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

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                                Brybox
Hueo & PARKER
139 MAIN STREET
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Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
Josette D. Johnson [Bar No. 195977]
BRYDON HUGO & PARKER

135 Main Street, 20'" Floor

San Francisco, CA 94105
Telephone: (415) 808-0300
Facsimile: (415) 808-0333

Attorneys for Defendant
SWINERTON BUILDERS

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

SEP 03 2010

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA,

Plaintiff(s),
vs.

ASBESTOS DEFENDANTS (B*P), ET AL.,

Defendants.

(ASBESTOS)
Case No. CGC-08-274765

DEFENDANT SWINERTON BUILDERS’
EVIDENTIARY OBJECTION IN SUPPORT
OF MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

[Filed concurrently with Swinerton’s Reply
Brief and Proposed Order]

Date: September 9, 2010
Time: 9:30 a.m.

Dept.: 220

Judge: Harold E. Kahn

Action filed: June 6, 2007
Trial Date: October 12, 2010

OBJECTION NO. 1 - Declaration of Charles Ay, in its Entirety

« Unduly Prejudicial; Confusing; Misleading (Evid. Code §352)

¢ Lacks foundation (Evid. Code, §§ 400-405; 720, Code Civ.Proc. § 437e(d))

« Improper Opinion (Evid. Code § 800-803)

« Irrelevant, immaterial (Evid. Code §§ 210, 350, 352)

« Lack of Personal Knowledge (Evid. Code §702, Code Civ. Proc. § 437c(d))

« Inadmissible Hearsay (Evid. Code §1200)

1

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
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The declaration of Charles Ay is inadmissible hearsay and must be disregarded. Mr.
Ay’s declaration and expertise, if any, is not relevant to this case. Mr. Ay lacks
foundation to give opinion testimony as a lay witness or as an expert witness.
Additionally, Mr. Ay’'s declaration is invalid in that it claims to be based on personal
knowledge, especially where he cites to specific types of products plaintiff is alleged to
have been exposed to, although Mr. Ay has no personal knowledge to base his testimony
regarding the "types" of products that he believes plaintiff worked around. Affidavits
submitted in support or in opposition of a motion for summary judgment must be based
on the personal knowledge of the affiant. | Southern Pacific Company v. Fish, et al. (1958)
166 Cal. App.2d 353, 363 [333 P.2d 133].] Any averments made in such an affidavit that
are not the personal knowledge of the affiant are merely hearsay. |ibid.; see also Orlando
v. Berkeley (1963) 33 Cal.Rptr. 860 [220 Cal. App.2d 229]; Nini v. Culberg (1960) 7 Cal.Rptr.
146 [183 Cal. App.2d 657]. Plaintiff “cannot manufacture a triable issue of fact through
use of an expert opinion with self-serving conclusions, devoid of any base, explanation or
reasoning.” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4'" 96, 108, McGonnell v.
Kaiser Gypsum Company, Inc., et al. (2002) 98 Cal. App. 4th 1098, 1106; see also, Golden
Eagle Refinery Co. Inc. v. Associated International Insurance (2001) 85 Cal. App.4th 1300,
1315; Smith v. ACandS, tnc. (1994) 31 Cal. App. 4th 77, 93.) Mr. Ay’s declaration should
be precluded here as they have been repeatedly precluded in San Francisco, Alameda and
Los Angeles County Superior Courts.

Mr. Ay is a retired Long Beach Naval Shipyard pipefitter who Plaintiff's counsel
has frequently designated as an “expert” in asbestos exposure cases. In is often asked to
provide testimony about products and locations of which he has no personal knowledge.
Instead, he has relied upon his purported “wealth of experience” to provide opinions
contrary to positions taken by asbestos defendants. Here, Mr. Ay does not discuss his
history as an insulator, but instead states that he is certified as a building inspector and to
sample asbestos. (Declaration of Charles Ay, 4.) Mr. Ay, however, is not an industrial

hygienist who can opine regarding the means or manner of exposure to asbestos.

2

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION1 Mr. Ay’s Declaration is thus without any basis in fact, is in improper expert

2 || opinion, and is inherently unreliable. It must be stricken. The court in Andrews v. Foster
Wheeler made short shrift a similar declaration by Charles Ay, as conclusory, based upon
4 || speculation, and of no evidentiary value. (Andrews v. Foster Wheeler (2006) 138

5 || Cal.App.4 96, 113.) Specifically in Andrews, the Court dismissed as “Ay's own

6 || speculations about the presence of ... asbestos-containing products,” Ay’s statement

7 || that “based on his personal knowledge, research and examination of the types of

8 || equipment found on naval ships, including the use of packing and gaskets as a means of
9 || preventing leakage in condensers, “|p]acking and gaskets used in naval applications

10 || commonly contained asbestos from the 1940s until at least the early 1970s.” (Id. at 108-

11 |} 109, 112Ay continued:

12 Mr. Ay has never taken any college-level course in any of the relevant sciences,

13 || including chemistry, physics and engineering. He does not have a college degree of any
14 || type. He is not an industrial hygienist. He is not a medical doctor or a registered nurse.
15 |) In fact, Mr. Ay has no foundation to render any opinion regarding plaintiff's occupational
16 || exposure to asbestos, if any. (Evid. Code, §§ 800, 801.)

17 If Mr. Ay could be considered an “expert” in anything, his expertise would be

18 |) limited to the subject of shipyard insulation as it occurred at the Long Beach Naval

19 || Shipyard between 1960 and 1981. There is no evidence that plaintiff is claiming any

20 || causes of action against Swinerton for any work as a shipyard insulator at the Long Beach
21 || Naval Shipyard during that time period. Therefore, Mr. Ay lacks the foundation to give
22 || opinion testimony regarding the plaintiff's occupational exposure to asbestos, if any. Mr.
23 || Ay is unable to compare his own personal work history to that of the plaintiff, because an
24 || expert may not base his opinion upon comparison of matters which are in fact not

25 || reasonably comparable. (Roscoe Moss v. jenkins (1942) 55 Cal App.2d 369, 379-80.)

26 Evidence Code § 800 governs lay witness opinion testimony as follows:
27 If a witness is not testifying as an expert, his testimony in the form of an
opinion is limited to such an opinion as permitted by law, including but not
28 limited to an opinion that is:
BryDoN 3
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San Prancieve, CA 24105 JUDGMENT Of, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
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(a) rationally based on the perception of the witness; and
(b) helpful to a clear understanding of his testimony.

Mr. Ay cannot provide any lay opinion testimony which is “rationally based on
(his) perception,” because he was never present in any capacity at any of plaintiffs job
sites during the period time that plaintiff was so employed. (Stuart v. Dotts (1949) 89
Cal. App.2d 683, 687; Manney v. Housing Authority (1945) 79 Cal.App.2d 453, 459-460.)

Evidence Code § 352 states, in pertinent part:

The Court in its discretion may exclude evidence if its probative value is
substantially outweighed byt e probability that its admission will . . . (b)
create substantial danger of undue prejudice, of confusing the issues, or
misleading the jury.

The more substantial the probative value the greater must be the prejudice in order
to justify exclusion. Among factors which should be considered include materiality, the
strength of its relationship to the issue on which it is offered, whether it goes to a main
issue or merely to a collateral one, and whether it is necessary to prove the proponents’
case or merely cumulative to other available and sufficient proof. (Burke v. Almaden
Vineyards (1978) 86 Cal. App. 3d 768.)

When the foregoing factors are analyzed in the instant case, the Court must
exercise its discretion and strike Mr. Ay’s Declaration. There is little, if any, “strength of .
.. relationship” between Mr. Ay and decedent in the instant case. As previously
discussed, Mr. Ay never worked with, or observed plaintiff at any of his work sites.
Accordingly, Mr. Ay’s opinion regarding plaintiff's occupational exposure to asbestos is
pure speculation.

Based on the foregoing reasons, the Charles Ay declaration should be disregarded

in whole or in the alternative, in part, as listed below:

Ruling:

In the alternative, Swinerton objects to the following portions of Charles Ay’s

declaration:

Material Objected To Objection Ruling
4

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
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have reviewed
excerpts Garlock
Technologies' Responses to General
Order No. 129 Interrogatories, dated
November 8, 2005. I note that these
Responses indicate that Garlock was
still manufacturing

containing,

Paragraph 7: “I

from Sealing

asbestos-

sheet gasket = and
compressed gasket materials as of the
time that document was created in
2005. These General Order No. 129
Interrogatories that I reviewed are

attached herein as Exhibit A.”

Unduly Prejudicial;
Confusing; Misleading (Evid.
Code §352)

Lacks foundation (Evid. Code,
§§ 400-405; 720, Code Civ.Proc.
§ 437c(d))

Improper Opinion (Evid. Code
§ 800-803)

Irrelevant, immaterial (Evid.
Code §§ 210, 350, 352)

Lack of Personal Knowledge
(Evid. Code §702, Code
Civ. Proc. § 437e(d))

Inadmissible Hearsay (Evid.
Code §1200)

In addition to these objections,
Mr. Ay’s declaration does not
contain the Exhibit A identified
therein.

Paragraph 8: “I have reviewed product
information from Garlock's products
catalogs dated 1961, 1965, 1969, 1927,
and 1978, all of which evidence and
explain the use and purpose of
asbestos in packing and gaskets, and
further demonstrate that Garlock
manufactured asbestos-containing
packing and gaskets for use in
industrial applications well into the
1980s. Garlock's catalogs explicitly
specify that asbestos-containing
gaskets should be used in high-heat

Unduly Prejudicial;
Confusing; Misleading (Evid.
Code §352)

Lacks foundation (Evid. Code,
§§ 400-405; 720, Code Civ.Proc.
§ 437c(d))

Improper Opinion (Evid. Code
§ 800-403) P

Irrelevant, immaterial (Evid.
Code §§ 210, 350, 352)

Lack of Personal Knowledge
(Evid. Code §702, Code

5

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONand/or high pressure applications.” Civ. Proc. § 437c(d))

2
Inadmissible Hearsay (Evid.
3 Code §1200)
4
- Dari « Unduly Prejudicial;
5 || | Paragraph 9: “During the course of Confusing; Misleading (Evid.
my work as an asbestos consultant, | Code §352)
6

have researched, tested and examined

7 || | various types of packing and gaskets | Lacks foundation (Evid. Code,
used in connection with high heat, Sara) , 720, Code Civ.Proc.
high pressure and steam industrial
systems. Sheet packing is also referred Improper Opinion (Evid. Code
10 || | to as gasket material from which § 800-803)

gaskets can be cut. Asbestos-

containing gaskets were used in these | Irrelevant, immaterial (Evid.

applications because of their heat- Code §§ 210, 350, 352)

13 resistant, sealing and insulating

qualities. Other common gaskets Lack of Personal Knowledge

14 (Evid. Code §702, Code
materials such as rubber, silicone and | Civ.Proc. § 437¢(d))

15 neoprene, did not have equivalent

16 |) | heat resistant qualities and were not Inadmissible Hearsay (Evid.

17 || | used in high heat, high pressure or Code §1200)
steam systems. Besides Garlock -brand

18 gaskets, during the relevant time

19 |) | period there were at approximately 20

30 || | Major brands of gaskets commonly
referred to by those in the trades as

21 "Garlock-type” gaskets used in steam

22 || | lines in industrial settings. Up until the

33 || | 1980s, the percentage of "Garlock-
type" gaskets on the market used for

24 high temperature applications that

25 || | contained asbestos was an

26 overwhelming majority.”

27 ||| Paragraph 10: “I have reviewed Unduly Prejudicial;

2g || | product information from Flexitallic's | Confusing; Misleading (Evid.

BryDoN 6
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San Prancieve, CA 24105 JUDGMENT Of, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
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139 MAIN STREET
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products catalogs, all of which
evidence and explain the use and
purpose of asbestos in gaskets, and
further that Flexitallic
manufactured asbestos-containing
use in

demonstrate

gaskets for industrial
applications well the 1980s.
Flexitallic's catalogs explicitly specify
that —asbestos-containing —_ gaskets
should be used in high-heat and/or
The
Flexitallic catalogs that I reviewed are
attached herein as Exhibit C.”

into

high pressure applications.

Code §352)

Lacks foundation (Evid. Code,
§§ 400-405; 720, Code Civ.Proc.
§ 437c(d))

Improper Opinion (Evid. Code
§ 800-803)

Irrelevant, immaterial (Evid.
Code §§ 210, 350, 352)

Lack of Personal Knowledge
(Evid. Code §702, Code
Civ. Proc. § 437e(d))

Inadmissible Hearsay (Evid.
Code §1200)

In addition to these objections,
Mr. Ay’s declaration does not
contain the Exhibit C identified
therein.

Paragraph 11: During the course of
my work as an asbestos consultant, I
have researched, tested and examined
various types of gaskets used in
high
pressure and steam industrial systems.
Flexitallic-brand — gaskets,

during the relevant time period there

connection with high heat,
Besides

were approximately 6 major brands of
gaskets commonly referred to by
those in the trades as "Flexitallic-type"
or “spiral wound” or "metal ring"
gaskets, including but not limited to,
Garlock, Johns Manville, and Sepco.
Up until the 1980s, the percentage of
"Flexitailic-type" gaskets on the
market that contained asbestos was

Unduly Prejudicial;
Confusing; Misleading (Evid.
Code §352)

Lacks foundation (Evid. Code,
§§ 400-405; 720, Code Civ.Proc.
§ 437c(d))

Improper Opinion (Evid. Code
§ 800-803)

Irrelevant, immaterial (Evid.
Code §§ 210, 350, 352)

Lack of Personal Knowledge
(Evid. Code §702, Code
Civ.Proc. § 437¢(d))

Inadmissible Hearsay (Evid.

7

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
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ninety-nine percent, if not
hundred percent.
percentage of
"Flexitallic-type" gaskets in the market
during the relevant time period would
have been specially manufactured,

custom gaskets.

one
The very small

non-asbestos

Code §1200)

Paragraph 15: “Given the time period,
all the information I have reviewed
regarding gasket materials in high
heat applications, and my years of
experience in abating these materials
in industrial settings, it is more likely
than not that the “Garlock-type"” and
"Flexitallic-type" gaskets that
SWINERTON BUILDERS’ pipefitters
were scraping off of flanges on high-
heat and the SWINERTON
BUILDERS' laborers were sweeping
up in Mr. CASTAGNA’'s presence
contained asbestos. The scraping and
of these
containing gaskets

lines

sweeping up asbestos-
would have
necessarily released respirable
asbestos fiber into the surrounding

air.”

Unduly Prejudicial;
Confusing; Misleading (Evid.
Code §352

Lacks foundation (Evid. Code,
§§ 400-405; 720, Code Civ. Proc.
§ 437c(d))

Improper Opinion (Evid. Code
§ 800-803) P

Irrelevant, immaterial (Evid.
Code §§ 210, 350, 352)

Lack of Personal Knowledge
(Evid. Code §702, Code
Civ.Proc. § 437¢(d))

Inadmissible Hearsay (Evid.
Code §1200)

Paragraph 15: “Thus, it is more likely
than not that Mr. CASTAGNA inhaled
respirable asbestos from asbestos-
containing gaskets scraped from pipe
and

flanges swept up — by

Unduly Prejudicial;
Confusing; Misleading (Evid.
Code §352)

Lacks foundation (Evid. Code,
§§ 400-405; 720, Code Civ. Proc.

8

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
Hueo & PARKER
139 MAIN STREET
20" FLOcR
Sun Franisea, CA 94105

SWINERTON
employees.”

BUILDERS'

§ 437e(d))

Improper Opinion (Evid. Code
§ 360-803)

Irrelevant, immaterial (Evid.
Code §§ 210, 350, 352)

Lack of Personal Knowledge
(Evid. Code §702, Code
Civ.Proc. § 437¢(d))

Inadmissible Hearsay (Evid.
Code §1200)

OBJECTION NO. 2 - Declaration of Plaintiff

Material Objected To

Objection

Ruling

Paragraph 8: “Swinerton's removal of
gasket material from flanges created
visible dust, which I breathed in
because I never wore a mask or any
other breathing protection while I
worked at Tosco Oil in Avon,
California in 1983.”

Improper Opinion (Evid. Code
§ 800-803)

To the extent that Plaintiffs
statement implies that Plaintiff
was exposed to asbestos in dust
from Swinerton’s activity, it is
an improper opinion. Plaintiff
is not a qualified industrial
hygienist and is not qualified to
opine that asbestos fibers from
gaskets removed by Swinerton
could travel five feet to reach
Plaintiff's breathing zone.

Paragraph 9: “Based on my training,

experience, and knowledge as a
steamfitter for 30 years, | know that
the Garlock-type and Flexitallic-type
gaskets that the Swinerton Builders’
pipefitters removed from steam lines

in that 1983 job were installed at least

two decades before based on _ the

Lacks foundation (Evid. Code,
§§ 400-405; 720, Code Civ.Proc.
§'437e(d))

Improper Opinion (Evid. Code
$ 8004 03)

Lack of Personal Knowledge
/Speculation (Evid. Code §702,

9

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrybox
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139 MAIN STREET
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physical appearance of the bolts and
fittings on the pipe flanges. The bolts
and fittings on the flanges that
Swinerton employees were working
Based
on the degree of rustiness of those
pipe flanges, I know that they had not
been previously opened and worked

on were rusted and "frozen."

on in at least two decades. Based on

my training, | experience, — and
knowledge as a steamfitter for 30
years there is no way those bolts and
fittings could have been that rusty if
they I had been opened up within two

decades prior.”

Code Civ. Proc. § 437¢(d))

Paragraph 10: “This dust and debris
the Garlock-type
Flexitallic-type gaskets removed by

included and
Swinerton's pipefitters. The sweeping
of this debris created a visible cloud of
dust, which J breathed ill because I
never wore a mask or | any other
breathing protection while I worked at
ToscoOil in Avon, California in 1983.

Improper Opinion (Evid. Code
§ 800-803)

To the extent that Plaintiff's
statement implies that Plaintiff
was exposed to asbestos in dust
from Swinerton’s activity, it is
an improper opinion.

Plaintiff's declaration does not
state where Plaintiff was when
Swinerton employees were
sweeping. Moreover, Plaintiff
is not a qualified industrial
hygienist and is not qualified to
opine that asbestos fibers from
gaskets removed by Swinerton
could travel to Plaintiff's
breathing zone.

Dated: September 2, 2010

BRYDON HUGO & PARKER

By: /s/ Josette D. Johnson

Josette D. Johnson
Attorneys for Defendant
SWINERTON BUILDERS

10

DEFENDANT SWINERTON BUILDERS’ EVIDENTIARY OBJECTION IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION