Request,Application: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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                                MARY ELLEN GAMBINO (State Bar No. 111521)

TANYA XIOMARA JOHNSON (State Bar No. 189811) ELECTRONICALLY

WILSON, ELSER, MOSKOWITZ, FILED
EDELMAN & DICKER LLP Superior Court of California,

525 Market Street, L 7” Floor County of San Francisco

San Francisco, California 94105

Telephone: (415) 433-0990 SEP 1 5 20 10

Facsimile: (415) 434-1370 BY: WILLIAM TRUPEK

Deputy Clerk

Attorneys for Defendant
ASBESTOS CORPORATION, LTD

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CHARLES TOBEY, Case No. CGC-07-274226

Plaintiff, DEFENSE MOTION IN LIMINE TO
LIMIT THE TESTIMONY OF CHARLES -
AY AND REQUEST FOR EVIDENCE
CODE §§ 402 AND 403 HEARING

ve

ASBESTOS DEFENDANTS (B*P),
Trial: September 21, 2010
Time: 2:30 a.m.

Dept.: 505

Judge: Hon. John K. Stewart

Defendants.

ee et Nl Se el

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Defendant Asbestos Corporation Ltd. (“ACL”), prior to trial
and before the selection of a jury, hereby moves the court, in limine, for an order limiting the
testimony of Charles Ay, a Long Beach Naval Shipyard insulator, whom plaintiffs counsel has
designated as an “expert” at the trial and whom they have announced that they intend to call. This
motion is made on the grounds that 1) Charles Ay does not possess the requisite skill or
qualifications necessary to offer any opinions about plaintiffs work premises, facilities or job sites
relevant to the claims against defendants; and 2) Charles Ay’s opinions in this case are based upon

pure speculation and conjecture, are not relevant to any issues in this case, and are more prejudicial

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DEFENSE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF CHARLES AY AND REQUEST FOR
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545106.1than probative. Mr. Ay’s testimony should be limited to testimony concerning occupations and
locations where he qualifies as an expert.
1. INTRODUCTION

Plaintiff claims to have developed an asbestos-related disease as a result of various
exposures to asbestos through his prior employment. Plaintiff intends to have Charles Ay testify at
trial as an expert. However, Mr. Ay is in no way qualified to testify as an expert. Mr. Ay has only
a high school diploma, and is admittedly not an industrial hygienist. He is simply a former Long
Beach Naval Shipyard shipboard insulator who has made a second career as a self-styled “expert”
for plaintiff law firms in asbestos litigation. Furthermore, Mr. Ay fails to base his opinions on
relevant facts, a proper methodology, or any other suitable foundation for expert testimony.

In addition, although plaintiff claims he was exposed to asbestos through his work at
numerous job sites, Mr. Ay never worked, visited, or conducted asbestos-related studies at these
specific locations during the relevant time periods, with the possible exception of the Long Beach
Naval Shipyard. Therefore, in addition to being unqualified to give an expert opinion, Mr. Ay also
lacks any specific knowledge with respect to most of the locations where plaintiff was allegedly

harmed.
I. ARGUMENT

A. CHARLES AY DOES NOT POSSESS THE REQUISITE KNOWLEDGE,
TRAINING, OR SKILL NECESSARY TO QUALIFY AS AN EXPERT

“A person is qualified to testify as an expert if he has special knowledge, skill, experience,
training or education sufficient to qualify him as an expert on the subject to which his testimony
relates.” Evidence Code § 720(a). The court may require a show of foundation before allowing an

expert to state his opinion. Evidence Code § 802. Section 802 provides:

A witness testifying in the form of an opinion may state on
direct examination the reasons for his opinion and the matter
(including, in the case of an expert, his special knowledge, skill,
experience, training, and education) upon which it is based, unless he
is precluded by law from using such reasons or matter as a basis for
his opinion. The court in its discretion may require that a witness
before testifying in the form of an opinion be first examined
concerning the matter upon which his opinion is based.

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DEFENSE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF CHARLES AY AND REQUEST FOR
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545106.1The court may exclude opinion testimony based on an improper matter, Evidence Code
§803. Absent a proper and sufficient foundation, a person cannot testify as an expert witness.
Courts have an obligation to limit expert testimony to areas within the demonstrated expertise of the
expert witness. Korsak v. Atlas Hotels, Inc. (1992) 2 Cal. App.4th 1516, 1523.

Plaintiff has failed to establish that Mr. Ay is qualified as an expert. Mr. Ay is expected to
testify with respect to the identification, applications, and removal of asbestos and asbestos-
containing products on board ships and at land-based facilities. Mr. Ay is also expected to testify
about the results of air sampling he conducted at some of the plaintiffs’ work sites (though not when
plaintiff was at those work sites), as well as about the release of asbestos fibers during the use,
installation and/or removal of products or materials alleged to contain asbestos.

Mr. Ay, however, has absolutely no special knowledge, experience or training regarding the
subject matter of his opinions. Mr. Ay is not a certified industrial hygienist. He is therefore not
competent to render any opinions or conclusions regarding any air sampling he might have
conducted in connection with this case. He is likewise incompetent to render any opinions or
conclusions regarding the alleged release of asbestos fibers into the air at any of the premises,
facilities or job sites at issue in this case. Such issues may only be addressed by a qualified
industrial hygienist with the requisite educational background and training.

B. CHARLES AY’S OPINION IS NOT BASED ON A MATTER REASONABLY
RELIED UPON UNDER EVIDENCE CODE §801

The opinion testimony of an expert witness is limited to those opinions which are based on
matters personally known to the expert or made known to him at or before the hearing that are of a
type that reasonably may be relied upon by the expert in forming an opinion on the subject matter
of his testimony. Evidence Code § 801(b). Courts have an obligation to require adequate
foundation for an expert opinion, Korsak, supra, 2 Cal-App.4th at 1523. Matters which
“reasonably may be relied upon” by the expert in forming his opinion depend on the circumstances
but cannot be speculation or conjecture. Jd. at 1524. When an expert has no training or personal

research that would inform him about a subject matter, that expert’s opinion with regard to the

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subject matter is mere speculation and must be excluded. Id. at 1526-27. If an expert opinion is not
based on facts otherwise proved, it is not substantial evidence worthy of admission. Hyatt v. Sierra
Boat Co. (1978) 79 Cal.App.3d 325, 338-39. See Garza v. Workmen's Compensation Appeals
Board (1980) 3 Cal.3d 312, 318 n.3 (where an expert did not completely examine the petitioner and
the expert’s opinion appears to be based on tangential information, the opinion is based on “guess,
surmise or conjecture, rather than relevant probative fac ” and cannot constitute substantial
evidence).

Reliable expert testimony should constitute genuine knowledge in the expert’s field, and to
that end, a court examines both the impartiality of the expert and the validity of the expert’s
opinion. Pac. Gas & Elec. Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1127. This
determination turns on the reliability of the underlying facts or data upon which the expert’s opinion
js based, the methodology used by the expert, and the application of the methodology to the facts of
the case. Ifthe substantive foundation for the opinion is unreliable, the opinion itself is unreliable.

Mr. Ay has no special knowledge regarding these topics and has provided no legitimate
testing results, research or facts whatsoever to substantiate any opinion he might offer pertaining to
the friability of insulation and/or the identification of specific suppliers of fiber to particular
manufacturers. See Korsak, supra, 2 Cal. App4th at 1526 (an opinion is not admissible where the
information relied on by the expert was not from a scientific study, survey or investigation).
“[E]ven an expert witness cannot be permitted just to testify in a vacuum by (sic) things that he
might think could have happened.” Hyatt, supra, 79 Cal_App.3d at 338. Mr. Ay has provided no
scientific data or facts, items reasonably relied upon for the formation of an expert opinion, in
support of his opinion. Mr. Ay’s opinions related to plaintiff's purported exposure to asbestos from
insulating materials consist of mexe conjecture and speculation and cannot be admitted under

Evidence Code §801(b).

Plaintiff has failed to demonstrate that Mr. Ay has the requisite training, experience, and

skill to testify about the issues relevant to this case. Because Mr. Ay has not and cannot meet the

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DEFENSE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF CHARLES AY AND REQUEST FOR
EVIDENCE CODE §§ 402 AND 403 HEARING
545106.1qualification requirement of Evidence Code §§702(a) and 720, he should be precluded from
testifying as an expert.
Cc TESTIMONY REGARDING PLAINTIFf£’S PRIOR JOBSITES WHERE
MR. AY NEVER WORKED, VISITED, OR CONDUCTED ASBESTOS-

RELATED STUDIES DURING RELEVANT TIME PERIODS MUST BE
EXCLUDED

Mr. Ay has no knowledge of plaintiffs working conditions at locations where Mr. Ay was
not present when plaintiff worked at the locations. He does not know and has never worked with
plaintiff. (1) Mr. Ay has never worked in any.capacity at the locations at which plaintiff was
present for the work in question here; (2) he has never visited sites in question, (3) he did not do any
studies during relevant time periods of the working conditions (including asbestos exposure studies)
at the locations where plaintiff alleges that he was exposed to Defendants’ fiber; (4) Mr. Ay has no
personal information regarding the brands or manufacturers of insulating materials that plaintiff
worked with or around nor does he have any information regarding asbestos fiber suppliers to those
manufacturers. Mr. Ay is simply not qualified to testify about plaintiff's alleged exposure to
asbestos-containing materials.

In the present case, plaintiff and/or co-worker witnesses can testify about the nature and
extent of his exposure to asbestos. Further, plaintiff can call available witnesses who actually
worked at the locations at which he worked during the relevant time periods. Where such “personal
knowledge” witnesses are available, the testimony of someone. who never worked at or even visited
those sites should not be allowed. Such testimony would involve the undue consumption of time by
the introduction of cumulative information. At a minimum, the probative value of such speculative
testimony would be outweighed by the prejudice to Defendants. California Evidence Code Section
352.
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DEFENSE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF CHARLES AY AND REQUEST FOR
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545106.1D. THE TESTIMONY OF CHARLES AY SHOULD BE EXCLUDED BECAUSE
HE IMPROPERLY PROFFERS PLAINTIFF’S INTERROGATORY
RESPONSES

California Code of Civil Procedure §2030.410 provides that “any party other than the
responding party” may use interrogatory responses at trial. C.C.P. §2030.410. The principal reason
for not allowing the use of interrogatories as evidence on behalf of the answering party is the fact
that there is no opportunity for cross-examination. Jn Re Estate of Horman (1968) 265 Cal.App.2d
796, 805. Answers to interrogatories “by their very nature... contain self-serving facts.” Id,

Generally, plaintiff's counsel provides Mr. Ay with a pared down copy of plaintiff's
interrogatory responses. A copy of this “exhibit” is then provided to defense counsel for deposition.
The opinion testimony of Charles Ay is predicated upon these documents and his opinions cannot
be presented without revealing the unsubstantiated factual allegations therein. In this respect,
plaintiff is attempting to improperly introduce interrogatory responses before the jury through Mr.
Ay. By this method plaintiff precludes defense counsel from cross-examining the very basis of the
claims against them.

‘This practice is in violation of C.C.P. §2030.410. As such, the court may exclude opinion
testimony based on an improper matter. Evidence Code § 803. Furthermore, Evidence Code §804,
which covers opinion based on opinion or statement of another states that “nothing in this section
makes admissible an expert opinion that is inadmissible because it is based in whole or in part on
the opinion or statement of another person.” The only exception is the Kelley rule. See Kelley v.
Bailey (1961) 189 Cal.App.2d 728. However, the Kelley rule is inapplicable to matters, such as
here, where the expert was hired for litigation purposes to provide expert testimony and the out-of-
court statements are offered for the improper hearsay purpose of independent proof of facts.
Whitfield v. Roth (1974) 10 Cal.3d 874, 894-96.
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E. THE TESTIMONY OF CHARLES AY IS BASED UPON SPECULATION
AND CONJECTURE, AND AS SUCH IS MISLEADING, IRRELEVANT,
AND UNDULY PREJUDICIAL

Under California law, the trial court serves as a sort of gatekeeper to ensure that
inadmissible and prejudicial expert testimony does not reach-the jury. To that end, the court looks
to the proponent of the scientific expert testimony to demonstrate that the evidence is admissible.
People v. Ashmus (1992) 54 Cal.3d 932, 970. The trial court must determine: 1) the reliability the
underlying theories and methodology of the expert’s scientific testimony and the application of the
methodology to his conclusions, 2) the expert's qualifications, and 3} whether the danger of unfair
prejudice, confusion, or misleading the jury outweighs the probative value of the testimony,
pursuant to Evidence Code §352. An expert’s opinion has no evidentiary value if the expert’s
opinion is based on assumptions not supported by the record, upon matters that are not reasonably
relied upon by other experts, or upon factors that are speculative, remote or conjectural. Pac. Gas
& Elec. Co. v. Zuckerman (1987) 189 Cal. App.3d 1113, at 1135. In the context of expert witness
testimony, a new scientific technique must be “sufficiently established to have gained general
acceptance in the particular field to which it belongs.” People v. Kelly (1996) 17 Cal.3d 24, 30.

The testimony of Mr. Ay should be precluded pursuant to Evidence Code §§350 and 352
and for failure to meet the standards set out in Kelly and Zuckerman. Charles Ay has never
personally worked with plaintiff. As such, he knows nothing about plaintiff's specific work at any
given jobsite, nor the locations on a given job site where the plaintiff actually worked. Therefore,
Mr. Ay has no legitimate way of knowing whether plaintiff was actually exposed to asbestos as a
result of his work during the times he worked at any given job site, and any testimony, opinions or
conclusions rendered by Mr. Ay as to the identification, application and removal of asbestos and.
asbestos-containing products at any of plaintiff's job sites necessarily lack foundation, and would
be premised upon pure speculation and conjecture.

If Mr. Ay is permitted to testify as an expert in this case, the jury may give his opinions
more weight than merited simply because he is being characterized as an expert. Furthermore, his

testimony, opinions and conclusions regarding the results of air sampling may mislead a jury into

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DEFENSE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF CHARLES AY AND REQUEST FOR
EVIDENCE CODE §§ 402 AND 403 HEARING
3451061believing that plaintiff was actually exposed to asbestos at the job sites where such sampling was
conducted, and/or that plaintiff was exposed to asbestos allegedly supplied by ACL at the job sites
where such sampling was conducted, even though there is no evidence that (1) the conditions which
might have been present at the time of sampling were the same or substantially similar to those
which existed when plaintiff actually worked at the job site, (2) that plaintiff actually worked in the
locations within a given job site where such air sampling was conducted, and (3) that plaintiff was
actually exposed to asbestos fibers from a product manufactured or distributed by a particular
defendant.

Indeed, the California Court of Appeals have determined the testimony of Charles Ay to be
“speculative” in Andrews v. Foster Wheeler, LLC (2006) 138 Cal. App. 4th 96, 112-113. The
Andrews case involved a plaintiff's alleged exposure to Foster Wheeler asbestos containing
products while serving onboard the USS BRINKLEY BASS. /d. Plaintiff's “evidence” in that case
relied upon the testimony of Charles Ay and another expert. /d. Charles Ay testified that certain
work was “more likely than not” performed onboard this ship and that this work “would more likely
than not release respirable asbestos fibers into the surrounding areas.” Jd. at 112. The Court of
Appeals found Ay’s testimony to be mere speculation that “even under our most lenient review,

‘creates only ‘a dwindling stream of probabilities that narrow into conjecture.” Id. at 112.

Accordingly, Mr. Ay’s testimony as an alleged “expert” should be excluded as unduly
prejudicial, speculative and misleading, and because it lacks the requisite foundation and relevance
to permit its introduction to the jury.

TE. CONCLUSION
For the foregoing reasons, Defendant ACL respectfully requests that this court limit Mr.

Ay’s testimony to topics concerning shipyards, refineries and other locations where he actually
worked, and preclude any testimony related to plaintiff's work, plaintiff's exposure to asbestos, and
the suppliers of fiber in any specific manufacturer’s insulation products. In the alternative,

Defendants move the court to conduct a hearing pursuant to Evidence Code § 402 and 403 to

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determine the relevancy and/or admissibility, if any, of Mr. Ay’s testimony, his asbestos samples,
and his videotapes.

Dated: FyAeby |, 2010 WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP

» o-PGh kA
Mary Effen Gambino ’
Tanya Xiomara Johnson
Attomeys for Defendant

ASBESTOS CORPORATION LTD.

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DEFENSE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF CHARLES AY AND REQUEST FOR
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545106.1