONY OF, VIDEOTAPES PRODUCED By, AND EXPERIMENTS CONDUCTED BY
PLAINTIFF’S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
i7 [MIL #29]
18
19
20
21
22
23
24
25
26
27
28
LANKFORD -2-
CRAWFORD
MORENO LLP

ATTORNEYS ATLAW A28

LANKFORD &
CRAWFORD LLP
ATTORNEYS AT LAW

Ti.

TABLE OF CONTENTS

INTRODUCTION ...
THE LONGO/HATEIELD EXPERIMENTS
ARGUMENT

A. OTHER CourTS HAVE ALREADY EXCLUDED THE LONGO/HATFIELD
EXPERIMENTS, VIDEOTAPES, TEST RESULTS AND RELATED
TESTIMONY AS “JUNK SCIENCE” ..

B. THE HaTFIELD/LONGO VIDEOTAPES SHOULD BE EXCLUDED
BECAUSE THEY DisTortT THE Facts AND THEY ARE DECEPTIVE

c. PLAINTIFF CANNOT ESTABLISH AN ADEQUATE FOUNDATION For
THE EXPERIMENTS...

1. THE EXPERIMENTS AND RELATED TESTIMONY SHOULD BE
EXCLUDED BECAUSE THEY ARB IRRELEVANT

2, PLAINTIFF CANNOT MEET THE BURDEN OF SHOWING THAT
THE CONDITIONS FoR THE EXPERIMENTS ARE
SUBSTANTIALLY IDENTICAL TO THE CONDITIONS OF THE
ALLEGED Events IN THIS ACTION

a. THE “CLOTHING SHAKEOUT” EXPERIMENTS
b. THE BRAKE EXPERIMENTS

3. THE EXPERIMENTS SHOULD Be EXCLUDED BECAUSE THEY
WILL CONFUSE AND MISLEAD THE JURY

4, THE EVIDENCE SHOULD BE EXCLUDED BECAUSE NEITHER
Dr. LONGO Nor Mr. HaTrigLD WERE QUALIFIED To
CONDUCT THE “EXPERIMENTS”.

D. THE EXPERIMENTS ARE INADMISSIBLE BECAUSE THEY ARE BASED
ON UNRELIABLE SCIENC

1. Courts ARE REQUIRED TO EXERCISE “JUDICIAL CAUTION”
IN ADMITTING SCIENTIFIC TECHNIQUES OF QUESTIONABLE
RELIABILITY

2. THE OBSCURE AND HIGHLY COMPLEX METHODS For
MEASURING EXPOSURE TO AIRBORNE ASBESTOS FIBERS
Aré THE VERY TyPE OF IMPENETRABLE SCIENTIFIC PROOF
THAT KELLY Is DESIGNED To GUARD AGAINST ........

3. PLAINTIFF CANNOT SATISFY KELLY’S RIGOROUS THREE
PRONG TEST...

-i-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN

IMIE #29}1 TABLE OF CONTENTS

(continued)
2 PAGE
3 a. THE SCIENTIFIC TECHNIQUE Usep By MAS Is Nor
GENERALLY ACCEPTED AS RELIABLE IN THE
4 RELEVANT SCIENTIFIC COMMUNITY
5 b. PLAINTIFF Has NOT PRESENTED ANY WITNESSES
QUALIFIED To TESTIFY REGARDING WHETHER THE,
6 LONGO/HATFIELD TECHNIQUES ARE GENERALLY
ACCEPTED...
7
c. THE CORRECT SCIENTIFIC PROCEDURES WERE NOT
8 Usep IN Tus PARTICULAR CASE ...
9 E. TEMPLIN, HATFIELD AND LONGO SHOULD Not BE ALLOWED To
Testrry AS AN EXPERT
10
1. TEMPLIN, HATFIELD AND LONGO Do Not HAVE ANY
il SPECIAL EXPERTISE THAT WILL AssisT THE TRIER OF FACT
OR QUALIFY THEM To SERVE AS AN EXPERT WITNESS
12 DURING THE TRIAL OF THIS CASE ue sevens
13 2. THE HATFIELD/LONGO OPINIONS ARE BAS!
UNRELIABLE MATTERS
14
F. ALL EVIDENCE RELATING To ANY TREMOLITE BRAKE STUDIES
15 SHOULD ALSO BE EXCLUDED 23
16 1. FAILURE To PRODUCE DocUMENTS REVIEWED AND RELIED
UPON IN Taz Course OF PREPARING AN OPINION MERITS
17 EXCLUSION OF TRIAL TESTIMONY ON THAT SUBJECT .
18 2. EXPERIMENTS AND ASSOCIATED EVIDENCE REGARDING
ALLEGED PRESENCE OF TREMOLITE IN CHRYSOTILE BRAKE
19 LININGS ARE IRRELEVANT...

20 | TV. = CoNncLusION

28

Coe DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY. AND
RD EXPERIMENTS CONDUCTED BY PLAINTIBE’S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
MORENO LLP [ML #29]
AYTORNEYS AT Law

-ii-1 TABLE OF AUTHORITIES

2 | Cases PAGE(s)
3 | Andrews v. Barker Brothers Corp.
(1968) 267 Cal App.2d 530... ccccessssessssessusssessesscescsesneeseseeseesessenseseensearascsamsnsssennee 7, 8, 9, 10
4
Harmon v. San Joaquin Light & Power Corp.
5 (1940) 37 Cab. App.2d 169.0... cccecseesessseessessessneessecerssseesersassseessecenssseeseseasenesssesaeserseessaneneese 5
6 | Jones v. Moore
(2000) 80 Cal. App.4tl 557 vcecscctscessseseseserssessescusssressesersssesaassosscssuessissserarasssessossensneesets 23
7
People v. Axell
8 (1991) 235 Cal. App.3d 836.....cccccscceeessessecssesssesseesessssesseeaeersstessesessesresessesneaneeseseeseaseaeaness 16
9 | People v. Bonin
(1989) 47 Cal.3d 808 oo. cceessessesressesseseesrssssessessnesassecseaneessetsneeanereeeensaee 6, 7,9, 10, 12, 13
10
People v. Kelly
il (1976) 17 Cal.3d 24 .... 2, 13, 14, 15, 16, 20, 22
12 | People v. Leahy
(1994) 8 Cal 4th 587 occ cece cesses sesecscsseesesetessessessesiesscssiesiessessessiessresnseetee 14, 16,19
13
People v, Shirley
14 (1982) 31 Cal.3d 18 voce eceseesnessessesssessessesesatesessiesiecsssescesesesntsaesiesnesnesiceaecses 13, 16
15 } People v. Venegas
(1998) 18 Cal. 4th 47 oe cecccseecseesiessessseeseeesesesessessassanessescesensssensinaneeseesnieeresesseneese 15, 16, 20
16
People v. Webb
17 (1993) 6 Cal.4th 494 ...
18 || Putensen v. Clay Adams, Inc.
(1970) 12 Cal. App.3d 1062........ccccsessscseessneenseenesssessessuesanesecsanssnesareeesanseneesecsusssensscesnseneee 21
19
Texaco Producing, Inc. y. County of Kern
20 (1998) 66 Cal. App.4th 1029 oo. cece eeececnecssesseeeseeseesneescssuessuessessecsnssesessscansnnesercenees 14
“21
STATUTES
22
California Code of Civil Procedure
23 SOCHON 2OS4G)(3) .oeeeesssessecesseesseseseesesecsescessersesaeensenesseeneeacsessesaeseceseseesnsareaseeanesneneceteneeaeeacen 22

24 | California Evidence Code
section 352
25 section 720
section 720(a)
26 section 801(b)

27 | Cede of Federal Regulations
section 1910.1001

28
LANKFORD = ili =
CRAWFORD. DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
MORENO LLP [Mu #29]

ATTORNEYS AT LAWoN KD A BR Ww

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

LANKFORD
CRAWFORD

MORENO LLP
ATTORNEYS AT LAW

TABLE OF AUTHORITIES
(continued)
PAGE(s)

OTHER AUTHORITIES
Practice Guides

Wegner ef al., California Practice Guide: Civil Trials & Evidence
(The Rutter Group 2000)
§ 8:535.
§ 8:747.

-iv-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN,
[ML #29]28

LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS AT Law

L
INTRODUCTION

The above-named defendant (hereinafter “Defendant’”) hereby moves this court for an
order excluding all evidence related to certain asbestos exposure experiments conducted by
plaintiff's experts Richard Hatfield, William Longo, and John Templin. Defendant also seeks an
order precluding Mr. Longo, Mr. Hatfield and Mr. Templin from testifying in this case, since
their testimony is based on the inadmissible videotapes that are the subject of this motion and
other court orders that have concluded the tapes are not scientifically reliable. (See e.g. 7/5/01
order, attached as Exhibit A and Exhibits C-H.)

Mr. Hatfield is an employee of Dr. William Longo at Materials Analyst Services
(“MAS”). Mr. Templin is also an employee of MAS. As associates, Mr. Templin, Mr. Hatfield
and Dr. Longo will attempt to testify relying on certain experiments described below. The
experiments are supposed to represent generic workplace conditions of exposure (direct exposure)
as well as generic conditions of exposure for those who have had significant contact with the
worker (indirect exposure). The experiments were not specifically tailored to replicate the facts
of this case. Rather, they are canned experiments that Hatfield and Longo shop around from
plaintiff’s attorney to plaintiff's attorney and from case to case. The experiments were
videotaped. Air samples were taken during the course of the experiments and were tested for
asbestos. On the basis of these generic “experiments,” Templin, Hatfield and Longo conclude
that certain real-world activities result in persons being exposed to substantial amounts of
airborne asbestos particles.

All of the evidence related to these experiments — the videotapes, the experiments
themselves, the test results and the related testimony — is inadmissible. In fact, another court (the
Sixth District Court for Lamar County Texas) has already held that such evidence is inadmissible
on the grounds that it is “junk science” and that it is “not scientifically reliable.” (Exhibit A.)
Following the Sixth District’s example, the trial court in Trinchese vy. Raybestos-Manhattan, Inc.

(San Francisco Superior Court, Case No. 400787) issued an order on June 18, 2002 excluding the

-1-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFE’S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
(MIL #29]cD Rm DR OH BR eH BY

NY NY N NR NR NR DB eR Be ee ee ea
SIDA SF G6 YH |= Sb we A A A BD Bp 2

28

LANKFORD
CRAWFORD

MORENO LLP
ATTORNEYS A? LAW

videotaped demonstrations of brake related work practice simulations performed by Templin.
(Exhibit D.) Other courts have followed suit. (Exhibits C,.E, F, G and H.)

Such evidence should also be excluded in this case. Plaintiff cannot meet the burden of
showing that the experimental evidence satisfies applicable criteria for admission. Specifically,
plaintiff, as the proponent of evidence, has the burden of proving that (1) the experiments are
relevant; (2) the conditions for the experiments are substantially identical to the conditions of the
alleged events in this action; (3) the experiments will not confuse or mislead the jury; and
(4) Templin, Hatfield and Longo were qualified to conduct the experiments. Plaintiff cannot
prove any, much less all, of these foundational elements. Nor can plaintiff meet the burden of
showing that the experiments, and the scientific techniques used therein, satisfy the requirements
of the Kelly test for admission of unconventional scientific evidence. People v. Kelly (1976) 17
Cal.3d 24. Most notably, the techniques employed in the videotapes are not generally accepted as
reliable in the relevant scientific community and employ methods that conflict with those used
and approved by authoritative bodies such as the National Institute of Occupational Safety and
Health (NIOSH).

Finally, Templin, Hatfield and Longo should be precluded from testifying as experts.
First, they were not qualified to undertake the experiments. Second, their opinions, being based
on experiments that are inadmissible, are improperly based on unreliable matters.

i.
THE LONGO/HATFIELD EXPERIMENTS

The MAS experiments were notably not designed to replicate the specific conditions of
alleged exposure at issue in this action. Rather, the experiments were performed long before this
action, and simply reflect a subjective view of conditions of alleged exposure. (One such
experiment dates back to 1997.) These subjective conditions of exposure bear little relation to the
alleged exposure conditions at issue in this action.

Dr. William Longo designed and had first hand involvement in all of the brake-related

experiments involved. In order to conduct his experiments, Dr. Longo put on a Tyvek “moon

-2-

DEFENDANT FORD MOTOR COMPANYS MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN,
[MIL #29]28

LANKFORD
CRAWFORD
MORENO LLP

ATYORNEYS ATLAW

suit” and entered a small, enclosed room with dark black walls. Next, he turned on high intensity,
theatrical lights referred to as “Tyndall lighting.” He then intentionally began stirring up dust
clouds by filing, rasping, grinding, sweeping and blowing different brake products and non-
automotive industrial gaskets. The videotapes involve the following experiments referred to as:
Secondary Exposure from Work Clothing of Gasket Removal II; Secondary Exposure from Work
Clothing of Gasket Removal IIT; Hand Sanding of Brake Shoes; Bendix Brakes for Ford Vehicles
- Workplace Simulation Demonstration; Bendix Brakes for Chrysler Vehicles - Workplace
Simulation Demonstration; Are Grinding of Brake Shoes; Brake Blow Out; and Secondary
Exposure from Work Clothing of Are Grinding of Brakes, Notably, the first two experiments
involved industrial gaskets, not brakes. All of the experiments were videotaped and depict
exaggerated, intensely lit dust against the black background walls. Air samples taken during the
course of these experiments were tested for asbestos. The methods used in connection with such
air sampling were contrary to generally accepted scientific methods, including the methods
established by NIOSH. Not surprisingly, MAS colleagues concluded that these air samples
showed exposure to substantial amounts of airborne asbestos particles. For the reasons explained
in this motion, all of the evidence related to these experiments — the videotapes, the experiments
themselves, the test results — is inadmissible, as is all of Templin’s, Hatfield’s and/or Longo’s
proposed testimony.

ii.
ARGUMENT

A OTHER COURTS HAVE ALREADY EXCLUDED THE LONGO/HATFIELD EXPERIMENTS,
VipEOTAPES, TEST RESULTS AND RELATED TESTIMONY AS “JUNK SCIENCE”

The Sixth District Court for Lamar County, Texas has already excluded the very
experiments, videotapes, test results and related testimony that plaintiff seeks to have admitted in
this action. See Trial Court Order, In Re Lamar County Asbestos Litigation Cases Filed, or To
Be Filed, By Waters & Kraus in Lamar County, Texas, Sixth District Court for Lamar County
Texas (attached as Exhibit A), In the action in Texas, the court was presented with a gasket

manufacturer defendant’s motion to suppress the Longo/Hatfield gasket-related experiments,

-3-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE 10 EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
[MIL #29YD wn b

28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

videotapes, test results and testimony of Dr. Longo. The Sixth District Court granted the defense

motion in full; finding that the experiments, videotapes, test results and related testimony are “not

scientifically reliable,” are “not admissible” and “constitute ‘junk science.’” (Exh. A, Numbered

1,2 and 3.) Although the motion before the Sixth District Court addressed only the gasket related
evidence, the court’s rationale and ruling apply with equal force to the brake-related studies,
which followed protocols identical to, and were otherwise performed in the same manner as, the
gasket studies. See Deposition of Dr. William Longo taken in Gerke v. ACandS, Inc., Alameda
Superior Court Case No. 837457-8, on October 9, 2001 Exhibit B at 89:5-15.

Likewise, Superior Court judges in other California districts regularly exclude
Dr. Longo’s videotapes (both those related to gaskets and those related to brakes). See e.g. Trial
Court Order, Hansen v. Raybestos-Manhattan, Inc., San Francisco Superior Court Case
No. 321639, December 12, 2001 (Exhibit C (Exh. C); Trial Court Order, Trinchese v. Raybestos-
Manhattan, Inc., San Francisco Court Case No. 400787 (Exh. D); Berning v. A.P. Green, San
Francisco Court Case No. 319733, January 8, 2002 (Exh. E). Indeed, Dr. Longo’s co-worker,
Richard Hatfield, acknowledged in late September 2002 that the videotapes “have been ruled as
being overly prejudicial in some cases,” and they had not been used at all in an Francisco cases
during 2002. See Deposition of Richard Hatfield, Kuhl y. Borg-Warner et al., Case No. 02-
403450, Superior Court for the County of San Francisco, California, p.14:6-10; 18:4-19:7
(Exh. F).

As more fully discussed infra, a federal bankruptcy court handling 600 asbestos claims
recently concluded that a method Dr. Longo relies upon for measurement of asbestos fibers “is
not a scientifically valid method of quantifying the level of asbestos contamination in a room or
building.” See Findings of Fact and Conclusions of Law, Jn re: Armstrong World Industries, Inc.,
et al., United States Bankruptcy Court for the District of Delaware, Case No. 00-04471
(Trinchese v. Raybestos-Manhattan, Inc., San Francisco Court Case No. 400787) (Exh. G). The

court excluded expert opinions and evidence based on that method.

-4-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
[MIL #29}28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

Finally, the Ohio Court of Appeals reversed a trial court’s decision to allow Dr. Longo to
testify regarding asbestos exposure resulting from abrasion of asbestos pipe insulation. See Ball
v. CONRAIL (Ohio Ct.App. 2001) 142 Ohio App.3d 748 [756 N.E.2d 1280] (Exh. H). In that
case, the defendant challenged an experiment by Dr. Longo similar to those currently at issue as
“an artificial and inaccurate representation of the conditions encountered by [the plaintiffs].” Id.
at 758. The court agreed, concluding that “the experiment was not designed to show the level of
asbestos exposure allegedly encountered by [the plaintiffs]” and that “Dr.-Longo should not have
been allowed to testify concerning the amounts of asbestos released during the experiment.” Id.
As associates of Dr. Longo who rely on these same experiments and data, this ruling applies with
equal force to Mr. Hatfield and Mr. Templin.

Defendant hereby requests that the Court take judicial notice of the orders and findings of
the San Francisco Superior Court, the Sixth District Court for Lamar County, Texas and the Ohio
Court of Appeals, and following their example, exclude the Hatfield/Longo experiments,
videotapes, test results and testimony.

B. THE HATFIELD/LONGO VIDEOTAPES SHOULD BE EXCLUDED BECAUSE TREY DISTORT
Tue Facts AND THEY ARE DECEPTIVE

“Courts are aware that films and audio/visual evidence can be distorted. F.g., films can be
deceptively created through the filmmaker’s use of telephoto lenses, carefully selected camera
angles, and careful omission of unfavorable aspects of the scene. For these reasons, many courts
adopt a cautious approach to admission of films in evidence.” Wegner er al., California Practice
Guide: Civil Trials & Evidence (The Rutter Group 2000) § 8:535; see also Harmon v. San
Joaquin Light & Power Corp. (1940) 37 Cal. App.2d 169, 174 (“[mloving pictures should be
received as evidence with caution, because the modern art of photography and the devices of an
ingenious director frequently produce results which may be quite deceiving. . . [and] may tend to
create misleading impressions”).

In this case, the “cautious approach to admission of films in evidence” is well warranted.

In the words of the Sixth District Court, “The videotaping [of the Hatfield/Longo “experiments”]

-5-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
[MIL #29)28

LANKFORD
CRAWFORD

MORENO LLP
ATTORNEYS AT Law

was deceptively out of focus,” and, as a result, distorted the overall view of the dust particles in
the air in order to produce a “snow storm” effect. Exh. A, 4, last, p. 11, Ist. These deceptive
videotapes should be excluded.

Cc PLAINTIFF CANNOT ESTABLISH AN ADEQUATE FOUNDATION FOR THE EXPERIMENTS

“Admissibility of experimental evidence depends on proof of the following foundational
items: (1) The experiment must be relevant (citations omitted); (2) the experiment must have
been conducted under substantially similar conditions as those of the actual occurrence (citation
omitted); and (3) the evidence of the experiment will not consume undue time, confuse the issues
or mislead the jury.” People v. Bonin (1989) 47 Cal.3d 808, 847 (citations omitted in Bonin).

Admissibility of experimental evidence also depends on proof, “with some particularity,”
of “the qualifications of [the] individual testifying concerning [the] experimentation ... .” Id.
Plaintiff, as “the proponent of experimental evidence[,] bears the burden of production and proof
on the question of whether such evidence rests on an adequate foundation.” Id. (citations
omitted). In sum, plaintiff must establish the foundation for the evidence related to Mr. Hatfield’s
experiments by proving that the experiments: (1) are relevant, (2) were conducted under
substantially similar conditions; (3) will not consume undue time, confuse the issues or mislead
the jury; and (4) were conducted by a qualified expert.

1. THE EXPERIMENTS AND RELATED TESTIMONY SHOULD BE EXCLUDED BECAUSE
THEY ARE IRRELEVANT

The experiments and associated evidence (i.e., the experiments themselves, the
videotapes, test results and related testimony) are irrelevant. The pertinent disputed issues in this
matter are whether, and to what extent, plaintiff was exposed to respirable asbestos fibers from
Defendant’s asbestos-containing brake products. Obviously, the experimental evidence related to
the industrial gaskets is not relevant to whether plaintiff was exposed to asbestos from brake
products. Thus, such evidence should be excluded as a matter of course.

The experimental evidence related to brake products is also irrelevant. The generic pre-

existing experiments are in no way tailored to reflect the alleged incidents of exposure at issue in

-6-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE TH TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATEIELD, WILLIAM LONGO AND JOHN TEMPLIN
[MIL #29]SC 5D OSD OH BR YH DK

RP RP RP RN KR Dee ewe Be ee me =
NIDA U BB ON FF FS Ce WRAE SH A

28

LANKFORD

CRAWFORD
MORENO LLP
ATTORNEYS AT LAW.

this case. See e.g., Exh. H, Ball v. CONRAJL (Ohio Ci.App., Cuyahoga County 2001) 142 Ohio
App.3d 748, 758 [756 N.E.2d 1280] (finding that a similar experiment by Dr. Longo “was not
designed to show the level of asbestos exposure allegedly encountered by the [plaintiffs]”). Thus,
the experiments shed no light on the factual disputes related to these incidents. Exh. A, 1, 4th
Numbered (“the tests are not sufficiently tied to the facts of any individual case in a manner to
aid the finder of fact in resolving a factual dispute”).

Further, the videotapes in particular are irrelevant due to the theatrical and deceptive
effect of the high-intensity Tyndall lighting. As Dr. Longo admits, the Tyndall lighting simply
illuminates all dust in the air. It does not distinguish between asbestos fibers and other types of
particles. Exh. B, 221:2-10; 267:15-21. Thus, the Tyndall lighting does not reveal what
percentage, if any, of the dust in the air consists of asbestos fibers, much less whether any
asbestos fibers in the dust are respirable or non-espirable. In fact, one expert has shown that
pouring a bowl of Cheerios in a room similar to the one depicted in the MAS videotapes will
produce virtually the same visual effect — the snowstorm dust cloud — when illuminated with
‘Tyndall lighting. Neither the Cheerios dust cloud nor the similar dust cloud created by Longo and
Hatfield has any tendency in reason to show whether plaintiff was exposed to respirable asbestos
fibers or the extent of any such exposure.

Tn light of the above-noted facts, plaintiff cannot meet the burden of establishing that the
evidence related to the MAS experiments is relevant. Bonin, supra, 47 Cal.3d at 847.
Accordingly, such evidence should be excluded.

2. PLAINTIFF CANNOT MEET THE BURDEN OF SHOWING THAT THE CONDITIONS

For THE EXPERIMENTS ARE SUBSTANTIALLY IDENTICAL TO THE CONDITIONS
Or The ALLEGED Events IN Tuts ACTION

“Tt is the settled rule that evidence of the results of experiments as to a disputed fact are
not admissible unless the conditions of the experiment are substantially identical to those out of
which the dispute arises.” Andrews v. Barker Brothers Corp. (1968) 267 Cal.App.2d 530, 537
(emphasis added); see also People v. Bonin (1989) 47 Cal.3d at 847 (the “standard that must be

met in determining whether the proponent of the experiment has met the burden of proof... . is

-7-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OP, VIDEOTAPES PRODUCED BY. AND
EXPERIMENTS CONDUCTED BY PLAINTIFF’S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOJIN TEMPLIN
{MIL #29]co Oe NY DW BB YW wD He

RPP NN RY Bow oe =o
QI Ao 8 SEB = FSF Ce UDR BDE SPH TS

28

LANKFORD

CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

whether the conditions were substantially identical”). ‘The experiment is inadmissible if the
conditions of the experiment deviate in any significant respect from the alleged facts of the case.
Andrews, supra, at 537-39, The experiment is also inadmissible if the conditions of the
experiment are not based on the alleged facts of the case, but rather are based on mere speculation
or theory as to how the alleged incident occurred. Id.

Andrews illustrates how closely the facts of the experiment must track the facts of the case
in order to satisfy the substantially identical test. The Andrews court held that evidence of an
experiment involving a chair was inadmissible under the test. The plaintiff in Andrews was
injured when he sat on a chair in a department store and the chair collapsed underneath him. The
plaintiff testified that he sat on the chair in a normal manner. In particular, he testified that he did
not lean back on the rear two legs of the chair and thereby raise the front legs off the floor. This
testimony was not contradicted.

The defendant in Andrews testified that, after the incident, the left rear leg was bent
forward 30 degrees from its original position. Jd. at 536-37. Defendant argued that plaintiff was
guilty of contributory negligence because “the most logical explanation” for the left rear leg being
bent under the chair was that plaintiff leaned back on the rear two legs of the chair. /d. at 536.
Defendant’s expert undertook experiments to prove defendant’s position. The expert used a
similar type of chair. In addition, the chair selected by the expert was structurally sound. When
the expert leaned back in the chair at a roughly 30 degree angle, the rear legs of the chair
collapsed forward. In order to prove defendant’s theory of the case, defendant sought to have his
expert testify regarding this experiment at trial. The trial court ruled that such testimony was
admissible. Jd at 537-38. However, the Court of Appeal reversed the trial court, holding that
such evidence was inadmissible and that the admission of the evidence constituted prejudicial

error, noting the following dissimilarities between the experiment and the facts of the case:

[The expert] used a chair that was sound, but there was no evidence
that the chair [plaintiff] sat on was sound at that time. [The expert]
leaned the chair back in a strange maneuver, but there was no
evidence that [plaintiff] did the same. Id. at 538.

-8-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFFS EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN-
IMI. #29)28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

In turn, because the conditions of the experiment were not based on the facts of the case,

the court ruled that the evidence of the experiment was inadmissible, stating:

To approve the admission of the testimony of [the expert] it would
be necessary to expand the rules under which experimental
evidence may be received so as to permit evidence of experiments
when identity of conditions could only be made to appear by
assuming the existence of material facts of which there was no
evidence. This, of course, would completely destroy the usefulness
of evidence of experiments. Jd.

In sum, an experiment may not be based on facts that contradict the facts of the case nor
may it be based on “facts” that are simply assumptions, based on mere speculation and theory, not
evidence.

People v. Bonin (1989) 47 Cal.3d at 847, also illustrates the “substantially identical” test.
In Bonin, the trial court admitted the testimony of a prosecution criminalist concerning an
experiment conducted to corroborate one witness’s testimony that the defendant strangled the
victim using a T-shirt. The expert sought to show that the ligature marks on the neck of the
victim could have been made when the defendant strangled the victim with a T-shirt. The expert
testified that he wrapped a T-shirt around a part of his arm and concluded that the striations
produced were similar to those found on the victim’s neck. After review, the Bonin court held
that the trial court’s ruling was error because the prosecution failed to show that the conditions of

the experiment were substantially identical to the facts of the case:

The prosecution simply failed to carry its burden as to foundation.
For example, it did not produce any evidence to show the
experiment was conducted under conditions similar to those of the
[the victim’s] strangulation. It is not self-evident that the
criminalist’s upper arm and [the victim’s] neck were similar in
relevant aspect. Nor is it self-evident that the criminalist applied
pressure to his arm the way [the witness] said defendant exerted
force to |the victim’s] neck. Id at 847.

Because the conditions, including the conditions regarding pressure and force, were not
substantially identical, the evidence related to the experiment was inadmissible. Jd. Under both
Andrews and Bonin, the proponent of the evidence must affirmatively show that the conditions of

the experiment are identical to the actual, not assumed, facts of the case. In Andrews and Bonin,

-9-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATEIFLD, WILLIAM LONGO AND JOHN TEMPLIN
IMiL #29]28

LANKFORD
CRAWFORD

MORENO LLP
ATTORNEYS AT LAW

the experimental evidence was inadmissible because the proponent did not show that the
experiment’s conditions were identical to the facts of the case — particularly the facts concerning
the relevant actions of the parties, the pressure and force applied in undertaking certain actions
and the condition of the equipment.

As explained below, the MAS experiments should similarly be stricken as inadmissible,
since plaintiff cannot show that the conditions in the generic, canned experiments are
substantially identical to the facts of this case.

a. Tue “CLOTHING SHAKEOUT” EXPERIMENTS

Longo designed and conducted all of the “clothing shakeout” simulations. In the three
“clothing shakeout” experiments, Longo depicts his subjective view of secondary, indirect
exposure conditions, The experiments took place in Longo’s enclosed chamber, which measured
20° by 15”, with eight-foot ceilings. The three experiments involve Longo shaking out clothes
worn during previous studies in which industrial gaskets (two of the studies) and brake products
(one of the studies) were vigorously manipulated — virtually attacked -- for 1-2 hours at atime. In
one of the underlying gasket simulations, Longo scraped, ground and wire brushed ten large
gaskets inside his confined chamber; in the other study, he applied an electric grinder to the
gaskets. (Exh. B, 227: 13-25; 228:1-15, 234:23-25, 235:1-4.) Longo used gaskets taken from
steam pipes from a paper mill in Oregon. (Exh. B, 227:3-7.) After intentionally stirring up the
dust clouds, Longo subsequently removed the clothing that he was wearing over his Tyvek suit,
and shook the clothing out inside the confined chamber. (Exh. B, 200:6-15.)

In order for the evidence of these clothing shakeout experiments to be admissible, plaintiff
must show that the simulations are identical in all material respects to the facts of this case.
People y. Bonin (1989) 47 Cal.3d 808, 847. Moreover, in making this showing, plaintiff cannot
“assum|e] the existence of material facts of which there was no evidence’’ because to do so
“would completely destroy the usefulness of evidence of experiments.” Andrews, 267

Cal.App.2d at 538.

-10-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE TIE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED RY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
[MIL #29]SO OB ND

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

LANKFORD
CRAWFORD
MORENO LLP

APTORNEYS AT LAW

Not surprisingly, given that these experiments were conducted long before this case,
plaintiff cannot show that the conditions of the experiments are substantially identical to the facts
here. For the two gasket experiments, the products at issue are gaskets -- not brakes. Longo has
admitted that the gaskets were made of a “completely different” material than the brake linings
and were much softer and had loose asbestos. (Exh. B, 231:9-26; 232:11-26; 233:1.) Based on
this significant difference alone, the evidence of these experiments should be inadmissible.

Further, plaintiff has not, and cannot, meet its burden of affirmatively showing that the
experiments are otherwise identical to the facts here, particularly with respect to the relevant facts
regarding: the type of asbestos-containing product used, the manner of exposure (direct/indirect),
the quantity of asbestos scraped or otherwise removed from the product, the manner in which
such asbestos was removed, including the force applied and equipment used in removing the
asbestos and the duration of the removal process, and other issues related to the timing, setting
and manner in which the experiment was conducted. In the absence of such a showing, the
evidence related to plaintiff's experiments is inadmissible.

b. THE BRAKE EXPERIMENTS

The other six experiments involved simulations of asbestos exposure involving brake
work. Longo performed the sanding/filing in all of these studies. Longo testified that in his hand
sanding simulation he sanded brake linings for 20 seconds. (Exh. B, 196:7-13.) Longo was
unable to quantify the amount of material he took off from the brake lining in his experiments.
(Exh. B, 196:3-19.) He did not know when the brake shoes in his experiments were
manufactured. (Exh. B, 196:20-24.) Longo himself performed the sanding in his experiments.
(Exh. B, 196:3-6.) He has no experience as a professional mechanic. (Exh. B, 31:14-34:14.) As
with the other experiments, they were videotaped, and air samples were taken during the course
of the experiments.

Again, in order for these brake simulations to be admissible, plaintiff must show that they
are based on facts that are substantially identical to the actual facts of this case. Most

significantly, as Longo has admitted, the simulations do not represent the work actually

-ll-

DEFENDANT FORD MOTOR COMPANY'S MOLION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY. AND
EXPRRIMENTS CONDUCTED BY PLAINTIEF’S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOUN TEMPLIN
(MEL #29)Bow oN

28

LANKFORD
CRAWEORD
MORENO LLP
ATTORNEYS AT LAW

performed by a particular plaintiff or party. Indeed, Longo admitted that he does not even
consider the size and configuration of a party’s actual workplace facility in formulating his
experiments. (Exh, B, 198:10-11; 199:3-10.) Longo also testified that the experiments do not
attempt to simulate a complete brake job. (Exh. B, 58:19-25.) Without more, Longo’s
admissions reveal inherent differences substantial enough to render the experimenis inadmissible.

In light of these admissions, plaintiff cannot meet the burden of showing that the
experiments are identical to the facts of this case, particularly with respect to the product used, the
manner of exposure, the quantity of asbestos removed, the manner of removal, the duration of the
removal process, and other issues related to timing, setting and manner. Because plaintiff cannot
meet the burden of showing that the conditions of the experiments are substantially identical to
the facts of this case, all evidence of the experiments should be excluded. People v. Bonin (1989)
47 Cal.3d 808, 847.

3. THE EXPERIMENTS SHOULD Be EXCLUDED BECAUSE THEY WILL CONFUSE AND
MISLEAD THE JURY

The experiments should be excluded because they will confuse and mislead the jury.
Evid. Code § 352. See also, People v. Bonin (1989) 47 Cal.3d 808, 847 (court may exclude
evidence where its probative value is outweighed by potential for misleading the jury or for
creating confusion or prejudice). On the one hand, as explained above, the Longo clothing
shakeout and brake experiments have little if any probative value. They shed no light on the
disputed facts because they are not based on, and are not similar to, such disputed facts. The
videotapes in particular have no probative value because one cannot tell from simply viewing the
dust cloud whether the dust consists of respirable asbestos fibers, non-asbestos particles or, for
that matter, Cheerios dust.

On the other hand, the clothing shakeout and brake experiments are highly prejudicial and
misleading. Although the experiments are not based on the present facts, the jury may

nonetheless be misled into concluding (however illogically) that, because the subject in the

~12-

‘DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THR TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RUCHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
[MUL #29]28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

experiment appears to have been exposed to substantial amounts of some kind of dust, that
Decedents also must have been exposed io similar quantities of asbestos fiber.

In the case of the videotapes, illuminating the dust cloud with high intensity Tyndall
lighting creates the dramatic visual effect of a snowstorm of dust. This dramatic visual effect is
likely to lead the jury to incorrectly conclude that, because there is such a substantial amount of
dust in the air, plaintiff must have been exposed to a substantial amount of asbestos-containing
dust. Thus, the evidence of these “experiments” should be excluded in order to avoid undue
prejudice as well as the potential of misleading the jury.

4, Tae EvipENCE SHOULD BE EXCLUDED BECAUSE NEITHER DR. LONGO NOR
Mr. HATFIELD WERE QUALIFIED To CONDUCT THE “EXPERIMENTS”

Longo conducted the experiments and Hatfield assisted Longo with some of the studies,
Hatfield, Templin and Longo each lack the necessary qualifications to stage simulations of
automobile brake work. Longo admittedly has no experience as a professional mechanic of any
kind. (Exh. B, 31:14 - 34:14.) His only brake experience was acquired through work on two of
his personal cars, a 1964 Corvair and a 1973 Camaro. (Exh. B, 31:14-26, 32-34:1-14.)
Similarly, Hatfield has no experience with automotive repair work. (Exh. F, 88:3-5.) He has
neither repaired nor installed brakes nor taken a course in automotive brake work. (Exh. F, 88:6-
24.) Both Dr. Longo and Mr. Hatfield are, at best, novice amateur mechanics. They are simply
not qualified to simulate how a professional mechanic would actually work on brakes. Nor have
Dr. Longo, Mr. Hatfield, or Mr. Templin demonstrated any special knowledge or skills regarding
work with industrial gaskets. Given the lack of qualifications of Longo, Templin and Hatfield,

the evidence of the experiments should be excluded. People v. Bonin (1989) 47 Cal.3d 808, 847.

D. THE EXPERIMENTS ARE INADMISSIBLE BECAUSE THEY ARE BASED ON
UNRELIABLE SCIENCE

1. CourTs ARE REQUIRED TO EXERCISE “JUDICIAL CAUTION” IN ADMITTING
SCIENTIFIC TECHNIQUES OF QUESTIONABLE RELIABILITY

In People v. Kelly (1976) 17 Cal.3d 24, the California Supreme Court established the rules

of admissibility that apply to new scientific techniques as well as “evidence ‘developed by’ or

-13-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN:
IMIL #29]28

LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS AY LAW

*based upon’ new scientific techniques.” People v. Shirley (1982) 31 Cal.3d 18, 52. The Keily
rule is “essentially conservative nature” and requires “Judicial caution” in the admission of new
scientific evidence, thereby establishing a “substantial obstacle” to the admission of such
evidence. In adopting the Kelly test, which is based on the federal court’s Frye test, the Kelly
court noted:

The primary advantage ... of the Frye test lies in its essentially

conservative nature. For a variety of reasons, Frye was deliberately

intended to interpose a substantial obstacle to the unrestrained

admission of evidence based upon new scientific principles. . ..

Several reasons founded in logic and common sense support a

posture of judicial caution in this area. Lay jurors tend to give

considerable weight to “scientific” evidence when presented by

“experts” with impressive credentials. We have acknowledged the

existence of a“... misleading aura of certainty which often

envelops a new scientific process, obscuring its currently
experimental nature.” [Citation omitted.] Kelly, 17 Cal.3d at 31-
32.

Thus, “the [Kelly] doctrine contemplates an undefined period of testing and study by a
community of experts before a new scientific technique may be deemed ‘generally accepted,’
thus delaying the admissibility of evidence derived from the technique.” People v. Leahy (1994)
8 Cal 4th 587, 601-02. “Through application of the Kelly/Frve requirements, California courts
have ‘long been willing to forego admission of ‘new’ scientific methods used to detect, analyze,
or produce evidence absent a credible threshold showing that ‘the pertinent scientific community
no longer views them as experimental or of dubious validity."”” Texaco Producing, Inc. v. County
of Kern (1998) 66 Cal.App.4th 1029, 1048 (citations omitted in original) quoting People v. Webb
(1993) 6 Cal.4th 494, 524. “This all-or-nothing approach was adopted [in Kelly] in full
recognition that there would be a ‘considerable lag’ between scientific advances and their
admission as evidence in a court proceeding.” Leahy, supra, 8 Cal.4th at 602 (citation omitted).
Moreover, Kelly does not “leave questions of admissibility to the discretion of the trial court in
the first instance.” Leahy, supra, 8 Cal.4th at 594.

Kelly next considered the appropriate test for determining the
reliability of a new scientific technique. We recognized that one
possible approach would be to leave questions of admissibility to

the discretion of the trial court in the first instance, “in which event
-14-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN THMPLIN-
[Mat #29]a

oC we NY

10
il
12
13
4
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CRAWFORD

MORENO LLP
ATTORNEYS ATLAW

objections, if any, to the reliability of the evidence (or of the
underlying scientific technique on which it is based) might lessen
the weight of the evidence but would not necessarily prevent its
admissibility.” (Citation omitted. [Kelly] rejected the foregoing
approach. Jd. at 594.

Kelly requires the court look to the scientific community to determine whether the new
scientific technique is sufficiently reliable to have obtained general acceptance within that
community. Texaco, supra, 66 Cal.App.4th at 1048. In this case, both Hatfield and Longo have
eschewed the generally accepted approach for measuring exposure to respirable asbestos fibers,

adopting instead a dubious, unproven approach. Thus, as demonstrated below, the experiments
are inadmissible under Kelly.

2. THE OBSCURE AND HIGHLY COMPLEX METHODS FOR MEASURING EXPOSURE
TO AIRBORNE ASBESTOS FIBERS ARE THE VERY TyPE OF IMPENETRABLE
ScrentTiFic PROOF THat KELLY Is DESIGNED TO GUARD AGAINST

The courts look to the underlying purpose of the Kelly rule to determine whether it is
appropriate to apply the rule in a particular instance. “The Kelly test is intended to forestall the
jury’s uncritical acceptance of scientific evidence or technology that is so foreign to everyday
experience as to be unusually difficult for laypersons to evaluate.” People v. Venegas (1998) 18
Cal.4th 47, 80 (citations omitted). Thus, the level of complexity involved in the technique is a
key factor in determining whether it is covered by Kelly because the more “impenetrable” the
technique, the more likely it is that the technique will assume a “posture of mystic infallibility” in
the eyes of the jury. As the Venegas court observed when faced with competing methodologies
for DNA testing:

It is the very complexity of the issues surrounding the propriety of
the various recognized methods [in question] . . . that draws them
under the Kelly/Frye umbrella. ‘To . . . leave it to jurors to assess
the current scientific debate .. . as a matter of weight rather than
admissibility, would stand Kelly-Frye on its head. We would be
asking jurors to do what judges carefully avoid — decide the
substantive merits of competing scientific opinion as to the
reliability of a novel method of scientific proof. . . . The result
would be predictable. The jury would simply skip to the bottom
line — the only aspect of the process that is readily understood — and
look at the ultimate expression of match probability, without
competently assessing the reliability of the process by which the
laboratory got to the bottom line. This is an instance in which the
method of scientific proof is so impenetrable that it would’ . . .

-15-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE 10 EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND

EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOHN TEMPLIN
[MIL #29)28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT Law

assume a posture of mystic infallibility in the eyes of a jury ...”
[Citation omitted.]’ /d. at 83-84.

As with the DNA testing in Venegas, measuring the amount of exposure to airborne
asbestos fibers by using transmission electron microscopy and phase contrast microscopy is “so
foreign to everyday experience as to be unusually difficult for laypersons to evaluate.” Jd. at 80.
Thus, the Kelly test must be applied to “forestall the jury’s uncritical acceptance of [such]
scientific evidence.” Ibid.

3. PLAINTIFF CANNOT SATISFY KELLY’S RIGOROUS THREE PRONG TEST

Plaintiff must show that the scientific techniques used by MAS are reliable, that plaintiff's
foundation witnesses are properly qualified io testify regarding general acceptance within the
scientific community, and that MAS used the correct scientific procedures. More specifically,

plaintiff has the burden of satisfying the following three prongs to the Kelly test:

The first prong of the Kelly test requires that the “reliability” of a
new scientific technique be established by showing that the
technique has “ ‘gained general acceptance in the particular field to
which it belongs.’ (Citations omitted.)

The second prong requires that any witness testifying on general
acceptance be properly qualified as an expert on the subject.
(Citation omitted.)

The third prong of the test . . . [requires that] the proponent of the
evidence must demonstrate that correct scientific procedures were
used in the particular case. (Citations omitted.) People v. Venegas
(1998) 18 Cal 4th 47, 78; see also People v. Leahy (1994) 8 Cal.4th
587, 611.

a. THE SCKENTIFIC TECHNIQUE USED BY MAS Is Not GENERALLY
ACCEPTED AS RELIABLE IN THE RELEVANT SCIENTIFIC COMMUNITY

The “burden of showing general acceptance lies with the proponent of the evidence to
show a ‘scientific consensus.” People v. Leahy (1994) 8 Cal.4th 587, 611 (citation omitted).
That is, “[i]t is the proponent of such testimony, of course, who has the burden of making the
necessary showing of compliance with [Kelly//Frye, i.e., of demonstrating by means of qualified
and disinterested experts that the new technique is generally accepted as reliable in the relevant

scientific community.” People v. Shirley (1982) 31 Cal.3d 18, 54 (citation omitted). “General

-16-

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF, VIDEOTAPES PRODUCED BY, AND
EXPERIMENTS CONDUCTED BY PLAINTIFF'S EXPERTS, RICHARD HATFIELD, WILLIAM LONGO AND JOIN TEMPLIN
[MEL #29}28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS ATLAW

acceptance’ under Kelly means a consensus drawn from a typical cross-section of the relevant,
qualified scientific commu