Preview
JENNIFER JUDIN (SBN 256973)
jjudin@dehay.com
GEORGE A. OTSTOTT (SBN 184671)
gotstott@dehay.com
JEFFREY T. THAYER (SBN 215911)
jthayer@dehay.com
DEHAY & ELLISTON LLP
1111 Broadway, Suite 1950
Oakland, CA 94607
Telephone: (510) 285-0750
Facsimile: (510) 285-0740
Attorneys for Defendant
KAISER GYPSUM COMPANY, INC.
ELECTRONICALLY
FILED
Supertor Court of Caiffornia,
County of San Francisco
10/16/2015
Clerk of the Court
BY:RONNIE OTERO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
KENNETH MOSES, SR.,
Plaintiff,
v.
KAISER GYPSUM COMPANY, INC. et al.,
Defendants.
CASE NO.: CGC-13-276180
JOINT DEFENSE MOTION IN LIMINE
DEFENDANTS’ MOTION IN LIMINE
TO PRECLUDE PUBLICATION OF
RICHARD COHEN’S HEARSAY
DOCUMENTS TO THE JURY
Trial Date: October 13, 2015
Time: 11:15 a.m.
Dept: 503; Hon Teri L. Jackson
Action Filed: August 21, 2013
JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO
THR JURYKAISER GYPSUM COMPANY, INC. (“Kaiser Gypsum”) and all remaining
DEFENDANTS, prior to trial and selection of a jury, move this Court for an in Limine Order
precluding the publication of hearsay documents of Dr, Richard Cohen to the jury.
Under the guise of “state of the art” testimony, Plaintiff will attempt to introduce into
evidence through Dr. Richard Cohen certain documents on the so-called “historical development
of medical and scientific information” on the dangers associated with inhalation of asbestos.
Plaintiff will attempt to improperly publish various “state of the art” documents to the jury
by placing them on the overhead projector to be read by the jury, or referencing and reading
portions, passages and quotes from the documents in direct examination. Dr. Cohen will also
attempt to publish these documents to the jury by referencing and reading passages or quotes
from the documents in his response to Plaintiff counsel’s questions while using the overhead
projector, Plaintiffs counsel may also attempt to cross-examine Defense experts on them,
Plaintiffs counsel will also attempt to elicit testimony from Dr. Cohen that there are
literally several thousand articles and documents written about asbestos and disease. If Dr. Cohen
went back to 1970, there would be over a thousand documents that Dr. Cohen looked at related to
asbestos and disease published before that date. See Cohen Trial Testimony in Desin, 09/10/12
P.M., pg. 89:3-23, attached hereto as Exhibit “A” to the Declaration of George A. Otstott, Esq.
(hereafter “Otstott Decl.”). Dr, Cohen is also expected to testify about a bibliography that
identifies over three hundred (300) documents that he will be questioned about at trial and
Plaintiff's counsel is expected to refer to and attempt to show the jury the five (5) binders which
contain the materials reflected in the Cohen bibliography.
Dr. Cohen is not the author of any of the documents in question. Under Evidence Code
section 1200 these documents and any publication of them to the jury by counsel or Dr. Cohen is
inadmissible hearsay with no applicable statutory exception.
A. Dr. Cohen May Not Under The Guise Of Reasons For His Opinions Bring Before
The Jury Incompetent Hearsay Evidence.
An expert may state on direct examination the matters on which his or her opinion is
based. (People v. Catlin (2001) 26 Cal.4th 81, 137.) An expert may not, however, testify as to
1!
JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO
THE JURYthe details of matters if they are otherwise inadmissible. This includes hearsay evidence as
defined by Evidence Code section 1200 which excludes such evidence as inadmissible. Among
other things, an expert may not testify as to the context of reports on which his opinion is based.
(Continental Airlines, Inc. vy. McDonnell Douglas Corp. (1989) 26 Cal.App.3d 388, 416.) The
court may exclude from an expert’s testimony any hearsay matter whose irrelevance,
unreliability, or potential for prejudice outweighs it proper probative value. (/d, at p. 137.)
Reading from any of the documents Dr. Cohen has collected is hearsay and should be excluded.
Dr. Cohen may not regurgitate the contents of these inadmissible hearsay documents
under the guise of giving expert testimony. (People v. Coleman (1985) 38 Cal.3d 69, 92;
Continental Airlines, Inc. v. McDonnell Douglas Corp., supra, 26 Cal.App.3d at 414-416.)
In Coleman, the Supreme Court describes the rule as follows:
While an expert may state on direct examination the matters on which he
relied in forming his opinion, he may not testify as to the details of such
matters if they are otherwise inadmissible. The rule rests on the rationale
that while an expert may give reasons on direct examination for his opinions,
including the matters he considered in forming them, he may not under the
guise of reason bring before the jury incompetent hearsay evidence.
Dr. Cohen should not be permitted to testify as to the contents of the hearsay documents
including quoting, summarizing, or giving any details about the contents of the documents.
Under Coleman, Dr. Cohen may state only that he has relied on the hearsay documents, “he may
not testify as to the details of such matters [because] they are otherwise inadmissible.” Jd. In
addition, Plaintiffs counsel should not be permitted to publish the documents by placing them on
the overhead projector to be read by the jury, or referencing and reading portions, passages or
quotes from the documents in direct examination or on cross-examination. Admission of such
hearsay would be unduly prejudicial to Defendant(s) since it will be impossible for Defendant(s)
to address the methods, underpinnings, and assumptions of these materials because the authors of
such materials will not be subject to cross examination.
B. The “State Of The Art” Documents Are Inadmissible Under Evidence Code
Section 1200 - No Exceptions.
Plaintiff will argue that the documents and publication of them are not hearsay because
2
JOINT DEFENSE MOTION IN LIMINE NO, 3; MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO
THE JURYthey are not offered for the truth of the matters asserted, but instead show that Defendant(s)
should have been on “notice” as to information about hazards associated with asbestos. This is a
deceptive rationale because to trigger a duty to warn, the notice in question must be of factual
findings — that is, of reliable, truthful, non-speculative knowledge concerning dangers related to
Defendant(s)’ products, including Kaiser Gypsum’s drywall/joint compound. Thus, Plaintiff's
offer of the documents and/or counsel’s or Dr, Cohen’s publication of them necessarily asks the
finder of fact to assume the truth of the contents. While asking the finder of fact to make that
assumption, however, Plaintiff necessarily asks the Court to ignore it — that is, to overlook the fact
that proffering a statement as evidence of notice is equivalent to advancing an argument for their
truth.
The impropriety of expert testimony that published out-of-court opinions and conclusions
ostensibly for “notice” was addressed by the California Supreme Court in Whitfield v. Roth
(1974) 10 Cal.3d 874, Whitfield dealt with out-of-court statements admitted, over objection, to
show the basis for expert opinion about the interpretation of x-rays in a medical malpractice case.
The plaintiff in Whitfield, paralyzed as a result of delays in treatment, contended that a particular
set of x-rays were sufficient to put defendant physician and hospital “on notice” of her brain
tumor. (/d,, at 893.) Two testifying physicians cited (and recited) the out-of-court statements of
some 54 other doctors as the basis for the witnesses’ opinions that the x-rays did not indicate the
condition. (/d,, at 893-894.) The out-of-court statements, repeated in court over objection, were
held to be inadmissible hearsay. The Court noted that the out-of-court testimony of the 54 doctors
was offered “to establish the opinion of such latter [testifying] doctors that the 1961 x-ray films
showed no abnormality. This was clearly hearsay. (/d., at 896.) Implicit in this holding is the
recognition that if not offered for their truth, and with the assumption of their truth (rendering
them hearsay by definition), the out-of-court statements of the 54 doctors would be meaningless.
As the Court stated, “it is eminently clear that the testimony concerning the out-of-court doctors’
opinion...was offered solely for the improper hearsay purpose, namely as ‘independent proof of
the facts’ [citations omitted].” (id.; see also Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d
851, 860.)
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JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO
THE JURYoo ty Dw
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The documents about which Dr. Cohen will testify are similarly offered as independent
proof of the alleged fact that hazards existed of which Defendant(s) knew or should have known
about. An argument by Plaintiff that these documents merely support an opinion as to nofice is
nonsensical and disingenuous because if the articles in question were not admitted for their truth,
they could not support the proposition that they constituted notice (recalling, of course, that the
articles, letters, and editorials in question are filtered through Dr. Cohen’s interpretations). Aside
from the logical contradiction in this proposition, it will be impossible for the jury to maintain this
highly abstract distinction where confronted with supposedly medical and scientific documents
addressing a key issue in this case. In anything but a scholastic sense, Dr. Cohen’s testimony is
about causation. Should counsel or Dr. Cohen be permitted to publish these documents, it will be
impossible for the jury to avoid drawing conclusions on that issue. Thus, this problem and the
attendant danger of prejudice are compounded by the fact that the documents address not only
notice but, like the hearsay statements in Whitfield, “the crucial issue in the case”: causation.
Plaintiff may argue that some of the documents are “books of science . .. made by persons
indifferent between the parties [and] not made inadmissible by the hearsay rule when offered to
prove facts of general notoriety and interest.” (Jd, § 1341.) However, Dr. Cohen has no
foundation that the statements made in the documents are “facts of general notoriety and interest.”
Further, this exception is generally confined to “ancient facts” and does not extend to the work of
a living author within the reach of court process. (Osborn v. Irwin Memorial Blood Bank (1992) 5
Cal.App.4" 234, 261 n.5.) Some of the authors of the articles Dr. Cohen references may still be
alive.
Most tellingly, a similar argument failed in Deutsch v. Masonic Homes of California, Inc.
(2008) 164 Cal.App.4" 748. In that case, the defendant attempted to introduce into evidence
various scientific publications describing what was known and being done, or what was not
known and not done, about child sexual abuse between 1960 and the present. The court decided
that because plaintiffs had_no opportunity to cross-examine the authors of the documents,
defendant’s expert could not testify to this type of inadmissible hearsay on direct examination.
(d., at 766.) The appellate court upheld the decision and added defendant cited no authority that
4
JOINT DEFENSE MOTION IN LIMINE NO. 3; MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO
THE JURYa general “custom and common knowledge” exception to the hearsay rule exists. (/d.) Similarly,
Defendants here do not have the opportunity to cross-examine the authors of the articles, and
Plaintiff likewise cannot provide authority for a “notice” exception to the hearsay rule.
Although some of the documents in question may have been issued by “businesses” or
public entities, Dr. Cohen was not an employee or member of these organizations and therefore
cannot authenticate the documents in a manner that would invoke the business records or official
records and writings exceptions. (Evid. Code §§ 1271, 1280.) Further, many of the documents
cited by Dr. Cohen include “medical conclusions” and, to be admissible under the business
records exception, a given statement must constitute a record of an act, condition, or event. (Id.)
A medical conclusion is not an act, condition, or event. (People v. Beeler (1995) 9 Cal.4" 953,
980 (overruled in part on other grounds by Calderon v. United States Dist. Court (9" Cir. 1998)
163 F.3d 530).
Plaintiff may also argue that some of the documents are more than 30 years old and thus
constitute “ancient writings.” (Evid. Code § 1331.) However, this exception requires that the
statement in question have been “generally acted upon as true by persons having an interest in the
matter.” (Jd.; see also State of California v. Continental Ins. Co. (2009) 169 Cal.App.4" 1114,
1163 (modified by State of California v. Continental Ins. Co. (2009) 170 Cal.App.4" 160).) Dr.
Cohen cannot offer any evidence to this effect, since by his own admission he has no idea if
Defendant(s) were aware of the documents in the first place.
In conclusion, Defendants respectfully request that this Court grant this Motion in Limine
precluding publication to the jury via overhead projector or reading directly from any so-called
“state of the art” documents by Plaintiffs counsel or Dr. Richard Cohen, and preclude Plaintiff's
counsel from eliciting testimony about the number of documents Dr. Richard Cohen has
reviewed, about the number of documents he found, the number of documents in his bibliography
or to the publication (by showing to the jury) of the five (5) binders noted above.
In the alternative, a hearing pursuant to Evidence Code section 402 should be held by this
Court to determine the admissibility of any of these documents or any references noted.
///
5
JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO
THE JURYDATED: October 16, 2015 DEHAY & ELLISTON LLP
KAISER GYPSUM COMPANY, INC.
6
JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO
THE JURYPROOF OF SERVICE
Kenneth Moses, Sr. y. Kaiser Gypsum Company, Inc., et al.
San Francisco County Superior Court Action No: CGC-13-276180
I, CATE L. COELHO declare:
I am a citizen of the United States and employed in Alameda County, California, I am
over the age of eighteen years and not a party to the within-entitled action. My business address
is 1111 Broadway, Suite 1950, Oakland, California 94607.
On the date shown below, I served a copy of the within document(s):
e JOINT DEFENSE MOTION IN LIMINE NO. 3: DEFENDANTS’ MOTION IN
LIMINE TO PRECLUDE PUBLICATION OF RICHARD COHEN’S HEARSAY
DOCUMENTS TO THE JURY; and
e SUPPORTING DECLARATION OF JEFFREY T, THAYER
By electronically transmitting the document(s) listed above to LexisNexis File and Serve, an
electronic filing service provider, at www.fileandserve.lexisnexis.com pursuant to the
Court’s June 1, 2007 Order mandating electronic service. See Cal. R. Ct. R. 2053, 2055,
2060. The transmission was reported as complete and without error.
TO ALL INTERESTED PARTIES TO THIS ACTION DESIGNATED ON THE
TRANSACTION RECEIPT LOCATED ON THE LEXIS NEXIS FILE & SERVE
WEBSITE.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
Executed on October 16, 2015 at Oakland, California.
Ls Ya Z De Ok
CATE L. COELHO
1
PROOF OF SERVICE
Preview
JENNIFER JUDIN (SBN 256973) jjudin@dehay.com GEORGE A. OTSTOTT (SBN 184671) gotstott@dehay.com JEFFREY T. THAYER (SBN 215911) jthayer@dehay.com DEHAY & ELLISTON LLP 1111 Broadway, Suite 1950 Oakland, CA 94607 Telephone: (510) 285-0750 Facsimile: (510) 285-0740 Attorneys for Defendant KAISER GYPSUM COMPANY, INC. ELECTRONICALLY FILED Supertor Court of Caiffornia, County of San Francisco 10/16/2015 Clerk of the Court BY:RONNIE OTERO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO KENNETH MOSES, SR., Plaintiff, v. KAISER GYPSUM COMPANY, INC. et al., Defendants. CASE NO.: CGC-13-276180 JOINT DEFENSE MOTION IN LIMINE DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE PUBLICATION OF RICHARD COHEN’S HEARSAY DOCUMENTS TO THE JURY Trial Date: October 13, 2015 Time: 11:15 a.m. Dept: 503; Hon Teri L. Jackson Action Filed: August 21, 2013 JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO THR JURYKAISER GYPSUM COMPANY, INC. (“Kaiser Gypsum”) and all remaining DEFENDANTS, prior to trial and selection of a jury, move this Court for an in Limine Order precluding the publication of hearsay documents of Dr, Richard Cohen to the jury. Under the guise of “state of the art” testimony, Plaintiff will attempt to introduce into evidence through Dr. Richard Cohen certain documents on the so-called “historical development of medical and scientific information” on the dangers associated with inhalation of asbestos. Plaintiff will attempt to improperly publish various “state of the art” documents to the jury by placing them on the overhead projector to be read by the jury, or referencing and reading portions, passages and quotes from the documents in direct examination. Dr. Cohen will also attempt to publish these documents to the jury by referencing and reading passages or quotes from the documents in his response to Plaintiff counsel’s questions while using the overhead projector, Plaintiffs counsel may also attempt to cross-examine Defense experts on them, Plaintiffs counsel will also attempt to elicit testimony from Dr. Cohen that there are literally several thousand articles and documents written about asbestos and disease. If Dr. Cohen went back to 1970, there would be over a thousand documents that Dr. Cohen looked at related to asbestos and disease published before that date. See Cohen Trial Testimony in Desin, 09/10/12 P.M., pg. 89:3-23, attached hereto as Exhibit “A” to the Declaration of George A. Otstott, Esq. (hereafter “Otstott Decl.”). Dr, Cohen is also expected to testify about a bibliography that identifies over three hundred (300) documents that he will be questioned about at trial and Plaintiff's counsel is expected to refer to and attempt to show the jury the five (5) binders which contain the materials reflected in the Cohen bibliography. Dr. Cohen is not the author of any of the documents in question. Under Evidence Code section 1200 these documents and any publication of them to the jury by counsel or Dr. Cohen is inadmissible hearsay with no applicable statutory exception. A. Dr. Cohen May Not Under The Guise Of Reasons For His Opinions Bring Before The Jury Incompetent Hearsay Evidence. An expert may state on direct examination the matters on which his or her opinion is based. (People v. Catlin (2001) 26 Cal.4th 81, 137.) An expert may not, however, testify as to 1! JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO THE JURYthe details of matters if they are otherwise inadmissible. This includes hearsay evidence as defined by Evidence Code section 1200 which excludes such evidence as inadmissible. Among other things, an expert may not testify as to the context of reports on which his opinion is based. (Continental Airlines, Inc. vy. McDonnell Douglas Corp. (1989) 26 Cal.App.3d 388, 416.) The court may exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs it proper probative value. (/d, at p. 137.) Reading from any of the documents Dr. Cohen has collected is hearsay and should be excluded. Dr. Cohen may not regurgitate the contents of these inadmissible hearsay documents under the guise of giving expert testimony. (People v. Coleman (1985) 38 Cal.3d 69, 92; Continental Airlines, Inc. v. McDonnell Douglas Corp., supra, 26 Cal.App.3d at 414-416.) In Coleman, the Supreme Court describes the rule as follows: While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reason bring before the jury incompetent hearsay evidence. Dr. Cohen should not be permitted to testify as to the contents of the hearsay documents including quoting, summarizing, or giving any details about the contents of the documents. Under Coleman, Dr. Cohen may state only that he has relied on the hearsay documents, “he may not testify as to the details of such matters [because] they are otherwise inadmissible.” Jd. In addition, Plaintiffs counsel should not be permitted to publish the documents by placing them on the overhead projector to be read by the jury, or referencing and reading portions, passages or quotes from the documents in direct examination or on cross-examination. Admission of such hearsay would be unduly prejudicial to Defendant(s) since it will be impossible for Defendant(s) to address the methods, underpinnings, and assumptions of these materials because the authors of such materials will not be subject to cross examination. B. The “State Of The Art” Documents Are Inadmissible Under Evidence Code Section 1200 - No Exceptions. Plaintiff will argue that the documents and publication of them are not hearsay because 2 JOINT DEFENSE MOTION IN LIMINE NO, 3; MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO THE JURYthey are not offered for the truth of the matters asserted, but instead show that Defendant(s) should have been on “notice” as to information about hazards associated with asbestos. This is a deceptive rationale because to trigger a duty to warn, the notice in question must be of factual findings — that is, of reliable, truthful, non-speculative knowledge concerning dangers related to Defendant(s)’ products, including Kaiser Gypsum’s drywall/joint compound. Thus, Plaintiff's offer of the documents and/or counsel’s or Dr, Cohen’s publication of them necessarily asks the finder of fact to assume the truth of the contents. While asking the finder of fact to make that assumption, however, Plaintiff necessarily asks the Court to ignore it — that is, to overlook the fact that proffering a statement as evidence of notice is equivalent to advancing an argument for their truth. The impropriety of expert testimony that published out-of-court opinions and conclusions ostensibly for “notice” was addressed by the California Supreme Court in Whitfield v. Roth (1974) 10 Cal.3d 874, Whitfield dealt with out-of-court statements admitted, over objection, to show the basis for expert opinion about the interpretation of x-rays in a medical malpractice case. The plaintiff in Whitfield, paralyzed as a result of delays in treatment, contended that a particular set of x-rays were sufficient to put defendant physician and hospital “on notice” of her brain tumor. (/d,, at 893.) Two testifying physicians cited (and recited) the out-of-court statements of some 54 other doctors as the basis for the witnesses’ opinions that the x-rays did not indicate the condition. (/d,, at 893-894.) The out-of-court statements, repeated in court over objection, were held to be inadmissible hearsay. The Court noted that the out-of-court testimony of the 54 doctors was offered “to establish the opinion of such latter [testifying] doctors that the 1961 x-ray films showed no abnormality. This was clearly hearsay. (/d., at 896.) Implicit in this holding is the recognition that if not offered for their truth, and with the assumption of their truth (rendering them hearsay by definition), the out-of-court statements of the 54 doctors would be meaningless. As the Court stated, “it is eminently clear that the testimony concerning the out-of-court doctors’ opinion...was offered solely for the improper hearsay purpose, namely as ‘independent proof of the facts’ [citations omitted].” (id.; see also Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860.) 3 JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO THE JURYoo ty Dw 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The documents about which Dr. Cohen will testify are similarly offered as independent proof of the alleged fact that hazards existed of which Defendant(s) knew or should have known about. An argument by Plaintiff that these documents merely support an opinion as to nofice is nonsensical and disingenuous because if the articles in question were not admitted for their truth, they could not support the proposition that they constituted notice (recalling, of course, that the articles, letters, and editorials in question are filtered through Dr. Cohen’s interpretations). Aside from the logical contradiction in this proposition, it will be impossible for the jury to maintain this highly abstract distinction where confronted with supposedly medical and scientific documents addressing a key issue in this case. In anything but a scholastic sense, Dr. Cohen’s testimony is about causation. Should counsel or Dr. Cohen be permitted to publish these documents, it will be impossible for the jury to avoid drawing conclusions on that issue. Thus, this problem and the attendant danger of prejudice are compounded by the fact that the documents address not only notice but, like the hearsay statements in Whitfield, “the crucial issue in the case”: causation. Plaintiff may argue that some of the documents are “books of science . .. made by persons indifferent between the parties [and] not made inadmissible by the hearsay rule when offered to prove facts of general notoriety and interest.” (Jd, § 1341.) However, Dr. Cohen has no foundation that the statements made in the documents are “facts of general notoriety and interest.” Further, this exception is generally confined to “ancient facts” and does not extend to the work of a living author within the reach of court process. (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4" 234, 261 n.5.) Some of the authors of the articles Dr. Cohen references may still be alive. Most tellingly, a similar argument failed in Deutsch v. Masonic Homes of California, Inc. (2008) 164 Cal.App.4" 748. In that case, the defendant attempted to introduce into evidence various scientific publications describing what was known and being done, or what was not known and not done, about child sexual abuse between 1960 and the present. The court decided that because plaintiffs had_no opportunity to cross-examine the authors of the documents, defendant’s expert could not testify to this type of inadmissible hearsay on direct examination. (d., at 766.) The appellate court upheld the decision and added defendant cited no authority that 4 JOINT DEFENSE MOTION IN LIMINE NO. 3; MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO THE JURYa general “custom and common knowledge” exception to the hearsay rule exists. (/d.) Similarly, Defendants here do not have the opportunity to cross-examine the authors of the articles, and Plaintiff likewise cannot provide authority for a “notice” exception to the hearsay rule. Although some of the documents in question may have been issued by “businesses” or public entities, Dr. Cohen was not an employee or member of these organizations and therefore cannot authenticate the documents in a manner that would invoke the business records or official records and writings exceptions. (Evid. Code §§ 1271, 1280.) Further, many of the documents cited by Dr. Cohen include “medical conclusions” and, to be admissible under the business records exception, a given statement must constitute a record of an act, condition, or event. (Id.) A medical conclusion is not an act, condition, or event. (People v. Beeler (1995) 9 Cal.4" 953, 980 (overruled in part on other grounds by Calderon v. United States Dist. Court (9" Cir. 1998) 163 F.3d 530). Plaintiff may also argue that some of the documents are more than 30 years old and thus constitute “ancient writings.” (Evid. Code § 1331.) However, this exception requires that the statement in question have been “generally acted upon as true by persons having an interest in the matter.” (Jd.; see also State of California v. Continental Ins. Co. (2009) 169 Cal.App.4" 1114, 1163 (modified by State of California v. Continental Ins. Co. (2009) 170 Cal.App.4" 160).) Dr. Cohen cannot offer any evidence to this effect, since by his own admission he has no idea if Defendant(s) were aware of the documents in the first place. In conclusion, Defendants respectfully request that this Court grant this Motion in Limine precluding publication to the jury via overhead projector or reading directly from any so-called “state of the art” documents by Plaintiffs counsel or Dr. Richard Cohen, and preclude Plaintiff's counsel from eliciting testimony about the number of documents Dr. Richard Cohen has reviewed, about the number of documents he found, the number of documents in his bibliography or to the publication (by showing to the jury) of the five (5) binders noted above. In the alternative, a hearing pursuant to Evidence Code section 402 should be held by this Court to determine the admissibility of any of these documents or any references noted. /// 5 JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO THE JURYDATED: October 16, 2015 DEHAY & ELLISTON LLP KAISER GYPSUM COMPANY, INC. 6 JOINT DEFENSE MOTION IN LIMINE NO. 3: MOTION IN LIMINE TO PRECLUDE PUBLICATION OF HEARSAY DOCUMENTS TO THE JURYPROOF OF SERVICE Kenneth Moses, Sr. y. Kaiser Gypsum Company, Inc., et al. San Francisco County Superior Court Action No: CGC-13-276180 I, CATE L. COELHO declare: I am a citizen of the United States and employed in Alameda County, California, I am over the age of eighteen years and not a party to the within-entitled action. My business address is 1111 Broadway, Suite 1950, Oakland, California 94607. On the date shown below, I served a copy of the within document(s): e JOINT DEFENSE MOTION IN LIMINE NO. 3: DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE PUBLICATION OF RICHARD COHEN’S HEARSAY DOCUMENTS TO THE JURY; and e SUPPORTING DECLARATION OF JEFFREY T, THAYER By electronically transmitting the document(s) listed above to LexisNexis File and Serve, an electronic filing service provider, at www.fileandserve.lexisnexis.com pursuant to the Court’s June 1, 2007 Order mandating electronic service. See Cal. R. Ct. R. 2053, 2055, 2060. The transmission was reported as complete and without error. TO ALL INTERESTED PARTIES TO THIS ACTION DESIGNATED ON THE TRANSACTION RECEIPT LOCATED ON THE LEXIS NEXIS FILE & SERVE WEBSITE. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 16, 2015 at Oakland, California. Ls Ya Z De Ok CATE L. COELHO 1 PROOF OF SERVICE