Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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KNOX RICKSEN

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Kenneth J. McCarthy - SBN 120875
Gregory D. Pike - SBN 124847

KNOX RICKSEN LLP ELECTRONICALLY
1300 Clay Street, Suite 500
Oakland, CA 94612-1427 sopeh tilt ED oe
Tecmo (aa Sa

. NOV 09 2011
Attorneys for Defendant Clerk of the Court
BIGGE CRANE AND RIGGING CO. BY: JUDITH NUNEZ

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO

CHARLES HUSBAND, No. CGC-09-275098

Plaintiff, BIGGE CRANE & RIGGING
COMPANY’S MOTION IN LIMINE
v. NO. 3:

ASBESTOS DEFENDANTS (BP). et al., TO LIMIT THE TESTIMONY OF
CHARLES AY AND REQUEST FOR
Defendants. EVIDENCE CODE 8§ 402 AND 403
HEARING

Trial Date: November 14, 2011

Dept. : 206

Time: 11:15 a.m.

Judge: TBD

Action Filed: March 2, 2009

Defendant BIGGE CRANE AND RIGGING COMPANY (hereinafter “BIGGE”) hereby

moves the court, in limine, for an order limiting the testimony of Charles Ay, a Long Beach Naval
Shipyard insulator, whom plaintiff's counsel has designated as an “expert” at the trial and whom
they have announced that they intend to call. This motion is made on the grounds that 1) Charles Ay
does not possess the requisite skill or qualifications necessary to offer any opinions about plaintiff’ s
work premises, facilities or job sites relevant to the claims against Defendant BIGGE; and 2)
Charles Ay's opinions in this case are based upon pure speculation and conjecture, are not relevant
to any issues in this ease, and are more prejudicial than probative. Mr. Ay's testimony should be

limited to testimony concerning occupations and locations where he qualifies as an expert.

1_INTRODUCTION
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Plaintiff contends that he developed an asbestos-related disease as a result of various
exposures to asbestos through his employment. Plaintiff intends to have Charles Ay testify at trial as
an expert. However, Mr. Ay is in no way qualified to testify as an expert. Mr. Ay has only a high
school diploma, and is admittedly not an industrial hygienist. He is simply a former Long Beach

my,

Naval Shipyard shipboard insulator who has made a second career as a self-styled "expert" for
plaintiff law firms in asbestos litigation. Furthermore, Mr. Ay fails to base his opinions on relevant
facts, a proper methodology, or any other suitable foundation for expert testimony.

in addition, although plaintiff claims that he was exposed to asbestos through his work at
numerous job sites, Mr. Ay never worked, visited, or conducted asbestos-related studies at these
specific locations during the relevant time periods that plaintiff was working at the jobsites.
Therefore, in addition to being unqualified to give an expert opinion, Mr. Ay also lacks any specific

knowledge with respect to the locations where plaintiff was allegedly harmed.

IL. ARGUMENT

A. CHARLES AY DOES NOT POSSESS THE REQUISITE KNOWLEDGE,
TRAINING, OR SIKILL NECESSARY TO QUALIFY AS AN EXPERT

"A person is qualified to testify as an expert if he has special knowledge, skill, experience,
training or education sufficient to qualify him as an expert on the subject to which his testimony
telates.” Evidence Code § 720(a). The court may require a show of foundation before allowing an

expert to state his opinion. Evidence Code $802. Section 802 provides:

A witness testifying in the form of an opinion may state on direct examination the reasons
for his opinion and the matter (including, in the case of an expert, his special knowledge,
skill, experience, training, and education) upon which it is based, unless he is precluded by
law from using such reasons or matter as a basis for his opinion. The court in its discretion
may require that a witness before testifying in the form of an opinion be first examined
concerning the matter upon which his opinion is based.

The court may exclude opinion testimony based on an improper matter. Evidence Code
$803. Absent a proper and sufficient foundation, a person cannot testify as an expert witness. Courts
have an obligation to limit expert testimony to areas within the demonstrated expertise of the expert

witness. Korsak v. Atlas Hotels, inc. (1992) 2 Cal.App.4th 1516, 1523.

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Plaintiff has failed to establish that Mr. Ay is qualified as an expert. Mr. Ay is expected to
testify with respect to the identification, applications, and removal of asbestos and asbestos-
containing products at land-based facilities. Mr. Ay is also expected to testify about the results of air
sampling he conducted at some of the plaintiff's work sites (though not when plaintiff was at those
work sites), as well as about the release of asbestos fibers during the use, installation and/or removal
of products or materials alleged to contain asbestos.

Mr. Ay, however, has absolutely no special knowledge, experience or training regarding the
subject matter of his opinions. Mr. Ay is not a certified industrial hygienist. He is therefore not
competent to render any opinions or conclusions regarding any air sampling he might have
conducted in connection with this case. He is likewise incompetent to render any opinions or
conclusions regarding the alleged release of asbestos fibers into the air at any of the premises,
facilities or job sites at issue in this case. Such issues may only be addressed by a qualified
industrial hygienist with the requisite educational background and training.

B. CHARLES AY'S OPINION IS NOT BASED ON A MATTER REASONABLY
RELIED UPON UNDER EVIDENCE CODE §801

The opinion testimony of an expert witness is limited to those opinions which are based on
matters personally known to the expert or made known to him at or before the hearing that are of a
type that reasonably may be relied upon by the expert in forming an opinion on the subject matter of|
his testimony. Evidence Code $801(b). Courts have an obligation to require adequate foundation for
an expert opinion, Korsak, 2 Cal.App.4th at 1523. Matters "reasonably relied upon" by the expert in
forming his opinion depend on the circumstances but cannot be speculation or conjecture. [d. at
1524. When an expert has no training or personal research that would inform him about a subject
matter, that expert's opinion with regard to the subject matter is mere speculation and must be
excluded. /d. at 1526-27. If an expert opinion is not based on facts otherwise proved, it is not
substantial evidence worthy of admission. Hyatt v. Sierra Boat Co. (1978) 79 Cal. App.3d 325, 338-
39. See Garza v. Workmen's Compensation Appeals Board (1980) 3 Cal.3d 312, 318 n.3 (where an

expert did not completely examine the petitioner and the expert's opinion appears to be based on

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tangential information, the opinion is based on "guess, surmise or conjecture, rather than relevant
probative facts" and cannot constitute substantial evidence.)

Reliable expert testimony should constitute genuine knowledge in the expert's field, and to
that end, a court examines both the impartiality of the expert and the validity of the expert's opinion.
Pac. Gas & Elec. Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1127. This determination turns on
the reliability of the underlying facts or data upon which the expert's opinion is based, the
methodology used by the expert, and the application of the methodology to the facts of the case. If]
the substantive foundation for the opinion is unreliable, the opinion itself is unreliable.

Mr. Ay has no special knowledge regarding these topics and has provided no legitimate
testing results, research or facts whatsoever to substantiate any opinion he might offer pertaining to
the removal or installation of asbestos containing products at facilities where plaintiff contends
BIGGE was present and allegedly caused plaintiff to be exposed to asbestos-containing material.

See Korsak, 2 Cal.App.4th at 1526 (an opinion is not admissible where the information relied on by

the expert was not from a scientific study, survey or investigation.) “[E]ven an expert cannot be
permitted just to testify in a vacuum by (sic) things that he might think could have happened.”
Hyatt; 79 Cal.App.3d at 338. Mr. Ay has provided no scientific data or facts, items reasonably relied
upon for the formation of an expert opinion, in support of his opinion. Mr, Ay's opinions related to
Mr. Husband’s purported exposure to asbestos from asbestos-containing materials consist of mere
conjecture and speculation based on his review of “Exhibit A” a summary of plaintiffs alleged
asbestos exposure provided to Ay by the Brayton office shortly before his deposition in this matter,
“Exhibit A” cannot be admitted under Evidence Code $801 (6).

Plaintiff has failed to demonstrate that Mr. Ay has the requisite training, experience, and
skill to testify about the issues relevant to this ease. Because Mr. Ay has not and cannot meet the
qualification requirement of Evidence Code 8§702(a) and 720, he should be precluded from
testifying as an expert.

Mit
Mt

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C. TESTIMONY REGARDING PLAINTIFF’S JOBSITES WHERE MR. AY NEVER
WORKED, VISITED, OR CONDUCTED ASBESTOS-RELATED STUDIES
DURING RELEVANT TIME PERIODS MUST BE EXCLUDED

Mr. Ay has no knowledge of Mr. Husband’s working conditions at locations where Mr. Ay
was not present when Mr. Husband worked at either the Phillips Petroleam Company in Avon, CA
or the Shell Oil refinery in Martinez, CA: (1) Mr. Ay has never worked in any capacity at either the
Phillips Petroleum Company in Avon, CA or the Shell Oil refinery in Martinez, CA; (2) Ay has
never visited either the Phillips Petroleum Company in Avon, CA or the Shell Oil refinery in
Martinez, CA during the relevant time periods when plaintiff was working there and claiming
asbestos exposure, (3) Ay did not do any studies during relevant time periods of the working
conditions (including asbestos exposure studies) at either the Phillips Petroleum Company in Avon,
CA or the Shell Oil refinery in Martinez, CA where plaintiff alleges that he was exposed to asbestos
as a result of BIGGE’s acts; (4) Mr. Ay has no personal information regarding the products Mr,
Husband worked with or around and does he have any information regarding asbestos fiber content
of any materials. Mr. Ay is simply not qualified to testify about Mr. Husband’s alleged exposure to
asbestos-containing materials.

In the present case, plaintiff and/or co-worker witnesses can testify about the nature Mr.
Husband’s working conditions. Further, plaintiff can call available witnesses who actually worked
at the locations at which Mr. Husband worked during the relevant time periods. Where such
“personal knowledge" witnesses are available, the testimony of someone who never worked at or
visited those sites should not be allowed. Such testimony would involve the undue consumption of
time by the introduction of cumulative information. At a minimum, the probative value of such
speculative testimony would be outweighed by the prejudice to defendant. California Evidence
Code Section 352.

D. THE TESTIMONY OF CHARLES AY SHOULD BE EXCLUDED BECAUSE HE
IMPROPERLY PROFFERS PLAINTIFF'S INTERROGATORY RESPONSES

California Code of Civil Procedure §2030.410 provides that "any party other than the

responding party" may use interrogatory responses at trial. CCP. $2030.4/0. The principal reason

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for not allowing the use of interrogatories as evidence on behalf of the answering party is the fact
that there is no opportunity for cross-examination. Horman Estate (1968) 265 Cal.App.2d 796, 805.
Answers to interrogatories "[b]y their very nature, ... contain self-serving facts.” Id.

In this case, plaintiff's counsel provided Mr. Ay with a summary of plaintiff's interrogatory
responses. A copy of this "Exhibit A" was provided to defense counsel at the time of Ay’s
deposition in this case. The opinion testimony of Charles Ay is predicated upon this summary and
his opinions cannot be presented without revealing the unsubstantiated factual allegations therein.
More importantly, Ay testified in his deposition in this matter that he does not know who prepared
“Exhibit A” that he was rely upon to formulate his opinions. In this respect, Plaintiff is attempting
to improperly introduce interrogatory responses before the jury through Mr. Ay. By this method
plaintiff precludes defense counsel from cross-examining the very basis of the claims against them.

This practice is in violation of C.C.P. §2030.410. As such, the court may exclude opinion
testimony based on an improper matter. Evidence Code §803. Furthermore, Evidence Code §804,
which covers opinion based on opinion or statement of another states that "nothing in this section
makes admissible an expert opinion that is inadmissible because it is based in whole or in part on
the opinion or statement of another person." The only exception is the Kelley rule. See Kelley v.
Bailey (1961) 189 Cal.App.2d 728. However, the Kelley rule is inapplicable to matters, such as here,
where the expert was hired for litigation purposes to provide expert testimony and the out-of-court
statements are offered for the improper hearsay purpose of independent proof of facts. Whitfield v.
Roth (1974) 10 Cal.3d 874, 894-96.

E. THE TESTIMONY OF CHARLES AY IS BASED UPON SPECULATION AND

CONJECTURE, AND AS SUCH IS MISLEADING, IRRELEVANT, AND UNDULY
PREJUDICIAL

Under California law, the trial court serves as a sort of gatekeeper to ensure that
inadmissible and prejudicial expert testimony does not reach the jury. To that end, the court looks to
the proponent of the scientific expert testimony to demonstrate that the evidence is admissible.
People v. Ashmus (1992) 54 Cal.3d 932, 970. The trial court must determine: 1) the reliability of the

underlying theories and methodology of the expert's scientific testimony and the application of the

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methodology to his conclusions; 2) the expert’s qualifications, and 3) whether the danger of unfair
prejudice, confusion, or misleading the jury outweighs the probative value of the testimony,
pursuant to Evidence Code §352. An expert's opinion has no evidentiary value if the expert's
opinion is based on assumptions not supported by the record, upon matters that are not reasonably
relied upon by other experts, or upon factors that are speculative, remote or conjectural. Pac. Gas &
Elec. Co. v. Zuckerman, 189 Cal.App.3d 1113, at 1135. In the context of expert witness testimony, a
new scientific technique must be "sufficiently established to have gained general acceptance in the
particular field in which it belongs.” People v. Kelly (1996)17 Cal.3d 24, 30.

The testimony of Mr. Ay should be precluded pursuant to Evidence Code §§350 and 352
and for failure to meet the standards set out in Kelley and Zuckerman. Charles Ay has never
personally worked with plaintiff. As such, he knows nothing about plaintiff's specific work at any
given jobsite, nor the locations on a given job site where the plaintiff actually worked. Furthermore,
“Exhibit A” upon which Ay is basing his opinions is not the type of data or information reasonably
relied upon by experts in formulating their opinions. Under the tests announced in Kelley and
Zuckerman “Exhibit A” fails. Therefore, Mr. Ay has no legitimate way of knowing whether
plaintiff was actually exposed to asbestos as a result of his work during the times he worked at any
given job site, and any testimony, opinions or conclusions rendered by Mr. Ay as to the
identification, application and removal of asbestos and asbestos-containing products at any of Mr.
Husband’s job sites necessarily lack foundation, and would be premised upon pure speculation and
conjecture,

If Mr. Ay is permitted to testify as an expert in this case, the jury may give his opinions
more weight than merited simply because, he is being characterized as an expert. Furthermore, his
testimony, opinions and conclusions regarding the results of air sampling may mislead a jury into
believing that plaintiff Mr. Husband was actually exposed to asbestos at the job sites where such
sampling was conducted, even though there is no evidence that (1) the conditions which might have
been present at the time of sampling were the same or substantially similar to those which existed

when plaintiff actually worked at the jobsite, (2) that plaintiff actually worked in the locations

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within a given job site where such air sampling was conducted, and (3) that plaintiff was actually
exposed to asbestos fibers as a result of actions of BIGGE.

Indeed, the California Court of appeals have determined the testimony of Charles Ay to be
"speculative" in Andrews v. Foster Wheeler, LLC (2006) 138 Cal. App. 4th 96, 112-113. The
Andrews case involved a plaintiff's alleged exposure to Foster Wheeler asbestos containing products
while serving onboard the USS BRINKLEY BASS. Jd. Plaintiff's "evidence" in that case relied
upon the testimony of Charles Ay and another expert. /d. Charles Ay testified that certain work was
“more likely than not" performed onboard this ship and that this work "would more likely than not
release respirable asbestos fibers into the surrounding areas." /d. at 111. The Court of Appeals found
Ay's "testimony" to be mere "speculation" that “even under our most lenient review, ‘creates only “a
dwindling stream of probabilities that narrow into conjecture.”*” Jd. at 112,

Accordingly, Mr. Ay's testimony as an alleged "expert" should be excluded as unduly
prejudicial, speculative and misleading, and because it lacks the requisite foundation and relevance
to permit its introduction to the jury.

Ih, CONCLUSION

For the foregoing reasons, defendant BIGGE CRANE AND RIGGING CO. respectfully
requests that this court limit Mr. Ay’s testimony to topics concerning shipyards, refineries and other
locations where he actually worked, and preclude any testimony related to plaintiff's work,
plaintiff's exposure to asbestos, and work with any asbestos materials at job site where BIGGE
cranes may have been present. In the alternative, Defendant moves the court to conduct a hearing
pursuant to Evidence Code §§ 402 and 403 to determine the relevancy and/or admissibility, if any.

of Mr. Ay's testimony, his asbestos samples, and his videotapes,

DATED: November 4, 2011 KNOX RICKSEN LLP

By:_/s/ Gregory D, Pike

Gregory D. Pike

Attorneys for Defendant

BIGGE CRANE AND RIGGING CO.

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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 LIMINE NO. 3:

TO LIMIT THE TESTIMONY OF CHARLES AY AND REQUEST FOR EVIDENCE
CODE §§ 402 AND 403 HEARING

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

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