Preview
170V314037
Santa Clara — Civil
CHARLES LITT, ESQ. (SBN 178401) Electronically Filed
harles@fentongrant.com by Superior Court of CA,
MICHAEL C. RUBINO, ESQ. (SBN 119084) County of Santa Clara,
mrubino@fentongrant.com
JOHN J. STANDER, ESQ. (SBN 168392) on 3/16/2021 4:28 PM
jstander@fentongrant.com Reviewed By: R. Walker
FENTON GRANT MAYFIELD KANEDA & LITT, LLP Case #17CV314037
1255 Treat Boulevard, Suite 805 Envelope: 6046370
Walnut Creek, CA 94597
Ph: (925) 357-3135 / Fax: (925) 974-3506
Attorneys for Plaintiff
AXIS HOMEOWNERS ASSOCIATION
SUPERIOR COURT OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SANTA CLARA
11 AXIS HOMEOWNERS ASSOCIATION, a Case No.: 17-CV-314037
California nonprofit mutual benefit corporation, Assigned for All Purposes to:
12 Hon. Roberta S. Hayashi, Dept 10
(Complex Civil Litigation)
13 Plaintiff,
PLAINTIFF’S MOTION IN LIMINE NO.
14 Vv. 1 TO EXCLUDE EXPERT TESTIMONY
OF A. WILLIAM LINGNELL AND
15 ALMADEN TOWER VENTURE, LLC, a MARTY LUCAS CONCERNING THE
California limited liability company; WEBCOR) CAUSE OF IGU ULTRAVIOLET
16 COATING SPOTTING
CONSTRUCTION _ LP, DBA WEBCOR
17 BUILDERS, a California corporation; and DOES}
1 through 400 inclusive, Hearing Date: April 16, 2021
18 Hearing Time: 9:00am
Defendants. Dept.: 10
19
[Complaint filed: December 18, 2017]
20 Trial Date: May 3, 2021
AND ALL RELATED CROSS-ACTIONS. Time: 8:30am
21 Dept. 10
22
23 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
24 PLEASE TAKE NOTICE that on a date and time to be determined by the Court, in
25 Department 10 of the above-entitled Court, Plaintiff Axis Homeowners Association (“Plaintiff or
26 the "Association") will, and hereby does, move the Court for an inlimine order excluding certain
27 expert testimony and opinions of Defendants Almaden Tower Venture, LLC (“ATV”) and Webcor
28 Construction LP, dba Webcor Builders (““Webcor”) (collectively, the “Defendants”) designated
PLAINTIFF’S MOTION IN LIMINE NO, 1
experts Marty Lucas (“Mr. Lucas”) and A. William Lingnell (“Mr. Lingnell”) with regard to the
cause of IGU oxidation (spotting) of the low-e coating, as identified as Defect 2.L in the DCA Defect
Report dated February 7, 2020 and supplemental report dated November 9, 2020.
As set forth more fully in the attached Memorandum of Points and Authorities, this Motion
is made on the grounds that that subject opinions of Mr. Lingnell on this issue lack proper foundation
and, as such, are mere speculation and conjecture. Moreover, the subject opinions and testimony
are irrelevant, prejudicial, and would be misleading and confusing to the trier of fact.
This Motion is based on the attached Memorandum of Points and Authorities and supporting
evidence, the papers, and records on file in this action, and on such other evidence and argument as
10 may be presented at the hearing on the Motion.
11
Dated: March 16, 2021 FENTON GRANT MAYFIELD KANEDA &
(hho
12 LITT, LLP
13
14 BED
15 MICHAEL RUBINO, ESQ.
CHARLES LITT, ESQ.
16 JOHN J. STANDER, ESQ.
Attorneys for Plaintiff, Axis Homeowners
17 Association
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S MOTION JN LIMINE NO. 1
TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
IL. THE SCIENCE
In. LINGLELL AND LUCAS’ TESTIMONY
IV. ARGUMENT
A A Motion in Limine is a Proper Procedure by which the Court May Limit
The Scope of Evidence and Testimony at Trial
Messrs. Lucas and Lingnell Are Not Qualified to Opine on the Cause of
10 The Delamination Occurring in the IGUs
11 The Opinions of Mr. Lingnell Regarding IGU Low-E Coating Delamination
Lack Foundation and Instead are Based on Mere Speculation
12 and Conjecture
13
The Opinions of Mr. Lucas Regarding IGU Low-E Coating Delamination
14 Lack Foundation and Instead are Based on Mere Speculation
and Conjecture 10
15
Any Probative Value of Lingnell’s and Lucas’ Testimony Is Outweighed
16 by its Prejudicial Effect 13
17
In the Alternative, Plaintiff Should Be Granted an Evidentiary Hearing
18 Under Evidence Code Section 402 15
19 CONCLUSION 15
20
TABLE OF AUTHORITIES
21 Cases
22 Camargo v. Tjaadra Dairy (2001)
25 Cal.4th 1235 3,5
23
Clemens v. American Warranty Corp, (1987)
24
193Cal.App.3d 444, 451
25
Douillard vy. Wood (1942)
26 20 Cal.2d 665, 669 13
27 Horn y. General Motors Corp. (1976)
17 Cal.3d 359, 371 13
28
PLAINTIFF’S MOTION IN LIMINE NO.
Hyatt y, Sierra Boat Co, (1978).
79 Cal.App.3d 325, 338
Jennings v. Palomar Pomerado Health Systems (2003)
114 Cal.App.4th 1108 5,6
Kessler v. Gray (1978)
77 Cal.App.3d 284 14
Lockheed Martin Corp. v. Superior Court (2003)
29 Cal.App.4""1096, 1110-11
Love v. Wolf (1964)
226 Cal.App.2d 378 14
Pacific Gas & Electric Co, v. Zuckerman (1987)
10 189 Cal.App.3d 1113, 1135-36
11 People v. Morris (1991)
53 Cal.3d 152, 188
12
13 Rosener v. Sears, Roebuck & Co. (1980)
110 Cal.App.3d 740, 755-56 13
14
Smith v. Acands, Inc. (1994)
15 31 Cal.App.4th 77, 93
16
William Dal Porto & Sons v. Agric. Labor Relations Bd. (1987)
17 191 Cal.App.3d 1195, 1211 13
18
Statutes
19
California Evidence Code §350 13
20
California Evidence Code §352 4,13
21 California Evidence Code §402 5,15
California Evidence Code §801
22
23
24
25
26
27
28
ii
PLAINTIFF’S MOTION JIN LIMINE NO. 1
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION:
This action arises from disputes between Plaintiff, Axis Homeowners Association, and
Defendants, ATV and Webcor, over construction defects located in the Axis condominium
development, a 329-unit development built in 2008 in San Jose, California (the “Property” or
"Axis"). One of the more significant defects at issue involves the curtain wall and is more
specifically identified in the supplemental defect report prepared by Plaintiff's architectural expert,
DCA Architects, dated November 9, 2020 and titled "Findings — 2.L Defective Curtain Wall —
10 Damaged IGUs" as follows:
11 DCA’s visual observations to date, revealed that over 50% of the tinted, “vision and
spandrel” IGUs on the West (Almaden Blvd.) and North (Carlysle St.) elevations of
12 the Axis Condominium Tower exhibit damage due to excessive “low-e” coating
oxidation (spotting). The causation for which . .. is excessive water intrusion into
13
a “systemically” defective curtain wall system. Exposing the IGU’s vulnerable edge
14 seal to excessive moisture over an extended period of time which deprecates its
secondary and primary seal. It’s also important to note that the excessive water
15 intrusion DCA photo documented at the interior face of the curtain wall system was
observed at 70% of the randomly selected condo units, In which we found
16 effloresced water at window frame heads, sills, jambs and the interstitial (interior)
17 corners at a multitude of IGUs. Long term exposure to water associated with low-e
spotting will impact all (100%) IGUs if the contributory curtain wall DgSs Kb, systemic”
18 defects, noted below, aren’t remediated on the “radiused” (curved) West fagade.
19 (DCA Architects Supplemental Report "Findings — 2.L Defective Curtain Wall — Damaged IGUs",
20 dated November 9, 2020 (emphasis added)). (See Exhibit #1, attached to the Declaration of Michael
21 C. Rubino, filed concurrently herewith) (hereinafter all references to Exhibits are to Exhibits
22, attached to the Declaration of Michael C. Rubino, filed concurrently herewith).
23 The Association contends the spotting that has developed in approximately 57% of the tinted
24 IGUs at the Axis Condominiums is caused by water/moisture intrusion into the IGUs. In response,
25 Defendants have proffered multiple causation theories, ranging from cyclic heating and cooling
26 stress delamination to delamination caused by debris/contaminants getting under the low-e coating
27 during the manufacturing process. However, Defendants' proffered theories are not supported by
28 any facts and, in fact, the known science establishes indisputably that the only cause for the spotting
1
PLAINTIFF’S MOTION IN LIMINE NO. 1
of these IGUs is moisture/water intrusion into the IGUs.
I. THE SCIENCE:
The spots in the Axis IGUs exhibit a distinct "telephone cord" pattern of delamination/failure
of the low-e coating. It is well settled in the scientific community that the only cause for this type
of delamination pattern is moisture contacting the low-e coating. There is no other recognized cause
for this pattern of low-e coating delamination.
Viracon's thin films materials engineer expert, Eric Guyer, Ph.D., made this point clearly in
his deposition testimony:
MR. RUBINO: Q. Sir, is there any scientific support for the idea that the
spots that you saw with your microscopic camera at Axis could have been caused by
10 either a thermal cycling or contaminants on the glass without the involvement of
moisture?
11 (objections)
THE WITNESS: J don't know of any, and that's why I had had that in my
12 report and came to the conclusions I came to, the conclusions that we've been
talking about for these two depositions.
13
14 MR. RUBINO: Q. Is it, in fact, true that all of the scientific literature you're
aware of supports a sole conclusion that telephone cord delamination is caused solely
15 by moisture?
A The literature that I'm aware of — the scientific literature that I'm
16 aware of and my training in this area, yes, all lead me to the fact that these spots at
Axis are due to moisture,
17 eR RK
18 Mr. RUBINO: Q. ... There's no scientific data that you're aware of from
your years of experience that supports the proposition forwarded by Mr. Lingnell and
19 Mr. Lucas that the telephone cord delamination on these windows was caused by
something other than moisture, correct?
20 (objections)
21 THE WITNESS: That's correct. I'm not aware of any literature, any other
research, anything that would support the notion that these spots are due to
22 something other than moisture.
23 (Guyer Transcript at 280:4-22; 281:1-16 (emphasis added)(Exh. #2)).
24 Mr. Guyer supported this testimony regarding the cause of telephone cord pattern
25 delamination with several published authoritative articles documenting that telephone cord pattern
26 delamination is caused by moisture contacting a thin film coating, such as the low-e coating at issue
27 here. (See Exhibits ##3- 6).
28 HG,
2
PLAINTIFF’S MOTION JIN LIMINE NO. 1
TIL. LINGNELL AND LUCAS’ TESTIMONY:
Despite the well-recognized and undisputed science, Webcor's experts, A. William Lingnell
and Marty Lucas, have attempted to attribute the low-e coating delamination on the Axis IGUs to
other "possible" causes, such as thermal cycling stress and contaminants being trapped under the
low-e coating during manufacturing. Neither expert commits to any specific causation theory, but
both opine that there are "possible" causes not related to moisture intrusion, while arguing that the
spots cannot be caused by moisture intrusion into the IGUs because ". . . there is no’ evidence of
water inside the IGUs".
10 As discussed below, neither expert provides any scientifically sound response to Mr. Guyer’s
11 testimony regarding the scientific fact that telephone cord delamination of low-e coatings is caused
12, solely by moisture contacting the low-e coating. Instead, both experts offer-the “throw it against
13
the wall and see what sticks” defense, consisting of multiple theories as to the cause of the IGU low-
14
e coating spotting, none of which are founded on reasonable scientific evidence of the type normally
1S
relied upon by other experts in the field.
16
17 Iv. ARGUMENT:
18 The opinion testimony proffered by Messrs. Lingnell and Lucas is not based on any known
19 scientific data or evidence and, therefore, is not reliable and is likely to mislead and confuse the jury.
20
As such, it is extremely unduly prejudicial to Plaintiff and its potential prejudicial effect clearly
21
outweighs any minimal probative value it may have. Accordingly, Messrs. Lingnell and Lucas'
22
proposed "opinions" and testimony regarding causation for the IGU low-e coating delamination at
23
Axis should be excluded at trial.
24
25 A, A Motion in Limine is a Proper Procedure by which the Court
May Limit the Scope of Evidence and Testimony at Trial:
26
“Although not expressly authorized by statute, [a motion in limine] is recognized in decisions
27
as a proper request for which the trial court has inherent power to entertain and grant.” Clemens v.
28
3
PLAINTIFF’S MOTION JIN LIMINE NO. 1
American Warranty Corp. (1987) 193 Cal.App.3d 444, 451. “The scope of such a motion is any kind
of evidence which would be objected to at trial either as irrelevant or subject to discretionary
exclusion as unduly prejudicial.” Jd. at 451; Evidence Code §352. The advantage of a motion in
limine is to “avoid the obviously futile attempt to ‘unring the bell’ in the event a motion to strike is
granted in the proceedings before the jury. People v. Morris (1991) 53 Cal.3d. 152, 188. In addition,
by resolving potential critical issues at the outset, motions in limine enhance the efficiency of trials.
Id.
As noted above and detailed below, the opinions of Messrs. Lingnell and Lucas regarding
10 the cause of the IGU low-e coating spotting lack foundation. As such, their opinions and testimony
11 in this regard are properly the subject of a motion in limine.
12 B. Messrs. Lucas and Lingnell Are Not Qualified to Opine on the Cause of the
13 Delamination Occurring in the IGUs:
14 Mr. Lucas and Mr. Lingnell are not qualified to render opinions as to the cause of the
15 delamination of the low-e coating in the IGUs because neither expert has any expertise in analysis
16 of thin film coating failures.
17
Mr. Lucas is a glazing contractor. (See Lucas CV (Exhibit #7)). He has no formal education
18
beyond high school and his experience is limited to constructing, selecting materials for, and
19
investigating issues with exterior building skins. Mr. Lucas has no education, training, or experience
20
21 that qualifies him to render opinions regarding causation for delamination of the thin film low-e
22 coating inside the IGUs at Axis.
23 Mr. Lingnell is an engineer and consultant with a wide range of experience, but has no
24
expertise qualifying him to opine on causation for the delamination of the thin film low-e coating
25
delamination inside IGUs at Axis. (See Lingnell CV (Exhibit #8)). Indeed, Mr. Lingnell
26
acknowledged that he did not have the expertise necessary to determine causation of “telephone
27
cord” delamination of low-e coating, such as that present at Axis. (See Lingnell Depo. at 117:19-23
28
4
PLAINTIFF’S MOTION JIN LIMINE NO. 1
Preview
170V314037 Santa Clara — Civil CHARLES LITT, ESQ. (SBN 178401) Electronically Filed harles@fentongrant.com by Superior Court of CA, MICHAEL C. RUBINO, ESQ. (SBN 119084) County of Santa Clara, mrubino@fentongrant.com JOHN J. STANDER, ESQ. (SBN 168392) on 3/16/2021 4:28 PM jstander@fentongrant.com Reviewed By: R. Walker FENTON GRANT MAYFIELD KANEDA & LITT, LLP Case #17CV314037 1255 Treat Boulevard, Suite 805 Envelope: 6046370 Walnut Creek, CA 94597 Ph: (925) 357-3135 / Fax: (925) 974-3506 Attorneys for Plaintiff AXIS HOMEOWNERS ASSOCIATION SUPERIOR COURT OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SANTA CLARA 11 AXIS HOMEOWNERS ASSOCIATION, a Case No.: 17-CV-314037 California nonprofit mutual benefit corporation, Assigned for All Purposes to: 12 Hon. Roberta S. Hayashi, Dept 10 (Complex Civil Litigation) 13 Plaintiff, PLAINTIFF’S MOTION IN LIMINE NO. 14 Vv. 1 TO EXCLUDE EXPERT TESTIMONY OF A. WILLIAM LINGNELL AND 15 ALMADEN TOWER VENTURE, LLC, a MARTY LUCAS CONCERNING THE California limited liability company; WEBCOR) CAUSE OF IGU ULTRAVIOLET 16 COATING SPOTTING CONSTRUCTION _ LP, DBA WEBCOR 17 BUILDERS, a California corporation; and DOES} 1 through 400 inclusive, Hearing Date: April 16, 2021 18 Hearing Time: 9:00am Defendants. Dept.: 10 19 [Complaint filed: December 18, 2017] 20 Trial Date: May 3, 2021 AND ALL RELATED CROSS-ACTIONS. Time: 8:30am 21 Dept. 10 22 23 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE that on a date and time to be determined by the Court, in 25 Department 10 of the above-entitled Court, Plaintiff Axis Homeowners Association (“Plaintiff or 26 the "Association") will, and hereby does, move the Court for an inlimine order excluding certain 27 expert testimony and opinions of Defendants Almaden Tower Venture, LLC (“ATV”) and Webcor 28 Construction LP, dba Webcor Builders (““Webcor”) (collectively, the “Defendants”) designated PLAINTIFF’S MOTION IN LIMINE NO, 1 experts Marty Lucas (“Mr. Lucas”) and A. William Lingnell (“Mr. Lingnell”) with regard to the cause of IGU oxidation (spotting) of the low-e coating, as identified as Defect 2.L in the DCA Defect Report dated February 7, 2020 and supplemental report dated November 9, 2020. As set forth more fully in the attached Memorandum of Points and Authorities, this Motion is made on the grounds that that subject opinions of Mr. Lingnell on this issue lack proper foundation and, as such, are mere speculation and conjecture. Moreover, the subject opinions and testimony are irrelevant, prejudicial, and would be misleading and confusing to the trier of fact. This Motion is based on the attached Memorandum of Points and Authorities and supporting evidence, the papers, and records on file in this action, and on such other evidence and argument as 10 may be presented at the hearing on the Motion. 11 Dated: March 16, 2021 FENTON GRANT MAYFIELD KANEDA & (hho 12 LITT, LLP 13 14 BED 15 MICHAEL RUBINO, ESQ. CHARLES LITT, ESQ. 16 JOHN J. STANDER, ESQ. Attorneys for Plaintiff, Axis Homeowners 17 Association 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S MOTION JN LIMINE NO. 1 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION IL. THE SCIENCE In. LINGLELL AND LUCAS’ TESTIMONY IV. ARGUMENT A A Motion in Limine is a Proper Procedure by which the Court May Limit The Scope of Evidence and Testimony at Trial Messrs. Lucas and Lingnell Are Not Qualified to Opine on the Cause of 10 The Delamination Occurring in the IGUs 11 The Opinions of Mr. Lingnell Regarding IGU Low-E Coating Delamination Lack Foundation and Instead are Based on Mere Speculation 12 and Conjecture 13 The Opinions of Mr. Lucas Regarding IGU Low-E Coating Delamination 14 Lack Foundation and Instead are Based on Mere Speculation and Conjecture 10 15 Any Probative Value of Lingnell’s and Lucas’ Testimony Is Outweighed 16 by its Prejudicial Effect 13 17 In the Alternative, Plaintiff Should Be Granted an Evidentiary Hearing 18 Under Evidence Code Section 402 15 19 CONCLUSION 15 20 TABLE OF AUTHORITIES 21 Cases 22 Camargo v. Tjaadra Dairy (2001) 25 Cal.4th 1235 3,5 23 Clemens v. American Warranty Corp, (1987) 24 193Cal.App.3d 444, 451 25 Douillard vy. Wood (1942) 26 20 Cal.2d 665, 669 13 27 Horn y. General Motors Corp. (1976) 17 Cal.3d 359, 371 13 28 PLAINTIFF’S MOTION IN LIMINE NO. Hyatt y, Sierra Boat Co, (1978). 79 Cal.App.3d 325, 338 Jennings v. Palomar Pomerado Health Systems (2003) 114 Cal.App.4th 1108 5,6 Kessler v. Gray (1978) 77 Cal.App.3d 284 14 Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.App.4""1096, 1110-11 Love v. Wolf (1964) 226 Cal.App.2d 378 14 Pacific Gas & Electric Co, v. Zuckerman (1987) 10 189 Cal.App.3d 1113, 1135-36 11 People v. Morris (1991) 53 Cal.3d 152, 188 12 13 Rosener v. Sears, Roebuck & Co. (1980) 110 Cal.App.3d 740, 755-56 13 14 Smith v. Acands, Inc. (1994) 15 31 Cal.App.4th 77, 93 16 William Dal Porto & Sons v. Agric. Labor Relations Bd. (1987) 17 191 Cal.App.3d 1195, 1211 13 18 Statutes 19 California Evidence Code §350 13 20 California Evidence Code §352 4,13 21 California Evidence Code §402 5,15 California Evidence Code §801 22 23 24 25 26 27 28 ii PLAINTIFF’S MOTION JIN LIMINE NO. 1 MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION: This action arises from disputes between Plaintiff, Axis Homeowners Association, and Defendants, ATV and Webcor, over construction defects located in the Axis condominium development, a 329-unit development built in 2008 in San Jose, California (the “Property” or "Axis"). One of the more significant defects at issue involves the curtain wall and is more specifically identified in the supplemental defect report prepared by Plaintiff's architectural expert, DCA Architects, dated November 9, 2020 and titled "Findings — 2.L Defective Curtain Wall — 10 Damaged IGUs" as follows: 11 DCA’s visual observations to date, revealed that over 50% of the tinted, “vision and spandrel” IGUs on the West (Almaden Blvd.) and North (Carlysle St.) elevations of 12 the Axis Condominium Tower exhibit damage due to excessive “low-e” coating oxidation (spotting). The causation for which . .. is excessive water intrusion into 13 a “systemically” defective curtain wall system. Exposing the IGU’s vulnerable edge 14 seal to excessive moisture over an extended period of time which deprecates its secondary and primary seal. It’s also important to note that the excessive water 15 intrusion DCA photo documented at the interior face of the curtain wall system was observed at 70% of the randomly selected condo units, In which we found 16 effloresced water at window frame heads, sills, jambs and the interstitial (interior) 17 corners at a multitude of IGUs. Long term exposure to water associated with low-e spotting will impact all (100%) IGUs if the contributory curtain wall DgSs Kb, systemic” 18 defects, noted below, aren’t remediated on the “radiused” (curved) West fagade. 19 (DCA Architects Supplemental Report "Findings — 2.L Defective Curtain Wall — Damaged IGUs", 20 dated November 9, 2020 (emphasis added)). (See Exhibit #1, attached to the Declaration of Michael 21 C. Rubino, filed concurrently herewith) (hereinafter all references to Exhibits are to Exhibits 22, attached to the Declaration of Michael C. Rubino, filed concurrently herewith). 23 The Association contends the spotting that has developed in approximately 57% of the tinted 24 IGUs at the Axis Condominiums is caused by water/moisture intrusion into the IGUs. In response, 25 Defendants have proffered multiple causation theories, ranging from cyclic heating and cooling 26 stress delamination to delamination caused by debris/contaminants getting under the low-e coating 27 during the manufacturing process. However, Defendants' proffered theories are not supported by 28 any facts and, in fact, the known science establishes indisputably that the only cause for the spotting 1 PLAINTIFF’S MOTION IN LIMINE NO. 1 of these IGUs is moisture/water intrusion into the IGUs. I. THE SCIENCE: The spots in the Axis IGUs exhibit a distinct "telephone cord" pattern of delamination/failure of the low-e coating. It is well settled in the scientific community that the only cause for this type of delamination pattern is moisture contacting the low-e coating. There is no other recognized cause for this pattern of low-e coating delamination. Viracon's thin films materials engineer expert, Eric Guyer, Ph.D., made this point clearly in his deposition testimony: MR. RUBINO: Q. Sir, is there any scientific support for the idea that the spots that you saw with your microscopic camera at Axis could have been caused by 10 either a thermal cycling or contaminants on the glass without the involvement of moisture? 11 (objections) THE WITNESS: J don't know of any, and that's why I had had that in my 12 report and came to the conclusions I came to, the conclusions that we've been talking about for these two depositions. 13 14 MR. RUBINO: Q. Is it, in fact, true that all of the scientific literature you're aware of supports a sole conclusion that telephone cord delamination is caused solely 15 by moisture? A The literature that I'm aware of — the scientific literature that I'm 16 aware of and my training in this area, yes, all lead me to the fact that these spots at Axis are due to moisture, 17 eR RK 18 Mr. RUBINO: Q. ... There's no scientific data that you're aware of from your years of experience that supports the proposition forwarded by Mr. Lingnell and 19 Mr. Lucas that the telephone cord delamination on these windows was caused by something other than moisture, correct? 20 (objections) 21 THE WITNESS: That's correct. I'm not aware of any literature, any other research, anything that would support the notion that these spots are due to 22 something other than moisture. 23 (Guyer Transcript at 280:4-22; 281:1-16 (emphasis added)(Exh. #2)). 24 Mr. Guyer supported this testimony regarding the cause of telephone cord pattern 25 delamination with several published authoritative articles documenting that telephone cord pattern 26 delamination is caused by moisture contacting a thin film coating, such as the low-e coating at issue 27 here. (See Exhibits ##3- 6). 28 HG, 2 PLAINTIFF’S MOTION JIN LIMINE NO. 1 TIL. LINGNELL AND LUCAS’ TESTIMONY: Despite the well-recognized and undisputed science, Webcor's experts, A. William Lingnell and Marty Lucas, have attempted to attribute the low-e coating delamination on the Axis IGUs to other "possible" causes, such as thermal cycling stress and contaminants being trapped under the low-e coating during manufacturing. Neither expert commits to any specific causation theory, but both opine that there are "possible" causes not related to moisture intrusion, while arguing that the spots cannot be caused by moisture intrusion into the IGUs because ". . . there is no’ evidence of water inside the IGUs". 10 As discussed below, neither expert provides any scientifically sound response to Mr. Guyer’s 11 testimony regarding the scientific fact that telephone cord delamination of low-e coatings is caused 12, solely by moisture contacting the low-e coating. Instead, both experts offer-the “throw it against 13 the wall and see what sticks” defense, consisting of multiple theories as to the cause of the IGU low- 14 e coating spotting, none of which are founded on reasonable scientific evidence of the type normally 1S relied upon by other experts in the field. 16 17 Iv. ARGUMENT: 18 The opinion testimony proffered by Messrs. Lingnell and Lucas is not based on any known 19 scientific data or evidence and, therefore, is not reliable and is likely to mislead and confuse the jury. 20 As such, it is extremely unduly prejudicial to Plaintiff and its potential prejudicial effect clearly 21 outweighs any minimal probative value it may have. Accordingly, Messrs. Lingnell and Lucas' 22 proposed "opinions" and testimony regarding causation for the IGU low-e coating delamination at 23 Axis should be excluded at trial. 24 25 A, A Motion in Limine is a Proper Procedure by which the Court May Limit the Scope of Evidence and Testimony at Trial: 26 “Although not expressly authorized by statute, [a motion in limine] is recognized in decisions 27 as a proper request for which the trial court has inherent power to entertain and grant.” Clemens v. 28 3 PLAINTIFF’S MOTION JIN LIMINE NO. 1 American Warranty Corp. (1987) 193 Cal.App.3d 444, 451. “The scope of such a motion is any kind of evidence which would be objected to at trial either as irrelevant or subject to discretionary exclusion as unduly prejudicial.” Jd. at 451; Evidence Code §352. The advantage of a motion in limine is to “avoid the obviously futile attempt to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury. People v. Morris (1991) 53 Cal.3d. 152, 188. In addition, by resolving potential critical issues at the outset, motions in limine enhance the efficiency of trials. Id. As noted above and detailed below, the opinions of Messrs. Lingnell and Lucas regarding 10 the cause of the IGU low-e coating spotting lack foundation. As such, their opinions and testimony 11 in this regard are properly the subject of a motion in limine. 12 B. Messrs. Lucas and Lingnell Are Not Qualified to Opine on the Cause of the 13 Delamination Occurring in the IGUs: 14 Mr. Lucas and Mr. Lingnell are not qualified to render opinions as to the cause of the 15 delamination of the low-e coating in the IGUs because neither expert has any expertise in analysis 16 of thin film coating failures. 17 Mr. Lucas is a glazing contractor. (See Lucas CV (Exhibit #7)). He has no formal education 18 beyond high school and his experience is limited to constructing, selecting materials for, and 19 investigating issues with exterior building skins. Mr. Lucas has no education, training, or experience 20 21 that qualifies him to render opinions regarding causation for delamination of the thin film low-e 22 coating inside the IGUs at Axis. 23 Mr. Lingnell is an engineer and consultant with a wide range of experience, but has no 24 expertise qualifying him to opine on causation for the delamination of the thin film low-e coating 25 delamination inside IGUs at Axis. (See Lingnell CV (Exhibit #8)). Indeed, Mr. Lingnell 26 acknowledged that he did not have the expertise necessary to determine causation of “telephone 27 cord” delamination of low-e coating, such as that present at Axis. (See Lingnell Depo. at 117:19-23 28 4 PLAINTIFF’S MOTION JIN LIMINE NO. 1