On March 02, 2009 a Motion,Ex Parte was filed involving a dispute between Husband, Charles, and Albay Construction Company, All Asbestos Defendants See Scanned Documents, American Conference Of Governmental Industrial, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Bell Asbestos Mines Ltd., Bigge Crane And Rigging Co., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Bucyrus International Inc, Carone Brothers, Inc., Cbs Corporation,, Certainteed Corporation, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Conocophillips Company, Csk Auto, Inc., Daimlerchrysler Corporation, Daimlerchrysler Corporation (And Not The Claims, Dillingham Construction, N.A., Inc., Does 1-8500, Emsco Asbestos Company, Fibre & Metal Products Company, Forcee Manufacturing Corporation, Garlock Sealing Technologies Llc, Gatke Corporation, Georgia-Pacific Corporation, Georgia-Pacific Llc,, Hamilton Materials, Inc, Hanson Permanente Cement, Inc. Fka Kaiser Cement, H. Krasne Manufacturing Company, Honeywell International Inc.,, Ingersoll-Rand Company, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Lasco Brake Products, Lear Siegler Diversified Holdings Corp., L.J. Miley Company, Maremont Corporation, Marine Engineering And Supply Company, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Transport Supply, Inc., Owens-Illinois, Inc., Pacific Gas And Electric Company, Parker Hannifin Corporation, Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Riteset Manufacturing Company, Rossendale-Ruboil Company, Santa Fe Braun, Inc. As Successor-In-Interest To, Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Standard Motor Products, Inc., Standco, Inc., Stuart-Western, Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Underwriters Laboratories, Inc., Union Carbide Corporation, Universal Friction Materials Company, U.S. Spring & Bumper Company, Wheeling Brake Block Manufacturing Company, York International Corporation, for civil in the District Court of San Francisco County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
LLP KNOX RICKSEN 1 || Kenneth J. McCarthy - SBN 120875 Gregory D. Pike - SBN 124847 2 | KNOX RICKSEN LLP ELECTRONICALLY 1300 Clay Street, Suite 500 3 | Oakland, CA 94612-1427 s F I L E D . Telephone: (510) 285-2500 County of San Francisca 4 | Facsimile: 510) 285-2505 aesimile: G10) NOV 09 2011 5 || Attorneys for Defendant Clerk of the Court BIGGE CRANE AND RIGGING CO. BY: JUDITH NUNEZ 6 eputy Clerk 7 8 SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO 9 10 | CHARLES HUSBAND, No. CGC-09-275098 41 Plaintiff, BIGGE CRANE & RIGGING COMPANY’S MOTION IN LIMINE 12 v. NO. 5: 413 | ASBESTOS DEFENDANTS (BP). et al., TO PRECLUDE LAY WITNESS TESTIMONY REGARDING PRODUCT 14 Defendants. COMPOSITION 15 Trial Date: November 14, 2011 Dept. : 206 16 Time: 11:15 am. Judge: TBD 17 Action Filed: March 2, 2009 18 19 L INTRODUCTION 20 Defendant BIGGE CRANE AND RIGGING CO (hereinafter “BIGGE”) anticipates that 24 plaintiff may try to circumvent the well-established rule that opinion testimony that goes beyond the scope of a witness’ perceptions requires expert testimony. BIGGE thus requests that this Court 22 23 preclude any attempt to elicit lay witness opinion testimony regarding whether a product did or did oA not contain asbestos. Such opinion testimony clearly goes far beyond the permissible scope of a lay witness' permitted testimony regarding his/her perception and, instead, would call for conjecture on * the part of the witness. It is exactly the type of subject matter for which expert opinion is required. * As such, any opinion testimony regarding whether a product did or did not contain asbestos should 77 be limited to the parties’ expert witnesses. 28 -1- BIGGE CRANE AND RIGGING CO's MOTION IN LIMINE # 5LLP KNOX RICKSEN 27 28 I. ARGUMENT AL A LAY WITNESS IS NOT PERMITTED TO PROVIDE OPINIONS ON SUBJECT MATTERS BEYOND THE WITNESSES PERCEPTION, Lay opinion testimony regarding the composition of products is not permitted under California law. Unless a witness is testifying as an expert, his or her opinion testimony is generally limited to an opinion that is rationally based on the witness’ perception and helpful to a clear understanding of his or her testimony. Cal. Evid. Code § 800. A question asking a lay witness to give an opinion not based the witness' perception calls for an answer based on impermissible speculation or conjecture, People v. Glancy (1956) 142 Cal. App. 2d 669, 680. Further, a lay witness’s opinion regarding the composition of materials would clearly be impermissibly based upon hearsay, as it would require the out-of-court reading of documents or out- of-court discussions with third parties regarding the material's composition. The lay witness thus cannot testify regarding the composition of the material he worked with or around because that would clearly require speculation on the part of the witness and is thus prohibited by California law. B. THE PURPOSE OF EXPERT TESTIMONY IS TO OPINE ON SUBJECTS RELATED TO THE COMPOSITION OF MATERIALS THAT THE WITNESS WORKED WITH AND AROUND. The opinion testimony of an expert is sought when the opinion is related to a subject sufficiently beyond common experience and would thus assist the trier of fact. Cal, Evid, Code § 801(a). Here, the composition of materials with or around which plaintiff worked is beyond the common knowledge of the lay person and is thus exactly the type of testimony for which an expert is required. Further, an expert's opinion may be based on matters that are not admissible as evidence, such as hearsay. Cal. Evid. Code § 801(b). Nortica v. State Compensation Insurance Fund, (1999) 70 Cal.App.4th 911, 932-933 (expert witness, who gave opinion as to why insurance carrier had changed its reserve guideline, based opinion, in part, on interview with insurer's president that -2- BIGGE CRANE AND RIGGING CO's MOTION IN LIMINE # 5LLP KNOX RICKSEN 27 28 appeared in trade publication). Thus, the composition of materials with or around which the plaintiff worked is firmly within the ambit of expert testimony. As such, the proper way for a party to explore the composition of any materials at trial is through his or her expert. HL, CONCLUSION Testimony pertaining to the composition of materials with or around which the plaintiff] worked calls for opinion testimony that is sufficiently beyond the common experience of a lay person and, thus requires expert testimony. It also would inevitably be based upon hearsay discussions or transactions. As such, BIGGE respectfully requests this Court to preclude lay witness testimony regarding products’ composition. DATED; November 4, 2011 KNOX RICKSEN LLP By:_/s/ Gregory D, Pike Gregory D. Pike Attorneys for Defendant BIGGE CRANE AND RIGGING CO. -3- BIGGE CRANE AND RIGGING CO's MOTION IN LIMINE # 5LLP KNOX RICKSEN 27 28 Re: Husband v. Asbestos Defendants (BP), et al. San Francisco Superior Court No. CGC-09-275098 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 1, the undersigned, declare: that I am and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and | am employed in the County of Alameda, California, My business address is 1300 Clay Street, Suite 500, Oakland, California 94612-1427. On the date executed below, ! electronically served the document(s) via LexisNexis File & Serve described as: BIGGE CRANE & RIGGING COMPANY’S MOTION IN LEMINE NO, 5: TO PRECLUDE LAY WITNESS TESTIMONY REGARDING PRODUCT COMPOSITION on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct and was executed on November 9, 2011 at Oakland, California. /s/ Nicholas J. Bertolino Nicholas J, Bertolino -4- BIGGE CRANE AND RIGGING CO's MOTION IN LIMINE # 5