Motion-Secondary: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                REY M. VUCINICH, ESQ. BAR#: 67906
PHEN V. HARRINGTON, ESQ, BAR#: 222064

CLAPP, MORONEY, BELLAGAMBA, VUCINICH, ELECTRONICALLY

BEEMAN & SCHELEY FILED

A PROFESSIONAL CORPORATION Superior Court of Catfomia

1111 Bay’ ill Drive, Suite 300 County of San Francisco

San Bruno, CA 94066 SEP 03 2010
989. < 90-5499 IF

(650) 989-5400 (650) 989-5499 FAX Clerk of the Court

BY: CHRISTLE ARRIOLA

Attorneys for Defendant Deputy Clerk

CONTRA COSTA ELECTRIC, INC.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA, ASBESTOS
CASE NO, COC-07-274230
Plaintiff,
DEFENDANT CONTRA COSTA
y. ELECTRIC, INC’S OBJECTIONS TO
PLAINTIFF'S EVIDENCE IN SUPPORT
INDANTS (B®?) As OF FPS OPPOSITION TO MOTION FOR
3B, B-1, C, DH, E SUMMARY JUDGMENT
and DOES 1-8500,
Defendants. Date: September 9, 2010

Time: 9:30 am.
Dept: 220

Pursuant to California Rules of Court 3.1354, Defendant CONTRA COSTA ELBCTRIC,
INC. hereby objects to and moves to strike the following evidence submitted by Plaintiff LOUIS
CASTAGNA in his Opposition to Defendant’s Motion for Summary Judgment.

Objections to the Declaration of Louis Castagna

As set forth in CCE’s Reply Brief, the Declaration of Louis Castagna contradicts Plaintiff's

Board of Medical Examiners, 11 Cal. 3d 1, 25 (1974). Under D’ Amico, a party opposition to a
motion for summary judgment cannot use statements in his or her affidavit to contradict his or her own
previous deposition testimony and/or interrogatory responses to create a disputed issue of material
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DEFENDANT CONTRA COSTA ELECTRIC, INC’S OBJECTIONS TO PLAINTIFICS EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTfact. Id. CCE therefore makes a general objection on these grounds, as well as specific objections to
the following statements as detailed below:

“As | testified in my deposition, I cannot identify the specific dates or locations within each
refinery where | saw Contra Costa Electric employees, However, I can state with a reasonable degree
of certainty that I saw Contra Costa Electric employees at my jobs in the above named industrial
locations in the mid 1970s.” Declaration of Louis Castagna at {6 attached to Declaration of Rene J.
Casilli in Support of Plaintiffs’ Opposition at Exhibit B (“Castagna Decl.”).

Grounds for Objection 1; Lacks foundation (Evid. Code § 400 ef seq.). Speculation. Misstates
and mischaracterizes the evidence. Plaintiff makes no attempt to establish a basis to support the
assertion that he saw CCE at bis jobs in the “mid 1970s.” Vague and ambiguous as to the inclusion
of “reasonable degree of certainty” and “mid 1970s,” It contradicts his sworn deposition testimony in
violation of D’Amico.

Objection 2

“Ags | testified in my deposition and reaffirm now, T saw Contra Costa Electric employees
walking on insulated pipes and causing the insulation to drop from around the seams onto the beams

where { was working.” Castagna Decl, at {8.

on2: Misstates and mischaracterizes the evidence. Plaintiff did not testify
as stated. His testimony is as follows: “If they were working on the racks alongside me they were

working on the pipes, the same pipes that I was walking on and had shoes that were ~ that the pipes

rode on, and even though the pipes were encapsulated asbestos would drop out from. around the seams
of the shoes and right on the beams, so that’s the - that would be the exposure that would occur.” (See
Castagna deposition testimony pages 1132:23 - 1133:6 attached to Declaration of Rene J. Casilli)
(Emphasis added), Counsel for CCE objected to this statement as based on speculation and lacking
foundation. Further, the inclusion of the word “UF” at the beginning connotes that he is simply
speculating, The statement mischaracterizes the evidence because it is plaintiff himself “walking on”
the pipes and not the CCE employees.

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DEFENDANT CONTRA COSTA ELECTRIC, INC’S OBJECTIONS TO PLAINTIFF'S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTLrelevant (Evid. Code §§ 210, 350). Even if the court somehow allows the statement, the fact
remains that he does know when or where this may have happened. (See Castagna deposition
testimony pages 1132:23 ~ 1133:6 attached to Declaration of Rene J. Casilli), It could have equally
happened in the mid 1990s as the mid 1970s.

Objection 3

“7 observed the insulation material was discolored, fibrous and chalky and broke apart almost
to a powder form when it hit the beams. | was not asked in deposition if dust was created when the
insulation fell, however, had I been asked I would have said that so much dust was created that it
looked like snow was falling.” Castagna Decl. at 8.

Grounds for Objection 3: Misstates and mischaracterizes the evidence. Plaintiff did not testify at

deposition to what the statement asserts, Furthermore, plaintiff had the opportunity to describe the

allegedly asbestos containing materials that CCH may have disturbed in his presence in written
discovery, but al no time did he say anything about “insulation material that was discolored, fibrous
and chalky.” Atthe 11" hour plaintiffis sitaply attempting to manufacture a triable issue of fact and

Speculation. Plaintiff's statement is pure speculation of what he would have stated during his
deposition and is inadmissible.

brelevant (Evid. Code §§ 210, 350). Plaintifi’s testimony is clear that it was he who walked
on the insulated pipes and not CCE who disturbed insulation. (See Castagna deposition testimony
pages 1132:23 - 1133:6 attached to Declaration of Rene J. Casilli). Also, there is no indication of
when this took place either in the declaration or in his testimony, Plaintiff explicitly testified that he
does not know when or where this might have happened.

Objection 4

“1 was not asked in deposition what type of pipes Contra Costa Electric employees walked on,
but had I been asked, | would have stated that the pipes that the Contra Costa Electric employees
walked on were high pressure, high temperature pipes that were insulated with thermal insulation.”
Castagna Decl. at 9.
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DEFENDANT CONTRA COSTA ELECTRIC, INC’S OBJECTIONS TO PLAINTIFI?S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTGrounds for Objections 4: Lacks foundation (Evid. Code § 400 et seq.). Speculation. Plaintiff's
statement is pure speculation of what he would have stated during his deposition and is inadmissible.
Plaintiff made it clear in his deposition that he did not know when or where CCE employees “walked
on pipes” so it would follow that it lacks any foundation and would be speculation on his part to say
that the pipes were “high pressure, high temperature.”

Plaintiff was asked in CCE Special Interrogatories to “state all facts” that support his
contention that CCE exposed plaintiff to asbestos. There is nothing in plaintiff's responses to CCE
Special Interrogatories or Standard Interrogatories, and various supplemental/amended versions that
says anything about CCE employees walking on insulated high pressure, high temerature pipes. (See
Exhibits 3, 4, 7, 10 attached to Index of Exhibits in Support of CCIE*s Motion for Summary
Judgment).

‘The statement contradicts Plaintiff's verified discovery responses and deposition testimony

and is thus inadmissible under D'Amico v. Board of Medical Examiners, 11 Cal. 3¢.1, 25 (1974).

Under D'Amico, a party opposition a motion for summary judgment cannot use staternents in his or
her affidavil to contradict his or ber own previous deposition testimony and/or interragatory responses
to create a disputed issue of material fact. Id.
Objection 5

“{ was not asked in deposition how close | was to Contra Costa Electric employees, Had 1
been asked I would have said very often | worked elbow to elbow with Contra Costa Electric
employees while they performed their work, At times I worked below the Contra Costa Electric
employees, while they were above me disturbing the thermal pipe insulation as described above.”
Castagna Decl. at 710.
Grounds for Objections §: Lacks foundation (Evid. Code § 400 ef seg.), Speculation. Plaintif?’s
statement is pure speculation of what he would have stated during his deposition and is inadmissible.
Plaintiff made it clear in his deposition that he did not know when or where CCE employees “walked

on pipes” so it would follow that it lacks any foundation and would be speculation on his part to say

that the pipes were “high pressure, high temperature” or even insulated for that matter.

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DEFENDANT CONTRA COSTA ELECTRIC, INC’S OBJECTIONS TO PLAINTIFF'S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTIrrelevant (Evid. Code §§ 210, 350), Since plaintiff does not know when this might have
happened or where it might have happened, it would be conjecture on his part whether the insulation
was asbestos containing, He provides no information of when it was installed or what brand or
manufacturer or type of insulation it allegedly was. Pursuant to Evidence Code Section 350, no
evidence is admissible except relevant evidence, Therefore, plaintiff's statement is inadmissible.

Objection 6

“As | testified in my deposition and reaffirm now, | worked in close proximity to Contra Costa
Electric laborers sweeping up, This process created a great deal of dust.” Castagna Decl. at 411.
Grounds for Objections 6; Misstates and mischaracterizes the evidence. There is nothing in his
testimony about how close he was to laborers allegedly employed by CCE sweeping up. Furthermore,
there is absolutely nothing in his testimony that says it “created a great deal of dust.” (Plaintiff's
deposition testimony at 1134:19-24 attached to Casilli Declaration at Isxhibit A).

lvelevant (Evid. Code §§ 210, 350), Plaintiff does not state when or where this alleged CCE
laborer sweeping took place. It could have been in the 1990s and the dust could have been sawdust,
It is speculation on plaintiffs part to assume what any materials swept up at an unknown time and
place contained. Pursuant to Evidence Code Section 350, no evidence is admissible except relevant
evidence, Therefore, plaintiffs statement is inadmissible.

The statement contradicts Plaintiff's verified discovery responses and is thus inadmissible

under D’Amico v. Board of Medical Examiners, 11 Cal. 3d 1,25 (1974). Under mico, a party

opposition a motion for summary judgment cannot use statements in his or her affidavit to contradict
his or her own previous deposition testimony and/or interrogatory responses fo create a disputed issue
of material fact. Id. There is nothing in plaintiff's responses to CCE Special Interrogatories or
Standard Interrogatories, and verified supplemental/amended versions that says anything about CCL:

“laborers” sweeping up at any time. (See Exhibits 3, 4, 7, 10 attached to Index of Exhibits in Support

of CCE’s Motion for Summary Judgment). This is simply a bald faced attempt to create a triable issue
of fact.

‘tf

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DEFENDANT CONTRA COSTA ELECTRIC, INC.S OBJECTIONS TO PLAINTIFI?S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT“J was not asked at deposition, but bad 1 been asked what the Contra Costa laborers were
sweeping up, | would have said | saw them sweep up materials that included thermal pipe insulation
that had been knocked foose.” Castagna Decl, at 412.

Grounds for Objections.7: Lacks foundation (Evid. Code § 400 ef seq.). Speculation, Plaintiff's
statement is pure speculation of what he would have stated during his deposition and is inadmissible.

‘The statement contradicts Plaintiff's verified discovery responses and is thus inadmissible

under D’Amico v. Board of Medical Examiners, 11 Cal. 3d 1,25 (1974). Under D’Amico, a party

opposition a motion for summary judgment cannot use statements in his or her affidavit to contradict
his or her own previous deposition testimony and/or interrogatory responses to create a disputed issue
of material fact. Id, There is nothing in plaintiff's responses to CCE Special Interrogatorics or

Standard Interrogatories, and verified supplemental/amended versions that says anything about CCE.

“laborers” sweeping up at any ime, (See Exhibits 3, 4,7, 10 attached to Index of Exhibits in Support
of CCE’s Motion for Summary Judgment). This is simply a bald faced attempt to create a triable issue
of fact.

Irrelevant (Evid. Code 88 210, 350). Plaintiff does not state when or where this alleged laborer
sweeping took place. It could have been in the 1990s and the dust could have been sawdust. itis
speculation on plaintiff's part lo assume what any materials swept up at an unknown, time and place
contained. Pursuant to Evidence Code Section 350, no evidence is admissible except relevant
evidence, ‘Therefore, plaintiff's statement is inadmissible.

Objections to Declaration of Charles Ay

Given the inadmissibility of Plaintiff Louis Castagna’s Declaration, as set forth above, CCE
concurrently objects to the Declaration of Charles Ay and portions therein that are based on the
Declaration of Louis Castagna. Mr. Ay’s declaration is not based on facts, calls for speculation, lacks
foundation and is based on hearsay. See CAL. EviD, Cope § 403, 702, 720, 801, 802, 803, 1200 et seq.
(West 2010).

Itis well established that the affidavits in support of, or in opposition to a motion for summary

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DEFENDANT CONTRA COSTA ELECTRIC, INC’S OBJECTIONS TO PLAINTIFIOS EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTjudgment must be based on the personal knowledge of the affiant. Southern Pacific Company v. Fish,
etal, 166 Cal_App. 2d 353, 363, Me. Ay has no personal knowledge of Plaintiff's work history and
possible exposure to asbestos, Mr. Ay has not reviewed Plaintiffs deposition testimony, nor has he
reviewed Plaintiff's discovery responses. Quite simply, he has no personal knowledge of the facts of
this case, and his statements are merely conclusory opinions without proper basis and contain
inadmissible hearsay which ought to be excluded, See Cav. Evip. Cone § 702, 801, 802, 803, 1200
ot seq. (West 2010).

Defendant objects to and moves to strike the declaration of Charles Ay on the following
grounds:

Objection 1

“] have reviewed extensive medical, scientific, regulatory, governmental and industrial
publications regarding asbestos and remained current as to them as part of my professional practice
at Asbestos Detection, as well as concerning asbestos in products historically that include... Union
Carbide Corp.” Declaration of Charles Ay at (5 attached to Declaration of Rene Casilli in Support
of Plaintiff's Opposition at Exhibit C (Ay Decl.”).
this case by Plaintiff that CCE disturbed any materials in his presence that were manufactured by the
listed companies. The laundry list of disclosures that Mr, Ay has purportedly reviewed has no
tendency in reason to prove or disprove any disputed fact that is of consequence to the determination
of the action. Itis a red herring. Pursuant to Evidence Code Section 350, no evidence is admissible
except relevant evidence. ‘Therefore, plaintiff's statement is inadmissible.

Objection 2

“I have read and reviewed the relevant deposition testimony and declaration of Louis Castagna
in this matter, wherein he states that in the mid 1970s he worked as a steamrfitter at Shell Oil in
Martinez, CA, Standard Oil in Richmond, CA, and Tosco in Avon, CA, in the mid 1970s, Mr.
Castagna did work in close proximity to Contra Costa Electric employees who were walking on

existing pipe lines and dislodging pieces of thermal insulation that he describes as discolored, fiberous

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DEFENDANT CONTRA COSTA ELECTRIC, INCS OBJECTIONS TO PLAINTIFI?S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTand chalky. He describes it breaking apart into a powder upon impact and creating copious amounts
of visible dust. The pieces of thermal insulation dropped onto the beams where Mr. Castagna was
working.” Ay Deel. at 414.
Grounds for Objection 2: Misstates and mischaracterizes the evidence. Apparently Mr. Ay did not
read plaintiff’s deposition testimony very closely because plaintiff testified that it was he who walled
on insulated pipes. As for CCE, plaintiff testified that he did not know where or when this might have
happened. (Exhibit A to Casilli Declaration at pages 1132:18 - 1133:19). There is no admissible
evidence to support Mr. Ay’s statement that any of the alleged actions took place in the “mid 1970s”
at the locations listed. He is simply jumbling facts together to get to a conclusory opinion.

Lacks Foundation ( Evid. Code § 400 ef seg.). Ay’s statement is based on inadmissible
statements of plaintiff and therefore itself madmissible.

Objection 3

“Mr, Castagna indicated the Contra Costa Electric laborers also swept up pieces of thermal

insulation around him. Mr. Castagna observed dust when the Contra Costa Electric laborers were

sweeping up this insulation material.” Ay Dect. at q14.

on inadmissible statements of plaintiff and therefore itself inadmissible

Misstates and mischaracterizes the evidence. ‘There is nothing in plaintiff's testimony or
declaration about how close he was to laborers allegedly employed by CCE sweeping up. (Plaintil?’s
deposition testimony at 1134:19-24 attached to Casilli Declaration at Exhibit A). Furthermore, Mr.
Ay’s lumping this alleged sweeping in to the Mid 1970s time period, which is misleading at best
because there is no support for the assumption that this took place during that time period.

Irrelevant (Evid. Code §§ 210, 350). Plaintiff's declaration does not state when or where this
alleged CCE laborer sweeping took place. It could have been in the 1990s and the dust could have
been sawdust. It would be speculation on plaintiff's part, as well as that of Mr, Ay, to assume what
any materials swept up at an unknown time and place contained. Pursuant to Evidence Code Section
350, no evidence is admissible except relevant evidence. Therefore, Ay’s statement is inadmissible.
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DEFENDANT CONTRA COSTA ELECTRIC, INC.’S OBJECTIONS TO PLAINTIFI?S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTObjection 4
“Based on my asbestos training, education, first hand experience in the trades as an insulator,
my research, certifications, asbestos work and inspection activities, it is my expert opinion, that it is
overwhelmingly likely that the thermal insulation materials disturbed at these facilities in the mid
1970s would have been asbestos containing. Moreover, it is also overwhelmingly likely that any
thermal insulation materials installed during maintenance, repair and remodeling work prior to the mid
1970s would also have been asbestos containing materials. Given the general durability of asbestos
containing materials, it is much more likely than not that asbestos containing thermal insulation
present during the mid 1970s time period at these industrial refineries where Mr. Castagna worked,
would have been asbestos containing.” Ay Decl. at 115.

: Assumes facts and lacks foundation (Evid, Code §§ 402, 403, 801). Ay’s

statement is based on inadmissible statements of plaintiff and therefore itself inadmissible.
Furthermore, the Ay statement is a broad brush stroke that has no evidentiary value. There is no
attempt to describe the insulation in any way, including color, texture, brand, or manufacturer that
could even potentially provide a basis on which to render an expert opinion on whether or not the
material was asbestos containing. Ay makes no attempt to differentiate what types of “thermal
insulation” would be present at the “industrial refineries” in the mid 1970s. He has no personal
knowledge of what type and/or types of insulation materials were present during this vague lime
period. ‘Phis is unsupported speculation based on no evidence. Should the Court decide to consider
the declaration in the abstract, defendant contends that the statement is conclusory, based on
assumptions of fact without evidentiary support and on conjectural factors, has no evidentiary value

and should be excluded. See Jennings v. Palomar Pomerado Health Systems, Inc., 114 Cal. App. 4°

1108 (2003); see also Bushling v. Fremont Medical Center, 117 Cal. App. 4 493 (2004). In

Bushling, plaintiff attempted to defeat a motion for summary judgment by including the opinions of
two doctors that plaintiff's injury was caused by defendants’ negligence in that “more probably than
not,” plaintiff had been dropped, his arm had been improperly positioned during surgery, or his arm.
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DEFENDANT CONTRA COSTA ELECTRIC, INC’S OBJECTIONS TO PLAINTIFI’S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT27

28

had been stretched. 117 Cal. App. 4" at $10, However, there was no evidence that plaintiff was
dropped, that he was improperly positioned, or that his arm was stretched during the procedure or
recovery, Id. The Third District Court of Appeals found that the doctors’ opinions were nothing more
than statement that the injury could have been caused by defendants’ negligence in one of the ways
they specify. Id. ‘The court went on to state that “an expert's opinion that something could be true if
certain assumed facts are true, without any foundation for concluding those assumed facts exist” has
no evidentiary value. Id.; see also Jennings at p. 1117.

Irrelevant. There is no admissible evidence that CCE ever disturbed any thermal insulation
materials in plaintiffs presence at any location in the “mid 1970s.”

Lacks Foundation ( Evid. Code § 400 ef seq,). Ay’s statement is based on inadmissible
statements of plaintiff and therefore itself inadmissible.

Objection 8

“Based on my asbestos training, education, first hand experience in the trades as an insulator,
my research, certifications, asbestos work. and inspection activities, it is my expert opinion, that the
insulation material described by Mr. Castagna in his declaration, which Contra Costa Electric
employees disturbed and swept up in the mid 1970s ... in the presence of Mr. Castagna, more likely
than not contained asbestos.” Ay Decl. at 416.

Lacks Foundation ( Evid. Code § 400 ef seg.). Ay’s statement is based

Obijecti¢
on inadmissible statements of plaintiff and therefore is itself inadmissible. There is no admissible
evidence that CCE either disturbed or swept up any “thermal insulation” materials in plaintiffs
presence in the “mid 1970s”.

Assumes facts and lacks foundation (vid. Code §§ 402, 403, 801). This is unsupported
speculation based on no evidence. Should the Court decide to consider the declaration in the abstract,

defendant contends that the statement is conclusory, based on assumptions of fact without evidentiary

support and on conjectural factors, has no evidentiary value and should be excluded. See Jennin,

Palomar Pomerado Health Systems, Inc,, 114 Cal. App. 4" 1108 (2003); see also Bushling v. Fremont

Medical Center, 117 Cal. App. 4" 493 (2004). In Bushling, plaintiff attempted to defeat a motion for

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DEFENDANT CONTRA COSTA ELECTRIC, INC'S OBJECTIONS TO PLA
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

TIRES EVIDENCE INsummary judgment by including the opinions of two doctors that plaintiff's injury was caused by
defendants’ negligence in that “more probably than not,” plaintiffhad been dropped, his arma had been
improperly positioned during surgery, or his arm had been stretched. 117 Cal, App. A" at 510.
However, there was no evidence that plaintiff was dropped, that he was improperly positioned, or that
his arm was stretched during the procedure or recovery. Id. The Third District Court of Appeals
found that the doctors’ opinions were nothing more than statement that the injury could have been
caused by defendants’ negligence in one of the ways they specify. Id. The court went on fo state that
“ay expert’s opinion that something could be true if certain assumed facts are true, without any
foundation for concluding those assumed facts exist” has no evidentiary value. Id; see also Jennings
atp. 1117.
Objection 6

“Based on my asbestos training, education, first hand experience in the trades as an insulator,
my rescarch, certifications, asbestos work and inspection activities, iis my expert opinion, that Contra
Costa Electric’s employees disturbance and sweeping of asbestos-containing pipe insulation in the mid

1970s in close proximity to Mr. Castagna released respirable fibers that Mr. Castagna necessarily

inhaled.” Ay Decl. at 417.

Lacks Foundation (Evid. Code § 400 ef sey.), Ay’s statement is based
on inadmissible statements of plaintiff and therefore is itself inadmissible. There is no admissible
evidence that CCE either disturbed or swept up any “thermal insulation” materials in plaintiff's
presence in the “mid 1970s”,

Assumes facts and lacks foundation (vid. Code §§ 402, 403, 801). This is unsupported
speculation based on no evidence, Should the Court decide to consider the declaration in the abstract,
defendant contends that the statement is conclusory, based on assumptions of fact without evidentiary
support and on conjectural factors, has no evidentiary value and should be excluded. See Jennings.v.

Palomar Pomerado Health Systems, Inc, 114 Cal. App. 4" 1108 (2003); see also Bushling v. Fremont

Medical Center, 117 Cal. App. 4" 493 (2004). In Bushling, plaintiff attempted to defeat a motion for

summary judgment by including the opinions of two doctors that plaintiff's injury was caused by

G:\Data\DOCS\0431\ 03845 \MET\Objections pld La
DEFENDANT CONTRA COSTA ELECTRIC, INC?S OBJECTIONS TO PLAINTIFFS EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENTdefendants’ negligence in that “more probably than not,” plaintiffhad been dropped, his arm had been
improperly positioned during surgery, or his arm had been stretched. 117 Cal. App. 4" at 510,
However, there was no evidence that plaintiff was dropped, that he was improperly positioned, or that
his arm was stretched during the procedure or recovery. Id. The Third District Court of Appeals
found that the doctors’ opinions were nothing more than statement that the injury could have been
caused by defendants’ negligence in one of the ways they specify, 1d. ‘The court went on to state that
“an expert’s opinion that something could be true if certain assumed facts are true, without any
foundation for concluding those assumed facts exist” has no evidentiary value. Id.; see also J ennings

atp. L117.

DATED: September 3, 2010 CLAPP, MORONEY, BELLAGAMBA,
VUCINICH, BEEMAN and SCHELEY

By:

Attorneys for Defendant
CONTRA COSTA ELECTRIC, INC.

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DEFENDANT CONTRA COSTA ELECTRIC, INC.’S OBJECTIONS TO PLAINTIFF'S EVIDENCE IN
SUPPORT OF ITS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT