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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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                                4 || Kenneth J. McCarthy - SBN 120875
Gregory D. Pike - SBN 124847

2 | KNOX RICKSEN LLP ELECTRONICALLY
1300 Clay Street, Suite 500
3 || Oakland, CA 94612-1427 si F I L E D .
Telephone: (510) 285-2500 County of San Francisco
4 | Facsimile: 510) 285-2505
61) JUL 05 2011
5 || Attorneys for Defendant Clerk of the Court
BIGGE CRANE AND RIGGING CO. BY: JUDITH NUNEZ
6 eputy Clerk
7
SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO
8
Q
= RODRICK BRECKLER and JOANN No, CGC-08-274566
- 10 | BRECKLER,
BIGGE CRANE & RIGGING
41 Plaintiff, COMPANY’S MOTION IN LIMINE
Z NO. 5:
ba 12 v.
aD TO PRECLUDE LAY WITNESS
v 13 | ASBESTOS DEFENDANTS (BP). et al., TESTIMONY REGARDING PRODUCT
COMPOSITION
vO 14 Defendants.
_ _ Trial Date: July 11, 2001
oe 15 Dept. : 206
Time: 11:15 a.m,
yet 16 Judge: TBD
Action Filed: March 12, 2008
o 17
Z.
18
I. INTRODUCTION
19
Defendant BIGGE CRANE AND RIGGING CO (hereinafier “BIGGE”) anticipates that
20 plaintiff may try to circumvent the well-established rule that opinion testimony that goes beyond the
a scope of a witness’ perceptions requires expert testimony. BIGGE thus requests that this Court
22

preclude any attempt to elicit lay witness opinion testimony regarding whether a product did or did
23 | not contain asbestos. Such opinion testimony clearly goes far beyond the permissible scope of a lay
24 | witness’ permitted testimony regarding his/her perception and, instead, would call for conjecture on
25 || the part of the witness. It is exactly the type of subject matter for which expert opinion is required.
26 || As such, any opinion testimony regarding whether a product did or did not contain asbestos should

27 || be limited to the parties’ expert witnesses.

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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE #5LLP

KNOX RICKSEN

I, ARGUMENT

A. A LAY WITNESS IS NOT PERMITTED TO PROVIDE OPINIONS ON SUBJECT
MATTERS BEYOND THE WITNESSES PERCEPTION.

Lay opinion testimony regarding the composition of products is not permitted under
California law. Unless a witness is testifying as an expert, his or her opinion testimony is generally
limited to an opinion that is rationally based on the witness’ perception and helpful to a clear
understanding of his or her testimony. Cal. Evid. Code § 800. A question asking a lay witness to
give an opinion not based the witness’ perception calls for an answer based on impermissible
speculation or conjecture. People v. Glancy (1956) 142 Cal. App. 2d 669, 680.

Further, a lay witness’s opinion regarding the composition of materials would clearly be
impermissibly based upon hearsay, as it would require the out-of-court reading of documents or out-
of-court discussions with third parties regarding the material's composition. The lay witness thus
cannot testify regarding the composition of the material he worked with or around because that

would clearly require speculation on the part of the witness and is thus prohibited by California law.

B. THE PURPOSE OF EXPERT TESTIMONY IS TO OPINE ON SUBJECTS
RELATED TO THE COMPOSITION OF MATERIALS THAT THE WITNESS
WORKED WITH AND AROUND.

The opinion testimony of an expert is sought when the opinion is related to a subject
sufficiently beyond common experience and would thus assist the trier of fact. Cal. Evid. Code §
801(a), Here, the composition of materials with or around which plaintiff worked is beyond the
common knowledge of the lay person and is thus exactly the type of testimony for which an expert
is required.

Further, an expert's opinion may be based on matters that are not admissible as evidence,
such as hearsay. Cal. Evid. Code § 801(b). Nortica v. State Compensation Insurance Fund, (1999)
70 Cal_App.4th 911, 932-933 (expert witness, who gave opinion as to why insurance carrier had
changed its reserve guideline, based opinion, in part, on interview with insurer's president that

appeared in trade publication).
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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE #5LLP

KNOX RICKSEN

Thus, the composition of materials with or around which the plaintiff worked is firmly
within the ambit of expert testimony. As such, the proper way for a party to explore the
composition of any materials at trial is through his or her expert.

HI. CONCLUSION

Testimony pertaining to the composition of materials with or around which the plaintiff]
worked calls for opinion testimony that is sufficiently beyond the common experience of a lay
person and, thus requires expert testimony. It also would inevitably be based upon hearsay
discussions or transactions. As such, BIGGE respectfully requests this Court to preclude lay

witness testimony regarding products’ composition,

DATED: July 1, 2011 KNOX RICKSEN LLP

By:_/s/ Gregory D. Pike

Gregory D. Pike

Attorneys for Defendant

BIGGE CRANE AND RIGGING CO.

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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE #5LLP

KNOX RICKSEN

Re:  Breckler y. Asbestos Defendants (BP), et al.
San Francisco Superior Court No. CGC-08-274566

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

L, the undersigned, declare: that | am and was at the time of service of the documents herein referred
to, over the age of 18 years, and not a party to the action; and 1 am employed in the County of
Alameda, California, My business address is 1300 Clay Street, Suite 500, Oakland, California
94612-1427.

On the date executed below, I electronically served the document(s) via LexisNexis File & Serve
described as:

BIGGE CRANE & RIGGING COMPANY’S MOTION IN LIMINE NO, 5:
TO PRECLUDE LAY WITNESS TESTIMONY REGARDING PRODUCT COMPOSITION
on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve

website. I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and was executed on July 1, 2011, at Oakland, California,

/s/ Lauren Ferrara
Lauren Ferrara

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BIGGE CRANE AND RIGGING CO.’S_ MOTION IN LIMINE #5