Motion,Ex Parte: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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LANKFORD
CRAWFORD.
MORENO LLP

AVIORNEYS AT LAW

PAUL V. LANKFORD (State Bar No. 181506)
PAUL LANNUS (State Bar No. 192551)
LANKFORD CRAWFORD MORENO LLP
1850 Mt. Diablo Bivd., Suite 600

Walnut Creek CA 94596

Telephone: 925.300.3520

Facsimile: 925.300.3386

Attorneys for Defendant
FORD MOTOR COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 12 2011

Clerk of the Court
BY: ALISON AGBAY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

SAMUEL LEAL,
*Plaintiff,
v.
ASBESTOS DEFENDANTS (B*P),

Defendants.

LOUIS CASTAGNA,
Plaintiff,
v.
ASBESTOS DEFENDANTS (BP),
Defendants,

ASBESTOS
BRAYTON GROUP 536

Case No. CGC-08-274807

CASE No. CGC-07-274230

DEFENDANT FoRD MOTOR COMPANY’S
Motion In LimineE To EXCLUDE CASE
REPORTS, COMPILATIONS OF CASE
REPORTS AND OPINION TESTIMONY
BASED ON CASE REPORTS [MIL #2]

* 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

appropriate.

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ALANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS ATLAW

GARY COATES,
Plaintiff, CASE No. CGC-08-274784

v.
ASBESTOS DEFENDANTS (B*P),

Defendants.

CLEM FITZHUGH,
CASE No. CGC-08-274645
Plaintiff,
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

DEFENDANT ForpD Motor CoMPAny’s MOTION IW LiMINE TO EXCLUDE CASE REPORTS,
COMPILATIONS OF CASE REPORTS AND OPINION TESTIMONY BASED ON CASE REPORTS
{MIL #2]

A28

LANKFORD.
CRAWFORD
MORENO LLP

ATTORNEYS AT LAW

The above-named defendant (hereinafter “Defendant”) hereby moves this court for an
order in limine preventing plaintiff from introducing case reports, case report compilations (for
example, the Australian Mesothelioma Register Report), or expert opinions based on such reports
to prove causation.

1
INTRODUCTION

First, case reports contain multiple hearsay and are therefore inadmissible in and of
themselves as a document or with regard to any information contained therein. Second, case
reports are, by their very nature, unreliable indicators of causation. Case reports, as the term is
used in a medical context, are reports in medical journals describing clinical events involving one
individual or a few individuals. Henifin, e7 a/., Reference Guide on Medical Testimony (Fed.
Judicial Ctr., 2d ed. 2000) Reference Guide on Scientific Evidence, pp. 474-75, 480 (hereinafter
“Henifin’). A case report (or a case series, which is a group of such reports) may be published
for a variety of reasons, including claims of unusual or new disease presentations, treatments, or
manifestations, or suspected associations between two diseases, effects of medication, or causes.
ta.

Case reports lack controls and do not provide the kind of information included in
epidemiological studies. Jd. at 474-75. As a result, they are considered an unreliable basis for
causal attribution. Jd. While in some instances epidemiological studies have confirmed.
associations reported in case studies, there are also numerous instances in which controlled
studies have failed to confirm such associations. Jd. Examples include connections between
cotfee and cancer and between Hodgkin’s disease and infection. Jd. Because they are unreliable
indicators of the causes of disease, case reports and compilations of case reports are irrelevant to
the issue of causation and are inadequate as a basis for expert opinion. Moreover, if admitted
directly or as a basis of expert opinion such reports would create a substantial danger of undue
prejudice, of confusing the issues and of misleading the jury and would necessitate undue

consumption of time. They should therefore be excluded.

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION
TESTIMONY BASED ON CASE REPORTS

MIL #02}28

LANKFORD
CRAWFORD
MORENO LLP.

ATTORNEYS At LAW

q

i.
ARGUMENT

A. ANY INFORMATION CONTAINED IN CASE REPORTS/CASE SERIES CONSTITUTES
HEARSAY THEREBY MAKING CaSE Reporrs/CaSE SeRnES INADMISSIBLE, AS WELL AS
ANY TESTIMONY OFFERED By AN Expert AS To THE CONTENTS OF A CASE
REPORT/CASE SERIES

Case reports typically consist of information gleaned from human subject(s) who either
orally tell information to a research assistant, or provide information in a written questionnaire to
a research assistant (1st level of hearsay). The research assistant then forwards the information to
the person conducting the case report (frequently a university researcher/medical doctor) in the
form of an oral communication/written synopsis, chart, or compilation 2nd level of hearsay).
The person conducting the case report then repeats the information in written form in the case
report (3rd level of hearsay). Clearly, such information falls squarely within the purview of
Evidence Code section 1200, which states:

(a) “Hearsay evidence’ is evidence of a statement that was made
other than by a witness while testifying at the hearing and
that is offered to prove the truth of the matter stated.

(b) — Except as provided by law, hearsay evidence is
inadmissible.

(c) This section shall be known and may be cited as the hearsay
tule.

California case law prectudes an expert from testifying about the details of any hearsay
matter. Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860-61 (citing People v.
Coleman (1985) 38 Cal.3d 69, 92). The California State Supreme Court stated in People v.
Coleman, 38 Cal.3d at 92:

In Grimshaw v. Ford Motor Company (1981) 119 Cal.App.3d 757,
174 Cal.Rptr. 348, the Court of Appeals explained the current state
of the law.

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. (People
v. La Macchia (1953) 41 Cal.2d 738, 744-745 [264 P.2d 15],
overruled on other grounds in County of Los Angeles v. Faus (1957)
48 Cal.2d 672, 680 [312 P.2d 680]; Baily v. Kreutzmann (1904) 141
Cal. 519, 521-522, 75 P.104; Intoximeters, Inc. v. Younger (1975)
53 Cal. App.3d 262, 273 {125 Cal.Rptr. 864]; Furtado v. Montecelio
[sic] Unified Sch. Dist. (1962) 206 Cal.App.2d 72, 79-80 (23

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LiMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION:
TESTIMONY BASED ON CASE REPORTS
[vie 402)28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

Cal.Rptr. 476); People v. Nahabedian (1959) 171 Cal.App.2d 302,
310-311 (340 P.2d 1053).) 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 reasons bring before the jury incompetent
hearsay evidence. . . .

Relying on and citing the above quoted rationale stated in Coleman, the Court of Appeals
for the Second District held a trial court properly excluded testimony offered by an expert about
the contents of a report prepared by the expert’s own subordinates, since the report was hearsay.
Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 413-16; see
also Mosesian, 191 Cal.App.3d at 860. In Mosesian, the California Court of Appeals held an
expert “may not relate an out-of-court opinion by another expert as independent proof of fact.”
191 Cal.App.3d at 860. Furthermore, expert witnesses are not permitted to use charts and
summaries as a vehicle to circumvent the hearsay rule by being employed as a “prop” to allow a
witness to talk about otherwise inadmissible statements. United States v. Goss (Sth Cir. 1981)
650 F.2d 1336, 1344 n.5.

Based upon the foregoing authorities, plaintiff, plaintiff's expert witnesses, and lay
witnesses should be prohibited from testifying as to the contents of any case report or case series,
since they constitute inadmissible hearsay.

B. BECAUSE THEY ARE SO UNRELIABLE, CASE REPORTS LACK RELEVANCE

To be admissible, evidence must be relevant; that is, it must logically, naturally and by
reasonable inference tend to prove or disprove a material fact. People v. Garceau (1993) 6
Cal.4th 140, 177. Because of their widely recognized unreliability as indicators of the causes of
disease, case reports do not logically support any reasonable inference with respect to causation,
and are therefore irrelevant and inadmissible.

The recognized unreliability of case reports was the basis to exclude expert testimony in
Casey v. Ohio Med. Prods. (N.D. Cal. 1995) 877 F.Supp. 1380, 1385. The decedent in Casey was
exposed to an anesthesia containing halothane. His estate argued that he contracted chronic
active hepatitis as a result of that exposure, and sued the sellers and manufacturers of halothane

and the containers in which it was sold and dispensed. The estate sought to establish causation by
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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE GASH REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION
TESTIMONY BASED ON CASE REPORTS
[MIL #02428

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

the declaration of an occupational health physician who concluded that halothane is capable of
causing chronic active hepatitis, relying on work reported by others. /d. at 1384.

In granting the defendant’s motion for summary judgment, the court held that to support
the estate’s theory of causation, a study would need to show “a statistically significant increase in
chronic active hepatitis with exposure to halothane than without it.” /d. at 1385. The Casey court
first discussed an epidemiological study as the sort of study that would constitute valid evidence

of causation, or form a proper basis for expert opinion as to causation:

“Epidemiology is a scientific discipline that by the very nature of its
subject matter employs the concept of cause qua statistical
probability. Useful hypotheses are framed, tested, refined, and used
in identifying relations between one event, such as the exposure to
carcinogenic substance c, and a subsequent event, such as the
development of disease d... . [T]he epidemiologist focuses on a
group of persons or a ‘cohort’ and assesses the statistical
probability that a percentage of individuals in a given cohort will
develop d after being exposed to .” /d. (citation omitted).

The Casey court then compared the compilation of 513 case reports on which the expert
had relied, finding such a case series to be by definition inadequate as evidence of the alleged
causal relationship:

“[Clase reports are not reliable scientific evidence of causation.
because they simply described reported phenomena without
comparison to the rate at which the phenomena occur in the general
population or in a defined control group; do not isolate and exclude
potentially alternative causes: and do not investigate or explain the
mechanism of causation.” /d.

Since the expert’s testimony was based on unreliable case reports, the Casey court held
the expert’s testimony was inadmissible. Case reports were also rejected and deemed an
unreliable basis for expert opinion testimony in Hall v. Baxter Healthcare Corp. (D. Or. 1996)

947 F.Supp. 1387, 1411. There, the court noted that “case reports and case studies are universally

regarded as an insufficient scientific basis for a conclusion regarding causation because case

reports lack controls.” Jd.
The following courts have also declined to allow case reports into evidence on similar

grounds: Allison v. MeGhan Med. Corp. (11th Cir. 1999) 184 F.3d 1300, 1316 (In products
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DEFENDANT FORD MOTOR COMPANY'S MOTION EN LIMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION:
TESTIMONY BASED ON CASE REPORTS:
[ML #02]28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AV LAW

liability action, court noted that case reports “pale in comparison to population-based
epidemiological studies” and held trial court did not abuse its discretion by discounting expert’s
reliance “on case reports in the face of the overwhelming contrary epidemiological evidence
presented”); Meister vy. Medical Engineering Corp. (D.C. Cir, 2001) 267 F.3d 1123, 1131 (In
products Liability action against silicone breast manufacturer, court held that expert
inappropriately relied on case reports to suggest a “connection between silica and scleroderma,
even though he did not purport to find support for such a connection in the epidemiological
studies, thus creating an analytical gap between the data and his opinion that is simply too great”);
Glasstetter v. Novartis Pharmaceuticals Corp. (8th Cir. 2001) 252 F.3d 986, 989-90 (in products
Liability action against drug manufacturer, court rejected and called into question the value of
case reports, holding they “make little attempt, to screen out alternative causes of a patient’s
condition. They frequently lack analysis and they often omit relevant facts about a patient’s
condition”) Hollander v. Sandoz Pharmaceuticals, Inc. (W.D. Okla. 2000) 95 F.Supp.2d 1230,
1237 (In products liability action for stroke caused by ingestion of prescription drugs, court held
“case reports have been repeatedly rejected as a scientific basis regarding causation. Such case
reports are not reliable scientific evidence of causation, because they simply describe reported
phenomena without comparison to the rate at which phenomena occur in the genera! population
or in a defined control group”); affirmed by Hollander v. Sandoz Pharmaceuticals, Inc. (10th Cir.
2002) 289 F.3d 1193; Brumbaugh v. Sandoz Pharmaceuticals, Corp. (D. Mont. 1999) 77
F.Supp.2d 1153, 1156 (ln products liability action for seizures caused by prescription drugs, court
rejected case reports as reliable scientific evidence, holding that “[u]nlike epidemiological
studies, they do not contain a testable and systematic inquiry into the mechanism of causation.
As such, they reflect reported data, not scientific methodology”); Haggerty v. Upjohn Co. (8.D.
Fla. 1996) 950 F.Supp. 1160, 1165 (In products liability action for inadequate warnings
accompanying prescription drugs, court rejected reliance on case reports to prove causation,
holding that “while case reports may provide anecdotal support, they are no substitute for a
scientifically designed and conducted inquiry”); Cloud v. Pfizer, Inc. (D. Ariz. 2001) 198

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DEFENDANT FORD MOTOR COMPANY’S MOTION IN LIMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION
TESTIMONY BASED ON CASE REPORTS
(MIL 402]28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

F.Supp.2d 1118, 1133 (In products liability and negligence action involving Zoloft effects, court
rejected case reports as unreliable scientific evidence because they are “merely compilations of
occurrences, and have been rejected as reliable scientific evidence supporting an expert report
that Daubert requires”), Willert v. Ortho Pharmaceuticals Corp, (D. Minn. 1998) 995 F.Supp.
979, 982 (rejecting reliance on case reports to éstablish causation where the theory was “because
“B” came after “A”, “A” caused “B”. While this may be phenomolgically and temporally
accurate, it does not prove causation, which is the issue at hand”); Lennon v. Norfolk & Western
Railway Co. (N.D. Ind. 2000) 123 F.Supp.2d 1143, 1152 (Railroad worker brought suit for
injuries suffered in a fall; court held that the “fact that other MS patients may have had trauma
prior to the diseases’ inception or exacerbation would not, in itself, carry the day. . . [because]
case reports are not a scientifically reliable basis for a causation opinion”), Wade-Greaux v.
Whitehall Labs, (DVI. 1994) 874 F.Supp. 1441, 1481 (In products liability action for child born
with limb deformities, court held that the case reports relied on by the plaintiffs “represent
anecdotal information of chance associations, do not purport to assess cause and effect and have
no epidemiological significance.)

Following this same reasoning, this court should exclude as inadmissible both case reports
and expert opinion based on case reports on the basis that they are unreliable, irrelevant and
lacking in probative value.

CQ INTRODUCTION OF ANECDOTAL CASE REPORTS WOULD CREATE A SUBSTANTIAL

DANGER OF UNDUE PREJUDICE, OF CONFUSING THE Issues AND OF MISLEADING THE
JURY AND WOULD NECESSITATE UNDUE CONSUMPTION OF TIME

Alternatively, should this court find case reports to have some slight probative value, it
should exercise its discretion under Evidence Code section 352 to exclude them and related expert
opinions. Evidence Code section 352 provides:

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 of misleading the
jury.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION
TESTIMONY BASED ON CASE REPORTS
[MIL 402}An vA BR Bw WY

28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

Any probative value attaching to case reports is so slight as to be easily outweighed by
these factors. In the first place, the jury is likely to be confused. and easily misled by the
introduction of material which may have the look, feel and sound of medical science, but which
supports no scientific conclusion of causation. Defendant would aiso be forced to challenge the
reliability, significance, and methodology (or lack of methodology) of each such report or opinion
~ which would necessitate undue consumption of time and Jead to additional confusion.
Moreover, Defendant would be unduly prejudiced, since it cannot cross-examine any person that
provided any information upon which the case report was based. Therefore, plaintiff should be
precluded from introducing case reports in this trial even if they are found to have some minimal
shred of probative value.

D, THE “AUSTRALIAN MESOTHELIOMA REGISTER REPORT” EXEMPLIFIES THE

UNRELIABILITY OF Case Reports AND CASE REPORT COMPILATIONS, AND SHOULD
Be ExCLUDED ON THE ABOVE GROUNDS

Based on past cases and/or depositions taken in this case, Defendant anticipates that
plaintiff will attempt to offer, or plaintiff's experts will attempt to rely on, the publication
commonly known as “Australian Mesothelioma Register Report 1996.” Leigh, e al., The
Incidence of Mesothelioma in Australia 1992-1994, Australian Mesothelioma R. R. (Nat'l Inst. of
Occupational Health & Safety, Sydney, 1996). Although it consists largely of scientific-looking
tables and graphs, close examination of the Register Report reveals it as no more than a tabulation
or summary of case reports, themselves, like other case reports, of unascertainable value.

The inherent unreliability of the Register Report has been recognized in the peer journal
Annals of Occupational Hygiene, published by the British Occupational Hygiene Society. In fact,
in the article Trends in Occupational Groups and Industries Associated With Australian
Mesothelioma Cases 1979-1995, the authors questioned the value of the Register Report even in
comparison to other case report compilations. Comparing it unfavorably to preceding
compilations, the scholars observed that:

“to|wing to a number of factors the data collected [in the 1991 and
1996 editions of the Register Report] . . . became less substantive

with reliance placed on local rather than central diagnosis; case
histories were reliant on information provided from clinical records

DEFENDANT FORD MOTOR COMPANY’S MOTION IN LIMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION
TESTIMONY BASED ON CASE REPORTS
{MIL 402]Ce IN KH NH ®

28

LANKFORD
CRAWFORD

MORENO LLP
ANTORNEYS AT LAW

with the consequence of considerable variability of details, quality
and interpretation of information.” A.J. Rogers, et al., Trends in
Occupational Groups and Industries Associated With Australian
Mesothelioma Cases 1979-1995 in 41 Annals of Occupational
Hygiene 123, 124 (British Occupational Health Soc’y, Supp. 1
1997).

In other words, the Australian Mesothelioma Register Report is as unreliable as—or even
more unreliable than—other case reports. It therefore poses the same or even greater dangers of
undue prejudice, of confusing the issues, of misleading the jury and of necessitating undue
consumption of time. This court should therefore exclude the document itself and likewise
exclude expert testimony based upon it as relying on improper matter.

E. Expert Opinions BASED ON CASE REPORTS SHOULD SIMILARLY BE EXCLUDED

To be admissible, expert opinion must be “[b]ased on matter . . . 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.” Cal. Evid. Code § 801. For the reasons set forth above, case reports, or
collections of case reports cannot reasonably be relied upon to form an opinion regarding
causation in a case of this type. Therefore, to the extent an expert’s opinion offered to prove

causation is based partially or completely on case reports, it must be excluded.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION
TESTIMONY BASED ON CASE REPORTS
(MIL 402]28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

il.
CONCLUSION

For the reasons set forth above, the Australian Mesothelioma Register Report and all other
anecdotal case reports—that is, reports of disease that is not part of controlled or other
scientifically designed studies—should be ruled inadmissible, as should opinion testimony based
on such reports. Plaintiffs counsel, experts and lay witnesses should be instructed that no

testimony is to be presented regarding the contents of any case report or case series.

Dated: December 2, 2010 LANKFORD CRAWFORD MORENO LLP

By:

PAUL LANNUS

Attorneys for Defendant
FORD MOTOR COMPANY

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE CASE REPORTS, COMPILATIONS OF CASE REPORTS AND OPINION
‘TESTIMONY BASED ON CASE REPORTS
[Mu #02]