Motion in Limine Evidentiary in BRYAN TRUJILLO, et al vs. STEPHEN MAGEE, et al| Trellis.Law

On April 17, 2018 a Motion,Ex Parte was filed involving a dispute between Trujillo, Bryan, Trujillo, Cindy, and Does 1-20, Does 1-50, Magee, Stephen, Sac Aero Flying Club, Inc., for (23) Unlimited Other PI/PD/WD in the District Court of San Mateo County.

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MICHAEL S. DANKO, ESQ. SBN 111359 Electronically
mdanko@dankolaw.com
DANKO MEREDITH by Superior Court of California, County of San Mateo
333 Twin Dolphin Drive, Suite 145 ON 3/2/2021
Redwood Shores, CA 94065
Telephone: (650) 453-3600 By. /s/ Joel Lacey
Deputy Clerk
Facsimile: (650) 394-8672

Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN MATEO

UNLIMITED CIVIL JURISDICTION
10

11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901

12 Plaintiffs, PLAINTIFFS’ NOTICE OF MOTION AND
MOTION IN LIMINE NO. 3 TO EXCLUDE
13 Vv. DEFENDANTS’ EXPERT RICK
RAILSBACK; MEMORANDUM OF POINTS
14 STEPHEN MAGEE, SAC AERO FLYING AND AUTHORITIES IN SUPPORT;
CLUB, INC., AND DOES 1 - 50, DECLARATION IN SUPPORT.
15
Defendants
16 Trial Date: March 8,|2021
Time: 900-a-m- 1:30 p.m.
17 Dept.: Presiding-Judge4
18 Complaint filed: April 17, 2018

20 TO DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD:

21 PLEASE TAKE NOTICE that Plaintiffs hereby move this Court for an order in limine

22 excluding the defense expert Mr. Rick Railsback from testifying that the Trujillo’s property is “safe,”

23 that the contaminate levels found on their property poses no threat to the health of individuals

24 occupying or visiting the property, or that the government, by setting a permitted maximum amount

25 of contaminate not requiring remediation, thereby declares that lower levels are “safe.” All such

26 opinions exceed Mr. Railsback’s expertise or amount to speculation.

28 -1-
PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE
DEFENDANTS’ EXPERT RICK RAILSBACK; MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT; DECLARATION IN SUPPORT.
This Motion is based on Evidence Code §§ 802, 803, 352, this Notice of Motion and Motion,

the attached Memorandum, the Declaration of Miller, all the other pleadings and papers on file in
this action, any such other evidence as may be presented, and, if the court desires, oral argument.

DATED: February a », 2020 DANKO MEREDITH

Attorneys for Plaintiffs

28 -2.
pons _
PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE
DEFENDANTS’ EXPERT RICK RAILSBACK; MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT; DECLARATION IN SUPPORT.
MEMORANDUM OF POINTS AND AUTHORITIES

I INTRODUCTION.

Defendants’ geologist, Mr. Rick Railsback, seeks to opine that plaintiffs’ property is “safe” for

occupants and visitors. Mr. Railsback admits he is not a toxicologist and has no medical experience.

He is only a geologist. His only basis for opining that the Trujillo’s property is “safe” is a hearsay

statement - in this instance a letter from a government authority informing the plaintiffs that, based

on the remaining contamination levels, the site was eligible for “closure.” And notably, the

regulatory standards for allowable level of contaminate was revised downward in 2019. As a result,

the contaminate level on the property may now, again, be out of compliance.

11 Il. LEGAL ARGUMENT.

12 A Mr. Railsback’s Opinions R egarding the H ealth I mpacts of the C ontamination Should

13 be Precluded as Lacking Foundation.

14 Mr. Railsback was disclosed by the defendants as a geologist and he is licensed to engage in
15 geology in Alabama and Texas. (Defendants’ Expert Disclosure, attached to Miller Declaration

16 (hereinafter “Miller Decl.”) as Exh. A.) He was hired by the insurer of the subject aircraft more than

17 a year before litigation was initiated to review the cleanup work being done on the Trujillo property.

18 (Deposition of Rickard Railsback (hereinafter “Railsback Depo.”) at 6:9-20, 8:15-23, 10:12-11:3,

19 attached to Miller Decl. as Exh. B.) In this role, he advised the insurance claims agent and the

20 attorney hired by the insurer, and established budgets for assessment and possible closure of the site!

21 following the homeowners’ initial remediation efforts. (Railsback Depo. at 6:9-20, 8:19-25, 12:4-9,

22 Exh. B.)

23 Mr. Railsback is not qualified to make an assessment as to whether the residual chemicals that

24 presently contaminate the Trujillo property (or for that matter the contamination found on their

25
1 In the context of a property contamination, a site closure occurs after the responsible regulatory agency decides the
26 costs of further remediation exceeds the health benefits. Site closure does not mean that the governmental entity has
decided the contamination has been removed. Rather, governmental cleanup standards strike balance between the costs
27 of further cleanup efforts and the health risk of having the residual contamination in place. (See, Health and Safety Code
§ 25356.1(d)(5).)
28 -3-
PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO.3TO EXCLUDE
DEFENDANTS’ EXPERT RICK RAILSBACK; MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT; DECLARATION IN SUPPORT.
property at any point since the plane crash) pose a threat to the health of either occupants or visitors

to the property. During his deposition he admitted he is not a toxicologist and defendants’ expert

disclosure does not indicate that he is a physician. (Railsback Depo. at 22:3-12, Exh. B and

Defendants’ Expert Disclosure, Exh. A.)

B. Mr. Railsback’s Inference That the Trujillo Property is Safe Based on the Government’s

Standards Concerning the C ontamination at Issue and Should be Precluded at Trial.

During his deposition, Mr. Railsback testified that by February 2019 he inferred the property

was safe based on the facts that (1) the property had been cleaned up to the point that the

10 contaminate no longer exceeded the government regulator s allowable limits (Railsback Depo. at

11 7:22-8:14, 11:19-12:3, 12:10-13:3, 15:1-6, 21:3-10, Exh. B) and (2) the government regulator (the

12 San Mateo County Groundwater Protection Program) indicated that it was recommending the case

13 concerning the cleanup of the fuel contamination be closed. (Railsback Depo. at 25:19-26:10, Exh.

14 B.) Knowing nothing about toxicology or public health, Mr. Railsback bases his opinions that the
15 property is “safe” on “what the San Francisco Regional Water Quality Board says” and the fact that

16 he “look[s] to the regulators” for setting maximum contaminate levels. (Railsback Depo. at 21:8-

17 22:18, 29:22-30:5.)

18 Further, Mr. Railsback made clear that it was Orion Environmental that reached conclusions

19 regarding the scope of the contamination still on the property and that he merely adopted those

20 conclusions, rather than develop his own opinions. (Railsback Depo. at 8:15-20, 10:12-11:18, Exh.

21 B,)
22 Again, Mr. Railsback is neither a toxicologist nor a physician. (Railsback Depo. at 22:3-12,

23 Exh. B and Defendants’ Expert Disclosure, Exh. A.) He has no training, education, or experience

24 that would allow him to opine as to the health consequences or impacts on individuals exposed to the

25 contaminates that the airplane dumped onto the property. Mr. Railsback’s speculation as to the

26 meaning of the government's allowable contamination levels, the decision of the regulator

27 recommending site closure, or the impact of Orion Environmental’s work must be excluded pursuant

28 -4-
PLAINTIFFS’ NOTICE OF MOTION AND MOTION IN LIMINE NO.3TO EXCLUDE
DEFENDANTS’ EXPERT RICK RAILSBACK; MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT; DECLARATION IN SUPPORT.
to Evidence Code §352 and People v. Sanchez (2016) 63 Cal.4" 665 as such testimony has no

probative value, would lead to jury confusion, and constitutes case specific hearsay.

It. CONCLUSION.

For the foregoing reasons, Plaintiffs respectfully request an order in limine precluding Mr.

Railsback from offering opinions that the Trujillo property is “safe,” that contaminate levels that do

not exceed the regulatory authority’s maximum permitted levels means a property is safe for the

health of a property’s occupants, or that one should just trust the government. All such opinions are

beyond the scope of Mr. Railsback’s expertise.

10 DATED: February s 2020 DANKO MEREDITH
ll

12 Pe Be
Attorney for Plaintiffs
13

16
17

26
27

28 5-
—— — =
PLAINTIFFS’ NOTICE OF MOTION(D MOTION IN LI NO. 3 TO EXCLUDE_
DEFENDANTS’ EXPERT RICK RAILSBACK; MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT; DECLARATION IN SUPPORT.
DECLARATION OF SHAWN R. MILLER IN SUPPORT
1 I am an attorney with Danko Meredith, attorney of record for Plaintiffs. I have personal

knowledge of the following facts as a result of my being attorney of record and working on this matter

on behalf of Plaintiffs and, if called as a witness, would and could truthfully and competently testify

thereto.

2 As an associate working on this matter, documents and correspondence concerning this matter

are routed to me before being filed. I retrieved the following documents from the firm’s file regarding

this matter:

a. Defendants’ Disclosure of Expert Witnesses and Declaration which lists Mr. Railsback

10 as a retained expert geologist. A true and correct copy of the Disclosure is attached

11 hereto as Exhibit A; and

12 Deposition transcript of the deposition of Mr. Rick Railsback taken on October 24, 2019.

13 A true and correct copy of excerpts from the Railsback deposition transcript are attached
14 hereto as Exhibit B.

16 I declare under penalty of perjury under the laws of the state of California that the foregoing is true and

17 correct.

19
Dated: February Uf , 2020 wee Shawn R. Miller
20

28 -6-
—_
PLAINTIFFS? NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE
DEFENDANTS’ EXPERT RICK RAILSBACK; MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT; DECLARATION IN SUPPORT.
EXHIBIT A
GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Dr. #110
Westlake Village, CA 91361
Telephone No.: (818) 865-0444

Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN MATEO
10

11
BRYAN TRUJILLO and CINDY Case No.: 18CIV01901
TRUJILLO, Honorable Robert D. Foiles; Dept. 21
12

13
Plaintiffs, DEFENDANTS STEPHEN MAGEE
AND SAC AERO FLYING CLUB,
14
VS. INC.’S EXCHANGE OF EXPERT
WITNESSES INFORMATION;
15 DECLARATION OF GARRY L.
STEPHEN MAGEE, SAC AERO FLYING MONTANARI
16
CLUB, INC. and DOES 1 - 50,
(C.C.P, §2034.280)
Defendants.
17

18
ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY; AMCO
19
INSURANCE COMPANY,

Plaintiffs-in-Intervention,
20
Complaint filed: April 17, 2018
2a.
VS. Trial Date: November 4, 2019

22
STEPHEN MAGEE, SAC AERO FLYING
23
CLUB, INC.; AND DOES 1 - 20,

24
Defendants.

26 TO EACH PARTY AND TO THEIR ATTORNEYS OF RECORD:

27 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC., pursuant to Code

28 of Civil Procedure section 2034.210(a)(b)(c) hereby elect the following persons who will or may
oL=

DEFENDANTS STEPHEN MAGEE AND SAC AERO FLYING CLUB, INC.’S EXCHANGE OF EXPERT WITNESS
INFORMATION
testify as an expert witness on behalf of said defendants:

RETAINED EXPERTS
1 James K. Purpura, CCM, 930 Tahoe Blvd #802-560, Incline Village, NV 89451;

telephone: (775) 636-08553.

2 Captain Barry Schiff, 673 Trueno Ave., Camarillo, CA 93010; telephone: (805) 987-

4561.

3 Ted “JR” Faravelli, T.E. Faravelli & Associates, 2302 Zanker Rd., San Jose, CA

95131; telephone: (408) 954-5996.
4 Zach Romer, Automobile Appraisal Association, P.O. Box 134, Carmichael, CA

10 95608; telephone: (415) 798-0371 (cell) or (888) 595-7551.

11 5 Rick Railsback, Cura Emergency Services, 6205 Capel Hill Blvd. #100, Plano, Texas

12 75093; telephone: (214) 914-7263.
a

13 NON-RETAINED EXPERTS
14 1 Defendant Stephen Magee, c/o Michaelis Montanari & Johnson, 33 Park Terrace
15 Dr. #110, Westlake Village, CA 91361; telephone: (818) 865-0444.

16 2. Pearl Pereira, FACS, 21228 Cabot Blvd., Hayward, CA 90221; te one: (510) 266-

17 4600.

18 3 Jose Barragan, Service Advisor, Autobahn Motors, 700 Island Parkway, Belmont, CA

19 94002; telephone: (650) 544-1747.

20 The foregoing expert witnesses are the only witness known to the defendants as of this date.

21 Defendants reserve the right to call additional expert witnesses up to and including the time of trial,

22 including any experts designated by other parties to this action or an expert used for impeachment,

23 pursuant to Code of Civil Procedure section 2034.310(a)(b). Defendants also reserve the right to
24 withdraw the names of any experts designated above if it is subsequently determined that their

25 testimony is not required at trial. In the event an expert is withdrawn prior to that expert’s
26 deposition, defendants claim that any communications with such experts so withdrawn are protected
27 by the attorney-client and attorney work product privileges.

28 //1
Ds

IDEFENDANTS STEPHEN MAGEE AND SAC AERO FLYING CLUB, INC.’S EXCHANGE OF EXPERT WITNESS
[NFORMATION
Defendants reserve the right to submit a supplemental expert witness list pursuant to Code

of Civil Procedure section 2034.280. In the event that any additional expert witnesses are utilized,

their names and addresses will be provided and will be accompanied by an expert witness declaration

as set forth in Code of Civil Procedure section 2034.280.

DATED: September 16, 2019 MICHAELIS, MONTANARI & JOHNSON

By:
GARR MONTANARI
Attomeyé for Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
10

28
3-

DEFENDANTS STEPHEN MAGEE AND SAC AEROFLYING CLUB, INC.’S EXCHANGE OF EXPERT WITNESS
INFORMATION
DECLARATION OF GARRY L. MONTANARI

I, GARRY L. MONTANARI, declare as follows:

1 Iam an attorney at law duly licensed to practice before all of the Courts of the State

of California. I am a partner of the law firm of Michaelis, Montanari & Johnson, counsel of record

for defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. The facts stated below

are true and correct of my own knowledge.

2. Accompanying this declaration is a list of the persons whose expert opinion
testimony, either orally or by deposition testimony, is intended to be offered at trial of this action.

The list includes the following persons:

10 3 James K. Purpura, CCM, 930 Tahoe Blvd #802-560, Incline Village, NV 89451;

Ll telephone: (775) 636-08553.

12 4 Captain Barry Schiff, 673 Trueno Ave., Camarillo, CA 93010; telephone: (805) 987-

13 4561.
14 5 Ted “JR” Faravelli, T.E. Faravelli & Associates, 2302 Zanker Rd., San Jose, CA

15 95131; telephone: (408) 954-5996.
16 6 Zach Romer, Automobile Appraisal Association, P.O. Box 134, Carmichael, CA
17 95608; telephone: (415) 798-0371 (cell) or (888) 595-7551.
18 7 Rick Railsback, Cura Emergency Services, 6205 Capel Hill Blvd. #100, Plano, Texas
19 75093; telephone: (214) 914-7263.

20 8 Said experts have agreed to testify at trial.

21 9 James K. Purpura, CCM: The following is a brief narrative of the qualifications of
22 said expert: Mr. Purpura is a Certified Consulting Meteorologist. Attached hereto, marked Exhibit
23 “A,” and incorporated herein by this reference is a true and correct copy of the Curriculum Vitae of

24 said expert, James K. Purpura.

25 10. The following is a brief narrative of the general substance of the testimony that said
26 expert may give at trial: The general issues that Mr. Purpura will be addressing including but not
27 limited to applicable meteorological conditions for the accident flight with emphasis on the weather

28 conditions at or near Half Moon Bay Airport.
-4-

DEFENDANTS STEPHEN MAGEE AND SAC AERO FLYING CLUB, INC.’S EXCHANGE OF EXPERT WITNESS
| NFORMATION
ll. Said expert is sufficiently familiar with the pending action to submit to ameaningful

oral deposition concerning the testimony described above, including expert opinions and the bases
therefor. As of the present date, Mr. Purpura has not prepared a written report regarding this matter.

12. Mr. Purpura’s fee for deposition or trial testimony is $290 per hour.

13. Captain Barry Schiff: The following is a brief narrative of the qualifications of said
expert: Captain Schiff is an ATP-rated pilot with over 28,000 flight hours in 357 different aircraft.

Attached hereto, marked Exhibit “B,” and incorporated herein by this reference is a true and correct

copy of the Curriculum Vitae of said expert, Captain Schiff.

14. The following is a brief narrative of the general substance of the testimony that said

10 expert may give at trial: The general issues that Captain Schiff will be addressing include piloting

11 with emphasis on pilot weather briefings and aircraft control and piloting techniques for flights into

12 unforecast wind shear.

13 15. Said expert is sufficiently familiar with the pending action to submit to ameaningful

14 oral deposition concerning the testimony described above, including expert opinions and the bases

15 therefor. As of the present date, Captain Schiff has not prepared a written report regarding this

16 matter.

17 16. Captain Schiff’s fee for deposition or trial testimony is $300 per hour.

18 17. Ted “JR” Faravelli: The following is a brief narrative of the qualifications of said

19 expert: Mr. Faravelli is a certified real estate appraiser. Attached hereto, marked Exhibit “C,” and

20 incorporated herein by this reference is a true and correct copy of the Curriculum Vitae of said

21 expert, Mr. Faravelli.

22 18. The following is a brief narrative of the general substance of the testimony that said

23 expert may give at trial: The general issues that Mr. Faravelli will be addressing including but not

24 limited to alleged diminution in value of plaintiffs’ property and required disclosures.

25 19. Said expert is sufficiently familiar with the pending action to submit to ameaningful

26 oral deposition concerning the testimony described above, including expert opinions and the bases

27 therefor. As of the present date, Mr. Faravelli has not prepared a written report regarding this matter.

28 20. Mr. Faravelli’s fee for deposition or trial testimony is $400 per hour.
5.

DEFENDANTS STEPHEN MAGEE AND SAC AERO FLYING CLUB, INC.’S EXCHANGE OF EXPERT WITNESS
[INFORMATION
21 Zach Romer: The following is a brief narrative of the qualifications of said expert

Mr. Romer is an automobile appraiser. His Curriculum Vitae will be provided.
22 The following is a brief narrative of the general substance of the testimony that said

expert may give at trial: The general issues that Mr. Romer will be addressing including but not
limited to alleged diminution in value and loss of sue of plaintiffs’ Sprinter van.

23 Said expert is sufficiently familiar with the pending action to submit to a meaningful

oral deposition concerning the testimony described above, including expert opinions and the bases

therefor. As of the present date, Mr. Romer has not prepared a written report regarding this matter.

24. Mr. Romer’s fee for deposition or trial testimony is $300 per hour.

oh
10 25 Rick Railsback: The following is a brief narr: alificayae s of said expert:

11 Mr. Railsback is a geologist. The Curriculum Vitae of Mr. ill be piwe

26. The following is a brief narrative of the gendtal t ofthe iby that said

cosy
12 SI

3 expert may give at trial: The general issues that Mr. nal C. ing but not

14 limited to pertinent aspects of remediation and monitorin; ll plaintiffs

15 property and abatement thereof.

16 27 Said expert is sufficiently familiar with the 1 tosubmit t eaningful

17 oral deposition concerning the testimony described above, inclu eC] pinions id the bases

18 therefor. As of the present date, Mr. Railsback has not prep: report arding this

19 matter.

20 28 Mr. Railsback’s fee for deposition or trial testim: er hour

21 29. Stephen Magee: He holds FAA ratings private t gle engine

22 land. He has over 1,100 total flight hours.

23 30. The following is a brief narrative of the general S| ice the tes ony of Mr.

24 Magee: he may testify as to the available weather briefings, p 1n| chniqu sed on the

25 accident flight. He is expected to testify consistent with his d S} ‘imony August 16.

26 2019

27 //1

28 HL
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IDEFENDANTS STEPHEN MAGEE AND SAC AERO FLYING CLUB, INC.’S EXCHANGE OF EXPERT WITNESS
[NFORMATION
31. Mr. Magee is sufficiently familiar with the pending action to submit to a meaningful

oral deposition concerning the testimony described above, including his expert opinion and the bases

therefor.

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

Executed this 16th day of September 2019 at Westlake Village, California.

GARR 5 TTANARTI
10

11 N:\17517\pld\trial\p-exchg.xwit.
L_wpd
12

28
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IDEFENDANTS STEPHEN MAGEE AND SAC AERO FLYING CLUB, INC.’S EXCHANGE OF EXPERT WITNESS
INFORMATION
EXHIBIT B
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO

BRYAN TRUJILLO AND CINDY
TRUJILLO,

Plaintiffs,
NO. 18 CIV 01901
vs

STEPHEN MAGEE AND SAC AERO FLYING
CLUB, INC., AND DOES 1-50,

Defendants.
10
11
12
13 Deposition of RICKARD RAILSBACK
14
REDWOOD CITY, CALIFORNIA
15
October 24, 2019
16
17
18
19
20
21
22
23 REPORTED BY: LORNA TRAUBE, CSR No. 6206
24 File No. 3606665
25 Pages 1 - 44

Page 1

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aircraft?

I believe that is the case.

You don't know whether or not they insured the

pilot?

I don't know.

You never received that information, or came to

an understanding that they insured the pilot?

A No.

21 Q Did you ever get an understanding of what the

22 limits of the insurance policy was?

23 A No.

24 Q Did you ever ask for that information?

25 A No.

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Q When did you complete your work?

A Technically, it is really not complete.

Q As you sit here today, you have reached some

opinions you intend to offer at trial?

A If asked, yes.

Q What are the opinions that you intend to offer

at trial?

A You will have to be a little more specific.

Well, have you been deposed before?

10 Yes.

11 Have you testified in trial before?

12 Not really trial. I testified at several

13 railroad commission hearings, on oil and gas matters.

14 Q The purpose of the deposition is for me to have

15 the opportunity to hear now whatever opinions you intend

16 to offer at the time of trial. If it is the case that

17 you have no opinions that you intend to offer, then it

18 is a short deposition. If you have opinions, I need to

19 get them now, to find out what they are.

20 A Opinions on the remediation assessment of this

21 matter?

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your area of expertise, that you feel that you are

prepared to offer at the time of trial.

A My general opinions regarding this case are that

over the past two plus years we have completed, that is,

CURA has overseen the field work done by Orion

Environmental on this site, and that we have

collected -- as part of the site assessment we have

collected numerous soil, groundwater, soil vapor, indoor

air samples, at the site.

10 And we have demonstrated conclusively that the

11 property presents no danger or risk to human health and

12 the environment. And the Groundwater Protection Program

13 of San Mateo County and the Regional Water Quality

14 Board, have concurred with this opinion.

15 Q When you say we have demonstrated conclusively,

16 who is we?

17 A CURA, with the assistance of our consultant,

18 Orion Environmental.

19 Q Is Orion -- was Orion retained by CURA?

20 A Yes.

21 Q Who paid Orion's bills?

22 A The insurance company pays Orion's bills

23 directly, after we approve the invoice.

24 Q Avemco?

25 A Yes.

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A I did not supply you with the number, but it has

been going on since early 2017. So, quite a few hours.

Q Amounts to $8,600?

A Roughly.

Q What is your hourly rate?

A Generally, $90 an hour

Q So, if my math is correct, that would be about

100 hours, roughly?

A There are probably more invoices that have not

10 been issued yet, because we will wait several months

11 before we invoice.

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kind of figuring out where the contamination was?

A And evaluating the contamination as it relates

to the environmental screen levels.

Q Do you have an understanding as to why Avemco

would pay Orion to do over $100,000 worth of work, just

to figure out the scope of the contamination?

A You have to figure that out so that you can

either plan a remediation plan, or close the site under

the -- with the data that you have collected. ALL of

10 this was required by and under -- and done under the

11 direction of the Groundwater Protection Program of San

12 Mateo County, which I will refer to as GPP.

13 Q Did Orion, after spending or charging $100,000

14 or so, come up with conclusions?

15 A Yes.

16 Q What were those conclusions?

17 A Those conclusions were the opinions that I

18 stated earlier.

19 Q That as a result of its work, at this point in

20 time the -- there is no danger -- the contamination on

21 the property presents no danger or risk to human health,

22 or to the environment?

23 A That's correct.

24 Q And as of what time, what point did the work on

25 the property reach the point that there was no further

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danger to human health or the environment?

A That would be around February of this year, when

we issued the last report on the indoor air sampling.

Q Did Orion actually do any of the remediation

work?

A Again, it is a -- we get to definitions, but the

actual, quote, remediation work, was the excavation of

the contaminated soil, which was done by IRC before we

were engaged.

10 Q How did you get to the -- how do you

11 personally -- are you of the opinion that there is no

12 further danger or risk to human health or to the

13 environment as a result of the contamination that was on

14 the property as a result of the accident?

15 A Yes.

16 Q What is the basis of that opinion?

17 A All the data that we have gathered and compared

18 to the pertinent, to the applicable ESL's, environmental

19 screen levels.

20 Q So, it is your view now that the contamination

21 that is now on the property does not rise to the level

22 of the ESL's that require further remediation?

23 A That's correct.

24 Q Is it your conclusion, or your opinion, that as

25 long as the contamination on the property does not

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Q Are there some --

A Caveat that with, we are looking mainly at the

relevant, or the open exposure pathway here is

inhalation of indoor air

Q What do you mean, open exposure pathway?

A The pathway that people living in the house

10 would be potentially exposed to.

11 Q So that's the metric, or that's what you are

12 looking at in terms of what would pose a risk to

13 occupants of the property?

14 A That's correct.

15 Q But the groundwater contamination could pose a

16 risk to those who are not on the property?

17 A No.

18 Q Again, because of why?

19 A We have delineated the groundwater

20 contamination, it is extremely minimal, and it is not --

21 it is naturally attenuating. These petroleum

22 hydrocarbons will biodegrade with time, dilute in the

23 sub-surface, so in my opinion there is no way this is

24 going to migrate, really, anywhere.

25 Q Would you agree with me, if it does migrate it

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7 Q Where do you get the -- what is the basis for

8 your opinion that vapor readings which are below the

9 specified ESL's pose no risk to human health or safety?

10 A They are not affecting the indoor air inside of

11 the house.

12 Q Let's say that -- what is a vapor, is it a

13 chemical, or compound, what do you call it that you are

14 reading for?

15 A Typically we will analyze for what is in Orion's

16 reports; TPHG, and BTEX, Benzene, Toluene.

17 Q Let's discuss Benzene. You take an indoor

18 reading of the Benzene levels, and you are finding

19 Benzene, but it is beneath the ESL?

20 A No. The indoor air exceeds the ESL's for

21 Benzene.

22 Q Currently?

23 A Yes, and in the past.

24 Q If the indoor air level exceeds the ESL for

25 Benzene, how do you get to the conclusion that the

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1 remains there. So, I would be -- I would say no, I

2 would not -- I would look to another source.

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19 Q Are you aware that from time to time the

20 governmental entities change the ESL's?

21 A Yes.

22 Q They have done that in the past, correct?

23 A Yes.

24 Q It is possible that they will do that in the

25 future?

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I misunderstood, if today -- the reason you say the

groundwater is safe today is because the contaminants in

the groundwater do not exceed the ESL's set by the

government; is that correct?

A Well, plus the fact that the exposure pathway

that's open, the only one that is open is inhalation of

indoor air, and the groundwater -- nobody is going to

drink the groundwater

Q Now, so we are Clear, it does not matter what

10 the contaminants are in the groundwater, you would never

11 say at any level it is unsafe, you would never say they

12 pose a risk to environment or human health?

13 A As long as the exposure pathway is not complete.

14 Q Right after the accident, say the contamination

15 of the groundwater exceeded the government's ESL's,

16 correct?

17 A Immediately following that, I think it did, it

18 may have.

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Q If the groundwater contamination, even though it

is acceptable to the government, migrates into somebody

else's well, would that person bring a claim against the

property owner from which the contamination originated?

MR. MONTANARI: Objection, incomplete

hypothetical, lacking in foundation.

Case Info

Judge

Fineman, Nancy L. Track Judge’s New Case

Case No.

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Document Filed Date

March 02, 2021

Case Filing Date

April 17, 2018

County

Parties

ALLIED PROPERTY AND CASUALTY INSURANCE COMPANY Intervenor
AMCO INSURANCE COMPANY Intervenor
BAUERLE, ASHLEY E. Attorneys for Plaintiffs
CHOO, CLAIRE Attorney for the Plaintiff
DANKO, MICHAEL S. Attorney for the Plaintiff
DOES 1-20 Defendant
DOES 1-50 Defendant
MAGEE, STEPHEN Defendant
MONTANARI, GARRY L Attorney for the Defendant
SAC AERO FLYING CLUB, INC. Defendant
TRUJILLO, BRYAN Plaintiff
TRUJILLO, CINDY Plaintiff
WENIG, WESLEY S. Attorney for the Defendant
Michael Smith Attorneys for Plaintiffs
John Moon Attorneys for Defendants
Shawn Miller Attorneys for Plaintiffs
James Michaelis Attorneys for Defendants
Tamara Gabel Attorney
Kyounghwa Lee Attorneys for Plaintiffs
Claire Yazigi Attorneys for Plaintiffs
David Meredith Attorney
Michael Sherman Attorneys for Plaintiffs
Renee White Attorney
Thomas Le Attorney
Ashley Eickhof Attorneys for Plaintiffs

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Motion,Ex Parte: BRYAN TRUJILLO, et al vs. STEPHEN MAGEE, et al

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