Motion,Ex Parte: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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CARROLL, BURDICK &

McDonouGH ELP
Acrronees xt LAW
SAN FRANCISCO

Garrett Sanderson II, Bar No. 131026
gsanderson@cbmlaw.com
Peter H. Cruz, Bar No. 220850

ELECTRONICALLY

peruz@cbmlaw.com - FILED
CARROLL, BURDICK & McDONOUGH LLP Superior Court of California,
Attorneys at Law County of San Francisco

44 Montgomery Street, Suite 400
San Francisco, California 94104
Telephone: 415.989.5900
Facsimile: 415.989.0932

Attorneys for Defendant Volkswagen Group of
America, Inc,

JUN 24 2014

Clerk of the Court ©
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

HAROLD KOBPKE and NANCY KARIDIS-
KOEPKE,
Plaintiffs,

v.
FORD MOTOR COMPANY, et al.,
Defendants.

(CBM-SFISF630992-1

Case No. CGC-13-276217

DEFENDANT VOLKSWAGEN GROUP OF
AMERICA, INC.’s MOTION IN LIMINE NO. 7
TO EXCLUDE TESTIMONY OF DaviID
EcILMAN, M.D.

Date: June 24, 2014

Time: = 3:30 P.m.

Dept.: 624

Action Filed: December 3, 2013
Trial Date: June 24, 2014

Case No. CGC-13-276217

VVWG0A’S MOTION IN LIMINE NO. 7 TO EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.1 TABLE OF CONTENTS

2

3} INTRODUCTION..

4 || ARGUMENT uu. .scscecssccsecsescesscssenscasscsscnsecssessssucsnessevecassucsussuessssseassuscssavcsacsuscssessacarsenssnessaveenes 2

SUT. DR. EGILMAN’S PRIOR ACTIONS REGARDING COURT ORDERS ILLUSTRATES

THE EXTENT TO WHICH HE EXCEEDS HIS PROPER ROLE AS A TESTIFYING

6 EXPERT, oss ssecssssssessssesssensvessnssssssssecssessuesssessssnsesuesseesnessusssassuecsacescessseseeseesasesesssseesssases 3

7 A. The Colorado Ballinger Case ..s.csssesssesesssunserstssssneccssersssnsssstssessssssssessssnseesssseesuiees 3

8 B. The Federal Court Zyprexa Matter

9 Cc. Dr. Egilman’s Violation of a California Protective Order .....cccccccssssseccssssceesesseeeees 10
10 “ D, Dr. Egilman’s Exclusion in Washington and Attempted Appeal... ll

11]/I. DR. EGILMAN’s OPINIONS SHOULD BE EXCLUDED BECAUSE THEY ARE NoT
THE PROPER SUBJECT OF EXPERT TESTIMONY, ARE NOT SCIENTIFICALLY
12 VALID, AND WILL NOT ASSIST THE JURY. ..ssssesssssesessssscssssssscsssusesssssnsteccsssssvecessssveses 11

13 A. Contrary to California Law, Dr. Egilman’s Medical Causation Opinion Is
Unscientific and Cumulative.

14
B. Dr. Egilman is Not Qualified to Render Industrial Hygiene and Warnings
15 Testimony. ..cssesssescssecssseesssnscssreessecsucssarecsusecsressescsnsccssecstsesssuvssucessnscerssersnuecennecssavesse 14
16 Cc. Dr. Egilman’s “State-of-the-art” Testimony Consists of Speculative
Advocacy Testimony Outside His Expertise........cssccccssssesssesssescsssescssseecsecssseeecesneees 15
17
1. Dr. Egilman’s Asbestos History Ignores Dose and the Extreme
18 Differences in Occupations and Products Involved. vce ld
19 2. Dr. Egilman Intends to Testify Improperly as to Corporate Intent
and Culpability. .
20
3. Dr. Egilman Inappropriately Reinterprets and Utilizes Corporate
21 Documents in the Guise of Expert Testimony. ........cccsccscssssssssecssscesneessueees 21
22 4. Dr. Egilman Draws False and Highly Speculative Conclusions to
~ Reach His “Bad Company” Conclusions. .....ccccccccssssssssscssesessesesssecsssecsssseoes 22
23
CONCLUSION 25
24
25
26
27
28
Cer Rune & CBM-SEISF630992-1 -i- Case No. CGC-13-276217
“Astoantys at Law VVWGOA’S MOTION IN LIMINE NO. 7 TO EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.

SAN FRANCISCO28

CARROLL, BURDICK &

McDonouors LLP
Arto ar Law
‘SAN FRANCISCO

TABLE OF AUTHORITIES
Page(s)

Cases
Aventis Envtl. Sci. USA LP y. Scotts Co., .

383 F. Supp. 2d 488 (S.D.N.Y. 2005) ...cseesssssssscsssesoveessneesassscsssssssneesseseasessssuesesseesessssavesees 19
Ballinger v. Brush Wellman, Inc.,

No, 96-CV-2532 (Colo. D. Ct., May 30, 2001) eaaaesassseesesussrsssesarerabaneseesaccesvensneesetesee passim
Conde v. Velsicol Chem. Corp.,

804 F, Supp. 972 (S.D. Ohio 1992),..esscccsssssssseessrossstecsecssnsersessnesssusesnesssesesssesseaneessseessessests 20
Daubert v. Merrell Dow Pharm, Inc.

509 U.S. 579 (1983)...

Egilman v. ConAgra Foods, Inc.,
$33 S. Cf. 1583 (2013) ecccccsssecssessssesssnscessncssvscssussssectsuresnsssareessessseessnecsseessaeessseessssessseets il

Egilman v. ConAgra Foods, Inc.,
493 F, App’x 862 (Oth Cit. 2012)..ecccssssssssssssscssssecssessssrecsessssecssecssssesseessssessssecessussssneesses i

Egilman v. District Court,
2002 WL 2027530 (Colo. Ct. App., Sept 5, 2002)

Egilman v. Keller & Heckman, LLP.,
401 F. Supp. 2d 105 (D.D.C. 2005) ..essssessssessssecresssevessviecsuessssessaseesessssecsssvecsssvacssvessseceee 3,5

General Electric Co. y. Joiner,
522 U.S. 136 (1997) ecssosscssssesssssserecssessesscssencsssseessssvecssnteesssusscsssasscssssesssseseseesssssersssnneeeseeee 22

Hangarter v. Provident Life. & Accident Ins. Co.,
373 F.3d 998 (9th Cir, 2004)... ccccscscssseccsssseecccuecessnseccssuteesssssasessssscssssucsssarsssessnvunscesseveeeseeee 22

Inre Air Crash Disaster at Detroit Metro. Airport,
737 F. Supp. 427 (E.D. Mich. 1989)

dn re Air Crash Disaster at New Orleans,
795 F.2d. 1230 (Sth Cit, 1986) .ccccseccssscssssrsscsssssseescesssneveeseesssenstssnscesssssuuevssscesssevanevecreseeses 20

Inre Diet Drugs Prod. Liab. Litig.,
2000 WL 876900 (E.D. Pa, Fume 20, 2000) ....sseccccsssesesssesesssessssseessssssusessesssssnsesuvereeseees 19

In re Lockheed Litig. Cases,
115 Cal. App. 4th 558 (2004)

Inre Rezulin Prod. Liab. Litig.,
309 F. Supp. 2d 531 (S.D.N.Y. 2004)..

Inre Trasylol Prod. Liab. Litig.,
709 F. Supp. 2d 1323 (S.D. Fla, 2010)...cecccsssssssessssssesscssuessccesnssnuesesessssssveeesesersesessesueess 20

CBMSASFO30592-1  Dr. Egilman only “regrets” that his misconduct can be used “to attempt to discredit”

him, and his own conduct is self-discrediting.
Cc Dr. Egilman’s Violation of a California Protective Order
Dr. Egilman has also violated court confidentiality orders issued by Alameda County
Superior Court regarding Caterpillar. In 2008, Caterpillar discovered that Dr. Egilman had posted
documents on his public website that had been produced under a confidentiality orders in two
asbestos matters, one in Illinois and one in New York. The documents had a large watermark
stating:
“CONFIDENTIAL - THIS DOCUMENT IS PROPERTY OF
CATERPILLAR INC, AND IS COVERED BY A
PROTECTIVE ORDER IN THE FOLLOWING CASE [CASE
CAPTION]. ANYONE HAVING POSSESSION OF TIDS
DOCUMENT MUST NOT DUPLICATE, TRANSFER, OR
DISCLOSE THE CONTENTS OF THIS DOCUMENT

EXCEPT WITHIN THE LIMITED CONTEXT OF THE
PROTECTIVE ORDER.”

Dr. Egilman ignored this instruction, despite his recent issues with Judge Weinstein.
Caterpillar succeeded in having the documents removed from the website only by writing a letter
to the plaintiff counsel ~ from the same Jaw firm that filed the instant case — responsible for the
two matters.” :

Dr. Egilman’s explanation of his Zyprexa troubles, posted in a commentary, sums up the
reason he poses a risk to any court in which he testifies:

I refuse to silence my voice on the dangerous effects of corporate
secrecy. History has demonstrated time and time again that such
silence brings nothing but harm .... When I graduated from medical
school, I took an oath to protect the public health. That oath

supersedes all other agreements, including those that prevent me
Srom protecting public health by releasing information. For public

25 “None of the three co-conspirators, [the journalist], Egilman, and [the Alaskan lawyer], sought a
lifting or modification of the protective order, despite the declassification procedures provided in
paragraph 9 of the CMO-3.” (In re Zyprexa Injunction, supra, 474 F. Supp. 2d at 392 [Exhibit
G].)

6 See Exhibit Q.

CBM-SISE630992-1 -10- Case No. CGC-13-276217
VVWGOA’s MOTION IN LIMINE NO. 7 TO EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.oS CID HW BRB WwW wD we

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health, the sound of silence is the funeral dirge. I have not and will
never play that tune.”

To be sure, Dr. Egilman’s claim to be a hero of the truth rings hollow since he historically
has made “selective and out-of-context disclosures” about defendants.”* More critical for this
motion is his utter disregard for authority, which is a direct threat to this Court and to the rule of
law. Dr. Egilman, pursuing his agenda, will exceed his role and qualifications by injecting, ifhe
can, unfounded testimony of defense conspiracies and misbehavior.

D. Dr. Egilman’s Exclusion in Washington and Attempted Appeal

Three years after Judge Weinstein’s 2007 order, Dr, Egilman’s causation and corporate
behavior testimony were oxeluded in their entirety by a federal district court in Washington under
Daubert due to his unscientific and biased methodology.” The plaintiffs in that case did not
appeal the court’s order, but Dr. Egilman did. In a highly unusual move that reflects his disdain
for the legal process, Dr. Egilman appealed the ruling himself to the Ninth Circuit Court of
Appeals and, in the process, accused the federal court judge of “defaming” him with its Daubert
tuling, The appellate court appropriately rejected the appeal per curiam as lacking jurisdiction.”

Il.
Dr, EGILMAN’S OPINIONS SHOULD BE EXCLUDED BECAUSE THEY ARE NOT THE PROPER
SUBJECT OF EXPERT TESTIMONY, ARE NO? SCIENTIFICALLY VALID, AND WILL NOT ASSIST

Dr. Egilman is not a necessary or appropriate expert in this case. Plaintiffs already have

other medical doctors to testify, so Dr. Egilman’s only potentially legitimate role — medical

|| causation testimony — is not only based on the unscientific any exposure theory, but is also

cumulative. His real purpose is to testify to a “state-of-the-art” re-creation of history based on

27 See Exhibit J.

28 See In re Zyprexa Injunction, supra, 474 F. Supp. 2d at p..425 [Exhibit E]); see also Egilman
Declaration, at {4 1-4 [Exhibit G].

” See Newkirk v. ConAgra Foods, Inc., 727 F. Supp. 2d 1006 (E.D. Wash. 2010) [Exhibit N].

® See Egilman v. ConAgra Foods, Inc., 493 E. App’x 862 (9th Cir, 2012) (unpublished) [Exhibit

Oj]. Dr. Egilman eventually petitioned for a writ of certiorari to the United States Supreme Court,
which was also denied. (Egilman v. ConAgra Foods, Inc., 133 S. Ct. 1583 (2013) [Exhibit P].)

CBM-SFSF630992-1 -H- Case No. CGC-13-276217
VV WGOA’S MOTION iN LiMiNE NO. 710 EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.So SC DY DHA BF BW Yow

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opinions that are unscientific, beyond the scope of his expertise, and tainted with his agenda. If
this testimony is allowed at all, it should be considerably restricted.

A. Contrary to California Law, Dr. Egilman’s Medical Causation Opinion Is
Unscientific and Cumulative.

Dr. Egilman, like Plaintiffs’ other medical witnesses, intends to testify that each and every
exposure Mr. Koepke encountered from brake work is a cause of his mesothelioma. Dr.
Egilman’s any exposure theory and refusal to identify a causative dose is the same unscientific
methodology that has been rejected by dozens of courts around the country, including the Supreme
Courts of Texas, Pennsylvania, New York, and Virginia and the Sixth Circuit Court of Appeals.
There is no question that Dr. Egilman is a proponent of the any exposure theory ~- he believes that
even a single brake job would cause mesothelioma.’! By his own admission, he has performed no
assessment of Mr. Koepke’s actual dose from his brake work.>? Dr. Egilman’s medical causation
testimony cannot survive scrutiny under Sargon Enterprises and should be excluded on that
ground alone.

“Under California law, trial courts have a substantial ‘gatekeeping’ responsibility.”
(Sargon Enterprises, supra, 55 Cal. 4th at 769.) Evidence Code sections 801 and 802 provide that
“the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter
of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or (3) speculative.” (id. at 771-772.) The California Supreme
Court has acknowledged that courts will completely prohibit admission of unsupported techniques
“until reasonably certain that the pertinent scientific community no longer views them as

experimental or of dubious validity.” (People v. Leahy, 8 Cal. 4th 587, 594-95 (1994).)

+ See Egilman Dep., Vol. II (Koepke, 6/5/14) at 364:4-23 [Exhibit 8] (no safe dosé or minimal
level to cause mesothelioma); see also Egilman Dep., Vol. Il (Mannahan, 8/6/13) at pp. 201, 215
[Exhibit K] and Egilman Dep., Vol. II (Aannahan, 8/26/13) at p. 86 [Exhibit L] (one or few
brake job(s) enough); see also Egilman Dep., Vol. IV (Mannahan, 8/27/ 13) at p. 169 [Exhibit M]
(no exposure exists that would not increase the risk),

* See Egilman Dep., Vol. Il (Koepke, 6/5/14) at 351:20 ~ 352:4 [Exhibit 8].

CBM-SFSF630992-1 -12- Case No. CGC-13-276217
VV WGOA’s MOTION IN LIMINE NO. 7 TO EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.Oo em WAH BR wD wD um

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Dr. Egilman’s medical causation testimony is also no different from and is thus cumulative
of the testimony to be offered by Drs. Horn, Smith, and Mark, all of whom are also medical
doctors and whom Plaintiffs have presented to offer medical opinions identical to Dr. Egilman’s.
These other experts have already opined that the brake work Mr. Koepke allegedly performed on
Volkswagens (no matter the amount of exposure) was the cause of his disease; Dr. Egilman’s
repetition of that opinion would serve only as improper “piling on.” Trial courts in California
have substantial discretion to exclude evidence if its probative value is substantially outweighed
by considerations of needless presentation of cumulative and prejudicial evidence. (Evid. Code §§
352; 723; South Bay Chevrolet v. General Motors Acceptance Corp., 72 Cal. App. 4th 861 (1999)
[trial court properly excluded testimony of expert whose anticipated testimony was cumulative of
subject matter covered by another expert].) As an occupational medicine specialist, a medical
causation opinion is really the only opinion that Dr. Egilman would be qualified to give; however,
his “every single fiber” opinion, and the absence of reliance evidence or methodology, requires its
exclusion as unscientific and cumulative.

Dr. Egilman also testified in his deposition in this case that he intends to testify to
Mr. Koepke’s and the family’s pain and suffering — prompting his testimony with a series of
inflammatory slides that should be excluded as well” — even though he has never examined,
treated Mr. Koepke and has never had any discussions with Mr. Koepke’s family members.*4
There is no question that mesothelioma patients suffer from symptoms and complications. The
fact that some mesothelioma patients may suffer from certain symptoms or complications has no
bearing on whether Mr. Koepke is suffering from the same symptoms or complications. Only his
actual pain and suffering are relevant. Any testimony from Dr. Egilman regarding the course for a
typical patient or the pain and suffering commonly associated with the progression of
mesothelioma would be irrelevant. Further, since the jury may be confused as to which symptoms

were suffered by Mr. Koepke and which symptoms are suffered by a typical patient, such

%8 See Egilman Dep., Vol. I (Koepke, 6/4/14) at 90:6-11 [Exhibit R]; see also Exhibit T.
» See Egilman Dep., Vol. I (Koepke, 6/4/14) at 217:24-218:10 [Exhibit R];

CBM-SPSP630092-1 -13- Case No. CGC-13-276217
VVWGOA's MOTION WW LiMINE NO. 7 TO EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.oO WDA HW BF Bw LP =

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SAN FRANCISCO

testimony would be inflammatory and highly prejudicial to the Defendants. Accordingly, Dr.
Egilman should be precluded from describing the pain and suffering “commonly associated with”
mesothelioma, and his testimony should be limited to the facts of this case.

B. Dr. Egilman is Not Qualified to Render Industrial Hygiene and Warnings
Testimony.

Plaintiffs’ expert witness disclosure and Dr. Egilman’s deposition testimony demonstrate
that he intends to testify about every subject of expertise conceivably relevant to this trial.
However, he is only qualified as an occupational medicine specialist; he is not an industrial
hygienist, a mechanic, or a mechanical engineer; he has no qualifications to testify about
automotive component design or repair, the uses of asbestos products therein, or the exposures
they may or may not produce; and he is not a warnings expert. Yet as an “all-in-one” expert, Dr.
Egilman will nevertheless atternpt to provide classic industrial hygiene testimony by reinterpreting
and expanding upon Mr. Koepke’s alleged exposures, His opinions in this regard are based in part
on an ex parte, hearsay interview Dr. Egilman conducted with Mr. Koepke, through which Dr.
Egilman testifies to his own version of Mr. Koepke’s exposures rather than the version that Mr.
Koepke provided under oath.* Dr, Egilman will then describe, as if he were a materials scientist
and industrial hygienist, how brakes release many asbestos fibers and that Mr. Koepke would have
received significant exposure from his brake jobs — an opinion Dr. Egilman states without
performing or obtaining any dose assessment.°” His “state-of-the-art” testimony opinions will
include all the warnings that VWGoA and others should have issued regarding brakes dating way
back to the early 1930s.8

>> Dr. Egilman is neither a mechanic nor a degreed epidemiologist (Egilman Dep. Vol. II
(Mannahan, 8/6/13) at pp. 111-112, 123 [Exhibit K]), and he is not an industrial hygienist, a
toxicologist, nor an engineer. (Egilman Dep. Vol. Il (Koepke, 6/5/14) at 268:19-21, 273:5-15
[Exhibit S].) Further, he concedes that he has never created a product warning that was actually
used on any product. (Egilman Dep. Vol. II (Koepke, 6/5/14) at 278:22-25 [Exhibit S].) Thus, he

is utterly lacking in experience in creating warnings.

3° See Egilman Dep. Vol. I (Koepke, 6/4/14) at 134:4 ~ 136:6 [Exhibit R].
37 See Egilman Dep. Vol. II (Koepke, 6/5/14) at 351:20 — 352:4 [Exhibit S].
*8 See Egilman Dep. Vol. Il (Koepke, 6/5/14) at 406:1 — 413:3 [Exhibit S].

CBM-SFISF630992+1 -14- Case No. CGC-13-276217
VVWG0A"S MOTION IN LIMINE NO. 7 TO EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.Oo we DW DH BF WwW &

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SAN FRANCISCO.

An expert must be qualified to testify before offering opinions; otherwise the opinions are
without foundation and not helpful to the jury. Evidence Code section 801 specifically provides
that the expert must have some “special knowledge, skill, experience, training, and education” that
“would assist the trier of fact”? “All-in-one-basket” testimony by a single expert is not permitted
by this rule. Dr. Egilman should not be permitted to provide a restatement of Mr. Koepke’s
exposures inconsistent with Mr. Koepke’s own testimony; any opinions about the nature of the
automotive equipment with which Mr. Koepke worked; or any opinions about fiber release or
exposures from Mr. Koepke’s work.

c. Dr. Egilman’s “State-of-the-art” Testimony Consists of Speculative Advocacy
Testimony Outside His Expertise. -

Dr. Egilman is primarily being presented here as a “state-of-the-art” expert to testify as to
asbestos history and VWGoA’s purported role in it. During this testimony, Dr. Egilman will

launch into a prolonged attack on VWGoA making the same accusation he made against dozens of

other corporations of conspiracy, silence, corruption, and manipulation.” He does this by a series

of speculative and illogical methodologies whose purpose is not to inform but to mislead the jury.
Ultimately, his testimony consists of a series of impermissible “opinions” about the intent and
legal culpability of defendants, all of which invades the province of the jury.

There are multiple grounds for excluding this kind of testimony: he ignores differences in
occupations and doses in his revisionist history; he utilizes highly speculative leaps in logic and

evidence; and he invades the province of the jury. Each of these is discussed briefly below.

® See also Whiting v. Boston Edison Co., 891 F. Supp. 12, 24 (D. Mass. 1995) [“[A] witness must
be qualified in the specific subject for which his testimony is offered. Just as a lawyer is not by
general education and experience qualified to give an expert opinion on every subject of the law,
so too a scientist or medical doctor is not presumed to have expert knowledge about every
conceivable scientific principle or disease.”].

*° Dr. Egilman’s resume [Exhibit U] consists mostly of articles attacking various industries as
engaged in conspiracies, manipulating science, and hiding information, He will bring the same
mindset and bias to court if he is allowed to do so.

CBM-SPISF630992-1 ~15- Case No. CGC-13-276217
VVWGOA’S MOTION IW LIMINE NO. 7 TO EXCLUDE TESTIMONY OF DAVID EGILMAN, M.D.1. Dr. Egilman’s Asbestos History Ignores Dose and the Extreme
Differences in Occupations and Products Involved.

Any “state-of-the-art” testimony must address not only the level of knowledge at a given
point in time regarding the hazard posed by asbestos in the abstract, but also must address what a
specific defendant in a specific industry would have known at a given point in time regarding the
risk posed by the specific nature of potential asbestos exposure from the product and fiber type
involved. These industries must be similarly situated to the work of the plaintiff for the testimony

to be relevant. Without this context, “state-of-the-art” testimony is meaningless and irrelevant.

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Dr, Egilman does not do this. Instead, he encourages the jury to believe that any

knowledge about the dangers of asbestos in earlier decades, regardless of occupation or dose,

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should have informed all users of asbestos to stop using any amounts of the material in any kind

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of product. Dr, Egilman does not by any stretch fairly assess the medical and historical

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literature, review the many corporate documents produced in the case, or render an objective

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opinion on how VWGoA complied with existing health standards of the time. If he did, as

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VWGoA’s experts will explain at trial, Dr. Egilman would have to admit that, throughout most of

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the 20th Century, the medical and scientific communities were concerned only with what today

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would be considered quite high exposure levels (above five million particles per cubic foot) found

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typically in the “dusty trades” industries and asbestos factories. Potential risks of disease from

brake repair work did not even become a subject of discussion until the mid-1970s, and even then,

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no scientific literature had ever documented increased incidence of mesotheliomas in mechanic

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populations.” Dr. Egilman would also have to admit that the potential dose involved in brake

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work is orders of magnitude lower than that in the dusty trades, and that even today more than

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“' See Egilman Dep. Vol. II (Koepke, 6/5/14) at 406:1 - 413:3 [Exhibit S].

© See Paustenbach, et al., Environmental and Occupational Health Hazards Associated with the
Presence of Asbestos in Brake Linings and Pads (1900 to Present): A “State-of -the-Art" Review
28 || (2004) 7 J. Toxicology & Env. Health 33 [Exhibit V].

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seventeen epidemiology studies of mechanics have not found any consistent increased incidence
of mesothelioma in mechanics.”

Dr. Egilman instead creates his own version of this history under which companies that
used brakes in their products failed their workers and customers by not warning about asbestos
decades before work with brakes was ever cited as a concern. He derives this opinion by using
historical documents from entirely different industries and exposures, not similarly situated to Mr.
Koepke (e.g., 1930s or 1940s documents warning that asbestos might cause asbestosis in asbestos
factory workers) to tell the jury that VWGoA should not have used asbestos-containing brake
pads.4

This testimony, like the any exposure causation opinion, ignores entirely the most
fundamental principle of toxicology — that the dose is a critical element in assessing the risk of
disease in the workplace.*> Concerns expressed over intense exposures in asbestos factories in the
early 1900s, 1920s, or 1950s, or shipyards or insulators in the 1960s, had nothing in common with
the much lower potential exposures from working with brake pads, The “state-of-the-art history
for brake mechanics is not the same as that for persons working in shipyards or asbestos factoties.

Dr. Egilman’s contrary approach relieves him of the necessity of actually investigating the specific

+ See Paustenbach, et al., An Evaluation of the Historical Exposures of Mechanics to Asbestos in
Brake Dust (2003) 18 App. Occup. & Env. Hyg. 786-804 [Exhibit W] [average lifetime mechanic
exposures calculated at 0.04 f/ec or less}; see also Finley, et al., Cumulative Asbestos Exposure for
us Automobile Mechanics Involved in Brake Repair (Circa 1950s-2000) (2007) J. Expo. Sci. &
Env. Epidemiol. 1-12 [Exhibit X]. The epidemiology studies through 2003 are summarized and
discussed in Laden, Lung Cancer and Mesothelioma Among Male Automobile Mechanics: A
Review (2004) 19 Rev. Env. Health 39 [Exhibit Y], and Goodman, Mesothelioma and Lung
Cancer Among Motor Vehicle Mechanics: a Meta-analysis (2004) 48 Ann, Occup. Hyg. 309
[Exhibit Z].

See Egilman Dep. Vol. II (Koepke, 6/5/14) at 406:1 — 413:3 [Exhibit S].

4% See Federal Judicial Center, Reference Manual on Scientific Evidence, Reference Guide on
Toxicology (3d ed. 2011) 636 [Exhibit AA]. In fact, “[d]ose is the single most important factor to
consider in evaluating whether an alleged exposure caused a specific adverse effect.” (See Eaton,
Scientific Judgment and Toxic Torts—A Primer In Toxicology For Judges and Lawyers (2003) 12
J. L. & Policy 5, 11 [Exhibit BB].) A scientific consideration of dose differential is no less
critical in “state-of-the-art” testimony attempting to compare one industry to another and define
when warnings and other precautions would have been appropriate.

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facts of the case in which he testifies or understanding the potential exposure and dose scenarios
for the product at issue — such an unscientific approach that results in inadmissible testimony.

Dr. Egilman’s “state-of-the-art” testimony is merely his interpretation of history and
should be excluded because he is not qualified to render such an opinion, it fails Sargon
Enterprises, it is inherently unreliable, and it will serve only to mislead the jury.

2. Dr. Egilman Intends to Testify Improperly as to Corporate Intent and
Culpability.

Dr. Egilman’s central thesis is the same as that found in most of his writings,” ie,, that
VWGoA and the other defendants in this case should have known about the hazards associated
with asbestos since at least early 1900s and allegedly either did nothing to protect the users of their
products or to convey supposed “hazard” information to end users or mechanics.*” These
speculative opinions are improper “intent” testimony that invades the province of the jury and
serves only as an illicit summary of plaintiffs’ counsel’s evidence of the case. “[Opinions] ... on
the intent, motives or states of mind of corporations .., have no basis in any relevant body of
knowledge or expertise” and “[i]nferences about the intent or motive of parties or others lie
outside the bounds of expert testimony,” even if the putative expert published an article on the
litigant’s motives. (In re Rezulin Prod. Liab. Litig., 309 F. Supp, 2d 531, 546-47 (S.D.N.Y.
2004).) :

To illustrate, in the diet drug litigation, two experts who attempted to opine on corporate
intent were prevented from doing so:

The witnesses are qualified in particular scientific disciplines. These
disciplines do not include knowledge or even experience in the
manner in which corporations and the pharmaceutical marketplace
react, behave or think regarding their nonscientific goals of
maintaining a profit-making organization that is subject to rules,

regulations, standards, customs and practices among competitors
and influenced by shareholders or public opinion.

‘8 See Exhibit U.
“’ See Egilman Dep. Vol. II (Koepke, 6/5/14) at 406:1 —413:3 [Exhibit S].

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Un re Diet Drugs Prod. Liab. Litig., 2000 WL 876900 at *9 (E.D. Pa. June 20, 2000).) Testimony
regarding a corporation’s motives or intentions -- or those of any party, for that matter — is not a
proper subject of expert testimony, because such testimony invades the province of the jury to
interpret and weigh the evidence. (Sargon Enterprises, supra, at p. 770; see also Aventis Envtl.
Sci, USA LP v. Scotts Co., 383 F. Supp. 2d 488, 516.(S.D.N.Y. 2005) [expert testimony about “the
state of mind of the Defendants, should be limited because such testimony is within the
capabilities of an average juror and not a proper subject of expert testimony”); see also Salas v.
Carpenter, 980 F.2d 299, 305 (Sth Cir. 1992) [an expert witness is in no better position than a
juror to conclude whether defendant’s actions demonstrated “conscious disregard” or “deliberate
indifference” to rights of plaintiff and that testimony was, therefore, inadmissible}; 4-702
Weinstein’s Federal Evidence (2d ed. 2006) § 702.03[3] [“[e]xperts may not opine on issues that
are committed exclusively to the [finder] of fact” and that determinations of a party’s state of mind
are “committed exclusively [to] the [finder] of fact.”].)

Dr. Egilman’s deposition testimony establishes that he will use snippets of documents to
testify as to the improper motives and actions of VWGoA - a company he knows virtually nothing
about. This is classic “advocacy” testimony that many courts have held is impermissible from an
expert. Under California law, trial judges act as gatekeepers overseeing the admission of
experts.** In carrying out this role, courts must recognize that expert witnesses have the potential
to be “both powerful and quite misleading.” (Daubert, supra, 509 U.S. at p. 595.) Dr. Egilman’s
decision to depart from science and become an anti-corporate advocate demonstrates that he has
also departed from the ranks of objective expert witnesses.

Facing similar situations, courts have routinely held that “where an expert becomes an
advocate for a cause, he therefore departs from the ranks of an objective expert witnegs, and any

resulting testimony would be unfairly prejudicial and misleading,” (Viterbo v. Dow Chem. Co.,

“8 The United States Supreme Court found that the trial judge is the gatekeeper with responsibility
to “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the
task at hand.” (Daubert v, Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1983); Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 141 (1999).) Sargon Enterprises, supra, 55 Cal. 4th 747, endorses
the trial judge’s gatekeeping role in California.

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646 F. Supp. 1420, 1425-26 (E.D. Tex. 1986); Jn re Trasylol Prod. Liab. Litig., 709 F. Supp. 2d
1323, 1346-1347 (S.D. Fla. 2010) [expert was acting as a plaintiffs’ advocate rather than an
expert, and therefore her testimony would not assist the trier of fact]; RLC Indus. Co. v. IRS, 98
T.C. 457, 487 n.24 (1992) [“It seems that the parties have lost sight of the purpose that expert
witnesses serve. Expert witnesses are not to be provided for the purpose of convincing the judge
or trier of fact of an advocated position. Expert witnesses’ sole purpose is to assist the trier of fact
to understand the evidence.”]; Jn re Air Crash Disaster at New Orleans, 795 F.2d. 1230, 1233 (5th
Cir. 1986) [“[T]rial courts must be wary lest the expert become nothing more than an advocate of
policy before the jury.”]; Se/vidge v. United States, 160 F.R.D. 153, 156 (D. Kan. 1995) (“An
expert witness should never become one party’s expert advocate. An expert witness should be an
advocate of the truth with testimony to help the court and the jury reach the ultimate truth in a
case, which should be the basis of any verdict.”].):

A critical factor in these cases is whether “the experts had preconceived notions before the
litigation commenced.” (United States v. Kelley, 6 F. Supp. 2d 1168, 1183 (D. Kan. 1998); Conde
v. Velsicol Chem. Corp., 804 F. Supp. 972, 984 (S.D, Ohio 1992) [acknowledging that cases
barring testimony of expert witnesses acting as advocates “turn[ed], at least in part, on the fact that
the experts had preconceived notions before the litigation commenced.”}.) Indeed, one court
refused to accept the expert opinion of a medical doctor regarding the viability of a fetus because
he was an “ardent supporter and a leader of the Right to Life Movement.” (Jn re Air Crash
Disaster at Detroit Metro. Airport, 737 F. Supp. 427, 430 (E.D. Mich. 1989).) Because the doctor
was an advocate for the plaintiff's cause, the court held that expert opinion “cannot be accepted as
objective” and excluded his testimony on the ground that it was unfairly prejudicial and
misleading. (/d.)

All such opinions offered by Dr. Egilman about what VWGoA knew or intended, or
regarding its culpability or negligence, should be excluded as outside the bounds of proper expert

opinion.

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3. Dr. Egilman Inappropriately Reinterprets and Utilizes Corporate
Documents in the Guise of Expert Testimony.

Dr. Egilman relies on PowerPoint slides to prompt his testimony regarding public or
corporate documents that require no medical or other expertise to interpret or understand. Instead,
Dr. Egilman spins them to serve his purposes. The slides are, for all practical purposes, an
aitorney’s closing slides. Dr. Egilman also attempts to mislead juries by pulling only selected
quotes from particular corporate documents — usually the ones handed to him by plaintiffs’
attorneys — and ignoring all the other documents arid testimony because they often directly
contradict his opinions. This is the same approach he used when he released only the Eli Lilly
documents in the Zyprexa matter that supported his view, a practice to which he was forced to
admit in his declaration.

The court in Ballinger ruled that “Dr. Egilman is not qualified to give testimony on the
meaning and interpretation of [the defendant’s corporate} documents.”“’ The court also cited
Dr. Egilman’s lack of expertise when it prohibited him from offering scientifically unreliable
testimony about the existence of a conspiracy, because “the existence or formation of a conspiracy
is not ordinarily a recognized field of expertise.”*° The court specifically “reject[ed] the argument
that it would be useful to the jury for Dr. Egilman to tie various aspects of the case together,”

noting that “if that were allowed, the witness would essentially be serving as co-counsel for a
party.”7!

Dr. Egilman tried to inject corporate intent testimony into the federal court Newkirk
popcorn lung case in Washington, such as: “Opinion: ConAgra knew that exposures from popping
popcorn presented a potential inhalation health hazard and continued selling butter popcorn
flavoring containing diacetyl until 2007. They failed to warn consumers or customers (retailers)

about this risk.” (Newkirk, supra, 727 F. Supp. 2d at pp. 1026-27.) But the court rejected such

* See Findings and Order Concerning Motions in Limine to Exclude Testimony of Certain
Experts, Ballinger v. Brush Wellman, Inc., No. 96-CV-2532 (Colo. D. Ct., June 22, 2001)
(‘Ballinger Exclusion Order”) [Exhibit CC].

59 Ig,
41 Id.

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testimony: “Dr. Egilman also includes legal conclusions throughout his expert report and
affidavits. Yet Dr. Egilman has not presented any credentials to support his qualifications as a
legal expert. Expert testimony is properly excluded where the witness is no more capable than the
fact finder to draw a conclusion.” (Id. at p. 1026 [emphasis added]; see also Nationwide Transp.
Fin. v. Cass Info. Sys., 523 F.3d 1051, 1058 (9th Cir. 2008) [“*[A]n expert witness cannot give an
opinion as to her legal conclusion, i.c., an opinion on an ultimate issue of law.’”; quoting
Hangarter v. Provident Life & Accident Ins, Co., 373 F.3d 998, 1016 (9th Cir. 2004)].) Dr.
Egilman’s attempts to offer opinions not supported by the data received particular court attention:

Dr. Egilman provides no indication of external support for his conclusions. In other parts
of his reports and testimony, Dr. Egilman relies on existing data, mostly in the form of published
studies, but draws conclusions far beyond what the study authors concluded, or Dr. Egilman
manipulates the data from those studies to reach misleading conclusions of his own.” Newkirk,
supra, at 1018.) The court held that “[t}he bulk of Dr. Egilman’s conclusions do not rise above
“subjective belief or unsupported speculation.” (Id. at 1029 [citing General Electric Co. v. Joiner,
522 U.S. 136 (1997)].)

4, Dr. Egilman Draws False and Highly Speculative Conclusions to Reach
His “Bad Company” Conclusions.

Dr. Egilman has no “inside knowledge” that would render him either knowledgeable or
qualified to opine as to VWGoA’s intent. He does not even have any general experience within
corporations and how they make decisions or the factors they include. Dr. Egilman’s claim of
expertise with regard to the automotive industry is based solely review of a handful of documents
about companies other than VWGoA and not on any considered investigation of VWGoaA history,
products, or exposures.” Dr. Egilman conceded he had never repaired a Volkswagen vehicle,”

never performed or observed brake work on automobiles,™ and has never conducted air sampling

» See Egilman Dep. Vol. Il (Koepke, 6/5/14) at 406:1 ~ 413:3 [Exhibit S].
> See Egilman Dep. Vol. I (Koepke, 6/4/14) at 238:4-6 [Exhibit R].
* See Egilman Dep. Vol. I (Koepke, 6/4/14) at 238:7-15 [Exhibit R],

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for asbestos during any brake work.” His testimony goes well beyond the facts of the case and
allowable expert testimony and should be excluded. (Tassin v. Sears, Roebuck & Co., 946 F.
Supp. 1241, 1252-53 (M.D. La. 1996) [excluding expert’s opinions based on his review of some
“5,000 pages of minutes, correspondence and memoranda,” because the jury is capable of
reviewing such documents and reaching conclusions without expert testimony).

Dr. Egilman substitutes for his lack of real understanding of VWGoA’s knowledge by
going to extreme lengths to tie it to the knowledge and activities of a handful of older asbestos
companies so he can tar them all with the same brush. This testimony is completely speculative
and illustrates the extremes of advocacy Dr. Egilman engages in. Here are a few examples:

Imputing other companies’ knowledge to VWGoA: Dr. Egilman opines that “the well-
established knowledge among manufacturers of automotive friction products regarding the health
hazards of asbestos” indicates “that automotive manufacturers knew or should have known by the
early 1960s that asbestos health hazards, including asbestosis and cancer, were a matter of serious
concern,” even though there is no indication that VWGoA was privy to this so-called
knowledge.*’ Dr. Egilman also speculates that VWGoA’s German parent company may have
been part of “an insurance scheme for other brake manufacturers” without any supporting
documentation.** He can only speculate whether VWGoA had the same or similar knowledge of
asserted German “brake manufacturers” and/or their “insurance scheme.” Such testimony should
be excluded.

Imputing knowledge based on newspaper articles: Dr. Egilman pulls articles on asbestos
from numerous papers around the country, and then attributes knowledge of those articles if he can
speculate about a link with any particular company. Indeed, he asserts that a retired VWGoA’s

executive's testimony that VWGoA moved offices from New York to New Jersey in 1964 was

55 See Egilman Dep. Vol. Il (Koepke, 6/5/14) at 268:22 — 269:4 [Exhibit S].

56 «+ E1xpert opinion based on speculation or conjecture is inadmissible.” (Sargon Enterprises,
supra, at p. 770 [quoting In re Lockheed Litig. Cases, 115 Cal. App. 4th 558, 564 (2004)].)

57 See Exhibit DD at pp. 28, 37-28.
58 See Egilman Dep. Vol. I (Koepke, 6/4/14) at 242:8 — 244:23 [Exhibit R].

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“significant” because “a lot of people read ... The New York Times, [and] there were lots of stories
about asbestos, asbestos hazards including brake hazards.”*” He includes numerous articles in this
testimony from which he will impute knowledge with no testimony anyone from the company
ever saw the articles and with no effort to link the articles to brake work. Dr. Egilman’s
imputation of knowledge of the contents of the articles should be excluded unless he can
demonstrate that VWGoA personnel received the materials.

Organizations with no relation to VWGoA: Dr. Egilman ascribes knowledge of the
activities of certain organizations to VWGoA even though there is no evidence it was ever a
member or participated in any of those organizations’ activities. For instance, Dr. Egilman relies

6 without having any information

on “Organizational and Association Minutes and Documents
that VWGoA was a member of the listed organizations or associations.*! Dr. Egilman should not
be allowed to impute knowledge to VWGoA from these or other organizations with which
VWGoA had no affiliation.

Dr. Egilman’s bent in all of this testimony is to show the jury the worst documents or
quotes he has been able to find by combing through historical materials, and then drawing wholly
unsupported “links” from such materials to whichever defendant happens to be at trial. He has no
foundation for this testimony. This testimony is unreliable under Sargon Enterprises, and it is not
scientific at all. It is merely the polemic of a plucker of diversionary documents who is more than

willing to serve as a vehicle for plaintiffs’ counsel’s closing argument in the guise of expert

testimony.”

® See Egilman Dep. Vol. I (Koepke, 6/4/14) at 63:11 - 68:22 [Exhibit R].
% See Exhibit DD at pp.4-5.
5! See Egilman Dep. Vol. I (Koepke, 6/4/14) at 241:12 — 242:7 [Exhibit R].

® An Alameda County Superior Court judge recently found himself “unable to qualify Dr.
Egilman as an expert in ‘the actual knowledge of defendants,’ ‘historical state-of-the-art,’ or
‘corporate knowledge’ without an Evidence Code 402 hearing. [{] In evaluating Dr. Egilman’s
expertise, the court is not inclined to grant Dr. Egilman ‘somewhat greater latitude in sources of
information than might otherwise be the case’ ... [nJor is the court inclined to recognize ‘the
history of medical literature and particularly, asbestos literature’ as a field where one can be an
expert although sister states may have done so.” (Scott v. Allied Packing & Supply, Inc. (Super.

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CONCLUSION

Dr. Egilman’s medical testimony is improper and plaintiffs have no basis for presenting his
unfounded, speculative and misleading testimony about corporate behavior. This expert is not
needed and does not have the qualifications or foundation for much of his testimony. His
testimony should be excluded in its entirety. If he testifies at all, VWGoA requests that the Court
take the following limiting actions in regard to his testimony:

(a) Exclude Dr. Egilman’s medical causation testimony as based on the inadmissible
any exposure methodology and cumulative of Plaintiffs’ other medical causation experts.

(b) Exclude Dr. Egilman’s testimony on industrial hygiene topics, including opinions
on the type and extent of asbestos in VWGoA ’s products or the degree of exposure associated
with Mr. Koepke’s brake work.

(c) Exclude Dr. Egilman’s testimony on what warnings VWGoA should have issued
and when.

(d) . Limit Dr. Egilman’s “state-of-the-art” testimony by foreclosing opinions on
VWGoA ’s knowledge, intent, negligence, or culpability, or drawing unsupported conclusions
about Volkswagen’s knowledge from documents he utilizes.

Dated: June 2 2014 CARROLL, BURDICK & McDONOUGH LLP

dant Volkswagen Group of

Ct. Alameda County, 2012, RG12613671), Minutes of 9/5/12 [Exhibit EF].) While Dr. Egilman’s
deposition testimony in this case already establishes that he lacks qualifications to testify in these
areas and should be excluded, the Court can also conduct its own Evidence Code section 1402
hearing before allowing him to testify before the jury.

CBM-SFISE630992-1 -25- Case No. CGC-13-276217
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