Motion-Secondary: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                1 | PAUL V. LANKFORD (State Bar No. 181506)
PAUL LANNUS (State Bar No. 192551) ELECTRONICALLY
2 | LANKFORD CRAWFORD MORENO LLP FILED
3 1850 Mt. Diablo Blvd., Suite 600 Superior Court of California,
Walnut Creek CA 94596 County of San Francisco
4 | Telephone: 925.300.3520 JAN 12 2011
Facsimile: 925.300.3386 Clerk of the Court
5 BY: ALISON AGBAY
Deputy Clerk
Attorneys for Defendant
6 | FORD MOTOR COMPANY
7
8 SUPERIOR CouRT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
1
D SAMUEL LEAL, ASBESTOS
*Plaintiff, BRAYTON GROUP 536
13
Vv.
14 Case No. CGC-08-274807
15 ASBESTOS DEFENDANTS (BP),
Defendants.
16
17 | LOUIS CASTAGNA, CASE No, CGC-07-274230
18 Plaintiff,
19 v. DECLARATION OF PAUL LANNUS IN
Support OF DEFENDANT FoRD Motor
20 | ASBESTOS DEFENDANTS (BP), ComPaNy’s MOTION IN LIMINE TO
EXCLUDE PLAINTIFF’S ANIMAL STUDIES
21 Defendants. EVIDENCE AND ANY EXPERT TESTIMONY
” BASED THEREON [MIL #5]
23
24
25
26
27 |e The use of the term “plaintiff” as used herein refers to the plaintiff in a personal injury action and the
decedent in a wrongful death action; and the use of “plaintiff” shall refer to both plaintiff in the singular and plural, as
28 appropriate.
LANKFORD -t-
CRAWFORD
MORENO LLPND vw B WwW Ww

28

LANKFORD
CRAWFORD
MORENO LLP

GARY COATES,
Plaintiff,
vy.
ASBESTOS DEFENDANTS (BP),
Defendants,

CLEM FITZHUGH,
Plaintiff,
v.
ASBESTOS DEFENDANTS (B%P),

Defendants.

CASE No. CGC-08-274784

Case No. CGC-08-274645

DECLARATION OF PAUL LANNUS IN SUPPORT OF DEFENDANT FORD MOTOR COMPANY’S
MotTION IN LiMINE TO EXCLUDE PLAINTIFF’S ANIMAL STUDIES EVIDENCE AND ANY
EXPERT TESTIMONY BASED THEREON [MIL #5]Bw

_

28

LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS AT LAW

I, PAUL LANNUS, declare as follows:

1. Jam a member of the State Bar of California and an attorney with LANKFORD
CRAWFORD MORENO LLP, counsel of record for Defendant in the above action. I have
personal knowledge of the facts sét forth in this declaration and, if called as a witness, could and
would testify competently to such facts under oath.

2. Attached hereto as Exhibit A is a true and correct copy of relevant excerpts from
the deposition transcript of Dr. Arnold Brody, dated June 3, 2002, in Batterman v. A.P. Green
Industries, San Francisco Superior Court Case No. 402383.

3. Attached hereto as Exhibit B is a true and correct copy of relevant excerpts from
the trial transcript of Dr. Amold Brody, dated February 16, 2001, in Prior v. Raybestos
Manhattan Inc., San Francisco Superior Court Case No. 313504.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on this 2" day of December 2010, at Walnut Creek, California.

PAULLANNUS

-2-

DECLARATION OF PAUL LANNUS IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S ANIMAL STUDIES EVIDENCE AND ANY
EXPERT TESTIMONY BASED THEREON
[MIL #053EXHIBIT A

EXHIBIT Ao

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE-COUNTY OF SAN FRANCISCO

---000---
JACKIE E. ROBINSON and JUDY ROBINSON,
Plaintiffs,

vs. No.
A.P. GREEN INDUSTRIES, INC.; et al.,
Defendants.
/
RICHARD and LEOLA BATTERMAN,
Plaintiffs,
vs. No.
A.P. GREEN INDUSTRIES, et a1.,
Defendants. -
VICTOR and FRANCESCA TRINCHESE,
Plaintiffs,
vs. No.
RAYBESTOS MANHATTAN, et al.,
Defendants.

COPY

A00705
402383

400787

TELEPHONIC DEPOSITION OF ARNOLD BRODY, Ph.D

Taken before CATHERINE M. MEYER

CSR No. 11596
June 3, 2002

Oakland, California 94612

en
ASC

One Kaiser Piaza, Suite 505

510/451-1580 Fax 510/451-3797

Certified Shorthand Reporters46

epidemiological case-study literature for that. But I
mean, I’ve seen cases of a couple of months or, you
know, years, a couple of years of household-type
exposures, that sort of. thing. I consider those
relatively brief.

Q. But you haven't -- in your work with antmats
and rats, you've never done any testing resulting vin
mesothelioma being diagnosed?

A. That's right. We don't expose the animats.
And similar to the questions that I answered to the
gentleman, we don't let the animals go Tong enough to
induce cancers. We haven't in the past, although those
kinds of things are changing now, but the answer to your
question is correct; that's right.

Q@. And would you expect to see mésothelioma
develop as a result of exposure to ambient levels of
asbestos?

A. 1 wouldn't expect that, no. Certainly no one
has ever shown that to be the case.

@. And you had mentioned that mesothelioma you
believe is not necessarily a dose response; is that
correct?

A, Right.

Q. And what is the basis for that opinion?

A. Well, that's the issue of these brief

Aiken & Welch Reporters A. Brady 06/03/026

mechanism of cancer formation; that's right.

Q. I've seen your trial and deposition testimony
in other. cases, and I've heard -- I’ve seen your -- you
set forth your: opinions regarding how animal research is
applicable to the human model. But I'd like to ask you
how is it inapplicable to the human models?

A, You mean what can we not use animals to do?

Q@, Yes, in the case of asbestos.

A, Sure. Well, Tike any model, it has its
limitations, and I'd Vike to be able to tell you that we
can establish dose responses, for example, using
animals, but we can't do that. I'd like to be able to
tell you that we can tell you about the time frame of
disease development using animals, and we can’t do that
because the animals' lifespans are so different than
humans. Those are the two major shortcomings of animal
models. So I guess I'71] leave it at that point.

Q. And it's my understanding that some of the
other reasons that it's inapplicable that you've been
testifying to in the past is it's not a perfect model
because obviously you're not dealing with humans: is
that correct?

A. > Oh, sure. That's what I say. Anytime you're
dealing with animal models, you have to make

correlations. And the gentleman previously -- never

Aiken & Welch Reporters A. Brody 06/03/0262

mind. Go ahead. I answered your question... Go ahead.

Q. Also it's inapplicable because the animals do
not live as Tong as humans; is that correct?

A. I thought I just said that.

Q. That diseases also develop at different rates
in your animals versus humans?

A. I think I said that, too, but yes.

Q. Also that the lungs are not exactly the same
size in the animals that you use versus humans?

A, Well, that turns out to be not a problem. That
is not a shortcoming because if you look at the
individual functional units of the tung, that js the
cells and the small air spaces, even though there ‘are
fewer of them, they’re the same size and they do exactly
the same things in animals as they do in peeple, so that
turns out not to be a shortcoming. The genetic prafile
ofthe animal is very much the same as ours, so again,
that's not 4 preblem. :

Q. Do rats make asbestos bodies?

A. Very few. They don't make asbestos bodies with
the same rate as pecpte. But fortunately that's not a
Problem because asbestos bodies don't play much of a
role in disease. And if you use animals like guinea
pigs or hamsters, they make perfectly good asbestos

bodies. So the making of asbestos bodies is not a

Aiken & Welch Reporters A, Brody © 06/03/0282

A. That's correct. That's right. Individual
fibers can only be seen with a microscope; that's right.

Q. Would you agree that chrysotile is more easily
cleared from the lungs than other varieties of asbestos?

A. Certainly. -

Q. Have you done any studies regarding that
opinion? ,

A. Right. And that‘s outlined in those papers I
just mentioned to you.

Q@. How often do you do any sort of purity testing
related to the asbestos done in your studies?

A, Well, we've done the purity testing, and the
batches of asbestos we use remain unaltered. I mean,
nobody does anything to them, so they remain pure.

Q. Have you ever found any tremolite in any of the
chrysotile asbestos that you've used?

A.. We've found a rare tremolite fiber. It's
very -- it's vanishingly small amounts of tremolite.
Very hard to find a tremolite fiber.

Q. Any other asbestos fibers or anything else
you've found with the chrysotile fibers you've used?

A. No.

Q@. And you've never exposed any animals to
automobile brake dust; is that correct?

A. That's right, correct,

Aiken. & Welch Reporters A. Brody 06/03/0283

Q. You've never attempted to corollate any animal
studies to any presumed level of exposure to automobite’
friction products?

AL Correct,

Q@.- And you're familiar with the term "friction
products"; is that correct?

A. Well, I mean, I don't know - I wouldn't
testify to what that means. .

a. What's your understanding of friction products,
sir? :

Like brakes.

Brakes and clutches?

> 2 >

Clutches, yeah.”

Q. Are you familiar with the theory that
geothermal forces during the braking of an automobile
convert asbestos into fosterite (phonetic)?

A. I thought it was forsterite, but I couldn't
tel} you what that is.

Q@. You're familiar with that theory?

A. I've heard that.

Q. Have you ever exposed any animals to
forsterite?

A. No.

Q@. Or a mixture of forsterite in asbestos?

A. No.

Aiken & Wetch Reporters A. Brody 06/03/02os

~~

SOON 2 oaeuwn

87

Q. You've characterized changes induced in your
animals through experiments as precursor lesions; is
that correct?

A. That's right.

Q. And have you done any studies beyond six months
to see whether those lesions are still present after six
months? :

A. Yes. We've gone out to a year now.

Q. Is that study published?

A.. It's been submitted. It's not accepted yet to
my -- I don't think: . I'm not the first author on that,
so I can’t tel] its current position. But I know we've
done it. We reported it in-abstract,:at the ATF last
year. So we've gone out to a year after exposure, and
the Tesions are clearly presented. . :

Q@. And you submitted that in abstract form?

A. Right, .

Q. Can I get a copy of that abstract, or is it
referred ta on your CV?

A. I don't refer te any abstracts on my CV, but
it’s the publication of the American -- it's in the
American Journal of Respiratory and Critical Care
Medicine which publishes the abstracts of the American

Thoracic Society Meeting. So you can find it in last

year's meeting.

Aiken & Welch Reporters A. Brody 06/03/0295

provided with any information regarding BorgWarner?
A. No. ,
MR. KIRBY: Thank you, sir.
EXAMINATION BY NR. BRYDON:
Q. This is John Brydon.

Dr. Brody, how are you?

A. Fine. Thanks.

Q. Rather than going through any specific product
or defendant, have you been provided any information
about any product of any defendant in this lawsuit?

A. No. .

Q. And in terms of your tests, deo your tests
involve products at ali?

A, No.
MR. KIRBY: TI have nothing further.

EXAMINATION MS. NUSSER:

Q. Doctor, if nobody else have any follow-up --

this is Linda Nusser -- I have a couple of questions.
Would you agree that you give your animals in

the research study higher concentrations than generally
occur in the workplace?

A. Nowadays, yes.

Q. And you say “nowadays,” could you give me a
time frame on that? /

A. Well, the only levels that I've seen that

Aiken & Welch Reporters A. Brody 06/03/0296

equate to what our animals get is referred to as heavy

‘exposure that insulators got early in the years of

exposures, maybe ‘30s, ‘40s and 50's, but -- and if this

happened in the ‘60s; I don’t know about it. But that's -

typically what I understand.

Q. But that's the only setting that you're aware
of that would be at al] related to the research setting
that you’ve created?

A. Well, that's not exactly right. I mean, in
other words -- ,

Q.  %In terms of the concentrations.

A. Yeah, in terms of the concentration, that's
correct. Now, certainly the disease that's developed is
retevant to any exposure that causes asbestosis, It
just happens at a different rate and develops different
degrees of disease.

@,. Would you also agree that you give your animals
higher concentrations than generally would occur while
someone was performing any brake or clutch work?

A. Well, I just don’t know that. I have no idea
what kind of -concentrations would result from such.

Q. And you haven't done any research on that
issue; is that correct?

A. That's correct.

MS. NUSSER: Thank you, sir. No further

Aiken & Welch Reporters A. Brody 06/03/02EXHIBIT B

EXHIBIT Boo

@

a...
COPY 7S

SUPERIOR

COURT OF THE STATE OF CALIFORNIA

IN AND ©0R THE CITY AND COUNTY OF SAN FRANCISCO

HONORABLE CHARLENE PADOVANI HITCHELL, JUDGE PRESTOING

MS. RENEE PRIOB,

VS.

RAYBESTOS-MANHATTAN, INC,, ET AL.,

DEPARTMENT NO. 606

=--000---

CouRT No.” 313504
PLAINTIFF, -

DEFENDANTS

REPORTER'S TRANSCRIPT OF PROCEEDINGS

PREDAY, FEBRUARY 16, 2002

(VOLRE 14 PAGES 1621-1209)

FOR THE PLAINTIFF:

WARTNICK, CHABER, HAROWITZ © TIGERMAN
BY: STEVEN H. HAROWLTZ, ESQ.

401 CALIFORNIA STREET, SUITE 2200
SRN ERANCISCO, CALEFORNIA 94111

FOR AMERICAN SUZUKI BECHERER, KANNETT ¢ SCHHEITZER

HOTOR CORP. +

BY: ANGUS H. HACLEOD, ESQ.
2200 PORELL STREET #505 L
EMERYVILLE, CALIFORNIA 94608}

& &

Q. Have you testified ac the request of attorneys for
manufacturers of asbestes-containing products?

BR. Yes, E have, sure.

Q. And was your testinony the same whether you are-testifying
for at the request of a plaintiff or request of a defendant in
one of these cases?

A. Well, of course, if somebody would like me to come in and
explain to a jury how asbestos causes lung disease I can do,

that. .
HR. HAROWITZ: Your Honoc, at this time I would offer

br. Brody 2s an expert in the cell biology, and specificaliy”
pathogenesis of asbestes diseases.

THE COURT: Counsel.

BR. GIFFORD No abjection.

THE COURT: Okay. Then, members of the jury, for the
purposes of this teial Dr. Brody is qualified to testify as an
expect in che erea of cell biology and specifically the
pathogenesis of asbestos diseases.

HA. HAROWITZ: Thank you, Your Honor.

Q. br. Brody, before we get into ~~ I know you brought same
slides with you teday té hopefully show to the jury. “Before we
get into that could you tell us, do you believe that animal
testing is ¢ valid tool for determining whether humans can
develop certain diseases?

Rh: Well, in many cases, certainly. I mean, it doesn't tell
you everything you need to know, and it doesn’ tell you all of

the agents that can cause disease in man. I mean, Chere is ne

Soubt you can't make broad statements, but if you do theA. Tremendous variability ail the way from hundreds of aicrons

down to the smallest fragment, and they will remain. The
reason for that is because asbestos fibers can line up along
che flow of air so, in other words, they are not necessarily
tumbling and getting caught. A lot of them, I hope it is
‘clear, that when you take a breath of asbestos and there is:

asbestos in the air that some of those fibers inlay in all

aspects of the lung, some in the nose, some in the back of the

throat. some in your airways, sone go all the way out to the

pleura, and the longer one can go just Like the shorter ones

because they line up in che flow of air, and have sore of .

stream line effect down the ainway-

Q. ‘Ace you going to show us now whet effect these asbestos

fibers can have on che Lung?

A. In oder to do that we have to use animsls. Once a person

comes to the clinic with a disease it is impossible to show you

wnat bes happened aver the decades, and the same thing is with

an aninel. {£ an animal has already developed a chinical

disease, I mean, that he's short of breath, has scar tissue or

cancer, { can't shaw you what has happened either.

In the next Few slides what I am going co show you are 2

few slides of the results of our animal study where TF expose’

the animals foc a very short time. 1 am talking about an hour,

exposed aninals for an hour, sometimes three hours a day tor

three times. Sometimes one day 2 week for eight weeks. but

these are always very shoct exposures. So t can lock at ther

immediately after the exposure. 1 expose therm foc an hour,

give animals an overdose of anesthetic, take the lung out bikeae

@ &

(A. Tremendous variability ali the way from hundreds of microns
down to the smallest fragment, and they will remain. The

reason for that is because asbestos fibers can line up along

the flow of air so, in other wocds, they are not necessarily
tumbling and getting caught. A Lot of chem. I hope it is
“clear, that when you take a breath of asbestos and there is
Asbestos in the air that some of those fibers inlay in all
aspects of the lung, some in the nese, some in the back of the
throat, some in your airways, some go all the way out to the
pleura, and che longer one ean go just Like the shocter ones
because they line up in the flow of air, and have sact of
stream line effect down. the ajeway-
@. Are you going to show us now what effect these asbestos
fibers can have on che ung?
&. In order to do that we have to use animats., Once 8 person
comes to the clinic with a disease it is impossible to show you
whee has happened over the decades, and Che seme thing is with
an animal. [f an animal hes already developed « clinical
disease, 1 mean, that he's short of breath, has scar tissue or
cancer, I anc show you what bas happened either. .
In che next few slides what I am going to show you are 2
feo slides of the results of our animal Study where [expose
the animals for a very short time. 1 am Talking about an hour,
exposed animals for an hour, sometimes three hours & day for
three times. Sometimes one day 2 week for eight weeks, but
these are aluays vety short exposures. Se 1 can lock at them

immediately after the exposuce. 1 expose ther foc an hour,

give animals ap overdose of anesthetic, cake the lung out wey