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

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LANKFORD
CRAWFORD

MORENO LLP.
ATTORNEYS ar LAW

PAUL V. LANKFORD (State Bar No. 181506)
plankford@Iclaw.com

PAUL LANNUS (State Bar No. 192551)
plannus@Iclaw.com

LANKFORD CRAWFORD MORENO LLP

1850 Mt. Diablo Blvd., Suite 600

Walnut Creek, CA 94596

Telephone: 925.300.3520

Facsimile: 925.300.3386

Attomeys for Defendant
FORD MOTOR COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JAN 25 2012

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ROSITA PIQUE, as Wrongful Death Heir,
and as Successor-In-Interest to
GODOFREDO PIQUE, Deceased; and
MARLENE SANCHEZ, GREGORY
PIQUE, FREDERICK PIQUE, as Legal
Heirs of GODOFREDO PIQUE, Deceased,

“Plaintiff,
v.
ASBESTOS DEFENDANTS (BP),

Defendants.

ASBESTOS
Case No. CGC 08-274659

DEFENDANT FORD MOTOR COMPANY’S
MOTION IN LimineE TO EXCLUDE TESTIMONY
OF PLAINTIFFS’ EXPERT KENNETH COHEN
[MIL #41]

* 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.

DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE 10 EXCLUDE TESTIMONY GF PLAINTIFFS” EXPERT KENNETH COHEN

SF:27343760.1

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L
INTRODUCTION

It is anticipated Plaintiffs will proffer Kenneth Cohen for his opinion on subjects which
Mr. Cohen is unqualified to testify, and are impermissible under the Evidence Code. Ford Motor
Company (“Ford”) hereby moves this court for an order excluding Mr. Cohen from testifying to

the following:

J. His opinion that all exposure above “ambient” is
“substantial”; and

2. His opinion that any exposure to asbestos “more likely
than not” increases the risk of developing asbestos-related disease.

IL.
ARGUMENT

A Mr. COHEN'S OPINION THAT ANY EXPOSURE ABOVE “AMBIENT” IS “SUBSTANTIAL” IS
UNSUPPORTABLE AND MISLEADING

In asbestos litigation, Mr. Cohen’s attempt to establish the definition of “substantial” as
being anything in “excess of ambient” is improper. (Deposition of Kenneth Cohen: 28:20-29:7;
See also: Deposition of Kenneth Cohen in Herbert and Lauthell Moreno v. Advocate Mines
Limited, et al., San Francisco Superior Court Case No. 274701 (“Moreno Depo.”) 56:23-57:5).
Despite his attempt to disguise the term as an “industrial hygiene” term, Mr. Cohen’s definition is
improper, unsubstantiated, misleading and argumentative. (Cohen: 28:20-29:7; Moreno Depo
56:23-57:5). There is no standard in industrial hygiene that supports using the word “substantial”
for any exposure - one fiber or more - above ambient. Indeed, the lack of scientific preciseness of
such term suggests it has no basis in the industrial hygiene science or any science. In the context
of this litigation, this vague term is used in a legal sense and is argumentative. Moreover, there is
no literature that supports Mr. Cohen’s usage of this definition, much less no peer reviewed
literature. In short, Mr. Cohen’s proposed definition of “substantial” has no basis in science,

The prejudice of applying Mr. Cohen’s definition of “substantial” is significant: Under
the same, any non-ambient exposure, whether it be removing a gasket or dumping a 50 pound bag
of crocidolite asbestos is equivalently “substantial”, Such testimony will unavoidably mislead
and confuse the jury, and cause undue prejudice to Ford. Cal. Evid. Code § 352.

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Further, by manipulating the definition of “substantial”, Mr. Cohen opens the door to offer
the opinion that every exposure to asbestos above background or ambient levels is a substantial
contributing factor in causing Plaintiff's alleged mesothelioma. This opinion is equally improper,

unsupportable and in contravention of established law, as discussed herein below.

B. MR. COHEN’S OPINION THAT ANY EXPOSURE “MORE LIKELY THAN NOT INCREASES THE RISK
OF DEVELOPING ASBESTOS-RELATED DISEASE” IS BEYOND THE SCOPE OF H1S EXPERTISE

Mr. Cohen’s speculation that any exposure above ambient levels is a substantial factor in
causing Plaintiff's asbestos related disease is beyond the scope of his expertise. (Aforeno Depo
40:6-15). Mr. Cohen is an industrial hygienist and is not qualified to testify regarding subjects
reserved for the professional opinion of medical doctors. (Moreno Depo. 41:17-21).

Tn effect, Mr. Cohen’s industrial hygiene opinion is the same as “any exposure equals
liability” argument, which is contrary to established case law, improper, grossly prejudicial and
should be precluded (see, Ford’s Motion in Limine Re: “Substantial Factor” Standard Of
Causation). Mr. Cohen’s opinion lacks foundation, cannot be substantiated, and is in direct

contravention to established law. As such, his opinion on this issue must be excluded:

Under these authorities an expert’s opinion must be rigorously scrutinized because:

The law does not accord to the expert’s opinion the same degree of credence or
integrity as it does the data underlying the opinion. Like a house built on sand, the
expert’s opinion is no better than the facts upon which it is based.

When an expert bases his or her conclusions on assumptions not supported by the
record, on matters not reasonably relied on by other experts, or on factors that are
remote, speculative, or conjectural, then his or her opinion lacks evidentiary value.

(People v, Gardeley (1996) 14 Cal 4th 605, 618, emphasis added; Hyatt v. Sierra Boat Co.
(1978) 79 Cal. App.3d 325, 338-339.)
Contrary to Mr. Cohen’s opinion, the California Supreme Court has set forth the two-part

test for causation to be used in actions for asbestos-related personal injury:

The Plaintiff must first establish some threshold exposure to the Defendant’s
defective asbestos-containing products, and must further establish in
reasonable medical probability that a particular exposure or series of exposures
was a ‘legal cause’ of his injury, ie. a substantial factor in bringing about the
injury.

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Rutherford v. Qwens-lilinois, Inc., 16 Cal.4" 953, 982 (1997) (emphasis partially in original;
footnote omitted).

This test was adopted from Lineaweaver v. Plant Insulation Co., 31 Cal.App.4" 1409,
1416 (1995). “[Tjhe proper analysis is to ask whether the Plaintiff has proven exposure to a
Defendant’s product .. . and then to evaluate whether the exposure was a substantial factor.” To
be substantial, the exposure’s effect must be more than “negligible or theoretical.” Rutherford,

supra, at 982, Tt must be more than negligible because “’the substantial factor’ test subsumes the
but for test” of causation: an “actor’s negligent conduct is not a substantial factor — in bringing
about harm to another — if the harm would have been sustained even if the actor had not been
negligent.” Viner v. Sweet, 30 Cal.4" 1232, 1239 (2003), quoting Mitchell v. Gonzales, 54 Cal.3d
1041, 1052 (1991) and Rest. Torts (24) 432 (emphasis in Viner). A “substantial factor” necessary
to prove causation must be truly substantial, not just “minor,” “theoretical,” or “infinitesimal.”
Bockrath v. Aldrich Chemical Co., 21 Cal.4” 71, 79 (1999),

The burden to prove causation is borne by plaintiffs. Thus, plaintiffs must both (1)
establish a “threshold exposure” to Ford manufactured products, and (2) prove that such exposure

was a “substantial factor” in causing plaintiffs’ injuries. Even if Mr. Cohen could give opinions

on causation, his ignores Rutherford, and is unduly prejudicial and must be excluded.

c. INTRODUCTION OF Mr. COHEN’S TESTIMONY WOULD CREATE A SUBSTANTIAL DANGER OF
UNDUE PREJUDICE, OF CONFUSING THE ISSUES AND OF MISLEADING THE JURY AND WOULD
NECESSITATE UNDUE CONSUMPTION OF TIME

Should this court find Mr. Cohen’s testimony otherwise admissible, it should nevertheless
exercise its discretion under Cal. Evid. Code § 352 to exclude the testimony. Cal. Evid. Code

§ 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.

If allowed, Mr. Cohen’s testimony would lead to unreasonable and unnecessary

consumption of time. Defendant would be forced to put on rebuttal testimony demonstrating

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ATTORNEYS ar LAW

Mr. Cohen’s lack of personal expertise and the absence of reliable basis for his opinions. Such
testimony will necessarily address methodological and technical matters that could be confusing
to the jury without contributing to its substantive understanding of the issues in dispute.
Ultimately, even with such time-consuming rebuttal evidence, there would be a possibility of
prejudice to Defendant if the jury were to accept Mr. Cohen’s unreliable opinions. Avoiding such
consumption of time, confusion and possible prejudice are sufficient grounds to exclude

Mr. Cohen’s testimony under § 352.

1.
CONCLUSION

Pursuant to Evidence Code §§ 350, 352, 702(a), 720, 801(b) and Cal. Civ. Proc. Code
§ 2034, Ford respectfully requests that this court exclude Mr. Cohen from testifying at trial with
respect to opinions that exposures are “substantial” and increased the risk of asbestos disease. In
the alternative, Defendant moves the court to conduct a hearing pursuant to Evidence Code
Sections 402 and 403 to determine the relevancy and/or admissibility, if any, of Mr. Cohen’s

testimony.

Dated: December 14, 2011 LANKFORD CRAWFORD MORENO LLP

By: Awl it

PAUL LANNUS

Attorneys for Defendant
FORD MOTOR COMPANY

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