Judgment: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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FRANK D. POND (Bar No. 126191)
ANN IL. PARK (Bar No. 130394)

apark@pondnorth.com ELECTRONICALLY
KATHLEEN B. EBRAHIMI (Bar No. 214593) FILED
kebrahimi@pondnorth.com Superior Court of Californt
POND NORTH LLP County of San Francisco
350 South Grand Avenue, Suite 3300 JUN 09 2014
Los Angeles, CA 90071
Telephone: (213) 617-6170 Clerk of the Court
Facsimile: (213) 623-3594 BY EDNALEEN JAVIER
eputy Clerk
Attorneys for Defendant

BELL INDUSTRIES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

HAROLD KOEPKE and Case No: CGC-13-276217
NANCY KARIDIS-KOEPKE,
EVIDENTIARY OBJECTIONS TO THE
Plaintiffs, DECLARATION OF DR. DAVID EGILMAN,
M.D., M.P.H. IN SUPPORT OF PLAINTIFFS’

vs. OPPOSITION TO DEFENDANT BELL
INDUSTRIES, INC.” MOTION FOR SUMMARY
FORD MOTOR COMPANY, et al., JUDGMENT OR, IN THE ALTERNATIVE, FOR
SUMMARY ADJUDICATION OF ISSUES
Defendants.

Judge: Honorable Teri L. Jackson
Department: 503

Date: June 11, 2014
Time: 9:30 a.m.

Case Filed: December 3, 2013
Trial Date: June 16, 2014

Defendant BELL INDUSTRIES, INC. (“Bell” or “Defendant”) hereby submits its objections
to the following evidence proffered by Plaintiffs HAROLD KOEPKE (“Mr. Koepke”) and NANCY
KARIDIS-KOEPKE (collectively “Plaintiffs”) in opposition to Bell’s Motion for Summary
Judgment or, in the alternative, for Summary Judgment of Issues (“Motion”) and also moves to
strike said items, and Dr. Egilman’s declaration in its entirety, pursuant to Code of Civil Procedure
Section 437c, subdivisions (b), (c), and (d), and California Rules of Court, Rules 3.1352 and 3.1354:
Ht

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR, DAVID EGILMAN, M_D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
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i DR, EGILMAN’S DECLARATION LACKS FOUNDATION BECAUSE PLAINTIFFS
ARE UNABLE TO PROVE SUBSTANTIAL EXPOSURE AS TO BELL

Dr, Egilman’s opinions regarding causation in this case are conclusory, without foundation,
and must be stricken pursuant to the Court’s gatekeeping role under Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 771-772. As the Supreme Court noted in
Sargon, “[T[he 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.” See also Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. 579, 597 (trial court has a “gatekeeping role” and must
exclude expert scientific testimony that is not sufficiently reliable under Fed.R.Evid. 702).

Here, there is no reliable evidence that Mr. Koepke was substantially exposed to asbestos
from any brake products supplied by Rox Automotive (“Rox”). Mr. Koepke was not an automotive
mechanic and was not qualified to perform automotive repair work. [SSUMF § 3; Koepke Depo.
569:21-23, 607:5-11.] Mr. Koepke never arced, ground, drilled, riveted or cut any brakes, removed
brake linings from shoes, used a grinder on brakes, or drilled, sanded, ground, cut or modified
clutches or cut any gaskets. [SSUMF 4 4, Koepke Depo. 576:10 to 578:3.] Mr. Koepke cannot say
he ever sanded any brake supplied by Rox. [SSUMF { 7, Koepke Depo. 957:7 to 957:13.]

As Plaintiffs’ expert industrial hygienist William Longo testified in deposition, there is no
evidence that Mr, Koepke was ever substantially exposed to asbestos from any Rox product: ~

Q. (By Ms. Park) Okay. And with respect to any particular

defendants’ products, you don't have any cumulative exposure estimates

THE WITNESS: As I testified to at least an hour ago, no, I have
not made any cumulative exposure calculations for any particular
defendant and nor de I intend to,

Q. (By Ms. Park) Okay. With respect to Rox Automotive, you
don't have any estimate as to the number of times Mr. Koepke came into

any brake or clutch products supplied by Rox; is that right?
2

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M_D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
4436-0059:4815-6932-0219.v7A. That is right, I don’t.....
Q. (By Ms. Park) Okay. And you can't say the number of times,

if any, he was ever exposed to asbestos from any products supplied by

THE WITNESS: I think I just said that.
Q. (By Ms. Park) Okay. And you can't quantify any exposure, if
any, that Mr. Koepke may have obtained from Rox products; is that
right?
THE WITNESS: As I stated earlier, I'm not here for
product ID. ...
Reporter’s Rough Transcript of Longo Deposition, attached as Exhibit V to Supplemental Ebrahimi
Declaration, at 21:10-23:22.

In addition, Dr. Longo testified that he has no opinion that Mr. Koepke was ever
exposed to asbestos in excess of OSHA permissible exposure limits as an 8-hour time-weighted
average from 1972 through 2000. Id. 24:8-28.19.

Accordingly, Dr. Egilman’s opinion that “Mr. Koepke had significant asbestos exposures to
Rox Automotive’s products (Bendix brakes), resulting from his work near and around brake work,
that contributed to or caused his mesothelioma” is without foundation, is conclusory and speculative,
and must be excluded. See, e.g. Sargon, supra, 55 Cal.4th at p. 770 (“’ [T]he expert’s opinion may
not be based on assumptions of fact without evidentiary support or on speculative or conjectural
matters.”); Andrews v. Foster-Wheeler LLC (2006) 138 Cal.App.4th 96, 108 (“Plaintiffs cannot
manufacture a triable issue fact through use of an expert opinion with self-serving conclusions
devoid of any basis, explanation or reasoning.”); Bushling v. Fremont Medical Center (2004) 117
Cal.App.4th 493, 510 (*[A]n expert’s opinion rendered without a reasoned explanation of why the
underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion
is worth no more than the reasons and facts on which it is based.’””)

Mt

Mt
3

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
4436-0059:4815-6932-0219.V7H. DR. EGILMAN’S OPINIONS ARE SCIENTIFICALLY UNSOUND AND MUST BE

EXCLUDED UNDER SARGON

An expert’s testimony must be based on matters upon which he may reasonably rely. Cal.
Evid. Code, § 801.Conjecture and speculation provide no proper basis for an expert’s opinion. Hyatt
y. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338. However, in support of his opinions that
automotive friction work causes mesothelioma, Dr. Egilman relies on animal studies and case
reports. He.does not cite to a single epidemiological study demonstrating that automobile mechanics
are not at increased risk of mesothelioma, and instead ignores the large body of epidemiological

literature demonstrating that automobile mechanics are not at increased risk of mesothelioma.

Robbins Decl. {| 20-39; Spivack Decl. {§ 33-36.

An epidemiological study tries to answer the question of disease causation by comparing
groups of exposed people with contro! groups of unexposed people to determine if the exposed
people develop disease at a higher rate than non-exposed people.' Assuming people in the exposed
group develop disease significantly more frequently than their unexposed counterparts, and
depending on the soundness of the studies, scientists may be able to draw some conclusions as to
whether the chemical involved had anything to do with the excess number of diseases in the exposed
group. On the other hand, “[a] case report is simply a doctor's account of a particular patient's
reaction to a drug or other stimulus, accompanied by a description of the relevant surrounding
circumstances. Case reports make little attempt to screen out alternative causes for a patient's
condition. They frequently lack analysis. And they often omit relevant facts about the patient's
condition. Hence, “[c]ausal attribution based on case studies must be regarded with caution.?

An animal studies also present difficulties because differences between human beings and other

species, including differences in absorption, distribution, and metabolism of substances, may affect

| See generally, Michael D. Green, et al., Reference Guide on Epidemiology in Reference Manual on
Scientific Evidence 333-400, Federal Judicial Center (2d ed. 2000) (hereinafter, "Reference Guide on
Epidemiology").
2 Ibid.
3 Reference Manual on Scientific Evidence 475 (Fed. Judicial Ctr. 2000);” Glastetter v, Novartis
Pharmaceuticals Corp. (8th Cir. 2001) 252 F.3d 986, 989-990.)

4

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
4436-0059:48 15-6932-0219.v7toxicity.* Animal studies typically use high dose exposures, which when with the much lower levels
to which human beings typically may be exposed make it necessary to consider the relationship
between dose and response, the shape of the dose-response curve at lower levels of exposure, and the
possibility that exposure may not cause a disease when the exposure is below a threshold level.

The material on which Dr. Egilman relies does not allow for a scientific quantification or
comparison of risk factors as would a true epidemiological study. Instead it requires a speculative
leap in determining causation, while Dr. Egilman ignores scores of sound, generally accepted,
studies that reach contrary conclusions without requiring any speculation. Dr. Egilman lacks a basis
for his opinions and relying instead on materials that are at odds with scientific literature.

Because his opinion lacks foundation and is based on speculation, it must be stricken.
Sargon, 55 Cal.4th at 771-772; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114
Cal.App.4th 1108, 1117 (2003) ({W]hen an expert’s opinion is purely conclusory because
unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate
conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than
the reasons upon which it rests.’”).

I. DR. EGILMAN’S CONCLUSORY EXPERT OPINIONS HAVE BEEN EXCLUDED

BY NUMEROUS COURTS ACROSS THE COUNTRY

Dr. Egilman’s expert opinion testimony has been excluded numerous times by courts around
the country, including by the Ninth Circuit Court of Appeals. Newkirk v. Conagra Foods, Inc. ot
Cir. 2011) 438 Fed.Appx. 607; Newkirk v. Conagra Foods, Inc. (E.D. Wash. 2010) 727 F.Supp.2d
1006; Solis v, BASF Corporation (Il. App. 2012) 979 N.E.2d 419; Khoury v. Conagra Foods, Inc.
(Mo. Ct. App. 2012) 368 S.W.3d 189; Merck & Co., Inc. v. Ernst (Tx. Ct. App. 2009) 296 8.W.3d
81 [attached as Exhibits 1-5 to Appendix of Non-California Authority}.

In the Newkirk case, the federal district court for the Eastern District of Washington

4 Goldstein & Henifin, Reference Guide on Toxicology in Reference Manual on Scientific Evidence,
supra, p. 419,

5 Id. at pp. 409, 410; Green et al., Reference Guide on Epidemiology in Reference Manual on
Scientific Evidence, supra, p. 377 & fn. 119; 2 Searcy-Alford, A Guide to Toxic Torts (2004) §

10.02[6][b], pp. 10-47 to 10-48.
3

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR, DAVID EGILMAN, M_D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
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undertook a detailed, 21-page analysis of why Dr. Egilman’s expert opinion regarding causation was
unreliable, lacking foundation, and must be excluded under Daubert and Rule 702 of the Federal
Roles of Evidence. Newkirk, 727 F.Supp.2d at pp. 1013-1029. In that case, Dr. Egilman opined
that plaintiff's lung disease was caused by exposure to diacetyl from butter-flavored microwave
popcorn, and stated that “[t]here is no known safe level of diacetyl exposure. [Existing scientific]
studies also suggest that levels of diacetyl exposure below and around 1 ppm can cause BO and
other respiratory illnesses.” Jd. at p. 1015. The district court found that Dr. Egilman’s opinions on

general and specific causation were speculative and without foundation:

There is simply too great an analytical gap between the existing data,
indicating that exposure to butter flavoring vapors in the occupational
setting can cause bronchiolitis obliterans, and Dr. Egilman's opinion
that a consumer of microwave popcorn is exposed to a vaporized
substance equivalent to production plant butter flavoring vapors at
levels sufficient to cause bronchiolitis obliterans. See Joiner, 522 U.S.
at 146, 118 S.Ct. 512. The bulk of Dr. Egilman's conclusions do not rise
above “subjective belief or unsupported speculation.” See Joiner, 522
US. at 136, 118 S.Ct. 512. His opinion testimony, therefore, is
inadmissible under Daubert and Fed.R.Evid. 702.

Id. at p. 1029.

‘The court thus excluded Dr. Egilman’s opinions, and granted defendant’s summary judgment
motion. The Ninth Circuit affirmed. 438 Fed.Appx. at p. 609 (“The bulk of Dr. Egilman's
conclusions do not rise above “subjective belief or unsupported speculation.” See Joiner, 522 US. at
136, 118 S.Ct. 512. His opinion testimony, therefore, is inadmissible under Daubert and Fed.R.Evid.
702.”)

Here, as Newkirk, Dr. Egilman’s opinions do not rise above “subjective belief or unsupported
speculation.” Therefore, his opinions must be excluded. Sargon, 55 Cal.4th at 771-772.

EVIDENTIARY OBJECTIONS TO

THE DECLARATION OF DR. DAVID EGILMAN, MLD., M.P.HL

MATERIAL OBJECTED TO GROUNDS FOR OBJECTION IN
. ADDITION TO THE FOREGOING

T. The Declaration of Dr. David Egilman, M.D., | Lacks Foundation (Evid. Code §§403, 405)
MPH. at § 7:
Speculative (Evid. Code §§702, 720)

6

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS”
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

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“My qualifications and opinions are also based in
part on my clinical experience and awareness of
the ways that normal physicians in normal
medical practice make decisions about causal
relationships that affect patients’ lives every day.
Much of my time is devoted to direct patient care
and consulting for corporations. I served as an
expert on state of the art issues at the request of
both injured workers and companies.”

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal. App.4th 1155, 1182-1183; PAd Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)

Irrelevant (Evid. Code §350)

2. The Declaration of Dr. David Egilman, M_D.,
M.-P.H. at § 8:

In the course of doing research, publishing peer
reviewed papers, my corporate consulting in
occupational and environmental health and
teaching courses, 1 base my opinions on the
following sources of information:

a. Review of medical literature

i. Medical journal articles

ii. Medical meetings

iii, Medical textbooks

iv. In order to review medical
literature, I conducted computer searches of
several different databases including:

(1) Index Medicus
Q) NIOSH

(3) EPA

(4) Cancer Lit

(5) MedLine

v. In addition, my staff or I reviewed
each issue of Index Medicus from 1910 through
1966, (Index Medicus was computerized from

1964 forward and was reviewed by computer

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Cade, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
oom No Probative Value (Evid. Code
§352

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. y. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR, DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.v7Co COD mS DR RR HD NY

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MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

following this.)

b. Review of corporate documents I have
reviewed corporate documents from several
asbestos corporations and their insurers. Most of
these documents were exhibits in toxic tort
litigation and were supplied as part of the
discovery process. In addition, | have visited
several corporate document repositories to
review corporate documents that are available as
part of the discovery process, including
memoranda.

ii. Company meetings and.
correspondence

iii. Internal company medical studies

iv. Information from workers’
compensation insurance companies

v. Workers Compensation Claims

vi. Warnings labels and warnings policies

c. Visits and reviews of libraries

i. General publications
ii. Trade publications
iii. Public libraries’ general information
iv. Special research collections in
libraries
v, Organizational and Association
Minutes and Documents
(1) ACGIH (American
Conference of Governmental Industrial
Hygienists)
(2) Manufacturing Chemists
Association (MCA or CMA)
(3) American Petroleum Institute
(API)
(4) Railroads
(5) AEC and DOE Health &
Safety Policies
(6) 1HF (industrial Hygiene
Foundation)

(7) National Safety Council
(NSC)

(8) Asbestos Textile Institute
(ATI)

(9) Friction Materials Standards
Institute FMSI)

(10) Quebec Asbestos Mining
Association (QAMA)

(11) Thermal Insulation

$

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’

OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.v7Oo Om ND A BR wW

MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Manufacturers Association (IIMA, MIMA or
NIMA)

(12) Gypsum Products

vi. Association Special libraries and
collections
(1) Vorwald Archives
(2) Saranac Lake Laboratories
(3) Drinker Collection at the
Harvard School of Public Health
(4) Mellon Institute Documents
d._ Interviews or deposition reviews of
historical figures.
i. Corporate personnel
ii. Product users
ii. Kenneth Smith
iv. Gerrit Schepers
vy. Harriet Hardy
vi. Clark Cooper
vii. Mort Com
viii. Bill Burgess
ix. E. Lynn Schall
x. | Thomas Mancuso
xi. Industrial Hygiene Personnel
Interviews and/or medical examinations of
workers

f. Ihave been qualified in state and federal
court to testify about:

i. Development and implementation of
occupational exposure limits

ii. History of industrial hygienic
practices

iii. Occupational health and safety
standards throughout the century Warnings

iv. Comparison between differing
corporate approaches to health and safety
problems and public health standards relating to
these problems

v. Epidemiology generally and the
significance and proper interpretation of
epidemiologic studies

vii. General causation of asbestos
diseases Specific causation of asbestos diseases

3. The Declaration of Dr. David Egilman, M.D.,
MLP.H. at § 9:

“T have studied the medical literature pertaining
to occupational and non-occupational asbestos
exposure and all of the disease inherent to such 9

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS”
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.v7MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

exposure including pleural abnormalities,
asbestosis, lung cancer, gastro-intestinal cancer
and mesothelioma. I have also reviewed articles
relating to the evolution of medical knowledge of
asbestos-related conditions.”

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L, Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Tne. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106, Cal.App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

4. The Declaration of Dr. David Egilman, M.D.,
M.P.H. at § 10:

“T have reached the conclusions stated below to a
reasonable degree of medical probability based
on my review of the medical and scientific
literature and based on my years of training and
clinical experience.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conelusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal. App.4th 1155, 1182-1183; PAf Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conelusory (Snider y. Snider (1962) 200

18

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.v7cm IY DH BR YW ND Om

RN NN NY N NN De mm es
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MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal. App.4th 1219, 1240)

5. The Declaration of Dr. David Egilman, M.D.,
MPH at 11:

“T have performed an evaluation of asbestos
brake manufacturing at the GM Inland division,
Dayton Ohio.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal_App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal. App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal. App.4th 1219, 1240)

Irrelevant (Evid. Code §350)

6. The Declaration of Dr. David Egilman, M.D.,
MPH, at § 12:

“T have served as a consultant to several brake
manufacturing companies.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal. App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port

il

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

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ADDITION TO THE FOREGOING

4

Dist. (2003) 106 Cal-App.4th 1219, 1240)
Irrelevant (Evid. Code §350)

7. The Declaration of Dr. David Egilman, M.D.,
M.P.H. at § 13:

“T will rely on the information in the articles and
publications I have authored, which are listed in
my most current Curriculum Vitae, a true and
correct copy of which is attached hereto as
Exhibit 1, and incorporated fully by reference
herein, as well as the articles cited in those
atticles and publications fo the extent they
inform my opinions as set forth below.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal. App.4th 1155, 1182-1183; PAd Group,
Ine. v. Stewart (2007) 154 Cal. App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal. App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

8. The Declaration of Dr. David Egilman, M.D.,
M.LP.H. at ¢ 14:

“As more fully set forth below, I have formed the
following conclusions based on my studies and
research.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Prebative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200

12

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADIUDICATION

4436-0059:4815-6932-0219.V7oe em NN KD WH BR YW NY em

=

_
Oo oe YD DAH FB WN

Vv NR y NY Re we NR NV YL
ot A A BR YH VY SF S

MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)

Hearsay (Evid. Code, §§1200, 1201)

9, The Declaration of Dr. David Egilman, M.D.,
M-P.H. at 9 15:

“Health hazards from asbestos exposure were
identified in the 1890s, During this time, the
Lady Inspectors of Factories in Great Britain
noted that individuals working with asbestos
were suffering various lung injuries. [See
“Annual Report of the Chief inspector of Factors
and Workshops for the Year 1898,” London, HM.
Stationery Ofc., 1899; “Annual Report of the
Chief Inspector of Factors and Workshops for
the of 1899,” London, HM Stationery Ofc.,
1900.]” .

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd, (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co. (1999)
69 Cal. App.4th 1155, 1182-1183; PA¢ Group,
Inc, v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)
Hearsay (Evid, Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

10. The Declaration of Dr. David Egilman, M.D.,
M.P.H. at ¥ 16:

“As early as the 1920s, the term “asbestosis” was
used to describe pulmonary fibrosis caused by
asbestos exposure. Asbestos was recognized as a
disabling and potentially fatal disease. Case
reports in Great Britain and the United States
detailed asbestos in various workers. [See, ¢.g.,
Cooke, W.E., Fibrosis of the Lungs Due to the -
Inhalation of Asbestos Dust (July 26, 1924} 2
British Medical J. 147; Pancoast, H.K., et al., 4
Review of Our Present Knowledge of
Pneumoconiosis, Based Upon Roentgenologic
Studies, with Notes on the Pathology of the
Condition (Nov. 1925) 14 Am. J. of
Roentgenology and Radium Therapy 381-423;
Cooke, W.E., Pulmonary Asbestosis (Dec. 23, 1
927) 2 British Medical J, 1024-1 027; Oliver, T.

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Ca. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Ine, y. Stewart (2007) 154 Cal.App.4th 55, 63.)

13

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADIJUDICATION

4436-0059:4815-6932-0219.v7Co OO DS DH Hh FF WN eH

RN. NR YN NR NR Nm ee
oN A fA BF OY Be BF SO we BT KN AH B&B WBN ™

MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Clinical Aspects of Pulmonary Asbestosis (Dec.
3, 1927) 2 British Medical J. 1 026-1 027;
Pulmonary Asbestosis (1927) 89 JAMA 2285;
Pulmonary Asbestosis (1928) 90 JAMA 119-
120; Williams, C.L., “Report of the Medical
Officer of Health for the Year 1929,” England,
Barking Town Urban District Council, 1930.]”

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)

Hearsay (Evid. Code, §§1200, 1201)
Irreleyant (Evid. Code §350)

11. The Declaration of Dr. David Egilman, M.D.,
MPH. at ¥ 17:

“By the 1940s, it became known and recognized
that asbestos exposure could cause pulmonary
cancers.

a. In the late 1930s, case reports were
published addressing the relationship between
asbestos and cancer. [See, e.g., Gloyne, S.R., The
Morbid Anatomy and Histology of Asbestosis
(August 1933) 14 Tubercle 550-558; Lynch,
K.M., et al., Pulmonary Asbestosis IIT:
Carcinoma of the Lung in Asbestosis-Silicosis
(1935) 24 American J. Cancer 56-64; Nordmann,
M, Det’ Bertikt'ebs der Asbestarbeiter (1938) 47
Z. Krebsforsch 288-302 Homing, F., Clinical
Considerations on the Question of Industrial
Cancer of Asbestos Workers (1938) 47 Z.
Krebsforsch 281-287. Vorwald, 4.J., et al.,
Pneumoconiosis and Pulmonary Carcinoma
(1938). American J. of Pathology 49-57 Lynch,
KM, et al., Pulmonary Asbestosis V; A Report
of Bronchial Carcinoma and Epithelial
Metaplasia (1939) 36 American J. of Cancer

b, In the 1940s, asbestos carcinogenicity was
noted in reviews in fields of industrial medicine,
cancer research and pneumoconiosis. [See, e.g.,
Hueper, W.C., Occupational Tumors and Allied
Diseases (1942); Holleb, 1-1.8., et al.,
Bronchogenic Carcinoma in Association with
Pulmonary Asbestosis (1942) 18 American J.
Pathology 123-132; Hueper, W.8., Cancer and
its Relation to Occupation and Environment
Gan. 1943) 25 Bulletin of the American Society
for the Control of Cancer, Inc. 63-69;
Homburger. F ., The Coincidence of Primary
Carcinoma of the Lungs and Pulmonary
Asbestosis (1943) 19 American J. of Pathology
797-8071’ Tabershaw, LR., el al., Industrial
Hygiene in 1944 (1944) 23 1New England J.

Medicine 706-710; Hueper, W.C., Industrial

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. AL. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal. App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

+4

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:48 1 5-6932-0219.v7= Ss 0 we a Dh BF YW YH

ho
Coe YW A A BF YW DY

yn ye yy N NN YD
eC TA Wh F BH FS

MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Management and Occupational Cancer (1946)
131 JAMA 738-7411, Hueper, W.C.,
Significance of Industrial Cancer in the Problem
of Cancer (1946) 2 Occupational Medicine 190-
200; Kennaway, 8.L., et al., 4 Further Study of
the Incidence of Cancer of the Lung and Larynx
(1947) 1 British J . Cancer 260-298; Doig, E.T.
Other Lung Diseases Due to Dust (1949) 25
Postgraduate Medical J. 639-649.”

12. The Declaration of Dr. David Egilman, M.D.,
M.LP.H. at § 18:

“During the 1950s, mesothelioma was
recognized as a separate cancer that could be
caused by asbestos exposure. See e.g., Weiss,4.,
Pleural Cancer in Patients with Pulmonary
Asbestosis Morphologically Confirmed In Vivo
(1953) 3 Medizinsche 93-94; Bonser, G., et al.,
Occupational Cancer of the Urinary Bladder in
Dyestuffs Operatives und of the Lung in Asbestos
Textile Workers and Iron-Ore Miners (Feb.
1955) 25 American J. of Clinical Pathology
1267134; Braun, D. et al.. An Epidemiological
Study of Lung Cancer in Asbestos Miners (June
195 8) 17 AMA Archives of Industrial Health
634-652; Eisenstadt, H.8., et al., Primary
Malignant Mesothelioma of the Pleura (Nov.
1960) 80 Journal-Lancet 511-514; Wagner, J.C.,
etal., Diffuse Pleural Mesothelioma and
Asbestos Exposure in the North Western Cape
Province (1960) 17 British J. Industrial Medicine
260-271; Selikoff, LI, et al., Asbestos Exposure
and Neoplasia (April 6, 1964) 188 IAMA22-26.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co, (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal. App.2d 741, 751; Tushscher Develop.
Enterprises, Inc, v, San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

13. The Declaration of Dr. David Egilman, M.D.,
M.P.H. at § 19:

“In addition, during the 1940s and 1950s, it was
recognized that individuals who worked with
asbestos materials, as well as those who did not
work directly with asbestos products but only
had relatively brief or intermittent exposures to
asbestos products, could develop fatal asbestos
diseases. [See e.g., Merewether, E.R.A., et al.,
“Report on Effects of Asbestos Dust on the
Lungs and Dust Suppression in the Asbestos
Industry” (1930) London, HM Stationery Ofc.;

Ellman, P., Pulmonary Asbestosis: Its Clinical,

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

15

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISC PLAINTIFFS”
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.v7MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Radiological, and Pathological Features, and
Associated Risk of Tuberculosis Infection (July
1933) 15 J. of Industrial Hygiene 165-183;
Wood, W.8.,et al., Pulmonary Asbestosis: A
Review of One Hundred Cases (Dec.22, 1934) 2
Journal- Lancet 1383-1385; Dorland, W.A.N., et
al., The American Illustrated Medical Dictionary
(17" Ed.,1937); Holleb, HL8., et al.,
Bronchogenic Carcinoma in Association with
Pulmonary Asbestosis (1942) 18 American J. of
Pathology 123-131; Kennaway, 8.L., et al, A
Further Study of Cancer of the Lung and Larynx
(1947) 1 British J. of Cancer 260-298; Sander,
0.A., Asbestosis as Differentiated from Other
Pneumoconiosis (1955) 11 AMA Archives of
Industrial Health 208-211; Stoll, R. et al.,
Asbestosis Associated With Bronchogenic
Carcinoma (1951) 88 AMA Archives of Internal
Medicine 831-834; Eisenstadt, H.8., et al.,
Primary Malignant Mesothelioma of the Pleura
(Nov. 1960) 80 Journal-Lancet 511-514. In
addition, during the 1940s and 1950s, it was
recognized that individuals who worked with.
asbestos materials, as well as those who did not
work directly with asbestos products.”

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v, A.L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Ine. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist, (2003) 106 Cal.App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

14. The Declaration of Dr. David Egilman, M.D.,
M.P.H. at { 20:

“In the United States, companies first developed
and sold woven asbestos friction materials
around the turn of the twentieth century. In the
early 1920s companies began to manufacture and
promote molded brake linings and by 1940,
virtually every automobile was equipped with
them. A decade later, companies began to switch
to disc (metallic/non-asbestos) brakes, and by
1975 virtually all newly manufactured U.S. cars
contained front disc brakes. However, drums
continued to be used on rear brakes.
Manufacturers used chrysotile asbestos for brake
linings almost exclusively because amphibole
asbestos tended to score the brake drums,
decreasing their useful life. Asbestos constituted
30 to 70 percent of the brake linings. Virtually
all brake linings sold in the US on drums
contained asbestos until the mid-1980s.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. AL. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Ine. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal. App.4th 1219, 1240)

Irrelevant (Evid, Code §350)

+6

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR, DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:481 5-6932-0219.v7oOo OD FN HH

MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

15. The Declaration of Dr. David Egilman, M.D.,
M-P.H. at § 21:

“It was well established in the literature of the
1940s, 1950s, and 1960s that workers

|| manufacturing, grinding, and repairing

automotive brakes were at risk of developing
asbestos disease. The following tables
summarize the key points from a selection of
those articles.”

[Tables omitted as voluminous. Please see the
Declaration of Dr. David Egilman, M.D.,
M-P.H., at pp. 10:1-28:20 for reference.]

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. AL. Gilbert Co, (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. y. San Diego Unified Port
Dist. (2003) 106 Cal-App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

16. The Declaration of Dr, David Egilman, M.D.,
MLP.H. at § 22:

“Tn 1936 (as provided above), several asbestos
friction product manufacturers hired Dr. Leroy
Gardner to perform animal studies of asbestos
health effects at the Saranac Laboratory.
Gardner discovered three important facts about
asbestos.

1. Asbestos caused cancer in the animals
without first producing fibrosis.

2. The “guideline” (since referred to as a
TLV) that had been tentatively implemented to
protect workers from asbestosis was too high.

3. The guideline was designed to measure the
wrong thing (total dust and not fibers), Gardner
had determined that the fibers and not the
chemical composition of the dust caused the
disease.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
unson, No Probative Value (Evid. Code
§352

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers y. A.L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Ine. v, Stewart (2007) 154 Cal.App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)

+

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M_D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.¥7MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Hearsay (Evid. Code, §§1200, 1201)
Irrelevant (Evid. Code §350)

17. The Declaration of Dr. David Egilman, M.D.,
MLP.H. at § 23:

“In his June 1973 address to the Friction
Materials Standards Institute (FMSD, Mr.
Weaver, president of the Asbestos Information
Association (ATA) and Chairman of the FSMI,
stated this regarding the OSHA-mandated
asbestos warning label:

To me, labeling all containers or packages of
asbestos-containing friction materials is the very
least the industry can do to fulfill moral
obligation to its customers, their employees, and
the public and at the same time conform with the
minimum requirements of the Occupational
Safety and Health Act. I seriously question
whether mere labeling is enough to fulfill this
requirement. It has been suggested by others as
well as myself several times in the past that
additional instructions, of a more comprehensive
nature than is practical to provide on a label, be
inserted inside each package where a possibility
exists that the product might be used in such
manner that an airborne dust problem could be
created.

FOR

Keep in mind that NIOSH and the OSHA
Advisory Committee recommended a much more
severe label than the one we are talking about.
This subject was heatedly debated during the
OSHA Advisory Committee deliberations, and
their final recommendation called for use of the
word ‘Danger’ instead of ‘Caution’ and
specifically mentioned that breathing asbestos
can cause cancer. Very frankly, I was
exceedingly surprised when the final OSHA
Standard. came out in favor of considerable
milder working. .. Many other elements of the
OSHA Regulations came out more favorably
toward industry than the recommendations that
were submitted by NIOSH and the Advisory
Committee, and stiff resistance by Industry will
be needed to prevent OSHA from strengthening
the regulations in months to come.

[Address of 1. W. Weaver, “Asbestos and the
Friction Material Industry,” given at the Annual _

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facets Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v, A.L. Gilbert Co. (1999)
69 Cal.App.4th 1155, 1182-1183; PM Group,
Inc. v. Stewart (2007) 154 Cal-App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc, v. San Diego Unified Port
Dist. (2003) 106 Cal.App.4th 1219, 1240)
Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.V7MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

Membership of the Asbestos Textile Institute,
June 27, 1973]

Exposure to Asbestos from Friction Products has
been shown to cause or contribute to
mesothelioma in exposed individuals

[Tables omitted as voluminous. Please see the
Declaration of Dr. David Egilman, M.D.,
MP.H., at pp. 29:22-32:23 for reference.]

18. The Declaration of Dr. David Egilman, M.D.,
MLP.H. at § 24:

“Governmental entities within the US charged
with protecting the health of workers, consumers,
and members of the public agree that
mesothelioma is caused by exposure to chrysotile
asbestos. These governmental entities include
NIOSH, OSHA, the EPA, and the CPSC. In
addition, international organizations whose
purpose and function is to determine harmfulness
of substances to which people are exposed, and
to protect the health of people, have accepted
that chrysotile causes mesothelioma. These
international organizations include the ILO, the
WHO, the IPCS, the Collegium Ramazzini and
the IARC.”

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal. App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid, Code
§352)

Hearsay (Evid. Code, §§1200, 1201)

Irrelevant (Evid. Code §350)

19. The Declaration of Dr. David Egilman, M.D.,
MPH. at § 25:

“In February 2001, Henderson reviewed this
issue for the WTO and reported on his cohort
study of brake mechanics:

Nonetheless, the 1999 Report for the
Australian Mesothelioma Register (AMR 99)
records 58 mesotheliomas among brake
Mechanics with no other exposures to
asbestos, during the almost 13-year period
between 01 January 1986 and 31 October
1999 (total cases with a stated history of
asbestos exposure: 2585). Mechanics who
frequently or consistently work on brake
linings and brake blocks represent only a sub-
fraction of the total workforce of mechanics
in Australia. If one takes the 1996 census
figure of 82,877 for male mechanic, this
amounts to 58 mesotheliomas in 1,062,946
person-years (= 54.6 mesotheliomas per
million person-years). If one rounds off the

Lacks Foundation (Evid. Code §§403, 405)
Speculative (Evid. Code §§702, 720)

Assumes Facts Not in Evidence (Evid. Code,
§§210, 765, subd. (a))

Vague, Ambiguous and Overbroad (Evid.
Code, §§765, subd. (a); People v. Slocum
(1975) 52 Cal.App.3d 867, 890)

Prejudicial, Misleading and Likely to Cause
Confusion, No Probative Value (Evid. Code
§352)

Improper Expert Opinion (Evid. Code §§720,
800-802; Summers v. A.L. Gilbert Co, (1999)
69 Cal.App.4th 1155, 1182-1183; PA¢ Group,
Inc. v, Stewart (2007) 154 Cal. App.4th 55, 63.)

Conclusory (Snider v. Snider (1962) 200
Cal.App.2d 741, 751; Tushscher Develop.
Enterprises, Inc. v. San Diego Unified Port

19

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. DAVID EGILMAN, M.D. ISO PLAINTIFFS’
OPPOSITION TO BELL'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

4436-0059:4815-6932-0219.v7oD ew ND DH RB BW N

bo =

4

16

MATERIAL OBJECTED TO

GROUNDS FOR OBJECTION IN
ADDITION TO THE FOREGOING

workforce to 100,000 male mechanics, the
figure becomes 45 mesotheliomas per million
person-years. If one then doubles the
workforce population to take into account
retirees and other workers who moved on to
other occupations (although a figure of
200,000 is almost certainly an overestimate
because it would include all mechanics,
whereas brake mechanics constitute a smaller
sub-class), the mesothelioma rate becomes
22.6 per million person-years-- well under the
rate of 337 mesotheliomas