Motion,Ex Parte: GODOFREDO PIQUE VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                BRAYTON®PURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO ROX 6169
NOVATO, CALIFORNIA 94948-6160

(415) 898-1555

Co em NY KD A BY

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GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
BRAYTON*PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

(415) 898-1555

Attorneys for Plaintiffs

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAY 02 2013

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ROSITA PIQUE, as Wrongful Death Heir, ) ASBESTOS
and as Successor-in-Interest to ) No. CGC-08-274659
GODOFREDO PIQUE, Deceased; and )
MARLENE SANCHEZ, GREGORY ) PLAINTIFFS’ OPPOSITION TO
PIQUE, FREDERICK PIQUE, as Legal ) DEFENDANT *S MOTION IN LIMINE
Heirs of GODOFREDO PIQUE, Deceased, ) NO. 14 TO EXCLUDE THE TESTIMONY
) OF JAMES MILLETTE/STEVEN
Plaintiffs, ) COMPTON
)
vs. )
) In Trial
DANA COMPANIES, LLC (FKA DANA } Dept.: 611, Hon. Lynn O’ Malley Taylor
CORPORATION), et al.,
)
Defendants. )
L
INTRODUCTION

Plaintiffs hereby request that the Court deny the defendant's attempt to exclude the

testimony of James Millette or his colleague, Steven Compton. The defendant’s request is

completely without merit and without supporting case law. Defendant seeks to improperly

exclude a well-qualified and well-respected research scientist who has accumulated an

extensive body of research and knowledge on the releasability of asbestos fibers from a wide

variety of products.

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Plaintiffs will offer into evidence the testimony of Dr. Millette. Dr. Millette’s expert
opinion testimony is provided to assist the jury in understanding the potential health hazards of
asbestos in the work place; release of asbestos fibers from asbestos-containing products,
including but not limited to, brakes; asbestos-containing product defects; the disease potential
of asbestos-containing products; testing and monitoring techniques for detecting the presence of
asbestos dust, including, but not limited to electron microscopy; and nature of asbestos and
asbestos fibers as well as all material science and asbestos foundational aspects. Defendant
attempts to exclude Dr. Millette's testimony by arguing that he does not meet the standard for
providing expert testimony as set forth in the California Code of Evidence. However, Dr.
Millette is a duly recognized asbestos expert, competent to provide expert testimony in this
context. Therefore, any attempt to exclude his testimony under the Evidence Code is
misdirected.

qu.

JAMES MILLETTE IS QUALIFIED TO TESTIFY UNDER THE STANDARD
SET FORTH UNDER THE CALIFORNIA CODE OF EVIDENCE

The expertise of Dr. Millette cannot be seriously challenged considering his training,
education, and experience. Evidence Code § 801 permits the opinion testimony of experts
before the jury on subjects "sufficiently beyond common experience" that "would assist the trier
of fact." No one would seriously deny that asbestos fiber release, testing and monitoring
techniques, and materials science are beyond the common experience of most jurors. Such
expert opinion testimony must be "[bJased on matters (including his special knowledge, skill,
experience, training and education) perceived by or personally known to the witness or made
known to him . . . that is of a type that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates. ..." (§ 801(b).)

To qualify as an expert witness under Evidence Code § 720(a), one is required to have
"special knowledge, skill, experience, training, or education . . . to which [his or her] testimony
relates." Such expertise, "may be shown by any otherwise admissible evidence," including the

witness's own testimony. (Evidence Code § 720(b).) There are no rigid classifications

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regarding the qualifications of an expert to testify on a specific subject within the expert’s
general expertise. (Mann v. Cracchiolo (1985) 38 C.3d. 18, 38.) The Court is required to give
liberal interpretation of the qualifications necessary for an expert to testify since the expert’s
qualification go to the weight, not the admissibility of his testimony. (Douglas v. Ostermeier
(1991) 1 Cal.App.4th 729; Adams v. Murakami (1991) 54 C.3d. 105.)

James Millette is a recognized expert in his field. See Caruolo v. John Crane, Inc., 226
F.3d 46, 54-55 (2 Cir, 2000) (upholding district court’s admission of expert’s testimony
regarding his reliance on and reference to James Millette’s study of asbestos fiber release from
packing material as a peer reviewed and authoritative publication in the relevant field of study).
Dr. Millette has a Bachelor of Science degree in physics; a Masters degree in Engineering: and a
Ph.D in Environmental Science. He served as a research scientist with the U.S. Environmental
Protection Agency for [1 years, and has published over 60 articles in the peer reviewed
literature. Dr. Millette performs work in particle analysis, asbestos analysis, industrial hygiene,
and the physics of small particles.

From 1974 to 1985, he worked for the Environmental Protection Agency Research
Center in Cincinnati, Ohio on a variety of projects dealing with small particles, including
concerns related to asbestos. The work he performed was then used in developing testing
regulations for the EPA, as well as other agencies, with regard to epidemiological and
toxicological studies.

He has taught courses on the subject of the asbestos analysis since the 1980s for entities
such as Lehigh University and the McCrone Research Institute, Chicago, Illinois. Currently, he
is one of the executive directors for MVA Scientific Consultants, outside Atlanta, Georgia, and
perform a wide range of work involving particle analyses, including work for the USEPA and
the Army Corps of Engineers. He is currently the Chairman of the American Society of
Materials (ASTM) subcommittee D22.07 that develops methods for the analysis of asbestos.

Since his work for the EPA in 1974, asbestos has been a focus of his work. He has been
involved with research and publication in his field, including authoring over 30 peer-reviewed

articles on the subject of asbestos. He has published in such journals as the Science of the Total

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Environment, Environmental Health Perspectives, The Microscope, The Archives of
Environmental Health, and Applied Occupational and Environmental Analysis Journal. He has
contributed to books regarding asbestos exposure, including Asbestos, Risk Assessments,

Epidemiology and Health Effects, by Drs. Hammar and Dodson.

His work concerning asbestos requires an understanding of small particle physics, and
microscopy. Due to the size of asbestos fibers and fiber bundles, electron microscopes are
necessary to observe, study, and test the physics of such fibers.

In conducting his studies, Dr. Millette used standard procedures for the analysis of
asbestos air sampling and fiber counting promulgated by the National Institute of Occupational
Safety and Health (“NIOSH”), the International Standards Organization (“ISO”), and the
Asbestos Hazard Emergency Response Act (“AHERA”). All of these are standard
methodologies which have been approved and extensively used by other scientists in
conducting and analyzing asbestos air sampling and fiber releasability. Defendant offers the
curious argument that the use of a test chamber, designed to accurately determine the amount of
asbestos released from product use, is somehow improper. In fact, any differences, real or
perceived, between the test chamber and the plaintiffs’ exposure goes to the weight of Dr.
Millette’s studies, not the admissibility.

Any doubts sustained by the jury as to Dr. Millette’s credibility are for the jury to
resolve. The degree of Dr. Millette’s knowledge is a matter affecting the weight of his

testimony, not its admissibility. (Los Altos El Granada Investors v. City of Capitola (2006)

139 Cal.App.4th 629, 658.) As succinctly stated in the Los Altos El Granada Investors case,

The essential questions which must be favorably answered to qualify a witness
as an expert ate two: Does the witness have the background to absorb and
evaluate information on the subject? Does he have access to reliable sources of
information about the subject?... (Ibid.)

Dr. Millette has expertise on fiber release from asbestos-containing products -- the very core of
this case. Unquestionably, it would be reversible error to deny his testimony on any subject

related to the qualities, detection, sampling or fiber release of asbestos, regardless of the product

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or environment. (Hymen v. Gordon (1973) 35 Cal.App.3d. 769, 775; Lunghi v. Clark
Equipment Co. (1984) 153 Cal-App.3d 485, 490.)

In order for this Court to find for defendant under Evidence Code Section 352 there
must be a clear and unequivocal showing of prejudice such that any probative value is
“substantially” outweighed. Defendant has made no such showing. While Dr. Millette’s
testimony may be prejudicial to defendant, this is the natural result of most relevant evidence
which is contrary to defendant’s position, There is nothing on this record or in California
jurisprudence which would permit this Court to exclude his testimony in Limine.

Defendant's legal authority for the subject motion consists of Culpepper v. Volkswagen
(1973) 33 Cal App.3d 510, This case is unavailing and is distinguishable,

The Culpepper court, determining the admissibility of a rollover test film involving a
VW vehicle stated the following:

In the case of experimental evidence, the preliminary fact (see
Evid. Code, § 403, subd. (a)(1)) necessary to support its relevancy
is that the experiment was conducted under the same or similar
conditions as those existing when the accident took place. The
standard that must be met in determining whether the proponent
of the experiment has met the burden of proof of establishing the
preliminary fact essential to the admissibility of the experimental
evidence is whether the conditions were substantially identical,

not absolutely identical. (Beresford v. Pacific Gas & Elec. Co., 45
Cal.2d 738, 749.

in determining relevancy, the question is whether the experiment
has any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action. (Evid.
Code § 210; Holling v. Chandler, 241 Cal. App.2d 19, 23.

In the present action, Dr. Millette’s studies on asbestos brakes, will be shown to involve
work with pipe “substantially similar” to that performed by Mr. Black. It goes without saying
that fiber release measurements from such activities are clearly relevant to the factual
determination of this case. Nothing about Dr. Millette’s testing, publication or opinions runs
afoul of the holding in Culpepper. Defendant has submitted nothing to support its unfounded
argument that such evidence violates the test set forth. Tellingly, defendant has cited to no

decision of any court in the United States in which Dr. Millette’s testimony has been excluded,

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despite the fact that it he has testified based on his testing for decades all around the country in
many hundreds of asbestos trials.
A. DR. MILLETTE IS NOT REQUIRED TO HOLD OPINIONS ABOUT

DEFENDANTS’ SPECIFIC PRODUCT FOR HIS TESTIMONY TO BE
ADMISSIBLE AS EXPERT TESTIMONY

Defendant argues for the exclusion of Dr. Millette on the grounds that in deposition, Dr.
Millette testified that he did not have opinions particular to defendant. This is misleading and,
even were it true, irrelevant to the admissibility of Dr. Millette’s opinion.

Dr. Millette is being produced by plaintiffs to provide testimony about the release of
asbestos fibers from various products, including brakes, to which the decedent was exposed.
Dr. Millette is testifying about the content of the brakes ~ e.g. that it contained asbestos fibers —
and about the release of fibers from the brakes. Since plaintiffs are unable to provide a sample
of the exact, specific product with which he worked — unsurprisingly, since decades have passed
— Dr. Millette must rely on samples of similar products.

While asbestos content of products may vary from brand to brand, and even within
different formulations from the same manufacturer, the function of the asbestos within the
products, or the use of the products themselves, does not change. Nor does the behavior of
particles once they are released. Asbestos fibers are subject to the laws of physics, which don’t
vary by trademark or brand name. Dr. Millette’s observations and testimony about brakes are
relevant to all the manufacturers of such products. The way in which decedent was exposed to
asbestos fibers from blowing out, arching, removing, and handling brakes is consistent from
product to product and manufacturer to manufacturer in that class.

The issue of consistency between products has been addressed by California courts in
the context of subsequent remedial measures:

Ford argues that the trial court erred in admitting evidence of prerecall brake

failures in 1965 models. This contention is easily resolved. At trial, Ford

contended that the 1966 brake system was substantially different because of

design modification instituted pursuant to the recall campaign and maintained on

1966 models: The 1966 system’s fluid had a higher dry boiling point; Ford also
installed a vented dust shield and changed the brake lining. Plaintiffs countered
with expert testimony suggesting that the changes were insignificant and, in the

case of the vented dust shield, completely ineffective. The trial court plainly had
a reasonable basis for admitting evidence of the numerous failures occurring in

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1965 models for the purpose of showing the nearly identical 1966 models to be

similarly defective. Plaintiffs were not required to prove that the 1965 system

was exactly the same as the 1966 system. “Identical conditions will rarely be

found. Substantial similarity is normally sufficient.” (Jensen v, Southern Pacific

Co. (1954) 129 Cal.App.2d 67, 74 [276 P.2d 703].)

Hasson vy. Ford Motor Co., 32 Cal. 3d 388, 403-404 (Cal. 1982). While the case is not on point
with the issue of admissibility of expert testimony, the rationale is the same: evidence can be
presented to prove a product defect even when that evidence does not pertain to the specific
product at issue if they are substantially similar,

Courts in California have consistently held that there are difficulties of causation
inherent in asbestos cases and have relieved plaintiffs from the burden of tying causation to a
specific defendant:

In particular, they need not prove with medical exactitude that fibers from a

particular defendant's asbestos-containing products were those, or among those,

that actually began the cellular process of malignancy.

Rutherford v. Owens-Illinois, 16 Cal. 4th 953, 958 (Cal, 1997). Therefore, so long as Dr.
Millette’s testimony is applicable to the products at issue generally and meets the test of
relevancy under Evidence Code Section 351 (“Except as otherwise provided by statute, all
relevant evidence is admissible”), it is not precluded by failure to identify one particular
defendant.
Hi.
TO HAVE THE SUFFICIENCY OF EVIDENCE OR THE EXISTENCE OF

TRIABLE ISSUES OF MATERIAL FACT DECIDED IN THE GUISE OF A
MOTION IN LIMINE IS A PERVERSION OF THE PROCESS

In asbestos litigation, unlike any other civil litigation before the courts, defendants have
engaged in an ever expanding practice of misusing and abusing the non-statutory “Motion In
Limine” as a substitution for non-suits, demurrers, motions for summary judgments and
premature 402 hearings. In the process, plaintiffs’ counsel are often obligated to respond to
numerous unauthorized and misused attempts to circumvent the Code of Civil Procedure, the
Evidence Code, and the plaintiffs’ work-product doctrine. In this case, defendant has filed an
absurd number of motions in imine! The trial court is then forced to review or rule on a

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mountain of boilerplate motions before any of the backlog of asbestos cases actually proceeds to
trial.

The case of Amtower v. Photo Dynamics (2008) 158 Cal.App.4th 1582 is a clear and
unequivocal expression of the frustration experienced by the Courts of Appeal sanction “trial by
paper, rather than trial by evidence.” The court declared:

In purpose and effect, the foregoing non-statutory procedures are
merely substitutes for the dispositive motions authorized by
statute, Appellate Courts are becoming increasingly wary of
this tactic....fcitations omitted] “To have the sufficiency of a

leading or the existence of triable issues of material fact decided
in the guise of a Motion In Limine is a perversion of the process.
The disadvantages of such shortcuts are obvious. They
circumvent procedural protections provided by statutory motions
or by trial on the merits; they risk blind sighting the non-moving
party; and, in some cases, they could infringe on a litigants right
to a jury trial.’ [Cal. Const. Art. L section 16]. Adherence to the
statutory process would avoid all these risks. Furthermore, these
irregular procedures can result in unnecessary reversals. The risk
of reversal arises when Appellate Courts are required to review a
dispositive ruling on an In Limine Motion as if 1t were the
product of a motion for non-suit after opening statement.
‘[G]ranting of a non-suit after an opening statement is a
disfavored practice; it will be upheld only when it is clear that
counsel has undertaken to state all the facts which he expects to
prove and it is plainly evident that those facts will not constitute a
cause of action,’... The standard of review in such cases requires
that all inferences and conflicts in the evidence be resolved in
favor of the losing party and against the judgment...In contrast, on
appeal from a judgment following trial, appellate review favors
the judgment... Thus, some cases will be subject to reversal
where, had the Trial Court just taken the time to hold a trial,
reversal would not be warranted, [Emphasis added.]

(Amtower v. Photo Dynamics (2008) 158 Cal.App.4th 1582, 1584-1585.)

One of the elements of a fair trial is the right to offer relevant and competent evidence
on a material issue. Denial of this fundamental right is almost always considered reversible
error. (Guardianship of Waite (1939) 14 Cal.2d. 727, 730; Elkins v. Superior Court (2007)
41 Cal 4th 1337, 1357.) A party’s opportunity to call witnesses to testify and to proffer

admissible evidence is central to having his day in court. (Kelly v. New West Federal Savings

(1996) 49 Cal. App.4th 659, 677; Elkins v. Superior Court, supra.) Defendant’s motion in

limine to exclude a key witness is nothing more than an attempt to deny plaintiff his right to a

fair trial.

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CONCLUSION
Dr. Millette is qualified as an expert witness by his training and experiences. (CACI
219.) He has the special knowledge, skill, training and experience required under both the
Evidence Code and case law to offer expert testimony on the issues named in defendant’s most
recent motion in limine. The credibility of expert witnesses is a question for the jury. For all
these reasons and because defendant’s motion attempts to de an end-run around procedural

requirements, defendant’s motion must be denied.

Dated: SAS BRAYTON®PURCELL LLP

By: /s/ James P. Nevin

James P. Nevin
Attorneys for Plaintiffs

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PLAIN * OPPOSITION ‘TO DEFENDANT 'S MOTION IN LIMINE NO, 14 FO EXCLUDE THE TESTIMONY OF JAMES:
MILLETTE/STEVEN COMPTONBRAYTON@PURCELL LLP

ATTORNEYS AT LAW

222 RUSH LANDING ROAD

PO BOX 6189
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

20 mY DW BRB WN

WB NH = oS

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PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE

lam employed in the County of Marin, State of California. I am over the age of 18
years and am not a party to the within action, My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato, California, 94948-6169.

On ! l electronically served (E-Service), pursuant to General Order
No. 158, the following documents:

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION IN LIMINE NO. 14 TO
EXCLUDE THE TESTIMONY OF JAMES MILLETTE/STEVEN COMPTON

on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(ies):

HONEYWELL INTERNATIONAL, INC.
Hassard Bonnington LLP

Two Embarcadero Center

Suite 1800

San Francisco, CA 94111

HONEYWELL INTERNATIONAL, INC.
Perkins Coie LLP

Four Embarcadero Center, Suite 2400
San Francisco, CA 94111

The above document was transmitted by Lexis-Nexis E-Service and the transmission
was reported as complete and without error.

Executed on. Sil 2

at Novato, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

XN

Angela Pasterfield t

Rosita Pique, et al. v. Dana Companies, LLC (fka Dana Corporation), et al.
San Francisco Superior Court Case No. CGC-08-274659

PROOF OF SERVICE BY E-SERVICE