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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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                                TUCKER ELLIS & WEST LLP
EVAN C. NELSON — STATE BAR NO. 172957

NICOLE GAGE - STATE BAR NO. 208658 ELECTRONICALLY
135 Main Street, Suite 700 FILED
San Francisco, California 94105 ‘ ork
Telephone: 415.617.2400 “County of San Francisco
Facsimile: 415.617.2409 JUL 05 2011

Email Addresses: Evan.Nelson@tuckerellis.com,

Nicole.Gage@tuckerellis.com Clerk of the Court

BY: RAYMOND K. WONG

Attommeys for Defendant Depuly Clerk
ROCKWELL AUTOMATION, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and JOANN CASE NO. CGC-08-274566

BRECKLER,
DEFENDANT ROCKWELL

Plaintiffs, AUTOMATION, INC.’S MOTION IN
LIMINE TO PRECLUDE EXPERT
v. TESTIMONY AND EVIDENCE

REGARDING THE SPECULATIVE

ALLIS-CHALMERS CORPORATION FIBER DRIFT THEORY OF EXPOSURE

PRODUCT LIABILITY TRUST, TO ASBESTOS

{MOTION IN LIMINE NO. 22]

Defendants. Judge: Harold E. Kahn
Dept.: 220

Complaint filed: March 12, 2008
Trial Date: July 11,2011

ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:

ROCKWELL AUTOMATION, INC. (herein “Defendant”), prior to trial and selection of
a jury, moves this court in dimine for an order precluding plaintiffs from introducing expert
testimony and/or evidence regarding potential exposure to asbestos by way of its alleged “drift”
or “re-entrainment” throughout Rodrick Breckler’s work sites (hereinafter referred to as the
“fiber drift theory”). Alternatively, defendant requests an evidentiary hearing to determine
whether a “fiber drift theory” satisfies the legal standard governing the introduction of scientific
evidence.

This motion is made on the grounds that: 1) any testimony or evidence regarding a “fiber

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ROCKWELL’S MOTION IN LIMINE #22

O1 1682 \ 001 248 \ 226217_1.D0Cdrift theory” is speculative, unscientifically based, and must be excluded pursuant to the Kelly
formulation, which governs the admissibility of expert testimony regarding new scientific
methodology or techniques in this state; and 2) Plaintiffs’ experts cannot, by law, testify to
possible exposure based upon a “fiber drift theory” because they would be relying on speculative
evidence that has not been scientifically tested nor generally accepted in the scientific
community.

I. THE “FIBER DRIFT THEORY”

Defendant anticipates that plaintiffs will attempt to proffer expert testimony that all
workers will be exposed to asbestos indirectly while working because once asbestos fibers are
released into the air of any work environment -- by way of the removal or replacement of
damaged insulation, for example -- those fibers will inevitably drift throughout the rest of the
work site, exposing all workers at the site.

However, this “fiber drift theory” of exposure, upon which plaintiffs seek to rely to
establish the requisite clement of exposure to asbestos (where none has occurred) is based upon
nothing more than rank speculation and conjecture, and is unsupported by any substantive
studies. Therefore, any testimony and/or evidence utilizing or relying upon this theory to support
a claim of exposure to asbestos must be precluded.

Il. EVIDENCE REGARDING A “FIBER DRIFT THEORY” IS SPECULATIVE,

UNSCIENTIFICALLY BASED AND UNRELIABLE, AND MUST BE
EXCLUDED PURSUANT TO THE “KELLY FORMULATION”

In the landmark case of People v. Kelly, 17 Cal. 3d 24 (1976), the California Supreme
Court set forth certain “general principles of admissibility” pertaining to expert testimony based
on new scientific techniques.

Under the “Kelly formulation,” evidence based upon a new or novel scientific method,
technique or device may only be received in evidence if the following factors are shown:

qd) The reliability of the method must be established, usually by expert testimony,

(2) The witness furnishing such testimony must be properly qualified as an expert to

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ROCKWELL'S MOTION IN LIMINE #22

011682 \ 001248 \226217_1. DOCus

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give an opinion on the subject; and

(3) The proponent of the evidence must demonstrate that correct scientific procedures
were used in the particular case.
Kelly, 17 Cal. 3d 24, 30; People v. Leahy, 8 Cal. 4th 587, 594 (1994).

Reliability is the key element of the Kelly formulation. To satisfy this element, the
proponent of the evidence must show that the new method, technique or study has been
“sufficiently established to have gained general acceptance in the particular field in which it
belongs.” Kelly, 17 Cal. 3d 24, 30; and People y. Lealy 8 Cal. 4th $87, 604.

Defendant submits that a “fiber drift theory” of claimed asbestos exposure fails to meet
the standards of admissibility set forth in Ke//y and must therefore be excluded, for the following
reasons:

First, plaintiffs cannot prove the reliability of the “fiber drift theory” because said theory
has not been properly tested. No scientifically-based studies of alleged bystander exposure to
levels of asbestos above background or ambient levels based on the purported “drift” of the
asbestos throughout Rodrick Breckler’s work sites can be cited by plaintiffs’ experts. More
importantly, no such tests were ever performed at the work sites at issue in this case, under
working conditions similar to those that occurred in plaintiffs’ work environment. On all levels
of analysis, a “fiber drift theory” of exposure is completely speculative.

Second, Kelly requires that a consensus in the scientific community be achieved before a
new technique or study is deemed “reliable.” People v. Guerra, 37 Cal. App. 3d 385, 418 (1984);
People v. Reilly, 196 Cal. App. 3d 1127, 1148 (1987) [test met if technique is supported by clear
majority of members in relevant scientific community]. Indeed, “something more than the bare
opinion of one expert, however qualified, is required.” Keély, supra, 17 Cal.3d at p37: People v.
Shirley 31 Cal.3d 18, 52 (1982). Here, there is simply no evidence of a consensus in the
scientific community regarding a “fiber drift theory.” Plaintiffs have not proffered any data or
studies that have been generally accepted by the medical and/or scientific communities ta

support this theory. Plaintiffs also have not cited any peer-reviewed articles, books, scientific

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ROCKWELL’S MOTION IN LIMINE #22

OVLGR2 \ 001248 \226217_1.D0Cliterature or technical publications showing that any “fiber drift theory” of exposure has been
generally accepted in any scientific community. Since “the views held by a typical cross-section
of the scientific community, including representatives who oppose or question the new
technique, must be taken into consideration” (see Kelly, 17 Cal. 3d at p. 37 [emphasis added]),
upon closer examination, it is clear that there is no support whatsoever for the “fiber drift
theory.”

Third, it is the Court’s duty to determine whether a new study or technique has in fact
attained general acceptance in the relevant scientific community. Peeple v. Axell, 235 Cal. App.
3d 836, 854 (1991); and see CAL. EviD. CODE § 730 [holding that a trial court should take
affirmative steps to assure that an accurate depiction of the views held by the scientific
community is placed before the court]. In determining general acceptance, trial courts should
consider such factors as: (1) the potential rate of error in the studies; (2) the existence and
maintenance of standards to which the studies adhered; (3) the care and concern with which a
scientific study has been employed, and whether the study appears to lend itself to abuse; (4) the
relationship with other types of scientific studies, and their results; and (5) the presence of
“failsafe” characteristics. People y. Pizzaro, 10 Cal. App. 4th 57, 76 (1992).

Applying the foregoing criteria to a “fiber drift theory” exposes its invalidity. Plaintiffs
cannot submit any evidence that a “fiber drift theory” of exposure to asbestos above background
or ambient levels withstands scrutiny under these factors. The theory cannot be shown to be the
result of multiple studies performed by recognized experts in fields of legitimate scientific study
under established scientific standards. Therefore, while defendant contends that any “fiber drift
theory” of exposure is baseless, even if the Court wanted to further consider the basis for the
theory in light of the aforementioned factors, it could not do so, because plaintiffs simply have
no evidence (such as tests or studies) that could be so evaluated. Consequently, the Court should
conclude that any “fiber drift theory” is not based on science or studies that have been generally
accepted by the scientific community.

‘if

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ROCK WELL'S MOTION IN LIMINE #22

011682 5001248 \ 226217_1.DOCIll. ANY PROFFERED TESTIMONY OR EVIDENCE REGARDING THE “FIBER
DRIFT THEORY” MUST BE PRECLUDED AS A MATTER OF LAW BECAUSE
AN EXPERT CANNOT RELY ON SPECULATIVE MATTERS WHICH HAVE
NEITHER BEEN TESTED NOR WIDELY ACCEPTED

Evidence Code § 801(b) provides that an expert may not base his or her opinion on any
matter that has been declared by law to be an improper basis for an opinion. As discussed more
fully above, expert testimony based upon “scientific” evidence that does not satisfy the Kelly
standards, such as a “fiber drift theory,” is therefore improper.

Any expert’s use of a “fiber drift theory” to manufacture evidence of Rodrick Breckler’s
exposure to asbestos would be improper because the methodology used in forming the theory is
neither reliable nor generally accepted by any recognized body of independent, objective
evaluators. Furthermore, this theory is not of a type reasonably relied upon by experts in
industrial hygiene and/or occupational health in forming opinions regarding asbestos exposure
above the de minimis background or ambient levels that everyone experiences.

In Andrews v. Foster Wheeler LLC, 138 Cal. App. 4th 96 (2006), the appellate court
upheld a motion for summary judgment where the opposition consisted of two experts testifying
that the work on the defendant’s equipment would have released asbestos fibers that would have
been re-entrained throughout the ship through the ventilating system. The appellate court found
that the experts proffered declaration did nothing more than create “a dwindling stream of
probabilities that narrow into conjection.” Andrews, 138 Cal. App. 4th 96, 112 (quoting
MeGonnell v. Kaiser Gypsum Co. (2002) 98 Cal. App. 4th 1098, 1105).

To allow plaintiffs to attempt to prove exposure to asbestos at a particular job site, based
upon a speculative theory that does not meet the Kelly criteria is contrary to law and must be
precluded.

IV. ANY TESTIMONY OR EVIDENCE REGARDING A “FIBER DRIFT THEORY”

SHOULD BE EXCLUDED PURSUANT TO CALIFORNIA EVIDENCE CODE
SECTION 352

Evidence Code section 352 permits the court to exclude any evidence if its probative

value is outweighed by its prejudicial effect, or if its introduction would necessitate an undue

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ROCKWELL’S MOTION IN LIMINE #22

O11682 § 001248 \ 226217_1.DOCconsumption of time. Plaintiffs will likely argue that their proposed expert testimony regarding a
“fiber drift theory” is probative, in that it will help “explain” to the jury the nature of asbestos
exposure at Rodrick Breckler’s work sites and detail one of the ways workers at those sites could
have been exposed. However, since such testimony is completely speculative and not
scientifically based, it is irrelevant, and not probative of any issue of exposure properly before
this court:

Furthermore, plaintiffs’ allegations of asbestos exposure based on a “fiber drift theory” are
overwhelmingly prejudicial to Defendant. Although such a theory is unproven and unreliable, a
jury would undoubtedly view it in a favorable light and conclude that it is based upon “science,”
because jurors tend to give excessive weight to “scientific” evidence presented by experts. See
Kelly, supra, 17 Cal. 3d at 31 [scientific proof typically assumes a posture of “mystic
infallibility’ in jury’s eyes]. Admitting expert testimony or evidence based upon this
scientifically unsupported theory of exposure would severely prejudice defendants because the
jury is likely to give credence to a faulty, unproven premise, and will consider a possibility of
exposure to asbestos that is, in reality, completely speculative.

Vv. CONCLUSION
Defendant respectfully request that this Court exclude all expert testimony and evidence
regarding plaintiffs’ speculative “fiber drift theory” of liability at the trial of this action.
Alternatively, Defendant requests an evidentiary hearing to determine whether a “fiber
drift theory” satisfies the legal standard governing the introduction of scientific evidence.

DATED: July 5, 2011 TUCKER ELLIS & WEST LLP

Nicole E. Gage
Attomey for Defendant
ROCKWELL AUTOMATION INC.

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ROCK WELL’S MOTION IN LIMINE #22

911682 5001248 \ 226217_1.DOCRodrick Breckler et al. v. Allis-Chalmers et al.
San Francisco County Case No. CGC-08-274566

PROOF OF SERVICE
I, the undersigned, declare: that I 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 I am employed in
the County of San Francisco, State of California. My business address is 135 Main Street, Suite
700, San Francisco, California 94105. My electronic notification address is
rene.paufve@tuckerellis.com.
On the date executed below, | electronically served the document via LexisNexis File &

Serve described as:
DEFENDANT ROCKWELL AUTOMATION, INC.’S MOTION IN LIMINE TO
PRECLUDE EXPERT TESTIMONY AND EVIDENCE REGARDING THE

SPECULATIVE FIBER DRIFT THEORY OF EXPOSURE TO ASBESTOS
[MOTION IN LIMINE NO. 22]

on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website. This service was completed in accordance with the Amended General Order No. 158.
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 5, 2011, at San Francisco, California.

ene Paulve

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ROCKWELL’S MOTION IN LIMINE #22

011682 \ 001248 \ 226217_1,DOC