The Harold ruling, where the science of ACOEM was thrown out April 2006.

[Guest guest]

Doug and All,

Am mold victims go thru this terrible nightmare, they can barely figure out

why their landlord, builder, etc is treating them personally so bad. For

those of us who have been around the block and have traced the deceit back as to

how those who would individually treat mold victims so badly, can get away

with this, I will tell you now...it is Tobacco Science that is the root cause

of your ills. Meaning those who deny your illnesses are nothing more than

ones who sell doubt for a living that your illnesses could be caused by mold.

And...it REALLY NEEDS TO BE RECOGNIZED just what a major role in dispelling

this deceit that and Sharon Carstens have played. For 11 years they

have posted all information pertinent to this issue. While many of you know

them to be ones who will hold your hand when you need solace, others of us know

that we would not have half of the information we do to stop the deceit on a

national level, were it not for KC and Sharon.

With that, the Harold Ruling, Sacramento California April 2006: Coreen

Robbins, PhD is a principal in VeriTox, Inc. She used to work for Ron Gots of

the

Dateline Paper Chase fame.

Robbins Order

For an Official Copy of the following Ruling,

Contact:

BURGUNDY B. HENRIKSON

Certified Shorthand Reporter # 11373

800 H STREET, SUITE 300

SACRAMENTO, CA 958141

FRIDAY, APRIL 14, 2006 AFTERNOON SESSION

The matter of Harold and D. Lee Harold,Plaintiffs, versus California

Casualty Insurance Company

and Westmont Construction, Inc., the Defendants, Case Number 02AS04291, came

on regularly before the Honorable P. Kenny, Judge of the Superior

Court of California, County of Sacramento, sitting in Department 31.

The Plaintiffs, Harold and D. Lee Harold, were represented by

Alfert, Attorney at Law; J. Cochrane, Attorney at Law, and Kahn,

Attorney at Law. The Defendant, California Casualty Insurance Company, was

represented by M. , Attorney at Law, and S. McLay, Attorney

at Law. The Defendant, Westmont Construction Company, was represented by

E. Enabnit, Attorney at Law.

The following proceedings were then had:

THE COURT: We are back on the record outside the presence of the jury. You

can leave your jackets off.

It's okay.

MR. HAYES: Thank you, your Honor.

THE COURT: I think we had several motions we were going to try to deal with

this afternoon. What would Counsel like to begin with?

MR. ENABNIT: Your Honor, I'm happy to address the 402 request.

THE COURT: Why don't we go there then.

MR. ENABNIT: I'm not sure procedurally how you want to go about this, your

Honor.

THE COURT: Here are the issues I have: Essentially I have been through the

paperwork on this and the least -- I did have some questions with regard to

Dr. Robbins and her desire to rely upon the animal studies for mycotoxin

exposure.

MR. ENABNIT: All right.

THE COURT: The difficulties I had with her deposition transcript testimony,

her expertise seems somewhat limited. Her testimony seems to reflect

primarily a literature review. It does not seem to reflect actual

experimentation. To the extent experimentation is reflected in her

deposition testimony, it does seem to be

substantially flawed by the inability or the failure to control for

variables.Also, when I reviewed the DHS report from April of 2005, DHS,

Department of

Health Services was talking about the fact that they were unable to

establish personal exposure levels at this point in time based on a lack of

sufficient information, and yet Dr. Robbins is asking to take an even greater

step and

go beyond establishing, for example, a personal exposure level and jump to

modeling, which is far more tenuous and far more unreliable even in

establishing something that is as hard as a personal exposure level. So those

are the

difficulties I'm having with Dr. Robbins' testimony.I did have some problems

with the Plaintiffs' doctor's testimony in that although he does seem to have

a greater level of expertise than Dr. Robbins with regard to the issue of

toxicology, it wasn't as articulated, I guess, as well as I would have liked in

terms of what he actually did with regard to that Ph.D.

Particularly I was reading about a Ph.D from the department of entomology in

microbiology and I didn't quite

understand what that meant. It was a little bit different than what I

normally would have expected to see, but where I was at, at least initially, is

I

don't think I would allow Dr. Robbins to testify to -- testify about animal

studies that is to model. That is a huge leap. I don't see anything here

that would justify letting her go to that

length, particularly in light of where DHS is and DHS, in my mind, is at

least at somewhat of the forefront of these issues.....

17 MR. ENABNIT: Thank you, your Honor. I will respond

Page 4

Robbins Order

18 to each of the issues that you raised, but I just want to

19 start with the premise that the -- the animal study that we

20 are talking about, um, is being, um, by itself offered for

21 a fairly limited, um, purpose which is, um, whether at a

22 particular level, and I think in this case it was 200

23 thousand spores per cubic, um, milliliter or meter, I'm

24 sorry, over a period of 24 hours. Um, assuming one

25 accepted the premise and the variable issue is set aside,

26 um, whether at -- at that exposure, um, assuming the

27 modeling study is reliable, whether humans would

28 demonstrate any observed adverse, um, affect. So it's a no

BURGUNDY B. HENRIKSON, CSR No. 11373 3

SACRAMENTO OFFICIAL COURT REPORTERS

B

4

1 observed adverse affect level study as opposed to a safe

2 level study which, um, I haven't looked at the DHS report

3 in a great deal of, um, specificity, but I -- I think that

4 may be a safe level study or a threshold level.

5 THE COURT: They are trying to establish threshold

6 levels; is that correct?

Page 5

Robbins Order

7 MR. ENABNIT: So to some extent it's apples and

8 oranges. What her modeling study did is offer the

9 proposition at that dose of exposure or at that period of

10 time there would be no adverse level affects in humans, and

11 then the next aspect of it would be that that dose is an

12 extraordinarily high dose compared to what a human would

13 actually experience. In other words, that level of 200

14 thousand spores per cubic level over a 24 hour period is an

15 exposure that would be an extraordinary exposure, not

16 typically expected in any, um, reasonable circumstance. So

17 it's being offered for that, um, limited purpose.

18 Um, but responding to your particular issues, I can

19 say she is not a toxicologist. Bruce Kellman, who works at

20 GlobalTox, now Veritox, in her office is a toxicologist,

21 and I'm sure he is more knowledgeable than she is on the

22 specific toxicology issues but, um, you pointed out that it

23 was a literature review only study. Um, I think, um, she

24 has done two things.

25 She has reviewed the primary literature and we would

26 offer her to, um, testify really on two aspects here. One

27 is what does her view of the primary literature reveal kind

28 of globally regarding how toxic, um, mold is -- mycotoxins

Page 6

Robbins Order

BURGUNDY B. HENRIKSON, CSR No. 11373 4

SACRAMENTO OFFICIAL COURT REPORTERS

B

5

1 are. But in terms of this study, you're right, they were

2 not in a laboratory themselves, they were simply relying

3 upon laboratory studies that were done by others and based

4 upon that they came up with this modeling study for

5 extrapolation from animal to human purposes.

6 You also, um, thought that it was substantially

7 flawed because of the lack of controls of variables. Um,

8 her response on that was, you know, you're right, we did

9 not specifically talk about, um, fine particles of -- of

10 mold such as the myselia or the hyphae, but we did

11 something to overcome that which was to create these

12 assumptions which were really beyond what a human could

13 ever expect.

14 In other words, we assume that the 200 thousand, um,

15 spores per cubic, um, meter that, every single spore was

16 actually inhaled by a human over the course of 24 hours,

17 which, of course, would never be a reality. She further

18 assumed that -- studies further assumed that every spore,

Page 7

Robbins Order

19 um, produced mycotoxins for which, um, it's an assumption

20 which does not meet reality.

21 So they came up with extraordinary broad assumptions

22 which, in our view, um, kind of defeat this lack of, um,

23 controlling these other variables which are largely

24 diminimus in light of these other assumptions that underlie

25 the study.

26 So that's my only response to the animal study. And

27 I don't know, your Honor, if you want to get into other

28 issues of -- other aspects of the testimony on the issue of

BURGUNDY B. HENRIKSON, CSR No. 11373 5

SACRAMENTO OFFICIAL COURT REPORTERS

B

6

1 toxicity.

2 THE COURT: The concern I had with regard to the

3 animal studies was -- was related to the modeling, to the

4 extent that you have got her doing this literature review,

5 coming up with a theory, postulating her theory, and then

6 really having nothing to substantiate her theory with

7 regard to the modeling other than the literature review.

Page 8

Robbins Order

8 And I -- I think that is a huge leap.

9 There is nothing there that is talking about the

10 correlation between the humans and the animals. There is

11 nothing there that is talking about the exposure pathways.

12 One's inhalation is one's direct injection. There is

13 nothing there talking about a control for the variables.

14 Um, and kind of the general sense in reading her

15 deposition transcript was that there were a lot of

16 assumptions that were being engaged in, and for me to allow

17 her to testify about sort of the animal studies and the

18 modeling results that she's postulating as a result of

19 those is in many respects just an assumption based upon an

20 assumption based upon an assumption based upon an

21 assumption based upon a literature review.

22 MR. ENABNIT: Just two responses, your Honor.

23 THE COURT: All right.

24 MR. ENABNIT: The inhalation -- the pathway of

25 exposed inhalation versus injection or ingestion, um, I

26 don't think that should be an issue because, um, they

27 assumed for purposes of the study that every -- every spore

28 was, in fact, um, inhaled, um, which is, I think, is

Page 9

Robbins Order

BURGUNDY B. HENRIKSON, CSR No. 11373 6

SACRAMENTO OFFICIAL COURT REPORTERS

B

7

1 tantamount to every spore being injected, which is what was

2 done with the laboratory animals.

3 Um, last point is --

4 THE COURT: Before you leave that. Don't you think

5 that, in fact, there is at least an issue with regard to

6 kind of a physical response with regard to the

7 inhalation -- excuse me -- the exposure pathway, whether

8 it's inhalation or injection?

9 MR. ENABNIT: I assume --

10 THE COURT: We don't know the answer to that.

11 MR. ENABNIT: Sure. I assume by, um, what they are

12 saying with this study is that every spore is, in fact,

13 inhaled, um, and the filters that are in the mucus

14 membranes are not, in fact, doing filtering. That was my

15 assumption of the study. So if that's correct, then that

16 is tantamount to, you know, ingestion or injection.

17 Last point on this, your Honor, is, um, I think the

18 evidence was there was only perhaps a couple of modeling

19 studies that deal with mycotoxins. I believe that is

Page 10

Robbins Order

20 because this is a fairly new evolving area of scientific

21 research, but as she pointed out, the use of modeling

22 studies is commonly done, um, and the use of animal

23 studies, according to what she said, is common with the

24 FDA, EPA, and, in fact, they may be required by the FDA,

25 EPA and NIOSH. So the notion of animal studies and

26 modeling studies derived from that is not a new concept,

27 it's not junk science, but mycotoxins is a new aspect of

28 that.

BURGUNDY B. HENRIKSON, CSR No. 11373 7

SACRAMENTO OFFICIAL COURT REPORTERS

B

8

1 THE COURT: I would agree with that. I don't think

2 that reliance upon animal studies is something new. I

3 think that is actually fairly common. I don't have much in

4 the deposition transcript to reflect that. And just in

5 terms of fair disclosure, I'm relying a little bit upon my

6 own past expertise with regard to that particular area,

7 animal studies were common.

8 With regard to modeling, modeling is not uncommon.

Page 11

Robbins Order

9 Modeling has severe limitations, and one of the

10 difficulties I was having here was this reliance upon

11 animal studies to jump to a modeling conclusion generally

12 with -- again, I'm speaking from my own experience because

13 there is nothing here in this transcript -- generally one

14 will use the data that one can receive either from animal

15 exposure studies or other information to then input in a

16 model to make a determination with some degree of

17 reliability. Here I'm not hearing any of those things.

18 I'm hearing essentially this jump from a literature review

19 to a postulated model to a no harm result.

20 MR. ENABNIT: At a very specific level.

21 THE COURT: At a very specific level.

22 MR. ENABNIT: And so -- your Honor, I appreciate all

23 of your comments, I think they are well taken, but we are

24 offering it for a fairly limited proposition. I think

25 the -- you know, the Frye standards, um, would not

26 preclude this. I think the points that you are making, um,

27 are the same points that can be made on cross-examination.

28 They really go to, you know, the weight that the study

BURGUNDY B. HENRIKSON, CSR No. 11373 8

SACRAMENTO OFFICIAL COURT REPORTERS

Page 12

Robbins Order

B

9

1 should be given as opposed to whether the study itself, the

2 modeling study of this type, is generally accepted within

3 the scientific community as being reliable. And I don't

4 have much to add on that point.

5 The only other thing, if you want to get to it at a

6 later point in this particular motion, is to what extent

7 will she be talking about -- assuming that you, um, deny,

8 um, her the ability to talk about the animal studies --

9 then the other outstanding issue is to what extent can she

10 talk about the toxicity of mold based upon other

11 information available to her?

12 THE COURT: Well, I think that is a different issue.

13 My fundamental problem is in looking at it from a

14 Frye standpoint I just didn't see kind of a acceptance in

15 the scientific community with regard to what she had done

16 that would allow it to be sort of presented as such.

17 Um, with regard to a literature review, if she is

18 testifying about a literature review and what her

19 literature review has found, that is a different issue.

20 MR. ENABNIT: Excluding this particular modeling

Page 13

Robbins Order

21 study?

22 THE COURT: Well, because the difference here is a

23 literature review is one thing. What she did is she jumped

24 from a literature review to modeling to a result, all of

25 which I think is very tenuous. If she is simply talking

26 about a literature review, that is a little bit different

27 issue. Experts do that.

28 MR. ENABNIT: Your Honor, are you inclined to grant

BURGUNDY B. HENRIKSON, CSR No. 11373 9

SACRAMENTO OFFICIAL COURT REPORTERS

B

10

1 this particular motion as it relates to the animal studies?

2 THE COURT: I am.

3 MR. ENABNIT: All right. Your Honor, do we need to

4 address other issues regarding -- I can make a brief offer

5 of proof of what --

6 THE COURT: I would like to have that because I was

7 curious about what she was going to testify about and why.

8 MR. ALFERT: That is what we would like to know.

9 MR. ENABNIT: Sure. All right. Your Honor, she is

Page 14

Robbins Order

10 going to talk about the role of industrial hygenists, um,

11 vis-a-vis the identification of hazards. And, um, she is

12 going to say that a certified industrial hygenist has to

13 know what the hazard is in order to decide how to take

14 appropriate precautions against it. And she is going to

15 say that mold is not a hazardous material and that it's on

16 par with nuisance dusts, in this case, um, construction

17 dust, except in very extreme cases such as was reported in

18 certain instances, um, in the aftermath of Hurricane

19 Katrina. But in the levels that exist in a case such as

20 this, she is going to say that it's not a hazardous

21 material and that it's no more of a risk in terms of

22 toxicity, that it's not a toxic risk. And in terms of a

23 health hazard, um, particularly to a person who has no

24 allergic propensities to it, it's no different than

25 construction dust. Um --

26 THE COURT: Will her conclusion therefore be that a

27 CIH is unnecessary?

28 MR. ENABNIT: Yes, in this case. That is exactly

BURGUNDY B. HENRIKSON, CSR No. 11373 10

SACRAMENTO OFFICIAL COURT REPORTERS

B

Page 15

Robbins Order

11

1 what her testimony will be. She -- also there has been

2 testimony in this case, um, from some of the Plaintiffs'

3 experts, um, about how, um, the insurance industry has

4 responded to mold, um, in the 1990s. I intend to have her

5 offer her perspective as to, you know, how and why the

6 perception of mold has changed in terms of how many

7 industrial hygenists such as, um, Mr. Sacco treat mold as a

8 threat, and she believes that the precautions -- very

9 expensive precautions they take are largely unnecessary in

10 most situations, including this one.

11 For example, she is going to offer the opinion that

12 clearance testing, um, in most situations is not required,

13 nor is testing required at the outset if visible mold is

14 identified. She is going to offer the opinion that

15 assessment testing at the outset is unnecessary, it's

16 superfluous because someone has already identified the

17 presence of mold visually. So she is going to say the

18 industry has largely over-reacted to this and it started,

19 in her perspective, with the 1993 or 1994 Cleveland

20 incident involving Stachybotrys.

21 Um, she served on a panel in 1999 that reviewed that

Page 16

Robbins Order

22 and basically concluded that there was no association

23 between, um, the health risks associated with those infants

24 or suffered by those infants and Stachybotrys. But she is

25 going to offer the opinion or her testimony that the

26 stories were, um, very much in the headlines but the later

27 reports about there being no association were not reported

28 and, that that later reporting didn't really get, um,

BURGUNDY B. HENRIKSON, CSR No. 11373 11

SACRAMENTO OFFICIAL COURT REPORTERS

B

12

1 through to the consciousness of many industrial hygenists,

2 and so there was a cottage industry of many industrialists

3 who have made a lot of money off mold, in her view, um,

4 unnecessarily.

5 But largely in this case there have been many

6 instances in which the issue of what mold is have been

7 injected into this case by the Plaintiffs. I, somewhere,

8 wrote a list of what they were. One of them of paramount

9 concern is the report on page 2 that lists the

10 health consequences associated with the mycotoxins from

Page 17

Robbins Order

11 penecillium. I believe it says liver damage, brain damage,

12 um, some other, um, organ being damaged, um, because of a

13 causal relationship with those mycotoxins. She is going

14 to -- that is what the jury sees in this case, and she is

15 going to have to respond to that by saying that, you know,

16 except in extraordinary circumstances there is no evidence

17 to back up a claim such as that.

18 And then we have terms -- these pejorative terms

19 like contamination that we hear over and over and over

20 again which presupposes something hazardous that is doing

21 the contamination. We heard it today with Mr. and

22 yesterday over and over. So the assumption in this case by

23 the way the Plaintiffs have presented their case and by

24 using terms like toxogenic, um, with Dr. Heinsohn, um, is

25 that mold is a very dangerous substance.

26 And she needs to be able to explain, based on, um,

27 her review of the primary literature, um, that mold is, in

28 her view, not a particularly toxic substance and she can do

BURGUNDY B. HENRIKSON, CSR No. 11373 12

SACRAMENTO OFFICIAL COURT REPORTERS

B

Page 18

Robbins Order

13

1 that, um, without, um, necessarily referring to the animal

2 studies, although I think that ties her hands in a way that

3 I would prefer not to happen but she can still address it

4 based upon the review of the primary literature.

5 The jury -- in summary, the jury has a

6 misunderstanding as to, um, what mold is in terms of a

7 human health threat based upon a variety of things that the

8 Plaintiffs have injected into the case and they have done

9 it in a very clever way. Um, for example, with Mr. Harold

10 we hear, um, reference to hypersensitive and pneumenitis

11 and asthma as being issues that are kind of injected into

12 the case. And then when we call them on that they say,

13 gee, we are not alleging those are things he suffered but

14 they are alleging it as things that are with a particular

15 exposure of mold.

16 She needs to explain her view as a environmental

17 hygenist what the true health risks are from her

18 perspective with mold and that necessarily deals with to

19 what extent it's a toxic agent. Um, she will say that an

20 industrial hygenist has to know -- it's part of their job

21 to know, um, what the health risks are or the various

22 things that they are supposed to be protecting their

Page 19

Robbins Order

23 clients against, which necessarily means she has to tell

24 this jury what this is and what it isn't.

25 THE COURT: What I hear you essentially arguing is

26 that Dr. Heinsohn testified about all of the risks that

27 were associated with this kind of a case and the

28 precautions that should have been taken and you want

BURGUNDY B. HENRIKSON, CSR No. 11373 13

SACRAMENTO OFFICIAL COURT REPORTERS

B

14

1 Dr. Robbins to testify to a contrary opinion.

2 MR. ENABNIT: Correct. And part of what would

3 support that as an explanation as to why those risks aren't

4 necessary. I mean, for example, we have accusations

5 against -- or allegations against Westmont that they were

6 duty bound to hire a certified industrial hygenist or to

7 ensure one was retained at the outset which presupposes a

8 degree, of course, of risk which we do not believe was

9 present in this case.

10 I believe there was testimony that they were

11 obligated to make inquiries of Mr. Harold as to his -- his

Page 20

Robbins Order

12 overall health condition at the time the job started

13 because of the danger of molds. Dr. Heinsohn (sic) is

14 going to say that is not necessary.

15 THE COURT: Dr. Robbins will say...

16 MR. ENABNIT: I'm sorry. Thank you, your Honor.

17 THE COURT: Counsel, Mr. Cochrane?

18 MR. COCHRANE: Yeah, your Honor. Thank you. Couple

19 of things.

20 In terms of the cottage industry that I heard

21 reference to, that's not a scientific opinion and that is

22 not an opinion that's predicated on experiments in the

23 field or literature review. That's -- that's an opinion.

24 That is an argument. That is an advocacy opinion taken by

25 a witness who works for a firm who is closely associated

26 with the defense industry -- the insurance industry,

27 something substantially bigger than a cottage.

28 And my concern is simply this: If Dr. Robbins --

BURGUNDY B. HENRIKSON, CSR No. 11373 14

SACRAMENTO OFFICIAL COURT REPORTERS

B

15

Page 21

Robbins Order

1 first off, let me -- let me back up. We have an

2 report, and there is no claim in this case that Mr. Harold

3 has liver damage as a result of his mold exposure or brain

4 damage as a result of mold exposure or cancer or memory

5 loss or any of the neurologic issues or health issues that

6 was highlighted in the report. It simply isn't in

7 this case.

8 What Dr. Robbins, it seems to me, is being proffered

9 for, is argument. Now, it's -- it's one thing to say, I

10 don't think mold is a problem and I could bathe or shower

11 in it and it wouldn't be a problem and I have a scientific

12 reason for saying that and I think that, um, Dr. Heinsohn

13 is full of hot air and she has misdiagnosed a problem, that

14 is her scientific opinion, that is fine, we can argue about

15 it in front of the jury.

16 But to to say that she is going to support her

17 conclusions or her opinions in this case with opinions that

18 really stem from advocacy or things that are not

19 scientifically supported or generated, where is the science

20 on the amount of CIHs that are making a living off of mold

21 remediation? I mean, that is not science, that's -- that's

22 argument and that concerns me.

23 I mean, it's one thing -- I don't have a problem

Page 22

Robbins Order

24 with Mr. Enabnit in closing saying, You heard what

25 Dr. Robbins said and here's what we think about that,

26 making a pitch, but to have this witness get up on the

27 stand and say, We have all of these professionals, trained

28 presumably at academic institutions like herself, licensed

BURGUNDY B. HENRIKSON, CSR No. 11373 15

SACRAMENTO OFFICIAL COURT REPORTERS

B

16

1 and qualified, presumably like herself, and they have

2 prostituted themselves for their own financial gain to go

3 around and bilk insurance companies, that's -- that's

4 improper.

5 MR. ENABNIT: May I respond to just that issue?

6 This issue has been injected in the case through

7 witnesses like Cassino. I mean, he testified in the mid

8 1990s mold became kind of a hot issue in the industry and

9 that he went to seminars to educate himself on the risks

10 associated, um, with mold and that's what everyone should

11 have done to comply with the standard of care. So they

12 have left the jury with the impression that all of the

Page 23

Robbins Order

13 things that were going on in the late -- mid to late 1990s,

14 um, that Westmont didn't do, Westmont didn't educate

15 themselves, um, in the way that Mr. Cassino, um, and, um,

16 others did, um, and that that's what should have happened.

17 I have to respond to that somehow.

18 THE COURT: I don't think I'm hearing Mr. Cochrane

19 saying you shouldn't be allowed to respond to that. I

20 think what I heard Mr. Cochrane say is you shouldn't be

21 allowed to respond to that with the next conclusion from

22 the review by Dr. Robbins, that there is a cottage industry

23 out there, all of these people are essentially milking the

24 public. I mean, is that her kind of concluding statement

25 because that --

26 MR. ENABNIT: That is kind of at the extreme end, I

27 suppose, of this issue, your Honor. But if we don't go to

28 that far end of the scale -- she can certainly talk about,

BURGUNDY B. HENRIKSON, CSR No. 11373 16

SACRAMENTO OFFICIAL COURT REPORTERS

B

17

1 um, her perception, that all of the, um, emphasis, which

Page 24

Robbins Order

2 her industry, industrial hygenists, has placed, um, on mold

3 is misplaced and she thinks that her peers would be better

4 serving their clients and the public with the

5 identification and, um, dealing with real hazardous

6 materials, not mold.

7 THE COURT: What is wrong with that?

8 MR. COCHRANE: Your Honor, that's -- that's not

9 science. That's not science. Where's -- it is -- I mean,

10 that is -- I'm trying to think of an analogy.

11 THE COURT: Let me see if I can maybe paraphrase it

12 a little bit.

13 Let's say Dr. Robbins testifies that CIHs are out

14 there and they are spending an inordinate amount of time on

15 mold. There are also other substantial health issues out

16 there that CIHs are not spending a substantial amount of

17 time on.

18 MR. COCHRANE: Like led paint, for example,

19 asbestos; is that what you are saying?

20 THE COURT: Whatever --

21 MR. COCHRANE: What does that got to do -- what does

22 that have to do with this case?

23 THE COURT: Yeah. That is a good question.

24 MR. ALFERT: It doesn't have anything to do with

Page 25

Robbins Order

25 this case.

26 THE COURT: Let Mr. Enabnit have a shot.

27 MR. ENABNIT: They have injected these issues by

28 creating the notion through people like Mr. Cassino that

BURGUNDY B. HENRIKSON, CSR No. 11373 17

SACRAMENTO OFFICIAL COURT REPORTERS

B

18

1 that's what one has to do, um -- well, that mold is a

2 public health threat of that magnitude which requires that

3 degree of education and focus and finance.

4 THE COURT: I didn't hear that throughout the

5 testimony. I haven't heard that, in fact, there has been a

6 degree of magnitude associated with the health risks

7 associated with mold.

8 What I heard from the different witnesses is that

9 there is a risk associated with mold and that it needs to

10 be addressed and that the way to address it is to use a

11 CIH. And if you wanted to respond with Dr. Robbins by

12 saying that her review of the literature shows that, in

13 fact, the link is not there and that the need to therefore

Page 26

Robbins Order

14 respond in every situation with a CIH is unnecessary, I

15 don't see a problem with that.

16 But if I hear you are going to go to the next step

17 and what you are going to then do is essentially have her

18 characterize society in general, you know, then we are

19 going somewhere else, we are writing editorials. You can

20 do that in argument, but why would she be doing it?

21 MR. ENABNIT: Well, I responded already, your Honor.

22 I thought it's been injected into the case through

23 witnesses such as Mr. Cassino and that we are duty bound to

24 respond to it.

25 THE COURT: All right. Do we have any other issues

26 on this? It sounds like we are all on the same page.

27 MR. COCHRANE: I think we are fine, your Honor. We

28 will submit on the record we have.

BURGUNDY B. HENRIKSON, CSR No. 11373 18

SACRAMENTO OFFICIAL COURT REPORTERS

B

19

1 MR. ENABNIT: I will submit as well, your Honor.

2 Could you just clarify again what your rulings are

Page 27

Robbins Order

3 on this issue?

4 THE COURT: I can. With regard to Dr. Robbins

5 relying upon her literature review and then jumping to

6 animal studies and then jumping to modeling conclusions, my

7 ruling there is she will not be allowed to present that.

8 There is not a generally accepted view of that particular

9 approach in the scientific community and so therefore it's

10 inappropriate to present that to the jury.

11 With regard to her testimony about literature

12 reviews, she can go there.

13 With regard to her, um, expert opinions with regard

14 to the need for CIHs in water damage cases, she can talk

15 about that. However, she may not go to the next step,

16 which would be to characterize society in general and the

17 reliance upon CIHs in mold cases and the waste of resources

18 associated with that.

19 MR. ENABNIT: Thank you, your Honor.

20 MR. COCHRANE: Thank you.

21 THE COURT: All right. That takes care of one.

22 Um, the next one we have was a stipulation or the,

23 um, non-suit motion. Let me just jump to the stipulation.

24 MR. COCHRANE: I have a draft that I put together

25 three weeks ago.

Page 28

Robbins Order

26 THE COURT: What is that?

27 MR. COCHRANE: I just found it this morning

28 actually. Let me try and read it into the record, if I

BURGUNDY B. HENRIKSON, CSR No. 11373 19

SACRAMENTO OFFICIAL COURT REPORTERS

B

20

1 may.

2 The parties stipulate to the following facts:

3 Westmont produced job files for 51 projects where it worked

4 on the homes of California Casualty insureds between 1996

5 and 2002. A review of these job files show that in nine of

6 these jobs a written contract was entered into between

7 Westmont and the homeowner. A review of the job files show

8 that Westmont communicated with Vern Moulton on 47 of the

9 51 jobs.

10 That's our proposal for the stipulation.

11 MR. MCLAY: Judge, we are going to be here another

12 three weeks. Here is -- is the problem, Judge: There is

13 no evidence -- there is no foundation as to how complete

14 these job files are. We have got Westmont, they are an

Page 29

Robbins Order

15 out-of-business corporation, she had some of these files in

16 a shed, I believe her deposition testimony was, in her

17 back yard.

18 So we are not going to enter into a stipulation, um,

19 that this is the findings until there has been some

20 foundation laid as to the quality of the search, um, how

21 good they were at record-keeping. They just want to inject

22 Vern Moulton into this case. They want to inject

23 California Casualty into this case. If they want to use

24 the evidence for what they claim is impeachment, they can

25 simply say it to, um, Ms. Sheehan. You provided 51 files?

26 Correct. And you said that you usually try to get

27 contracts signed with the homeowners? Correct. But isn't

28 it true that in the 51 files that you produced to us there

BURGUNDY B. HENRIKSON, CSR No. 11373 20

SACRAMENTO OFFICIAL COURT REPORTERS

B

21

1 is only contracts in nine of them?

2 That is all that is needed for impeachment. All of

3 the things about Mr. Moulton, all of the things about

Page 30

Robbins Order

4 California Casualty are purely collateral. It's a 352

5 issue.

6 THE COURT: Let me interrupt you. I actually

7 somewhat agree with Mr. McLay. The issue in this

8 particular case, Ms. Sheehan's testimony and her testimony

9 that they always get contracts when, in fact, the

10 percentages show the exact opposite, um, for purposes of

11 impeachment, I think you are absolutely entitled to show

12 that Ms. Sheehan is incorrect.

13 The issue then becomes, do we go to the next step

14 with regard to the relationship with California Casualty.

15 We are not really jumping to impeachment anymore and now we

16 are jumping into affirmative evidence on an issue you want

17 to establish. I don't know the answer on that particular,

18 um, evidence that you want to present simply because I

19 don't know what those files actually do or don't show. And

20 so for me to force a stipulation down California Casualty's

21 throat when, in fact, they are contesting that particular

22 aspect of it, is going way beyond what we started out with

23 here.

24 MR. ALFERT: Well, the only thing here is everybody

25 here knows what those files show because they have been

26 turned over in discovery. So you're -- you're up there --

Page 31

Robbins Order

27 THE COURT: Let me tell you this though:

28 Essentially the issue is, number one, impeachment. It's

BURGUNDY B. HENRIKSON, CSR No. 11373 21

SACRAMENTO OFFICIAL COURT REPORTERS

B

22

1 very easy to impeach Ms. Sheehan. She said that they

2 normally get it -- they have 51 files, she did 7 times,

3 that is 14 percent, so 86 percent of the time they didn't

4 do it. Pretty simple -- pretty simple impeachment. We are

5 done.

6 The second question is, what do you want to do to

7 essentially establish the link between California Casualty

8 and Westmont?

9 MR. ALFERT: What do we want to do?

10 THE COURT: Uh-huh.

11 MR. ALFERT: We want to do the following: Number

12 one, it shows the amount of occasions that Westmont was

13 hired to work on California Casualty files by Mr. Moulton.

14 It's that -- that prior relationship certainly seems

15 relevant in this case.

Page 32

Robbins Order

16 THE COURT: How do you wish to present that

17 evidence?

18 MR. ALFERT: That -- that -- the stipulation would

19 have done it but --

20 THE COURT: But California Casualty is unwilling to

21 enter into that stipulation.

22 MR. ALFERT: That is fine. She would just be asked,

23 Isn't it true that between this time you worked on 51

24 files -- 51 California Casualty insured jobs; is that true?

25 We know it's true.

26 THE COURT: Call her back do it.

27 MR. ALFERT: Okay.

28 THE COURT: What is the problem with that?

BURGUNDY B. HENRIKSON, CSR No. 11373 22

SACRAMENTO OFFICIAL COURT REPORTERS

B

23

1 MR. MCLAY: Judge, here's the problem: We -- I -- I

2 still do not know how complete these files are. I have no

3 idea what she would say. If she says, you know what, this

4 is what I have kept -- I recall her trial testimony being,

Page 33

Robbins Order

5 I filed some, Bernie filed some. Um, what we are going to

6 have to do is to show what linkage, Judge, that he --

7 THE COURT: The issue isn't whether or not, um, the

8 files didn't have written contracts. The only issue that

9 is being presented now on the second aspect of this is, is

10 there any relationship between Westmont and California

11 Casualty.

12 What I'm hearing is that there was at least a

13 relationship in terms of working, in that there were files

14 involving Westmont as a result of California Casualty

15 hiring Westmont.

16 MR. MCLAY: Judge, I think what we should be allowed

17 to do at that point in time, and I will represent that what

18 we will do, is we will lay a trial subpoena on all 51 of

19 these people to find out, do we have any oral contracts

20 between Westmont and these individuals. It is a 352 issue.

21 They want to offer it for impeachment. That's all that

22 they wanted to offer it for.

23 THE COURT: I'm not there. With regard to the

24 impeachment issue, I will not let them go beyond that.

25 What I'm hearing them ask to do is impeach Ms. Sheehan with

26 regard to the numbers. That is easy.

27 The issue then becomes, is there relevance to

Page 34

Robbins Order

28 showing a relationship between Westmont and California

BURGUNDY B. HENRIKSON, CSR No. 11373 23

SACRAMENTO OFFICIAL COURT REPORTERS

B

24

1 Casualty. What they wish to do there is essentially ask

2 Ms. Sheehan whether or not she has been involved in

3 contracts with California Casualty for a specified period

4 of time. If the answer is yes, the question then becomes,

5 How many contracts were you involved in without any further

6 detail about the specificity of those contracts. It's

7 just, was there a contractual relationship on some number

8 of occasions between the two companies.

9 MR. MCLAY: Judge, at some point in time I think

10 that goes beyond what they initially objected and wanted to

11 do. Now, they simply want another bite at the apple to

12 explore the relationship. I believe her trial testimony is

13 they worked with California Casualty for a period of time.

14 And the fundamental premise, Judge, is flawed. They

15 want to argue, at least as I understand their argument,

16 because you didn't do it in all of these instances, the

Page 35

Robbins Order

17 odds are you probably didn't do it here. And, Judge, there

18 is no proof that that is true because I did flip it on the

19 other side. Let's assume the ratios were reversed and we

20 can put all of the people on that say, oh, we had contracts

21 or they had contracts with the other, you know, 51 out of

22 51 insureds. They would be screaming bloody murder, Judge,

23 and saying, That doesn't mean that was done here. And you

24 know what, Judge, they would be right, because what matters

25 in this case and what happened in all of these other cases

26 doesn't make any difference. Do we get to bring all of

27 these other people in and say, Judge, they were happy with

28 Westmont?

BURGUNDY B. HENRIKSON, CSR No. 11373 24

SACRAMENTO OFFICIAL COURT REPORTERS

B

25

1 THE COURT: No. When you first began talking about

2 this a while back the issue was to allow this evidence to

3 come in without getting into the details of all of these

4 individual contracts. Um, that is what -- where we were

5 trying to go, and I don't want to go into the details of

Page 36

Robbins Order

6 the contracts.

7 MR. COCHRANE: May I speak to that issue, your

8 Honor, because the reason this came up is because there was

9 a question on cross-examination of Ms. Sheehan about custom

10 and practice and I tried to explore that on my redirect,

11 um, of Ms. Sheehan and there were objections made that were

12 sustained and we asked for the opportunity, once the daily

13 came out, to point to that custom and practice question and

14 say to you, We think that that door has been opened and

15 that's why we are here now. We are not trying to say that

16 those 51 jobs were good or bad or otherwise.

17 MR. ENABNIT: The --

18 MR. COCHRANE: We are not. That is not the issue.

19 MR. ENABNIT: The door that was opened, the question

20 by Mr. , had nothing to do with California Casualty,

21 um, her -- it was a general question about, do you -- do

22 you try to get contracts, um, in writing. Her answer

23 was -- even impeachment here is thin. Her answer was to

24 the effect, We usually try to.

25 So what's -- so what you would have done on your

26 recross, or whatever it was, redirect, have -- could

27 have -- would have necessarily been limited to the response

28 of what Mr. had asked her, which had nothing to do

Page 37

Robbins Order

BURGUNDY B. HENRIKSON, CSR No. 11373 25

SACRAMENTO OFFICIAL COURT REPORTERS

B

26

1 with California Casualty.

2 MR. ALFERT: The only issue I think, Judge, is

3 whether or not we are going to be able to show that the

4 subset of files for which there are the percentages of

5 contracts that are -- that were files with California

6 Casualty insured homes. I mean, that is, I think, really

7 the issue.

8 MR. HAYES: That is a back door -- since everybody

9 is talking, your Honor, I guess I will get in here too.

10 That is nothing more than a back door attempt to do exactly

11 the point illustrated by Mr. McLay a moment ago, which is

12 trying to take, you know, what is happening in that

13 situation and bringing it into this courtroom and say that

14 it is evidence in the Harold case. I -- I still disagree

15 that there is a predicate that allows the impeachment, but

16 we are past that apparently.

17 The issue is of the files. They happen to be

Page 38

Robbins Order

18 California Casualty files that have been able to be

19 retrieved. You have said, okay, X files, these have

20 contracts. That is where it should end because now to give

21 the label of California Casualty files I don't think is

22 triggered by the question.

23 And, number two, 352 comes absolutely in to play.

24 It's prejudicial because it's trying to bring in, you know,

25 that that's what happened in this case, did or didn't, and

26 it's also 352 because it is necessarily going to require

27 that we just, as was said, throw subpoenas on people. We

28 are not going to get a chance. Put them on the stand, see

BURGUNDY B. HENRIKSON, CSR No. 11373 26

SACRAMENTO OFFICIAL COURT REPORTERS

B

27

1 where it takes us.

2 MR. ENABNIT: And, your Honor, I don't know if this

3 is even germane anymore. I'm not going to argue there was

4 a written contract in this case and that it has been lost

5 somehow.

6 THE COURT: I don't think that is why the Plaintiffs

Page 39

Robbins Order

7 want to show the relationship. I think they want to show

8 the relationship because it goes to the issue of bad faith

9 and how the Defendants have responded.

10 Um, let me address this -- the specific issue is

11 impeachment and we covered that. And the issue now is

12 whether or not there is any evidence with regard to that

13 relationship. I don't recall what Ms. Sheehan said was

14 part of the relationship. So why don't all of you look at

15 the transcript and we will revisit it next week because

16 that is really the issue.

17 That leaves the issue of the representation in the

18 non suit. I'm at a loss as to where you are going,

19 Mr. Alfert.

20 MR. ALFERT: Why?

21 THE COURT: Because you keep shifting on me.

22 MR. ALFERT: Well, you -- I -- I -- let me -- let me

23 raise a point.

24 When -- when it first came up you thought that --

25 the comment was that Westmont was, um, going to take care

26 of it. You didn't think that was enough. That was your --

27 sort of your -- your -- your notion of it.

28 THE COURT: I'm still there.

Page 40

Robbins Order

BURGUNDY B. HENRIKSON, CSR No. 11373 27

SACRAMENTO OFFICIAL COURT REPORTERS

B

28

1 MR. ALFERT: But -- but there was a lot of evidence

2 that showed, in fact, that that was a representation, that

3 it was material, that the Harolds did rely on it and that

4 they were damaged from it. And so I put in context what

5 that other evidence was that made the original statement

6 actionable, in our view, because I believe the comment that

7 Westmont would take care of the problems of the damage is a

8 representation that was false because they were never going

9 to -- the complaint says they were never going to do the

10 type of job necessary to really take care of the problem,

11 which was suspected mold. I'm going to use contaminated

12 house. I mean, a house with mold, whatever you want to say

13 about it, but --

14 THE COURT: Let me ask you this --

15 MR. ALFERT: Yeah.

16 THE COURT: -- your premise here for the

17 misrepresentation is that Mr. Moulton walked into the

18 Harolds' home in early December, knew at that point in time

Page 41

Robbins Order

19 that they had a severely contaminated home, that, in fact,

20 what he would need to do in order to save money is to hire

21 a company that didn't have the experience to do this and

22 that, therefore in some fashion California Casualty would

23 benefit and the Harolds, because of their reliance upon his

24 misrepresentation, suffered this huge loss.

25 The difficulty I'm having with that, I don't think

26 that is what the evidence has shown. I think what the

27 evidence has shown is that Mr. Moulton showed up there in

28 early December, discovered a home with water damage,

BURGUNDY B. HENRIKSON, CSR No. 11373 28

SACRAMENTO OFFICIAL COURT REPORTERS

B

29

1 discovered a home that did have some mold, discovered a

2 home that did have repair necessary. Westmont came in.

3 Westmont began to do the repair work and it seems like this

4 whole case really stems from a point some time in early

5 2001. And the question becomes, was that repair work done

6 properly or improperly.

7 And at that point in time the mold wasn't the same

Page 42

Robbins Order

8 mold or wasn't maybe the same level of exposure or the same

9 level of expansion that had occurred in early December 2000

10 but was now a different type of situation. You don't see

11 it that way?

12 MR. ALFERT: I really don't. You're -- you are --

13 you're -- you're taking it down the road. One of our

14 points is this company had a practice of not repairing

15 properly and they did that by hiring Westmont and not just

16 in this job. We haven't talked about other jobs, and I

17 guess I will leave that out, but they had a practice of

18 hiring Westmont and Westmont didn't use CIHs, which was

19 well known at California Casualty.

20 And we believe on -- we believe the jury could

21 easily find in this case that Moulton was aware that in a

22 loss like this he needed a CIH. And why I say that, we are

23 now two weeks past the date of the -- of the, um, loss.

24 Um, it went from November 24 to December 5 and Moulton

25 walks in --

26 THE COURT: Let me -- I'm sorry to interrupt you but

27 I'm going to anyways. Your primary statement of

28 misrepresentation is Vern Moulton's statement to the

Page 43

Robbins Order

BURGUNDY B. HENRIKSON, CSR No. 11373 29

SACRAMENTO OFFICIAL COURT REPORTERS

B

30

1 Harolds that he would send a contractor out there to take

2 care of the issue?

3 MR. ALFERT: Yes.

4 THE COURT: That's correct. And when he made that

5 statement he knew that, in fact, the contractor would be

6 unable to take care of the problem?

7 MR. ALFERT: Yes. I believe that the -- the -- in

8 his possession, Judge, he had -- he also testified about it

9 as well in that deposition. He knew darn well what needed

10 to be done when there is mold. I mean, it was a long time

11 ago when we played his tape and he was asked -- one of the

12 questions I asked him, Is there any reason at all why you

13 didn't hire a mold remediator to work on the Harolds' home,

14 and his answer to that was, No. I said, Did you have any

15 reason at all -- now, this is a quote -- and his answer

16 was, No.

17 Well, I -- I -- the Plaintiffs believe the reason he

18 didn't hire one is because it would have been expensive to

19 hire one. And we also established that he knew that it

Page 44

Robbins Order

20 would be expensive to hire one. So when you walk into a

21 house where the floors are all buckled, five rooms, it's --

22 it's condensed, there is -- it's a hot water leak that is

23 two weeks old, this man has got 30 years experience in

24 water losses, he knows you need to have an experienced

25 water loss -- I mean, it's one thing for the Defense to

26 say, well, he just didn't really know, but we think the

27 jury could easily decide that this is a business decision

28 and it just didn't end up working out. I mean, in your

BURGUNDY B. HENRIKSON, CSR No. 11373 30

SACRAMENTO OFFICIAL COURT REPORTERS

B

31

1 analysis, you take it down the road --

2 THE COURT: Let me interrupt you again. In my

3 analysis I made certain assumptions that work in favor of

4 the Defense.

5 MR. ALFERT: Yeah. Exactly.

6 THE COURT: Mr. McLay, Mr. --

7 MR. MCLAY: No, Judge, you haven't.

8 THE COURT: Yeah, I have.

Page 45

Robbins Order

9 MR. MCLAY: The problem with Mr. Alfert -- I think

10 the word that, um, Mr. Enabnit used was clever, and they

11 are. This is a moving target, Judge, in terms of what is

12 the representation. And let me start at the very

13 beginning.

14 We have attached -- all we can do in discovery,

15 Judge, is to ask what is the representation. Judge, I -- I

16 have attached his response, his supplemental response, and

17 and that was Exhibit J and K. Your Honor, with all due

18 respect, they need to say -- in fact, let me actually go to

19 the -- to the actual request because, um, on Exhibit I,

20 interrogatory 142, State each and every fact which supports

21 your contention that California Casualty committed acts of

22 fraud by misrepresentation as set forth in your First

23 Amended Complaint.

24 Judge, I cannot ask a tighter question of what are

25 the facts. What is the representation. In response I get

26 a boiler plate response, um, the copy and paste over and

27 over again. In their response what you see is evidence at

28 best from their perspective of concealment. Judge, you've

BURGUNDY B. HENRIKSON, CSR No. 11373 31

SACRAMENTO OFFICIAL COURT REPORTERS

Page 46

Robbins Order

B

32

1 left concealment in this case in terms of the mold

2 report. But in terms of an affirmative misrepresentation,

3 there is absolute silence as to what Vern allegedly did.

4 To their credit, they were the adversaries, they continue

5 to try to come up with various representations.

6 THE COURT: It does seem to be that way, Mr. Alfert.

7 It does seem to shift. The original discussion we had on

8 this issue had to do with the withholding of the mold

9 report. Then it shifted to Mr. -- let me finish. Then it

10 shifted to misrepresentation in the contract, and now it

11 has shifted to a statement by Mr. Moulton in early December

12 that he would have someone come out and take care of the

13 problem.

14 MR. ALFERT: Actually, if you check the record, you

15 will see that the very first thing we said was that they

16 would take care of the problem and you were disinclined at

17 that point. You said, I don't think that is enough. So I

18 went back to get the page and line of those things that

19 make it enough. I will get the record of that original

20 discussion, Judge, and show that to you on Monday, if you

Page 47

Robbins Order

21 would like.

22 THE COURT: That is fine. Let's do that.

23 MR. MCLAY: Judge, wait a second.

24 THE COURT: No, I can wait. We can wait until

25 Monday. I want to make sure, in fact, we have a chance to

26 go through everything. This has been a lengthy case. I

27 don't want to miss something because we are trying to rush

28 it at the last moment.

BURGUNDY B. HENRIKSON, CSR No. 11373 32

SACRAMENTO OFFICIAL COURT REPORTERS

B

33

1 MR. MCLAY: Can I make -- I'm sorry, Judge.

2 THE COURT: That is fine. Go ahead.

3 MR. MCLAY: -- one brief point in terms of the

4 representation that he now wants to say is a

5 representation? And that is, there is absolutely no

6 evidence that at the time the representation was made that

7 it was false. He did send Westmont Construction out there.

8 It's clear that nobody had any idea what was involved with

9 this case. They can claim, and there is going -- there is

Page 48

Robbins Order

10 going to be evidence that is going to go to the jury --

11 THE COURT: Mr. McLay, I understand your arguments

12 and I understand why you are going there because I do

13 believe Mr. Alfert is attributing a certain amount of

14 impressions to Mr. Moulton that may not exist, but I will

15 wait until Monday.

16 MR. MCLAY: Thank you, Judge. And, Judge, for the

17 record, I do object to some of the additional stuff that

18 they submitted after Monday.

19 THE COURT: That is correct. The original agreement

20 here was that you were to submit the misrepresentation

21 arguments by Monday. I think they came in on Wednesday.

22 MR. ALFERT: No, your Honor.

23 MR. MCLAY: Well, let's go -- Judge, Exhibit D is my

24 e-mail to Mr. Cochrane that says, , you were kind

25 enough to give them to me verbally, what are they in

26 writing? And he writes back in a very lengthy e-mail to me

27 in Exhibit D and says, These are what they are, and come

28 Wednesday I get additional misrepresentations.

BURGUNDY B. HENRIKSON, CSR No. 11373 33

SACRAMENTO OFFICIAL COURT REPORTERS

B

Page 49

Robbins Order

34

1 MR. COCHRANE: Your Honor, if I may. We talked in

2 the hallway on Monday. I gave them to Mr. McLay on Monday

3 in the hallway. It wasn't me standing there talking to

4 him. We sat down on the bench, I pulled out the

5 documentation, went through it with him, showed him what

6 the representations were, gave him specific page and line

7 notes and he took copious notes. So we had that discussion

8 on Monday, as was consistent with the Court's order.

9 The e-mail came Tuesday, but the citation that you

10 see in the record in this -- in the moving papers are not

11 additional misrepresentations. They are evidence. It's

12 not just enough to say misrepresentation, here it is, we

13 have got to show reliance, we have to show all of the

14 things that we think create or show evidence of intent.

15 And, yes, there is a lot of supporting evidence that

16 justify where we -- why we think that is a false statement,

17 but the -- I interpret --

18 THE COURT: Understood.

19 MR. COCHRANE: That is the point.

20 THE COURT: Fair enough. All I'm trying to do is

21 before I take something away from the jury I need to be

Page 50

Robbins Order

22 relatively comfortable with that and benefit of the doubt

23 actually works in your favor.

24 The difficulty I'm having here though is that I'm

25 not seeing a specific misrepresentation that was intended

26 at that time. So I will go back through the papers. You

27 will look at the record.

28 MR. ALFERT: I will.

BURGUNDY B. HENRIKSON, CSR No. 11373 34

SACRAMENTO OFFICIAL COURT REPORTERS

B

35

1 THE COURT: And we will go from there.

2 MR. ALFERT: It's one thing to say Westmont is going

3 to come out and take a look, it's another thing to say they

4 are going to come out and fix a problem, because it's our

5 position that California Casualty hired them to take care

6 of the problem California Casualty's way, which is fraud.

7 That's our pitch.

8 THE COURT: Well, the difficulty with that though is

9 essentially -- never mind. I won't go there right now.

10 MR. MCLAY: Thank you. We will talk again Monday.

Page 51

Robbins Order

11 THE COURT: See you all on Monday at 9:00.

12 (Evening recess.)

**************Gas prices getting you down? Search AOL Autos for

fuel-efficient used cars.

(http://autos.aol.com/used?ncid=aolaut00050000000007)