On March 14, 2019 a
Motion,Ex Parte
was filed
involving a dispute between
Amaral, Nadine,
Collins, Jr., Jodie,
and
Actuant Corporation,
Airgas Usa, Llc,
A.W. Chesterton Company,
Borgwarner Morse Tec Llc,
Borgwarner Morse Tec Llc, As Sucessorbymerger,
Borgwarner Morse Tec Llc, As Sucessor-By-Merger,
Boss Manufacturing Company,
Cbs Corporation, A Delaware Corporation, F K A,
Cbs Corporation (Fka Viacom Inc., Fka Westinghouse,
Certainteed Corporation,
Chevron U.S.A. Inc.,
Consolidated Insulation, Inc.,
Consolidated Insulation, Inc., A Dissolved,
Crane Co.,
Dillingham Construction N.A., Inc.,
Does 1 Through 800, Inclusive, As Required By,
Fluor Corporation,
General Electric Company,
Genuine Parts Company,
Goulds Pumps Llc,
Grinnell Llc,
Grinnell Llc (Fka Grinnell Corporation, Aka,
Hennessy Industries, Llc,
Honeywell International Inc.,
Honeywell International Inc. F K A Alliedsignal,
Ingersoll-Rand Company,
Ingersollrand Company,
Itt Llc,
J.T. Thorpe & Son, Inc.,
Lamons Gasket Company,
Metalclad Insulation Llc,
Mueller Co. Llc,
Oscar E. Erickson, Inc.,
Owens-Illinois, Inc.,
Owensillinois, Inc.,
Parker-Hannifin Corporation,
Parkerhannifin Corporation,
Parsons Government Services Inc. (Fka Parsons,
P.E. O'Hair & Co., As Predecessor To Westburne,
Petrochemical Insulation Inc.,
Petrochem Insulation, Inc. (Fka Petrochemical,
Petrochem Insulation, Inc. (Fka Petro-Chemical,
Plant Reclamation Inc. & Schnitzer Steel Products,
Republic Supply Company,
Riggs Welders Supplies,
Santa Fe Braun, Inc. As Successor-In-Interest To,
Santa Fe Braun, Inc. As Successorininterest To,
Scott Co. Of California,
Scott Technologies, Inc.,
Shell Oil Company,
Tosco Corporation,
Trimon, Inc.,
Underground Construction Co., Inc.,
Underground Construction Company, Inc.,
Union Oil Company Of California,
Westburne Supply, Inc.,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
2 jnevin@braytonlaw.com
BRAYTONPURCELL LLP ELECTRONICALLY
3 Attorneys at Law
222 Rush Landing Road
F I L E D
Superior Court of California,
4 P.O. Box 6169 County of San Francisco
Novato, California 94948-6169 01/28/2020
5 (415) 898-1555 Clerk of the Court
BY: RONNIE OTERO
6 Attorneys for Plaintiffs Deputy Clerk
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 NADINE AMARAL and JODIE ) ASBESTOS
COLLINS, JR., as Successors-in-Interest to ) No. CGC-19-276768
12 and Wrongful Death Heirs of MARJORIE )
NOVATO, CALIFORNIA 94948-6169
COLLINS, Deceased, ) PLAINTIFFS’ OPPOSITION TO SCOTT
BRAYTONPURCELL LLP
222 RUSH LANDING ROAD
13 ) TECHNOLOGIES, INC.’S MOTION IN
ATTORNEYS AT LAW
Plaintiffs, ) LIMINE TO EXCLUDE EVIDENCE
(415) 898-1555
P O BOX 6169
14 ) RELATED TO PURPORTED
v. ) KNOWLEDGE OF ASBESTOS HAZARDS
15 ) BY TRADE ASSOCIATIONS OF WHICH
DURO DYNE CORPORATION, et al. ) DEFENDANT WAS NOT A MEMBER
16 )
Defendants. )
17 . Trial Date: January 21, 2020
Dept.: 220, Hon. Kathleen Kelly
18
19
20
21
22
23
24
25 Based the complex subject matter of the opposition to defendant’s motion in limine, and in accordance
with CRC 3.1113(d) ("...no... responding memorandum may exceed 15 pages." "[t]he page limit does not include
26 exhibits, declarations, attachments..."), and in the spirit of CRC 3.1113(e) ("...for permission to file a longer
memorandum...") plaintiffs seek leave to exceed the San Francisco Court-imposed limit of 5 pages and no exhibits.
27 Plaintiffs request permission to file, and for this Court to consider in its entirety, this
9-page opposition with 1
exhibit.
28
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 I. INTRODUCTION
2 Defendant wants this Court to order that no documents from any trade association to
3 which defendant did not belong be admitted into evidence. Rendering such a ruling at this time
4 would be highly improper and effectively deny plaintiffs the ability to put on relevant and
5 probative state of the art evidence. Defendant’s motions in limine rest on nothing more than an
6 unsupported argument that knowledge possessed by trade organizations is available only to that
7 trade organization’s members. Extrapolating from this claim, defendant then incorrectly states
8 that it must be shown to have had “actual knowledge” of information available to any other
9 (non-member) trade organization, and that any such evidence can therefore be presumed to be
10 inadmissible under California Evidence Code § 352. This stream of conjecture, without support
11 in law or fact, does not permit the exclusion of relevant evidence. The motion should therefore
12 be denied as asking this Court to pre-judge an entire class of evidence in a vacuum. (See Kelly
13 v. New West Federal Savings (1996) 49 Cal.App.4th 659, 671.)
14 II. ARGUMENT
15 A. EVIDENCE REGARDING TRADE ORGANIZATIONS IS RELEVANT TO
PLAINTIFFS’ STRICT LIABILITY AND NEGLIGENCE CLAIMS AS
16 PROOF OF THE STATE OF THE ART TO SHOW THAT DEFENDANT
KNEW OR COULD HAVE KNOWN OF THE RISK
17
1. Evidence That Proves What Defendant Knew or Could Know Regarding
18 Potential Product Hazards at the Time of the Product’s Manufacture or
Distribution Is Relevant and Admissible
19
20 A manufacturer has a duty to provide consumers adequate warnings of potential risks of
21 products that are known or knowable at the time of manufacture and distribution through the
22 use of the scientific knowledge available. (CACI No. 1205; Anderson v. Owens-Corning
23 Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003 [strict liability requires plaintiffs to show that
24 the defendants "did not adequately warn of a particular risk that was known or knowable in light
25 of the generally recognized and best prevailing scientific and medical knowledge" available at
26 the time of the manufacture and distribution of the product].) The Anderson court recognized
27 the requisite actual or constructive knowledge, enunciated in Comment j of section 402A of the
28 Restatement (Second) of Torts, to be “knowledge which is obtainable ‘by the application of
1
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 reasonable, developed human skill and foresight.’” (Anderson, supra, at 1002, fn.13 (emphasis
2 added).)
3 Manufacturers are held to the knowledge and skill of experts under both negligence and
4 strict liability theories of recovery for the failure to adequately warn. (Vermeulen v. Superior
5 Court (1988) 204 Cal.App.3d 1192, 1204, citing Christofferson v. Kaiser Foundation Hospitals
6 (1971) 15 Cal.App.3d 75.) Dartez v. Fibreboard Corp. (5th Cir. 1985) 765 F.2d 456, 461 court
7 noted that, as experts, manufacturers “are obliged to keep abreast of any scientific discoveries
8 and are presumed to know the results of all such advances.” (See also Restatement (Second) of
9 Torts, section 402A, Comment j; and Borel v. Fibreboard Paper Products (5th Cir. 1973) 493
10 F.2d. 1076, 1089, cert denied 419 U.S. 869 (1974).) Moreover, manufacturers have a duty to
11 inspect and test their products to insure that the products are safe for their intended use.
12 (Vermeulen, supra, at 1204; Rest. 2d Torts, section 392; see also discussion in such out-of-state
13 asbestos cases as Borel, supra, at 1090; George v. Celotex Corp. (2nd Cir. 1990) 914 F.2d 26,
14 28; Owens-Illinois v. Xenobia (Md. 1992) 601 A.2d 663, 641; and see Noel, "Manufacturer's
15 Negligence of Design or Directions for Use of a Product," 71 Yale L. J. 816, 853 (1962).) The
16 Borel court warned:
17 The extent of research and experiment must be commensurate with the dangers
involved. A product must not be made available to the public without disclosure
18 of those dangers that the application of reasonable foresight would reveal. Nor
may a manufacturer rely unquestioningly on others to sound the hue and cry
19 concerning a danger in its product. Rather, each manufacturer must bear the
burden of showing that its own conduct was proportionate to the scope of its
20 duty. [Borel, supra, at 493 F.2d 1090, emphasis added.]
21 The Dartez court emphasized the manufacturers’ individual responsibility from Borel:
22 “They each bear the duty to fully test their products and to uncover all scientifically
23 discoverable dangers before the products are sold.” (Dartez, supra, at 461, citing Borel, supra,
24 493 F.2d at 1089-90.) In that case, the plaintiff offered Johns-Manville medical director
25 Kennedy Smith's testimony about what was known, and when, regarding asbestos-related health
26 hazards against defendant Fibreboard Corporation. The court held the trial court's admission of
27 the testimony proper, because "actual knowledge of an individual manufacturer is not the issue.
28 ///
2
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 If the dangers of asbestos were known to Johns-Manville at the time of plaintiff's exposure, then
2 the same risks were scientifically discoverable by other asbestos corporations." (Id.)
3 Similarly, the George court held an unpublished industry organization study (the 1947
4 "Hemeon Report") to be relevant and admissible not to show what the "manufacturers knew
5 generally, but to show what the defendant should have known, had it either conducted its own
6 tests, or been in contact with others in the industry ... that were testing." (George, supra,
7 914 F.2d at 29.) The disputed Hemeon Report argued that the threshold limit value for asbestos
8 (5 million particles per cubic foot) was unsafe and thereby refuted the defendant's claims that its
9 adherence to that threshold appropriately accounted for the risks known or knowable at the
10 time. The court opined: "a manufacturer may not rest content with industry practice, for the
11 industry may be lagging behind in its knowledge about a product, or what, with the exercise of
12 reasonable care, is knowable about a product." (Id., 914 F.2d at 28.)
13 Thus, where the means of acquiring the relevant information are available, then those
14 means, combined with the obligation to test the product and seek the information, yield a
15 presumption that the manufacturer has performed the appropriate tests, surveys, or other
16 information-gathering activity, and knows of the hazards that performing those tests or surveys
17 would disclose. The tests and surveys necessary to learn of asbestos hazards were not complex,
18 but, rather, were such generally recognized methods as: reading available medical literature and
19 case reports on asbestos-related disease; amassing autopsy results that disclose lung disease and,
20 sometimes, asbestos fibers; or surveying asbestos workers' health histories to statistically
21 measure incidence of disease, which merely requires simple communication and record-keeping
22 skills. Each manufacturer had a duty to employ these means and seek the relevant information,
23 such that the information was knowable and the defendant may be presumed to have known of
24 the risks of their products.
25 ///
26 ///
27 ///
28
3
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 2. Evidence Relating to the Knowledge of Trade Organizations Is Probative
of the State of the Art and Shows What Was Knowable to Defendant
2 Even Where It was Not A Member in the Particular Trade Organizations
3 Where the methods of acquiring information about asbestos were generally recognized
4 throughout the relevant time frame, defendant may be presumed to have known, for the same
5 time frame, all that actually conducting the tests, surveys and other information-gathering
6 activities would have disclosed. In order to show that these methods were available to
7 defendant – and thereby show what was knowable – plaintiffs may offer evidence of the state of
8 the art at the time, including trade organization evidence, whether or not defendant was a
9 member of the trade organizations. (See Dartez, supra, 765 F.2d at 463 [defining the state of
10 the art as "what the industry as a whole knew or could have discovered by properly fulfilling
11 their duty to test these products" (emphasis added)].) Such state of the art information is clearly
12 relevant and admissible. (See Anderson, supra, 53 Cal.3d at 991 [holding that state of the art
13 evidence is admissible to show what was known or knowable in a product liability failure-to-
14 warn case].)
15 This state of the art evidence includes the minutes, reports, and findings of professional
16 groups and organizations that bothered to look into the question of the asbestos hazard. These
17 documents are admissible for this non-hearsay, notice purpose in order to prove what a
18 manufacturer knew or should have known. (See, e.g., Benwell v. Dean (1964) 227 Cal.App.2d
19 226 [police officers' warnings to house movers regarding safety procedures to be followed were
20 admissible non-hearsay to show the movers' notice of the procedures].) As Professors Prosser
21 & Keeton explained in Torts, § 32 (5th ed. 1984), failure to learn what others know or what can
22 be discovered constitutes negligence.
23 Defendant fails to cite any authority for the novel, and unsupported, proposition that
24 information must be actually known to a particular trade organization of which defendant was a
25 member in order to be deemed "known or knowable." Defendant has not even supported its
26 claim that information known by one trade organization is not, and cannot, be known to any
27 other trade organization. Rather, the case law clearly supports the proposition that evidence of
28 all trade organizations – whether or not defendant itself was a member – is relevant and
4
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 admissible to demonstrate the state of the art and to detail what was known or knowable to
2 defendant at the time.
3 B. STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFFS’
NEGLIGENCE CLAIM
4
5 Dr. Cohen will testify as to when the dangers of asbestos were first recognized, what and
6 when information about asbestos-related disease was published in the medical and scientific
7 literature, and what knowledge about causation and prevention of asbestos-related diseases was
8 available to whom. Documents and articles that he quotes from will be used for this
9 non-hearsay purpose of notice. Some of his opinions regarding state of the art are set forth in
10 his attached declaration.
11 The important test for negligence is whether the danger was known or knowable in
12 light of the generally recognized and prevailing best scientific and medical knowledge
13 available at the time of the distribution. (Anderson supra, 991.) Because Dr. Cohen is
14 testifying specifically as to what was known and knowable, his testimony is crucial and highly
15 probative.
16 In Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 97, the court held that the
17 defendant "should have foreseen the dangers given the publication of various medical and
18 industrial studies of asbestos diseases and promulgation of industrial safety standards and that
19 [the defendant] breached its duty to exercise ordinary care in the management of its premises
20 by failing . . . to take other reasonable precautions." (Emphasis added.) Under CACI 1222:
21 Plaintiff claims that the defendant was negligent by not using reasonable care to
warn [or instruct] about the [product]'s dangerous condition or about facts
22 that make the [product] likely to be dangerous. To establish this claim,
[name of plaintiff] must prove all of the following: That [name of defendant]
23 knew or reasonably should have known that the [product] was dangerous or
was likely to be dangerous when used in a reasonably foreseeable manner.
24 [Emphasis added.]
25 Under BAJI 9.20:
26 One who supplies a product directly or through a third person, for another to use,
which supplier knows or has reason to know is dangerous or is likely to be
27 dangerous for the use for which it is supplied, has a duty to use reasonable
care to give warning of the dangerous condition of the product or of facts which
28 make it likely to be dangerous to those whom the supplier should expect to use
5
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 the product or be endangered by its probable use, if the supplier has reason to
believe that they will not realize its dangerous condition. A failure to fulfill that
2 duty is negligence. [Emphasis added.]
3 These jury instructions are meaningless if plaintiffs cannot establish what was known or
4 knowable. The only way to do that is through an historical state of the art analysis.
5 In seeking to exclude Dr. Cohen's state of the art testimony, claiming that he is
6 somehow not knowledgeable about defendant or its specific sub-industry, defendant is asking
7 this Court to make a sub-industry-specific exception to the general duty of care. Such an
8 exception is not warranted. As stated in Cabral v. Ralph's Grocery Co. (2011) 51 Cal.4th 764,
9 768, "California law establishes the general duty of each person to exercise, in his or her
10 activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)." The court
11 went on to say,
12 By making exceptions to Civil Code section 1714's general duty of ordinary
care only when foreseeability and policy considerations justify a categorical
13 no-duty rule, we preserve the crucial distinction between a determination that the
defendant owed the plaintiff no duty of ordinary care, which is for the court to
14 make, and a determination that the defendant did not breach the duty of ordinary
care, which in a jury trial is for the jury to make. [Id. at 772.]
15
16 To exclude Dr. Cohen's testimony because it is not expressed in the specific contours
17 defendant iterated would create a categorical no-duty rule for this industry. Defendant owed the
18 plaintiffs a general duty of ordinary care, and Dr. Cohen's testimony goes to the heart of this
19 duty. As the Cabral court expressed with regard to foreseeability,
20 We have explained that the court's task in determining duty "is not to decide
whether a particular plaintiff's injury was reasonably foreseeable in light of a
21 particular defendant's conduct, but rather to evaluate more generally whether
the category of negligent conduct at issue is sufficiently likely to result in the
22 kind of harm experienced that liability may appropriately be imposed … ."
(Citations.) [Id. at 772.]
23
24 Dr. Cohen will testify about when the hazards (each of them) of asbestos were
25 well-known in the literature, and he will present appropriate examples of medical and scientific
26 literature to provide foundation for his testimony. (See Exhibit A, Cohen Declaration.) This
27 testimony is relevant to any defendant in any industry which utilized asbestos. Defendant’s
28 industry is a subset of that group, not something categorically different. Plaintiffs’ particular
6
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 disease, as well as all other asbestos-related diseases, is included within potential risks,
2 potential danger, dangerous condition, likely to be dangerous. Dr. Cohen's testimony is crucial
3 to the jury's evaluation of defendant’s negligent conduct.
4 C. STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFFS’
FAILURE-TO- WARN CLAIM
5
6 The same testimony applies to plaintiffs’ product liability claim for failure to warn. The
7 law is clear that there is a "knowability" requirement for a failure to warn strict liability claim:
8 [A] reasonably prudent manufacturer might reasonably decide that the risk of
harm was such as not to require a warning as, for example, if the manufacturer's
9 own testing showed a result contrary to that of others in the scientific
community. Such a manufacturer might escape liability under negligence
10 principles. In contrast, under strict liability principles the manufacturer has no
such leeway; the manufacturer is liable if it failed to give warning of
11 dangers that were known to the scientific community at the time it
manufactured or distributed the product. [Anderson, supra, at1003.]
12
13 Plaintiffs can only demonstrate the dangers that were known to the scientific community
14 by means of expert testimony regarding the state of the art. This is restated in jury instructions:
15 CACI 1205 (emphasis added):
16 Plaintiff claims that the [product] lacked sufficient [instructions] [or] [warning
of potential [risks/side effects/allergic reactions]]. To establish this claim,
17 plaintiff must prove all of the following: That the [product] had potential
[risks/side effects/allergic reactions] that were [known] [or] [knowable by the
18 use of scientific knowledge available] at the time of [manufacture/
distribution/sale].
19
20 In addition, the CACI Judicial Counsel Advisory Committee notes that "[t]he advisory
21 committee believes that this standard is captured by the phrase ‘generally accepted in the
22 scientific community.'" (Ad. Comm. notes following CACI 1205.)
23 BAJI 9.00.7 (emphasis added):
24 A manufacturer has a duty to warn if 1) the use of the product in a manner that is
reasonably foreseeable by the manufacturer involves a substantial danger that
25 would not be readily recognized by the ordinary user of the product, and 2) this
danger was known or knowable in light of the generally recognized and
26 prevailing best scientific and medical knowledge available at the time of the
manufacture and distribution.
27
A manufacturer has a duty to provide an adequate warning to the user on how to
28 use the product if a reasonably foreseeable use of the product involves a
7
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 substantial danger of which the manufacturer either is aware or should be
aware, and that would not be readily recognized by the ordinary user.
2
A manufacturer has a duty to provide an adequate warning to the consumer of a
3 product of potential risks or side effects which may follow the foreseeable use
of the product, and which are known or knowable in light of the generally
4 recognized and prevailing best scientific and medical knowledge at the time
of manufacture and distribution.
5
6 As is clear from these jury instructions, what was known or knowable lies at the heart of
7 plaintiffs' case. To exclude Dr. Cohen from testifying would be akin to dismissing the entire
8 cause of action. Dr. Cohen's testimony is critical to plaintiffs' right to have a full trial based
9 upon the merits of their case.
10 D. BLACK-LETTER LAW REGARDING STATE OF THE ART
11 An expert's testimony with regard to state of the art in asbestos litigation has been
12 alluded to (and found unproblematic) in numerous decisions. In Kinsman v. Unocal Corp.
13 (2005) 37 Cal.4th 659, the Supreme Court alluded to the testimony of Dr. Barry Castleman
14 about the general public's knowledge of the hazards of asbestos (fn. 7). In Overly v. Ingalls
15 Shipbuilding (1999) 74 Cal.App.4th 164, the Appellate Court refers in passing to
16 Dr. Castleman's testimony about the "growing awareness of risks of asbestos exposure
17 beginning with acknowledgments by the medical community as early as the 1890's." (Id. at
18 168.) Dr. David Egilman's trial testimony was mentioned in Chavers v. Gatke Corp. (2003) 107
19 Cal.App.4th 606. Dr. Cohen's trial testimony about causation was one of the factors considered
20 by the Appellate Court in Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409. In
21 Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, the court wrote, "At trial,
22 expert testimony established that sometime between the 1920's and 1960's, the scientific
23 community became aware that asbestos was dangerous. . . . (Id. at 1229.) The court even
24 summarized some of the papers that the experts relied upon – the same thing that Dr. Cohen
25 will be doing in his testimony.
26 ///
27 ///
28 ///
8
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
1 E. DEFENDANT HAS FAILED TO SHOW HOW THE RELEVANT EVIDENCE
REGARDING TRADE ORGANIZATIONS IS UNDULY PREJUDICIAL
2
3 Defendant’s objections as to “undue prejudice” go to the weight of the evidence, not its
4 admissibility. California Evidence Code § 352 does not, as defendant claims, require the
5 exclusion of any evidence that defendant considers to be prejudicial or misleading; the test is
6 whether any alleged dangers of undue prejudice or misleading the jury substantially outweigh
7 the evidence's probative value. Defendant has not shown that this is the case. Evidence Code
8 § 352 provides that the Court, in its discretion, may exclude evidence when its probative value
9 is substantially outweighed by the danger that its introduction will result in undue prejudice,
10 consumption of time, or misleading the jury. Defendant’s only argument regarding § 352 is that
11 it would have to rebut the issue, but defendant does not show how the introduction of evidence
12 of its membership in trade associations or receipt of trade-association publications would be so
13 prejudicial as to substantially outweigh its probative value. Because defendant has not
14 addressed the requirements of the Evidence Code, its motion must be denied.
15 CONCLUSION
16 Defendant’s motion makes improper use of the in limine procedure and erroneously
17 urges this Court to exclude an entire class of evidence that is probative of what was
18 scientifically knowable in order to define defendant’s obligations as a manufacturer to make
19 sure its products do not produce a hazard when used as intended. The extent to which the trade
20 organization evidence informs this analysis is a question of fact, not a matter of law, and it
21 should be decided by the jury in light of all the evidence presented. Furthermore, defendant has
22 failed to show how the introduction of evidence regarding trade organizations would be unduly
23 prejudicial. Plaintiffs therefore respectfully request that the Court deny defendant’s motion in
24 limine in its entirety and permit the evidence relating to trade organizations of which defendant
25 was not a member.
26 Dated: 1/27/2020 BRAYTONPURCELL LLP
27 By: /s/James P. Nevin
James P. Nevin
28 Attorneys for Plaintiffs
9
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PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO
PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A
MEMBER
EXHIBIT A
1 GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
2 jnevin@braytonlaw.com
BRAYTON❖PURCELL LLP
3 Attorneys at Law
222 Rush Landing Road
4 P.O. Box 6169
Novato, California 94948-6169
5 (415) 898-1555
6 Attorneys for Plaintiffs
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 IN RE: COMPLEX ASBESTOS ) ASBESTOS
NOVATO, CALIFORNIA 94948-6169
BRAYTONPURCELL LLP
LITIGATION ) No. 828684
222 RUSH LANDING ROAD
12 )
ATTORNEYS AT LAW
(415) 898-1555
P O BOX 6169
DECLARATION OF RICHARD COHEN,
13 M.D., M.P.H.
14
15 TABLE OF CONTENTS
16 GENERAL QUALIFICATIONS AND FOUNDATION ................................................................2
17 DUST STUDIES ..............................................................................................................................7
18 GOVERNMENT REGULATIONS...............................................................................................10
19 ASBESTOS-RELATED DISEASES ............................................................................................15
20 HAZARD REDUCTION ...............................................................................................................19
21 CAUSATION ................................................................................................................................26
22 RE-ENTRAINMENT ....................................................................................................................34
23 ABATEMENT ...............................................................................................................................37
24 CONCLUSION ..............................................................................................................................38
25 I, Richard Cohen, M.D., M.P.H., declare:
26 1. I am not a party to the above-referenced action. I have personal knowledge of the
27 facts stated herein, and if called as a witness, I could and would competently testify thereto.
28 ///
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C:\Users\rich\Documents\Work folder\Asbestos Declarations. Depositions\Template general SOA causation exposure declaration MIL Cohen 1-15- 2019.doc
DECLARATION OF RICHARD COHEN, M.D., M.P.H.
1 GENERAL QUALIFICATIONS AND FOUNDATION
2 2. I am a licensed physician and am currently a Clinical Professor in the Division of
3 Occupational and Environmental Medicine in the Department of Internal Medicine at the
4 University of California San Francisco School of Medicine. Occupational medicine addresses
5 the diagnosis, the treatment and prevention of health problems that result from work. A majority
6 of my work in occupational medicine deals with toxicology - how various hazardous materials
7 can affect people who are exposed to them. I work with companies to help them not only
8 identify those hazards, but also to protect the workers from having any health effects from those
9 hazards. Additionally, I have a Master of Public Health degree from the UCLA School of Public
10 Health in Epidemiology and a private practice in Occupational
11 Medicine and Industrial Toxicology. I am Board-certified by the American Board of Preventive
NOVATO, CALIFORNIA 94948-6169
BRAYTONPURCELL LLP
222 RUSH LANDING ROAD
12 Medicine in General Preventive Medicine and in Occupational Medicine.
ATTORNEYS AT LAW
(415) 898-1555
P O BOX 6169
13 3. My private practice focuses on occupational medicine and industrial toxicology,
14 providing consultative services to industrial and other clients regarding occupational medicine
15 and industrial toxicology. This includes interpretation and application of OSHA Occupational
16 Health Standards and workplace assessment and recommendations regarding existing health
17 hazards; interpretation of industrial hygiene data with assessment of health risk; interpretation of
18 biological monitoring and medical surveillance data with recommendations, where appropriate,
19 for further actions regarding health hazard identification and control; analysis of injury and
20 exposure data; development of programs for management and employee training in medical,
21 safety and industrial hygiene; and research and investigation in industrial toxicology including
22 investigation of illness clusters and scientific literature review.
23 4. Early in my career in occupational medicine, I spent several months at the Long
24 Beach Naval Shipyard studying occupational health issues, specifically with respect to asbestos.
25 The Long Beach Naval Shipyard had nine dry docks and handled large ships such as aircraft
26 carriers, among others. I became familiar with a program to measure asbestos exposures that
27 were occurring to some of the workers there, as well as a program that involved medical
28 ///
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C:\Users\rich\Documents\Work folder\Asbestos Declarations. Depositions\Template general SOA causation exposure declaration MIL Cohen 1-15- 2019.doc
DECLARATION OF RICHARD COHEN, M.D., M.P.H.
1 examination of some of the workers who worked with asbestos in an effort to determine if they
2 had health effects due to asbestos exposure.
3 5. In 1981, after I left the Navy, I began work as an employee of an electronics
4 company in Palo Alto. I was the Director of Corporate Health and Safety for 19 years. In my
5 role there, I performed clinical work, seeing medical patients, and non-clinical work wherein I
6 managed the industrial hygiene, safety and medical programs for the company. For instance, I
7 spent some time advising the company as to what types of medical testing should be performed
8 on workers, depending on the hazards they might encounter when doing their work. I also had a
9 private practice of occupational medicine that started in 1981, in which I worked with other
10 companies advising them on health issues that could affect their workers.
11 6. I was a volunteer consultant for CAL/OSHA in the 1980s and from 1997 to 2004
NOVATO, CALIFORNIA 94948-6169
BRAYTONPURCELL LLP
222 RUSH LANDING ROAD
12 when I was a member of the CAL/OSHA Airborne Contaminants Advisory Committee. As a
ATTORNEYS AT LAW
(415) 898-1555
P O BOX 6169
13 member of that committee, I recommended regulatory
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1 GILBERT L. PURCELL, ESQ., S.B. #113603 JAMES P. NEVIN, ESQ., S.B. #220816 2 jnevin@braytonlaw.com BRAYTONPURCELL LLP ELECTRONICALLY 3 Attorneys at Law 222 Rush Landing Road F I L E D Superior Court of California, 4 P.O. Box 6169 County of San Francisco Novato, California 94948-6169 01/28/2020 5 (415) 898-1555 Clerk of the Court BY: RONNIE OTERO 6 Attorneys for Plaintiffs Deputy Clerk 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 NADINE AMARAL and JODIE ) ASBESTOS COLLINS, JR., as Successors-in-Interest to ) No. CGC-19-276768 12 and Wrongful Death Heirs of MARJORIE ) NOVATO, CALIFORNIA 94948-6169 COLLINS, Deceased, ) PLAINTIFFS’ OPPOSITION TO SCOTT BRAYTONPURCELL LLP 222 RUSH LANDING ROAD 13 ) TECHNOLOGIES, INC.’S MOTION IN ATTORNEYS AT LAW Plaintiffs, ) LIMINE TO EXCLUDE EVIDENCE (415) 898-1555 P O BOX 6169 14 ) RELATED TO PURPORTED v. ) KNOWLEDGE OF ASBESTOS HAZARDS 15 ) BY TRADE ASSOCIATIONS OF WHICH DURO DYNE CORPORATION, et al. ) DEFENDANT WAS NOT A MEMBER 16 ) Defendants. ) 17 . Trial Date: January 21, 2020 Dept.: 220, Hon. Kathleen Kelly 18 19 20 21 22 23 24 25 Based the complex subject matter of the opposition to defendant’s motion in limine, and in accordance with CRC 3.1113(d) ("...no... responding memorandum may exceed 15 pages." "[t]he page limit does not include 26 exhibits, declarations, attachments..."), and in the spirit of CRC 3.1113(e) ("...for permission to file a longer memorandum...") plaintiffs seek leave to exceed the San Francisco Court-imposed limit of 5 pages and no exhibits. 27 Plaintiffs request permission to file, and for this Court to consider in its entirety, this 9-page opposition with 1 exhibit. 28 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 I. INTRODUCTION 2 Defendant wants this Court to order that no documents from any trade association to 3 which defendant did not belong be admitted into evidence. Rendering such a ruling at this time 4 would be highly improper and effectively deny plaintiffs the ability to put on relevant and 5 probative state of the art evidence. Defendant’s motions in limine rest on nothing more than an 6 unsupported argument that knowledge possessed by trade organizations is available only to that 7 trade organization’s members. Extrapolating from this claim, defendant then incorrectly states 8 that it must be shown to have had “actual knowledge” of information available to any other 9 (non-member) trade organization, and that any such evidence can therefore be presumed to be 10 inadmissible under California Evidence Code § 352. This stream of conjecture, without support 11 in law or fact, does not permit the exclusion of relevant evidence. The motion should therefore 12 be denied as asking this Court to pre-judge an entire class of evidence in a vacuum. (See Kelly 13 v. New West Federal Savings (1996) 49 Cal.App.4th 659, 671.) 14 II. ARGUMENT 15 A. EVIDENCE REGARDING TRADE ORGANIZATIONS IS RELEVANT TO PLAINTIFFS’ STRICT LIABILITY AND NEGLIGENCE CLAIMS AS 16 PROOF OF THE STATE OF THE ART TO SHOW THAT DEFENDANT KNEW OR COULD HAVE KNOWN OF THE RISK 17 1. Evidence That Proves What Defendant Knew or Could Know Regarding 18 Potential Product Hazards at the Time of the Product’s Manufacture or Distribution Is Relevant and Admissible 19 20 A manufacturer has a duty to provide consumers adequate warnings of potential risks of 21 products that are known or knowable at the time of manufacture and distribution through the 22 use of the scientific knowledge available. (CACI No. 1205; Anderson v. Owens-Corning 23 Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003 [strict liability requires plaintiffs to show that 24 the defendants "did not adequately warn of a particular risk that was known or knowable in light 25 of the generally recognized and best prevailing scientific and medical knowledge" available at 26 the time of the manufacture and distribution of the product].) The Anderson court recognized 27 the requisite actual or constructive knowledge, enunciated in Comment j of section 402A of the 28 Restatement (Second) of Torts, to be “knowledge which is obtainable ‘by the application of 1 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 reasonable, developed human skill and foresight.’” (Anderson, supra, at 1002, fn.13 (emphasis 2 added).) 3 Manufacturers are held to the knowledge and skill of experts under both negligence and 4 strict liability theories of recovery for the failure to adequately warn. (Vermeulen v. Superior 5 Court (1988) 204 Cal.App.3d 1192, 1204, citing Christofferson v. Kaiser Foundation Hospitals 6 (1971) 15 Cal.App.3d 75.) Dartez v. Fibreboard Corp. (5th Cir. 1985) 765 F.2d 456, 461 court 7 noted that, as experts, manufacturers “are obliged to keep abreast of any scientific discoveries 8 and are presumed to know the results of all such advances.” (See also Restatement (Second) of 9 Torts, section 402A, Comment j; and Borel v. Fibreboard Paper Products (5th Cir. 1973) 493 10 F.2d. 1076, 1089, cert denied 419 U.S. 869 (1974).) Moreover, manufacturers have a duty to 11 inspect and test their products to insure that the products are safe for their intended use. 12 (Vermeulen, supra, at 1204; Rest. 2d Torts, section 392; see also discussion in such out-of-state 13 asbestos cases as Borel, supra, at 1090; George v. Celotex Corp. (2nd Cir. 1990) 914 F.2d 26, 14 28; Owens-Illinois v. Xenobia (Md. 1992) 601 A.2d 663, 641; and see Noel, "Manufacturer's 15 Negligence of Design or Directions for Use of a Product," 71 Yale L. J. 816, 853 (1962).) The 16 Borel court warned: 17 The extent of research and experiment must be commensurate with the dangers involved. A product must not be made available to the public without disclosure 18 of those dangers that the application of reasonable foresight would reveal. Nor may a manufacturer rely unquestioningly on others to sound the hue and cry 19 concerning a danger in its product. Rather, each manufacturer must bear the burden of showing that its own conduct was proportionate to the scope of its 20 duty. [Borel, supra, at 493 F.2d 1090, emphasis added.] 21 The Dartez court emphasized the manufacturers’ individual responsibility from Borel: 22 “They each bear the duty to fully test their products and to uncover all scientifically 23 discoverable dangers before the products are sold.” (Dartez, supra, at 461, citing Borel, supra, 24 493 F.2d at 1089-90.) In that case, the plaintiff offered Johns-Manville medical director 25 Kennedy Smith's testimony about what was known, and when, regarding asbestos-related health 26 hazards against defendant Fibreboard Corporation. The court held the trial court's admission of 27 the testimony proper, because "actual knowledge of an individual manufacturer is not the issue. 28 /// 2 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 If the dangers of asbestos were known to Johns-Manville at the time of plaintiff's exposure, then 2 the same risks were scientifically discoverable by other asbestos corporations." (Id.) 3 Similarly, the George court held an unpublished industry organization study (the 1947 4 "Hemeon Report") to be relevant and admissible not to show what the "manufacturers knew 5 generally, but to show what the defendant should have known, had it either conducted its own 6 tests, or been in contact with others in the industry ... that were testing." (George, supra, 7 914 F.2d at 29.) The disputed Hemeon Report argued that the threshold limit value for asbestos 8 (5 million particles per cubic foot) was unsafe and thereby refuted the defendant's claims that its 9 adherence to that threshold appropriately accounted for the risks known or knowable at the 10 time. The court opined: "a manufacturer may not rest content with industry practice, for the 11 industry may be lagging behind in its knowledge about a product, or what, with the exercise of 12 reasonable care, is knowable about a product." (Id., 914 F.2d at 28.) 13 Thus, where the means of acquiring the relevant information are available, then those 14 means, combined with the obligation to test the product and seek the information, yield a 15 presumption that the manufacturer has performed the appropriate tests, surveys, or other 16 information-gathering activity, and knows of the hazards that performing those tests or surveys 17 would disclose. The tests and surveys necessary to learn of asbestos hazards were not complex, 18 but, rather, were such generally recognized methods as: reading available medical literature and 19 case reports on asbestos-related disease; amassing autopsy results that disclose lung disease and, 20 sometimes, asbestos fibers; or surveying asbestos workers' health histories to statistically 21 measure incidence of disease, which merely requires simple communication and record-keeping 22 skills. Each manufacturer had a duty to employ these means and seek the relevant information, 23 such that the information was knowable and the defendant may be presumed to have known of 24 the risks of their products. 25 /// 26 /// 27 /// 28 3 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 2. Evidence Relating to the Knowledge of Trade Organizations Is Probative of the State of the Art and Shows What Was Knowable to Defendant 2 Even Where It was Not A Member in the Particular Trade Organizations 3 Where the methods of acquiring information about asbestos were generally recognized 4 throughout the relevant time frame, defendant may be presumed to have known, for the same 5 time frame, all that actually conducting the tests, surveys and other information-gathering 6 activities would have disclosed. In order to show that these methods were available to 7 defendant – and thereby show what was knowable – plaintiffs may offer evidence of the state of 8 the art at the time, including trade organization evidence, whether or not defendant was a 9 member of the trade organizations. (See Dartez, supra, 765 F.2d at 463 [defining the state of 10 the art as "what the industry as a whole knew or could have discovered by properly fulfilling 11 their duty to test these products" (emphasis added)].) Such state of the art information is clearly 12 relevant and admissible. (See Anderson, supra, 53 Cal.3d at 991 [holding that state of the art 13 evidence is admissible to show what was known or knowable in a product liability failure-to- 14 warn case].) 15 This state of the art evidence includes the minutes, reports, and findings of professional 16 groups and organizations that bothered to look into the question of the asbestos hazard. These 17 documents are admissible for this non-hearsay, notice purpose in order to prove what a 18 manufacturer knew or should have known. (See, e.g., Benwell v. Dean (1964) 227 Cal.App.2d 19 226 [police officers' warnings to house movers regarding safety procedures to be followed were 20 admissible non-hearsay to show the movers' notice of the procedures].) As Professors Prosser 21 & Keeton explained in Torts, § 32 (5th ed. 1984), failure to learn what others know or what can 22 be discovered constitutes negligence. 23 Defendant fails to cite any authority for the novel, and unsupported, proposition that 24 information must be actually known to a particular trade organization of which defendant was a 25 member in order to be deemed "known or knowable." Defendant has not even supported its 26 claim that information known by one trade organization is not, and cannot, be known to any 27 other trade organization. Rather, the case law clearly supports the proposition that evidence of 28 all trade organizations – whether or not defendant itself was a member – is relevant and 4 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 admissible to demonstrate the state of the art and to detail what was known or knowable to 2 defendant at the time. 3 B. STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFFS’ NEGLIGENCE CLAIM 4 5 Dr. Cohen will testify as to when the dangers of asbestos were first recognized, what and 6 when information about asbestos-related disease was published in the medical and scientific 7 literature, and what knowledge about causation and prevention of asbestos-related diseases was 8 available to whom. Documents and articles that he quotes from will be used for this 9 non-hearsay purpose of notice. Some of his opinions regarding state of the art are set forth in 10 his attached declaration. 11 The important test for negligence is whether the danger was known or knowable in 12 light of the generally recognized and prevailing best scientific and medical knowledge 13 available at the time of the distribution. (Anderson supra, 991.) Because Dr. Cohen is 14 testifying specifically as to what was known and knowable, his testimony is crucial and highly 15 probative. 16 In Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 97, the court held that the 17 defendant "should have foreseen the dangers given the publication of various medical and 18 industrial studies of asbestos diseases and promulgation of industrial safety standards and that 19 [the defendant] breached its duty to exercise ordinary care in the management of its premises 20 by failing . . . to take other reasonable precautions." (Emphasis added.) Under CACI 1222: 21 Plaintiff claims that the defendant was negligent by not using reasonable care to warn [or instruct] about the [product]'s dangerous condition or about facts 22 that make the [product] likely to be dangerous. To establish this claim, [name of plaintiff] must prove all of the following: That [name of defendant] 23 knew or reasonably should have known that the [product] was dangerous or was likely to be dangerous when used in a reasonably foreseeable manner. 24 [Emphasis added.] 25 Under BAJI 9.20: 26 One who supplies a product directly or through a third person, for another to use, which supplier knows or has reason to know is dangerous or is likely to be 27 dangerous for the use for which it is supplied, has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which 28 make it likely to be dangerous to those whom the supplier should expect to use 5 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 the product or be endangered by its probable use, if the supplier has reason to believe that they will not realize its dangerous condition. A failure to fulfill that 2 duty is negligence. [Emphasis added.] 3 These jury instructions are meaningless if plaintiffs cannot establish what was known or 4 knowable. The only way to do that is through an historical state of the art analysis. 5 In seeking to exclude Dr. Cohen's state of the art testimony, claiming that he is 6 somehow not knowledgeable about defendant or its specific sub-industry, defendant is asking 7 this Court to make a sub-industry-specific exception to the general duty of care. Such an 8 exception is not warranted. As stated in Cabral v. Ralph's Grocery Co. (2011) 51 Cal.4th 764, 9 768, "California law establishes the general duty of each person to exercise, in his or her 10 activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)." The court 11 went on to say, 12 By making exceptions to Civil Code section 1714's general duty of ordinary care only when foreseeability and policy considerations justify a categorical 13 no-duty rule, we preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to 14 make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make. [Id. at 772.] 15 16 To exclude Dr. Cohen's testimony because it is not expressed in the specific contours 17 defendant iterated would create a categorical no-duty rule for this industry. Defendant owed the 18 plaintiffs a general duty of ordinary care, and Dr. Cohen's testimony goes to the heart of this 19 duty. As the Cabral court expressed with regard to foreseeability, 20 We have explained that the court's task in determining duty "is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a 21 particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the 22 kind of harm experienced that liability may appropriately be imposed … ." (Citations.) [Id. at 772.] 23 24 Dr. Cohen will testify about when the hazards (each of them) of asbestos were 25 well-known in the literature, and he will present appropriate examples of medical and scientific 26 literature to provide foundation for his testimony. (See Exhibit A, Cohen Declaration.) This 27 testimony is relevant to any defendant in any industry which utilized asbestos. Defendant’s 28 industry is a subset of that group, not something categorically different. Plaintiffs’ particular 6 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 disease, as well as all other asbestos-related diseases, is included within potential risks, 2 potential danger, dangerous condition, likely to be dangerous. Dr. Cohen's testimony is crucial 3 to the jury's evaluation of defendant’s negligent conduct. 4 C. STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFFS’ FAILURE-TO- WARN CLAIM 5 6 The same testimony applies to plaintiffs’ product liability claim for failure to warn. The 7 law is clear that there is a "knowability" requirement for a failure to warn strict liability claim: 8 [A] reasonably prudent manufacturer might reasonably decide that the risk of harm was such as not to require a warning as, for example, if the manufacturer's 9 own testing showed a result contrary to that of others in the scientific community. Such a manufacturer might escape liability under negligence 10 principles. In contrast, under strict liability principles the manufacturer has no such leeway; the manufacturer is liable if it failed to give warning of 11 dangers that were known to the scientific community at the time it manufactured or distributed the product. [Anderson, supra, at1003.] 12 13 Plaintiffs can only demonstrate the dangers that were known to the scientific community 14 by means of expert testimony regarding the state of the art. This is restated in jury instructions: 15 CACI 1205 (emphasis added): 16 Plaintiff claims that the [product] lacked sufficient [instructions] [or] [warning of potential [risks/side effects/allergic reactions]]. To establish this claim, 17 plaintiff must prove all of the following: That the [product] had potential [risks/side effects/allergic reactions] that were [known] [or] [knowable by the 18 use of scientific knowledge available] at the time of [manufacture/ distribution/sale]. 19 20 In addition, the CACI Judicial Counsel Advisory Committee notes that "[t]he advisory 21 committee believes that this standard is captured by the phrase ‘generally accepted in the 22 scientific community.'" (Ad. Comm. notes following CACI 1205.) 23 BAJI 9.00.7 (emphasis added): 24 A manufacturer has a duty to warn if 1) the use of the product in a manner that is reasonably foreseeable by the manufacturer involves a substantial danger that 25 would not be readily recognized by the ordinary user of the product, and 2) this danger was known or knowable in light of the generally recognized and 26 prevailing best scientific and medical knowledge available at the time of the manufacture and distribution. 27 A manufacturer has a duty to provide an adequate warning to the user on how to 28 use the product if a reasonably foreseeable use of the product involves a 7 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 substantial danger of which the manufacturer either is aware or should be aware, and that would not be readily recognized by the ordinary user. 2 A manufacturer has a duty to provide an adequate warning to the consumer of a 3 product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally 4 recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution. 5 6 As is clear from these jury instructions, what was known or knowable lies at the heart of 7 plaintiffs' case. To exclude Dr. Cohen from testifying would be akin to dismissing the entire 8 cause of action. Dr. Cohen's testimony is critical to plaintiffs' right to have a full trial based 9 upon the merits of their case. 10 D. BLACK-LETTER LAW REGARDING STATE OF THE ART 11 An expert's testimony with regard to state of the art in asbestos litigation has been 12 alluded to (and found unproblematic) in numerous decisions. In Kinsman v. Unocal Corp. 13 (2005) 37 Cal.4th 659, the Supreme Court alluded to the testimony of Dr. Barry Castleman 14 about the general public's knowledge of the hazards of asbestos (fn. 7). In Overly v. Ingalls 15 Shipbuilding (1999) 74 Cal.App.4th 164, the Appellate Court refers in passing to 16 Dr. Castleman's testimony about the "growing awareness of risks of asbestos exposure 17 beginning with acknowledgments by the medical community as early as the 1890's." (Id. at 18 168.) Dr. David Egilman's trial testimony was mentioned in Chavers v. Gatke Corp. (2003) 107 19 Cal.App.4th 606. Dr. Cohen's trial testimony about causation was one of the factors considered 20 by the Appellate Court in Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409. In 21 Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, the court wrote, "At trial, 22 expert testimony established that sometime between the 1920's and 1960's, the scientific 23 community became aware that asbestos was dangerous. . . . (Id. at 1229.) The court even 24 summarized some of the papers that the experts relied upon – the same thing that Dr. Cohen 25 will be doing in his testimony. 26 /// 27 /// 28 /// 8 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER 1 E. DEFENDANT HAS FAILED TO SHOW HOW THE RELEVANT EVIDENCE REGARDING TRADE ORGANIZATIONS IS UNDULY PREJUDICIAL 2 3 Defendant’s objections as to “undue prejudice” go to the weight of the evidence, not its 4 admissibility. California Evidence Code § 352 does not, as defendant claims, require the 5 exclusion of any evidence that defendant considers to be prejudicial or misleading; the test is 6 whether any alleged dangers of undue prejudice or misleading the jury substantially outweigh 7 the evidence's probative value. Defendant has not shown that this is the case. Evidence Code 8 § 352 provides that the Court, in its discretion, may exclude evidence when its probative value 9 is substantially outweighed by the danger that its introduction will result in undue prejudice, 10 consumption of time, or misleading the jury. Defendant’s only argument regarding § 352 is that 11 it would have to rebut the issue, but defendant does not show how the introduction of evidence 12 of its membership in trade associations or receipt of trade-association publications would be so 13 prejudicial as to substantially outweigh its probative value. Because defendant has not 14 addressed the requirements of the Evidence Code, its motion must be denied. 15 CONCLUSION 16 Defendant’s motion makes improper use of the in limine procedure and erroneously 17 urges this Court to exclude an entire class of evidence that is probative of what was 18 scientifically knowable in order to define defendant’s obligations as a manufacturer to make 19 sure its products do not produce a hazard when used as intended. The extent to which the trade 20 organization evidence informs this analysis is a question of fact, not a matter of law, and it 21 should be decided by the jury in light of all the evidence presented. Furthermore, defendant has 22 failed to show how the introduction of evidence regarding trade organizations would be unduly 23 prejudicial. Plaintiffs therefore respectfully request that the Court deny defendant’s motion in 24 limine in its entirety and permit the evidence relating to trade organizations of which defendant 25 was not a member. 26 Dated: 1/27/2020 BRAYTONPURCELL LLP 27 By: /s/James P. Nevin James P. Nevin 28 Attorneys for Plaintiffs 9 K:\Injured\122376\TRIAL\opp mil excl ref to trade orgs def not a member SCOTEC.wpd EVS PLAINTIFFS' OPPOSITION TO SCOTT TECHNOLOGIES, INC. MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO PURPORTED KNOWLEDGE OF ASBESTOS HAZARDS BY TRADE ASSOCIATIONS OF WHICH DEFENDANT WAS NOT A MEMBER EXHIBIT A 1 GILBERT L. PURCELL, ESQ., S.B. #113603 JAMES P. NEVIN, ESQ., S.B. #220816 2 jnevin@braytonlaw.com BRAYTON❖PURCELL LLP 3 Attorneys at Law 222 Rush Landing Road 4 P.O. Box 6169 Novato, California 94948-6169 5 (415) 898-1555 6 Attorneys for Plaintiffs 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 IN RE: COMPLEX ASBESTOS ) ASBESTOS NOVATO, CALIFORNIA 94948-6169 BRAYTONPURCELL LLP LITIGATION ) No. 828684 222 RUSH LANDING ROAD 12 ) ATTORNEYS AT LAW (415) 898-1555 P O BOX 6169 DECLARATION OF RICHARD COHEN, 13 M.D., M.P.H. 14 15 TABLE OF CONTENTS 16 GENERAL QUALIFICATIONS AND FOUNDATION ................................................................2 17 DUST STUDIES ..............................................................................................................................7 18 GOVERNMENT REGULATIONS...............................................................................................10 19 ASBESTOS-RELATED DISEASES ............................................................................................15 20 HAZARD REDUCTION ...............................................................................................................19 21 CAUSATION ................................................................................................................................26 22 RE-ENTRAINMENT ....................................................................................................................34 23 ABATEMENT ...............................................................................................................................37 24 CONCLUSION ..............................................................................................................................38 25 I, Richard Cohen, M.D., M.P.H., declare: 26 1. I am not a party to the above-referenced action. I have personal knowledge of the 27 facts stated herein, and if called as a witness, I could and would competently testify thereto. 28 /// 1 PMV C:\Users\rich\Documents\Work folder\Asbestos Declarations. Depositions\Template general SOA causation exposure declaration MIL Cohen 1-15- 2019.doc DECLARATION OF RICHARD COHEN, M.D., M.P.H. 1 GENERAL QUALIFICATIONS AND FOUNDATION 2 2. I am a licensed physician and am currently a Clinical Professor in the Division of 3 Occupational and Environmental Medicine in the Department of Internal Medicine at the 4 University of California San Francisco School of Medicine. Occupational medicine addresses 5 the diagnosis, the treatment and prevention of health problems that result from work. A majority 6 of my work in occupational medicine deals with toxicology - how various hazardous materials 7 can affect people who are exposed to them. I work with companies to help them not only 8 identify those hazards, but also to protect the workers from having any health effects from those 9 hazards. Additionally, I have a Master of Public Health degree from the UCLA School of Public 10 Health in Epidemiology and a private practice in Occupational 11 Medicine and Industrial Toxicology. I am Board-certified by the American Board of Preventive NOVATO, CALIFORNIA 94948-6169 BRAYTONPURCELL LLP 222 RUSH LANDING ROAD 12 Medicine in General Preventive Medicine and in Occupational Medicine. ATTORNEYS AT LAW (415) 898-1555 P O BOX 6169 13 3. My private practice focuses on occupational medicine and industrial toxicology, 14 providing consultative services to industrial and other clients regarding occupational medicine 15 and industrial toxicology. This includes interpretation and application of OSHA Occupational 16 Health Standards and workplace assessment and recommendations regarding existing health 17 hazards; interpretation of industrial hygiene data with assessment of health risk; interpretation of 18 biological monitoring and medical surveillance data with recommendations, where appropriate, 19 for further actions regarding health hazard identification and control; analysis of injury and 20 exposure data; development of programs for management and employee training in medical, 21 safety and industrial hygiene; and research and investigation in industrial toxicology including 22 investigation of illness clusters and scientific literature review. 23 4. Early in my career in occupational medicine, I spent several months at the Long 24 Beach Naval Shipyard studying occupational health issues, specifically with respect to asbestos. 25 The Long Beach Naval Shipyard had nine dry docks and handled large ships such as aircraft 26 carriers, among others. I became familiar with a program to measure asbestos exposures that 27 were occurring to some of the workers there, as well as a program that involved medical 28 /// 2 PMV C:\Users\rich\Documents\Work folder\Asbestos Declarations. Depositions\Template general SOA causation exposure declaration MIL Cohen 1-15- 2019.doc DECLARATION OF RICHARD COHEN, M.D., M.P.H. 1 examination of some of the workers who worked with asbestos in an effort to determine if they 2 had health effects due to asbestos exposure. 3 5. In 1981, after I left the Navy, I began work as an employee of an electronics 4 company in Palo Alto. I was the Director of Corporate Health and Safety for 19 years. In my 5 role there, I performed clinical work, seeing medical patients, and non-clinical work wherein I 6 managed the industrial hygiene, safety and medical programs for the company. For instance, I 7 spent some time advising the company as to what types of medical testing should be performed 8 on workers, depending on the hazards they might encounter when doing their work. I also had a 9 private practice of occupational medicine that started in 1981, in which I worked with other 10 companies advising them on health issues that could affect their workers. 11 6. I was a volunteer consultant for CAL/OSHA in the 1980s and from 1997 to 2004 NOVATO, CALIFORNIA 94948-6169 BRAYTONPURCELL LLP 222 RUSH LANDING ROAD 12 when I was a member of the CAL/OSHA Airborne Contaminants Advisory Committee. As a ATTORNEYS AT LAW (415) 898-1555 P O BOX 6169 13 member of that committee, I recommended regulatory