On May 20, 2009 a Motion,Ex Parte was filed involving a dispute between Juelch, Joyce, Juelch Sr, Norman, and 3M Company, 84 Lumber Company, 84 Lumber Company, A Limited Partnership, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, Asbestos Defendants, Cbs Corporation, A Delaware Corporation, F K A, Chevron U.S.A. Inc., Consolidated Insulation, Inc., Csk Auto, Inc., Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Garlock Sealing Technologies, Llc, General Electric Company, Genuine Parts Company, Hamilton Materials, Inc., J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Metalclad Insulation Corporation, Oscar E. Erickson, Inc., Pacific Gas And Electric Company, Pacipic Bell Telephone Company, Parker Hannifin Corporation, Quintec Industries, Inc., Redwood Plumbing Co., Inc., Santa Fe Braun, Inc., Sequoia Ventures Inc., Shell Oil Company, Thomas Dee Engineering Company, Timec Company, Inc., Tosco Refining Company, Inc., Union Carbide Corporation, Union Oil Company Of California, Unocal Corporation, for ASBESTOS in the District Court of San Francisco County.
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28 MCKENNA LONG & AupeioGe LLP ATTORNEYS AT Law SAN FRANCISCO LISA L. OBERG (BAR NO. 120139) DANIEL B. HOYE (BAR NO, 139683) ALECIA E. COTTON (BAR NO. 252777) MCKENNA LONG & ALDRIDGE LLP 101 California Street 41st Floor San Francisco, CA 94111 Telephone: (415) 267-4000 Facsimile: (415) 267-4198 Attorneys for Defendant ELECTRONICALLY FILED Superior Court of California, County of San Francisco APR 13 2010 Clerk of the Court BY: CHRISTLE ARRIOLA Deputy Clerk METALCLAD INSULATION CORPORATION SUPERIOR CourT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE SUELCH and NORMAN JUELCH, SR., Plaintiffs, v. ASBESTOS DEFENDANTS, (BP), ef al., Defendants. Case No, CGC-09-275212 DEFENDANT’S MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PropUuCcTs RELEASED ASBESTOS FIBERS [MIL 17] TRIAL DATE: Aprit. 5, 2010 DEPT.: 604 JUDGE: HONORABLE MARLA J. MILLER THE ABOVE-NAMED DEFENDANT (hereinafter “Defendant”), by and through its counsel, hereby moves this Court for an Order precluding lay opinion on whether particular products emitted or released asbestos fibers. Plaintiffs are expected to offer lay witnesses to testify to their opinion that various products emitted or released asbestos fibers when subjected to installation, removal or manipulation in the workplace. Such lay opinion testimony is inadmissible and should be barred. Calijornia bvidence Code § 8100 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 Medipin (19913 Cal. 3d 1284, 1308. Scetion $00 and the 27405089 -1- DEFENDANT'S MOTION IN LIMINE TO PRECLUDE LAY OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS [MIL 17] SP2741 8551.1oO OD OS SM BA Hh BBY ND 28 McKenna Lone ALDRIDGE LLP ATTORNEYS AT LAW SAN FRANCISCO 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 testimony regarding the asbestos content of dust, based on the mere viewing of the dust, is improper. Whether a particular product during installation, removal or otherwise handling 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 plaintiffs 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, Defendant respectfully requests this Court grant its Motion to preclude plaintiffs from offering any witness not properly qualified as an expert to testify whether dust emitted by a particular product contained asbestos fibers. Dated: — April 5, 2010 MCKENNA LONG & ALDRIDGE LLP p By: ta S, Lb, Lisa L. OBERG DANIEL B. HOYE ALEcIA E. COTTON Attorneys for Defendant, METALCLAD INSULATION CORPORATION 27405089 -2- DEFENDANT'S MOTION iN LIMINE 10 PRECLUDE LAY OPINION ON WHETHER PRODUCTS RELEASED ASBESTOS FIBERS [MIL 17} SF:274185514