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

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                                BRAYTON® PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
P OBOX 6169
NOVATO, CALIFORNIA 94948-6169

(AIS) 898-1555

GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ., S.B. #220816
BRAYTON*+PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

ELECTRONICALLY
FILED

Superior Court of California,

Novato, California 94948 County of San Francisco
(415) 898-1555 MAY 08 2012
Attorneys for Plaintiffs oclerk of the Court
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
IN RE BRAYTON GROUP 586 ASBESTOS
{Lead Case: ROSITA PIQUE], No. CGC-08-274659
Plaintiffs, PLAINTIFFS’ MOTION IN LIMINE TO
PRECLUDE EXAMINATION OF EXPERT
vs. WITNESSES REGARDING “BUT FOR”
} PROXIMATE CAUSE
ASBESTOS DEFENDANTS (B¢P)
Trial Date: May 1, 2012
Room: 624

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PLAINTIFES’ MOTION EN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”

PROXIMATE CAUSE1 TABLE OF CONTENTS
241 INTRODUCTION 200000000000 ccc cece eee eee tee et ee ene ee beens 1
BI FACTS ooo ccc e ccc ccc ccc eect t eee beeen te enter ee es 1
4m. THE “BUT FOR” TEST IS NOT THE APPROPRIATE STANDARD .........--- 3
sl tv. THE RUTHERFORD STANDARD IS THE ONLY APPROPRIATE STANDARD . 5
61.V.  VINERDOESNOT APPLY 2... 00.0.000 00002000 c cece cere eee eevee eee ere es 7
7 | VI. CACI 430 IS NOT APPLICABLE TO ASBESTOS CASES .........-.....2.5- 10
BVI CONCLUSION 22000000. 0 cece ccc cece ence rete t tere ect eens 14
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PARTIFFS” MOTION TN LIMINE TO PRECLUDE TXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”BR WN

TABLE OF AUTHORITIES

CASES

Andrews v. Foster Wheeler (2006) 138 Cal. App.4th 96 20.0026 e cece ee eee 10
Cadlo v. Metalclad Insulation Corp. (2007) 151 Cal App.4th 1541 ...............0000- 12
Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990 2.0.0.0... 6.6. eee eee 4,7,9, 13
Liv. Yellow Cab (1975) 13 Cal.3d 804.000... cece te eee ee 8
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal. App.4th 1409 ............0.000. 11, 12
Lohrmann y. Pittsburgh Corning Corp. (4th Cir. 1986) 782 F.2d I 156 22 11
Mitchell v. Gonzales (1991) 54 Cal.3d 1041 2.0... eee ee 3,7,9
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 00.0... 00. eee 1,3, 4, 5, 6-14
Viner y. Sweet (2003) 30 Cal.4th 1232 0. ccc ccc ccc eee tenes 4, 8-10
STATUTES

Evidence Code Section 350 20... ccc te eee ere eee 1,3, 14
Evidence Code Section 352 0.000. n etree nn eee 1,4, 14
MISCELLANEOUS

BAJIB.76 00000 c ccc cence nen ener terete ees L, 5, 8, 12, 13
BAIL 3.77 oo eet tee $, 11-13
BAIL 3.78 ooo cee eee ee nen ete eee ete 5,12
CACT ABO 20 cece een ene cnn n ene eee 4, 10-12, 14
CACT ABE oe eee ne 4,5,11,12
CACI 435 1, 4, 5, 10-12, 14
Prosser, Torts, Section 41 at 267 0.0 nets een tenes 711
Intemational Journal of Occupational Environmental Health (2007) . 0.0.0.0... 02 eee 12
1 Groups SST RIAL Wu pron np ii

PLAINTIFFS" MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”
PROXIMATE CAUSE1.
INTRODUCTION

Plaintiffs submit the following Motion in Limine to Preclude the Examination of Expert
Witnesses Regarding Proximate Cause in an effort to avoid undue prejudice to plaintiffs.
Specifically, plaintiffs seck to prevent questioning by defense counsel designed to improperly
suggest to the jury that its product(s) and/or conduct on “its own” was insufficient to cause the
asbestos-related disease at issue. This motion is made on the grounds that such questioning
would be a thinly disguised attempt to elicit testimony so as to confuse and mislead the jury into
applying an improper “but for” or “proximate cause” test for causation, in direct violation of

Rutherford v. Owens Hlinois, Inc. (1997) 16 Cal.4th 953, 954. As such, the questioning and

testimony is (1) irrelevant and should be excluded under Evidence Code Section 350, and (2)
will mislead the jury, prejudice plaintiffs, and should be precluded under Evidence Code
Section 352. Plaintiff's request an order and admonition to defense counsel prior to opening
statements to refrain from such examination and otherwise prohibit reference to a standard of
causation other than that proscribed by California law.

i.
FACTS

It has become a common practice for defense counsel in asbestos litigation to attempt to
elicit expert testimony regarding causation specific to its product(s) and/or conduct. Plaintiffs
do not contest the propriety of establishing through expert testimony notions of overall risk for
contracting a given asbestos-related disease or fiber-year calculations as they relate to a given
defendant’s participation in the aggregate dose of asbestos to which a plaintiff or decedent was
exposed. Such testimony is clearly relevant as it relates to Proposition 51 allocation of fault and
determination of cause under the substantial factor test enumerated in BAJ1 3.76, CACI 435,
and California case law.

Rather, plaintiffs take issue with defendants’ attempts to inject improper questioning and
eliciting inappropriate opinions from expert witnesses couched in terms of proximate cause

rather than substantial factor as the standard of legal causation.

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Although if is virtually impossible to apprise this Court of each and every potential
question designed to focus the jury on a “but for” or proximate cause standard of causation,
nonetheless, plaintiffs submit that the following questions are clearly improper as wil] be
discussed, infra:

lL Doctor, was Mr. X’s exposure to asbestos, excluding that attributable to my

client, sufficient to have caused his asbestos-related disease?

2. Doctor, focusing on the exposure to my client’s product(s) or activities, was

that sufficient on its own to have caused plaintiff's asbestos-related disease?

3. ¥f plaintiff had never been exposed to my client’s product(s) or activities, would

he have still been exposed fo a dose of asbestos sufficient to cause his disease?

4. Doctor, based on your testing and/or research would you expect a person

exposed solely to a quantity of asbestos, such as that associated with my client’s
product(s) or activities, to contract an asbestos-related disease?

5. Can you state to a reasonable degree of medical/scientific certainty that my

client’s product(s) or activities on its own caused this man’s disease?

6. If my client’s product(s) or activities were Mr. X’s only exposure to asbestos,

would he have contracted an asbestos-related disease?

As previously indicated, plaintiffs do not intend the above-referenced list of questions to
be all-inclusive. Rather, said questions are intended to be merely illustrative. To be absolutely
clear, plaintiffs request that this Court order defense counsel to refrain from posing any of the
aforementioned questions and/or any variation thereof designed to instill in the jurors’ minds
that plaintiffs must prove that the defendant's product(s) or activities were the proximate cause
of the asbestos-related disease. Defense counsel should be prohibited from suggesting that
plaintiffs are required to prove that “but for” exposure to defendant's product(s) or negligent
conduct plaintiffs would not have contracted their asbestos-related disease. Additionally,
plaintiffs request that defense experts be admonished not to volunteer opinions as to causation
which clearly contravene the appropriate legal standard.

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THE “BUT FOR” TESTIS NOT THE APPROPRIATE STANDARD

The “but for” test of cause in fact, which states that a defendant’s conduct is a cause of
an injury if the injury would not have occurred “but for” that conduct, has been expressly
rejected by the California Supreme Court. Mitchell v. Gonzales, (1991) 54 Cal.3d 1041. The
reason for abandoning the “but for” rule is that it improperly leads jurors to focus on
cause that is spatially or temporally closest to harm. Id., 54 Cal.3d at 1052.

The “but for” test for cause in fact determinations has been subsumed, and replaced, by
the “substantial factor” test. The “substantial factor” test is a clearer rule of causation which
addresses situations such as concurrent causes. The Supreme Court, in considering an action
for asbestos-related disease, specifically held that the “substantial factor” test is satisfied
where a plaintiff shows that defendant’s negligence or defective product, in reasonable
medical probability, was a substantial factor in contributing to the aggregate dose of
asbestos that the plaintiff inhaled, and hence the risk of developing an asbestos-related
disease. Rutherford v. Owens Illinois, Inc. (1997) 16 Cal.4th 953, 954. In setting forth this

mandatory standard in asbestos cases, the Supreme Court implicitly prohibited evidence
designed to parse out a given defendant’s participation from the aggregate dose and focus a jury
on whether such participation was sufficient on its own to have caused the asbestos-related
disease. To permit such evidence to go before a jury directly contravenes the substantial factor
test and constitutes reversible error.

As set forth, supra, there are any number of ways in which defense counsel can frame
questions and elicit testimony from expert witnesses in direct contravention of the “substantial
factor” test. The facts of this case, which cannot be reasonably disputed, indicate that plaintiffs
were exposed to occupational levels of asbestos through numerous products and exposure
scenatios over the course of many years. It is therefore irrelevant under Evidence Code § 350 to
isolate a given defendant’s participation and suggest that it on its own could not have caused the
asbestos-related disease. Such testimony would not only grossly misrepresent plaintiffs’ overall

occupational exposure history but, more importantly, focus the jury on a given exposure to the

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exclusion of the totality of plaintiffs’ occupational exposure to asbestos. An expert’s opinion
that such participation alone could not have caused the asbestos-related disease is therefore
irrelevant under the appropriate standard of causation. Moreover, such questioning and
testimony would both confuse jurors and be prejudicial under Evidence Code § 352 in that

it misstates plaintiffs" burden of proof regarding causation. Such an attempt to revise the “but
for” causation standard would not only be inappropriate but constitutes reversible error.

Plaintiffs do not mean to suggest that the defendants cannet, through expert testimony,
estimate their individual participation in the context of the aggregate dose of asbestos inhaled
over the course of plaintiffs’ working life. Clearly, such evidence is relevant in the jury’s
determination as to whether a given exposure was a substantial factor contributing to the
aggregate dose and hence the risk of developing the asbestos-related disease. Such evidence
would also be relevant to a determination of comparative fault under Proposition 51; however,
it cannot and should not be used to subvert and distort the legal standards for causation as
enunciated by the Supreme Court of this state.

In an attempt to mislead trial courts, asbestos defendants typically attempt to distort and
mischaracterize the well-established law on asbestos causation. Rutherford v. Owens-Illinois
Ine, (1997) 16 Cal.4th 953, Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, CACI 431,
and CACTI 435 represent the applicable law. Viner v. Sweet (2003) 30 Cal.4th 1232 and CACI
430 do not apply and are completely inapplicable to asbestos cases. Despite being repeatedly

informed of this by trial courts, courts of appeal, and the Judicial Council, defendants continue
to bring their frivolous motions and arguments under various titles, always spuriously arguing
that to be substantial, the exposure to asbestos attributable to them must be large. Their
attempts to mislead trial courts and juries into discounting certain exposures in causation must
continue to be denied without impunity.

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IV.

THE RUTHERFORD STANDARD IS THE ONLY APPROPRIATE
STANDARD

California law, as required under Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th

953, and as set forth in BAJI 3.76, 3.77, and 3.78, or as set forth in CACI 431 and 435, will be
properly applied in this case. When a person contracts an asbestos-related disease after
exposure to multiple asbestos-containing products, each exposure contributes to the person’s
dose and therefore to the total fiber burden, and therefore to the development of the clinical
disease that occurs. Plaintiffs must show that the defendants’ negligence and/or defective
products were a substantial factor in bringing about the disease claimed. They do not have to
prove anything else for causation to be established. As a practical matter, there is no way to
identify which product in particular or most substantially “caused” the disease, or to state with
any degree of certainty that the person would not have contracted the disease but for a particular
product. As stated in Rutherford:

Plaintiffs cannot be expected to prove the scientifically unknown
details of carcinogenesis, or trace the unknowable path of a given
asbestos fiber. But the impossibility of such proof does not dictate
use of a burden shift. Instead, we can bridge this gap in the
humanly knowable by holding that plaintiffs may prove causation
in asbestos-related cancer cases by demonstrating that the
plaintiff's exposure to defendant's asbestos-containing product in
reasonable medical probability was a substantial factor in
contributing to the aggregate dose of asbestos the plaintiff or
decedent inhaled or ingested, and hence to the risk of developing
asbestos-related cancer, without the need to demonstrate that
fibers from the defendant's particular product were the ones, or
among the ones, that actually produced the malignant growth.

Id, at 976-977 (footnote omitted). The Rutherford court went on to direct:

The plaintiff may meet the burden of proving that exposure to
defendant's product was a substantial factor causing the illness by
showing that in reasonable medical probability it contributed to
the plaintiff or decedent's risk of developing cancer. The jury
should be so instructed. The standard instructions on substantial
factor and concurrent causation (BAJI Nos. 3.76 and 3.77) remain
correct in this context and should also be given.

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PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”
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Id, at 982-983 (footnote omitted). Plaintiffs do not have to show that a defendant’s asbestos-
containing product was the major exposure -- the most frequent exposure -- or the single most
significant exposure -- that contributed to the disease:

The substantial factor standard is a relatively broad one, requiring

only that the contribution of the individual cause be more than

negligible or theoretical.
Jd, at 978 (emphasis added), Further, the Rutherford court, after setting out the substantial
factor standard, specifically stated:

We conclude that plaintiffs are required to prove no more than

this. In particular, they need not prove with medical exactitude

that fibers from a particular defendant's asbestos-containing

products were those, or among those, that actually began the

cellular process of malignancy.
Id, at 958 (emphasis added). Plaintiffs will meet their burden under Rutherford by proving that
the exposures to the defendants’ asbestos-containing products were substantial factors in
reasonable medical probability in contributing to the aggregate dose of asbestos inhaled --
precisely as required by Rutherford. Plaintiffs will demonstrate that exposure to the defendants’
asbestos-containing products was a “substantial factor” in contributing to the aggregate dose of
asbestos inhaled and thus to the risk of developing asbestos-related disease -- a disease which
is cumulative in nature.

The Rutherford court described the simple and vet adequate causation evidence that was
presented by plaintiff Rutherford: “Dr. Allan Smith . . . testified that asbestos-related lung
cancers are dose-related diseases, and that all occupational exposures through the latency period
can contribute to the risk of contracting the diseases.” Id, at 961. In the present case, plaintiffs’
experts and probably even defendants’ experts will provide this same type of testimony and
much more.

The Supreme Court in its decision in Rutherford warmed of defendants’ efforts to twist
the meaning of the word “substantial”:

Undue emphasis should not be placed on the term ‘substantial.’
For example, the substantial factor standard, formulated to aid
plaintifts as a broader rule of causality than the ‘but for’ test, has

een invoked by defendants whose conduct is clearly a ‘but for’
cause of plaintiff's injury but is nevertheless urged as an

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PLAINTIFES’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”
PROXIMATE CAUSEinsubstantial contribution to the injury. (Prosser & Keeton on

Torts Sth ed., 1988 supp. § 41, pp. 43-44.) Misused in this way,

the substantial factor test ‘undermines the principles of

comparative negligence, under which a parly is responsible for his

or her share of negligence and the harm caused thereby.

(Mitchell v. Gonzales (1984) 54 Cal.3d 1053, 1053.)
Yd. at 969. This Court must roundly reject any attempts by defendants to rewrite California law,
creating an impossible burden on plaintiffs and protecting most defendants from any liability.
From the testimony at trial, the jury will be able to properly conclude that plaintiffs met their
burden of demonstrating that exposure to asbestos from defendant was a substantial factor in
contributing to the total dosage of asbestos inhaled, and thus to the risk of developing an
asbestos-related disease. Inappropriate “but for” questions or argument will only confuse the
jury, and tead to them following an incorrect causation standard.

Vv.
VINER DOES NOT APPLY
Despite authority directly on point, defendants typically argue that the “but for”

standard of causation discussed in Viner v. Sweet (2003) 30 Cal.4th 1232 should be applied
instead of Rutherford. However, Viner has no impact whatsoever on causation in asbestos

cases, as set forth in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953. In Jones v. John
Crane, Inc, (2005) 132 Cal.App.4th 990, the court explicitly ruted that Viner is limited to

causation in a transactional malpractice case, and that it has no impact on Rutherford.

Defendants’ often stated theories — that plaintiffs should be required to prove either that
defendants’ products or actions independently caused the disease, that the exposure from a
particular defendant was too small to be a substantial factor, or that “but for” exposure from a
particular defendant, the injured party would not have contracted his disease — must be rejected
for the same reasons the court rejected them in Rutherford, Jones, etc.

Defendants’ argument confuses the quantity of an individual’s exposure with the
substantial contribution of the exposure to the total dose accumulated. Rutherford does not

require a (large) substantial exposure. Plaintiffs do not have to show that a particular

defendant’s exposure was the major exposure, the most frequent exposure, or the single

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exposure that caused the disease. Even if exposures from other entities were more “substantial”
in quantity, that fact alone does not absolve a defendant of Hability. The true question is
whether a plaintiffs exposure to a particular defendant’s asbestos-containing products was a
“substantial factor” in contributing to the aggregate dose of asbestos he inhaled and thus to lis
risk of developing an asbestos-related disease.
The Rutherford decision expressly disavows any requirement that plaintiffs show that
“but for” the exposure to a defendant’s asbeslos-containing products, they or decedents would
not have developed asbestos-related disease. The Supreme Court recognized the cumulative
nature of asbestos exposure and addressed that issue as follows:
Although the plaintiff must, in accordance with traditional tort
principles, demonstrate to a reasonable medical probability that a
product or products supplied by the defendant, to which he
or nisk of mu tries, he is free to further establish that his particular
asbestos disease is cumulative in nature, with many separate
exposures each having constituted a “substantial factor” (BAJL
No. 3.76) that contributed to his risk of injury.

Rutherford, 16 Cal 4th at 958.

While a “trivial” exposure cannot be considered “substantial” for the purposes of
Rutherford, an exposure does not become “trivial” merely because it is small or another
exposure is greater. The law recognizes that there are different degrees of responsibility. That
is why Califomia adopted the doctrine of comparative negligence. See Li v. Yellow Cab (1975)
13 Cal.3d 804.

Viner v. Sweet (2003) 30 Cal.4th 1232 has nothing to do with asbestos, and it does not
support defendants’ position that plaintiffs must prove “but for” causation in this case. In
Viner, the Supreme Court emphasized that it accepted review to address the “limited ... issue[ ]
... whether the plaintiff in a transactional legal malpractice action must prove that a more
favorable result would have been obtained but for the alleged negligence.” Id, at 1238-39. The
court agreed with defendants that in transactional malpractice cases, “{i]t is far too easy to make
the legal advisor a scapegoat for a variety of business misjudgments unless the courts pay close

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attention to the cause in fact element, and deny recovery where the unfavorable outcome was
likely to occur anyway...” Id, at 1241. :
"tn contrast to its, findings in Rutherford, the court found that there is “nothing distinctive
about transactional malpractice that would justify a relaxation of, or departure from, the well-
established requirement in negligence cases that the plaintiff establish causation by showing
either that (1) but for the negligence, the harm would not have occurred, or (2) the negligence

was a concurrent independent cause of the harm.” Id.

Far from overruling or changing the Rutherford holding, Viner acknowledged that
Rutherford firmly established California’s adoption of the “substantial factor test of the
Restatement Second of Torts for cause-in-fact determinations.” Id, at 1239. It notes that “the
‘substantial factor’ test .. . has been comparatively free of criticism and has even received
praise,” and that Dean Prosser has opined that, “[a]s an instruction submitting the question of
causation in fact to the jury in intelligible form, it appears impossible to improve on the
Restatement’s “substantial factor” test.” Id. at 1052.

Though defendants frame the argument as a legal question, it is solely a factual
determination whether exposure to defendants’ products or defendants’ conduct was or was not
a legal cause of disease.

In Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, John Crane’s virtually
identical argument — that Viner should be read to supplant the substantial factor test and replace
it by but for causation -- was squarely rejected by the First District Court of Appeal, and the
Supreme Court denied John Crane’s petition for review.

In Donna Grahn y, Exxon Mobil Corporation, an unpublished opinion of the First

Appellate District filed September 17, 2004, following a trial by Honorable Judge Paul
Alvarado, the Court rejected Exxon’s contention that the court “should have instructed on

causation using ‘but for’ language derived from Viner v. Sweet,” stating that, “We find nothing

' In her dissenting opinion in Mitchell v. Gonzales (1991) $4 Cal.3d 1041, Justice Kennard expressly
recognized the importance of undertaking such a “social evaluative process” — a consideration of both cause in fact
and “the limitations imposed by ‘our more or less inadequately expressed ideas of what justice demands” ~ in
determining what constitutes legal cause. (54 Cal.3d at 1057-58.)

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PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”
PROXIMATE CAUSEin Viner that suggests the court intended to overrule or modify the specific instruction on
asbestos causation the court had formulated in Rutherford.” (Written opinion p.8.)

In Andrews v. Foster Wheeler (2006) 138 Cal-App.4th 96, the First District Court
affirmed summary judgment for defendant Foster Wheeler on the ground that plaintiff had not
presented sufficient admissible evidence to support his claim, but affirmed that the “substantial
factor” test applied. The Court stated:

To ultimately prevail in their underlying claim, plaintiffs would
need to establish that Andrews’s exposure to a product
attributable to Foster Wheeler was to a reasonable medical
probability a substantial factor in contributing to any asbestos-
related disease suffered by him, pursuant to the standard of proof
articulated in Rutherford. * * * “The substantial factor standard
is a relatively broad one, requiring only that the contribution of
the individual! be more than negligible or theoretical.” [citation]
138 Cal.App.4th at 102.
VI.

CACI 4301S NOT APPLICABLE TO ASBESTOS CASES

Defendants often rely on and quote the old, disapproved, erroneous CACI 430
instruction in its motion. On December 7, 2007, the Judicial Council approved the new CACI
430 and 435 jury instructions. In the Directions for Use, CACI 430 now specifically states:
“Give CAC] 435, Causation for Asbestos-Related Cancer Claims, and do not give this
instruction.” Id, CACI 435 now specifically states: “do not give CACI No, 430, Causation-
Substantial Factor. Id, The end result of the changes is that CACL, like its BAJI predecessor,
now correctly follows Rutherford. The language “it must be more than a remote or trivial
factor” has been removed.

The old, unrevised “more than remote and trivial” language of CACTI 430 put undue

emphasis on the term substantial, in direct violation of Rutherford, supra. Further, all medical
witnesses, plaintiffs and defense alike, will agree that asbestos-related diseases are of very long
latency that clinically present, on average, 15 to 30 to 60 or more years after the first causative
asbestos exposures.

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in this specific context then, just what did the old, unrevised, erroneous, disapproved
CACI 430 mean to the average juror when stating that substantial factors in causing asbestos
disease “must be more than remote?”

Moreover, what exactly did “trivial” mean in this context of deciding substantial factor
causation when viewed in the specific (and invariable) context of concurrent causal asbestos
exposures from multiple different products and jobs given that CACI 431 (confirmed as an
accurate statement of California law by Rutherford [BAJI 3.77]) correctly instructs that “a
defendant cannot avoid responsibility just because some other person, condition, or event was
also a substantial factor in causing the harm” (emphasis added), and CACI 435 correctly
instructs that “it does not have te be the only cause of the harm.”

To a juror, if “remote” meant “long ago” and “trivial” meant “not much,” then that juror

was exactly wrong in his or her gleaned, but reasonable, understanding of what the old,
unrevised, erroneous, disapproved CACI 430 sought to explain. And the mere attempt to do so
belied the sage advice of Rutherford.
As the Rutherford court favorably observed:
The term ‘substantial factor’ has not been judiciously defined
with specificity, and indeed it has been observed that itis ‘neither

possible nor desirable to reduce it to any lower terms.’ (Emphasis
added.) Citing: Prosser & Keeton, Torts, Section 41 at 267.

In support of their argument that the “more than remote or trivial” language from the old
unrevised, erroneous, disapproved CACI 430 is somehow appropriate in an asbestos case,

defendants often cite to dicta from Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th

1409, 1416, where the court stated: ,
Many factors are relevant in assessing the medical probability that
an exposure contributed to plaintiffs asbestos disease. Frequency
of exposure, regularity of exposure, and proximity of the asbestos
product to plaintiff are certainly relevant, although these
considerations should not be determinative in every case. (Cf.
Lohrmann v. Pittsburgh Coming Corp. (4th Cir. 1986) 782 F.2d
1156, 1162-1163 [adopting "frequency-regularity-proximity” test
as de minimis standard of causation].)

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PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”,
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Defendants typically fail to point out that the referenced Lineaweaver dicta predates the
Rutherford court’s express holding regarding asbestos causation instructions.

Attempts to interject incorrect and confusing concepts into the law as it applies to
asbestos causation run parallel to asbestos defendants’ attempts to fabricate those same notions
in the medical and scientific communities. Recently, Dr. Laura S. Welch and 51 other
prominent medical and scientific leaders in the field of asbestos and disease published an article

jn the International Journal of Occupational Environmental Health. 2007: 13:318-327 in which

they conclude for example:

The scientific community is in consensus that brief and low-level
exposures to asbestos can cause mesothelioma .... As scientists
who have devoted substantial portions of our professional lives
working to research, prevent, and treat asbestos-related diseases,
we reject these attempts to fabricate uncertainty where none
exists. Instead, we request that these courts attend to the work of
thousands of experts fom around the world who have concluded
that asbestos, in any form, and through any occupational
exposure, can and does cause disease.

Id, at 323. This Court must remain with the mainstream scientific and medical community, the
BAJI committee, the CAC] committee, the Judicial Council, and the courts of appeal in
rejecting the attempts by asbestos defendants to interject amorphous notions into the law on
asbesfos causation.

Recently, in Cadlo v. Metalclad Insulation Corp. (2007) 151 Cal.App.4th 1511, the First

District confirmed that the old, unrevised, erroneous, disapproved CAC] 430 is incorrect
and that the language of what is now the new approved CACI 430, 431, and 435 causation
instructions must be used:

The trial court refused Crane's proposed special
instruction No. 4 which provided: ‘A substantial factor is
something which is more than a slight, trivial, negligible, or
theoretical factor in producing a particular result.’ It also refused
to instruct the jury pursuant to CACI No. 430 (Jan.2005 ed.): “A
substantial factor in causing harm is a factor that a reasonable

erson would consider to have contributed to the harm. Jt must
more than a remote or trivial factor. It does not have to be the
only cause of the harm.’ ...

However, the court did instruct the jury pursuant to BAJI
Nos. 3.76 and 3.78: FN20. (The court also instructed on
concurrent causation pursuant to BAJI No. 3.77.)

Groups SSONTRIAL it: prox wpa 12Id. at 16-18.
fh

‘Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953
Rutherford ) sets forth the controlling standard for proving

causation in an asbeslos-induced personal injury case.’ (Jones,
supra,132 Cal.App.4th at p. 997.) In Rutherford, our Supreme
Court noted that the substantial factor standard of causation
subsumed the ‘but for’ standard, and reached beyond it to address
situations such as those involving independent or concurrent
causes. (Rutherford, at p. 969, 67 Cal.Rptr.2d 16.) It also noted
that the term ‘substantial factor’ has not been judicially defined
with specificity. While the court recognized that ‘a force which
plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about
an injury, damage, or Joss is not a substantial factor’" it stated that
it was ‘ ‘neither possible nor desirable to reduce [the term
substantial factor! to any lower terms,’ " and cautioned that the
term " ‘substantial’ should not be given undue influence. (Ibid.)
The Rutherford court explained, ‘Plaintiffs cannot be expected to
prove the scientifically unknown details of carcinogenesis, or
trace the unknowable path of a given asbestos fiber... [W]e can
bridge this gap in the humanly unknowable by holding that
plaintiffs may prove causation in asbestos-related cancer cases by
demonstrating that the plaintiff's exposure to defendant's
asbestos-containing product in reasonable medical probability
was a substantial factor in contributing to the aggregate dose of
asbestos the plaintiff or decedent inhaled or ingested, and hence
to the risk of developing asbestos-related cancer, without the need
to demonstrate that fibers from the defendant's particular product
were the ones, or among the ones, that actually produced the
malignant growth.” (Rutherford, supra, 16 Cal.4th at
pp. 976-977, fn. omitted.)

Rutherford concluded: ‘In the context of a cause of action
for asbestos-related latent injuries, the plaintiff must first
establish some threshold exposure to the defendant's defective
asbestos-contaiming products, and must further establish in
reasonable medical probability that a particular exposure or series
of exposures was a ‘legal cause’ of his injury, i.e., a substantial
factor in bringing about the injury. In an asbestos-related cancer
case, the plaintiff need not prove that fibers from the defendant's
product were the ones, or among the ones, that actually began the
process of malignant cellular growth. Instead, the plaintiff may
meet the burden of proving that exposure to defendant's product
was a substantial factor causing the illness by showing that in
reasonable medical probability it was a substantial factor
contributing to the plaintiff's or decedent's risk of developing
cancer. The jury should be so instructed. The standard
instructions on substantial factor and concurrent causation (BAJI
Nos. 3.76 & 3.77) remain correct in this context and should also
be given.” (Rutherford, supra, 16 Cal.4th at pp. 982-983, fns. and
italics omitted.) ....

The jury in this case was instructed pursuant to the
language approved in Rutherford for asbestos-related cases.
Consequently, Crane has failed to demonstrate instructional error.

AiGiausSSOTRIAL pron upd 13

PLAINTIFFS" MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”

PROXIMATE CAUSEAs stated above, acknowledging the error in the old, unrevised, erroneous, disapproved
CAC] 430 and 435 instructions for asbestos cases, the Judicial Council approved the CACI
commiltee’s revised CACI 430 and 435 to correct this exact problem. CACI 430, and thus the
“remote or trivial factor” language, can no longer be given in an asbestos case. Jd. CACI 435
has been modified to include the correct portion of the language from CACI 430 that correctly
applies to asbestos cases. Id. And, the Rutherford substantial factor test has been affirmed as
the correct law on causation, rather than the “but for” test that defendants attempt to use to
confuse the jury.

VIL
CONCLUSION

Questioning of expert witnesses designed to elicit irrelevant, confusing, and prejudicial
testimony regarding causation under a “but for” standard cannot and should not be permitted.
Under Evidence Code §§ 350 and 352 such questioning and testimony should be prohibited as a
matter of law. By and through this motion, plaintiffs seek to prevent prejudice and reversible
error before the proverbial bell is rung and the jury is confused and tainted by such testimony.
Plaintiffs submit that once the concept of “but for” causation is placed before a jury, either
through questioning or testimony, it is too late to remedy or cure the prejudice by way of
admonition or special instruction.

In light of the foregoing, plaintiffs respectfully request that this Court grant their motion
and admonish defense counsel and their expert witnesses in advance to refrain from such
questioning or testimony.

Dated: __ 5/4/12 BRAYTON®PURCELL LLP

By: /s/ James P. Nevin
James P. Nevin
Attorneys for Plaintiffs

KAGroupestoxT RIA wih orox pd 14
PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR”

PROXIMATE CAUSEBRAYTON® PURCELL LLP

ATTORNEYS AT LAW.
222 RUSH LANDING ROAD,

PO BOX 6169

NOVATO, CALIFORNIA 94948-6169.

(415) 898-1555

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oD ew ND HW RB Ww

PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE

Lam employed in the County of Marin, State of California. 1am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato, California, 94948-6169.

On May CB, 2012, | electronically served (E-Service), pursuant to General Order No.
158, the following documents:

PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT
WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE

on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(ies):

SEE ATTACHED SERVICE LIST

The above document was transmitted by Lexis-Nexis E-Service and the transmission
was reported as complete and without error.

Executed on May CB, 2012, at Novato, California.
I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.
| ? ¥ j
es Ble

In Re Brayton Group 586 [Lead Case: Rosita Piguel x. Asbestos Defendants (BP)
San Francisco County Superior Court Case No. CGC-08-274659

PROOF OF SERVICE BY E-SERVICE.Henn

Date Created: 5/7/2912-5:20:56 PM
(RAP)
Created by

Group Service List: SF586

Berry & Berry
P.O, Box 16070
2930 Lakeshore Aventie
Oakland, CA 94610
§10-835-8330 510-835-5117 (lax)
Defendants:
Berry & Berry (B&B)

Lankford Crawford Moreno LLP
1850 Mt, Diablo Blvd.
Suite 600
Walnut Creek, CA 94596
925-300-3520 925-300-3386 (fax)
Defendants:

Ford Motor Company (FORD)

Brayton-Purcell
Group Service List

Run By ;

LitSuppart - GroupServiceList - Reporting

Brydoa Huge & Parker
135 Main Street, 20" Floor
San Francisco, CA 94105
415-808-0300 415-808-0333 (fux}
Defendants:

Dana Companies, LLC (Ika Dana
Corporation) (DANA)

Perkins Coie LLP
Four Embarcadero Center. Suite 2400
San Francisco, CA 941
415-344-7000 415- sad. sos0 (fax)
Defendants:
Honeywell International, Inc. (HONEY W)

Porterfield, Angela A.

Hassard Bonnington LLP
Two Embarcadero Cenier
Suite 1800
San Francisco, CA 94111
415-288-9800 415-288-9802 (fax)
Defendants:
Honeywell International, Inc. (HONEY W)

Walsworth, Franklin, Bevins & McCall,
LLP
601 Montgomery Street, 9" Floor
San Francisco, CA 94111
415-781-7072 415-391-6258 (fax)
Defendants:

Thomas Dee Engineering Company (DEE)