SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO – UNLIMITED JURISDICTION
JOHN DACHAUER and RITA DACHAUER,
AMCORD, INC.; ET AL.,
CASE NO: CGC-06-454837
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS KAISER GYPSUM COMPANY, INC.’S AND HANSON PERMANENTE CEMENT, INC.’S MOTION IN LIMINE TO LIMIT THE TESTIMONY OF RICHARD HATFIELD; DECLARATION OF ERIC BROWN;
PROOF OF SERVICE
[KAISER and HANSON MIL #5]
Complaint Filed:August 4, 2006
Trial Date:June 18, 2007
Judge: Hon. Mary E. WissTO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Plaintiffs JOHN DACHAUER and RITA DACHAUER (“Plaintiffs”) hereby file this their Response in Opposition to Defendants Kaiser Gypsum Company, Inc.’s (“Kaiser”) and Hanson Permanente Cement, Inc.’s (“Hanson”) (collectively referred to as “Defendants”) Motion in Limine to Limit the Testimony of Richard Hatfield and, in support, would respectfully show the Court as follows:
Mr. Richard Hatfield, Plaintiffs’ expert in the field of materials science, has conducted numerous videotaped studies designed and conducted in order to evaluate the potential for exposure to asbestos from certain products. The point of Mr. Hatfield’s testimony is not, as Defendants suggest, to quantify the precise level of asbestos exposure encountered by Mr. Dachauer as he worked with and around asbestos containing products. Indeed, Plaintiffs will introduce evidence only that Plaintiff’s exposures to Defendants’ products would have occurred in a fashion similar to the exposures tested by Mr. Hatfield. Mr. Hatfield’s studies help the jury to understand what asbestos products such as Defendant’s are, and the potential for exposure to asbestos from them in occupational and household settings.
In the instant case, as Defendants note, Plaintiffs have already agreed that they will not attempt to play for the jury the demonstrative videotapes illustrating the way in which Defendants’ products release airborne asbestos fibers, even though numerous courts have admitted such demonstrative evidence in other cases in which Mr. Hatfield has testified. The videotapes are, therefore, not at issue. In their motion, Defendants concede that Mr. Hatfield should be permitted to testify about the tests he performed on Defendants’ products, just so long as he doesn’t really say anything. In particular, Defendants ask that the Court prevent Mr. Hatfield from testifying about the manner in which his studies were conducted or the studies’ results. It is not enough for Defendants that the jury will not be “prejudiced” by observing in a videotape the type of protective clothing that should be worn when working with asbestos containing products. Defendants don’t want the jury even to hear that Mr. Hatfield wore a suit or a respirator when conducting his studies! Defendants don’t want the jury to hear that asbestos dust can be present even when not visible to the naked eye. And they don’t want the jury to know that Mr. Hatfield conducted studies using sound scientific methodologies, one endorsed by OSHA and the other by the EPA, to prove that their products emitted airborne asbestos particles when used as intended. The Court should deny Defendants’ motion—in accordance with the vast majority of courts from across the nation—and admit the testimony of Mr. Hatfield.
The admissibility of expert testimony in California cases is governed by California Evidence Code § 801:
If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.
Plaintiffs’ experts’ testimony is admissible at trial since (1) Mr. Hatfield will testify to subjects that are “sufficiently beyond common experience”; (2) Mr. Hatfield has special knowledge, skill, experience, training, and education on the topics to which he will testify; and (3) Mr. Hatfield’s testimony is based on reliable matter.
Plaintiffs’ Expert, Mr. Richard Hatfield, is Expected to Testify to Matters That Are “Sufficiently Beyond Common Experience” of the Jury.
At the outset, Defendants pretend to misapprehend the purpose for which Mr. Hatfield’s testimony will be offered. Mr. Hatfield’s studies, photographs and videotapes were designed and conducted in order to evaluate the potential for exposure to asbestos from certain products. At no point did Mr. Hatfield and Dr. Longo, with whom he conducted the studies, intend their work to represent the precise level of exposure encountered by any one individual.
In the instant case, Plaintiffs will introduce evidence only that Mr. Dachauer’s exposure to Defendants’ products would have occurred in a fashion similar to the exposures tested by Mr. Hatfield, but will not represent that Mr. Hatfield’s results represent the exact levels of exposure experienced by any one person, including Mr. Dachauer. Rather, Mr. Hatfield’s testimony is intended to help the jury understand what asbestos products such as Defendants’ are, and the potential for exposure to asbestos from these products in occupational and household settings.
This distinction was explained by an Ohio appellate court in reaching its decision that Dr. Longo’s similar testimony there was properly admitted. In Ball v. Consolidated Rail Corp. (2001) 142 Ohio App.3d 748 [756 N.E.2d 1280], the Ohio Court of Appeals held that although Dr. Longo’s testimony was not admissible to show the numerical level of asbestos exposure experienced by particular plaintiffs, his simulations were relevant and helpful to the jury in illustrating the release of fibers from asbestos-containing products under certain conditions. Id. at 758–59. The court later reaffirmed this holding in Shesler v. Consolidated Rail Corp. (2003) 151 Ohio App.3d 462, 471 [784 N.E.2d 725, 732] (holding that Dr. Longo’s testimony was “admissible for the purpose of determining whether asbestos fibers could be released” under the working conditions described by the plaintiffs).
The same rule should apply here. The tests performed by Mr. Hatfield are admissible in this case to demonstrate that large amounts of dust can be present in a worker’s breathing zone without being visible to the naked eye. The studies are not intended to replicate exactly Mr. Dachauer’s exposure or quantify the actual exposure, but merely to demonstrate for the jury the potential for exposure to asbestos from Defendants’ products in occupational and household settings. This information is “sufficiently beyond common experience” to allow the admission of expert testimony under the California Rules of Evidence.
Mr. Hatfield Is Qualified to Provide Expert Testimony.
Defendants do not even suggest that Mr. Hatfield is not qualified. Mr. Hatfield’s employer, Materials Analytical Services (“MAS”), is a leading engineering consulting firm, which provides a broad range of services including environmental and industrial hygiene and emissions testing, with six offices nationwide. See Excerpts of Testimony of Dr. William Longo, In Re New York City Asbestos Litigation, June 10, 2003, Exhibit 17 at 2263; see also MAS website, available at www.mastest.com. MAS has employees with expert knowledge in a broad range of fields including material sciences, chemistry, physics, biology, industrial hygiene, geology, mechanical engineering, and microscopy. Id. at 2267. MAS has performed consulting work for government agencies such as the Centers for Disease Control and the National Institutes of Health. MAS has also worked as an expert for the City of New York and the State of New York in their respective litigation against asbestos companies. MAS has been involved in testing asbestos-containing materials for over twenty years, and has analyzed tens of thousands of asbestos samples. Id. at 2269. MAS has been retained by both plaintiffs and defendants in asbestos litigation. Id. at 2270. The lab is certified by the American Industrial Hygiene Association and the National Voluntary Laboratory accreditation program. Id. at 2272.
Richard L. Hatfield has been a Senior Consultant at MAS for 10 years. See Curriculum Vitae of Richard L. Hatfield. He holds two bachelor of science degrees from North Carolina State University: one in experimental statistics and one in geology. Id. Mr. Hatfield has been involved in asbestos-related services since 1979 when he served as a Technical Field Advisor for U.S. EPA’s “Asbestos in Schools” program. Id. Mr. Hatfield began Law Engineering’s development of asbestos-related services, particularly its analytical services. Id. Mr. Hatfield also managed McCrone Environmental, where he developed procedures for the identification of asbestos-containing products and methods for evaluation of asbestos contamination in buildings. Id. In addition to lecturing on asbestos-related problems, Mr. Hatfield has twice taught the NIOSH Court No. 582, “Sampling and Evaluating Airborne Asbestos Dust” for the University of Alabama in Birmingham, was appointed as an expert advisor to EPA’s negotiated rule-making committee to promulgate the Asbestos Hazard Emergency Response Act (AHERA) regulations, and has participated in the EPA’s peer review of research projects. Id. Mr. Hatfield has published extensively on the topic of fiber release and other asbestos-related issues and is a member of the American Industrial Hygiene Association, the ASTM D-22 Committee, the Environmental Information Association, and the National Institute of Building Sciences. Id.
Plainly, Mr. Hatfield has special knowledge, skill, experience, training, and education on the topics to which he will testify; he is qualified to testify and his testimony is admissible under the California Rules of Evidence.
Plaintiffs’ Expert’s Testimony is Based on Reliable Matter.
At MAS, Mr. Hatfield and Dr. William Longo, President of MAS, analyze and study a wide spectrum of products and associated chemicals. They also conduct studies of various asbestos-containing products (“Work Practice Studies”) that analyze the potential for release of asbestos fibers into the environment. These studies demonstrate, among other things, whether a product manufacturer could have anticipated the quantity of asbestos released into the air from its products as well as the levels of asbestos fiber released under certain circumstances. They perform these tests under rigorously controlled laboratory conditions.
Using a testing chamber, Dr. Longo simulates the typical uses of asbestos-containing products, including asbestos-containing gaskets and packings. MAS utilizes multiple, standardized analytical testing techniques to determine the amount of asbestos released into the air and dispersed into workers’ breathing zones, their clothing, and surroundings. MAS methods include the very testing techniques routinely employed by and available to the asbestos industry in the 40s, 50s, and 60s, as well as updated, standardized testing procedures. Contrary to Defendants’ suggestions, all of the techniques employed by Mr. Hatfield are generally accepted in the scientific community and widely used by industrial hygienists and safety professionals in asbestos monitoring and abatement activities, including TEM and Tyndall lighting.
1.Air Sample Analysis by Transmission Electron Microscopy (TEM)
In addition to employing the Phase Contrast Microscopy (PCM) analysis used by OSHA (and approved by Defendants), Mr. Hatfield’s and Dr. Longo’s studies analyze samples using transmission electron microscopy (TEM), which is vastly more powerful and accurate than PCM. Mr. Hatfield does not utilize TEM for comparison to occupational exposure standards but to compare the fiber particle release of one asbestos-containing product to another and for his own research. For instance, when Dr. Longo has TEM analysis for one product, he can compare it to the TEM analysis for another, thereby enabling a comparison of total particulate release from each product. Additionally, TEM helps to illustrate that PCM does not account for all of the asbestos fibers that are in the air. This assists the jury in understanding the important distinction between a “regulated fiber”–one that is considered for occupational standards–and a “fiber” for purposes of true biological impact.
While Defendants would have the Court believe that Mr. Hatfield’s TEM methodology is unknown to the true scientific community, reality does not bear this out. In fact, according to an expert frequently used by Defendants, Frederick Boelter, “transmission electron microscopy (TEM) is the method of choice for determination of asbestos fibers in air.” F. W. Boelter, “Air Sampling and Monitoring,” Asbestos Issues, March 1989, at 41 (attached as Exhibit 20). Mr. Boelter has further opined that “professional judgment and consultation with laboratory personnel experienced in TEM analysis can result in an efficient and economical sampling strategy.” Id. at 42. Companies such as Dow Chemical have long recognized that TEM is the best method for analyzing asbestos fibers. See Report dated Oct. 1, 1974, attached as Exhibit 21. Such industry reliance is a good indication that a scientific technique is not new, but sound and proven.
In preparing samples for analysis, Mr. Hatfield follows the sample preparation and protocol for TEM analysis as prescribed by the American Society for Testing and Materials (ASTM) standard number 5755-95, for which Dr. Longo was the primary author. In addition, Mr. Hatfield’s and Dr. Longo’s indirect sample preparation methodology has been published by the Environmental Protection Agency (EPA) and the International Standards Organization (ISO). Mr. Hatfield’s and Dr. Longo’s methods are described in their peer reviewed, published articles and lectures on fiber analysis. See, e.g., Longo, et al., Fiber Release During the Removal of Asbestos-Containing Gaskets: A Work Practice Simulation, attached as Exhibit 18.
- Tyndall Lighting
Tyndall lighting is an accepted method of visualizing the pathway of exposure in industrial hygiene applications. The technique was named after Sir John Tyndall, a British physicist. Dr. Irving J. Selikoff, the most widely respected researcher of asbestos-related disease, recognized in his article describing various procedures to reduce dust in shipyards that “unsatisfactory amounts of respirable dust can be present in the air” and cannot be seen without the use of back lighting. Selikoff, Irving J., “Shipyard Procedures Guide Helps All Insulation Men,” Insulation Hygiene Progress Reports, Vol. 3, No. 4 (Winter 1971). The EPA has endorsed the use of Tyndall lighting to observe asbestos exposure in its Standard Operating Procedures (SOP). See EPA’s Standard Operating Procedure (“SOP”) for Video Exposure Monitoring of Activities Potentially Associated with Exposure to Asbestos in Air, Revision #1, March 200l, attached as Exhibit 21. This demonstrates that the use of Tyndall lighting has a specific purpose in industrial hygiene. Contrary to Defendants’ assertions, Tyndall lighting is not used to make a quantitative assessment of actual exposure but rather to demonstrate that large amounts of dust can be in a worker’s breathing zone without being visible to the naked eye. This fact is directly relevant to the issue of whether or not the product at issue is “unreasonably dangerous.” Tyndall lighting demonstrates “pathways of exposure” from the source of dust to an individual. It further permits the observer to understand why a worker may not know that harmful dust is released from a product.
Defendants’ Arguments Regarding the Kelly Test for Admissibility are Inapplicable.
Defendants mistakenly claim that the test in People v. Kelly, 17 Cal.3d 24 [130 Cal.Rptr. 144] (1976), for reliability of scientific evidence upon which the testifying experts base their testimony governs this case. It is well-established law, however, that “Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process or theory which is new to both science and law.” Texaco Producing, Inc. v. County of Kern (1998) 66 Cal. App.4th 1029, 1048 [78 Cal.Rptr.2d 433] (emphasis in original). Since Defendants have failed to show that TEM or Tyndall Lighting are “new” to either science or law, Defendants cannot rely on the Kelly test in arguing that Mr. Hatfield’s testimony is not reliable.
Even if the Kelly test were to apply in this case, the expert testimony offered by Mr. Hatfield would be admissible since the methods used as the basis for his opinions has been judged to be reliable by other appellate courts both in California and across the country. In Kelly, the California Supreme Court made clear that “once a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community.” People v. Kelly (1976) 17 Cal.3d 24, 32. Subsequent courts have clarified that these appellate decisions may be issued by California courts or by courts in other jurisdictions. See, e.g., People v. Allen (1999) 72 Cal. App.4th 1093, 1099 [85 Cal.Rptr.2d 655] (“There is no reason why only California cases suffice for this purpose.”).
Contrary to the picture painted by Defendants, testimony offered by Mr. Hatfield and Dr. Longo regarding the airborne nature of asbestos in asbestos-containing products and industrial exposure to asbestos has been admitted time and again in asbestos litigation by many courts across the country. Recently, in John Crane, Inc. v. Puller (2006) 169 Md. App. 1 [899 A.2d 879] (attached as Exhibit 22), the Maryland Court of Appeals found that the very testimony Defendants seek here to exclude was sufficient to support the jury’s finding in that case that the decedent’s exposure to the defendant’s asbestos-containing gaskets and valve packing was a substantial factor in causing his death. 169 Md. App. at 4–5. Indeed, the court noted that such testimony, along with Dr. Longo’s demonstrative videos, had also been found sufficient to support the jury’s verdict in an earlier case, Garlock, Inc. v. Gallagher (2003) 149 Md. App. 189 [814 A.2d 1007] (attached as Exhibit 23). 169 Md. App. at 6. See also Ehret v. Congoleum Corp. (1999) 73 Cal. App.4th 1308 [87 Cal.Repr. 2d 363]; Shesler v. Consolidated Rail Corp. (2003) 151 Ohio App.3d 462 [784 N.E.2d 725] (attached as Exhibit 24); Ball v. Consolidated Rail Corp. (2001) 142 Ohio App.3d 748 [756 N.E.2d 1280] (attached as Exhibit 25); In re W.R. Grace & Co., 355 B.R. 462, 470 n.35 (Bkrtcy.D.Del.2006) (attached as Exhibit 26); Matter of Celotex Corp. (Bankr. M.D.Fla. 1996) 196 B.R. 973 (attached as Exhibit 27); Gypsum Co. v. Mayer & City Council of Baltimore (1994) 336 Md. 145 [647 A.2d 405] (attached as Exhibit 28); Raines v. Ametek, Inc., et al., No. 2005-14079, dated Oct. 12, 2006 (Order and Transcript attached as Exhibits 1 and 2); Louis Barletta, et al. v. A.W. Chesterton, et al., No. 01-454-D, in the 105th Judicial District, Kleberg County, Texas (Order attached as Exhibit 3); Eddie Caffey, et al. v. Foster Wheeler Energy Corp., et al., No. 01-C-753, in the 5th Judicial District, Cass County, Texas (Order attached as Exhibit 4); Oscar Kelly Bell v. Dresser Industries, Inc., No. A-920,961 (SC-19)in the 128th Judicial District, Orange County, Texas (Order attached as Exhibit 5); Bobby Jean Thorne v. AC&S, Inc., No. 59078 in the 196th Judicial District, Hunt County, Texas (Order attached as Exhibit 6); Norman Hines v. AC&S, Inc., No. 62382 in the 354th Judicial District, Hunt County, Texas (Order attached as Exhibit 7); Ladell Alexander v. American Cyanamid, No. 01-0614 in the 71st Judicial District, Harris County, Texas (Order attached as Exhibit 8); Thurman Harmon v. Owens Corning, No. 99-06508-M in the 298th Judicial District, Dallas County, Texas (Order attached as Exhibit 9); Verda Sutton v. AC&S, No. 41, 862 in the 356th Judicial District, Hardin County, Texas (Order attached as Exhibit 10); Eisenreich v. Durabla Manufacturing Co., No. 97-16440 in Allegheny County, Pennsylvania (Order attached as Exhibit 11); Edward T.W. Chang v. Owens Illinois, No. 00-1-3297-10 EEH in the First Circuit Court of Hawaii (Order attached as Exhibit 12); Donald Reynolds v. Garlock Sealing Technologies, No. 117829 in the State of New York Supreme Court, Niagara County (Transcript attached as Exhibit 13); Richard Harris v. AC&S, Inc., No. 24-X-02-000672 in the Circuit Court for Baltimore City, Maryland (Transcript attached as Exhibit 14); Board of Education v. The Celotex Corp., No. 84-429634-NP in the Third Judicial Circuit Court of Wayne County, Michigan (Transcript attached as Exhibit 15); 2005 Chart Reflecting Denial of Frye Motions to Strike Dr. Longo’s Testimony (attached as Exhibit 16).
Defendants have given this Court no reason to hold any differently today. Because published appellate opinions from courts in California and across the country have permitted the use of similar testimony and evidence, Defendants motion should be denied, even if this Court decides that Kelly applies.
For the foregoing reasons, this Court should follow the precedent of the vast majority of courts to decide the issue and admit the testimony of Richard Hatfield. Defendants’ motion should be denied.
Dated: June 26, 2007BARON & BUDD, P.C.
- ↑ Defendants found persuasive the comments of one trial judge from Texas on this issue. Judge Davidson, who admitted Dr. Longo’s testimony in the Raines case, is the presiding judge over all asbestos cases currently pending in the State of Texas. Judge Davidson observed that “I am convinced from the review of the record that the opinions expressed by Dr. Longo are within published and peer-reviewed and mainstream scientific opinion and otherwise complies with the Daubert and Robinson tests.” Transcript dated Oct. 4, 2006, attached as Exhibit 2, at 10. Further, Defendants neglect to mention that the study criticized so harshly by the Lamar County judge was subsequently published in a peer-reviewed journal, casting serious doubt on the trial court’s assessment of its scientific merit. See Longo, et al., Fiber Release During the Removal of Asbestos-Containing Gaskets: A Work Practice Simulation, Applied Occup. and Envtl. Hygiene 17:55-62 (2002), attached as Exhibit 18.