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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||C.C. MOORE & CO. ENGINEERS; || Herein; and DOES 1-18500. . PATRICIA G, ROSENBERG, SBN 154800 HAAS. & NAJARIAN, LLP. 58 Maiden Lane, Second Floor {| San Francisco, CA 94108 Telephone: 415.788.6330 JAMES N. SINUNU, SBN 62802 JUNIPER BACON, SBN -256687 SINUNU-BRUNI LLP S 333 Pine Street, Suite 400 a San Francisco, CA 94104 “3311 . Telephone: 415.362.9700...” Fagsimile: 415.362.9707 jsinunu@sinunubruni.com ybacon sinunubruni. com Attomeys for Defendant || MCCLURE ELECTRIC, INC. SUPERIOR COURT: OF THE 5 STATE OF CALIFORNIA “ary AND COUNTY OF. SAN FRANCISCO-UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, Plaintiffs, Vs. Defendants as Reflected on Exhibit 1. Attached to the Summary Complaint ~~. Defendants Te oe Ss Le INTRODUCTION 3 Oe Defendant. MCCLURE ELECTRIC, INC. Defendant”) barby: moves this Court for “4 : : DEFENDANT MCCLURE. ELECTRIC, : INC.’S MOTION IN LIMINE TO ~ PRECLUDE EVIDENCE OF DUST : “Date: June 3, 2013 De “Juc dg Com aint Filed: December 17, 2010 Trial. ELECTRONICA liv FILED “Superior Court of Calftornia, County of San Frangsco ..° JUN 04 2013 ~ Clerk of the Court. “BY: VANESSA WU Depuly Clerk Coe cocoa oes LEVELS BASED ON VISUAL OBSERVATIONS - a NO. a Time:. Hon. Teri L. Jackson” Date: June 10, 2013. DEFENDANT MCCLURE ELECTRIC, INC?S MOTION N TIMINE TO. PRECLUDE : St EVIDENCE OF. DUST: LEVELS. BASED ON. VISUAL OBSERVATIONS. Ss ° : MIL NO. a : Was :“|| fibers. an order in limine to exclude evidence of dust levels based on lay witnesses’ visual observations. Such testimony cannot reasonably serve as the basis for any expert opinion . attempting to quantify an ambient asbestos dust level. Moreover, attempting to determine the airborne asbestos concentration levels from such testimony i is not a generally accepted scientific method and therefore is impermissible under ‘the Kelly Z. Frye / Leahy ‘standard. F inally, the unduly prejudicial nature of ‘the testimony outweighs any probative value such testimony might have. ‘Accordingly, such evidence must be precluded at trial. wk . oI ARGUMENT es a 5 AL = Witness Testimony Concerning Dusty Conditions Is Not Something ~ Upon Which an. Expert Could Reasonably Rely in Forming an Opinion Re borne As! Concentration Levels. Defendant anticipates that Plaintiffs may offer lay: witness testimony to describe qualitatively the level of dust allegedly present at Plaintiff's worksites. Plaintiffs will then attempt to use this testimony as the basis for. an expert opinion regarding the quantity of - airborne asbestos fibers. He thereby hopes to establish that Defendant was negligent due to the concentration of airborne asbestos fibers Present and that Plaintiff “must have” breathed those - An expert's testimony m must be based on 1 matters upon which he may reasonably rely. : (Evid. Code §.801.) Conjecture and speculation provide no proper basis for an expert’ So -|/ opinion. (Hyatt v. Sierra Boat Co. (1978) 79 Cal-App.3d 325, 338. } Before. an expert may. offer jan opinion regarding ‘the quantity of asbestos dust at a . worksite, an actual air sample must be : taken. In Smith v. ‘ACandS, dnc. (1994) 31.Cal App. 4th 77 (overruled i in part on other grounds a by. Camargo Y. Tjaarda Dairy (2001). 25 Cal. 4th 1235), the plaintiff offered expert opinion, : : regarding asbestos dust levels i in the air ata worksite some 40-50 years earlier. The plaintiff's own ‘expert stated that ‘the standard method for such. a quantitative analysis required an. 2 evaluation of an actual air sample. (id. at 93. ). The plainti, lacking such an actual air sample, Sf : instead provided his expert with a photograph of the worksite that showed dust i in the air. Ca) : at 84-85.) On that basis, plaintiff: s. expert attempted to extrapolate the level of asbestos . fibers i in the air and stated that the level was higher: than what et nally orders at the ti time would : 2 a ~ DEFENDANT MCCLURE ELECTRIC, INC.’S MOTION IN LIMINE TO PRECLUDE. : EVIDENCE OF DUST LEVELS BASED.ON VISUAL OBSERVATIONS : es Ma ‘NO. 0Aaa have permitted, (dat 85.) 2 . The Court of Appeals found that this extrapolation of quantitative data was erroneous. 3 || Although the photographs may have adequately depicted the scene at the time of the exposure, 4 || the Court of Appeal found that such a photograph ‘was too suspect to serve as the basis for any : vs] expert testimony regarding asbestos fiber soncentration levels. The Court of Appeals noted as 6 || follows: - ool oe Reliance onold black-and- white = notcetanie to.deduce specific concentration va : levels of asbestos in the air is highly suspect, As [plaintiff's expert] himself: ~~ testified, the scientific standard for measuring asbestos levels is to filter air 9 through a membrane and use an electron microscope to » magnify the membrane -. "to count the retained asbestos fibers. Even that technique permits only an : 20 estimate of asbestos levels and a great deal of variability attends the results.. We are ‘unpersuaded that one can extrapolate accurate asbestos concentration > Jevels from the messy appearance of asbestos materials at a work site. 12 _. Certainly, no foundation was laid that industrial hygienists reasonably rely : upon Photographs to, assess asbestos levels, uM (Smith v. Cand, Ine, , supra, 31 Cal. App. ‘4th at 93) : a5. . ~ Here, Defendant anticipates that Plaintiff will testify: asa ayy witness to the dusty : “as consltons present at the sites at issue. This evidence i is likewise insufficient to assess asbestos. . vv. concentrations. First, ley witness observation i is far from reliable with respect to information ae about asbestos fiber. levels. Further, although an expert may rely on matters which ; are a ag inadmissible i in and of themselves, those matters relied upon must be of the sort reasonably 20 telied upon by experts in forming opinions on a particular subject. Evid. Code § 801 ) ‘As S al. discussed above, the scientific standard for measuring asbestos levels i isto filter air through a. op 22 membrane and use an electron microscope to magnify ‘the membrane to. count the retained “23: asbestos fibers, ‘Relying upon the testimony. of lay. witnesses as to their visual observations of . 2 messy: or. dusty conditions at a given § site is simply not the sort ‘of evidence upon which an . - 25, expert may reasonably rely to specify the concentration of asbestos i in the air. Plaintiff here has : : : 26 : not and cannot — lay a foundation that this type « of evidence i is that upon which industrial Se aT hygienists may etsonably rely. Accordingly this Court: should exclude all such expert : ‘28 : testimony.” So3 DEFENDANT MOCLURE ELECTRIC, INC'S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF DUST LEVELS BASED ON VISUAL OBSERVATIONS, aL NO.a) :~B.. .. Determin ing Airborne Asbestos Concentration Levels from Lay Wit esses” - Testimony of Their Observations at a Worksite Is Not ut Generally Accepted . Scientific Method, and Should Be Excluded. Where scientific principles are at stake, California courts, have long adhered to the “general acceptance” test set forth in Frye v. United States @. C. Cir, 1923) 293 F. 1013, as recognized i in People y. Kelley (1976) .17 Cal .3d 24, and reaffirmed i in People v. Leahy (1994). 8 Cal. Ath 587. Thus, general acceptance. of, the expert’ s methodology within ‘the relevant : scientific community remains an absolute prerequisite for admission in the courts of this state. (People v Leahy, supra, 8 Cal.4th at 604.) - . : : : ~The “Kelly formulation” requires that the libily of the method must be established, usually by expert testimony. (People v. Kelly, supra, 7 Cal.3d at 31. ) Consensus, or “general. acceptance,” i is ‘established if the theory or methodology i is supported “bya clear majority” of the scientific community, (People v Leahy, supra, 8.Cal/ 4th at 611 ») The burden of showing this consensus lies with the proponent of the evidence. Ga. ) Attempting to determine asbestos concentration levels from the testimony of lay. witnesses asto their visual observation of conditions i is nota generally accepted scientific methodology. For an expert ‘who has never ‘been to: the site ati issue, never performed any air sampling there, and: never reviewed a any such air sampling data, such a “method” Cannot. : “. amount to anything more than impermissible speculation and conjecture. Moreover, as noted above, this i is not the type ‘of information ‘upon which industrial hygienists ¢ can FeasonaPly. rely. in forming such an opinion. (Smith v. ACandS, Ine, supra, 31 Cal. App. Ath at 93. ye Consequently, absent a foundational | showing by Plaintiff: that this “methodology” for ; determining asbestos concentration levels i is generally accepted vi wit sin nthe relevant scientific. 2 community the Court should exclude i it. ~ = Qo “The Probative Value of Wi Vitnes 8. Testimony Regarding / Asbestos Dust . So Levelsi is Outweighed by the Risk of. Undue Prejudice. . oes “The court in its discretion: may exclude evidence ifi its probative value i is substantially SS outweighed by: the probability that i its admission will. “create substantial danger of undue preiudlce, of confusing the i issues, or of misleading the j jury. ”. End Code as 352. }. As detailed oS Qe ~ DEFENDANT MCCLURE ELECTRIC, INC.’S MOTION IN LIMINE TO PRECLUDE oes 2 EVIDENCE OF pusr ‘LEVELS BASED ON VISUAL OBSERVATIONS. esabove, testimony regarding dust levels cannot serve as the basis for an expert opinion - : regarding the quantity of asbestos fibers. If such qualitative evidence is presented regardless, it will serve only to mislead the. jury and confuse the issues. Notwithstanding aclaim by / Plaintiff that dust testimony is an essential part of evidence regarding exposure or causation, such evidence must be rejected. Moreover, such evidence is highly prejudicial. Testimony regarding dust levels does not necessarily implicate any evidence off asbestos fibers. It is possible for a worksite to be full of dust without asbestos fibers i in the air, The testimony is misleading, confusing, and lacks probative value without a necessary showing that the testimony regarding dust somehow relates to asbestos. As such, the Court should exercise its discretion to preclude the use of such || evidence. _ CONCLUSION . S For the foregoing 1 Teasons, Defendant respectfully requests the Court to issue an order precluding the admission into evidence of | dust levels based upon visual observations : : Respectfully. submitted, DATED: June 32013" _ SINUNU BRUNI LLP By; <=-AAMES N. SINUNU ~ “>” JUNIPER BACON © >> Attorneys for Defendant os MCCLURE ELECTRIC, INC. - 5 DEFENDANT. MCCLURE ELECTRIC, INC.’S MOTION IN LIMINE TO PRECLUDE : EVIDENCE OF DUST LEVELS BASED ON VISUAL OBSERVATIONS : » (MIL NO. 3) oS