Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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BUTS CURLIANOLLP
555-12" Srneer

1380

ite
‘OAKLAND, GA 94607

810.267.2000

JASON J. CURLIANO [SBN 167509]
GEORGE 8. SULLIVAN [SBN 187793]

BUTY & CURLIANO LLP
555 — 12" Street, Suite 1280 ELECTRONICALLY
Oakland, California 94607 FILED

Tel: 510.267.3000 . oe
Fax: 5102670117 . SCoanty of San Francisca
AMAL? Jasonet utycur! ano.com
jsullivan@butycurliano.com MAY 02 2013
BY: WILLIAM TRUPEK

Attorneys for Defendant Deputy Cle

HAROLD BEASLEY PLUMBING & HEATING, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, No. CGC-10-275731

Plaintiffs, DEFENDANT HAROLD BEASLEY
PLUMBING & HEATING, INC.’S
OBJECTIONS TO EVIDENCE
SUBMITTED IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT

v.
C.C. MOORE & CO. ENGINEERS; et al.,

Defendants. Date: May 8, 2013
Time: 9:30 a.m,

Dept: 503

Ne ee eee

Trial: June 10, 2013

Pursuant to California Code of Civil Procedure section 437c(d) and California Rules of
Court 3.1352 and 3.1354, defendant Harold Beasley Plumbing & Heating Inc. (“Beasley”) objects
to the evidence submitted by plaintiffs Robert Ross and Jean Ross in opposition to Beasley’s
motion for summary judgment on the following grounds:

DECLARATION OF Dr. RICHARD COHEN

Objection No. 1:

Page 11 at Lines 20-23: “Based on my above mentioned experience and training and
historical review, in my opinion the medical and scientific literature makes it clear that, as least as
early as 1931, it was known in the medical and scientific community that breathing asbestos dust

was harmful and dangerous to human health.”
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DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC,’S OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENTeC we ND

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Grounds for Objection No. 1:

1 Irrelevant ~ Evid. Code §§ 210, 350

The year Dr. Cohen has determined the medical and scientific community knew breathing
asbestos dust was harmful and dangerous to human health is not relevant to determining if
plumbing contractor Beasley knew or should have known the work performed by its plumbers in
Mr. Ross’s presence created an unreasonable asbestos hazard.

2, No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) Ifa witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4" 747, 770,
776; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4"" 1108, 1116)
because “even an exper! witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337).
When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337; Geffcken v. D’Andrea (2006) 137
Cal.App.4™ 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins
caused plaintiffs’ injuries].) Because Dr. Cohen’s generic opinion is purely speculative and does
not contain reasoned analysis concerning the issues raised in Beasley’s motion for summary
judgment, the Court should exclude it.

Court’s Ruling on Objection No. 1: Sustained:
Overruled:
Objection No. 2:

Page 12 at Lines 7-10: “Further, based upon my research, education, and experience, and
the articles listed in my bibliography, it is my professional opinion that it was clear by 1952 that,
regardless of the setting, it was known or at least knowable that a person exposed to airbome
asbestos was at an increased risk of developing cancer.”

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DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC,’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28
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Grounds for Objection No. 2:

1, Irrelevant — Evid. Code §§ 210, 350

The year Dr. Cohen has determined the medical and scientific community determined when
“it was known or at least knowable that a person exposed to airborne asbestos was at an increased
risk of developing cancer” is not relevant to determining if plumbing contractor Beasley knew or
should have known the work performed by its plumbers in Mr. Ross’s presence created an
unreasonable asbestos hazard.

2. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) Ifa witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4" 747, 770,
716; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337).
When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337; Geffcken v. D'Andrea (2006) 137
Cal.App.4™ 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins
caused plaintiffs’ injuries].) Because Dr. Cohen’s generic opinion is purely speculative and does
not contain reasoned analysis concerning the issues raised in Beasley’s motion for summary
judgment, the Court should exclude it.

3. Unqualified — Evid. Code §§ 720, 801; Code Civ, Proc. § 437¢(d)

A person is qualified to testify as an expert only if she has sufficient knowledge, skill,
experience, training or education to qualify as an expert on the subject matter of her testimony.
(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of
the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17
Cal.3d 24, 29, quoting People v. King (1968) 266 Cal. App.2"? 437, 445 [trial court abused

discretion in allowing technician to give evidence requiring scientific expertise].) Dr. Cohen’s
3

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’8 OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENTNY DA uw FW N

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BUTY & CURLIANOLLP.
565-12" S1acET

‘OAKLAND, GA 94607
510.287.3000

declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,
training or education to qualify as an expert with respect to asbestos state of the art in an alleged
bystander exposure case involving a commercial plumbing contractor and an asbestos worker who
is wearing a mask. (See Declaration of Richard Cohen, M.D., M.P.H. in Support of Opposition to
Plaintiffs’ Opposition to Defendant Harold Beasley Plumbing & Heating, Inc.’s Motion for
Summary Judgment or, in the Alternative, Summary Adjudication (“Cohen Decl.”), 1:22-5:14.)

Court’s Ruling on Objection No. 2: Sustained:
Overruled:
Objection No. 3:

Page 16 at Lines 24-27: “Besides what was knowable through medical and industrial
hygiene literature and industry publications, businesses in California were additionally on notice as
to the hazards of asbestos from an early point in time by various governmental regulations.”
Grounds for Objection No. 3:

1. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) If a witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4" 747, 70,
716; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337).
When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337; Geffcken v, D'Andrea (2006) 137
Cal.App.4 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins
caused plaintiffs’ injuries].) Because Dr, Cohen’s generic opinion is purely speculative and does
not contain reasoned analysis connecting governmental regulations with the issues raised in
Beasley’s motion for summary judgment, the Court should exclude it.

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DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28

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2. Unqualified — Evid. Code §§ 720, 801; Code Civ. Proc. § 437e(d)

A person is qualified to testify as an expert only if she has sufficient knowledge, skill,
experience, training or education to qualify as an expert on the subject matter of her testimony.
(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of
the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17
Cal.3d 24, 29, quoting People v. King (1968) 266 Cal.App.2" 437, 445 [trial court abused
discretion in allowing technician to give evidence requiring scientific expertise].) Dr. Cohen’s
declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,
training ot education to qualify as an expert with respect to asbestos state of the art in an alleged
bystander exposure case involving a commercial plumbing contractor and an asbestos worker who
is wearing a mask. (See Cohen Deel., 1:22-5:14.)

3. Irrelevant — Evid. Code §§ 210, 350

The Department of Industrial Relations safety orders regarding “Dust, Fumes, Vapors &
Gases” from 1936, 1945, and 1955 attached to Dr. Cohen’s declaration are irrelevant. Because Dr.
Cohen does not explain how the safety orders apply to plaintiffs’ action against Beasley and there is
no evidence work by Beasley’s plumbers in Mr. Ross’s presence exceeded any standard contained
in the safety orders, Dr. Cohen’s opinions regarding Beasley are not supported by sound reasoning.
Court’s Ruling on Objection No. 3: Sustained:

Overruled:
Objection No. 4:

Page 18 at Lines 1-9: “Based upon my background, training, knowledge, and the
information referenced above, it is my opinion that by the 1960s a company, working in
construction and on jobsites where contractors and laborers were working alike, should have been
aware of potential health hazards associated with exposure to certain occupational dusts
generally. In view of this, to the extent that any contractor was unaware of the composition of
dust which might be created or encountered, it ought to have sought out such information. It
is likewise my opinion that by the 1960s a company, working in construction and on jobsites where

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DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENTwn

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BUTY 4 CUUANOLLP

‘519.267.3000

contractors and laborers were working alike, should have been aware of health hazards associated
with asbestos dust.” (Emphasis in original text.)
Grounds for Objection No. 4:

1. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) Ifa witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4" 747, 70,
716; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal-App.3d 325, 337).
‘When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337; Geffcken v. D’Andrea (2006) 137
Cal. App.4" 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins
caused plaintiffs’ injuries].) Because Dr. Cohen’s generic opinion is purely speculative and does
not contain reasoned analysis connecting his opinions regarding contractors’ knowledge of dust and
asbestos dust hazards and the issues raised in Beasley’s motion for summary judgment, the Court
should exclude it.

2. Unqualified — Evid. Code §§ 720, 801; Code Civ. Proc. § 437c(d)

A person is qualified to testify as an expert only if she has sufficient knowledge, skill,
experience, training or education to qualify as an expert on the subject matter of her icstimony.
(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of
the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17
Cal.3d 24, 29, quoting People v. King (1968) 266 Cal. App.2"4 437, 445 [trial court abused
discretion in allowing technician to give evidence requiring scientific expertise].) Dr. Cohen’s
declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,
training or education to qualify as an expert with respect to asbestos state of the art in an alleged

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6

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENTa WON

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‘OAKLAND, GA 94807
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bystander exposure case involving a commercial plumbing contractor and an asbestos worker who
is wearing a mask, (See Cohen Deel., 1:22-5:14.)

3. Irrelevant — Evid. Code §§ 210, 350

The Department of Industrial Relations safety orders regarding “Dust, Fumes, Vapors &
Gases” from 1936, 1945, and 1955 attached to Dr. Cohen’s declaration are irrelevant. Because Dr.
Cohen does not explain how the safety orders apply to plaintiffs’ action against Beasley and there is
no evidence work by Beasley’s plumbers in Mr. Ross’s presence exceeded any standard contained
in the safety orders, Dr. Cohen’s opinions regarding Beasley are not supported by sound reasoning.
Court’s Ruling on Objection No. 4: Sustained:

Overruled:
Objection No. 5:

Page 18 at Lines 15-18: “By the 1960s, contractors, including defendant, located in
California and Subject to California General Industry Safety Orders, had ready access to
information regarding methods for mitigating exposures and could have implemented them.”
(Emphasis in original text.)

Grounds for Objection No. 5:

1. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) If a witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v, University of Southern California (2012) 55 Cal.4" 747, 770,
776; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337).
When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337, Geffcken v. D’Andrea (2006) 137
Cal.App.4" 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins

caused plaintiffs’ injuries].) Because Dr. Cohen’s generic opinion is purely speculative and does

7
DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC,’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28

BUTY.& CURLIANO LLP.
555-12" Sraser
wre 1260
OAKLAND, CA 94607
"510.287.3000,

not contain reasoned analysis connecting his opinions regarding contractors’ knowledge of dust and
asbestos dust hazards and the issues raised in Beasley’s motion for summary judgment, the Court
should exclude it.

2. Unqualified — Evid. Code §§ 720, 801; Code Civ. Proc. § 437¢(d)

A person is qualified to testify as an expert only if she has sufficient knowledge, skill,
experience, training or education to qualify as an expert on the subject matter of her testimony.
(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of
the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17
Cal.3d 24, 29, quoting People v. King (1968) 266 Cal.App.2" 437, 445 [trial court abused
discretion in allowing technician 1o give evidence requiring scientific expertise].) Dr. Cohen’s
declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,
training or education to qualify as an expert with respect to asbestos state of the art in an alleged
bystander exposure case involving a commercial plumbing contractor and an asbestos worker who
is wearing a mask. (See Cohen Deel., 1:22-5:14.)

3. Irrelevant — Evid. Code §§ 210, 350

The Department of Industrial Relations safety orders regarding “Dust, Fumes, Vapors &
Gases” from 1936, 1945, and 1955 attached to Dr. Cohen’s declaration are irrelevant. Because Dr.
Cohen does not explain how the safety orders apply to plaintiffs’ action against Beasley and there is
no evidence work by Beasley’s plumbers in Mr. Ross’s presence exceeded any standard contained
in the safety orders, Dr. Cohen’s opinions regarding Beasley are not supported by sound reasoning.
Court’s Ruling on Objection No. 5: Sustained:

Overruled:
Objection No. 6:

Page 18 at Line 19 to Page 19 at Line 2: “Based upon my background, training, knowledge,
and the materials referenced above, it is my opinion that a contractor who worked in the
construction trades should have educated its employees about the precautions to be taken around
workplace dust, as set forth in the California General Industry Safety Orders described above. It is

clear that, regardless of the setting, a person such as ROBERT ROSS, thereby exposed to airborne
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DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28

BUTY & CURLIANO LLP
Az SrReeT

dust was at an increased risk of injury and disease. Such exposures were preventable. The
information regarding the hazards associated with dust exposure was readily available to companies
working in the construction trades, including HAROLD BEASLEY PLUMBING & HEATING,
INC, (“BEASLEY”) by at least the mid-1930s. Further, BEASLEY, as a California employer, was
subject to the California General Industry Safety Orders described above, and therefore should have
educated its employees about the precautions to be taken around workplace dust.”

Grounds for Objection No. 6:

1. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) Ifa witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4" 747, 70,
716; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal-App.3d 325, 337).
‘When an expert's opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337, Geffcken v. D'Andrea (2006) 137
Cal.App.4” 1298, 1310-1312 ftrial judge properly excluded speculative expert opinion mycotoxins
caused plaintiffs’ injuries].) Because Dr. Cohen’s opinions are purely speculative and his
declaration does not contain reasoned analysis connecting his general opinions regarding
contractors’ knowledge of dust hazards and the issues raised in Beasley’s motion for summary
judgment, the Court should exclude it.

2. Unqualified — Evid. Code §§ 720, 801; Code Civ, Proc. § 437c(d)

A person is qualified to testify as an expert only if she has sufficient knowledge, skill,
experience, training or education to qualify as an expert on the subject matter of her testimony.
(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of
the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17

Cal.3d 24, 29, quoting People v. King (1968) 266 Cal. App.2" 437, 445 [trial court abused
9

We 1280
‘96807

‘OAKLAND, Ga:
'310.287,3000

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28

BUTY & CURLIANO LLP
885-12” STREET

discretion in allowing technician to give evidence requiring scientific expertise].) Dr. Cohen’s
declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,
training or education to qualify as an expert with respect to asbestos state of the art in an alleged
bystander exposure case involving a commercial plumbing contractor and an asbestos worker who
is wearing a mask. (See Cohen Deel., 1:22-5:14.)

3. Trrelevant — Evid. Code §§ 210, 350

The Department of Industrial Relations safety orders regarding “Dust, Fumes, Vapors &
Gases” from 1936, 1945, and 1955 attached to Dr. Cohen’s declaration are irrelevant. Because Dr.
Cohen does not explain how the safety orders apply to plaintiffs’ action against Beasley and there is
no evidence work by Beasley’s plumbers in Mr. Ross’s presence exceeded any standard contained
in the safety orders, Dr. Cohen’s opinions regarding Beasley are not supported by sound reasoning.
Court’s Ruling on Objection No. 6: Sustained:

Overruled:
Qbjection No. 7:

Page 19 at Lines 9-11: “The information regarding the hazards associated with asbestos
exposure was readily available to companies working with or around asbestos-containing products,
including BEASLEY at least by the early 1960s.

Grounds for Objection No. 7:

1. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) If a witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4" 747, 770,
716; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337).
When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section

801(b) and exclude the challenged testimony. (Hyatt at 337; Geffcken v. D'Andrea (2006) 137

10
DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENTCal.App.4" 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins

caused plaintiffs’ injuries].) Because Dr. Cohen’s opinions are purely speculative and his
declaration does not contain reasoned analysis connecting his general opinions regarding
contractors” knowledge of asbestos dust hazards and the issues raised in Beasley’s motion for
summary judgment, the Court should exclude it.
2. Unqualified — Evid. Code §§ 720, 801; Code Civ. Proc. § 437¢(d)
A person is qualified to testify as an expert only if she has sufficient knowledge, skill,

experience, training or education to qualify as an expert on the subject matter of her testimony.

Cc oe YN DA HW FF WN

(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of

o

—
=

the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17
Cal.3d 24, 29, quoting People v. King (1968) 266 Cal.App.2™ 437, 445 [trial court abused

12 | discretion in allowing technician to give evidence requiring scientific expertise].) Dr. Cohen’s

13 | declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,

14 | training or education to qualify as an expert with respect to asbestos state of the art in an alleged

15 || bystander exposure case involving a commercial plumbing contractor and an asbestos worker who
16 || is wearing a mask. (See Cohen Deel., 1:22-5:14.)

17 3. Irrelevant — Evid. Code §§ 210, 350

18 The Department of Industrial Relations safety orders regarding “Dust, Fumes, Vapors &

19 | Gases” from 1936, 1945, and 1955 attached to Dr. Cohen’s declaration are irrelevant. Because Dr.
20 || Cohen does not explain how the safety orders apply to plaintiffs’ action against Beasley and there is
21 || no evidence work by Beasley’s plumbers in Mr. Ross’s presence exceeded any standard contained

in the safety orders, Dr. Cohen’s opinions regarding Beasley are not supported by sound reasoning.

N
N

23 | Court’s Ruling on Objection No. 7: Sustained:

24 Overruled:

25 | Qbjection No. 8:

26 Page 19 at Lines 12-18: “Based upon my background, training, knowledge and the

27 | information referenced above, as well as my education, training, and experience as an Occupational

28 | and Preventive Medicine specialist and Epidemiology expert, it is my opinion that by the 1960s,

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ONAN, GABe007 DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’s OBJECTIONS TO EVIDENCE SUBMITTED
ears IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28

BUTY & CURLIANO LLP.
'555-12" STREET

‘Sure 1280

DAKLAND, CA 24607

310.289.3000

BEASLEY should have been aware of potential health hazards associated with exposure to
certain occupational dusts generally. In view of this, to the extent that BEASLEY was
unaware of the composition of dust which might be created or encountered, it ought to have
sought out such information. (Emphasis in original text.)

Grounds for Objection No. 8:

1. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) Ifa witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4" 747, 770,
716; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337).
When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337; Geffcken v. D'Andrea (2006) 137
Cal.App.4" 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins
caused plaintiffs’ injuries].) Because Dr. Cohen’s opinions are purely speculative and his
declaration does not contain reasoned analysis connecting his general opinions regarding
contractors’ knowledge of asbestos dust hazards and the issues raised in Beasley’s motion for
summary judgment, the Court should exclude it.

2. Unqualified — Evid. Code §§ 720, 801; Code Civ. Proc. § 437c(d)

A person is qualified to testify as an expert only if she has sufficient knowledge, skill,
experience, training or education to qualify as an expert on the subject matter of her testimony.
(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of
the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17
Cal.3d 24, 29, quoting People v. King (1968) 266 Cal. App.2"? 437, 445 [trial court abused
discretion in allowing technician to give evidence requiring scientific expertise].) Dr. Cohen’s

declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,
12

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28

BUTY & CURLIANOLLP
386. 12" Siacsr

Sure 1280
‘OAKLAND, CA 94607

‘510.267.3000

training or education to qualify as an expert with respect to asbestos state of the art in an alleged
bystander exposure case involving a commercial plumbing contractor and an asbestos worker who

is wearing a mask. (See Cohen Deecl., 1:22-5:14.)

Court’s Ruling on Objection No. 8: Sustained:
Overruled:
Objection No. 9:

Page 19 at Lines 20-24: “By the 1960s, contractors, BEASLEY had ready access to
information regarding methods for mitigating exposures and could have implemented them.
Further, BEASLEY, as a California employer, was subject to California General Industry Safety
Orders described above, and therefore should have educated its employees about precautions to be
taken around workplace dust.” (Emphasis in original text.)

Grounds for Objection No. 9:

1. No Basis for Opinion — Evid. Code §§ 801-802

Opinion testimony must be rooted in fact, and expert testimony that is based on conjecture
or unreliable sources is inadmissible. (Evid. Code § 801.) If a witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Sargon Enterprises, Inc. v. University of Southern California (2012) 35 Cal.4" 747, 770,
776; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App.4" 1108, 1116)
because “even an expert witness cannot be permitted just to testify in a vacuum about things the he
might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337).
When an expert’s opinions are not grounded in fact, the court should apply Evidence Code section
801(b) and exclude the challenged testimony. (Hyatt at 337; Geffcken v. D'Andrea (2006) 137
Cal.App.4” 1298, 1310-1312 [trial judge properly excluded speculative expert opinion mycotoxins
caused plaintiffs’ injuries].} Because Dr. Cohen’s opinions are purely speculative and his
declaration does not contain reasoned analysis connecting his general opinions regarding
contractors’ knowledge of asbestos dust hazards and the issues raised in Beasley’s motion for

summary judgment, the Court should exclude it.

13

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’s OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENTfk wiN

au an

28

BUTY & CURLIANO LLP
(2 Stage

555. 12"S

Sure 1200
OAKLAND, CA

'510.267-3000

1

2. Unqualified — Evid. Code §§ 720, 801; Code Civ. Proc. § 437c(d)
A person is qualified to testify as an expert only if she has sufficient knowledge, skill,

experience, training or education to qualify as an expert on the subject matter of her testimony.

(Evid. Code §§ 720 and 801.) In considering whether a person qualifies as an expert, the field of
the witnesses’ expertise must be carefully distinguished and limited. (People v. Kelly (1976) 17
Cal.3d 24, 29, quoting People v. King (1968) 266 Cal.App.2" 437, 445 [trial court abused
discretion in allowing technician te give evidence requiring scientific expertise].) Dr. Cohen’s
declaration does not demonstrate Dr. Cohen possesses sufficient knowledge, skill, experience,
training or education to qualify as an expert with respect to asbestos state of the art in an alleged
bystander exposure case involving a commercial plumbing contractor and an asbestos worker who
is wearing a mask. (See Cohen Deel., 1:22-5:14.)

3. Irrelevant — Evid. Code §§ 210, 350
The Department of Industrial Relations safety orders regarding “Dust, Fumes, Vapors &
Gases” from 1936, 1945, and 1955 attached to Dr. Cohen’s declaration are irrelevant. Because Dr.
Cohen does not explain how the safety orders apply to plaintiffs’ action against Beasley and there is
no evidence work by Beasley’s plumbers in Mr. Ross’s presence exceeded any standard contained

in the safety orders, Dr. Cohen’s opinions regarding Beasley are not supported by sound reasoning.

Court’s Ruling on Objection No. 9: Sustained:
Overruled:
DATED: May 1, 2013 BUTY & CURLIANO LLP
~ . ‘L
” 2 SL—
| GEO! S. SULLIVAN

A ys for Defendant

HAROLD BEASLEY PLUMBING & HEATING,

INC.

14

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT28

BUTY & CURLIANOLLP
‘555. 12" STREET
‘Sune 1280,
OAKLAND, CA 24607
510,267,360

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I declare that:
Tam employed in the County of Alameda, California. I am over the pee of eighteen years
and not a party to the within entitled cause; my business address is 555 - 12" Street, Suite 1280,
Oakland, CA 94607.
I served the following document(s) via LexisNexis File & Serve as described as:

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S OBJECTIONS TO
EVIDENCE SUBMITTED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

on recipients designated on the Transaction Receipt located on the LexisNexis File & Serve
website.

I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on May 1, 2013, in Oakland, California.

Regan Balinton /s| Regan Balintow
Print Signature

15

DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S OBJECTIONS TO EVIDENCE SUBMITTED
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT