On December 06, 2001 a Motion,Ex Parte was filed involving a dispute between Jordan, Cheryl Lynn, Jordan, James, Thomas Dee Engineering Company, and 4520 Corp., Abblummus Global, Inc., A C And S,Inc., A.H. Voss Company, Albay Construction, Allis-Chalmers Corp. Product Liability Trust, American Honda Motor Co., Inc., American Standard, Inc., Asbestos Corp. Limited, Asbestos Corporation Ltd., Asbestos Defendants, Babcock Borsig Power Inc Ref To Db Riley Inc, Blue Diamond Corp., Borg Warner Inc., Borgwarner Inc. Fka Borg-Warner Automotive, Inc., Bragg Investment Company, Inc., Bridgestone Firestone Americas Holdings, Inc., Bridgestone Firestone,Inc., Bridgestone Firestone North American Tire, Llc,, Bwd Automotive, Calaveras Cement Co., Certainteed Corporation, Chevron Products Company, Colonial Sugar Refining Company, Conocophillips Company, Consolidated Insulation, Inc., Crane Co., Crown Cork & Seal Company,Inc., Daimlerchrysler Corporation, Dana Corporation, D. Cummins Corporation, Diamond International Corp., Dillingham Construction N.A.,Inc., Dixon Boiler Works Inc, Dixon Boiler Works, Inc., Does 1-800, Dow Chemical Company, Dresser Industries Inc., D.W. Nicholson Corporation, Eaton Corporation, Elliott Company, Elliott Turbomachinery Co., Inc., Fisher Controls International, Llc, Flintkote Co., Flintkote Mines Ltd., Flowserve Us Inc, Flowserve Us Inc., Fluor Corporation, Fmc Corporation -Turbo Pump Operation, Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Ll, Gatke Corporation, General Electric Company, General Motors Corporation, General Refractories Company, Genstar Co., Genuine Parts Company, Goodrich Corporation, Grinnell Corporation, Halliburton Company, Hanson Cement, Inc., Henry Vogt Machine Co., Hercules Powder Company, Honeywell International, Inc. Fka Alliedsignal, Imo Industries Inc.,, Imo Industries, Inc., J.R.Simplot Company, J.R. Simplot Company, A Nevada Corporation,, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Keenan Properties, Inc, Kubota Corporation, Lamons Gasket Company Dba Power Engineering &, Lear Siegler Diversified Holdings Corp., Maremont Corporation, Metalclad Insulation Corporation, Monsanto Company, Morton International, Inc. A Rohm And Haas Company, Oakfabco, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Pacific Coast Building Products, Inc Dba Pacific, Parker Hannifin Corporation, Parker-Hannifin Corporation, Parsons Energy & Chemical Group, Inc., Parsons Energy & Chemicals Group Inc, Plant Insulation Company, Pnuemo Abex Corporation, As Successor, Power Engineering & Equipment Co. Inc., Quigley Company, Inc., Rapid-American Corporation, Republic Supply Company, Rheem Manufacturing Co, Rheem Manufacturing Company, Robertson-Ceco Corporation, Rosendahl Corporation, Santa Fe Braun, Inc. As Successor-In-Interest To, Sequoia Ventures, Inc., Shell Oil Company, Soo Line Railroad Company, Standard Motor Products, Stuart Radiator Core Manufacturing Co Inc, Stuart Radiator Core Manufacturing Co. Inc., Stuart-Western, Inc., Sugar City Building Materials Inc., Taylor Plumbing Supply Company, Dba Globe Plumbing, Taylor Plumbing Supply Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Thorpe Insulation Company, Tosco Corporation, Tosco Refining Company, Trimon, Inc., Union Carbide Corporation, Unocal Corporation, Viacom Inc., Successor By Merger To Cbs Corporatio, Vogt Valve Company, Waldron, Duffy, Inc., Westburne Supply, Inc., Yale Industrial Products, Inc., Zurn Industries, Inc., for ASBESTOS in the District Court of San Francisco County.
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t |i LEWIS BRISBOIS BISGAARD & SMITH LLP |i CONSTANCE MCNEIL, SBN 184526 E-Mail: meneil@!bbslaw.com ELECTRONICALLY ELIZABETH C. SEARS, SBN 250450 FILED E-Mail: sears@ilbbs.com Superior Court of California, One Sansome Street, Suite 1400 County of San Francisco San Francisco, CA 94104 Tel: 415.362.2580 J Fax: 415.434.0882 GORDON PARK-LI, Clerk BY: VANESSA WU Deputy Clerk Attorneys for Defendant PLANT INSULATION COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO W 12 JAMES JORDAN, } CASE NO, 402113 13 Plaintiff, ) 14 )} ASBESTOS-RELATED 15 MOTION IN LIMINE NO, 11: } TO EXCLUDE TESTIMONY OF ANY 16 ASBESTOS DEFENDANTS, ef ai., ) OF PLAINTIFF’S EXPERTS REGARDING } QUANTITIES OF ASBESTOS AT WORK 17 Defendants. ) SITES 18 Trial Date: January 20, 2009 3 Action Filed: December 6, 2001 19 20 L PRELIMINARY STATEMENT 21 Defendant PLANT INSULATION COMPANY (hereinafter “PLANT”) moves this court ia 22 limine to exclude any and all testimony by any of plaintiff's experts, including but not limited to 23 Economist Bary Ben-Zion, Ph.D; and Kenneth Cohen, Ph.D., regarding the quantity of asbestos fibers 24 present at job sites where plaintiff allegedly worked with asbestos-containing products allegedly 25 i supplic ied by PLANT. This motion is made on the grounds that any opinion, including Kenneth 26 Cohen’s, regarding the quantity of fibers presented is based on experimental evidence which was 27 gathered under conditions which were not substantially similar to conditions existing at the time of 28 work. 4812-9037-4403.1 i MILI? TOEXCLUDE TESTIMONY F ANY F PTF'S EXPERTS RE QUANITIES F ASBESTOS AT WORK SITES i LEGAL ARGUMENT A Testimony Regarding The Quantity Of Asbestos Fibers Present At Any Of Plaintiff's Job Sites Is Inadmissible Because It Is Based On Experimental Evidence Gathered Under Conditions Which Were Not Substantially Similar To The Conditions At Any Work Site. PLANT expects plaintiff's experts, including Kenneth Cohen, Ph.D., to testify regarding the quantity of asbestos present in the ambient air at any of the work sites. Dr. Cohen has not stated in deposition that he performed studies in any of the premises where Plaintiff worked. Any such testimony H from Dr. Cohen regarding work sites is based on his general conclusions about asbestos exposure on second-hand studies performed exclusively on board ships, PLANT believes that other Plaintiff's 10 experts may offer similar testimony. lt None of plaintiff s experts have visited any of Plaintiff's work sites, and therefore, are unable to 12 verify whether the products used in their experiments are the same as the products used at the work sites 13 in this suit, Further, these experts are unable to verify the effectiveness of the ventilation equipment 14 used to remove asbestos fibers, because they are unaware of the types of equipment used at any of the 15 work sites. Also, they are unable to determine the concentration of Plaintiff's alleged para-occupational 16 exposure. Because plaintifi’s experts are unable to address these critical issues, they are unable to show 17 that the experiments performed on board ships occurred under conditions substantially similar to those 18 existing at any work site or plant involved in this suit. 19 “tn the case of experimental evidence, the preliminary fact necessary to support its relevancy is 20 that the experiment was conducted under the same or similar conditions as those existing when the 21 accident took place.” (Culpepper v. Volkswagen of America. Inc. (1973) 33 Cal. App.3d 510, 521.) 22 Because conditions on board ships are substantially different from the conditions which existed at any of 23 the work sites in this action, results of plaintiff's expert’s research on board ships is irrelevant and lacks i 24 the requirement of substantial similarity to make it admissible. 25 tdi 26 Mt 27 Mi 28 Ht 4812-9037-4403.1 2 MIL 11: TO EXCLUDE TESTIMONY F ANY F PTF’S EXPERTS RE QUANITIES F ASBESTOS AT WORK SITES Hi. CONCLUSION Any testimony by plaintiff's experts, including Kenneth Cohen, Ph.D., regarding asbestos fiber content in the air at any work sife in this suit should be excluded as lacking foundation. Dated: Januar( 2009 LEWIS BRISBOIS BISGAARD & SMITH LLP B Elb th C. Sears ftorney for Defendant PLANT INSULATION COMPANY 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 4812-9637-4463.1 3 MIL 11. TO EXCLUDE TESTIMONY F ANY F PIF'S EXPERTS RE QUANITIES F ASBESTOS AT WORK SITES