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

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                                LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS ATLAW

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 (BP),

Defendants.

LOUIS CASTAGNA,
Plaintiff,
v.

ASBESTOS DEFENDANTS (B“P),

ASBESTOS
BRAYTON GROUP 536

Case No. CGC-08-274807

Case No. CGC-07-274230

DEFENDANT FORD MOTOR COMPANY’S
Morton In Liming To EXCLUDE
PLAINTIFF'S SCIENTIFIC CAUSATION
Evipence To THE EXTENT IT DoEs NoT

Defendants. DEMONSTRATE RELATIVE RISK
GREATER THAN 2.0 [MIL #3]
* 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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LANKFORD.
CRAWFORD
MORENO LLP

ATTORNEYS AT LAW

GARY COATES,
Plaintiff,
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

CLEM FITZHUGH,
Plainuff,
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

CASE No. CGC-08-274784

Case No. CGC-08-274645

DEFENDANT ForD MoTOR COMPANY’S MOTION JN LIMINE TO EXCLUDE PLAINTIFF'S
SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT DOES NOT DEMONSTRATE
RELATIVE RISK GREATER THAN 2.0 [MIL #3]

ACe BH HW B®

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LANKFORD
CRAWFORD

MORENO LLP
ATTORNEYS AT LAW

L INTRODUCTION
Ii. ARGUMENT...

A.

B.

Til. CONCLUSION

TABLE OF CONTENTS

PLAINTIFFS ARE REQUIRED TO PRESENT EPIDEMIOLOGICAL
Stupies To EsTABLisH CAUSATION IN THIS MATTER ....

ONLY EPIDEMIOLOGICAL STUDIES SHOWING A RELATIVE RISK OF
GREATER THAN 2.0 ESTABLISH CAUSATION BECAUSE ONLY SUCH
Sruptrs SHow Tuat [7 Is More PROBABLE THAN Not THAT
PLAINTIFF’S ALLEGED ASBESTOS-RELATED DISEASES WERE
CauseD By THE CAUsAL AGENT AT ISSUE.

THE PEER-REVIEWED EPIDEMIOLOGICAL STUDIES ESTABLISH
THERE Is No INCREASED RISK OF DEVELOPING MESOTHELIOMA.
FROM OCCUPATIONAL BRAKE WorK.

STupiEs SHOWING A RELATIVE RISK OF 2.0 OR Less ARE
TRRELEVANT AND THEREFORE INADMISSIBLE TO PROVE
CAUSATION...

THE PROBATIVE VALUE OF EPIDEMIOLOGICAL EVIDENCE SHOWING
A RELATIVE Risk OF 2.0 Or Less Is ALSO SUBSTANTIALLY
OUTWEIGHED By THE DANGER OF UNDUE PREJUDICE, OF
CONFUSING THE ISSUES, AND OF UNDUB CONSUMPTION OF TIME

GIVEN THAT PLAINTIFFS’ CAUSATION EVIDENCE DoES NOT MFET
Tre EVIDENTIARY THRESHOLD CONSISTING OF EPIDEMIOLOGICAL,
Stupies SHowING A RELATIVE RISK Or GREATER THAN 2.0,
PLAINTIFFS” CAUSATION EVIDENCE Is INADMISSIBLE BECAUSE It IS
UNRELIABLE AND SPECULATIVE ...

wie

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIF’S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT

DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
[Mit #03]oC OND HR RB BW NY eR

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NI Dw BY YN &§— SG BO we NY A HD BF Bw NY FSF

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CRAWFORD
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ATTORNEYS AT LAW

TaBLe OF AUTHORITIES

CASES PAGE(S)
Allison v. McGhan Med. Corp.
(11th Cir, 1999) 184 F.3d 1300... cessssessseessssesssesesseesseeesseesneseesssesreesanectuneccneensnsoneesaneensoss 9

Brokopp v. Ford Motor Co.
(1977) 71 Cal. App.3d 841) cccscssscsussssssssceecussnceceseesassssseseeesuinansseseesisiensssgeeesesensasssessssesectsa 8

Casey v. Ohio Med. Prods.
(NLD. Cal. 1995) 877 F.Supp. 1380 o....esecseecessseseescersneesnessesecessessecsvesaceaneeseseegnessseneensaees 12

Conde v. Velsicol Chem. Corp.
(S.D. Ohio 1992) 804 F.Supp. 972

Cook v. United States

(N.D. Cal. 1982) 545 F.Supp. 306 ..scecsescssseecssersssessssrsnsescssenssrsassnesssessssseconsessecsnneesvecanases 4,9
Daubert v. Merrell Dow Pharms., Inc.

(1993) 509 U.S. 579 cv cccccssessssecesteccnssssseessecseneesseecsssecssscsessesseessensnesessscsseseasessaverseeesasevseesnanses 9
Daubert vy. Merrell Dow Pharms., Inc.

(Sth Cir. 1995) 43 F.3d 13 oie cssesenessesseesseessesnesseeenesseeneesnee 2, 4, 8,9, 10, 11
Jones v. Ortho Pharm. Corp.

(1985) 163 Cal. App.3d 396 ..ccccccccccssssssssussssseessusssnscseseeotnssssssceessanseseseneeriansanseeeeeseceunasset 1
Lockheed Litigation Cases

(2004) 115 Cal. App.4th 558 occ ecsesressesseceseeneesassnsesssasecssecnscaseesseaneqseceatesnceesensess 1,2,3
People v. Babbitt

(1988) 45 Cal.3d 660

[248 Cal. Rptr. 69] oo. ecc eee ceeecceeceeseessesssecsscssesseessesesseansesessussnensneesecsneesseasecsuessecesesseeneeasseanenneese 8

People v. Jones
(1954) 42 Cal.2d 219

Renaud v. Martin Marietta Corp.
(D. Colo. 1990) 749 F.Supp. 1545
aff'd (LOth Cir, 1992) 972 F.2d 304 eee eecsnecssesenessecsnesssessessseasecseessecsnessecsneeneneneseeeacteneennes 2

Sanderson y. International Flavors & Fragrances, Inc.
(C.D. Cal. 1996) 950 F.Supp. 981 cosssssssssssesecsecsssssssesssntnenecnsencesesssnseesensereeeeeeeeceeceeseeste 9, 10

STATUTES

Evidence Code
section 350...
section 352
section 402

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFI’S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.4
[MiL #03]28

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ATTORNEYS AT LAW

OTHER AUTHORITIES

Books

Fleiss, Statistical Methods for Rates and Proportions (2d ed. 1981)

TABLE OF AUTHORITIES
(continued)

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PAGE(S)

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT
IT DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0

IMIL #03]28

LANKFORD
CRAWFORD

MORENO LLP
ATTORNEYS AT LAW

The above-named defendant (hereinafter “Defendant’”) hereby moves this court for an
order excluding plaintiff's scientific causation evidence to the extent it does not demonstrate
epidemiological relative risk greater than 2.0 and is not supported by epidemiological studies.

L
INTRODUCTION

The most basic legal principle requires plaintiffs to establish causation for their alleged

injuries.
The law is well settled that in a personal injury action causation
must be proven within a reasonable medical probability based upon
competent expert testimony. Mere possibility alone is insufficient
to establish a prima facie case. That there is a distinction between a
reasonable medical ‘probability’ and a medical ‘possibility’ needs
little discussion. There can be many possible ‘causes,’ indeed, an
infinite number of circumstances which can produce an injury or
disease. A possible cause only becomes ‘probable’ when, in the
absence of other reasonable causal explanations, it becomes more
likely than not that the injury was a result of its action. This is the
outer limit of inference upon which an issue may be submitted to
the jury. Jones v. Ortho Pharm. Corp. (1985) 163 Cal.App.3d 396,
402-03.

In order for a plaintiff to meet the burden of proof regarding causation, the plaintiff must show it
is more likely than not that a defendant’s asbestos-containing product caused the injury which in
this case is mesothelioma. Epidemiological studies are the primary generally accepted
methodology for proving causation in toxic tort cases such as this one. Non-epidemiological
evidence is unreliable and inadmissible. Moreover, only epidemiological studies with a relative
risk of greater than 2.0 show that it is more likely than not that the subject causal agent caused a
particular individual’s disease. In turn, epidemiological studies showing relative risks of 2.0 or
less are inadmissible on the grounds that (1) such studies are irrelevant and (2) such studies create
a substantial danger of prejudice, of confusing the issues and of undue consumption of time. In
Lockheed Litigation Cases (2004) 115 Cal-App.4th 558, the Court of Appeal recently affirmed an
order excluding the plaintiffs’ claim of injury causation and the plaintiffs’ proffered expert
testimony since they were not supported by any peer-reviewed epidemiological studies that

showed the alleged exposures to the defendant’s products increased the plaintiffs risk of

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
[MIL #03)28

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ATTORNEYS AT LAW

developing cancer. Accordingly, causation evidence should be excluded to the extent such
evidence does not meet the evidentiary threshold consisting of epidemiological studies showing
relative risks of greater than 2.0. Given that plaintiff's scientific causation evidence does not and
cannot mect this threshold-—i.e., that plaintiff will offer no relevant epidemiological studies with

a relative risk of greater than 2.0— plaintiffs scientific causation evidence should be excluded.

IL
ARGUMENT

A. PLAINTIFFS ARE REQUIRED TO PRESENT EPIDEMIOLOGICAL StupIEs To EstaBLisH
CAUSATION IN THIS MATTER

“Epidemiologic studies are the primary generally accepted methodology for
demonstrating a causal relation between a chemical compound and a set of symptoms or a
disease.” Conde v. Velsicol Chem. Corp. (S.D. Ohio 1992) 804 F.Supp. 972, 1025-26 (footnote
omitted). Thus, epidemiological studies are required to establish causation in toxic tort cases
such as this one. Renaud v. Martin Marietta Corp. (D. Colo. 1990) 749 F.Supp. 1545, 1554 aff'd,
(10th Cir. 1992) 972 F.2d 304. In surveying the relevant case law regarding epidemiological

evidence, the Renaud court concluded:

All of the cases cited, when read together, support an approach to
toxic tort cases that requires submission of epidemiological
evidence to establish causation in cases where collection of such
evidence is possible. Collection of such evidence is possible in
situations where an identifiable exposure population is large enough
to perform a meaningful epidemiological study.

Id. (emphasis added).

Tn turn, the court held, “even if plaintiffs had been able to prove exposure by their direct

evidence, they would have been required to submit epidemiological evidence in support of their

causation contentions.” Jd. Consistent with Daubert, California courts have followed this
approach as illustrated in Lockheed. The plaintiffs in Lockheed sued Exxon Mobil and Union Oil,
alleging their occupational exposures to chemicals supplied by the defendants caused them to
develop cancer. As this court is respectfully requested to do in this case, the trial court in

Lockheed held an Evidence Code section 402 hearing to determine whether the plaintiffs’ claim

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DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
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ATTORNEYS AT LAW

of causation was scientifically supported. Consistent with Daubert and the other cases cited
above, the trial court ruled the plaintiffs’ expert could reasonably rely on an epidemiological

study “only if the study shows a relative risk of greater than 2.0, meaning that the incidence of

disease among exposed persons is more than two times greater than that among unexposed

persons.” Lockheed, 115 Cal.App.4th at 562. After conducting an Evidence Code section 402
hearing, the court reviewed the studies relied on by the plaintiffs’ expert (Dr. Teitlebaum) and
concluded:: “(1) the study did not support the conclusion that the chemicals at issue here can

cause cancer; and (2) as a matter of law, an expett can reasonably rely on an epidemiological

study to support an opinion on causation only if the study shows a relative risk of greater than

2.0.” Jd. at 562. The Court of Appeal affirmed the trial court’s exclusion order and the resulting
judgment entered in favor of the defendant, stating the following upon reviewing the
epidemiological studies that pertained to the plaintiffs’ expert’s opinion:

Dr. Teitlebaum acknowledged that because the subjects were
exposed to numerous chemical compounds, the study did not
indicate whether any single chemical contributed to an increased
risk of cancer. § The study showed that plaintiffs who were
potentially exposed to a long list of more than 130 substances in
thousands of chemical compounds contracted cancer at a rate
greater than the national average. The study did not indicate,
however. whether persons exposed to only the tive chemicals
supplied b Exxon and Union Oil contracted cancer to greater than
the national average, because the study subjects were exposed to
many other chemicals, including known carcinogens.

Dr. Teitlebaum’s opinion that plaintiff's exposure to chemicals
supplied by Exxon and Union Oil caused a greater incidence of
cancer therefore was based on conjecture and speculation as to
which of the many substances to which the study subjects were
exposed contributed to the greater incidence of cancer.

115 Cal. App.4th at 564-65.

ek Ok

Evidence that experts reasonably rely on epidemiological studies in
forming opinions on causation is of no assistance to plaintiffs when
the study on which Dr. Teitlebaum relies provided no reasonable
basis for his opinion. Moreover, a trial court can determine whether
there is a reasonable basis for an expert opinion by examining the
opinion and the matters on which the expert relies, and does not
require evidence from a second level of experts in making this
determination. 115 Cal.App.4th at 565.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIN'S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
IMIL #03]28

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MORENO LLP
ATTORNEYS AT LAW

In this case, the “identifiable exposure population is large enough to perform a meaningful
epidemiological study” because there are thousands upon thousands of individuals who have been
exposed to Defendant’s brake products. /d. Thus, plaintiff is required to collect and present
epidemiological evidence showing that individuals who have been exposed to Defendant’s brake
products are at a legally significant increased risk of developing an asbestos-related disease.
Plaintiff has no such epidemiological evidence.

B. ONLY EPIDEMIOLOGICAL STUDIES SHOWING A RELATIVE RISK Of GREATER THAN 2.0

ESTABLISH CAUSATION BECAUSE ONLY SucH STuDIES SHow TuaT Ir Is More

PROBABLE THAN NOT THAT PLAINTIFF’S ALLEGED ASBESTOS-RELATED DISEASES
WERE CAUSED By THE CAUSAL AGENT AT ISSUE

As demonstrated above, plaintiff is required to submit relevant epidemiological studies to
establish causation.

A review of some of the basics of epidemiology reveals the type of epidemiological
evidence that is required to satisfy this causation standard. Epidemiology is the statistical study
of the causes of disease in human populations. To evaluate a possible cause of a disease in a
particular population, an epidemiologist compares the frequency of the disease in members of a
group exposed to the potential causal agent to the frequency of the disease in members of a group
not exposed to the potential causal agent. Daubert v. Merrell Dow Pharms., Inc. (9th Cir. 1995}
43 F.3d 1311, 1321 (citing Fleiss, Statistical Methods for Rates and Proportions (2d ed. 1981)).
The resulting ratio is expressed as the “relative risk” factor associated with the agent. /d.

A relative risk factor of 1.0 indicates that the disease in question occurs in the exposed
population with the same frequency that it occurs in the unexposed population. A relative risk
factor of 2.0 indicates that it occurs twice as frequently in the exposed population. Cook v.
United States (N.D. Cal. 1982) 545 F.Supp. 306, 308 n.1. An important corollary is that a relative
risk factor of 2.0 indicates that half of the cases in the exposed population are attributable to the
exposure while half are attributable to other (or “background”) causes. /d. In other words, where
the relative risk factor is 2.0, it is equally possible that the disease was caused by exposure to the

causal agent, as it is that the disease was caused by something other than the causal agent. In

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE 10 THE EXTENT IT
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
IMIL #03]28

LANKFORD
CRAWFORD
MORENO LLP

ATTORNEYS AT LAW

sum, an epidemiological study shows that there is more likely than not a causal relationship only

where the relative risk factor is found to be greater than 2.0. /d.; Daubert, 43 F.3d at 1320.

GQ THE PEER-REVIEWED EPIDEMIOLOGICAL STUDIES ESTABLISH THERE Is NO
INCREASED RISK OF DEVELOPING MESOTHELIOMA FROM OCCUPATIONAL BRAKE

WorK
The scientifically accepted and peer-reviewed epidemiological studies published in 1980

1983, 1985, 1994, 1997, 2000 and 2004 have all confirmed there is no increased risk of
developing mesothelioma among car mechanics or brake workers ~ let alone someone such as
Plaintiff who is much more remote as he was not an auto mechanic by profession. Attached as
Exhibits A-G are the following epidemiological studies that establish auto mechanics are nof at
an increased risk for mesothelioma:

° McDonald, et al., Malignant Mesothelioma in North America (1980) 46
CANCER, pp. 1650, 1655 (no increased risk of mesothelioma for garage
workers, stating “no increase risk was found in garage workers, certainly
exposed to dust from brake linings.”) (Exhibit A)

. Woitowitz & Rodelsperger, Mesothelioma Among Car Mechanics (1994) 38 ANN.
OCCUP. HYG., pp. 635, 637 (no increased risk of mesothelioma for car
mechanics, stating: “From these results, there is no evidence that car
mechanics are exposed to an increased risk of mesothelioma even if they
perform brake repairs.”) (Exhibit B)

. Treschke et al., Mesothelioma Surveillance to Locate Sources of Exposure to
Asbestos (1997) 88 CANADIAN J. PUB. HEALTH, pp. 163, 166 (no increased
risk of mesothelioma for vehicle mechanics or for workers who install and
repair brake linings, stating “As with vehicle mechanics in the occupational
analysis, a history of brake lining installation or repair had a risk estimate
below 1.0”) (Exhibit C)

. Teta, et al., Mesothelioma in Connecticut, 1959-1977 (1983) 25 J. OCCUP. MED.,
pp. 749, 752-53 (no increased risk of mesothelioma for garage mechanics)
(Exhibit D)

* Spirtas, et al., Proceedings for the Society for Epidemiological Research
Abstracts, National Health and Welfare Canada (1985) AM. J. EPIDEM.
PROCEEDINGS, p. 518 (no increased risk of mesothelioma for brake workers)
(Exhibit E)

. Agudo, et al., Occupation and Risk of Malignant Pleural Mesothelioma: A Case
Control Study In Spain (2000) 37 American Journal of Industrial Medicine,
pp. 159, 163-164 (no statistically significant increased risk of pleural malignant
mesothelioma for motor vehicle mechanics, also stating: “around 40% of cases of
mesothelioma in our population could be due to causes other than occupational
exposure to asbestos ...”) (Exhibit F)

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
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ATTORNEYS ATEAW

. Hessel, ef al., Mesothelioma Among Brake Mechanics: An Expanded Analysis of
A Case-Controlled Study, Risk Analysis (2004) vol. 24, no. 3, pp. 548, 550-55 (CA
number of studies have examined the association between motor vehicle
repair (in general) or brake work (in particular) and mesothelioma. None of
these have demonstrated a positive association. A recent meta-analysis found
that the relative risk of mesothelioma among auto mechanics was 0.90 ...
There was no association between mesothelioma and either occupational or
non-occupational brake work ...”) (Exhibit G)

A recent epidemiological study published in 2004, which again concluded there is no
increased risk for developing mesothelioma among motor vehicle mechanics, recognized that this
was consistent with the unique design and chemical composition of friction products such-as
brake linings. (Goodman, ef al., Mesothelioma and Lung Cancer Among Motor Vehicle
Mechanics: A Meta-Analysis, Annals of Occupational Hygiene, pp. 13-15, Exhibit H). First,
asbestos fibers in brakes are embedded in resin. Jd. at p. 14. Second, most of the chrystotile in
brakes is transformed to forsterite during the extreme heat caused by the braking process. Jd.
Third, forsterite does not have asbestos fibers properties and is not considered carcinogenic. Id.
Fourth, at several hundreds of degrees below the forsterite transformation, chrystotile biological
activity becomes virtually nil. Jd Fifth, any remaining chrystotile samples are short, less than 5
microns in length. Jd.

In deposition, plaintiff's expert Alan Smith has repeatedly admitted that: (1) he has never
performed any epidemiological study of brake mechanics; and (2) no peer-reviewed
epidemiological or case-control studies have concluded there is any increased risk of developing

mesothelioma among garage workers or bystanders to any such work:

Q. Now, have you ever performed an epidemiological study of
brake mechanics?

A. Lhave not conducted a study of mesothelioma in garage
mechanics. (Smith Depo., pp. 69:24-70:4, taken in Crean v.
American Honda, May 14, 2004, Exhibit 1.)

x * #

Q. And in their final report, did Woitowitz and Rodelsperger
conclude that there was an increased risk of mesothelioma
as a result of asbestos exposure in brake mechanics?

A. No. they stated that from these results there is no evidence
that car mechanics are exposed to an increased risk of
mesothelioma even if they do brake repairs.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF’S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT
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[MLL #03]co Se em IN DW

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ATIORNEYS AT LAW.

Of ali of the epidemiological studies that you brought with
you, and virtually every one of them was identified as an
exhibit to your earlier deposition today, have the authors
stated in any of those studies that they have concluded that
brake mechanics exposed to asbestos have an increased risk
of contracting mesothelioma? Talking about all of your

epidemiological studies.

Well, in the case controls studies themselves they did not
report in those words. They provide data and information,
but either they did not address it directly in the wording they
put in or they made statements that there were no increased
risks. (Exhibit I, p. 68:3-23.)

ee OF

And you said, in fact, that you, yourself, do case control
studies as a part of your profession, correct?

Yes,

Now, isn’t it true, sir, that there are no case control studies
epidemiological case control studies that you’re aware of
that show garage mechanics who do brake work are at an
increased risk for the development of mesothelioma?

I think that is correct ... (Smith Depo., Guillory v. Abex,
p. 42:3-19, Exhibit J.)

* * *
Are you aware of case-control studies that show an

increased risk to bystanders to garage mechanics who do
brake work?

I’m not aware of any studies that have addressed that topic,
no. (Smith Depo., Gerke v. ACandS Inc., p. 71:21-25,
Exhibit K.)

kk OF

Dr. Smith, do you know of any case-controlled study where
the authors conclude that there was a relative risk greater
than 2.0 for an increased risk of contracting mesothelioma
by garage workers who did brake work?

I don’t know of any authors who make such a statement.
(Exhibit K, p. 89:10-16.)

Additionally, Dr. Smith recently testified that when the Spirtas date is reanalyzed, so that

individuals who only have brake exposure are compared to the individuals with no known

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT

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ATTORNEYS ATLAW

asbestos exposure, the odds rate is 1.0. Dr. Smith further admitted that an Odds Rate of 1
indicates no increased risk. 1

Based on the above-referenced epidemiological studies and plaintiff's expert’s own
deposition admissions, this court should reject the unsupported assertions in plaintiff's
opposition. There is simply no scientifically accepted evidence to establish brake workers and
auto mechanics are at an increased risk of developing mesothelioma — let alone plaintiff who was
never employed as an auto mechanic. ‘Thus, plaintiff's unsupported claims of causation against
Defendant should be rejected or, at the very least, an Evidence Code section 402 hearing should

be held before trial to determine the admissibility of plaintiffs evidence on causation.

D. Stupies SHOWING A RELATIVE Risk OF 2.0 OR Less ARE IRRELEVANT AND
THEREFORE INADMISSIBLE TO PROVE CAUSATION

“No evidence is admissible except relevant evidence.” Cal. Evid. Code § 350; Brokopp v.
Ford Motor Co. (1977) 71 Cal.App.3d 841, 853; People v, Babbitt (1988) 45 Cal.3d 660, 681
[248 Cal Rptr. 69]. Evidence is relevant if it “tends logically, naturally, and by reasonable
inference to prove or disprove a material issue.” People v. Jones (1954) 42 Cal.2d 219, 222 [266
P.2d 38]. Ifa plaintiff seeks to prove causation with epidemiological evidence, the court must ask
whether the particular epidemiological evidence offered tends logically, naturally, and by
reasonable inference to establish causation under the more likely than not standard.

Because studies showing a relative risk of 2.0 or less do not show that it is more likely
than not that the agent or exposure in question caused the disease, such studies are not relevant to
prove causation. No published opinion of a California court has addressed the issue of the
whether studies showing a relative of risk of 2.0 or below are relevant. However, federal courts
applying California’s causation law (i.e., California’s more likely than not standard) have clearly
indicated that epidemiological studies showing a relative risk of 2.0 or less are irrelevant if

offered to prove causation. Daubert v. Merrell Dow Pharms., Inc. (9th Cir. 1995) 43 F.3d 1311;

! Dr. Smith was recently deposed in Floyd Messenger v. Amcord, Inc. and an expedited
copy of that transcript has been ordered. Upon receipt, the transcript will be lodged with the
court.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE 10 THE EXTENT IT
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
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AYTORNEYS ATLAW

Sanderson v. International Flavors & Fragrances, Ine. (C.D. Cal. 1996) 950 F.Supp. 981, 1000;
Cook, 545 F.Supp. at 308 n.1; see also Allison v. McGhan Med. Corp. (11th Cir. 1999) 184 F.3d
1300, 1315 n.16, In Allison, the court excluded expert testimony based on epidemiological
studies where the relative risks was not greater than 2.0, since only “[rlisks greater than 2.0

permit an inference that the plaintiff's disease was more likely than not caused by the agent.” Jd.

In Daubert, the plaintiffs alleged that the drug Bendectin caused plaintiffs’ limb-reduction
birth defects and offered expert testimony based on epidemiology to show causation. 43 F.3d at
1313. The Ninth Circuit heard the case on remand after the U.S. Supreme Court’s opinion in
Daubert y. Merrell Dow Pharms., Inc. (1993) 509 U.S. 579. The Ninth Circuit case “‘deal[t] with
an evidentiary question: whether certain expert scientific testimony is admissible to prove that
Bendectin caused the plaintiffs’ birth defects.” Daubert, 43 F.3d at 1313. In order to determine
admissibility in light of the Supreme Court’s Daubert opinion, the Circuit Court was required to
“undertake ‘the task of ensuring that an expert’s testimony . . . is relevant to the task at hand’” by
ensuring that the testimony would assist the trier of fact in determining the issue of causation
under the relevant California standard. Id. at 1313, 1320 (citation omitted). The court therefore
sought to determine whether the epidemiological evidence in question tended to show that the
defendant’s product more likely than not caused the injuries in question. Jd. The court held that
such evidence must show a relative risk of greater than 2.0 in order to be relevant in establishing
that the causal agent more likely than not caused the injury at issue. In particular, the court
stated:

For an epidemiological study to show causation under a
preponderance standard, ‘the relative risk’... will, at a minimum,
have to exceed ‘2°. Jd, at 1321 (citation omitted). [OJnly then can
it be said that [the allegedly toxic product] is more likely than not
the source of [piaintiffs’] injury. /d. at 1320. Studies where the
relative risk is not greater than 2.0 ‘would not be helpful, and
indeed would only serve to confuse the jury, if offered to prove
rather than refute causation. A relative risk of less than two...
actually tends to disprove legal causation.’ Thus, the court held that
studies where the relative risk is not greater than 2.0 are irrelevant

and inadmissible, as is any expert testimony based on such studies.
Td. at 1321-22.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IP
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
[MIL #03)28

LANKFORD
CRAWFORD
MORENO LLP
ATTORNEYS AT LAW

More recently, Sanderson also assessed the relevance and admissibility of expert
testimony to prove causation under California’s more likely than not standard. The court found
that the testimony of plaintiffs experts was inadmissible because, inier alia, the testimony was

not supported by epidemiological studies showing a relative risk of greater than 2.0:

Since [plaintiff's expert’s] probability estimate is not founded upon
epidemiological studies showing a relative risk of greater than two,
or some other evidence that would lend a scientific foundation to
the assertion that fragrances more likely than not caused plaintiff's
injuries, it does not constitute ‘a valid scientific connection to the
pertinent inquiry’ of causation. None of plaintiff's other experts
even says that the relative risk is more than two, so their testimony,
even if totally reliable, would actually tend to disprove legal
causation, just as in Daubert on remand. 950 F.Supp. at 1000
(emphasis omitted) (citation omitted).

Thus, Sanderson holds that, unless expert testimony is supported by epidemiological
studies showing a relative risk of greater than 2.0, it is irrelevant and inadmissible to prove legal
causation. In this case, plaintiff must come forward with epidemiological studies showing the
following: that there is a relative risk of greater than 2.0 that individuals who were exposed to
asbestos-containing brake products (in the manner that plaintiff was exposed) will develop the
type of asbestos-related disease that plaintiff allegedly contracted. ‘To the extent that plaintiff
seeks to introduce epidemiological studies that show a relative risk of 2.0 or less, such studies
cannot show that it is more probable than not that plaintiff's exposures to Defendant’s product

caused plaintiff’s death. In fact, such studies “would not be helpful, and indeed would only serve

to confuse the jury, if offered to prove rather than refute causation” because a “relative risk of less

than two... . actually tends to disprove legal causation.” Daubert, 43 F.3d at 1321. Accordingly,

under both Daubert and Sanderson, epidemiological studies that show a relative risk of 2.0 or

less, and any expert testimony based thereon, are irrelevant and inadmissible.
E. THE PROBATIVE VALUE OF EPIDEMIOLOGICAL EVIDENCE SHOWING A RELATIVE RISK

Or 2.0 OR Less Is ALSO SUBSTANTIALLY OUTWEIGHED By THE DANGER OF UNDUE
PREJUDICE, OF CONFUSING THE IssuES, AND OF UNDUE CONSUMPTION OF TIME

Under Evidence Code section 352, the court has the discretion to exclude evidence if its

probative value is substantially outweighed by the probability that its admission will (a) create a

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFI’S SCIENTIFIC CAUSATION EVIDENCE TO THE EXTENT IT
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LANKFORD
CRAWFORD
MORENO LLP
ATIORNEYS AT LAW

substantial danger of confusing the issues or of misleading the jury or (b) necessitate undue
consumption of time.

Even were this Court to determine that epidemiological evidence showing a relative risk
of 2.0 or less has some limited probative value when offered on the issue of causation, it should
exclude such evidence on the basis that its minimal probative value is far outweighed by the
danger of confusing the issues or misleading the jury. As noted in Daubert, admitting a study
demonstrating a relative risk of 2.0 or less “would only serve to confuse the jury, if offered to
prove rather than refute causation [because such a study] actually tends to disprove legal
causation.” Daubert, 43 F.3d at 1321.

Alternatively, the Court should exclude such evidence because its introduction would
necessitate devoting vast amounts of time to educating the trier of fact. The jury would have to
be made to understand the methodology of epidemiology, the interpretation of relative risk, and
the limitations on the inferences that can be drawn from studies where the relative risk is 2.0 or
less. Even if educating the jury to this degree were possible, it would consume an amount of time
that is far out of proportion to the probative value of such evidence.

F. GIVEN THAT PLAINTIFFS’ CAUSATION EVIDENCE DoEs Not MEET THE EVIDENTIARY

THRESHOLD CONSISTING OF EPIDEMIOLOGICAL STUDIES SHOWING A RELATIVE Risk

OF GREATER THAN 2.0, PLAINTIFFS’ CAUSATION EVIDENCE Is INADMISSIBLE BECAUSE
Ir Is UNRELIABLE AND SPECULATIVE

Unable to meet the required evidentiary threshold of producing epidemiological studies
with a relative risk of greater than 2.0, plaintiff intends to rely on causation evidence that is
unreliable and inadmissible. For example, plaintiff intends to rely upon case reports to prove
causation. However, as discussed in detail in Defendant’s Motion Jn Limine To Exclude Case
Reports, Compilations Of Case Reports And Opinion Testimony Based On Case Reports, case
reports are inadmissible hearsay and are considered unreliable in establishing the causes of a
disease, in part because they lack many of the indicia of reliability that epidemiological studies
possess. As one court noted:

[Clase reports are not reliable scientific evidence of causation.

because they simply described reported phenomena without
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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S SCIENTIFIC CAUSATION EVIDENCE TO Tlie EXTENT IT
DOES NOT DEMONSTRATE RELATIVE RISK GREATER THAN 2.0
[MIL #03]28

LANKFORD
CRAWFORD
MORENO LL?
ATIORNEYS ATLAW

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. Casey v. Ohio Med. Prods. (N.D. Cal.
1995) 877 F.Supp. 1380, 1385.

Thus, the Casey court found these case reports inadmissible to prove causation. /d. at
1386. In the words of the Casey court, non-epidemiological evidence is inadmissible to prove
causation because it “[1] simply describe[s] reported phenomena without comparison to the rate
at which the phenomena occur[s] in . . . a defined control group; [2] do[es] not isolate and exclude
potentially alternative causes; and [3] do[es] not investigate or explain the mechanism of
causation.” Jd. at 1385. All told, Plaintiff's non-epidemiological evidence is “not reliable
scientific evidence of causation.” Jd. Accordingly, plaintiff should be precluded from
introducing any such non-epidemiological evidence, or any testimony based thereon, to prove
causation.

iH.
CONCLUSION

For the foregoing reasons, Defendant moves the Court for an order precluding plaintiff
from introducing scientific causation evidence to the extent that it does not demonstrate

epidemiological relative risk greater than 2.0.

Dated: — December 2, 2010 LANKFORD CRAWFORD MORENO LLP
ay
By:
PAUL V. LANKFORD
PAUL LANNUS
Attorneys for Defendant
FORD MOTOR COMPANY
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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO EXCLUDE PLAINTIF® S SCIENTIFIC CAUSATION BVIDENCE TO THE EXTENT IT
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