Preview
1 GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
2 jnevin@braytonlaw.com
BRAYTON˜PURCELL 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 12/28/2021
5 (415) 898-1555 Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
6 Attorneys for Plaintiffs Deputy Clerk
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 CAROL CHULICK, as Successor-in- ) ASBESTOS
Interest to and as Wrongful Death Heir of ) No. CGC-19-276757
12 JOHN CHULICK, Deceased; and )
DEBORAH HAGEN and JOLEEN ) PLAINTIFFS’ MOTION IN LIMINE RE:
NOVATO, CALIFORNIA 94948-6169
BRAYTON˜PURCELL LLP
13 HAGLER, as Wrongful Death Heirs of ) EXAMINATION OF EXPERT
222 RUSH LANDING ROAD
ATTORNEYS AT LAW
JOHN CHULICK, Deceased, ) WITNESSES REGARDING “BUT FOR”
14 ) PROXIMATE CAUSE
(415) 898-1555
P O BOX 6169
Plaintiffs, )
15 vs. )
) Trial Date: December 27, 2021
16 RILEY POWER INC., et al., ) Dept.: 502; Honorable Jeffrey S. Ross
)
17 Defendants. )
18
19
20
21
22
23
24
25
26
27
28
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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE
1 Defendants should be precluded from asking questions or eliciting answers intentionally
2 designed to improperly suggest to the jury that its product(s) and/or conduct on “its own” was
3 insufficient to cause the asbestos-related disease at issue. Such questioning would be a thinly
4 disguised attempt to confuse and mislead the jury into applying an improper “but for” or
5 “proximate cause” test for causation, in direct violation of Rutherford v. Owens Illinois, Inc.
6 (1997) 16 Cal.4th 953, 954, and subsequent case law. As such, the questioning and testimony is
7 irrelevant, misleading and prejudicial, and should be precluded under Evidence Code Section
8 350 and 352. Plaintiffs request an order and admonition to defense counsel to refrain from such
9 examination, and to otherwise prohibit reference to a standard of causation other than that
10 proscribed by California law.
11 Plaintiffs do not contest the propriety of establishing through expert testimony notions
12 of overall risk for contracting a given asbestos-related disease, or calculations as they relate to a
13 given defendants’ participation in the aggregate dose as it relates to Proposition 51 allocation of
14 fault and determination of cause under the substantial factor test enumerated in CACI 435 and
15 CACI 406, and California case law.
16 Rather, plaintiffs take issue with defendants’ attempts to inject improper questioning
17 and eliciting inappropriate opinions from expert witnesses couched in terms of “but for”
18 proximate cause, rather than substantial factor as the standard of legal causation.
19 Although it is virtually impossible to apprise this Court of each and every potential
20 question designed to focus the jury on a “but for” or proximate cause standard of causation,
21 nonetheless, plaintiffs submit that the following illustrative questions are clearly improper
22 as will be discussed, infra:
23 1. Doctor, was Mr. X’s exposure to asbestos, excluding that attributable to my client, sufficient
to have caused his asbestos-related disease?
24 2. Doctor, focusing on the exposure to my client’s product(s) or activities, was that sufficient
on its own to have caused plaintiff’s asbestos-related disease?
25 3. If plaintiff had never been exposed to my client’s product(s) or activities, would he have still
been exposed to a dose of asbestos sufficient to cause his disease?
26 4. Doctor, based on your testing and/or research would you expect a person exposed solely to a
quantity of asbestos, such as that associated with my client’s product(s) or activities, to contract
27 an asbestos-related disease?
5. Can you state to a reasonable degree of medical/scientific certainty that my client’s product(s)
28 or activities on its own caused this man’s disease?
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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE
1 6. If my client’s product(s) or activities were Mr. X’s only exposure to asbestos, would he have
contracted an asbestos-related disease?
2
3 To be absolutely clear, plaintiffs request that this Court order defense counsel to refrain
4 from posing any of the aforementioned questions and/or any variation thereof designed to instill
5 in the jurors’ minds that plaintiffs must prove that the defendants’ product(s) or activities were
6 the “but for” proximate cause of the asbestos-related disease.
7 The “but for” test of cause in fact, which states that a defendants’ conduct is a cause of
8 an injury if the injury would not have occurred “but for” that conduct, has been expressly
9 rejected by the California Supreme Court. Mitchell v. Gonzales, (1991) 54 Cal.3d 1041. The
10 reason for abandoning the “but for” rule is that it improperly leads jurors to focus on
11 cause that is spatially or temporally closest to harm. Id., 54 Cal.3d at 1052.
12 The “but for” test for cause in fact determinations has been subsumed, and replaced, by
13 the “substantial factor” test. The “substantial factor” test is a clearer rule of causation which
14 addresses situations such as concurrent causes. In setting forth the mandatory Rutherford
15 standard in asbestos cases, the Supreme Court essentially prohibited evidence designed to parse
16 out a given defendants’ participation from the aggregate dose and focus a jury on whether such
17 participation was sufficient on its own to have caused the asbestos-related disease.
18 Asbestos defendants typically attempt to distort and mischaracterize the well-established
19 California law on asbestos causation. Rutherford, Jones v. John Crane, Inc. (2005) 132
20 Cal.App.4th 990, Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, CACI 431, and
21 CACI 435 (and alternatively BAJI 3.76, 3.77, and 3.78) represent the applicable law. Despite
22 being repeatedly informed of this by trial courts, courts of appeal and the Judicial Council,
23 defendants continue to spuriously argue that, to be substantial, the exposure to asbestos
24 attributable to them must be large or over a certain threshold. However, established California
25 case law, California jury instructions, all scientists who are specialists in asbestos and do not
26 work for asbestos defendants, every relevant United States governmental regulatory body, every
27 global health organization, and, in fact, most countries, agree that the total dose of asbestos a
28 person is exposed to is what caused his/her asbestos-related disease.
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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE
1 As a practical matter, there is no way to identify which product in particular, or most
2 substantially, “caused” the disease, or to state with any degree of certainty that the person would
3 not have contracted the disease but for a particular product. As stated in Rutherford:
4 Plaintiffs cannot be expected to prove the scientifically unknown details of
carcinogenesis, or trace the unknowable path of a given asbestos fiber. But the
5 impossibility of such proof does not dictate use of a burden shift. Instead, we can
bridge this gap in the humanly knowable by holding that plaintiffs may prove
6 causation in asbestos- related cancer cases by demonstrating that the plaintiff's
exposure to defendant's asbestos-containing product in reasonable medical
7 probability was a substantial factor in contributing to the aggregate dose of
asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of
8 developing asbestos-related cancer, without the need to demonstrate that fibers
from the defendant's particular product were the ones, or among the ones, that
9 actually produced the malignant growth. [Id. at 976-977 (footnote omitted).]
10 The Rutherford court went on to direct:
11 The plaintiff may meet the burden of proving that exposure to defendant's
product was a substantial factor causing the illness by showing that in reasonable
12 medical probability it contributed to the plaintiff or decedent's risk of developing
cancer. The jury should be so instructed. The standard instructions on substantial
13 factor and concurrent causation (BAJI Nos. 3.76 & 3.77) remain correct in this
context and should also be given. [Id. at 982-983 (footnote omitted).]
14
15 Plaintiffs do not have to show that a defendant’s asbestos-containing product was the major
16 exposure – the most frequent exposure – or the single most significant exposure – that
17 contributed to the disease:
18 The substantial factor standard is a relatively broad one, requiring only that the
contribution of the individual cause be more than negligible or theoretical. [Id.
19 at 978 (emphasis added).]
20 Further, the Rutherford court, after setting out the substantial factor standard, specifically stated:
21 We conclude that plaintiffs are required to prove no more than this. In
particular, they need not prove with medical exactitude that fibers from a
22 particular defendant's asbestos-containing products were those, or among those,
that actually began the cellular process of malignancy. [Id. at 958 (emphasis
23 added).]
24 Plaintiffs will meet this burden under Rutherford by proving that the exposures to/from the
25 defendants’ asbestos-containing products/conduct were substantial factors in reasonable
26 medical probability in contributing to the aggregate dose of asbestos inhaled – precisely as
27 required by Rutherford. Plaintiffs will demonstrate that exposure to the defendants’
28 asbestos-containing products was a “substantial factor” in contributing to the aggregate dose of
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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE
1 asbestos inhaled and thus to the risk of developing asbestos-related disease – a disease which is
2 cumulative in nature.
3 The Supreme Court in its decision in Rutherford warned of defendants’ efforts to twist
4 the meaning of the word ‘substantial’:
5 Undue emphasis should not be placed on the term ‘substantial.’ For example, the
substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than
6 the ‘but for’ test, has been invoked by defendants whose conduct is clearly a "but for"
cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the
7 injury. (Prosser & Keeton on Torts 5th ed., 1988 supp. § 41, pp. 43-44.) Misused in this
way, the substantial factor test ‘undermines the principles of comparative negligence,
8 under which a party is responsible for his or her share of negligence and the harm caused
thereby.’ (Mitchell) [Id. at 969.] (Emphasis added.)
9
10 While a “trivial” exposure cannot be considered “substantial” for the purposes of
11 Rutherford, an exposure does not become “trivial” merely because it is small or another
12 exposure is greater. The law recognizes that there are different degrees of responsibility. That
13 is why California adopted the doctrine of comparative negligence. (See Li v. Yellow Cab
14 (1975) 13 Cal.3d 804.)
15 In Hernandez, the Court of Appeal rejected the same assertions about causation from
16 Amcord that defendants make here in our case. Amcord argued, as do our defendants, that its
17 asbestos product/exposure was different, special, and safe, and that plaintiffs failed to show
18 exposure of a sufficient quantity, duration, and frequency to its particular product. The
19 Hernandez court rejected this assertion, and in addition to repeating the language of Rutherford,
20 the Hernandez court held, “notably, the Rutherford court made no distinction between general
21 causation and specific causation.” (Id. at 670, fn 4.) The court further held:
22 ...appellant set forth sufficient evidence of causation in this matter: ...some threshold
exposure to Riverside gun plastic cement; and .....in reasonable medical probability that
23 the exposure to Riverside gun plastic cement was a "legal cause" of Mr. Hernandez's
injury, i.e., a substantial factor in bringing about the injury. ....in reasonable medical
24 probability it was a substantial factor contributing to Mr. Hernandez's risk of developing
cancer. (Rutherford, supra)...
25
We find that appellant met this standard. As to the first requirement that appellant show
26 a threshold exposure to Riverside gun plastic cement, Mr. Hernandez's brother's
testimony was sufficient.... Alfredo worked with decedent for 10 to 12 years, starting in
27 1969. They did not constantly work together; they worked apart during the week but
worked together on the weekends to earn extra money. During this time period,
28 Mr. Hernandez used Riverside gun plastic cement "a lot of times," or "all the time."
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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE
1 ...Mr. Hernandez would cut the bag in the middle, which created visible dust around
his face and clothing. Mr. Hernandez would then dump the bag of Riverside gun plastic
2 cement into a mixer, which also created "a little bit" more dust that got on his face and
clothing.
3
This testimony meets the threshold requirement of exposure to the respondent's
4 product....
5 Dr. Kradin gave his professional opinion that there was a direct connection between
Mr. Hernandez's work history and his illness: "'It is my opinion, to a reasonable degree
6 of medical probability, that [the decedent's] malignant mesothelioma was caused by
asbestos.'"...
7
We disagree with the trial court's view that Rutherford mandates that a medical doctor
8 must expressly link together the evidence of substantial factor causation. The
Rutherford court did not create a requirement that specific words must be recited by
9 appellant's expert. (See also Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12 ["'No
recitation of "specific words or phrases mirroring statutory language" is necessary to
10 establish causation'"].)...
11 In addition, appellant presented expert testimony from an epidemiologist suggesting
that if an individual is exposed to many different asbestos-containing products,
12 each of those products would contribute to an increased risk of asbestos-related
disease, as long as the asbestos was inhaled and retained in the worker's body. And
13 finally, appellant presented expert testimony that Mr. Hernandez's illness was caused by
asbestos to a reasonable degree of medical probability.
14
15 (Id. at 674-675, emphasis added.) Hernandez directly rebuts defendants’ assertion that plaintiffs
16 must somehow show that a specific quantified amount of a particular defendant’s particular type
17 of asbestos was sufficient to cause disease. Hernandez and Rutherford are in exact accord with
18 plaintiffs’ position: For someone who gets a clinical asbestos-related disease, accounting
19 for minimum latency, for biologic response to obtain all prior exposures that comprise
20 that person’s (not anyone else’s) total dose is what caused that response in him or her.
21 And, as Hernandez explains:
22 It is then up to the jury to determine whether that testimony is persuasive and, if so, to
what extent this defendant's product, rather than the other asbestos-containing products
23 to which the plaintiff (or decedent) was exposed, was a factor contributing to the
disease. There need not be testimony specifically linking the defendant's product in
24 isolation to the plaintiff's increased risk of developing cancer. (Id. 674-675.)
25 Dated: 12/28/21 BRAYTON˜PURCELL LLP
26
27 By: /s/ James P. Nevin
James P. Nevin
28 Attorneys for Plaintiffs
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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE
1 PROOF OF SERVICE BY FILE & SERVEXPRESS
2 I am employed in the County of Marin, State of California. I am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
3 P.O. Box 6169, Novato, California, 94948-6169.
4 On December 28, 2021, I electronically served (E-Service) the following documents:
5 PLAINTIFF’S MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES
REGARDING “BUT FOR” PROXIMATE CAUSE
6
7 on the interested parties in this action by causing File & ServeXpress E-service program to
transmit a true copy thereof to the following party(ies):
8
9 SEE ATTACHED SERVICE LIST
10
11 The above document was transmitted by File & ServeXpress E-Service and the
transmission was reported as complete and without error.
12
Executed on December 28, 2021, at Santa Rosa, California.
13
14 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
15
16
A
17
18 ___________________________
Angela Porterfield
19
20
21
22
23
24
25
26 Carol Chulick, et al. v. Riley Power Inc., et al.
San Francisco Superior Court Case No. CGC-19-276757
27
28
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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE
Brayton-Purcell Service List
Date Created: 12/27/2021 01:33 PM
Matter Numbers: 26244.006-Carol Louise Chulick
Run by: Angela Porterfield
Foley & Mansfield PLLP - Walnut Goldberg Segalla LLP - San Francisco Hawkins Parnell & Young LLP - San
Creek, CA 611 Gateway Blvd., Suite 120 Francisco, CA
2185 N. California Blvd., Suite 575 San Francisco, CA 94080 1 Post Street, Suite 2400
Walnut Creek, CA 94596 415-435-6600 415-432-6601 (fax) San Francisco, CA 94104-5203
510-590-9500 510-590-9595 (fax) Defendants 415-766-3200 415-766-3250 (fax)
Defendants Cosco Fire Protection, Inc. (COSFIR) Defendants
Columbia Mechanical Contractors, Inc. Frank Bonetti Plumbing, Inc. (FBONET)
(CMCSF) Marconi Plastering Company, Inc.
Marconi Plastering Company, Inc. (MARCON)
(MARCON)
Husch Blackwell LLP - Oakland Imai, Tadlock, Keeney & Cordery, LLP Lewis Brisbois Bisgaard & Smith, LLP -
1999 Harrison St., Suite 700 The Mills Building San Francisco
Oakland, CA 94612 220 Montgomery Street, Suite 301 333 Bush St. Suite 1100
510-768-0650 510-768-0651 (fax) San Francisco, CA 94104 San Francisco, CA 94104
Defendants 415-260-4595 415-329-2244 (fax) 415-362-2580 415-434-0882 (fax)
Twin City Fire Insurance Company, as an Defendants Defendants
Insurer of Buttner Corp., a Dissolved Monterey Mechanical Co. (MONMC) Cooper Bros., Inc. (COOPBI)
California Corporation (TWIBUT)
Morgan, Lewis & Bockius LLP - San Selman Breitman, LLP Sinunu Bruni LLP
Francisco, CA 33 New Montgomery, 6th Floor 333 Pine Street, Suite 400
One Market, Spear Street Tower San Francisco, CA 94105 San Francisco, CA 94104
San Francisco, CA 94105-1126 415-979-0400 415-979-2099 (fax) 415-362-9700 415-362-9707 (fax)
415-442-1000 415-442-1001 (fax) Defendants Defendants
Defendants Associated Insulation of California Rosendin Electric, Inc. (ROSEEL)
Johnson Controls, Inc. (JOHCON) (ASSOC)
Scott Co. of California (SCOTT)
Spanos Przetak WFBM, LLP - San Francisco, CA
475 14th Street, Suite 550 One Sansome Street, Suite 1800
Oakland, CA 94612 San Francisco, CA 94104
510-250-0200 510-380-6354 (fax) 415-781-7072 415-391-6258 (fax)
Defendants Defendants
Spanos Przetak (SPAPRZ) D. Zelinsky & Sons, Incorporated
(ZELINS)
FDCC California, Inc. (FDCCCA)
Geo. H. Wilson, Inc. (GEOHWL)
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Preview
1 GILBERT L. PURCELL, ESQ., S.B. #113603 JAMES P. NEVIN, ESQ., S.B. #220816 2 jnevin@braytonlaw.com BRAYTON˜PURCELL 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 12/28/2021 5 (415) 898-1555 Clerk of the Court BY: YOLANDA TABO-RAMIREZ 6 Attorneys for Plaintiffs Deputy Clerk 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 CAROL CHULICK, as Successor-in- ) ASBESTOS Interest to and as Wrongful Death Heir of ) No. CGC-19-276757 12 JOHN CHULICK, Deceased; and ) DEBORAH HAGEN and JOLEEN ) PLAINTIFFS’ MOTION IN LIMINE RE: NOVATO, CALIFORNIA 94948-6169 BRAYTON˜PURCELL LLP 13 HAGLER, as Wrongful Death Heirs of ) EXAMINATION OF EXPERT 222 RUSH LANDING ROAD ATTORNEYS AT LAW JOHN CHULICK, Deceased, ) WITNESSES REGARDING “BUT FOR” 14 ) PROXIMATE CAUSE (415) 898-1555 P O BOX 6169 Plaintiffs, ) 15 vs. ) ) Trial Date: December 27, 2021 16 RILEY POWER INC., et al., ) Dept.: 502; Honorable Jeffrey S. Ross ) 17 Defendants. ) 18 19 20 21 22 23 24 25 26 27 28 K:\Injured\26244\TRIAL\mil prox.wpd JPN PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE 1 Defendants should be precluded from asking questions or eliciting answers intentionally 2 designed to improperly suggest to the jury that its product(s) and/or conduct on “its own” was 3 insufficient to cause the asbestos-related disease at issue. Such questioning would be a thinly 4 disguised attempt to confuse and mislead the jury into applying an improper “but for” or 5 “proximate cause” test for causation, in direct violation of Rutherford v. Owens Illinois, Inc. 6 (1997) 16 Cal.4th 953, 954, and subsequent case law. As such, the questioning and testimony is 7 irrelevant, misleading and prejudicial, and should be precluded under Evidence Code Section 8 350 and 352. Plaintiffs request an order and admonition to defense counsel to refrain from such 9 examination, and to otherwise prohibit reference to a standard of causation other than that 10 proscribed by California law. 11 Plaintiffs do not contest the propriety of establishing through expert testimony notions 12 of overall risk for contracting a given asbestos-related disease, or calculations as they relate to a 13 given defendants’ participation in the aggregate dose as it relates to Proposition 51 allocation of 14 fault and determination of cause under the substantial factor test enumerated in CACI 435 and 15 CACI 406, and California case law. 16 Rather, plaintiffs take issue with defendants’ attempts to inject improper questioning 17 and eliciting inappropriate opinions from expert witnesses couched in terms of “but for” 18 proximate cause, rather than substantial factor as the standard of legal causation. 19 Although it is virtually impossible to apprise this Court of each and every potential 20 question designed to focus the jury on a “but for” or proximate cause standard of causation, 21 nonetheless, plaintiffs submit that the following illustrative questions are clearly improper 22 as will be discussed, infra: 23 1. Doctor, was Mr. X’s exposure to asbestos, excluding that attributable to my client, sufficient to have caused his asbestos-related disease? 24 2. Doctor, focusing on the exposure to my client’s product(s) or activities, was that sufficient on its own to have caused plaintiff’s asbestos-related disease? 25 3. If plaintiff had never been exposed to my client’s product(s) or activities, would he have still been exposed to a dose of asbestos sufficient to cause his disease? 26 4. Doctor, based on your testing and/or research would you expect a person exposed solely to a quantity of asbestos, such as that associated with my client’s product(s) or activities, to contract 27 an asbestos-related disease? 5. Can you state to a reasonable degree of medical/scientific certainty that my client’s product(s) 28 or activities on its own caused this man’s disease? K:\Injured\26244\TRIAL\mil prox.wpd 1 JPN PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE 1 6. If my client’s product(s) or activities were Mr. X’s only exposure to asbestos, would he have contracted an asbestos-related disease? 2 3 To be absolutely clear, plaintiffs request that this Court order defense counsel to refrain 4 from posing any of the aforementioned questions and/or any variation thereof designed to instill 5 in the jurors’ minds that plaintiffs must prove that the defendants’ product(s) or activities were 6 the “but for” proximate cause of the asbestos-related disease. 7 The “but for” test of cause in fact, which states that a defendants’ conduct is a cause of 8 an injury if the injury would not have occurred “but for” that conduct, has been expressly 9 rejected by the California Supreme Court. Mitchell v. Gonzales, (1991) 54 Cal.3d 1041. The 10 reason for abandoning the “but for” rule is that it improperly leads jurors to focus on 11 cause that is spatially or temporally closest to harm. Id., 54 Cal.3d at 1052. 12 The “but for” test for cause in fact determinations has been subsumed, and replaced, by 13 the “substantial factor” test. The “substantial factor” test is a clearer rule of causation which 14 addresses situations such as concurrent causes. In setting forth the mandatory Rutherford 15 standard in asbestos cases, the Supreme Court essentially prohibited evidence designed to parse 16 out a given defendants’ participation from the aggregate dose and focus a jury on whether such 17 participation was sufficient on its own to have caused the asbestos-related disease. 18 Asbestos defendants typically attempt to distort and mischaracterize the well-established 19 California law on asbestos causation. Rutherford, Jones v. John Crane, Inc. (2005) 132 20 Cal.App.4th 990, Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, CACI 431, and 21 CACI 435 (and alternatively BAJI 3.76, 3.77, and 3.78) represent the applicable law. Despite 22 being repeatedly informed of this by trial courts, courts of appeal and the Judicial Council, 23 defendants continue to spuriously argue that, to be substantial, the exposure to asbestos 24 attributable to them must be large or over a certain threshold. However, established California 25 case law, California jury instructions, all scientists who are specialists in asbestos and do not 26 work for asbestos defendants, every relevant United States governmental regulatory body, every 27 global health organization, and, in fact, most countries, agree that the total dose of asbestos a 28 person is exposed to is what caused his/her asbestos-related disease. K:\Injured\26244\TRIAL\mil prox.wpd 2 JPN PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE 1 As a practical matter, there is no way to identify which product in particular, or most 2 substantially, “caused” the disease, or to state with any degree of certainty that the person would 3 not have contracted the disease but for a particular product. As stated in Rutherford: 4 Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber. But the 5 impossibility of such proof does not dictate use of a burden shift. Instead, we can bridge this gap in the humanly knowable by holding that plaintiffs may prove 6 causation in asbestos- related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical 7 probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of 8 developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that 9 actually produced the malignant growth. [Id. at 976-977 (footnote omitted).] 10 The Rutherford court went on to direct: 11 The plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable 12 medical probability it contributed to the plaintiff or decedent's risk of developing cancer. The jury should be so instructed. The standard instructions on substantial 13 factor and concurrent causation (BAJI Nos. 3.76 & 3.77) remain correct in this context and should also be given. [Id. at 982-983 (footnote omitted).] 14 15 Plaintiffs do not have to show that a defendant’s asbestos-containing product was the major 16 exposure – the most frequent exposure – or the single most significant exposure – that 17 contributed to the disease: 18 The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. [Id. 19 at 978 (emphasis added).] 20 Further, the Rutherford court, after setting out the substantial factor standard, specifically stated: 21 We conclude that plaintiffs are required to prove no more than this. In particular, they need not prove with medical exactitude that fibers from a 22 particular defendant's asbestos-containing products were those, or among those, that actually began the cellular process of malignancy. [Id. at 958 (emphasis 23 added).] 24 Plaintiffs will meet this burden under Rutherford by proving that the exposures to/from the 25 defendants’ asbestos-containing products/conduct were substantial factors in reasonable 26 medical probability in contributing to the aggregate dose of asbestos inhaled – precisely as 27 required by Rutherford. Plaintiffs will demonstrate that exposure to the defendants’ 28 asbestos-containing products was a “substantial factor” in contributing to the aggregate dose of K:\Injured\26244\TRIAL\mil prox.wpd 3 JPN PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE 1 asbestos inhaled and thus to the risk of developing asbestos-related disease – a disease which is 2 cumulative in nature. 3 The Supreme Court in its decision in Rutherford warned of defendants’ efforts to twist 4 the meaning of the word ‘substantial’: 5 Undue emphasis should not be placed on the term ‘substantial.’ For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than 6 the ‘but for’ test, has been invoked by defendants whose conduct is clearly a "but for" cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the 7 injury. (Prosser & Keeton on Torts 5th ed., 1988 supp. § 41, pp. 43-44.) Misused in this way, the substantial factor test ‘undermines the principles of comparative negligence, 8 under which a party is responsible for his or her share of negligence and the harm caused thereby.’ (Mitchell) [Id. at 969.] (Emphasis added.) 9 10 While a “trivial” exposure cannot be considered “substantial” for the purposes of 11 Rutherford, an exposure does not become “trivial” merely because it is small or another 12 exposure is greater. The law recognizes that there are different degrees of responsibility. That 13 is why California adopted the doctrine of comparative negligence. (See Li v. Yellow Cab 14 (1975) 13 Cal.3d 804.) 15 In Hernandez, the Court of Appeal rejected the same assertions about causation from 16 Amcord that defendants make here in our case. Amcord argued, as do our defendants, that its 17 asbestos product/exposure was different, special, and safe, and that plaintiffs failed to show 18 exposure of a sufficient quantity, duration, and frequency to its particular product. The 19 Hernandez court rejected this assertion, and in addition to repeating the language of Rutherford, 20 the Hernandez court held, “notably, the Rutherford court made no distinction between general 21 causation and specific causation.” (Id. at 670, fn 4.) The court further held: 22 ...appellant set forth sufficient evidence of causation in this matter: ...some threshold exposure to Riverside gun plastic cement; and .....in reasonable medical probability that 23 the exposure to Riverside gun plastic cement was a "legal cause" of Mr. Hernandez's injury, i.e., a substantial factor in bringing about the injury. ....in reasonable medical 24 probability it was a substantial factor contributing to Mr. Hernandez's risk of developing cancer. (Rutherford, supra)... 25 We find that appellant met this standard. As to the first requirement that appellant show 26 a threshold exposure to Riverside gun plastic cement, Mr. Hernandez's brother's testimony was sufficient.... Alfredo worked with decedent for 10 to 12 years, starting in 27 1969. They did not constantly work together; they worked apart during the week but worked together on the weekends to earn extra money. During this time period, 28 Mr. Hernandez used Riverside gun plastic cement "a lot of times," or "all the time." K:\Injured\26244\TRIAL\mil prox.wpd 4 JPN PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE 1 ...Mr. Hernandez would cut the bag in the middle, which created visible dust around his face and clothing. Mr. Hernandez would then dump the bag of Riverside gun plastic 2 cement into a mixer, which also created "a little bit" more dust that got on his face and clothing. 3 This testimony meets the threshold requirement of exposure to the respondent's 4 product.... 5 Dr. Kradin gave his professional opinion that there was a direct connection between Mr. Hernandez's work history and his illness: "'It is my opinion, to a reasonable degree 6 of medical probability, that [the decedent's] malignant mesothelioma was caused by asbestos.'"... 7 We disagree with the trial court's view that Rutherford mandates that a medical doctor 8 must expressly link together the evidence of substantial factor causation. The Rutherford court did not create a requirement that specific words must be recited by 9 appellant's expert. (See also Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12 ["'No recitation of "specific words or phrases mirroring statutory language" is necessary to 10 establish causation'"].)... 11 In addition, appellant presented expert testimony from an epidemiologist suggesting that if an individual is exposed to many different asbestos-containing products, 12 each of those products would contribute to an increased risk of asbestos-related disease, as long as the asbestos was inhaled and retained in the worker's body. And 13 finally, appellant presented expert testimony that Mr. Hernandez's illness was caused by asbestos to a reasonable degree of medical probability. 14 15 (Id. at 674-675, emphasis added.) Hernandez directly rebuts defendants’ assertion that plaintiffs 16 must somehow show that a specific quantified amount of a particular defendant’s particular type 17 of asbestos was sufficient to cause disease. Hernandez and Rutherford are in exact accord with 18 plaintiffs’ position: For someone who gets a clinical asbestos-related disease, accounting 19 for minimum latency, for biologic response to obtain all prior exposures that comprise 20 that person’s (not anyone else’s) total dose is what caused that response in him or her. 21 And, as Hernandez explains: 22 It is then up to the jury to determine whether that testimony is persuasive and, if so, to what extent this defendant's product, rather than the other asbestos-containing products 23 to which the plaintiff (or decedent) was exposed, was a factor contributing to the disease. There need not be testimony specifically linking the defendant's product in 24 isolation to the plaintiff's increased risk of developing cancer. (Id. 674-675.) 25 Dated: 12/28/21 BRAYTON˜PURCELL LLP 26 27 By: /s/ James P. Nevin James P. Nevin 28 Attorneys for Plaintiffs K:\Injured\26244\TRIAL\mil prox.wpd 5 JPN PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE 1 PROOF OF SERVICE BY FILE & SERVEXPRESS 2 I am employed in the County of Marin, State of California. I am over the age of 18 years and am not a party to the within action. My business address is 222 Rush Landing Road, 3 P.O. Box 6169, Novato, California, 94948-6169. 4 On December 28, 2021, I electronically served (E-Service) the following documents: 5 PLAINTIFF’S MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE 6 7 on the interested parties in this action by causing File & ServeXpress E-service program to transmit a true copy thereof to the following party(ies): 8 9 SEE ATTACHED SERVICE LIST 10 11 The above document was transmitted by File & ServeXpress E-Service and the transmission was reported as complete and without error. 12 Executed on December 28, 2021, at Santa Rosa, California. 13 14 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 15 16 A 17 18 ___________________________ Angela Porterfield 19 20 21 22 23 24 25 26 Carol Chulick, et al. v. Riley Power Inc., et al. San Francisco Superior Court Case No. CGC-19-276757 27 28 K:\Injured\26244\TRIAL\mil prox.wpd 6 JPN PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE Brayton-Purcell Service List Date Created: 12/27/2021 01:33 PM Matter Numbers: 26244.006-Carol Louise Chulick Run by: Angela Porterfield Foley & Mansfield PLLP - Walnut Goldberg Segalla LLP - San Francisco Hawkins Parnell & Young LLP - San Creek, CA 611 Gateway Blvd., Suite 120 Francisco, CA 2185 N. California Blvd., Suite 575 San Francisco, CA 94080 1 Post Street, Suite 2400 Walnut Creek, CA 94596 415-435-6600 415-432-6601 (fax) San Francisco, CA 94104-5203 510-590-9500 510-590-9595 (fax) Defendants 415-766-3200 415-766-3250 (fax) Defendants Cosco Fire Protection, Inc. (COSFIR) Defendants Columbia Mechanical Contractors, Inc. Frank Bonetti Plumbing, Inc. (FBONET) (CMCSF) Marconi Plastering Company, Inc. Marconi Plastering Company, Inc. (MARCON) (MARCON) Husch Blackwell LLP - Oakland Imai, Tadlock, Keeney & Cordery, LLP Lewis Brisbois Bisgaard & Smith, LLP - 1999 Harrison St., Suite 700 The Mills Building San Francisco Oakland, CA 94612 220 Montgomery Street, Suite 301 333 Bush St. Suite 1100 510-768-0650 510-768-0651 (fax) San Francisco, CA 94104 San Francisco, CA 94104 Defendants 415-260-4595 415-329-2244 (fax) 415-362-2580 415-434-0882 (fax) Twin City Fire Insurance Company, as an Defendants Defendants Insurer of Buttner Corp., a Dissolved Monterey Mechanical Co. (MONMC) Cooper Bros., Inc. (COOPBI) California Corporation (TWIBUT) Morgan, Lewis & Bockius LLP - San Selman Breitman, LLP Sinunu Bruni LLP Francisco, CA 33 New Montgomery, 6th Floor 333 Pine Street, Suite 400 One Market, Spear Street Tower San Francisco, CA 94105 San Francisco, CA 94104 San Francisco, CA 94105-1126 415-979-0400 415-979-2099 (fax) 415-362-9700 415-362-9707 (fax) 415-442-1000 415-442-1001 (fax) Defendants Defendants Defendants Associated Insulation of California Rosendin Electric, Inc. (ROSEEL) Johnson Controls, Inc. (JOHCON) (ASSOC) Scott Co. of California (SCOTT) Spanos Przetak WFBM, LLP - San Francisco, CA 475 14th Street, Suite 550 One Sansome Street, Suite 1800 Oakland, CA 94612 San Francisco, CA 94104 510-250-0200 510-380-6354 (fax) 415-781-7072 415-391-6258 (fax) Defendants Defendants Spanos Przetak (SPAPRZ) D. Zelinsky & Sons, Incorporated (ZELINS) FDCC California, Inc. (FDCCCA) Geo. H. Wilson, Inc. (GEOHWL) Page 1 of 1