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

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HASSARD BONNINGTON LLP

Edward E. Hartley, Esq. (#122892) eeh@hassard.com

Barry N. Endick, Esq. (#142097) bne@hassard.com ELECTRONICALLY
275 Battery Street, Suite 1600 FILED
San Francisco, California 94111-3370 ‘Superior Court of Caltfomia,
Telephone: (415) 288-9800 County of San Francisco
Fax: (415) 288-9802 10/16/2015

Clerk of the Court
BY:ALISON AGBAY

Attorneys for Defendant Deputy Clerk

ALTA BUILDING MATERIAL CO.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION
KENNETH MOSES, SR., No. CGC-13-276180
MOTION JN LIMINE NO. 2

Plaintiff,

DEFENSE MOTION JN LIMINE TO
vs. PRECLUDE TESTIMONY OR
EVIDENCE OF PLAINTIFF’S
SPECULATIVE AND INADMISSIBLE
“EVERY EXPOSURE” THEORY OF
CAUSATION; OR, IN THE
ALTERNATIVE, REQUEST AN
EVIDENCE CODE §402 HEARING

Trial Date: October 14, 2015

KAISER GYPSUM COMPANY, INC.,
etal.,

Defendants.

Time: TBD
Dept.: 306
Judge: Hon. Richard B. Ulmer, Jr.

Defendants jointly move this Court, in limine, for an Order to exclude
Plaintiff's witnesses and purported experts from impermissibly opining that “no safe
dose exists” or that “every exposure above background levels” substantially
contributes to the development of his alleged asbestos-related disease. For example,
Plaintiff's putative expert, Dr. Richard Levy, testified in deposition that “any potential
exposure within the aggregate exposure period can’t be separated one from the

other.” Exhibit A to the Declaration of Edward E. Hartley’, p. 55:13-22. Defendants

‘ All exhibit references are to the Declaration of Edward E. Hartley

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DEFS' JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE OF PLAINTIFF'S SPECULATIVE AND INADMISSIBLE
"EVERY EXPOSURE” THEORY OF CAUSATION; OR, IN THE ALTERNATIVE, REQUEST AN EVIDENCE CODE §402 HEARING
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respectfully request that the Court exclude all evidence, opinion, or argument
regarding the every exposure theory; or alternatively, hold an Evidence Code §402

hearing to receive evidence and argument on the following:

¢ Plaintiffs “every exposure counts” theory is unreliable under the Kelly
rule and lacks a scientific foundation;
e Plaintiff's theory contradicts the Rutherford decision which holds that

“negligible” exposures do not constitute a substantial factor; and

e Plaintiff's experts have previously been precluded from offering these
scientifically unsupportable opinions.

Plaintiff must establish through credible and admissible quantitative
evidence that: (1) Plaintiff's cumulative exposure to asbestos allegedly released by
each Defendant was more than de minimis; and (2) based upon reasonable medical
probability, competent scientific evidence links that exposure level to the known

etiology of alleged asbestos diseases. Rutherford v. Owens-lllinois, Inc. (1997) 16

Cal.4th 953. Permitting Plaintiff to argue “every exposure” caused the alleged
asbestos-related disease eliminates these requirements.
|. ARGUMENT

A. This Court’s Gatekeeper Role Mandates the Exclusion of
Speculative or Unsupported Assumptions or Opinions

The opinion that every exposure constitutes a substantial contributing
factor because exposures cumulatively cause the disease is irreconcilable with the
recognized scientific principal that the risk of developing a disease increases or
decreases depending on the nature of the exposure, which depends on the amount,
duration, and frequency of the exposure. The People v. Kelly (1976) 17 Cal.3d 24
requirement of “general acceptance” means a consensus must be drawn from a
typical cross-section of the relevant, qualified, scientific community. People v. Shirley
(1982) 31 Cal.3d 18, 55-56. “[The] burden of showing general acceptance lies with
the proponent of the evidence to show a ‘scientific consensus,’ and that ‘if a fair
overview of the literature discloses that scientists significant either in number or

expertise publicly oppose [the technique] as unreliable, the court may safely conclude
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DEFS' JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE OF PLAINTIFF'S SPECULATIVE AND INADMISSIBLE
“EVERY EXPOSURE” THEORY OF CAUSATION; OR, IN THE ALTERNATIVE, REQUEST AN EVIDENCE CODE §402 HEARING
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there is no such consensus at the present time.” People v. Leahy (1994) 8 Cal.4th
587, 611. Expert witnesses are limited to offering expert opinions “[rjelated to a
subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” Evid. Code §801(a). Expert opinions based on
assumptions lacking evidentiary support or speculative or conjectural facts have no
value and must be excluded. Dee v. PCS Property Mgmt., Inc. (2009)

174 Cal.App.4th 390, 404.

Evidence Code §402 provides for the Court to preserve its gatekeeping
role by excluding unreliable expert testimony. This section mandates that “[w]hen the
existence of a preliminary fact is disputed, its existence or nonexistence shall be
determined” by the Court, which has the power to “hear and determine the question of
the admissibility of evidence out of the presence or hearing of the jury. ...” (Id.) In
addition, under Evidence Code §§801 and 802, the trial court acts as a gatekeeper to
exclude expert opinion testimony that is (1) based on matter of a type on which an
expert may not reasonably rely, (2) based on reasons unsupported by the material on
which the expert relies, or (3) speculative. Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 771-772. Plaintiff alone bears the burden
of proving competence, relevance, and reliability. The every exposure theory is

neither competent nor reliable.

B. “Every Exposure” Opinions Are Conjectural Assertions
Improperly Tailored to Establish the Liability of No-Dose or
Low-Dose Defendants

1. Sclafani v. Air and Liquid Systems (Central District of
California)

The United States District Court for the Central District of California, in
David Sclafani v. Air and Liquid Systems Corp., granted Defendants’ motion to
preclude Plaintiff's experts from testifying that “every exposure” to asbestos is a
substantial factor in causing his alleged asbestos-related disease. Exhibit B

(“Sclafani Order.”) Like Plaintiff's experts here, Dr. Arnold Brody in Sclafani intended
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DEFS' JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE OF PLAINTIFF'S SPECULATIVE AND INADMISSIBLE
“EVERY EXPOSURE" THEORY OF CAUSATION; OR, IN THE ALTERNATIVE, REQUEST AN EVIDENCE CODE §402 HEARING
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to opine that “[eJach and every exposure to asbestos that an individual with
mesothelioma experienced in excess of a background level contributes to the
development of the disease.” /d. at p. 6. The Sclafani Court analyzed Rutherford v.
Owens-lllinois, Inc. (1997) 16 Cal.4th 953, and excluded Dr. Brody for two reasons.
“First, as a legal issue, accepting Dr. Brody’s opinion as true would render the
‘substantial factor’ prong of the [Rutherford] causation test meaningless.” /d. at p. 6.
Particularly, the Court pointed out that “[i]f ‘each and every exposure’ is a substantial
factor in leading to the development of mesothelioma, then all a plaintiff would have to
do is prove (1) that he had mesothelioma, and (2) that he was exposed to asbestos at
some time.” /d. The Sclafani Court also excluded Dr. Brody because “Plaintiffs have
failed to carry their burden of demonstrating this opinion is relevant and reliable . . .
[and] failed to demonstrate that Dr. Brody's opinion is the product of reliable
techniques.” (/d. p. 7.)

2. Numerous Other Courts Have Excluded the “Every
Exposure” Theory

Several other Courts have struck the unfounded “every exposure”
theory. See Memorandum Opinion, dated January 18, 2013, in Smith v. Ford Motor
Co., U.S.D.C., Utah, Exhibit C. Juni v. A.O. Smith Water Products, No. 190315/12,
2015 WL 1840006 (N.Y. Sup. Ct. Apr. 13, 2015) attached as Exhibit D.

Both the Smith and Junni opinions strongly support the proposition that
the every exposure theory does not hold up under careful examination. The theory is
best described as a collection of general propositions used to describe a conclusion,
which fall far short of supporting the legal liability he attempts to reach with them.” Id.
Smith, supra, Exhibit C, at pp. 4-5. The Juni Court concluded that in asserting that
the “cumulative exposure controls, plaintiffs avoid the requirement of showing even
an approximate quantification, not only as a matter of law, but as a matter of science,
and fail to offer sufficient evidence that any specific exposure increases the risk of a

disease and is thus a significant factor to causing the disease. /d. at 35.
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DEFS’ JOINT MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE OF PLAINTIFF'S SPECULATIVE AND INADMISSIBLE
“EVERY EXPOSURE" THEORY OF CAUSATION; OR, IN THE ALTERNATIVE, REQUEST AN EVIDENCE CODE §402 HEARING
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3. The “Every Exposure” Theory Contradicts the
Rutherford Decision

Under Rutherford, mere proof of exposure to “some” level of asbestos
fibers cannot, without more, support a finding of causation. If that were the case, then
a plaintiff could satisfy his prima facie burden simply by showing any exposure, and
could shift the burden to a defendant to negate causation. Yet that is precisely
plaintiffs’ “alternative liability” and “burden shifting” argument that Rutherford flatly
rejected. Rutherford v. Owens-lllinois, Inc. (1997) 16 Cal.4th 953, 980.

No expert for plaintiff will provide a quantitative evaluation of the
asbestos fibers that Plaintiff allegedly inhaled due to work performed by Defendants.
Consequently, they are forced to rely upon fringe theories postulating that “every
exposure” above ambient levels satisfies the Rutherford causation standard.

Il. CONCLUSION

Plaintiff's witnesses and purported experts should not be allowed to
opine that every exposure is a substantial contributing factor in causing Plaintiff's
alleged asbestos-related disease. Plaintiff must establish a Rutherford threshold
exposure to establish substantial factor causation. Plaintiffs experts’ “every
exposure” opinions should be excluded. In the alternative, a preliminary California
Evidence Code Section 402 hearing should be conducted so the Court can hear first-
hand the manner by which Plaintiffs’ experts try to defend this unscientific theory.

Dated: October _, 2015

HASSARD BONNINGTON LLP

“Edward E. Hartley

Attorneys for Defendant
ALTA BUILDING MATERIAL CO.

5.

DEFS' JOINT MOTION /N LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE OF PLAINTIFF'S SPECULATIVE AND INADMISSIBLE
"EVERY EXPOSURE" THEORY OF CAUSATION; OR, IN THE ALTERNATIVE, REQUEST AN EVIDENCE CODE §402 HEARING
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PROOF OF SERVICE

CASE NAME: Kenneth Moses, Sr., et al. v. Kaiser Gypsum Company, Inc.,
etal.

COURT: San Francisco Superior Court
CASE NUMBER: CGC-13-276180

I, the undersigned, hereby certify that | am a citizen of the United States, over
the age of eighteen years, and am not a party to the within action. | am employed in
the City and County of San Francisco, California, and my business address is 275
Battery Street, Suite 1600, San Francisco, California 94111-3370. On the date last
written below, following ordinary business practice, | electronically served the
following document(s):

MOTION IN LIMINE NO. 2, DEFENSE MOTION IN LIMINE TO PRECLUDE
TESTIMONY OR EVIDENCE OF PLAINTIFF’S SPECULATIVE AND
INADMISSIBLE “EVERY EXPOSURE” THEORY OF CAUSATION; OR, IN THE
ALTERNATIVE, REQUEST AN EVIDENCE CODE §402 HEARING

via File & ServeXpress on the recipients listed below and designated on the
Transaction Receipt located on the File & ServeXpress website.

| declare under penalty of perjury that the foregoing is true and correct and that
this Proof of Service was executed on October 16, 2015 at San Francisco, California.

Daniel Black

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