Party Discovery: KENNETH MOSES SR. VS. KAISER GYPSUM COMPANY, INC. et al

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                                BRAYTON®PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
jnevin@braytonlaw.com
BRAYTON*PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

(415) 898-1555

Attorneys for Plaintiff

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

10/20/2015
Clerk of the Court
BY:CAROL BALISTRERI

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

KENNETH MOSES, SR.,
Plaintiff,
vs.

KAISER GYPSUM COMPANY, INC.,
etal.,

Defendants.

ASBESTOS
No. CGC-13-276180

PLAINTIFF’S OPPOSITION TO JOINT
DEFENSE MOTION JIN LIMINE NO. 3 TO
PRECLUDE PUBLICATION OF
RICHARD COHEN’S HEARSAY
DOCUMENTS TO THE JURY

In Trial
Dept.: 306

Based the complex subject matter of the opposition to defendant's motion in limine, and in accordance with CRC
3.1113(d) ("...no... responding memorandum may exceed 15 pages." "[t]he page limit does not include exhibits,
declarations, attachments..."), and in the spirit of CRC 3.1113(e) ("...for permission to file a longer
memorandum...") plaintiff seeks leave to exceed the San Francisco Court imposed limit of 5 pages and no exhibits.
Plaintiff requests permission to file, and for this Court to consider in its entirety, a 28- page opposition, with 1

exhibit, and | declaration that includes 7 exhibit(s).

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PLAINTIFF’S OPPOSITION TO JOINT DEFENSE MOTION JN LIMINE NO. 3 TO PRECLUDE PUBLICATION OF RICHARD COHEN’S

HEARSAY DOCUMENTS TO THE JURY

AXASO em NIN DH RB WN

TABLE OF CONTENTS

I. INTRODUCTION 00.0.0. e cece cnt cent ene etn e eee 1
Il. STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFF’S
NEGLIGENCE CLAIM oo... cece cece cence ene tener enn ences 1
Ill. | STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFF’S FAILURE-
TO- WARN CLAIM 0... occ nee nen tenet n nents 3
TV. DR. COHEN’S TESTIMONY IS ALSO RELEVANT TO PLAINTIFF’S CLAIM FOR
PUNITIVE DAMAGES .... 00.0.6 cece cece cent nn tenet e nen e eens 4
V. BLACK-LETTER LAW DIRECTLY ON POINT REGARDING DR. COHEN ..... 7
VI. | BLACK-LETTER LAW REGARDING STATE OF THE ART ...........000005 9
VII. THIS NON-HEARSAY NOTICE LITERATURE CAN BE PUBLISHED TO THE 9
JURY oo een eee
VII. DR. COHEN’S TESTIMONY IS IN ACCORD WITH CALIFORNIA CAUSATION ul
LAW Licence ee te teen e nent eee e eee e nents
IX. DR. COHEN IS A PROPERLY QUALIFIED EXPERT .......0.0.0 00s eeeeue 11
X. DR. COHEN POSSESSES MORE THAN ADEQUATE “SKILL. EXPERIENCE,
TRAINING, AND EDUCATION” TO ESTABLISH FOUNDATION FOR HIS
OPINIONS 0.0... eect cence rete ener e eben ete teen entrees 12
XI. DR. COHEN’S RELIANCE DOCUMENTS COMPLY WITH CEC § 801(b) ..... 15
XII. THE EIGHTH CIRCUIT’S HOLDING IN STRUCTURAL POLYMER GROUP, LTD. v.
ZOLVEK CORP., AND ITS RELIANCE ON FEDERAL RULE OF EVIDENCE 703
SHOULD SERVE AS A GUIDELINE FOR THIS COURT ...........0.200 00 16
XIII. PURSUANT TO CEC § 801(b), DR. RICH COHEN’S RELIANCE ON EXHIBIT A
IS PERMISSIBLE ..... 0... e cece eee teen tte n enna 16
XIV. DR. COHEN’S RELIANCE ON INADMISSIBLE HEARSAY IS WHOLLY
SUPPORTED BY THE CALIFORNIA EVIDENCE CODE AND CASELAW.... 17
XV.  PLAINTIFF’S USE OF HYPOTHETICALS IS PERMISSIBLE AND CONFORMS TO
REQUIREMENTS SET FORTH UNDER CURRENT CALIFORNIA CASELAW 20
XVI. UNDER CALIFORNIA LAW, DR. COHEN IS NOT REQUIRED TO PRODUCE
EVERY SOURCE HE HAS EXAMINED OVER THE COURSE OF HIS ENTIRE
CAREER . 0... cece cect ent net ene t eens 21
XVII. EXPERTS’ TRIAL OPINIONS CANNOT BE CONFINED TO THEIR DEPOSITION
OPINIONS AS A MATTER OF LAW. ow... occ ect e nee 21
XVIII. SARGON DOES NOT CHANGE THIS CALIFORNIA COURT’S ROLE
REGARDING EXPERT OPINIONS «2.0... 0c ccc cece cent eee ene eee 24
CONCLUSION 0... c cece ccc eee n bene teen teen teen eee 28
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PLAINTIFF'S OPPOSITION TO JOINT DEFENSE MOTION JN LIMINE NO. 3 TO PRECLUDE PUBLICATION OF RICHARD COHEN’S
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TABLE OF AUTHORITIES

CASES

Adams v. Murakami (1991) 54 Cal.3d 105 0... eee eens 12
Anderson v. Owens-Corning Fiberglas Corporation (1991) 53 Cal.3d 987 ..........00. 1,3
Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68.0... 0.0... cece eee eee eae 6,7
Bartholomew v. SeaRiver Maritime, Inc., (2011) 193 Cal.App.4th 699.00... . 0... eee eee 8
Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764.0... 0... cece eee cece ene eee 2,3
Chavers vy. Gatke Corp. (2003) 107 Cal.App.4th 606 2.0.6.0... ccc c eee cece cence eee ee 9
County Sanitation Dist. No. 8 of Los Angeles County v. Watson Land Co. (1993)

17 Cal-App.4th 1268 00... cece nnn ete n nen enn tenes 17
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 wo... cece eee ee 24-26
Davis v. Sup Ct. (1984) 36 Cal.3d 291 oo cic cece cee tect e eee e nee 10
Douglas v. Ostermeier (1991) 1 Cal. App.4th 729 0.0... cece ccc eee ene 12
Fortney v. Tope (1993) 262 Mich 593 at 199; 247 NW 251
Genrich (1988) 202 Cal.App.3d 221 20.0... o cece ccc cece e eee ene eee
Gordon v. D & G Escrow Corp. (1975) 48 Cal.App.3d 616
Grimshaw _v. Ford Motor Co., 119 Cal.App.3d 757 2.0... cc te ec ee ee nec eee n eee
Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659 .... 0... cece eee ee hacer eee 11
Hilliard v. A.H. Robins Company (1984) 148 Cal.App.3d 374 2.0... cece eee eee eee 5-7
Hymen v. Gordon (1973) 35 Cal.App.3d 769 . 0.0.00. cece eee ee eens (ence ee eee 12, 13
Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962 0.0.0... c eee eee 11
Jensen v. SP (1954) 129 Cal.App.2d 67 2.0... cece ec cccceeeneeeennn ete eee 10
Jones v. John Crane, Inc, (2005) 132 Cal.App.4th 990... 0.6... e eee eee eee eee eee es 7,8
Kelley v. Trunk (1998) 66 Cal.App.4th 519... cece eee ee nee eee 17
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 00... coc teen 9
Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516... 0... ccc cece eee eee 20
Kumho Tire Co. v. Carmichael, 526 U.S. 152 (1999) 2.0... cece cence teen nes 24
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409 ......... 00... e eee e eee 9
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PLAINTIFF’S OPPOSITION TO JOINT DEFENSE MOTION JN LIMINE NO. 3 TO. PRECLUDE PUBLICATION OF RICHARD COHEN’S
HEARSAY DOCUMENTS TO THE JURYSo 0D mI DH BF WN

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TABLE OF AUTHORITIES (Cont’d.)
CASES (cont’d.)

Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629 ......... 14
Magnolia Square Homeowners Ass’n v. Safeco Ins. Co, (1999) 221 Cal.App.3d 1049 ..... 10
Mann v. Cracchiolo (1985) 38 Cal.3d.18 0.0... ccc ccc cece cence ene eee eee 11
Miller v. Silver (1986) 181 Cal. App.3d 652 0.0... ccc cece cece eee een n een enn 12
Naples Restaurant, Inc. v. Coberly Ford (1968) 259 Cal:App.2d 881 .........-.-.50-005 12
Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911.00... ec cece eee eee eee 18
Osbourne v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234 2.2.0... .. cee eee 12
Overly v. Ingalls Shipbuilding (1999) 74 Cal.App.4th 164 ....... 0.00. cece eee e eee eee 9
People v. Alexander (1963) 212 Cal.App.2d. 84 0.0.0... ceed cece ence cece eee eens 12
People v. Bordelon (2008) 162 Cal.App.4th 1311 ............. Lecce eee eee e ences 9,10
People v. Bui (2001) 86 Cal.App.4th 1187... .. cc cece cent eee ett e eee nee 20
People v. Catlin (2001) 26 Cal.4th 81 00... . cece n cee e eee eens 18, 19
People v. Gardeley (1996) 14 Cal 4th 605 0.0... cece cee cent eet n eee n eee 17
People v. Geier (2007) 41 Cal 4th 555 0. ccc cette center nee 19
People v. Kelly (1976) 17 Cal.3d 24 0.6... cece ccc eee eee ene e enn ene 25, 26
People v. Leahy (1994) 8 Cal.4th 587 00... c cece cece eee nett en ee 25
People v. Lucas (2014) 60 Cal.4th 153 0.0... cece cence eee nee
People v. Xue Vang (2011) 52 Cal.4th 1038

Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953) 0... eee eee eee eee eee 11
Sargon v. University of Southern California (2012) 55 Cal.4th 747 .............0000- 24-26

Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 ... 25, 26

Saller y. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220 ............. eee ee 9
Simon v. Steelman (1990) 224 Cal.App.3d 1002 2.0.0... c cece eee eee eee 10
Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77 0.00.06. c ccc cece eee eee nes 2
Stahos v. Lemids (1963) 213 Cal. App.2d 52 2.0... ccc eee cece eee eee ee

Structural Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987 (2008)

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PLAINTIFF’S OPPOSITION TO JOINT DEFENSE MOTION JN LIMINE NO. 3 TO PRECLUDE PUBLICATION OF RICHARD COHEN’S:
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TABLE OF AUTHORITIES (Cont’d.)
CASES (cont'd.

Taylor v. Superior Court (1979) 24 Cal.3d 890 00.6... cece cece enter e nee 6
Valentine y. Baxter Healthcare Corp., 68 Cal.App.4th 1479 0.0... 0c cee cece eee eee 19
Weathers v. Kaiser Found. Hosps. (1971) 5 Cal.3d 98 0.0... 0c cece cee cence eee ee 10
Younger vy. State Bar (1974) 12 Cal 3d 274.0... ccc ttn teen eee 10
STATUTES

California Civil Code §1714(a) .. 0... cece ccc cence eee ene e ete e tenes 2
California Civil Code § 3294 00.0... ce cence tern nent ee 4-6
California Code of Civil Procedure § 2034(a)(2) 20.6... ese e cece cent eee tenes 21
California Code of Civil Procedure § 2034(g) 00.0... c ccc eect cee e ene 21
California Evidence Code § 210 2.0... cece ncecnn ene n nen neces 5
California Evidence Code § 351.00... cece ccc ccc cence nn een n tees 5
California Evidence Code § 352 0.0... ccc ccc cence eter een nnees 7
California Evidence Code § 402 0.0... cece cece cece tenet tenet nen 25
California Evidence Code § 720 1.0... ccc cece eect eet eect eee teen nnes 13

California Evidence Code § 720(a)
California Evidence Code § 720(b)

California Evidence Code § 721... . cic cece eee eee eee

California Evidence Code § 801 2.0.0... ccc cece eee een nee eee 11, 13, 25, 26
California Evidence Code § 801(b) «0... ieee cc eee eee 13, 15-17, 19, 21, 26
California Evidence Code § 802 2.0... . ccc cece eee eens 17, 21-23
California Evidence Code § 1331... 0... cece cece cece eee nett nee eens 10
California Evidence Code § 1334 00... ccc cece cece eect tenet teen ene 10
California Evidence Code § 1341 2.0... ccc eect ene ane 10
Federal Rule of Evidence Code 703 10... 0... ccc cece tener n ene 16
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PLAINTIFF’S OPPOSITION TO JOINT DEFENSE MOTION JN LIMINE NO. 3 TO PRECLUDE PUBLICATION OF RICHARD COHEN’S.
HEARSAY DOCUMENTS TO THE JURYTABLE OF AUTHORITIES (Cont’d.)

MISCELLANEOUS
BAJI 9.00.7 ooo ee eee nner eee t nent ene 4
BAJI 9.20 0.0. enn eee enn n teen nee 2
CACTI 431 one nnnneeenn eee ene e ener tree nnn 11
CACL 435 Lo ener e eee eee eet eee 11
CACTI 1205 oo cece nee tent e eben tenet e ee 3,4
CACTI 1222 occ eee b nent n tebe n ete n enna enaes 2
Encyclopedia Britannica 2.0... 6... ccc eee eee tent te rene teen nee 8
Federal Rules of Evidence, rule 702 (28 U.S.C.) 0... ccc cee eee eee ene 21
Safety Engineering,"The Very Least an Employer Should Know About Dust

and Fume Diseases” 2.0.0... c ene nee een e nent e een enee 8
Witkin Evidence, §31 00.0... ccc ccc eee enn e eee net n eens 10
Witkin Evidence, § 34... icc eee erent een eee n tenes 10
Witkin Evidence, § 296, re Medical Texts 34 0... 0... e cece ccc cee et eee 10
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PLAINTIFF*S OPPOSITION TO JOINT DEFENSE MOTION JN LIMINE NO. 3 TO PRECLUDE PUBLICATION OF RICHARD COHEN’S:
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1 INTRODUCTION

Defendants’ convoluted motions to somehow exclude or limit Dr. Richard Cohen’s
black-letter law testimony of regarding state of the art or exposure must be denied as without
merit. To the extent that any defendant also raised a causation argument in its motion, rather
than repeat it here, plaintiffs refer to an incorporate their opposition to the defendants’ motion
regarding causation. Defendants seek to preclude an entire area of substantive knowledge
and/or exposure, which is fundamental to plaintiffs causes of action for negligence and product
liability failure-to-warn, as well as to punitive damages. Defendants often boldly contend that
Dr. Cohen can only testify about historical state of the art articles that are directly on point with
the particular products that the remaining defendants exposed the plaintiff to in this case. This
contention misconstrues prevailing California law on state of the art evidence and the facts of
this case. Plaintiffs are entitled to present complete state of the art evidence. Dr. Cohen has
routinely satisfied the expert testimony requirements and has been routinely permitted to testify.
Defendants’ motion must therefore be denied.

I. STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFF’S
NEGLIGENCE CLAIM.

Dr. Cohen will testify as to when the dangers of asbestos were first recognized, what
and when information about asbestos-related disease was published in the medical and
scientific literature, and what knowledge about causation and prevention of asbestos-related
diseases was available to whom. Documents and articles that he quotes from will be used for
this non-hearsay purpose of notice. Some of his opinions regarding state of the art are set forth
in his attached Declaration.

The important test for negligence is whether the danger was known or knowable in
light of the generally recognized and prevailing best scientific and medical knowledge

available at the time of the distribution. (Anderson v. Owens-Corning Fiberglas Corporation

(1991) 53 Cal.3d 987, 991.) Because Dr. Cohen is testifying specifically as to what was known
and knowable, his testimony is crucial and highly probative.

Mf

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PLAINTIFF'S OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE NO. 3 TO PRECLUDE PUBLICATION OF RICHARD COHEN'S
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In Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 97, the court held that the

defendant “should have foreseen the dangers given the publication of various medical and

industrial studies of asbestos diseases and promulgation of industrial safety standards and that

[the defendant] breached its duty to exercise ordinary care in the management of its premises

by failing . . . to take other reasonable precautions.” (Emphasis added.) Under CACTI 1222:

Plaintiff claims that the defendant was negligent by not using reasonable care to
warn [or instruct] about the {[product]’s dangerous condition or about facts
that make the [product] likely to be dangerous. To establish this claim,
[name of plaintiff| must prove all of the following: That [name of defendant]
knew or reasonably should have known that the [product] was dangerous or
was likely to be dangerous when used in a reasonably foreseeable manner. [
{Emphasis added.]

Under BAJI 9.20:

One who supplies a product directly or through a third person, for another to use,
which supplier knows or /as reason to know is dangerous or is likely to be
dangerous for the use for which it is supplied, has a duty to use reasonable
care to give warning of the dangerous condition of the product or of facts which
make it likely to be dangerous to those whom the supplier should expect to use
the product or be endangered by its probable use, if the supplier has reason to
believe that they will not realize its dangerous condition. A failure to fulfill that

duty is negligence. [Emphasis added.]

These jury instructions are meaningless if plaintiffs cannot establish what was known or
knowable. The only way to do that is through an historical state of the art analysis.

In seeking to exclude Dr. Cohen’s state of the art testimony, claiming that he is
somehow not knowledgeable about defendants or their specific sub-industry, defendants are
asking this Court to make a sub-industry-specific exception to the general duty of care. Such an
exception is not warranted. As stated in Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764,
768, “California law establishes the general duty of each person to exercise, in his or her
activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).).” The court
went on to say,

By making exceptions to Civil Code section 1714’s general duty of ordinary

care only when foreseeability and policy considerations justify a categorical

no-duty rule, we preserve the crucial distinction between a determination that the

defendant owed the plaintiff no duty of ordinary care, which is for the court to

make, and a determination that the defendant did not breach the duty of ordinary
care, which in a jury trial is for the jury to make. [Id. at 772.]

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To exclude Dr. Cohen’s testimony because it is not expressed in the specific contours
defendants iterated would create a categorical no-duty rule for this industry. Defendants owed

the Plaintiff a general duty of ordinary care, and Dr. Cohen’s testimony goes to the heart of this

duty. As the Cabral court expressed with regard to foreseeability,

We have explained that the court’s task in determining duty “is not to decide

whether a particular plaintiff's injury was reasonably foreseeable in light of a

particular defendant’s conduct, but rather to evaluate more generally whether

the category of negligent conduct at issue is sufficiently likely to result in the

kind of harm experienced that liability may appropriately be imposed ... .”

(Citations.) [Id. at 772.]

Dr. Cohen will testify about when the hazards (each of them) of asbestos were well-
known in the literature, and he will present appropriate examples of medical and scientific
literature to provide foundation for his testimony. This testimony is relevant to any defendant in
any industry which utilized asbestos. Defendants’ industry is a subset of that group, not
something categorically different. Plaintiff's particular disease, as well as all other asbestos-
related diseases, is included within potential risks, potential danger, dangerous condition, likely
to be dangerous. Dr. Cohen’s testimony is crucial to the jury’s evaluation of defendants’

negligent conduct.

Il. STATE OF THE ART TESTIMONY IS RELEVANT TO PLAINTIFF’S FAILURE-
TO- WARN CLAIM.

The same testimony applies to plaintiff's product liability claim for failure to warn. The
law is clear that there is a “knowability” requirement for a failure to warn strict liability claim:

(Al reasonably prudent manufacturer might reasonably decide that the risk of
arm was sucht as not to require a warning as, for example, if the manufacturer's
own testing showed a result contrary to that of others in the scientific
community. Such a manufacturer might escape liability under negligence
principles. In contrast, under strict liability principles the manufacturer has no
such leeway; the manufacturer is liable if it failed to give warning of dangers
that were known to the scientific community at the time it manufactured or
distributed the product. [Anderson v. Owens-Corning Fiberglas Corp. (1991) 53
Cal.3d 987, 1003.]

Plaintiffs can only demonstrate the dangers that were known to the scientific community
by means of expert testimony regarding the state of the art. This is restated in jury instructions:

CACI 1205 (emphasis added):

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PLAINTIFFS OPPOSITION TO JOINT DEFENSE MOTION /N LIMINE NO. 3 TO PRECLUDE PUBLICATION OF RICHARD COHEN’S.
HEARSAY DOCUMENTS TO THE JURYPlaintiff claims that the [product| lacked sufficient [instructions] [or] [warning °
of potential [risks/side effects/allergic reactions]]. To establish this claim,

laintiff must prove all of the following: That the [product] had potential
frisks/side effects/allergic reactions] that were [known] [or] [knowable by the
use of scientific knowledge available] at the time of
[manufacture/distribution/sale].

In addition, the CACI Judicial Counsel Advisory Committee notes that “[t]he advisory
committee believes that this standard is captured by the phrase ‘generally accepted in the
scientific community.’” (Ad. Comm. notes following CACI 1205.)

BAJI 9.00.7 (emphasis added):

A manufacturer has a duty to warn if 1) the use of the product in a manner that is
reasonably foreseeable by the manufacturer involves a substantial danger that
would not be readilv recognized by the ordinary user of the product. and 2) this
danger was known or knowable in light of the generallv recognized and
prevailing best scientific and medical knowledge available at the time of the
manufacture and distribution.

A manufacturer has a duty to provide an adequate warning to the user on how to
use the product if a reasonably foreseeable use of the product involves a
substantial danger of which the manufacturer either is aware or should be
aware, and that would not be readily recognized by the ordinary user.

A manufacturer has a duty to provide an adequate warning to the consumer of a
product of potential risks or side effects which mav follow the foreseeable use
of the product. and which are known or knowable in light of the generally
recognized and prevailing best scientific and medical knowledge at the time
of manufacture and distribution.

As is clear from these jury instructions, what was known or knowable lies at the heart of
plaintiffs’ case. To exclude Dr. Cohen from testifying would be akin to dismissing the entire
cause of action. Dr. Cohen’s testimony is critical to plaintiffs’ right to have a full trial based
upon the merits of their case.

IV. DR. COHEN’S TESTIMONY IS ALSO RELEVANT TO PLAINTIFFS CLAIM FOR
PUNITIVE DAMAGES

Plaintiffs’ complaint avers that certain defendants acted with malice, fraud, or
oppression with respect to their tortious conduct pursuant to Civil Code § 3294, et seq.
Evidence therefore that has any tendency in reason to prove or disprove plaintiff's punitive
claim is relevant as against certain defendants. As with failure to warn and negligence claims,

Ii

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what was known about the hazards of asbestos is highly relevant. Civil Code section 3294
provides as follows:
Exemplary damages; when allowable

(a) In an action for the breach of an obligation not arising from contract, where
the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in
addition to the actual damages, may recover damages for the sake of example
and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a),
based upon acts of an employee of the employer, unless the employer had
advance knowledge of the unfitness of the employee and employed him or her
with a conscious disregard of the rights or safety of others or authorized or
ratified the wrongful conduct for which the damages are awarded or was
personally guilty of oppression, fraud, or malice. With respect to a corporate
employer, the advance knowledge and conscious disregard, authorization,
ratification or act of oppression, fraud, or malice must be on the part of an
officer, director, or managing agent of the corporation.

(c) As used in this section, the following definitions shall apply:
(1) ‘Malice’ means conduct which is intended by the defendant to
cause injury to the plaintiff or conduct which is carried on by the
defendant with a conscious disregard of the rights or safety of
others.

(2) ‘Oppression’ means subjecting a person to cruel and unjust
hardship in conscious disregard of that person's rights.

(3) ‘Fraud’ means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a
person of property or legal rights or otherwise causing injury.

Clearly, evidence pertaining to what was known in the scientific and medical literature
is relevant to a claim regarding concealment of a material fact and a standard of “conscious
disregard.” To show what was concealed or disregarded, plaintiffs must show what was known.
Relevant evidence “means evidence . . . having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (CEC § 210.) Except
as otherwise provided by statute, all relevant evidence is admissible. (CEC § 351.)

The seminal California case on punitive damages is Hilliard v. A.H. Robins Company

(1984) 148 Cal.App.3d 374. The central holding of Hilliard was expressed as follows:

The conscious disregard concept of malice does not limit an inquiry into the
effect of the conduct and activities of the defendant on the plaintiff, the inquiry is
directed at and is concerned with defendant's conduct affecting the safety of

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others. Any evidence that directly or indirectly shows or permits an
inference that defendant acted with conscious disregard of the safety or
rights of others, that defendant was aware of the probable dangerous
consequence of defendant's conduct and/or that defendant wilfully and
deliberately failed to avoid these consequences is relevant evidence.
(Hilliard at 135-136, emphasis added.]

The rule enunciated in Hilliard was predicated in large part on the following rationale:

Failure to make changes in a known defective product, failure to remove such a
product from the market does not promote public safety. Such conduct is
contrary to any policy aimed at promoting or encouraging public safety. Such
conduct is admissible evidence on the punitive damage issue in order to provide
meaningful consumer protection against the manufacture and distribution of
dangerous, defective products. "Punitive damages ... remain as the most effective
remedy of consumer protection against defectively designed mass produced
articles. They provide a motive for private individuals to enforce rules of law and
enable them to recoup the expense of doing so...." (Grimshaw_v. Ford Motor
Co., 119 Cal.App.3d 757, 810, 174 Cal.Rptr. 348.)

Taylor v. Superior Court (1979) 24 Cal.3d 890 sets a standard of “conscious disregard” and
expressly contemplates and discusses an award of exemplary damages when non-deliberate
injury is alleged under a negligence cause of action:

We concur with the Searle observation that a conscious disregard of the safety of
others may constitute malice within the meaning of section 3294 of the Civil
Code. In order to justify an award of punitive damages on this basis, the plaintiff
must establish that the defendant was aware of the probable dangerous
consequences of his conduct, and that he wilfully and deliberately failed to avoid
those consequences. [Id. at 895-896.]

In Bankhead y. ArvinMeritor, Inc. (2012) 205 Cal.App.4th 68, the defendant knew by

the 1960's that workers exposed to asbestos dust from its product were at risk of developing
asbestos-related diseases. (Id. at p. 73.) Nonetheless, the defendant did not place any warnings
on its products until the early 1980's, and it continued to market asbestos-containing brakes
until its inventory was exhausted, sometime in the early 1990's. (Ibid.) The appellate court
found that the defendant’s “prolonged failure to take adequate measures to protect people who
worked with its products against a known hazard . . . justifie[d] the jury's conclusion that its
conduct towards workers exposed to the hazards in its products was malicious, fraudulent, or
oppressive.” (Id. at p. 86.)

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Because the defendant’s conduct continued over many years it “evinced an indifference
to or reckless disregard of the health and safety of Bankhead and those similarly situated.” (Id.
at p. 85.) Based on this evidence, the defendant’s conduct was found “highly” reprehensible
under federal due process guidelines and the court upheld the jury’s $4.5 million punitive
damages verdict. (Id, at p. 91.) Thus, in the same vein as Hilliard, the defendant asbestos
company’s conduct, continuing to market its product after it had knowledge of its hazardous
properties, was admissible to show its conscious disregard of the rights and safety of others to
justify the jury’s punitive damages verdict. Plaintiffs must show that defendants were aware of
the probable dangerous consequences of their conduct. Dr. Cohen’s testimony about the state
of the art is crucial to such a showing.

Relevant, admissible, competent evidence is subject to being excluded for policy
reasons distinct from probative value. Evidence Code § 352 states the policy as follows: “The
court in its discretion may exclude evidence if its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or misleading the jury.” As
clearly stated in Hilliard, plaintiffs are entitled to present relevant evidence, including

Dr. Cohen’s testimony, to this jury.

V. BLACK-LETTER LAW DIRECTLY ON POINT REGARDING DR. COHEN

In Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 998, the First District carefully

examined Dr. Cohen’s state of the art testimony and used his testimony as the salient reason the
jury’s finding as to negligence and product liability failure to warn was supported by substantial
state of the art evidence. The court specifically addressed that “[d]efendant contends that the
jury’s finding that it had such knowledge is not supported by the record because it did not have
actual knowledge of any danger associated with its product until after Jones had retired, nor did
it have any basis to suspect such danger.” (Id. at 1004.) The Court of Appeal then refutes that
contention in discussing Dr. Cohen’s state of the art testimony as to what was “scientifically
known or knowable,” and holds:

Mi

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Based on a review of the historical literature, Dr. Cohen testified that by 1930 it
was well established in the medical and scientific communities that asbestos
causes asbestosis. By 1951 or 1952, medical texts such as the Encyclopedia
Britannica noted that asbestos probably causes lung cancer, and a 1955 medical
article noted that the majority of investigators accepted the fact that asbestos
causes lung cancer. Dr. Cohen testified that beginning in 1946 the American
Conference of Governmental Industrial Hygienists published standards for
airborne asbestos dust exposure. Similar standards were adopted by the federal
government in 1971. This evidence amply supports the jury’s finding that
the risks associated with Crane’s products, if not actually known by
defendant at the time of Jones’s exposure, reasonably could have been
ascertained. There was ample evidence to support the jury’s rejection of
defendant’s claim that it had no reason to suspect there was any danger
associated with its product. Although no formal studies were performed on the
risks associated with packing and gaskets until after 1980, Dr. Cohen testified
that articles published. as early as 1950 connected packing and gaskets to the
potential risk of asbestos-related disease. Crane’s diligence in investigating
the safety of its products was called into question by the evidence that it did not
study the safety of its products for a significant time after purportedly learning of
the dangers of asbestos, and did not begin warning its customers of the dangers
associated with its products until 1983.

The Court opined that Dr. Cohen’s testimony in Jones provided “ample evidence to
support the jury’s rejection of defendant’s claim that it had no reason to suspect there was any
danger associated with its product,” even though “no formal studies were performed on the
risks associated with packing and gaskets until after 1980.” (Id. at 1004.) His testimony
provides “ample evidence” regarding the risks, even “if not actually known by defendant at the
time of [plaintiffs] exposure, reasonably could have been ascertained.” (Id.)

In Bartholomew v. SeaRiver Maritime, Inc. (2011) 193 Cal.App.4th 699, the First

District held:

Additionally, according to Richard Cohen, M.D., a ‘state of the art’ expert, ‘the
need for safely precautions, including use of worker respiratory protection to
prevent asbestos-related diseases was well described in literature prior to 1949.
...’ Dr. Cohen referred to a report generated by the chief safety inspector for
Standard Oil Company of New Jersey, which discussed “the health hazards
associated with occupational exposure to asbestos, and the need for safety
precautions to protect workers from asbestos dust, including the use of masks,
respirators and wet-down procedures to prevent asbestos-related disease.”
(Bonsib, Roy A., Dust Producing Operations in the Production of Petroleum
Products and Associated Activities (July 1937).) Dr. Cohen also referenced an
article in which the author opined that “breathing of dust under the following
conditions is seriously harmful: ... [{] ... [§]] Asbestos and every operation in
which it is used.” (Willson, Frederick, M.D., The Very Least an Employer
Should Know about Dust and Fume Diseases (Nov. 1931) Safety Engineering, p.
318.) Based on this information and his expertise and experience regarding the
historical state of the art of the hazards of asbestos exposure, Dr. Cohen opined
that ‘by at least 1937’ the ‘health hazards associated with occupational exposure

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HEARSAY DOCUMENTS TO THE JURYto asbestos’ were known, and the ‘specific methods and steps to prevent

asbestos-related injuries to exposed workers’ were also known.

Given the Court of Appeal’s substantial reliance upon Dr. Cohen’s testimony regarding
the state of the art in affirming the findings below, this Court should not preclude any scientific,
medical, or other publications upon which Dr. Cohen relies, regularly testifies to as historical
state of the art, and may rightfully testify to under prevailing California law. Any preclusion of
that testimony would run directly contrary to black-letter law.

VI. BLACK-LETTER LAW REGARDING STATE OF THE ART

An expert’s testimony with regard to state of the art in asbestos litigation has been
alluded to (and found unproblematic) in numerous decisions. In Kinsman v. Unocal Corp.
(2005) 37 Cal.4th 659, the Supreme Court alluded to the testimony of Dr. Barry Castleman
about the general public’s knowledge of the hazards of asbestos (fn. 7). In Overly v. Ingalls
Shipbuilding (1999) 74 Cal.App.4th 164, the Appellate Court refers in passing to
Dr. Castleman’s testimony about the “growing awareness of risks of asbestos exposure
beginning with acknowledgments by the medical community as early as the 1890's.” (Id. at
168.) Dr. David Egilman’s trial testimony was mentioned in Chavers v. Gatke Corp. (2003)
107 Cal.App.4th 606. Dr. Cohen’s trial testimony about causation was one of the factors
considered by the Appellate Court in Lineaweaver v. Plant Insulation Co. (1995)

31 Cal.App.4th 1409.
In Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, the court wrote,

“At trial, expert testimony established that sometime between the 1920's and 1960's, the
scientific community became aware that asbestos was dangerous. . . . (Id. at 1229.) The court
even summarized some of the papers that the experts relied upon ~ the same thing that

Dr. Cohen wil! be doing in his testimony.

VII THIS NON-HEARSAY NOTICE LITERATURE CAN BE PUBLISHED TO THE
JURY

The historical literature that Dr. Cohen will discuss during his testimony, as non-

hearsay notice of what was known or knowable, can be published to the jury. In short, since he

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can say it, he can show it. (Davis v. Sup Ct. (1984) 36 Cal.3d 291; People v. Bordelon (2008)
162 Cal.App.4th 1311, 1324; Evid. Code §§ 721, 1331, and 1334. See, also, Jensen v. SP
(1954) 129 Cal.App.2d 67, 75 and Younger v. State Bar (1974) 12 Cal 3d 274, 286; 4th Witkin
Evidence, § 296, re Medical Texts, pp. 1005-06 (referencing Fed. Rule 803(18) and Mueller &
Kirkpatrick 2™, § 498, and Evid. Code §§ 1416, 1417. See, also, Witkin Evidence, §§ 31, 34, re

"words of notice, " pp. 714-716. See, also, Stahos v. Lemids (1963) 213 Cal.App.2d 52, 57;
People v. Bordelon (2008) 162 Cal.App.4th 1311, 1324; CEC § 1341 (2012) publications
concerning facts of general notoriety and interests.)

Dr. Cohen’s documents and articles fall outside the scope of the hearsay rule:

There is a well-established exception or departure from the hearsay rule applying

to cases in which the very fact in controversy is whether certain things were said

or done and not as to whether these things were true or false, and in these cases

the words or acts are admissible not as hearsay, but as original evidence.
(Simon _v. Steelman (1990) 224 Cal.App.3d 1002 at 1006, fn. 3, emphasis added; Weathers v.
Kaiser Found. Hosps. (1971) 5 Cal.3d 98 at 109 {juror declarations were admitted not for the
truth of the matter stated, but to show the bias of the speakers in support of a motion for a new
trial on the grounds of irregularities in the proceedings of the jury and jury misconduct].)

In Magnolia Square Homeowners Ass’n v. Safeco Ins. Co. (1999) 221 Cal.App.3d 1049

at 1056-1057, a complaint which was offered to show notice or knowledge of structural defects
was admitted into evidence. The appellate court found that use of a document to show notice or
knowledge is a non-hearsay purpose. (Id. at p. 1057.) Instead, the complaint was offered to
show “the fact of notice, rather than its basis” and so its admission into evidence did not violate
the hearsay rule. (Ibid.) Likewise, reference to the contents of a document, not to prove its

truth, but to prove an inference that a listener would have derived from the content, was held to

be a non-hearsay purpose. (Gordon v. D & G Escrow Corp. (1975) 48 Cal.App.3d 616 at 626.)
As thoughtfully stated in a Michigan case, “A person has no right to shut his eyes or his ears to
avoid information and then say he had no notice, he does wrong not to heed the signs and
signals seen by him.” (Fortney v. Tope (1993) 262 Mich 593 at 199; 247 NW 251.)

Mt

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In essence, it is analogous to a stop sign at an intersection. The question is not whether
the stop sign is true or false, but rather whether it exists to notify drivers that they must stop.
The failure to heed the sign is the issue, not whether the words are true or not. Similarly, the
failure of the defendants to heed articles published in medical and scientific literature about the
dangers of asbestos exposure, not its accuracy, is at issue in this case. Thus, plaintiffs are
entitled to present all relevant evidence that can show defendants were on notice that asbestos

was hazardous.

VIII. DR.COHEN’S TESTIMONY IS IN ACCORD WITH CALIFORNIA CAUSATION
LAW.

Dr. Cohen’s testimony is in full accord with the science on the subject of asbestos
disease causation, the relevant jury instructions, CACI 431 and 435, and the three black-letter

California law cases directly on point: Izell v. Union Carbide Corp. (2014) 231 Cal-App.4th
962; Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659; and Rutherford v. Owens-Illinois

Inc. (1997) 16 Cal.4th 953. The relevant excerpts of those cases are set forth on the attached
Exhibit A.
Ix. DR. COHEN IS A PROPERLY QUALIFIED EXPERT

Evidence Code § 801 permits the opinion testimony of experts before the jury on
subjects “sufficiently beyond common experience” that “would assist the trier of fact.” Such
expert opinion testimony must be “[b]ased on matters (including his special knowledge, skill,
experience, training and education) perceived by or personally known to the witness or made
known to him . . . that is of a type that reasonably may be relied upon by an expert in forming
an opinion upon the subject to which his testimony relates. . . .”

To qualify as an expert witness under Evidence Code § 720(a), one is required to have
“special knowledge, skill, experience, training, or education . . . to which [his or her] testimony
relates.” Such expertise, “may be shown by any otherwise admissible evidence,” including the
witness’s own testimony. (Evidence Code § 720(b).) There are no rigid classifications
regarding the qualifications of an expert to testify on a specific subject within the expert’s

general expertise. (Mann v. Cracchiolo (1985) 38 C.3d. 18, 38.) An expert is entitled to give

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an opinion based on his technical training and the trier of fact may or may not accept his
testimony as proper and necessary to an enlightened consideration and a correct disposition of
the ultimate issue. (Rosenberg v. Goldstein (1966) Cal.App.2d 25, 30.)

An expert may testify regarding a subject within his expertise despite the lack of
occupational experience in the particular field. (Miller v. Silver (1986) 181 Cal.App.3d. 652,
660.) Work ina particular field is not a prerequisite to qualification of an expert in that field.

(Osbourne v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 274; see also People v.

Alexander (1963) 212 Cal.App.2d. 84, 91; Naples Restaurant v. Coverly Ford (1968)
259 Cal.App.2d. 881, 884; Hymen v. Gordon (1973) 35 Cal.App.3d. 769, 774.)

The Court is required to give liberal interpretation of the qualifications necessary for an
expert to testify, since the expert’s qualifications go to the weight, not the admissibility, of his
or her testimony. (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729; Adams v. Murakami
(1991) 54 C.3d. 105.)

Xx. DR. COHEN POSSESSES MORE THAN ADEQUATE “SKILL. EXPERIENCE,

TRAINING: AND EDUCATION” TO ESTABLISH FOUNDATION FOR HIS

Dr. Cohen will testify as to the historical “state of the art” with regard to asbestos

exposure and disease, exposure, and causation, all subjects beyond the common experience of a
typical juror. He has given testimony on this subject in numerous trials and depositions, and the
foundation for his testimony will be properly laid at trial. He has the requisite knowledge,
skill, experience, training, and education to qualify as an expert and to provide the jury with
information it needs to come to a verdict in this case.

Defendants ridiculously argue that Dr. Cohen is somehow not qualified since he is not a
“certified industrial hygienist.” This is irrelevant, since there is absolutely no law that requires
an expert on exposure to be a CIH. Moreover, Dr. Cohen is a Board-certified occupational and
preventive medicine M.D. who also has a Ph.D. in Epidemiology. He is the professional that a
team of CIHs and nurses report to. He is the guy every CIH wishes he could be. Moreover,
there is no evidentiary requirement that an expert have every credential imaginable. Nor is

there any evidentiary requirement for specific certification at all. Dr. Cohen’s credentials

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more than satisfy Evidence Code Section 801(b), given that there is no evidentiary requirement
for specific certification at all. In the Hymen case, supra, the court noted:

He had conducted numerous inspections of buildings for the purpose of locating
fire hazards and had regularly advised other professionals, including builders and
architects, regarding fire safety. The trial court rejected his testimony,
apparently on the ground that the could offer nothing relevant concerning the
particular item of construction in issue, i.e., a water heater. Admittedly, [the
expert] was not a plumbing or building expert; his expertise related to fires and
fire hazards.... Under these circumstances, [the expert] should have been
allowed to testify. Evidence Code § 720 states that a “person is qualified to
testify as an expert if he has special knowledge, skill, experience, training or
education sufficient to qualify him as an expert on the subject to which his
testimony relates.” Evidence Code § 801 provides that “if a witness is testifying
as an expert, his testimony in the form of an opinion is limited to such an
opinion as is: (a) related to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact...”

[The Expert] was well qualified to offer what information he possessed

concerning fire hazards and the properties of gasoline in relation to allegedly

defective house design, subjects beyond the common knowledge of the jurors.

[Citations omitted]. The refusal to allow his testimony, in our view, constituted

an abuse of discretion on the part of the trial court, and reversible error. (Hymen

y. Gordon, supra, at page 774-775.)

Dr. Cohen is a Board-certified occupational and preventive medicine M.D. who also has
a Masters in Public Health (‘M.P.H”) specializing in Epidemiology. His extensive education,
background, training, and experience, as well as some of his main opinions, are set forth in
detail in his attached Declaration and will not be repeated here. He is the professional to whom
teams of Certified Industrial Hygienists (“CIHs”) and nurses regularly report. Industrial
hygienists evaluate workplaces for hazardous airborne and skin exposures. ClHes examine how
chemicals and materials become part of workplace dusts, and how those materials then get into
a worker’s body. They use equipment to measure the amount of substance in the air and
perform dust counts. Additionally, CIHes implement or recommend workplace controls for
hazardous substances, such as the chemicals in the dust. Such recommendations may include
steps to reduce the amount of dust in the air. Dr. Cohen would oversee and direct teams of
people who also may qualify to opine as experts themselves.

Finally, any doubts the jury sustains as to Dr. Cohen’s credibility are for the jury to
resolve. The degree of his knowledge is a matter affecting the weight of his testimony, not its

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admissibility. (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629,

658.) As succinctly stated in the Los Altos E] Granada Investors case,

...The essential questions which must be favorably answered to qualify a witness

as an expert are two: Does the witness have the background to absorb and

evaluate information on the subject? Does he have access to reliable sources of

information about the subject?... [Los Altos, supra.]

Dr, Cohen has researched and published numerous articles on occupational health and
industrial toxicology. This research includes the area of asbestos, what was known about the
health hazards of asbestos, and when such information would have been reasonably known. He
has researched and reviewed extensive medical, scientific, regulatory, and governmental
publications regarding asbestos, including hundreds of publi