Motion-Secondary: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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‘Walswarth,
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ATTORNEYS ATLAS

ROBERT M. CHANNEL, State Bar No. 109273
IAN P. DILLON, State Bar No. 203612

WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP ELECTRONICALLY
601 Montgomery Street, Ninth Floor
San Francisco, California 94111-2612 sopehr IL ED |
Telephone: (415) 781-7072 fornia,
Facsimile: (415) 391-6258 County of San Francisco
APR 01 2010
Attorneys for Defendant Clerk of the Court
HAMILTON MATERIALS, INC. BY: CHRISTLE ARRIOLA ke
eputy Cler

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOYCE JUELCH AND NORMAN JUELCH, Case No. CGC-09-275212

Plaintiffs, MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF
vs. DEFENDANT HAMILTON
MATERIALS, INC.'S MOTION IN
ASBESTOS DEFENDANTS, et al., LIMINE #9 TO EXCLUDE EXPERT

TESTIMONY AND VIDEOTAPE

Defendants. EVIDENCE OF WILLIAM LONGO,
JOHN TEMPLIN AND/OR RICHARD
HATFIELD BASED ON INDIRECT
ASBESTOS MEASUREMENT
METHODOLOGY

Trial Date: April 5, 2010

MEMORANDUM OF POINTS AND AUTHORITIES

I_ INTRODUCTION

Plaintiffs allege that decedent Joyce Juelch ("Plaintiff") was exposed to asbestos while
performing home remodeling activities. Hamilton anticipates that plaintiffs will call either William
Ions, Richard Hatfield, and/or Philip John Templin, all employees of Materials Analytic

Services, Inc. ("MAS"), to testify as an expert in this case, and that they will testify concerning data

| on the levels of airborne asbestos released during their workplace simulation, which were obtained
using an indirect collection and measurement methodology.

MAS’ Airborne Asbestos Sampling Technique

The National Institute of Occupational Safety and Health ("NIOSH") has approved a direct

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method of sampling air to determine the level of airborne asbestos fibers in each cubic centimeter
of air. Essentially, air from the breathing area of a subject is vacuumed across a filter over a set
amount of time, and the number of fibers trapped on the filter is then counted. This common-sense
measurement methodology has been accepted by governmental regulators and industrial hygienists,
and is the basis for data used in cohort risk studies, because it provides a real-time snapshot of the
actual asbestos fibers in the breathing area of a worker.

Instead of using this well-accepted and easily understood method, MAS uses an indirect
measuring methodology of its own design. In order to obtain their data, Longo or Hatfield perform
workplace simulations using asbestos-containing products, which are specifically designed to
create in inordinate amount of airborne dust. After the dust has settled, they then micro-vacuum a
certain area of carpet. The dust trapped on the vacuum filter is emulsified and shaken several
times, then placed under ultrasonic vibration, and allowed to dry. Not surprisingly, this method
results in much higher fiber counts than the direct method -- as much as 1,000 times higher -- for
several reasons, including the fact that the agitation of the fibers breaks them into multiple pieces
and the asbestos in the sample is not taken from a certain volume of air near the breathing area, but
rather falls from everywhere from the ceiling to just above the carpet. A full analysis of the
problems with this method are outlined below.

MAS' methodology is not accepted in the relevant scientific community and conflicts with

the methods employed by and approved by authoritative bodies and other occupational health
cine, and is therefore "junk science" barred by Kelly. People v. Kelly (1976) 17 Cal.3d 24.
Moreover, as the indirect methodology results in asbestos fiber counts over 1,000 times greater
than the direct method, and does not measure the level of asbestos fibers in the breathing zone of an
exposed person, this data is irrelevant and prejudicial to Defendant.
I. LEGAL ARGUMENT
A. MAS' INDIRECT METHOD OF MEASURING AIRBORNE ASBESTOS SHOULD
BE EXCLUDED BECAUSE IT IS NOT GENERALLY ACCEPTED IN THE
RELEVANT SCIENTIFIC COMMUNITY

MAS uses a method of calculating the level of airborne respirable asbestos fibers which is

not accepted in the relevant scientific community. It is a method largely of their own making, and

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preferred by plaintiff's counsel because the method results in fiber counts that are over 1,000 times
greater than measurements made under the accepted, direct method of measuring airborne asbestos
fibers. MAS' indirect method of measuring airborne asbestos fibers, and the data and testimony
derived from it, should therefore be excluded as "junk science."

1, KELLY MANDATES "JUDICIAL CAUTION" IN ADMITTING
QUESTIONABLE SCIENTIFIC TECHNIQUES

People v. Kelly established the rules of admissibility that apply to new scientific techniques
as well as “evidence ‘developed by’ or ‘based upon’ new scientific techniques.” People v. Kelly
(1976) 17 Cal.3d 24; People v. Shirley (1982) 31 Cal.3d 18, 52. When considering new scientific
techniques, Kelly urges trial courts to use “judicial caution” in the admission of new scientific
evidence, thereby establishing a “substantial obstacle” to the admission of such evidence. In
adopting the Kelly test, which is based on the federal court’s Frye test, the Kelly court noted:

The primary advantage ... of the Frye test lies in its essentially
conservative nature. For a variety of reasons, Frye was deliberately
intended to interpose a substantial obstacle to the unrestrained
admission of evidence based upon new scientific principles. . ..
Several reasons founded in logic and common sense support a
posture of judicial caution in this area, Lay jurors tend to give
considerable weight to “scientific” evidence when presented by
“experts” with impressive credentials. We have acknowledged the
existence of a“. . . misleading aura of certainty which often envelops
a new scientific process, obscuring its currently experimental nature.
(Kelly, 17 Cal.3d at 31-32.)

Thus, “the [Ke/ly] doctrine contemplates an undefined period of testing and study by a
community of experts before a new scientific technique may be deemed ‘generally accepted,” thus
delaying the admissibility of evidence derived from the technique.” People v. Leahy (1994) 8
Cal.4th 587, 601-02. “Through application of the Kelly/Frye requirements, California courts have
‘long been willing to forego admission of ‘new’ scientific methods used to detect, analyze, or
produce evidence absent a credible threshold showing that ‘the pertinent scientific community no
longer views them as experimental or of dubious validity.” Texaco Producing, Inc. v. Co. of Kern
(1998) 66 Cal.App.4th 1029, 1048, quoting People v. Webb (1993) 6 Cal. 4th 494, 524. “This all-
or-nothing approach was adopted [in Kelly] in full recognition that there would be a ‘considerable
lag’ between scientific advances and their admission as evidence in a court proceeding.” Leahy, 8

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Cal.4th at 602. . Moreover, Kelly does not “leave questions of admissibility to the discretion of the
trial court in the first instance.” Leahy, 8 Cal.4th at 594.

Kelly next considered the appropriate test for determining the
reliability of a new scientific technique. We recognized that one
possible approach would be to leave questions of admissibility to the
discretion of the trial court in the first instance, “in which event
objections, if any, to the reliability of the evidence (or of the
underlying scientific technique on which it is based) might lessen the
weight of the evidence but would not necessarily prevent its
admissibility.” (Citation omitted.) [Kelly] rejected the foregoing
approach. Jd. at 594.

Kelly requires the trial court look to the scientific community to determine whether the new
scientific technique is sufficiently reliable to have obtained general acceptance within that
community. Texaco, 66 Cal.App.4th at 1048. In this case, all of the MAS-associated witnesses
have eschewed the generally accepted approach for measuring exposure to respirable asbestos
fibers, having adopting instead a dubious, unproven approach. Thus, as demonstrated below, the

simulations are inadmissible under Kelly.

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2. THE OBSCURE AND HIGHLY COMPLEX METHODS FOR MEASURING
EXPOSURE TO AIRBORNE ASBESTOS FIBERS ARE THE VERY TYPE

OF IMPENETRABLE SCIENTIFIC PROOF THAT KELLY IS DESIGNED
TO GUARD AGAINST
Trial courts look to the underlying purpose of the Kelly rule to determine whether it is

appropriate to apply the rule in a particular instance. “The Kelly test is intended to forestall the
jury’s uncritical acceptance of scientific evidence or technology that is so foreign to everyday
experience as to be unusually difficult for laypersons to evaluate.” People v. Venegas (1998) 18
Cal.4th 47, 80. Thus, the level of complexity involved in the technique is a key factor in
determining whether a scientific method is covered by Kelly because the more “impenetrable” the
technique, the more likely it is that the technique will assume a “posture of mystic infallibility” in
the eyes of the jury. As Venegas observed when faced with competing methodologies for DNA
testing:

It is the very complexity of the issues surrounding the propriety of

the various recognized methods [in question] . . . that draws them

under the Kelly/Frye umbrella. ‘To .. . leave it to jurors to assess the

current scientific debate . .. as a matter of weight rather than

admissibility, would stand Kelly-Frye on its head. We would be

asking jurors to do what judges carefully avoid — decide the

of a novel method of scientific proof. .. . The result would be
predictable. The jury would simply skip to the bottom line — the only
aspect of the process that is readily understood — and look at the
ultimate expression of match probability, without competently
assessing the reliability of the process by which the laboratory got to
the bottom line. This is an instance in which the method of scientific

| substantive merits of competing scientific opinion as to the reliability

proof is so impenetrable that it would’ . . . assume a posture of mystic
infallibility in the eyes of a jury ...’ [Citation omitted.]’ Jd. at 83-84.
As with the DNA testing in Venegas, measuring the amount of exposure to airborne
asbestos fibers by using an indirect method of measurement is “so foreign to everyday experience
as to be unusually difficult for laypersons to evaluate.” Jd. at 80. Thus, the Kelly test must be

applied to “forestall the jury’s uncritical acceptance of [such] scientific evidence.” Id.

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| MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
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1155-5.25571 3. PLAINTIFF CANNOT SATISFY KELLY’S RIGOROUS THREE PRONG
TEST OF ADMISSIBILITY
2
3 As the proponent of the evidence, plaintiff must show that: (1) the scientific techniques
4 | used by MAS are reliable (2) that plaintiff’s foundation witnesses are properly qualified to testify
5 | regarding general acceptance within the scientific community; and (3) that Longo, Hatfield or any
6 | other MAS associate used the correct scientific procedures. More specifically, plaintiff has the
7 | burden of satisfying the following three prongs to the Kelly test:
8 The first prong of the Kelly test requires that the “reliability” of a
new scientific technique be established by showing that the technique
9 has “gained general acceptance in the particular field to which it
belongs.”
10
The second prong requires that any witness testifying on general
11 acceptance be properly qualified as an expert on the subject.
12 The third prong of the test .. . [requires that] the proponent of the
evidence must demonstrate that correct scientific procedures were
13 used in the particular case. Venegas, 8 Cal.4th at 78; see also Leahy,
8 Cal.4th at 611.
14
a. Many Jurisdictions have Excluded the Data and Conclusions Reached
15 By Longo, Hatfield, and MAS
16 The “burden of showing general acceptance lies with the proponent of the evidence to show
17 |/a ‘scientific consensus.”” Leahy, 8 Cal.4th at 611. That is, “[i]t is the proponent of such testimony,
18 } of course, who has the burden of making the necessary showing of compliance with [Kelly/|Frye,
19 |i.e., of demonstrating by means of qualified and disinterested experts that the new technique is
20 | generally accepted as reliable in the relevant scientific community.” Shirley, 31 Cal.3d at 54.
21 | “General acceptance’ under Kelly means a consensus drawn from a typical cross-section of the
22 jisvens qualified scientific community.” Jd. at 612.
23 The technique used by MAS, Longo and Hatfield has already been found to be “not
24 | scientifically reliable” ~ in effect, “junk science.” Courts consider numerous factors in determining
25 | whether a particular scientific technique has gained general acceptance in the scientific community.
26 | Among other things, the “court may also consider decisions from other jurisdictions . . . in deciding
27 | whether a technique is generally accepted.” People y. Axell (1991) 235 Cal.App.3d 836.
28 Longo's and Hatfield's workplace simulations and the TEM results obtained have been
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subject to increasing challenge throughout the country.’ After a full preliminary evidentiary
hearing on July 5, 2001 in which Longo himself testified to explain his work practice studies and
videotapes, a court in Lamar County, Texas found them to be “junk science” and not only excluded
the videotapes, but the entirety of Longo's testimony based thereon. (A copy of defendant
Garlock's original motion, the plaintiff's opposition, and Judge Jim D. Lovett's findings of fact and
conclusions of law in the Lamar County case are attached to the Declaration of lan P. Dillon
“Dillon Declaration” as Exhibits E and F.)
In reaching his decision to exclude Dr. Longo's testimony in a bankrupicy involving 600

re cases, Judge Lovett described Dr. Longo as follows:

Dr. Longo presented at the hearing with testimonial charisma and
convincing demeanor [and his] testimony sounded reasonable and
this court accepted it at face value until completing study of all
exhibits, affidavits and testimony. . .. After considerable study by the
court, it became clear that the methodologies claimed to be used by
MAS in test reports were not followed. . . . Neither the MAS tests nor
Dr. Longo offer a satisfactory explanation as to why tests were not
conducted under a foreseeable variety of test conditions. ... Re-
reading of Dr. Longo's testimony reveals it to be practiced and to
employ misdirection and evasiveness. It is at best disingenuous, not

credible and unsupported by any respectable community of scientists.
Judge Lovett excluded Dr. Longo’s testimony and work product on the following specific
grounds:

| (1) Generally, “It is apparent that the MAS tests started with the
assumption that persons had been exposed to asbestos fibers ... and

' For additional cases in which the testimony of MAS experts has been excluded or severely
limited, see Campbell vs. Abney Mills, King County Super. Ct., Washington, October 9, 2002;
Carlson vs. Lear Siegler, San Francisco County Super. Ct., California, August 13, 1998; Lewis vs.
John Crane, San Francisco County Super. Ct., California, April 3, 2000. Grego vs. Trailmobile
Trailers, et al, San Francisco County Super. Ct., California, February 10, 2000; Hansen vs,
Asbestos Defendants, et. al., San Francisco County Super. Ct., California, December 12, 2001;
Berning vs. A.P. Green, et. al., San Francisco County Super. Ct., California,-January 8, 2000;
| Richardson v. A. W. Chesterton Company, et al., San Francisco County Super. Ct., California,
March 19, 2003; Trinchese vs. Raybestos Manhattan, et al., San Francisco County Super. Ct,
California, June 18, 2002; James vs. Raybestos-Manhattan, et al., San Francisco County Super. Ct.,
| California, December 12, 2001. In fact, Judge Diane Wick, in Department 611 of San Francisco
County Superior Court, has issued standing orders regarding issues frequently raised in asbestos
cases, including Ruling Nos. 72 and 84, which specifically exclude the videotaped simulations
prepared by Longo, Hatfield and Templin (a copy of Judge Wick's orders are attached to the Dillon
Declaration as Exhibit N).

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then selected methods to achieve the desired results ....”

(2) Dr. Longo did not follow proper scientific procedures;

(3) —_ Incollecting and analyzing air samples, Dr. Longo did not
follow the method prescribed by the National Institute of
Occupational Safety & Health (“NIOSH”), known as the NIOSH
7400, in that:

(a) | Dr. Longo’s “tests improperly mixed direct and
indirect methods of sample preparation,” using indirect sample
preparation in place of the “required direct sampling method”;

(b) Dr. Longo’s tests “misused and misrepresented TEM
[transmission electron microscopy] analysis and Tyndall light”;

(c) Dr. Longo “did not mention that there was no index to
convert TEM data to PCM [phase contrast microscopy] data”; and

(d) Dr. Longo reported results in structures per ce rather
than structures per cubic cm, constituting a “misrepresentation of a
the reportable result”; and.

(4) Dr. Longo did not provide adequate quality controls. Id.

Likewise, in Ohio, the appellate court reversed a trial court's decision to allow Longo to
testify regarding asbestos exposure resulting from abrasion of asbestos pipe insulation. Ball v.
Consolidated Rail Corp. (2001) 142 Ohio App.3d 748; a copy of this opinion is attached for the
court's convenience to the Dillon Declaration as Exhibit J. The court found MAS' workplace
simulations to be "an artificial and inaccurate representation of the conditions encountered by" the
plaintiffs. (Jd. at 758.) Ball concluded that "the experiment was not designed to show the level of
asbestos exposure allegedly encountered by” the plaintiffs and that "Longo should not have been
allowed to testify concerning the amounts of asbestos released during the experiment.” Id. This
ruling applies with equal force to Mr. Hatfield and any other associates of MAS.

b. Dr. Longo and MAS Do Not Follow the Scientifically Accepted Method
of Measuring Airborne Asbestos

Longo, Hatfield, and MAS do not follow NIOSH 7400, which has long been the generally
accepted scientific method prescribed by the National Institute of Occupational Safety & Health
("NIOSH") for measurement of airborne asbestos. Affidavit of Dr. Richard J. Lee ("Lec
Affidavit"), attached to the Dillon Declaration as Exhibit A.

The Occupational Safety and Health Administration ("OSHA"), of which NIOSH is the

rule-making branch, has regulated the permissible exposure limits of asbestos in the workplace for

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nearly 30 years. OSHA has established its regulations in general accordance with accepted
scientific principles. In collecting and analyzing air samples, NIOSH requires that the NIOSH
7400 method be used.

NIOSH 7400 requires that occupational risk assessment from exposure to asbestos be based
on a direct colllection method, the only method proven to be statistically reliable through
proficiency analytical testing programs on standardized sample preparations. This method directly
measures the amount of airborne asbestos by pumping air through a filter cassette during a fixed
period of time while a particular activity is being carried out. The cassette is later opened, and the
asbestos fibers greater than 5 microns are counted. See Jn re Armstrong World Industries, Inc.
(2002) 285 B.R. 864, 869. Thus, the actual air in which a subject is working is directly tested for
the amount of asbestos content. All of the permissible exposure limits (PEL) and threshold limit
values (TLV) for occupational exposure to asbestos are based on direct collection measurements.
(29 C.F.R. § 1910.1001.) Direct measurement data is the only data used in epidemiological
studies. Thus, direct measurement data is the only data for which it is possible to tell whether the
asbestos count measured from the air sample is in any way tied to the potential causation of disease
in the human population.

An indirect method of testing the level of airborne asbestos has been proposed as ASTM
Standard D5755, wherein a 100 cubic centimeter of flooring is vacuumed for two minutes by a
nozzle connected to a filter cassette. The cassette is then opened, and alcohol and water are poured
onto the cassette and the solution is shaken and poured over a filter several times. The filter is then
washed, acetic acid is added, and the resulting solution is again shaken, and put into an ultrasonic
bath and sonicated for three minutes. The solution is filtered, and the filter is dried. A technician
then counts the asbestos structures, which include matricies (fibers attached to a particle of
mineral); clusters of fibers; or fibrils (a single fiber), While this method does not ercate or destroy
fibers, it may alter their physical form by breaking down longer fibers into multiple particles, or
tearing apart clusters of fibers, thereby exaggerating the total fiber count.

"The number of asbestos structures, particularly smaller fibers, found through the indirect

method is almost always significantly higher than through the direct method." /d. at 869.

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OSHA itself does not recognize the use of indirect measurement methodology for
determination of risk assessment under any of the occupational asbestos standards, but requires
direct measurement instead. The use of indirect measurement is not generally recognized in the
relevant scientific community as useful in the assessment of risk from exposure to asbestos-
containing products.

In fact, a plaintiff's expert environmental scientist, James Millette, has testified that there
were many articles published in scientific literature concerning the use of direct analysis for risk
assessment in asbestos exposure, but that he had heard of only one that discussed indirect
methodology being used for risk assessment, but had never read it, was not certain that it had
actually been published, and was unfamiliar with its contents. Deposition of James Millette,
attached to the Dillon Declaration as Exhibit B, at 57-61; 148-150. Dr. Longo, testified that he
only used TEM analysis for "internal research." Deposition of William Longo, attached to the
Dillon Declaration as Exhibit C, at 25:3-7; 82:8-11. Both Millette and Longo testified that they are
not aware of any epidemiological risk assessments based on indirect measurements to date.
(Millette Deposition, Exhibit B to the Dillon Declaration, at 57:10-22; Longo Deposition, Exhibit
C, at 23:16-25; 24:1-3.)

Indirect measurement methodology produces inordinately high measurements, which will
be highly prejudicial to Defendant if allowed to be told to the jury. The indirect measurements, by
Longo's own admission, are for "internal research" only and therefore have no place in evidence.

For counting asbestos fibers in his simulations, Longo used the indirect measurement
methodology, as opposed to the more common-sense direct measurement that is required by
NIOSH 7400. (Exhibit B, 55:21-25; 56:1.)

c The Indirect Measurement Method Has Been Criticized by Other
Scientists in Peer Reviewed Journals

Scientific literature also confirms that the indirect sampling is unreliable and controversial.
The Court may look to “‘published writings in scholarly treatises and journals’ in lieu of live
testimony’ in order to determine if there is a scientific consensus.” Leahy, 8 Cal.4th at 611 (“iJfa

fair overview of the literature discloses that scientists significant either in number or expertise

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publicly oppose [the technique] as unreliable, the court may safely conclude there is no such
consensus at the present time." An article in the journal Environmental Science & Technology
sums up the reasons for the controversy:

There has been considerable controversy in recent years about the

validity of asbestos siructure concentrations determined by indirect

sample methods as specified in various measurement protocols. The

large positive, asbestos concentration bias resulting from indirect

preparation is widely recognized but poorly understood . . . Recently,

however, the effects of surfactants and sonication duration on

asbestos dusts have been explored. It has been shown [fns. omitted]

that increasing sonication times result in higher apparent asbestos

concentrations, presumably as a result of physical and chemical

release of asbestos from matrices, from dissolution of bundles into

individual fibrils, and from comminution of the fibers into more

numerous, shorter and thinner fibrils (Lee, Van Orden & Dunmyre,

“Interlaboratory Evaluation of the Breakup of Asbestos-Containing

Dust Particles by Ultrasonic Agitation," 30 Environ. Sci. Technol.10,
p. 3010 (1996), attached to the Dillon Declaration as Exhibit J.)

The article’s authors sent dust samples, which were all of the same weight, dimensions, and
asbestos content, to nine different laboratories for analysis under the ASTM D5755 testing method.
Jd. at 3011. The results reported were “highly variable” with the “range of results for each sample
type reveal[ing] a /000-fold difference between the highest and lowest concentrations.” Jd. at 3013
(emphasis added). Mr. Lee and his co-authors concluded that the indirect sampling method and
the results it produces are unreliable.

The Longo and Hatfield indirect method of measuring airborne asbestos was tested in a
blind study, and it was found that some laboratories, having analyzed exactly the same samples,

reported asbestos contents 1,000 times greater than other laboratories. Thus, at least one peer-
| reviewed article concluded that the TEM analysis was not scientifically sound and did not produce
accurate results. Longo and Hatfield cannot be allowed to testify regarding their TEM results
because their techniques are not generally accepted as reliable in the relevant scientific community.

All evidence related to these simulations and the results obtained from them should be excluded.

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1155-5.25574, THE TEM INDIRECT SAMPLE PREPARATION IS A METHOD TO
ANALYZE DUST SAMPLES, AND WAS NOT INTENDED FOR
DETERMINING HEALTH HAZARD RISKS OF AIRBORNE ASBESTOS

The indirect sampling measurement method used by MAS is derived from the ASTM
standard D5755 protocol entitled "Standard Test Method for Microvacuum Sampling and Indirect
Analysis of Dust by Transmission Electron Microscopy for Asbestos Structure Number
Concentrations." The ASTM D5755-95 protocol acknowledges that the indirect preparation
method will break apart asbestos fibers and bundles, thereby changing non-respirable asbestos
fibers into respirable fibers that are then counted by TEM:

1.4.1 The procedure outlined in this test method employs an indirect
sample preparation technique. It is intended to disperse aggregated
asbestos into fundamental fibrils, fiber bundles, clusters, or matrices that
can be more accurately quantified by transmission electron microscopy.
However, as with all indirect sample preparation techniques, the asbestos
observed for quantification may not represent the physical form of the
asbestos as sampled. More specifically the procedure described neither
creates nor destroys asbestos, but it may alter the physical form of the
mineral fibers.

The Standard itself specifically provides that it is not to be used for the purposes intended
by plaintiff's experts employed by MAS:

1.1 This test method covers a procedure to identify asbestos in dust. . .

3.1 This microvacuum sampling and indirect analysis method is used
for the general testing of non-airborne samples for asbestos.

5.1.1 This test method does not describe procedures or techniques
required to evaluate the safety or habitability of buildings with asbestos-
containing materials, or compliance with federal, state, or local regulations
or statutes.

5.1.2 At present, a single direct relationship between asbestos-containing
dust and potential human exposures does not exist. Accordingly, the user
should consider these data in relationship to other available information in
their evaluation.

The above-quoted ASTM D5755-95 protocol was principally authored by Dr. Longo, yet he
intentionally ignores its limitations and attempts to use it in litigation to support the very uses he
specifically excluded in the protocol.

The ASTM standard clearly acknowledges that its sample preparation method changes the
size distribution of the asbestos from the state in which it originally existed in the air that was

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
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sampled by utilizing a dilution procedure and by sonication. These methods and results have never
been peer-reviewed or published for the purposes used in this litigation. See, e.g. in re Armstrong
World Industries, Inc. (2002) 285 B.R. 864, 871 (finding the TEM indirect method inadmissible
under the federal Daubert standard) attached to the Dillon Declaration as Exhibit H)

Plaintiff's experts will also opine as to the alleged presence of asbestos fibers in and on
clothing based on their simulations. These experts will likely testify that millions of fibers
appeared on the clothing, making the clothes hazardous and contaminated. These tests arc
contrived and misleading, designed for litigation only, and should be excluded.

MAS' methodology falls well short of being scientifically reliable, because the techniques it
employs are scientifically untested and not published for peer review. Even plaintiff’s experts
doubt the credibility, usefulness and accuracy of MAS' indirect sampling methods. Douglas
Fowler, an industrial hygienist often retained by plaintiffs in asbestos litigation, testified that
Longo's and MAS' protocols produce a higher level of concentration than appropriate and that he
would not rely on Dr. Longo's or Mr. Hatfield's simulation results.

a. Plaintiff Has Not Presented Any Witnesses Qualified to Testify Regarding

Whether the Indirect Sampling Techniques are Generally Accepted

In keeping with Kelly's second prong, any witnesses presented by plaintiff to testify
regarding “general acceptance” must be properly qualified as an expert on the subject. Kelly, 17
| Cal.3d at 37. Undoubtedly, plaintiff will present testimony from Longo and/or Hatficid themselves

stating that all of the scientific techniques used are generally accepted within the scientific
jenn’ However, “it [is] questionable whether the testimony of a single witness alone is ever

sufficient to represent, or attest to, the views of an entire scientific community regarding the
reliability of a new technique.” Jd. The testimony of a such a witness is particularly suspect where
the witness “has had a long association with the development and promotion” of the scientific
technique. Jd. at 38. Given that Longo and Hatfield make their living as plaintiff experts, they are
self-interested and suspect witnesses. Thus, their testimony is not sufficient to establish general
acceptance.

b. The Correct Scientific Procedures Were Not Used in This Particular Case

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
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‘Walsworth,
Frantin,
Bevins &

‘McCall, LLP

ATTORAEYSAT tae

“The Kelly test’s third prong does not apply the Frye requirement of general scientific
acceptance ~ it assumes the methodology and technique in question has already met ihat
requirement. Instead, it inquires into the matter of whether the procedures actually utilized in the
case were in compliance with that methodology and technique, as generally accepted by the
scientific community.” Venegas, 18 Cal.4th at 78. As demonstrated above, neither Longo's nor
Hatfield's overall testing scheme nor their individual testing protocols comply with generally
accepted scientific techniques.

B. LONGO AND HATFIELD SHOULD NOT BE ALLOWED TO TESTIFY AS
EXPERTS

1. LONGO AND HATFIELD DO NOT HAVE ANY SPECIAL EXPERTISE
THAT WILL ASSIST THE TRIER OF FACT OR QUALIFY THEM TO
SERVE AS AN EXPERT WITNESS AT TRIAL

In order for a person to be qualified to testify as an expert, he must have “special
knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the
subject to which his testimony relates.” Evid.C. § 720. Where a person lacks special knowledge or
skill on the particular subject, he cannot offer expert opinion testimony on that subject. Id.

§ 720(a); Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1080-81.

In this case, Longo is unqualified to testify regarding the simulations. As already noted, he
has no training or education, and virtually no experience, in any industry relevant to this case. Lis
Jeserience is indistinguishable from that of a lay person. Thus, he does not have the requisite
special knowledge or experience to testify regarding the simulations or any data derived from them.

Hatfield aiso has no special expertise that will assist the trier of fact or that can qualify him
lo Serve as an expert witness during the trial of this case. He has no doctorate or other post
graduate degree. He is not a registered professional engineer in California or in any other state. He
is not a certified industrial hygienist in California or in any other state. He is not a mineralogist.
He has no training or education in any industry practices relevant in this case. His experience is
indistinguishable from that of a lay person. He merely serves as a “senior consultant” at MAS, a
corporation which is intimately associated with claimants in asbestos litigation, Thus, he also does

not have the requisite special knowledge or experience to testify regarding the simulations.

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Walsworth,
Franklin,
Bevins &

McCall, LLP

ATTORNEYS AT LAW

2. THE LONGO'S AND HATFIELD'S OPINIONS ARE BASED ON
UNRELIABLE AND INADMISSIBLE MATTERS

Opinion testimony must be based on reliable matters. Evidence Code § 801(b). In
particular, an expert may not base his opinion no any matter that has been declared by law to be an
improper basis for an opinion. Evidence Code § 801(b). Under California law, scientific evidence
that does not meet the Kelly standards is an improper basis for an opinion. (William E. Wegner, ef
al., California Practice Guide: Civil Trials & Evidence, Section 8:747 (Rutter Group 2000) (“The
following are some matters which the “law” precludes as the basis for an expert’s opinion: (1)
Scientific evidence not meeting ‘Kelly’ standards”).) Because the simulations that serve as the
basis of Longo’s and Hatfield’s purported opinions do not meet the Kelly standards, their opinions
are based on unreliable matter and should be excluded.

MI. CONCLUSION
For these reasons, Defendant respectfully moves the Court for an order in limine to exclude

the videotapes and related testimony of William Longo, John Templin and/or Richard Hatfield.

Dated: March 2% , 2010 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP

om Caw LDU

Robert M. Channel

Tan P. Dillon

Attomeys for Defendant
HAMILTON MATERIALS, INC.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
MATERIALS. INC.'S MOTION IN LIMINE #9 TO EXCLUDE EXPERT TESTIMONY AND VIDEOTAPE

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PROOF OF SERVICE

2
3 I am employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 601 Montgomery Street, Ninth Floor,
4 | San Francisco, California 94111-2612.
5 On March. Zoro, I served the within document(s) described as:
6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT
HAMILTON MATERIALS, INC.'S MOTION IN LIMINE #9 TO EXCLUDE EXPERT
7 | TESTIMONY AND VIDEOTAPE EVIDENCE OF WILLIAM LONGO, JOHN TEMPLIN
AND/OR RICHARD HATFIELD BASED ON INDIRECT ASBESTOS MEASUREMENT
8 [momen
9 on the interested parties in this action as stated below:
10 BRAYTON PURCELL
222 Rush Landing Road
11 | P.O. Box 2109
Novato, CA 94948
12
Facsimile No.: (415) 898-1247
13
(BY ELECTRONIC FILING/SERVICE) On the below date, I caused such document(s) to
14 be Electronically Filed and/or Served through the LexisNexis File & Serve System for the
above entitled case to those parties on the Service List maintained on LexisNexis File &
15 Serve Website for this case. This service reported as complete and a copy of the
"LexisNexis File & serve Filing Receipt" page will be maintained with the original
16 document(s) in our office.
17 Executed on March 2¢,2010, at San Francisco, California,
18 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
19
20 | Cheryl Lieu 6
4 (Type or print name) (Signature)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HAMILTON
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