Plfffs_notice_of_motion_in_limine_no_9MotionCal. Super. - 4th Dist.June 20, 2018~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GRANT K. RILEY (SBN 116459) ELECTRONICALLY FILED grant@rileylawgroup.com Superior Court of Califomia, PHILIP SHAKHNIS (SBN 199461) Gounty of San Diego philip @rileylawgroup.com 02/21/2019 at 05:44:00 PM TARA MITCHELTREE (SBN 276945) Clerk of the Superior Court tara@rileylawgroup.com By E- Filing, Deputy Clerk RILEY LAW GROUP A Professional Corporation 8383 Wilshire Blvd., Suite 425 Beverly Hills, California 90211 Telephone: (310) 284-8822 Facsimile: (310) 284-8833 Attorneys for ALL PLAINTIFFS SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO BROOKE MARSHALL, individually and as Case No. 37-2018-00032777-CU-OR-CTL Guardian ad Litem for BLAKE LITTFIN, a minor child; BRIAN LITTFIN, an individual, PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE Plaintiffs, EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD VS. POISONING SEREH GHAEMMAGHAM]I, an individual Judge: Hon. Richard S. Whitney and as Trustee of The Sereh Ghaemmaghami Dept: C-68 2006 Trust; and DOES 1-20 inclusive, Date: February 22, 2019 Time: 9:00 a.m. Defendants. Action Filed: June 20, 2018 Trial Date: February 22, 2019 I. INTRODUCTION Blake Littfin's parents discovered that Blake has a dangerously high blood lead level in March, 2018. Blake's blood lead level was 29 mcg/dL - 30 times the national mean blood lead level. At the time plaintiffs discovered that their son had lead poisoning, plaintiffs were living at a rental home in Murrieta, California. Plaintiffs’ previous home was 5162 Guava Ave., La Mesa, CA owned by defendant Sereh K:\Clients\Habitability\Marshall v Ghaemmaghami\Trial\Motions in Limine\Plaintift MIL.s\2019.02.22 MIL 9 Speculative Opinions.docx PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING R I L E Y L A W G R O U P PC 83 83 WI LS HI RE BL VD ., SU IT E 42 5 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 TE L (3 10 ) 28 4- 88 22 » Fa x (3 10 ) 28 4- 88 33 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ghaemmaghami. Plaintiffs lived at the 5162 Guava Ave. home from 2013 to 2016. Plaintiff Blake Littfin was born at 5162 Guava Ave. and lived there from September 7, 2014 to August, 2016, when the family vacated and moved to Murrieta. Pursuant to California law, the Riverside County Department of Public Childhood Lead Poisoning Prevention Program ("RCDPH") conducted a lead inspection and lead assessment of plaintiffs’ home in Murrieta. Following an exhaustive inspection of the Murrieta property, the Environmental Professional and Public Health Nurse assigned to Blake concluded that Blake's lead poisoning was caused by 1) plaintiffs’ prior residence owned by defendant (5162 Guava Ave.), and 2) a deteriorated window that was removed by defendant from a neighboring property owned by defendant (5156 Guava Ave.) and exposed to Blake at 5162 Guava and the Murrieta house. As stated by the RCDPH in their lead inspection and investigation report: In your judgment, what are the most probable sources of lead poisoning in this case? Most likely source of lead poisoning is from cases's PICA behavior and from the previous residence in San Diego County, home was built in 1940s. kk ck The PHN [Public Health Nurse] and EP [Environmental Professional] think these are the most likely sources of this client's lead poisoning: Most probable source of lead poisoning is from case's PICA behavior and the previous residence in San Diego county. The house they lived in [owned by defendant and located in La Mesa] previously was built in 1940's and a window frame parents brought from the old house tested positive for lead. Following the report from the RCDPH, plaintiff engaged AAA Lead Consultants & Inspections, Inc. in October, 2018, to inspect 1) the interior and exterior of Murrieta property, 2) the deteriorated wood window that defendant stored at plaintiffs' rental home and which plaintiffs took with them when they moved to Murrieta, 3) the interior and exterior of 5162 Guava Ave., and 4) the interior and exterior of 5156 Guava Ave. (6-8 wood frame windows were removed from 5156 Guava and stored in the side and front yard of 5162 Guava). AAA's reports revealed the following: 1. The Murrieta property tested negative for lead-based paint except for some decorations that were inaccessible to Blake and had no evidence or deterioration; 2 PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING R I L E Y L A W G R O U P PC 83 83 WI LS HI RE BL VD ., SU IT E 42 5 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 TE L (3 10 ) 28 4- 88 22 » Fa x (3 10 ) 28 4- 88 33 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The deteriorated wood window that the Littfin family took with them from the 5162 Guava property tested positive. The AAA test revealed the presence of lead-based paint more than five (5) times regulatory limits. Subsequent, far more extensive XRF testing of the window by paint chemist James Girard PhD revealed seven (7) test locations that revealed the presence of lead-based paint as high as 12 times regulatory limits. Dr. Girard calculated that there are 30 grams of lead-based paint on this one window alone. 3 The 5162 Guava Ave. property tested positive with more than 60 locations tested via XRF testing with lead-based paint in excess of regulatory limits. Of those test locations, more than 10 revealed the presence of deteriorated lead-based paint. Dust wipe samples revealed the presence of lead-dust on multiple surfaces. The testing and sampling at 5162 Guava Ave. revealed the presence of multiple lead hazards as defined under federal law and California law. 4. The exterior of the 5156 Guava Ave. property also tested positive for deteriorated lead-based paint. Defendant has never conducted any environmental testing of any kind at any of the three (3) properties notwithstanding the fact that this case has been pending since June 20, 2018. Every one of defendant's experts testified at deposition that although they were aware of their right to conduct lead testing at the property, they never asked and they were told to conduct lead testing by defendant's attorneys. II. DEFENDANT'S EXPERTS SHOULD NOT BE ALLOWED TO SPECULATE REGARDING OTHER "POSSIBLE" SOURCES OF BLAKE'S LEAD POISONING Despite having failed to conduct even one iota of lead testing at the above properties, defendant and her experts have and continue to speculate as to the source of Blake's lead poisoning. Defendant refuses to take responsibility for Blake's lead poisoning but, instead, speculates as to "other" sources of lead poisoning that are (of course) unrelated to defendant. These "other" "possible" sources have been identified by defendant and her experts as: 1. The rags that plaintiff Brian Littfin (Blake's dad) used in his window washing business. 3 PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING RI LE Y L A W G R O U P PC 83 83 WI LS HI RE BL VD ., SU IT E 42 5 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 TE L (3 10 ) 28 4- 88 22 » Fa x (3 10 ) 28 4- 88 33 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Broken pieces of pottery from the backyard of the Murrieta property. 3. Soil from the Murrieta property. 4. Artist's paint used by Blake's uncle Tim Littfin in connection with Tim's personal paint projects. 3. The air. Defendant, her attorneys and her experts have conducted absolutely zero testing at any of the properties, they never tested the wooden window (that has 30 grams of lead-based paint on it — enough to poison thousands of children) and they have failed to produce even one document that supports these grossly speculative sources of lead poisoning. The law on this issue is clear — defendant's speculation regarding the cause of Blake's lead poisoning is inadmissible. The California Law Revision Comments to Evidence Code, Section 801 states that "under existing law, irrelevant or speculative matters are not a proper basis for an expert's opinion." In the seminal case of Sargon Enterprises, Inc. v. University of California (2012) 55 Cal.4™ 747, the California Supreme Court focused on the necessary exclusion of expert opinions based on speculation. In analyzing the interplay between Evidence Code, Section 801 and 802, the Court stated that it is the judge's duty under the law to exclude speculative or conclusory opinions. Id. at 770-771. Sargon was, in large part, based on the decision in in Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App.4™ 1108. As stated in Jennings: A person who qualifies as an expert may give testimony in the form of an opinion if the subject matter of that opinion is sufficiently beyond common experience that the opinion of [the] expert would assist the trier of fact. It is undisputed that qualified medical experts may, with a proper foundation, testify on matters involving causation when the causal issue is sufficiently beyond the realm of common experience that the expert's opinion will assist the trier of fact to assess the issue of causation. However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. For example, an expert's opinion based on assumptions of fact without evidentiary support on speculative or conjectural factors has no evidentiary value may be excluded from evidence. Similarly, when an expert's opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that 4 PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING R I L E Y L A W G R O U P PC 83 83 WI LS HI RE BL VD ., SU IT E 42 5 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 TE L (3 10 ) 28 4- 88 22 » Fa x (3 10 ) 28 4- 88 33 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 opinion has no evidentiary value because an expert opinion is worth no more than the reasons upon which it rests. kk ck Exclusion of expert opinions that rest on guess, surmise or conjecture is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide? Therefore, an expert's opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist in the case before the jury, does not provide assistance to the jury because the jury is charged with determining what occurred in the case before it, not hypothetical possibilities. Similarly, an expert's conclusory opinion that something did occur, when unaccompanied by a reasoned explanation illuminating how the expert employed his or her superior knowledge and training to connect the facts with the ultimate conclusion, does not assist the jury. In this latter circumstance, the jury remains unenlightened in how or why the facts could support the conclusion urged by the expert, and therefore the jury remains unequipped with the tools to decide whether it is more probable than not that the facts do support the conclusion urged by the expert. An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred. 114 Cal. App.4™ at 1117-1118 (citations omitted) Quoting Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403, the Jennings court further stated: The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances [that] can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. Id. at 1118 III. SARGON AND JENNINGS PROHIBITS DEFENDANT'S EXPERTS FROM SPECULATING HOW BLAKE CONTRACTED LEAD POISONING Blake's blood tests in March, 2018, prove, without a doubt, that Blake had lead poisoning. 5 PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING R I L E Y L A W G R O U P PC 83 83 WI LS HI RE BL VD ., SU IT E 42 5 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 TE L (3 10 ) 28 4- 88 22 » Fa x (3 10 ) 28 4- 88 33 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 That fact is not in issue. The question then becomes where did the lead come from? However, the only evidence revealed during the course of discovery that answers that question leads directly to Ms. Ghaemmaghami's two (2) rental properties one of which Blake occupied from September 2014 to August 2016 (5162 Guava Ave.) and a piece of which (the deteriorated wood frame window) was present in the yard of the 5162 Guava Ave. property for more than a year and then followed the Littfin family to their home in Murrieta. Defendant and her experts have not and cannot point to even a shred of evidence that Blake's lead poisoning was caused by rags, artist paint, pottery, the air or anything other than deteriorated lead-based paint at the Guava properties. As a result, any such testimony must be barred and excluded pursuant to this motion in limine lest defendant contaminate the legitimate evidence regarding this subject. IV. DEFENDANT AND HER EXPERTS MUST BE BARRED FROM ATTEMPTING TO INTRODUCE SPECULATIVE CONCLUSION WHETHER POSED AS AN EXPRESS QUESTION OR BY IMPLICATION Defendant can introduce speculative evidence two (2) ways. One, as an express statement of fact by one of defendant's experts (e.g., "the rags Brian Littfin used to wash windows could have or might have been used to wash homes with deteriorated lead-based paint). Two, as an attempt to impliedly plant the seed of speculation in the mind of the jurors. For example: Q: Mr. Cohn (plaintiffs' lead inspector), did you conduct XRF lead testing on the rags that Brian Littfin used to wash windows? Q: Did you conduct XRF testing on the pottery in the back yard? Q: Did you conduct XRF testing of Tim Littfin's artist paints? Q: Did you obtain air samples in the backyard of the Guava or Murrieta homes? The purpose of these questions would not be to elicit a "no" answer but to plant the seed of speculation in the minds of the jurors — exactly what Sargon, Jennings and EC 802 prohibits. This must not be allowed to happen. 111 111 6 PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING R I L E Y L A W G R O U P PC 83 83 WI LS HI RE BL VD ., SU IT E 42 5 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 TE L (3 10 ) 28 4- 88 22 » Fa x (3 10 ) 28 4- 88 33 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION Plaintiffs’ respectfully request that this motion in limine be granted. RILEY LAW GROUP A Professional Cornoration DATED: February 21, 2019 By: Grant K. Riley Attorneys for ALL PLAINTIFFS 7 PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING R I L E Y L A W G R O U P PC 83 83 WI LS HI RE BL VD ., SU IT E 42 5 BE VE RL Y HI LL S, CA LI FO RN IA 90 21 1 TE L (3 10 ) 28 4- 88 22 » Fa x (3 10 ) 28 4- 88 33 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Marshall v. Ghaemmaghami Case No. 37-2018-00032777-CU-OR-CTL STATE OF CALIFORNIA, COUNTY OF SAN DIEGO At the time of service, I was over 18 years of age and not a party to this action. Iam employed in the County of Los Angeles, State of California. My business address is 8383 Wilshire Blvd., Suite 425, Beverly Hills, CA 90211. On February 21, 2019, I served true copies of the following document(s) described as PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING on the interested parties in this action as follows: Todd F. Stevens, Esq. Mary M. Best, Esq. Keeyne Waite & Stevens A Professional Corporation 402 West Broadway, Suite 1820 San Diego, CA 92101 Emails: tstevens @keenlaw.com mbest@keenlaw.com Tel: (619) 238-1661 Fax: (619) 231-1897 Attorney for All Defendants BY ELECTRONIC SERVICE: I served the document(s) on the person listed in the Service List by submitting an electronic version of the document(s) to One Legal, LLC, through the user interface at www.onelegal.com. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 21, 2019, at Beverly Hills, California. Pugle ba? Angela Herrera 8 PLAINTIFFS' MOTION IN LIMINE NO. 9 TO EXCLUDE SPECULATIVE EVIDENCE REGARDING THE SOURCE OF BLAKE LITTFIN'S LEAD POISONING
