Filed 7/16/15 Leidig v. Zenith Electronics CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




JENNY M. LEIDIG et al.,                                                       B256932

          Plaintiffs and Appellants,                                          (Los Angeles County
                                                                              Super. Ct. No. BC477685)
          v.

ZENITH ELECTRONICS LLC,

          Defendant and Respondent.



          APPEAL from a judgment of the Superior Court of Los Angeles County,
Emilie Elias, Judge. Affirmed.
          The Lanier Law Firm, Mark D. Bratt, Peter C. Beirne, H. W. Trey Jones, and
Stephanie M. Taylor, for Plaintiffs and Appellants.
          WFBM, Katherine P. Gardiner, Tina Broccardo Van Dam, and Sean C. McGah,
for Defendant and Respondent.
                                         ______________________________
       The appeal in this asbestos case is from a summary judgment in favor of
respondent Zenith Electronics LLC (Zenith). Appellants are Jennie M. Leidig,
individually, as the personal representative of the estate of George K. Leidig (decedent),
and as a successor in interest of Cindy S. Leidig, who died during the pendency of this
appeal; as well as Julie A. Kruger, Laura L. Dailey, and George R. Leidig. Appellants
argue the trial court abused its discretion in sustaining Zenith’s evidentiary objections and
improperly weighing the evidence in Zenith’s favor, Zenith did not satisfy its initial
burden as the party moving for summary judgment, and triable issues of material fact
exist regarding decedent’s exposure to asbestos contained in Zenith products. We find no
error and affirm.


                    FACTUAL AND PROCEDURAL SUMMARY
       Decedent was born in 1935 and died of mesothelioma in 2011. In 2012, appellants
sued various defendants, including Zenith, for wrongful death based on theories of
negligence and strict liability. They alleged decedent developed mesothelioma as a result
of his exposure to asbestos contained in defendants’ products. As relevant to Zenith,
appellants alleged decedent repaired televisions as a hobby from the 1950’s to the 1990’s
and had a television repair shop from 1978 to 1983.
       Zenith moved for summary judgment based on lack of evidence of decedent’s
exposure to a specific Zenith asbestos-containing product. Zenith argued that appellants’
responses to special interrogatories contained only boilerplate conclusory allegations, and
appellants’ deposition testimony did not identify the models of the Zenith products
decedent repaired. In particular, decedent’s son, George R. Leidig, testified in deposition
that he helped his father at the repair shop from 1978 to 1983 and saw him work with
tube, mixed tube, and solid state Zenith televisions and radios. But he could not name
any particular models and his belief that heat shield pads in radios and televisions
contained asbestos was based on what decedent had told him. Zenith relied on the
testimony of its person most knowledgeable, Stanley Savic, who opined that without a
model number, it was impossible to determine if a particular Zenith television or radio

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contained asbestos. According to Savic, Zenith televisions never contained asbestos and
the majority of Zenith radios did not contain asbestos.
       In opposition, appellants offered the testimony of Bob Darby, an engineer who had
met decedent at General Motors Defense Research Lab (GM) in the 1960’s and who
claimed to have seen decedent work on radios and televisions, including Zeniths, from
the 1960’s through the 1980’s. Darby testified there was asbestos around the power
supplies in old television sets because he had been told that and because he could
recognize asbestos by texture and sight from having used it in applications at GM.
Appellants also offered the testimony of Dr. Joseph G. Jackson, a radiologist who
collected vintage tube radios. Dr. Johnson stated that protective heat strips in radios from
the 1930’s to the 1950’s appeared to be made of asbestos.
       In support of the opposition, appellants also offered several litigation-related tests
conducted in the 2000’s that discovered asbestos in some Zenith radio models, and a
report by a Zenith industrial hygienist who acknowledged that Zenith radios from the late
1930’s to roughly 1941 used asbestos paper heat shields. Appellants also cited Savic’s
testimony that even in the 1950’s a few Zenith radio models had a specification calling
for asbestos heat shields. In a supplemental opposition, appellants cited to specifications
for the use of asbestos heat strips in two Zenith radio models.
       Zenith objected that Leidig, Darby and Dr. Jackson were not qualified to identify
asbestos and their testimony was based on hearsay and lacked foundation. It objected to
tests of and specifications for particular radio models as irrelevant as there was no
evidence decedent worked on those models.
       At the hearing on the motion, the court rejected Leidig’s testimony that tube
televisions contained asbestos as based on hearsay, and found Darby and Dr. Jackson
were not qualified to identify the substance contained in heat shields as asbestos. The
court sustained Zenith’s written evidentiary objections to their testimony and to
appellants’ documentary evidence. The court sustained some of appellants’ written
evidentiary objections to Savic’s declaration, specifically to his statements that Zenith
televisions never contained asbestos and the majority of Zenith radios did not contain

                                              3
asbestos. Zenith’s motion for summary judgment was granted, and judgment was entered
in Zenith’s favor.
       This appeal followed.


                                      DISCUSSION
                                             I
       We review the trial court’s evidentiary rulings for abuse of discretion. (Pannu v.
Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.) Abuse of
discretion has been found in cases where the trial court summarily sustained all, or
virtually all, evidentiary objections made by a party under circumstances indicating no
individual consideration of specific, often questionable, objections. (Twenty-Nine Palms
Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447–1449 [blanket statement
on the record sustaining 37 evidentiary objections to seven-page declaration]; Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255 [blanket order sustaining all but
one of 764 objections].)
       Appellants claim the court in this case similarly abused its discretion by sustaining
all of Zenith’s objections “without explanation.” The record does not bear out this claim.
The court explained its ruling on Zenith’s oral objections on the record and separately
sustained its individual written objections to the testimony of Leidig, Darby and Dr.
Jackson, which is what appellants principally challenge. Its rulings on the objections
were not arbitrary. Rather, they were based on settled rules of evidence regarding the
admissibility of opinion testimony by lay and expert witnesses.
       A. Admissibility of Lay Witness Testimony
       Unlike an expert witness, a lay witness may express opinion only based on his or
her own perception, not information acquired from others. (Evid. Code, § 800, subd. (a);
People v. McAlpin (1991) 53 Cal.3d 1289, 1306 & fn. 12 (McAlpin).) That is so because
“[u]nlike an expert opinion, a lay opinion must involve a subject that is ‘“of such
common knowledge that men of ordinary education could reach a conclusion as


                                             4
intelligently as the witness.”’ [Citation.]” (People v. Fiore (2014) 227 Cal.App.4th 1362,
1384 (Fiore).)
       Appellants argue the court sustained objections to George R. Leidig’s entire
testimony on a technicality but nevertheless improperly weighed its credibility. That is
not what happened. The transcript of the hearing shows the court sustained Zenith’s
hearsay objection to Leidig’s testimony that decedent repaired Zenith products containing
asbestos because Leidig admitted he had no information, other than what decedent had
told him, about the presence of asbestos in heat shield pads. The court also sustained
Zenith’s written objection to Leidig’s opinion that television and radio components
contained asbestos for lack of foundation because Leidig admittedly had no personal
knowledge on the subject. The court’s ruling was correct because, as a lay witness,
Leidig could not express an opinion based on hearsay. (McAlpin, supra, 53 Cal.3d at
p. 1306 & fn. 12.)
       The same principle applies to Bob Darby’s testimony that televisions and radios
on which Darby and Leidig worked had a barrier around the power supply made of “an
asbestos type material.” Darby claimed his colleagues at “the metrology lab” at GM who
worked on “tube type products” had told him asbestos “was used around tubes and also in
the TV type applications.” He also claimed to have used asbestos at GM in “flight
physics type . . . high heat applications” and “when you went to the materials place to get
various material, they would have it labeled as being—some sort of a commercial label. I
don’t remember the name.” Since Darby was not qualified as an expert witness, he could
not offer an opinion whether materials contained asbestos based on hearsay evidence.
(McAlpin, supra, 53 Cal.3d at p. 1306 & fn. 12.)
       Darby also opined that the material he saw in televisions looked like asbestos
because he “was used to what the texture and the type it was.” He described the material
as having been pressed in “thin sheets” with a “woven type of a look” and a “rough feel
on some of them,” and he claimed to have replaced material he accidentally damaged in
TV sets with material he took from GM. At the hearing, the court explained that while
Darby could say “he saw something that was rough,” he could not opine that whatever he

                                             5
saw contained asbestos. The court noted that “[a] sponge is rough,” but that does not
mean it contains asbestos.
       The court was correct. As a lay witness, Darby could testify to his observations
about the texture of the material, but not to his conclusion that it contained asbestos since
a lay witness may not opine about matters not within common knowledge or experience.
(Cf. McAlpin, supra, 53 Cal.3d at p. 1308 [lifeguards who recovered body from water
were not qualified to express medical opinion on cause of death].) According to Savic,
“fibrous shields, insulators and barriers made of cardboard, duroid, nomex” and other
materials that did not contain asbestos were used in Zenith products. Appellants have
cited no authority for the proposition that asbestos content in materials may be identified
by sight and touch alone, or that such identification is a matter of common knowledge
and experience. The documentary evidence they submitted in support of the opposition
indicates that the presence of asbestos in materials is determined through testing.
Regardless of his experience, a lay witness may not testify about scientific tests that
require expert opinion. (See Fiore, supra, 227 Cal.App.4th at p. 1384 [“There is no
‘third category of admissible opinions provided by highly experienced, nonexpert, lay
witnesses’”].)
       The court did not abuse its discretion in sustaining Zenith’s objections to Leidig
and Darby’s testimony that heat shields in televisions and radios contained asbestos as
that testimony constituted improper lay witness opinion.
       B. Admissibility of Expert Witness Testimony
       Expert witness testimony is subject to foundational challenges to the witness’s
qualifications, the validity of the principles or techniques upon which the witness relies,
or the reliability and relevance of the facts upon which the opinion is based. (Howard
Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1114 (Kudrow).) “A
person is qualified to testify as an expert if he has special knowledge, skill, experience,
training, or education sufficient to qualify him as an expert on the subject to which his
testimony relates. Against the objection of a party, such special knowledge, skill,
experience, training, or education must be shown before the witness may testify as an

                                              6
expert.” (Evid. Code, § 720, subd. (a).) ‘“[T]he qualifications of an expert must be
related to the particular subject upon which he is giving expert testimony.’ [Citation.]
Consequently, ‘the field of expertise must be carefully distinguished and limited’
[citation], and ‘[q]ualifications on related subject matter are insufficient’ [citation].”
(Kudrow, at p. 1115.) “‘“‘The trial court is given considerable latitude in determining the
qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest
abuse of discretion is shown.’”’” (Westrec Marina Management, Inc. v. Jardine Ins.
Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1051.)
       Appellants offered Dr. Jackson, a retired radiologist and a vintage radio collector,
as an expert that asbestos heat strips were common in old radios. Dr. Jackson stated he
had restored and repaired over 75 vacuum tube radios dating from the 1920’s to the
1960’s, was a member of the American Wireless Association, and had published an
article on “Asbestos Exposure and Radio Collecting” in the association’s quarterly
journal. Dr. Jackson opined that he had observed heat strips in “several” radios from the
1930’s, 1940’s, and 1950’s that were “light gray, thin, fibrous and mat-like in
appearance” and “looked like they were made of asbestos,” even though he had never
tested them to determine their composition. He cited the manuals for two models of
Zenith radios which referred to the heat strips as “asbestos strips” or “asbestos sheets,”
claiming that collectors regularly rely on such manuals.
       Dr. Jackson testified he had received some training in interpreting chest
radiographs for signs of occupational exposure, and in that training had learned about
materials, such as asbestos, silica, and cotton fibers, that were occupational exposure
hazards. But he did not have a degree in industrial hygiene or material science. While he
claimed to rely on four of the studies appellants had offered in opposition to Zenith’s
motion, Dr. Jackson acknowledged that he could not judge their methodology or validity
because he was not an industrial scientist and was not clear that they helped him form an
opinion.
       Contrary to appellants’ contention, the court was not “biased” against Dr. Jackson
because he was a hobbyist. It noted: “You have a gentleman who says the radios

                                               7
contained asbestos who has no education or training in this. He’s just a retired radiologist
that really likes radios, has been doing it, doesn’t say how he knows it’s asbestos, and he
has no basis on that either.” The court was clearly concerned about Dr. Jackson’s
credentials to express expert opinion about asbestos, not about radio collection or repair.
The court’s conclusion that Dr. Jackson does not have asbestos-related expertise
reasonably follows from his own admission that he had observed heat strips in only a
limited number of radios, had not tested their composition, and had no special knowledge
or expertise in identifying materials containing asbestos or critiquing tests of such
materials.
       Appellants compare Dr. Jackson’s experience to that of Charles Ay, the expert in
Ganoe v. Metalclad Insulation Corporation (2014) 227 Cal.App.4th 1577, who, the court
noted, “had been qualified as an expert witness in over 100 asbestos-related injury cases
over the past 16 years, . . . had worked as a ‘pipe coverer, insulator and asbestos worker’
for 25 years, [and] had been certified and trained about safety issues related to
asbestos. . . .” (Id. at p. 1586, fn. 4.) Dr. Jackson’s experience collecting and repairing
vintage radios as a hobby for 25 years does not translate into a 25-year experience with
asbestos since, by his own admission, very few of the radios he owned had “an asbestos
strip.” Dr. Jackson had not been certified on any issue related to asbestos; nor had he
been qualified as an expert witness in any other asbestos case.
       The court did not abuse its discretion in finding Dr. Jackson unqualified to express
an expert opinion about the general presence of asbestos in radios.
       C. Documentary Evidence
       Most of Zenith’s written objections, which the court sustained, were to the
relevance of several articles from the 1930’s through the 1960’s about asbestos-related
lung disease. The court also sustained Zenith’s objections to a few studies of particular
radio models as irrelevant, lacking foundation, and hearsay. Appellants do not challenge
these objections on appeal, and it is well settled that while experts may rely on scientific
studies for their opinions, the studies themselves are inadmissible hearsay. (See People v.


                                              8
Dean (2009) 174 Cal.App.4th 186, 201; People v. Bui (2001) 86 Cal.App.4th 1187, 1196;
see also Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 788–789.)
       The court also sustained relevance objections to the supplemental evidence of
specifications calling for asbestos strips in two Zenith radio models. Appellants do not
dispute the lack of evidence that decedent worked on those models, but suggest that they
are not required to establish such level of specificity. Greathouse v. Amcord, Inc. (1995)
35 Cal.App.4th 831, the case on which they rely, says nothing about the level of
specificity with regard to proof that a product contains asbestos. The cement in that case
undisputedly contained two percent asbestos per volume. (Id. at p. 835.) The issue was
whether the decedent had used the cement of a particular company, and the court
concluded that testimony by witnesses who had seen the decedent use the cement was
sufficient despite its lack of specificity. (Id. at pp. 836–837.)
       The court in this case did not sustain evidentiary objections to appellants’ evidence
that decedent repaired Zenith radios and televisions. But their attempt to extrapolate that
the radios and televisions he repaired must have contained asbestos because an asbestos-
containing component was called for in two radio models, on which decedent may or
may not have worked, falls short. Evidence is not relevant if it has a tendency to prove or
disprove a disputed material fact only by resort to speculative inferences. (Evid. Code,
§ 210; People v. Parrison (1982) 137 Cal.App.3d 529, 539.)
       The court did not abuse its discretion in sustaining Zenith’s evidentiary objections
to appellants’ evidence.
                                              II
       We review the trial court’s decision on a motion for summary judgment de novo,
“considering all the evidence set forth in the moving and opposition papers except that to
which objections were made and sustained.” (Johnson v. City of Loma Linda (2000)
24 Cal.4th 61, 65–66.) We view admissible evidence in the light most favorable to the
non-moving party. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100
(Andrews).)


                                               9
       A defendant moving for summary judgment must make a prima facie showing that
there are no triable issues of fact in order to meet its initial burden of production.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861 (Aguilar).) However, “[i]f
plaintiffs respond to comprehensive interrogatories seeking all known facts with
boilerplate answers that restate their allegations, or simply provide laundry lists of people
and/or documents, the burden of production will almost certainly be shifted to them once
defendants move for summary judgment and properly present plaintiffs’ factually devoid
discovery responses.” (Andrews, supra, 138 Cal.App.4th at p. 107, fn. omitted.)
       Once the defendant shifts the burden, the plaintiff must make a prima facie
showing that a triable issue of material fact exists. (Aguilar, supra, 25 Cal.4th at p. 850.)
The plaintiff’s “evidence must be of sufficient quality to allow the trier of fact to find the
underlying fact in favor of the party opposing the motion for summary judgment.”
(McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105 (McGonnell),
citing Aguilar, at p. 850.) In asbestos litigation, the plaintiff bears the burden of proof on
the threshold issue of exposure to the defendant’s asbestos-containing product. (Id. at
p. 1103.) The mere “possibility” of exposure does not create a triable issue of fact. (Id.
at p. 1105.)
       Appellants do not dispute that their discovery responses were boilerplate and
devoid of fact. But they argue Zenith needed to produce “real evidence,” such as
deposition testimony, that showed appellants could not prove decedent’s exposure to a
Zenith asbestos-containing product. Zenith did that. Its motion for summary judgment
was not based solely on appellants’ conclusory responses to interrogatories. Zenith also
relied on appellants’ inability in their deposition testimony to identify a particular model
of Zenith radio or television that decedent worked on, as well as on Savic’s testimony
that, without a model number, it was impossible to determine if a particular Zenith
product contained asbestos. The burden therefore shifted to appellants to raise a triable
issue of material fact regarding decedent’s exposure to asbestos through a Zenith product.
       Appellants’ argument that they met their burden is premised on the assumption
that the court abused its discretion in sustaining Zenith’s evidentiary objections to their

                                              10
evidence and that it improperly weighed the witnesses’ knowledge and credibility in
Zenith’s favor. It is true that, generally, “[o]nce it is established that a witness has
adequate credentials to qualify as an expert, questions as to the degree of his or her
expertise go to weight not admissibility.” (Kudrow, supra, 208 Cal.App.4th at pp. 1120–
1121.) However, an objection to the credentials of an expert witness requires the court to
first rule on the admissibility of that witness’s testimony. (Evid. Code, § 720, subd. (a).)
Once Zenith objected to Dr. Jackson’s qualifications to testify as an expert, the court’s
ruling went to the admissibility, not the weight, of his testimony. Similarly, Zenith’s
objections to Leidig’s and Darby’s opinion that the heat shields in radios they saw
decedent repair contained asbestos went to the admissibility of such opinion testimony,
not to its weight. (See People v. Lucas (2014) 60 Cal.4th 153, 266 [“Opinion evidence
given by a lay witness is admissible ‘as is permitted by law’”].)
       Because the court properly sustained Zenith’s evidentiary objections, the evidence
appellants offered to prove that decedent was exposed to a Zenith asbestos-containing
product is inadmissible, and appellants cannot rely on it to make a prima facie case.
Appellants insist that Zenith has failed to prove that its products did not contain asbestos,
and they specifically rely on its admission that “asbestos paper” was used as a heat shield
in some Zenith radios from the late 1930’s to at least 1941. But since there is no
evidence that decedent worked on radios from that period generally or on the specific
models that contained asbestos paper, any inference that he was exposed to asbestos
would be speculative. In that sense, this case is similar to McGonnell, supra, 98
Cal.App.4th 1098, where there was evidence that joint compound manufactured by
Kaiser Gypsum Company, Inc., possibly containing asbestos, was delivered to a
contractor several years before the decedent’s employment. The court concluded that
such evidence gave rise to a chain of inferences resulting in conjecture that “at some time
[the decedent] might have cut into a wall that might have contained Kaiser joint
compound that might have contained asbestos.” (Id. at p. 1105.) Similarly, here,
appellants’ evidence would require the trier of fact to speculate that at some point,


                                              11
decedent repaired a Zenith radio model that might have contained asbestos paper as a
heat shield.
       Because appellants have not raised a triable issue of material fact regarding
decedent’s exposure to asbestos from a Zenith product, summary judgment for Zenith is
in order.


                                     DISPOSITION
       The judgment is affirmed. Zenith is entitled to its costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EPSTEIN, P. J.
We concur:



       MANELLA, J.



       COLLINS, J.




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