On June 06, 2007 a Motion,Ex Parte was filed involving a dispute between Castagna, Louis, and Advocate Mines Limited, Albay Construction Company, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, American Conference Of Governmental Industrial, American Conference Of Governmental Industrial Hyg, American Standard, Inc., Ameron International Corporation, A.O. Smith Corporation, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Baugh Construction Company, Bechtel Corporation, Bell Asbestos Mines Ltd., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Briggs & Stratton Corporation, Bucyrus International, Inc., Caterpillar Inc., Cbs Corporation, A Delaware Corporation, Chevron Products Company, Chevron U.S.A. Inc., Chicago Bridge & Iron Company,, Chrysler Llc Fka Daimlerchrysler Company Llc,, Conocophillips Company, Consolidated Insulation, Inc., Contra Costa Electric, Inc., Copeland Corporation, Copeland Corporation, Llc Fka Copeland Corporation, Crane Co., Csk Auto, Inc., Daimlerchrysler Company Llc, Formerly Known As, Daimlerchrysler Corporation, Dana Corporation, Dillingham Construction N.A., Inc., Does 1-8500, Douglass Insulation Company, Inc., Durametallic Corporation, Eaton Corporation, Eaton Electrical Inc., Elliott Company,, Elliott Turbomachinery Co., Inc., Emsco Asbestos Company, Fibre & Metal Products Company, Fibre & Metal Products Company, Inc., Fisher Controls International Llc, Fmc Corporation, Fmc Corporation-Chicago Pump, Forcee Manufacturing Corp., Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Llc, Gate City Plumbing & Heating, Gatke Corporation, General Electric Company, General Motors Corporation, Genuine Parts Co., Genuine Parts Company, Henry Vogt Machine Co., H. Krasne Manufacturing Company, Honeywell International Inc.,, Hopeman Brothers, Inc., Imo Industries Inc., Ingersoll-Rand Company, Interlake Steamship Co., Johnson Controls, Inc., J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Lamons Gasket Company, Landsea Holding Company, Lasco Brake Products, Lear Siegler Diversified Holdings Corp., Lindstrom & King Co., Inc., L.J. Miley Company, Maremont Corporation, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Automotive Parts Association, National Transport Supply, Inc., Nibco Inc., Oakfabco, Inc., Owens-Illinois, Inc., Paccar Inc., Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corp., Performance Mechanical, Inc., Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Rapid-American Corporation, Red-White Valve Corporation, Republic Supply Company, Riley Power Inc., Riley Power, Inc., Erroneously Sued As Babcock, Riteset Manufacturing Company, Rockwell Automation, Inc., Rossendale-Ruboil Company, Santa Fe Braun, Inc., Schlage Lock Company, Scott Co. Of California,, Sequoia Ventures Inc., Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Special Electric Company, Inc., Special Materials, Inc.-Wisconsin, Standard Motor Products, Inc., Standco, Inc, Sta-Rite Industries, Llc, Stuart-Western, Inc., Swinerton Builders Fka Swinerton & Walberg Co., Taco, Inc., Temporary Plant Cleaners, Inc., Terry Corporation Of Connecticut, Terry Steam Turbine Co., The Budd Company, The Dow Chemical Company, The Industrial Maintenance Engineering Contracting, The William Powell Company, Thomas Dee Engineering Company, Timec Company, Inc., Tosco Refining Company, Inc., Trane Us, Inc., Triple A Machine Shop, Inc., Tyco International, Underwriters Laboratories, Inc., Uniroyal Holding, Inc., Universal Friction Materials Company, Unocal Corporation, U.S. Spring & Bumper Company, Warren Pumps, Llc, Wheeling Brake Block Manufacturing Company, Yarway Corporation, Zurn Industries, Llc, Formerly Known As Zurn, for civil in the District Court of San Francisco County.
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1 | MARK S. KANNETT, SBN 104572 PAUL S. LECKY, SBN 154480 2 || BECHERER KANNETT & SCHWEITZER : ELECTRONICALLY The Water Tower 3 1255 Powell Street supekr IL EDP, Emeryville, California 94608-2604 County of San Francisco 4 | Telephone: (510) 658-3600 Facsimile: (510) 658-1151 OCT 07 2010 5 Clerk of the Court Attormeys for Defendant By: EDNALEEN JAVIER 6 | JOHNSON CONTROLS, INC. Deputy Clerk 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO-COURT OF UNLIMITED JURISDICTION 10 | LOUIS CASTAGNA, CASE NO.: CGC 07 - 274230 il Plaintiff, MOTION IN LIMINE NO. 4. 12 v. DEFENDANT JOHNSON CONTROLS, 13 INC.’S MOTION IN LIMINE TO EXCLUDE ASBESTOS DEFENDANTS (B-*P), et al. TESTIMONY BY CHARLES AY 4 Defendants 15 Compliant Filed: June 6, 2007 16 Trial: October 12, 2010 17 18 19 L INTRODUCTION 20 Charles Ay is a well-known testifier on behalf of asbestos plaintiffs throughout the state 21 | and this motion in limine to exclude his testimony will undoubtedly be one of many filed in this 22 | case.’ Defendant Johnson Controls, Inc. (‘JCI’) anticipates that plaintiff will attempt to introduce 23 || testimony by Charles Ay to establish that JCI negligently caused plaintiff to be exposed to pecheret 24 || asbestos-containing building materials. JCI hereby moves the Court in limine for an Order Schwellzer 25 | precluding the admission of any expert opinion testimony by Charles Ay. 1255 Ereywit,ca 20 Stose 3600 27 ' No defendant accepted the plaintiff's offer of Mr. Ay's deposition. This is likely because of how familiar 28 || the defense bar is with his testimony. DEFENDANT JOHNSON CONTROLS, INC.’S MOTION IN LIMINE TO EXCLUDE TESTIMONY BY CHARLES AY“Becherer Kannett & Schweitzer 530.658.3600 wow on Ao fF WN YN NN NY Be Be eee eee Bons F&F 6 OWN AHA KOHN EH OC 25 26 27 28 The Motion is made on the grounds that: 1. Ay is not qualified under Evidence Code § 720 to testify about the contents of building materials used during the 1970s and 1980s or the standard of care in working with such materials that might have caused piaintiff to be exposed to asbestos. 2. Ay's opinion can only be based on the vague recollections of the plaintiff, who is unable to recall any specific job sites or work done in his vicinity by JCI. For this reason, Ay’s testimony would necessarily be speculative, lack foundation and is not admissible pursuant to Evidence Code § 801(b). M. AY IS NOT QUALIFIED TO TESTIFY ABOUT ASBESTOS EXPOSURE FROM CONSTRUCTION TRADES AT ANY TIME Charles Ay is not qualified under Evidence Code Sec. 720 to give an expert opinion on the issue of whether or not various building materials in the 1970s and 1980s contained asbestos and if altering those materials would have caused the plaintiff to be exposed to asbestos. Similarly, he is not qualified to testify regarding the standard of care for the construction industry doing work similar to JCI during this time frame. Under Section 720, to qualify as an expert, a witness must have “special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The initial determination of whether or not an expert is qualified is within the sound discretion of the trial court. Miller v. Los Angeles County Flood Contro! Dist. (1973) 8 Cal.3d 689, 701 (in flood control action, the trial court found that a mechanica! engineer with hydrology and hydraulic expertise was not qualified to testify to reasonable construction practices because he had no close involvement with the construction of homes or local building practices). A witness’s expertise must closely fit the subject at issue before he or she can be qualified to opine on that subject. Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1080-1081 (physician who was an expert in the fabrication and use of catheters was not qualified to give opinions about the catheter's chemical composition, its tensile strength, or its material construction). 2 = DEFENDANT JOHNSON CONTROLS, INC.’S MOTION IN LIMINE TO EXCLUDE TESTIMONY BY CHARLES AY |Becherer Kannett & Schweitzer 1255 Powell St. Emeryville, CA ‘94608 510-658-3600 oOo ON DO FF Ww ND FB YP NNN YN NK NPB Be Be Be Be eB ee eo A AE OH EF FCO WANA HT BR HN HO Ay’s expertise does not fit the subject matter on which he might opine in this case and should be excluded from evidence. Ay’s background is as an insulator in Naval Shipyards. However, there has never been a showing that Ay has any special training, expertise, or experience that allows him to draw conclusions from his alleged “knowledge” to give an opinion that JCI is somehow responsible for plaintiff's exposure to asbestos. Similarly, there has never been a showing that Ay has any expertise related to construction practices during the relevant time period that could assist the jury in determining that JCI was negligent in performing the jobs plaintiff alleges. MU. THERE IS NO SOUND BASIS FOR AY'S OPINIONS Given the limited facts related to the work done by JCI in Castagna’s vicinity that can be provided to Ay, and combined with Ay’s lack of expertise, Ay cannot have any basis for an opinion that JCI caused plaintiff to be exposed to asbestos at some unknown time during plaintiff's extensive work history. Without such a basis, his opinions are speculative, lack foundation, and are inadmissible under Evidence Code § 801(b). Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564 (An expert opinion has no value if its basis is unsound.”) As the appellate court in Lockheed makes clear: We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible. In reaching its decision to exclude the testimony of an expert witness, the Lockheed court relied on the holding of Pacific Gas & Electric Co. v. Zuckerman (PG&E) (1987) 189 Cal.App.3d 1113, 1135: The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed. [Citations.} Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or * conjectural, then his conclusion has no evidentiary value. To be admissible, an expert's opinion must be based on actual facts and analysis not just on what he or she thinks might be the true. Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338-339 (excluding expert testimony that was “speculative, conjectural and remote in nature”). 3 : DEFENDANT JOHNSON CONTROLS, INC.’S MOTION IN LIMINE TO EXCLUDE TESTIMONY BY CHARLES AY ~1 || Where, as here, an expert is asked to opine on the cause of something, he or she must rule out 2 || other possible causes in order to opine as to the probable cause. Lestlie G. v. Perry & Assoc. 3 | (1996) 43 Cal.App.4" 472, 487; PG & E, 189 Cal.App.3d at 1135; Jones v. Ortho Pharmaceutical 4 || Corp. (1985) 163 Cal. App. 3d 396, 403. Ay has facts to base his analysis related to this or any 5 || defendant in this action and his testimony should be excluded. 6 Vv. CONCLUSION 7 Plaintiff cannot demonstrate that Ay’s knowledge of the subjects at issue in this case 8 || related to JCI are sufficient to testify and this determination is left to the sound discretion of the 9 | trial judge. (Sinz v. Owens (1949) 33 Cal.3d 749, 755.) The determinative issue in each case 10 || must be whether the witness has sufficient skill or experience in the field so his testimony would 11 | be likely to assist the jury in the search for the truth. Charles Ay was not prepared to give a 12 || meaningful deposition in this matter and should be excluded; he does not qualify as an expert in 13 || this case and should be excluded. 14 DATED: October 6, 2010 BECHERER KANNETT & SCHWEITZER 15 re ul a 17 ” BAULS. LECKY Attorneys for Defendant 18 Johnson Controls, Inc. 19 20 21 22 23 Bech: Kennett, 24 Schweitzer 25 125s Eneyvile,ca 26 sasce 510-658-3600 27 28 4 y DEFENDANT JOHNSON CONTROLS, INC.’S MOTION IN LIMINE TO EXCLUDE TESTIMONY BY CHARLES AY |Becherer Kannett & Schweitzer 1258 Powell St Emeryville, CA 94608 510-658-3600 oOo wn A nH fF WN De eee ew we pe ee SO em NOM BwWHN FH OO 21 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 1, Sonjua R. Fisher, declare that | am, and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action; and | am employed in the County of Alameda, State of California. My business address is 1255 Powell Street, Emeryville, California 94608. On October 7, 2010, | electronically served the document(s) via LexisNexis File & Serve described as: MOTION JIN LIMINE NO. 4 DEFENDANT JOHNSON CONTROLS, INC.’S MOTION IN LIMINE TO EXCLUDE TESTIMONY, BY CHARLES AY on the recipients designated on the Transmission Receipt located on the LexisNexis File & Serve website. | declare under penalty of perjury Pursuant to the laws of the State of California that the foregoing is true and correct and that this declaratian was executed on October 7, 2010, at Emeryville, California. 5 DEFENDANT JOHNSON CONTROLS, INC.’S MOTION IN LIMINE TO EXCLUDE TESTIMONY BY CHARLES AY |