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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.,

Plaintiffs and Appellants,

v.

ZENITH ELECTRONICS LLC,

Defendant and Respondent.

 B256932

 (Los Angeles County

 Super. Ct. No. BC477685)

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.

______________________________
2

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 
3

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 
4

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
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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 
6

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 
7

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 
8

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. 
9

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 asbestoscontaining 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).)
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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 
11

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, 
12

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.