On August 21, 2013 a
Motion,Ex Parte
was filed
involving a dispute between
Moses Sr., Kenneth,
and
Alta Building Material Co.,
Ames Drywall Products Company,
Cahill Construction Co., Inc.,
Century Indemnity Company,,
Consolidated Insulation, Inc.,
Does 1 To 800, Inclusive,
Douglass Insulation Company, Inc., Et Al.,
Fdcc California, Inc.,
Georgia-Pacific Llc (Fka Georgia-Pacific,
Golden Gate Drywall, Inc.,
Hamilton Materials, Inc.,
James A. Nelson Co., Inc.,
J & R Construction,
Kaiser Gypsum Company, Inc.,
Kelly-Moore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Pacific Coast Building Products, Inc.,
Rich-Tex, Inc.,
Tom Oaks Drywall,
Union Carbide Corporation,
Moses Sr., Kenneth,
for civil
in the District Court of San Francisco County.
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HASSARD BONNINGTON LLP
Edward E. Hartley, Esq. (#122892) eeh@hassard.com
Barry N. Endick, Esq. (#142097) bne@hassard.com TILED ~
as Battery street. Suite 1600 Superior Court of Catrornia
an Francisco, California 94111-3370
Telephone: (415) 288-9800 10/16/2015
Fax: (415) 288-9802 Clerk of the Court
s AGBAY
Attorneys for Defendant Deputy Clerk
ALTA BUILDING MATERIAL CO.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION
KENNETH MOSES, SR., No. CGC-13-276180
Plaintiff, MOTION JN LIMINE NO. 1
vs. DEFENSE MOTION IN LIMINE TO
PRECLUDE LAY OPINION ON
KAISER GYPSUM COMPANY, INC., WHETHER PRODUCTS RELEASED
etal., ASBESTOS FIBERS
Defendants. Trial Date: October 14, 2015
Time: 11:00 a.m.
Dept.: 306
Judge: Hon. Richard B. Ulmer, Jr.
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Defendants prior to trial and before the
selection of a jury, hereby move this Court, in limine, for an Order precluding lay
opinions on whether particular products emitted or released asbestos fibers.
Plaintiff claims he developed colon cancer partially as a result of his
work as a drywall worker installing wall panels from 1973 to 2000. Plaintiff allegedly
worked with asbestos-containing joint compounds as well as worked around
asbestos-containing products being used by other trades.
Plaintiff testified regarding his alleged exposure to asbestos. During
deposition, Plaintiff claimed that he knew products contained asbestos due to his
“internet research.”
-1-
DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS
RELEASED ASBESTOS FIBERS
P:\Wdocs\HBMAIN\02932\00031\00983688.DOCX-101615=
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Q: Do you know if the PACO all-purpose contained
asbestos?
A: Do | know? As we speak now, yes.
Q: And you know that through your internet research?
A: Correct
q.--1
Q: Do you know if the spray texture PACO product
contained asbestos?
A: | do now.
Q: And that’s from your Internet research?
A: Yes, sir.
q.--
Q: Do you have any personal knowledge whether
National Gypsum mud contained asbestos?
A: | wouldn't know.
q.-4
Q: Do you have any information that the quarter rounds of
pipe insulation that you saw at this site contained
asbestos?
A: Yes.
Q: Is that from your Internet research, or is that from
some other source?
A: That is from the Internet research.
ell
Q: ...Did you understand that some insulation might have
contained asbestos and some did not?
A: Well, in my later — | don’t know. | don’t think — | think
all of it was asbestos through my Internet search.
Q: Other than your Internet search, do you have any other
reason to believe that the quarter round pipe insulation
used at this unknown jobsite contained asbestos?
A: | wouldn’t know that.
Deposition of Kenneth Moses., Vol. 10, pp. 1047:25-
1048:5; 1057:5-9; 1094:15-17; 1102:24-1103:5; and
1103:11-21, taken on March 5, 2014, attached to the
Declaration of Edward E. Hartley as Exhibit A!
This testimony impermissibly provides that certain products contained
asbestos. Such testimony is completely improper from a lay witness.
This is especially true as Plaintiff has no basis or foundation to testify
that any products used at jobsites where he worked contained asbestos. Plaintiff
testified as follows about his “Internet research”:
Q: How did you come to learn that information?
A: That information is now all over the Internet.
1-1
‘ All exhibit references are to the Declaration of Edward E. Hartley
-2-
DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS
RELEASED ASBESTOS FIBERS
P:\WDOCS\HBMAIN\02932\0003 1\00983688.DOCX-101615=
oOo ON OH Fk WOW NY
Q: Before you filed your lawsuit, did you do an Internet
search on Google or Yahoo! or something like that of the
products that may contain asbestos?
A: You know, | think that was when | had colon cancer.
That's when | think | did some checking on some stuff.
Q: ...Was that in 2000?
A: Sir, I’m not good with dates either. Let’s say 2000.
Q: So around 2000 you did a little Internet research on
brands that you recalled working with to see if they
contained asbestos?
A: Yes, sir.
Q: And do you remember what websites you searched?
A: | do not recall.
Deposition of Kenneth Moses, Vol. 9, pp. 960:16-19 and
960:24- 961:16, taken on March 4, 2014, Exhibit B.
Plaintiff could not provide any information about his purported “Internet
research” into the asbestos content of products. Plaintiff admitted that other than his
research, he did not know about the asbestos-content of products. Thus, Plaintiff has
no basis or knowledge to testify that any product used at a construction site contained
asbestos.
Defendants anticipate that Plaintiff will make similar statements at trial
and testify to their opinion that various products emitted or released asbestos fibers in
the workplace. Such lay opinion testimony is inadmissible and should be barred.
California Evidence Code §800 provides that lay opinion is generally
limited to opinions that are rationally based on the perception of the witness and
helpful to a clear understanding of his testimony. Moreover, lay witnesses may not
express opinions that are not within common knowledge or experience. People v.
McAlpin (1991) Cal.3d 1289, 1308. Cal. Evi. Code §800 and California courts require
that the witness first have actually “perceived” that which he provides an opinion and
that the opinion not be beyond common experience.
While a lay witness might be able to attest to the fact that dust of some
kind was emitted or released by a product, it is beyond the capability of the lay
witness to opine whether the dust that was emitted did or did not contain asbestos
fibers. Such a conclusion is beyond common experience and therefore, any
3-
DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS
RELEASED ASBESTOS FIBERS
P:\WDOCS\HBMAIN\02932\0003 1\00983688.DOCX-101615=a
oO ON OH BF WYO NY
testimony regarding the asbestos content of dust, based on the mere viewing of the
dust, is improper.
Whether a particular product emitted asbestos dust — as opposed to
dust from another component of the product — is clearly “beyond the realm of
common experience.” Accordingly, the Court should preclude plaintiff from offering
any witness not properly qualified as an expert to testify whether dust emitted by a
particular product contained asbestos fibers.
For the reasons stated above, defendants respectfully request this
Court grant its motion to preclude plaintiff from offering any witness not properly
qualified as an expert to testify whether dust emitted by a particular product contained
asbestos fibers.
Dated: October Vo, 2015
HASSARD BONNINGTON LLP
“Edward E=Hartley
Attorneys for Defendant
ALTA BUILDING MATERIAL CO.
-4-
DEFENSE MOTION JN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS
RELEASED ASBESTOS FIBERS
P:\WDOCS\HBMAIN\02932\00031\00983688,DOCX-101615=
oo ON ODO HO FF WO KN
PROOF OF SERVICE
CASE NAME: Kenneth Moses, Sr., et al. v. Kaiser Gypsum Company, Inc.,
etal.
COURT: San Francisco Superior Court
CASE NUMBER: CGC-13-276180
|, the undersigned, hereby certify that | am a citizen of the United States, over
the age of eighteen years, and am not a party to the within action. | am employed in
the City and County of San Francisco, California, and my business address is 275
Battery Street, Suite 1600, San Francisco, California 94111-3370. On the date last
written below, following ordinary business practice, | electronically served the
following document(s):
MOTION IN LIMINE NO. 1, DEFENSE MOTION IN LIMINE TO PRECLUDE LAY
OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS
via File & ServeXpress on the recipients listed below and designated on the
Transaction Receipt located on the File & ServeXpress website.
| declare under penalty of perjury that the foregoing is true and correct and that
this Proof of Service was executed on October 16, 2015 at San Francisco, California.
¢ Ait Fx
~~ Daniel Black
P:\Wdocs\HBMAIN\02932\00031\00984264.DOC
Preview
= oOo ON OO RF WwW NY HASSARD BONNINGTON LLP Edward E. Hartley, Esq. (#122892) eeh@hassard.com Barry N. Endick, Esq. (#142097) bne@hassard.com TILED ~ as Battery street. Suite 1600 Superior Court of Catrornia an Francisco, California 94111-3370 Telephone: (415) 288-9800 10/16/2015 Fax: (415) 288-9802 Clerk of the Court s AGBAY Attorneys for Defendant Deputy Clerk ALTA BUILDING MATERIAL CO. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION KENNETH MOSES, SR., No. CGC-13-276180 Plaintiff, MOTION JN LIMINE NO. 1 vs. DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON KAISER GYPSUM COMPANY, INC., WHETHER PRODUCTS RELEASED etal., ASBESTOS FIBERS Defendants. Trial Date: October 14, 2015 Time: 11:00 a.m. Dept.: 306 Judge: Hon. Richard B. Ulmer, Jr. TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendants prior to trial and before the selection of a jury, hereby move this Court, in limine, for an Order precluding lay opinions on whether particular products emitted or released asbestos fibers. Plaintiff claims he developed colon cancer partially as a result of his work as a drywall worker installing wall panels from 1973 to 2000. Plaintiff allegedly worked with asbestos-containing joint compounds as well as worked around asbestos-containing products being used by other trades. Plaintiff testified regarding his alleged exposure to asbestos. During deposition, Plaintiff claimed that he knew products contained asbestos due to his “internet research.” -1- DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS P:\Wdocs\HBMAIN\02932\00031\00983688.DOCX-101615= oOo ON OO RF WN Q: Do you know if the PACO all-purpose contained asbestos? A: Do | know? As we speak now, yes. Q: And you know that through your internet research? A: Correct q.--1 Q: Do you know if the spray texture PACO product contained asbestos? A: | do now. Q: And that’s from your Internet research? A: Yes, sir. q.-- Q: Do you have any personal knowledge whether National Gypsum mud contained asbestos? A: | wouldn't know. q.-4 Q: Do you have any information that the quarter rounds of pipe insulation that you saw at this site contained asbestos? A: Yes. Q: Is that from your Internet research, or is that from some other source? A: That is from the Internet research. ell Q: ...Did you understand that some insulation might have contained asbestos and some did not? A: Well, in my later — | don’t know. | don’t think — | think all of it was asbestos through my Internet search. Q: Other than your Internet search, do you have any other reason to believe that the quarter round pipe insulation used at this unknown jobsite contained asbestos? A: | wouldn’t know that. Deposition of Kenneth Moses., Vol. 10, pp. 1047:25- 1048:5; 1057:5-9; 1094:15-17; 1102:24-1103:5; and 1103:11-21, taken on March 5, 2014, attached to the Declaration of Edward E. Hartley as Exhibit A! This testimony impermissibly provides that certain products contained asbestos. Such testimony is completely improper from a lay witness. This is especially true as Plaintiff has no basis or foundation to testify that any products used at jobsites where he worked contained asbestos. Plaintiff testified as follows about his “Internet research”: Q: How did you come to learn that information? A: That information is now all over the Internet. 1-1 ‘ All exhibit references are to the Declaration of Edward E. Hartley -2- DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS P:\WDOCS\HBMAIN\02932\0003 1\00983688.DOCX-101615= oOo ON OH Fk WOW NY Q: Before you filed your lawsuit, did you do an Internet search on Google or Yahoo! or something like that of the products that may contain asbestos? A: You know, | think that was when | had colon cancer. That's when | think | did some checking on some stuff. Q: ...Was that in 2000? A: Sir, I’m not good with dates either. Let’s say 2000. Q: So around 2000 you did a little Internet research on brands that you recalled working with to see if they contained asbestos? A: Yes, sir. Q: And do you remember what websites you searched? A: | do not recall. Deposition of Kenneth Moses, Vol. 9, pp. 960:16-19 and 960:24- 961:16, taken on March 4, 2014, Exhibit B. Plaintiff could not provide any information about his purported “Internet research” into the asbestos content of products. Plaintiff admitted that other than his research, he did not know about the asbestos-content of products. Thus, Plaintiff has no basis or knowledge to testify that any product used at a construction site contained asbestos. Defendants anticipate that Plaintiff will make similar statements at trial and testify to their opinion that various products emitted or released asbestos fibers in the workplace. Such lay opinion testimony is inadmissible and should be barred. California Evidence Code §800 provides that lay opinion is generally limited to opinions that are rationally based on the perception of the witness and helpful to a clear understanding of his testimony. Moreover, lay witnesses may not express opinions that are not within common knowledge or experience. People v. McAlpin (1991) Cal.3d 1289, 1308. Cal. Evi. Code §800 and California courts require that the witness first have actually “perceived” that which he provides an opinion and that the opinion not be beyond common experience. While a lay witness might be able to attest to the fact that dust of some kind was emitted or released by a product, it is beyond the capability of the lay witness to opine whether the dust that was emitted did or did not contain asbestos fibers. Such a conclusion is beyond common experience and therefore, any 3- DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS P:\WDOCS\HBMAIN\02932\0003 1\00983688.DOCX-101615=a oO ON OH BF WYO NY testimony regarding the asbestos content of dust, based on the mere viewing of the dust, is improper. Whether a particular product emitted asbestos dust — as opposed to dust from another component of the product — is clearly “beyond the realm of common experience.” Accordingly, the Court should preclude plaintiff from offering any witness not properly qualified as an expert to testify whether dust emitted by a particular product contained asbestos fibers. For the reasons stated above, defendants respectfully request this Court grant its motion to preclude plaintiff from offering any witness not properly qualified as an expert to testify whether dust emitted by a particular product contained asbestos fibers. Dated: October Vo, 2015 HASSARD BONNINGTON LLP “Edward E=Hartley Attorneys for Defendant ALTA BUILDING MATERIAL CO. -4- DEFENSE MOTION JN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS P:\WDOCS\HBMAIN\02932\00031\00983688,DOCX-101615= oo ON ODO HO FF WO KN PROOF OF SERVICE CASE NAME: Kenneth Moses, Sr., et al. v. Kaiser Gypsum Company, Inc., etal. COURT: San Francisco Superior Court CASE NUMBER: CGC-13-276180 |, the undersigned, hereby certify that | am a citizen of the United States, over the age of eighteen years, and am not a party to the within action. | am employed in the City and County of San Francisco, California, and my business address is 275 Battery Street, Suite 1600, San Francisco, California 94111-3370. On the date last written below, following ordinary business practice, | electronically served the following document(s): MOTION IN LIMINE NO. 1, DEFENSE MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS via File & ServeXpress on the recipients listed below and designated on the Transaction Receipt located on the File & ServeXpress website. | declare under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed on October 16, 2015 at San Francisco, California. ¢ Ait Fx ~~ Daniel Black P:\Wdocs\HBMAIN\02932\00031\00984264.DOC