On March 12, 2008 a Motion-Secondary was filed involving a dispute between Breckler, Joann, Breckler, Rodrick, and Actuant Corporation, Airgas-Northern California & Nevada, Inc., Air Products And Chemicals, Inc., All Asbestos Defendants, Allied Manufacturing Company, Allied Mfg Co., Inc., Allis-Chalmers Corporation Product Liability Trust, Allsberry Mechanical Corporation, American Conference Of Governmental Industrial Hyg, American Honda Motor Co., Inc., American Plumbing And Heating Supplies, American Plumbing & Heating Supplies, American Standard, Inc., Anderson, Rowe & Buckley, Inc., A.O. Smith Corporation, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Baldor Electric Company, Bayer Cropscience, Inc., As Successor To Amchem, B.E.E Industrial Supply, Inc., Bell Asbestos Mines Ltd., Bigge Crane And Rigging Co., Borg-Warner Corporation, Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Bryan Steam Llc, Buckles-Smith Electric Company, Bucyrus International, Inc., Burnham Corporation, Burnham Llc (Fka Burnham Corporation Which Will Do, Burnham Llp F K A Burnham Corporation, Carl N. Swenson Co., Inc., Carrier Corporation, Cbs Corporation, A Delaware Corporation, F K A, Chester C. Lehmann, Co., Inc., Chester C. Lehmann, Co. Inc., Dba Electrical, Chrysler Llc, Clayton Industries, Inc., Cleaver-Brooks, Inc., Consolidated Insulation, Inc., Craftsman Elevators, Inc., Crane Service Corporation, Csk Auto, Inc., Daimlerchrysler Corporation, Dana Corporation, Does 1-8500, Eaton Electrical Inc., Electrical Materials, Inc., Emsco Asbestos Company, Fdcc California, Inc., Fdcc California, Inc.,, Federal-Mogul Asbestos Personal Injury Trust, Fibre & Metal Products Company, Forcee Manufacturing Corporation, Ford Motor Company, Garlock Sealing Technologies, Llc, Gatke Corporation, General Electric Company, General Motors Corporation, Genuine Parts Company, George Rossmann, Inc., Goulds Pumps, Inc., Grinnell Corporation, Grinnell Llc,, Haley Engineering Corporation, Hamilton Sunstrand Corporation, Hanson Permanente Cement, Inc., Hanson Permanente Cement, Inc. Fka Kaiser Cement, Hennessy Industries, Inc., H. Krasne Manufacturing Company, Honda Motor Co., Ltd., Honda North America, Inc., Honda Of America Mfg., Honda Of Canada Mfg., A Division Of, Honda Of South Carolina Mfg., Inc., Hondapower Equipment Manufacturing, Inc., Honda R&D America, Inc., Honda R&D Co., Ltd., Honeywell International Inc., F K A Alliedsignal,, Hurst Boilers, Ingersoll-Rand Company, Jack'S Unlimited, Inc., Jacks Unlimited, Inc., J.T. Thorpe & Son, Inc., Larry Hopkins, Inc., Lasco Brake Products, Lear Siegler Diviersified Holdings Corp., L.J. Miley Company, L.R. Trillo Company, Inc., Madco Welding Supply Co, Inc., Madco Welding Supply Co., Inc., Maremont Corporation, Mcmaster-Carr Supply Company, Medical Counsel Berry & Berry, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Transport Supply, Inc., Nissan Forklift Corporation, Nissan Motor Co., Ltd., Nissan North America, Inc., North America And Nissan Technical Center North, Owens-Illinois, Inc., Pacific Scientific Company, Parker Hannifin Corporation, Peebels Equipment Company, Placerville Auto Parts, Inc., Plant Insulation Company, Pneumo Abex Llc, Pratt & Whitney, Quintec Industries, Inc., Ray L. Hellwig Mechanical Co. Inc., Ray L. Hellwig Plumbing & Heating, Inc., R.E. Cuddie Co., Redwood Plumbing Co., Inc., Riteset Manufacturing Company, Robert Bosch Corporation, Robert Bosch Llc, Rockwell Automation, Inc., Rossendale-Ruboil Company, Rudolph And Sletten, Inc., San Jose Boiler Works, Inc., Sasco, Schneider Electric Usa, Inc., Scott Co. Of California, S. H. Coley Construction Company, Sikorsky Aircraft Corporation, Silver Line Products, Inc, South Bay Electric, Southern Friction Materials Company, S & S Welding, Inc., Standard Motor Products, Inc., Standco, Inc., Stuart-Western, Inc., Super Shops, Inc., The Budd Company, The Jack Dymond Company, The Jack Dymond Company., Toyota Motor Sales U.S.A., Inc., Trane Us Inc. Fka American Standard Inc., Underwriters Laboratories Inc., Union Carbide Corporation, Unique Electronic Transfer And Storage, Inc., Unique Electronic Transfer & Storage, Inc., United Technologies Corporation, Universal Friction Materials Company, U.S. Spring & Bumper Company, Viacom, Inc., Westburne Supply Inc., Westburne Supply, Inc., Wheeling Brake Block Manufacturing Company, W. L. Larsen, Inc., W.L. Larsen, Inc., W.W. Grainger, Inc., York International Corporation, for civil in the District Court of San Francisco County.
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PO BOX 6169 222 RUSH LANDING ROAD NOVATO, CALIFORNIA 94948-6169 BRAYTON@PURCELL LLP ATTORNEYS ATLAW (415) 898-1555 i Do COC WD rh Bh WwW NY 10 il 12 13 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 GILBERT L. PURCELL, ESQ., S.B. #113603 ANNE T. ACUNA, ESQ., S.B. #245369 BRAYTON*#PURCELL LLP Attorneys at Law ELECTRONICALLY 222 Rush Landing Road FILED P.O. Box 6169 _ Superior Court of California, Novato, California 94948-6169 County of San Francisco (415) 898-1555 JUL 22 2011 anti Clerk of the Court Attorneys for Plaintiffs BY: ANNIE PASCUAL Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO RODRICK BRECKLER and ) ASBESTOS JOANN BRECKLER, ) No. CGC-08-274566 ) Plaintiffs, ) PLAINTIFFS’ OPPOSITION TO ) DEFENDANTS’ MOTION IN LIMINE NO. vs. ) 6TOLIMIT THE TESTIMONY OF } CHARLES AY AT TRIAL ASBESTOS DEFENDANTS (B%P) ) In Trial Dept.: 503, Hon. Teri L. Jackson L INTRODUCTION In the above-mentioned case, plaintiffs will offer into evidence the testimony of Mr. Charles Ay. Mr. Ay's expert opinion testimony is provided to assist the jury in understanding where asbestos is found, in what products, and how those products are installed and/or removed--including asbestos-containing electrical products. Mr. Ay's opinion is based upon his training, research and investigation. Additionally, his testimony serves as foundation for testimony for the other expert witnesses who will testify in connection with this matter. Defendants attempt to limit Mr. Ay'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, Mr. Ay is a duly recognized asbestos expert, competent to provide expert testimony Mt eAtnjurec\ 0674 7nd. ngp-tanie Chavles Ay. 1 zcv BLAINTIFFS’ OPPOSITION TO DEFENDANTS” MOTION IN LIMINE NO. 6 TO LIMIT THE TESTIMONY OF CHARLES AY ATOo Mm YW DH RB WN & RO mem S 0 wm WN DH FW Ym Oo No uo yn YP NR WYN om A A 8 I] TRIAL in this context. Therefore, any attempt to limit or exclude his testimony under the Evidence Code is misdirected. i MR. AY IS QUALIFIED TO TESTIFY UNDER THE STANDARD SET FORTH UNDER THE CALIFORNIA CODE OF EVIDENCE The expertise of Mr. Ay cannot be seriously challenged considering his more than twenty years as licensed asbestos consultant in the State of California. 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." Such expert opinion testimony must be "[b]ased 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 expest in forming an opinion upon the subject to which his testimony relates... ." 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).) Mr. Ay easily meets these requirements. Based on prior trial testimony, plaintiffs expect that Mr. Ay will testify to the following regarding his experience and qualifications: In 1979 Mr. Ay was certified by the Department of Education to collect and analyze air samples using phase contrast microscopy. In 1986 he was certified to collect and count asbestos fibers under the National Occupational Safety and Health (NIOSH) standard 7400. He is certified as a building inspector, management planner, contractor supervisor, and project designer under the Federal Asbestos Hazard Emergency Response Act of 1980. In this capacity he is involved in abatement projects, first identifying the scope of the problem and then designing a project to encapsulate or remove the asbestos. Since 1984, Mr. Ay has inspected buildings and properties and collected samples of materials to analyze for asbestos. He is “t K.NInjured 108747 urityni- opp tant Charles Ay. 2 Tv PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 6 TO LIMIT THE TESTIMONY OF CHARLES AY AT0 mY DA HU eR WBN RD NR VY RB RP RN KR Dm me oY AW BBN KF FS OD wm HI DA HA FF WN & OO certified by the State of California as an asbestos consultant pursuant to Business & Professions Code § 7180.! Mr. Ay is retired from the asbestos trade as a worker and currently does consulting work for the business Porto-Therm. He also works for the business Asbestos Detection, inspecting industrial, residential, and marine properties for the presence of friable and non- friable asbestos. As part of this work he collects bulk and air asbestos samples and analyzes them. Mr, Ay has specifically analyzed numerous asbestos-containing materials, including joint compounds, taping compounds, friction, insulation, and adhesives made with asbestos, and he will testify that such materials are regulated materials and must be handled by licensed asbestos workers, since any disturbance will create fiber release episodes. Once removed, these materials must be bagged and tagged and transported according to the Department of Transportation Regulations for hauling hazardous materials. Mr. Ay has chaired workshops related to asbestos for the New York Academy of Sciences. He chaired a session on labor's involvement in occupational medicine in 1973 at the first World Conference on Asbestos and in 1981. He has chaired conferences at Mt. Sinai Hospital in Washington, D.C. He has advised members of the epidemiology boards of the various branches of the armed services as to how members of the military might be exposed to asbestos in the course of their work. Mr. Ay also holds a California teaching credential to teach marine insulation. Wt ‘California Code of Regulations, Title 8, Section 1529(q)(2).Certified Asbestos Consultant Criteria. To obtain certification, an asbestos consultant must apply to the Division and complete all application requirements specified in Section 341.15. In order to qualify as an asbestos consultant, the applicant must meet all of the following requirements: (A) Achievement of a passing score as determined by the Division on an examination approved or administered by the Division including, but not limited to, the following subjects: 1. The physical characteristics of asbestos; 2. The health effects of asbestos; 3. The regulatory requirements of the Division, the Federal Occupational Safety and Health Administration, the U.S. Environmental Protection Agency, air quality management districts, and the Department of Health Services, including protective clothing, respiratory protection, exposure limits, personal hygiene, medical monitoring, disposal, and general industry safety hazards; 4. State-of-the-art asbestos abatement and control work procedures; 5. Federal Asbestos Hazard Emergency Response Act training information and procedures for inspectors, management planners, and supervisors, as provided for under Subchapter I] (commencing with Section 2641) of Chapter 53 of Title 15 of the United States Code, or the equivalent, as determined by the Division; and 6. Information concerning industrial hygiene sampling methodology, including asbestos sampling and analysis techniques and record keeping. KAbnhre 108747 sotuni-opp tail Charles Ay. wpe 3 tev POMNTIEFS" OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 6 TO LIMIT THE TESTIMONY OF CHARLES AY ATi Somaya AU F WN RN RYN NN NN DB ee ee aI A A RON &— So wW ADAH BF BW YN Since 1984, Mr. Ay has inspected buildings and properties and collected samples of materials to analyze for asbestos. He is certified by the State of California as an asbestos consultant pursuant to Business & Professions Code § 7180, and he is also certified as a building inspector, management planner, and worker/supervisor for asbestos. Mr. Ay is certified by an agency of the EPA to sample and evaluate airborne asbestos fibers, and he has been engaged in the inspection of commercial, residential, and industrial buildings and properties for the presence of friable and nonfriable asbestos since 1984. Mr. Ay is qualified in the identification, application, and removal of asbestos containing products, including brake and clutch friction products. Plaintiffs request that the Court not limit Mr. Ay's testimony because his broad background, training, and experience, particularly since 1984, render him competent and qualified to testify regarding the above-mentioned materials. Indeed, Mr. Ay has been qualified to testify as an expert witness in federal and state courts, including the Superior Court of San Francisco County, in the identification, use, installation and removal of asbestos-containing materials, and he has testified as an expert witness in a number of trials regarding asbestos exposure. CONCLUSION For all of the above reasons, plaintiffs respectfully request that this Court allow the introduction of Mr. Charles Ay's testimony into evidence before the jury. Dated: 7-2 7:-20(¢ BRAYTONPURCELL LLP Lf cufla ag eys for Plaintiffs KAlojuregh 1087 7 wratut-opp- tent Charles Ay.wpd 4 rey PLAINTIFFS’ OPPOSITION TO DEFENDANTS” MOTION IN LIMINE NO. 670 LIMIT THE TESTIMONY OF CHARLES AY ATfe PROOE OF SERVICE BY LEXIS-NEXIS E-SERVICE 2 I am employed in the County of Marin, State of California. Iam over the age of 18 ears and am not a party to the within action. My business address is 222 Rush Landing Road, 3] P.O. Box 6169, Novato, California, 94948-6169. 4 On July LE, 2011, I electronically served (E-Setvice), pursuant to General Order No. 158, the following documents: 5 6 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 6 TO LIMIT THE TESTIMONY OF CHARLES AY AT TRIAL 7 on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to 8 || General Order No. 158, to transmit a true copy thereof to the following party(ies): 9 SEE ATTACHED SERVICE LIST 10 ll The above document was transmitted by Lexis-Nexis E-Service and the transmission was reported as complete and without error. 12 & 3 Executed on July ZZ 2011, at Novato, California. 2 13 aii Bc g8<8 14 I declare under penalty of perjury under the laws of the State of California that the 5 ebeke foregoing is true and correct. esses . BEES Prenfgotel a & 3 3 7 Angela Posterfield 18 19 20 21 22 23 || Rodrick Breckler and Joann Breckler v. Asbestos Defendants (B¢P) San Francisco Superior Court Case No. CGC-08-274566 24 25 26 27 28 PROOF OF SERVICE BY E-SERVICEDate Created: 7/22/2011-9:14:44 AM A. (AAP) Created by: LitSupport - Matter Number: Antonioli & Farley 525 West Remington Drive, Suite 130 Sunnyvale, CA 94087 408-739-9717 408-739-1525 (fax) Defendants: Madco Welding Supply Co., Inc. (MADWSC) Burnham Brown 1901 Harrison Street 11" Floor Gakiand, CA 94612 510-444-6800 510-835-6666 (fax) Defendants: Borg-Warner Corporation by its Successor in Interest, BorgWamer Morse TEC Inc. (BWMORS) York International Corporation (YORKIN) Gordon & Rees LLP 101 West ee Suite 2000 San Diego, CA 921! 619-696- 6700 fis. 606: 7124 (fax) Defendan Pacific Seientific Company (PACSCD Ploaglan we Moran, Dunst & 333 Pine St, 5® Floor San Francisco, CA 415-781-7050 gst -5658 (fax) Defendants: George Rossmann, Inc. (GEOROS) Jackson Jenkins Renstrom LLP 55 Francisco Street, 6" Floor San Francisco, CA 94133 415-982-3600 . 415-982-3700 (fax) Defendants: S$ & S Welding, Inc. (SSWELD) Morgan, Lewis & Beckius LLP One Market, Spear Tower San Francisco, CA 94105 415-442-1000 415-442-1001 (fax) Defendants: Grinnell LLC (fka Grinnell corporation, also known as Grinnell Fire) (GRINN) Pond North, LLP 350 South Gtand Avenue Suite 3300 Los Angeles, CA, 91 213 6lie 6170 Lie a. 3594 (fax) Defendants: Air Products and Chemicals, Inc. AIRPRD) Genuine Parts Company (GPC) Brayton-Purceii Service List ServiceList - Live 108747.001 - Rodrick Breckler Berry & Berry P.O. Box 16070 2930 Lakeshore Avenue Oakland, CA 94610 510-835-8330 510-835-5117 (fax) Defendants: Berry & Berry (B&B) Buty & Curliano 555 °- 12" Street, Suite 1280 Oakland, CA 94607 510-267-: 300 510-267-0117 (fax) Defendan' RE. Caddie Co. (RECUD) Gordon & Rees LLP Embarcadero Center West 275 Battery Street, Suite 2000 San Francisco, CA 94111 415-986-5900 415-986-8054 (fax) Defendants: . Buckles-Smith Electric Company (BUCKSM) Ingersoll-Rand Company (INGRSL) McMaster-Carr Supply Company (MCMSUP) Trane US, Inc. fka American Standard, Inc. (AMSTAN) Hopkins & Carley First Street Sen Jose, CA 95113 408-286-9800 408-998-4790 (fax) Defendants: Chester C. Lehmann, Co., Inc. (CCLEHM) an Law Group 16 (0 Northgate Dave Suite 515 San Rafael, CA 94903 415-451-8200 415-451-8228 (fax) Defendants: W.W. Grainger, Inc. (WWGRAN) Nixon Peabody LLP One Embarcadero 18" Floor San Francisco, CA 94111 415-984-8200 866-542-6538 (fax) Defendants: Buckles-Smith Electric Company (BUCKSM) Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz LLP One California Street, Suite 1910 San Francisco, CA 94111 415-788-8354 415-788-3625 (fax) Defendants: Consolidated Insulation, Inc. (CONSOL) Trane US, Inc. fka American Standard, Inc. (AMSTAN) Run By ; Porterfield, Angela Bishop, Barry, Drath Watergate Tower Li 2000 Powell Street, Suite 1425 Emeryville, CA 94608 510-596-0888 510-596-0899 (fax) Defendants: Redwood Plumbing Co., Inc. (REDPLU} Rudolph and Sletten, Inc. (RDLFSL) Crasby & Rowell, LLP 299 Third Street, 2" Floor Oakland, CA 94607 510-267-0300 510-839-6610 (Fax) Defendants: Goulds Pumps, Inc. (GOULDP) Hassard Bonnington LLP Two Embarcadero Center Suite 1800 San Francisco, CA 94111 415-288-9800 415-288-9802 (fax) Defendants: Honeywell International, Inc. (HONEYW) Howard Rome Martin & Ridley 1775 Woodside B Road, pate 200 Redwood iy A 650-365-7715 650- 36h 5297 (fax) Defendants: Eaton Electrical Inc. (EATELE) er & Conant LLP treet Lombardi, Lo 1999 Harrison Suite 2600. Oakland, CA 9: 510-433-2600 4310. 433-2699 (fax) Defendants: Larry Hopkins Incorporated (LARHOP) Perkins Coie LLP Four Embarcadero Center, Suite 2400 San Francisco, CA 94111 415-344-7000 415-344-7050 (fax) Defendants: Honeywell Intemational, Inc. (HONEY W) Sedgwick LLP One Market Plaza Steuart Tower, 8" Foot 5 San Francisco, CA 9: 415-781-7900 415- “Bl. "1635 (fax) Defendants: General Electric Company (GE)— Brayton-Purcell Service List Oo Date Created: 7/22/2011-9:14:44 AM Run By : Porterfield, Angela A. (ABP) Created by: LitSupport - ServiceList ~ Live Matter Number: 108747.001 - Rodrick Breckier Selman Breitman LLP Walsworth, Franklin, Bevins & McCall 33 New Montgomery 601 Montgomery Street, 9" Floor 6" Floor San Francisco, CA 94111 San Francisco, CA 94105 415-781-7072 415-391-6258 (fax) 415-979-0400 415-979-2099 (fax) Defendants: Defendants: Cleaver-Brooks, Inc. (CLEAVR) Scott Co. of California (SCOTT) Westburne Supply, Inc. (WESSUP)