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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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                                BISHOP | BARRY | DRATH
‘A PROFESSIONAL CORPORATION

2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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BISHOP | BARRY | DRATH
MARY MARGARET RYAN. [SBNI27828}

JOHN A. BURKE, [SBN 148385]
DAVID F. BEACH [94847] ELECTRONICALLY
2000 Powell Sireet, Suite 1425 FILED
Emeryville, California 94608 Superior Court of California,
Telephone: (510) 596-0888 County of San Francisco
Facsimile: (510) 596-0899 JUL 20 2011
Clerk of the Court
Attorneys for Defendants BY: WILLIAM TRUPEK
RUDOLPH AND SLETTEN, INC. Deputy Clerk

REDWOOD PLUMBING, INC.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

RODRICK AND JOANN BRECKLER, Case No. CGC 07-274566
Plaintiffs, MOTION IN LIMINE NO. 5

RUDOLPH AND SLETTEN, INC. AND
ASBESTOS DEFENDANTS (B*P), et al., REDWOOD PLUMBING, INC.’S MOTION
IN LIMINE TO EXCLUDE THE
Defendants. TESTIMONY OF CHARLES AY;
REQUEST FOR HEARING PURSUANT
TO EVIDENCE CODE §402

VS.

Date: July 25, 2011
Time: 9:30 am.
Dept: 503

Hon. Teri L. Jackson

Defendants RUDOLPH AND SLETTEN, INC. (hereinafter “R&S”) and REDWOOD
PLUMBING, INC. (hereinafter “RWP”) before trial and ithe selection of a jury, hereby move this
Court pursuant to Evidence Code Section 720 for an order excluding the testimony of plaintiffs’
expert, Charles Ay. In their Master Designation af Expert Witnesses, plaintiffs identify Mr. Ay as
“a journeyman insulator” who “may testify about the identification, application and removal of
asbestos and asbestos-containing products onboard ship and at land-based facilities.” Mr. Ay has

testified for asbestos plaintiffs for many years in this and other courts as an expert on the duties

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RUDOLPH AND SLETTEN, INC. AND REDWOOD PLUMBING, INC'S MOTION IN LIMENE TO EXCLUDE THE TESTIMONY
OF CHARLES AY; REQUEST FOR HEARING PURSUANT TO EVIDENCE CODE $402 — MOTION LIMINE NO. 5BISHOP | BARRY | DRATH
‘A PROFESSIONAL CORPORATION
2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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and work of insulators. However, this motion is made, and should be granted, on the grounds
that:

1, Charles Ay is not competent to offer expert opinion about what a general contractor’s
duties were at jobsites were plaintiffs alleges exposure to asbestos-containing products;
and

2. Mr. Ay is not competent to offer expert opinion about what duties an automobile
mechanic/metal plating operator or facilities maintenance worker, all employment
positions held at one time. in plaintiff Rodrick Breckler’s employment career, were at

land-based jobsites located in Northern California;

3. Alternatively, if the Court is inclined to allow Mr. Ay to testify, R&S and RWP request
that the Court order a brief hearing pursuant to Evid. Code §402 to establish the
preliminary fact relating to of Mr. Ay’s competence to testify as an expert witness on
these issues.

L RELEVANT FACTUAL BACKGROUND

Plaintiff Rodrick Breekler (currently age 61) had worked as an automobile mechanic (for
a total of six years}, a metal plating plant worker (for two years) and a facilities worker and
manager for an electromagnetic equipment/microcomputer product manufacturer (for about 27
years). Plaintiff Joann Breckler is Mr. Breckler’s third wife. They were married in 2006.

In his various employment, Mr. Breckler claims to have been exposed to numerous forms
of asbestos and asbestos containing products. He was diagnosed with kidney cancer in 2007 and
had his left kidney surgically removed. Plaintiff's doctors have reported that his kidney cancer
was slow growing, low grade (grade I on a scale of I to IV) carcinoma and are optimistic that
plaintiff is cured of cancer.

Despite having (1) an extensive cigarette smoking history (51 to 76 pack years), (2) being
morbidly obese (plaintiff is 5°3” tall, weighs 243 pounds in April, 2011 and has a 36.1 body mass
index), and (3) suffers from hypertension, plaintiff claims that his cancer is caused by his
exposure to asbestos and asbestos products. In his complaint, plaintiff alleges causes of action for

negligence, products liability, false representation and premises owner/contractor liability.
2.

RUDOLPH AND SLETTEN, INC, AND REDWOOD PLUMBING, INC.’S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY
OF CHARLES AY; REQUEST FOR HEARING PURSUANT TO EVIDENCE CODE §402 — MOTION LIMINE NO. 5BISHOP | BARRY | DRATH

A PROFESSIONAL CORPORATION

2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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Mrs. Breckler cites causes of action for loss of consortium.
After unsuccessful attempts at settlement, the parties have completed their extensive
discovery. This case is set to begin jury trial on July 18, 2011.
A. This Court Has The Inherent Power To Control The Trial And Grant Motions In
The purpose of a motion in limine is to exclude evidence before it is offered is to avoid the
obviously futile attempt of “unring(ing) the bell" in the event a motion to strike is granted in the
proceedings before the jury. Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3" 325, 337, citing to Cal.
Evid. Code §402 and Brosnahan, Trial Handbook for Cal. Lawyers (1974) § 206, p. 252.

There is no statutory authority, which governs a motion in limine. Clemens v. American
Warranty Corp. (1987) 193 Cal.App.3" 444, 451. The Court has the inherent power to grant a
motion in limine to exclude “any kind of evidence which could be objected to at trial, either as
irrelevant or subject to discretionary exclusion as unduly prejudicial.” Jd; see also Peat, Marwick,
Mitchell & Co, y. Sup. Ct, (1988) 200 Cal.App.3d 272, 288. This is significant because it means
there is no statutory guidance as to how the motion must be presented, the scope of the issues or
evidence to which the motion may be directed, or the materials and evidence upon which a court
may rely in deciding the motion. See 1 Wegner, er al, Civil Trials & Evidence §4:225.1 at pp. 4-
50, 4-51 (Rutter Group). However, notwithstanding this lack of statutory guidance, the use of

motions in limine is well recognized in practice and case law. Clemens, supra, 193 Cal.App.3@ at

451; People v. Morris (1991) 53 Cal.3" 152, 188.

The Court’s authority to hear and rule on motions in limine may be implied from the
| cous inherent power to provide for the orderly conduct of proceedings and to control its
processes and orders to make them conform to law and justice. C.C.P. §§728(a)(3), 128(a)(8). The

Court may grant the motion in limine to prevent opposing counsel from referring to a prejudicial

matter that might create a negative inference in the juror’s minds, even though the are instructed to

disregard it. See California Judges Benchbook, Civil Trials, (CTER 1981), p. 72. A court in its

discretion may exclude evidence if its probative value is substantially outweighed by the
“3.

RUDOLPH AND SLETTEN, INC, AND REDWOOD PLUMBING, INC,’S MOTION IN LIMINE TO EXCLUDE THE TESEIMONY
OF CHARLES AY; REQUEST FOR HEARING PURSUANT TO EVIDENCE CODE §402 - MOTION LIMINE NO. 5BISHOP | BARRY | DRATH

‘A PROFESSIONAL CORPORATION
2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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probability that its admission would create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury. Cal. Evid. Code $352. In addition, irrelevant evidence is

inadmissible. Jd. §350.

B. Charles Ay Is Not Qualified or Competent To Testify as an Expert on the Duties and
Activities of an Automobile Mechanic/Metal Plating Operator or Facilities Maintenance
Worker, All Employment Positions Held at one time in Plaintiff Rodrick Breckler’s
Employment Career, in Northern California in the 1960’s and 1970s

An expert witness must be competent on the issues he or she seeks to testify to at trial.
Evidence Code §720 provides in pertinent part:

“(a) 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, Against the objection of a party, such

special knowledge, skill, experience, training, or education must be shown before
the witness may testify as an expert.

“The qualifications of an expert witness are finally determined by the trial judge, without
resubmission of the issue to the jury.” People v. King (1968) 266 Cal_-App.2d 437, 444. It is well
settled that an expert's qualifications must be established with respect to the subject matter of his
testimony. The fact that a purported expert may be qualified in one field related to another does

not mean that he is qualified in that other field. See California Shoppers, Inc. v. Royal Globe Ins.
Co. (1985) 175 Cal.App.3d 1, 66-67; see Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d

1062, 1081 (although doctor was an expert on the fabrication and use of a catheter, he was not
qualified to offer opinions on the tubing's chemical composition, its tensile strength, or its
material construction where his only experience in this regard consisted of a visual and tactile
examination.)

In the present action, Mr. Ay is not qualified or competent to offer expert opinion on
whether an automobile mechanic/metal plating operator or facilities maintenance worker, all
employment positions held at one time in plaintiff Rodrick Breckler’s employment career, at
land-based construction sites in northern California in the 1960’s and 1970’s could have been
| exposed to asbestos. As detailed above, Mr. Ay lacks the requisite special knowledge, skill,

experience, training, or education in the subject matter. While he might be qualified as an expert

to testify as to the opportunities for exposure that a civilian insulator such as himself faced on a

ade

RUDOLPH AND SLETTEN, INC. AND REDWOOD PLUMBING, INC.’S MOTION IN LUMINE TO EXCLUDE THE TESTIMONY
OF CHARLES AY; REQUEST FOR HEARING PURSUANT TO EVIDENCE CODE §402 - MOTION LIMINE NO. 5BISHOP | BARRY | DRATH
‘A PROFESSIONAL CORPORATION

2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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Navy ship, this does not mean that he is qualified to testify as to the opportunities for exposure
faced by an automobile mechanic/metal plating operator or facilities maintenance worker, like
plaintiff Rodrick Breckler. He is similarly unqualified to discuss or offer opinions on the
standard of care for general contractors. Since Mr. Ay is not qualified on the subject matter at
issue, he should not be allowed to testify as an expert witness for plaintiffs.

C, R&S and RWP Request An Evidence Code §402 Hearing

In the alternative, if the Court is inclined to allow Mr. Ay to testify regarding his opinions,
R&S and RWP request that the Court allow R&S and RWP a brief hearing, outside of the
presence of the jury, pursuant to Evidence Code §402, to determine whether Mr. Ay is qualified
and competent to testify at trial on this issue.

i CONCLUSION

For all of the foregoing reasons, R&S and RWP respectfully request an order from this
court precluding plaintiffs and their counsel from calling Charles Ay to testify as an expert
witness against R&S and RWP at trial. Alternatively, R&S and RWP request a hearing, outside
the presence of the jury, pursuant to C.C.P. §402, to determine Mr. Ay’s expert qualifications and

competency.

DATED: July 19, 2011 BISHOP | BARRY | DRATH

eccea—

DAVID F. BEACH

Attorneys for Defendants

RUDOLPH AND SLETTEN, INC. and
REDWOOD PLUMBING, INC.

5.

RUDOLPH AND SLETTEN, INC. AND REDWOOD PLUMBING, INC.’S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY
OF CHARLES AY; REQUEST FOR HEARING PURSUANT TO EVIDENCE CODE §402 ~ MOTION LIMINE NO. 5BISHOP | BARRY | DRATH

A PROFESSIONAL CORPORATION

2000 Powell Street, Suite 1425, Emeryville, California 94608

Tel. No. (510) 596-0888 Facsimile (510) 596-0899

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Breckler, Rodrick and Joann v. Asbestos Defendants
San Francisco Superior Court Action Ne.CGC-08-274566

PROOF OF SERVICE BY LEXIS NEXIS

I, the undersigned, certify that 1 am employed in the County of Alameda, State of
California, that I am over the age of eighteen years and not a party to the within action. My
business address is BISHOP | BARRY | DRATH, 2000 Powell Street, Suite 1425, Emeryville,
California 94608. My electronic address is «Professional Internet E-mail: Type User».

On the date below written I served the following document(s):

1. RUDOLPH AND SLETTEN, INC. AND REDWOOD PLUMBING, INC.’S MOTION IN
LIMINE TO EXCLUDE THE TESTIMONY OF CHARLES AY; REQUEST FOR
HEARING PURSUANT TO EVIDENCE CODE §402 — MOTION IN LIMIENE NO. 5

by transmitting a true copy to:
*** All Counsel on Lexis Nexis Service List*** in the following manner:

By uploading a true copy(ies) thereof with service and/or notification pursuant to the
service list as maintained by the CourtLink eFile system:

(X) (By LEXIS/NEXIS File & Serve, fka CourfLink eFile)) I caused such document to be
electronically uploaded inte the LexisNexis File & Serve system
(http://www. lexisnexis.com/courtlink/) pursuant to Court Order on the date listed below.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct to the best of my knowledge.

This declaration was executed on July 20, 2011, at Emeryville, California.

x

ROSITA GARAY

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RUDOLPH AND SLETTEN, INC. AND REDWOOD PLUMBING, INC.’S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY
OF CHARLES AY; REQUEST FOR HEARING PURSUANT TO EVIDENCE CODE §402 - MOTION LIMINE NO. 5