On December 17, 2010 a Motion,Ex Parte was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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aI Dw Eugene C. Blackard Ir. (Bar No. 142090) Jocelyn M. Soriano (Bar No. 201169} ARCHER NORRIS ELECTRONICALLY A Professional Law Corporation 2033 North Main Street, Suite 800 FILED Walnut Creek, California 94596-3759 Superior Court of California, Telephone: 925.930.6600 County of San Francisco Facsimile: 925.930.6620 OCT 18 2013 Clerk of the Court Attorneys for Defendant BY: WILLIAM TRUPEK ALBAY CONSTRUCTION COMPANY Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 Plaintiffs, ALBAY CONSTRUCTION COMPANY’S “ MOTION IN LIMENE TO PRECLUDE v. PLAINTIFF AND LAY OPINION ON WHETHER PRODUCTS CONTAINED C.C, MOORE & CO, ENGINEERS, et al., AND/OR RELEASED ASBESTOS FIBERS Defendants. Action Filed: December 17, 2010 Trial Date: September 9, 2013 Defendant ALBAY CONSTRUCTION COMPANY (“ALBAY”) hereby moves this Court for an Order precluding Plaintiffs and any lay witness from testifying that particular products contained and/or released asbestos fibers breathed by plaintiff Robert Ross. Plaintiffs and lay witnesses are expected to offer testimony that certain products contained and/or released asbestos fibers when subjected to cutting or grinding and that plaintiff Robert Ross breathed these fibers. Such testimony is inadmissible and should be barred unless it is found that the testimony has the proper foundation, is not based on hearsay and otherwise would be admissible. i ARGUMENT Plaintiffs and lay witnesses’ opinions that particular products contained and/or released asbestos fibers must be excluded where this testimony lacks foundation and is not rationally based on the perception of the witnesses. ALBI9!/1657499-1 ALBAV CONSTRUCTION COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFE AND LAY OPINION ON WHETHER PRODUCTS CONTAINED AND/OR RELEASED ASBESTOS FIBERSAccording to Evidence Code § 702: {a) Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter, Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. (b) A witness! personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony, According to Evidence Code § 800: Ifa witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony. According to Evidence Cade § 803: The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper, ALBAY anticipates that Plaintiffs will attempt to use their testimony other potential lay witnesses to demonstrate that particular products contained and/or released asbestos fibers in plaintiff Robert Ross’ presence and that plaintiff Robert Ross breathed these fibers. While Plaintiffs and lay witnesses might be able to attest to the fact that dust of some kind was emitted or released by a product, it is beyond the capability of Plaintiffs and the lay witnesses to opine, without adequate foundation or personal knowledge, whether the dust that was emitted did or did not contain asbestos fibers and that such fibers were breathed in by plaintiff Robert Ross, Such conclusions are beyond common experience and therefore, any testimony regarding the asbestos content of dust, based on the mere viewing of the dust, is improper, Moreover, such facts are for the finder of facts to determine. Since the opinion that particular products contained and/or released asbestos fibers is not based on personal ALBI9I/65749%1 2 ALBAY CONSTRUCTION COMPANY'S MOTION IN LIMINE TO PRECCUDE PLAINTIFF AND CAY OPINION OR WHETHER: PRODUCTS CONTAINED AND/OR RELEASED ASBESTOS FIBERSOQ 2 eS RN A RB we De RB NM BR NM NR NR Rete Se NDR & BM KF SG OD Om MR A BR YW BD knowledge, this opinion lacks foundation and must be excluded under Evidence Code §§ 702. 800 and 803. i. CONCLUSION For the reasons stated above, ALBAY CONSTRUCTION COMPANY respectfully request this Court grant its Motion Jn Limine to preclude Plaintiffs and any lay witnesses from testifying that any particular products contained and/or released asbestos fibers and said fibers were breathed by plaintiff Robert Ross, Dated: October Li /P, 2013 ARCHER NORRIS mmeys for Defendant ALBAY CONSTRUCTION COMPANY ALBI91/1657499- 3 FRUCTION COMPANY'S MOTION IN LIMINE TQ PRECLUDE PLAINTIFF AND LAY GPINION-ON WHETHER PRODUCTS CONTAINED AND/OR RELEASED ASBESTOS FIBERSCo OD eo NA MH RB BY NH PROOF OF SERVICE Name of Action: Robert Ross et al. v. C.C. Moore & Co Engineers, et al. Court and Action No; San Francisco Superior Court Action No. CGC-10-273731 J, the undersigned, declare that I am over the age of eighteen years and not a party to this action or proceeding. My business address is 2033 North Main Street, Suite 800, Walnut Creek, California 94596-3759. On this date, | caused the following document(s) to be served: ALBAY CONSTRUCTION COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF AND LAY OPINION ON WHETHER PRODUCTS CONTAINED AND/OR RELEASED ASBESTOS FIBERS oO by placing a true copy of the document(s) listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar with this business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. Oo by having a true copy of the document(s) listed above transmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission was reported as complete without error by a report issued by the transmitting facsimile machine. oC by having personal delivery by One Hour Delivery of a true copy of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. Q by placing a true copy of the document(s) listed above, in a box or other facility regularly maintained by .__ _» an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. I electronically served the above referenced document(s) through Lexis-Nexis. E- service in this action was completed on all parties listed on the service list with Lexis- Nexis. This service complies with the court’s order in this case. I deglare under penalty of perjury that the foregoing is true and correct. Executed on October _ Ko 2013, at Walnut Creek, California. ALBI9I/1657499-1 4 ALBAY CONSTRUCTION COMPANY'S MOTION IN LIMINE TO PRECLUDE PLAINTIFF AND LAY OPINION ON WHETHER PRODUCTS CONTAINED AND/OR RELEASED ASBESTOS FIBERS