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@lelaw.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,

“Plaintiffs,
ve
ASBESTOS DEFENDANTS (BP),

Defendant.

ASBESTOS
Case No. CGC 08-274659

DEFENDANT FORD MOTOR COMPANY’S
MOTION EN Liming To REQUIRE
APPLICATION OF THE “SUBSTANTIAL
FACTOR” STANDARD OF CAUSATION
[MIL #42]

* 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 TO REQUIRE APPLICATION OF THE “SUBSTANTIAL FACTOR” STANDARD OF

CAUSATION
[MEL #42]28

LANKFORD
CRAWFORD

MORENO LLP.
ATTORNEYS ar LAW

L
INTRODUCTION

FORD MOTOR COMPANY (“FORD” or “defendant”) prior to trial and selection of the
jury, moves this court in Jimine to exclude any testimony regarding Plaintiffs’ position that every
exposure to asbestos above background or ambient levels is a substantial contributing factor in
causing plaintiff's alleged asbestos related disease.

Plaintiff is anticipated to improperly argue that his exposure to defendant’s product was
“more than zero but less than 100% of his total exposure to exposure” and, therefore, the jury
should assign defendant a percentage of liability “that is neither zero nor 100%,” but which must
be somewhere in between. Plaintiffs argument is derived from the unsupportable position that
every exposure to asbestos above background or ambient levels is a substantial contributing factor
in causing plaintiff's alleged asbestos related disease. This equates to an “any exposure equals
liability” argument which is contrary to established case law, improper, grossly prejudicial and
should be precluded. Accordingly, FORD seeks an order precluding all parties, counsel and
witnesses from discussing or conveying this opinion to the jury, until and unless the Court has
made a ruling that this expert opinion meets the Kelly/Frye standards for scientific evidence, and
is otherwise relevant, admissible and not precluded by Evidence Code 403.

Because the issues raised by this motion require an analysis of expert testimony, and the
science and scientific literature relevant to these opinions, as well as an understanding of the basic
scientific principles involved, FORD specifically requests that the Court schedule an Evidence
Code 402 hearing to hear testimony and argument as to the admissibility of this expert opinion,
including the scientific bases, if any, for the opinion. Such a hearing has the potential for
significantly shortening the trial, or eliminating the need for a jury trial altogether — if this
scientifically unsupportable opinion is excluded, as it should be, plaintiffs have virtually no other

basis for holding FORD liable in this case.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO REQUIRE APPLICATION OF THE “SUBSTANTIAL FACTOR™ STANDARD OP
CAUSATION
[MEL #42]

SF:27343761.428

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MORENO LLP.
ATTORNEYS ar LAW

I.
LEGAL STANDARD

A. FORD MAY PROPERLY MOVE TO EXCLUDE PLAINTIFFS’ ULTIMATE CAUSATION
THEORY AS INADMISSIBLE UNDER KELLY-FRYE

FORD seeks to exclude evidence that is “supported” only by unreliable opinion testimony
based on theories and hypotheses which can neither be tested or scientifically evaluated. A party
may move a court for an order excluding from evidence the testimony and opinions of an
opposing party’s expert. (California Evidence Code sections 720(a), 801(b), and 803; Frye v.
U.S. (1923) 54 App. D.C. 46; People v. Kelly (1976) 17 Cal.3d 24.) 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 ne 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.) Under the Kelly test, plaintiff bears the burden of showing that the
scientific technique at issue satisfies a three-step analysis:

(1) the scientific method upon which the expert testimony is based must be “reliable,”
which in this context means showing that the technique has “gained general acceptance in the
particular field in which it belongs”;

(2) the witness must be qualified as an expert to give an opinion in the area; and

(3) the correct scientific procedures must be used.

(Kelly at 30.) Failure to satisfy even one prong of this test results in exclusion of the opinion. (Id.)}

The “every exposure” opinion of Plaintiffs’ experts not only fails to satisfy the Frye test
for admissibility, but it is not supported by any generally accepted methodologies in the relevant

scientific fields.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO REQUIRE APPLICATION OF THE “SUBSTANTIAL FACTOR™ STANDARD OP
CAUSATION
[MEL #42]

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MORENO LLP.
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Ud.
ARGUMENT

A. Plaintiff Must Prove That Plaintiff Was Exposed To A Product Manufactured By
FORD And That Such Exposure Was A “Substantial Factor” In Causing Injury.

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. @ substantial factor in bringing about the
injury.

Rutherford v. Owens-Illinois, 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). “[T]he 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. It must be more than negligible because “’the substantial factor’ test swhsumes the
but for test” of causation: an “actor’s negligent conduct is not a substantial factor — in bringing
about harm to another — ifthe 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 (2d) 432 (emphasis in Viner). A “substantial factor” necessary

may

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 plaintiff. Thus, plaintiff must both (1) establish]
a “threshold exposure” to FORD manufactured products, and (2) prove that such exposure was al

“substantial factor” in causing plaintiff's injuries.

B. PLAINTIFFS’ ANTICIPATED “0-100%”/“EVERY EXPOSURE” ARGUMENT IGNORES THE
RUTHERFORD TES.

It is anticipated that plaintiffs counsel will argue that two percentages of plaintiff's

exposure to FORD’s product are not correct — zero and one hundred percent. Counsel will argue
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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO REQUIRE APPLICATION OF THE “SUBSTANTIAL FACTOR™ STANDARD OP
CAUSATION
[MEL #42]

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CRAWFORD

MORENO LLP.
ATTORNEYS ar LAW

that once any type of exposure to FORD’s product is shown, that it is up to defendant to show how]
much lower than one hundred percent exposure to FORD’s product, plaintiff's exposure was. This}
all or nothing argument rests on the improper proposition that exposure to any amount of asbestos
above “background” levels, regardless of frequency, intensity or duration causes asbestos-related
disease. In other words, Plaintiff contends that “every exposure” or “every breath” of asbestos
above background is a substantial factor in causing an asbestos-related disease. Under this
argument, no exposure to asbestos is too “negligible or theoretical” to escape liability.

The opposite, however, has been held by California’s highest court. In Rutherford, the
Court recognized there could be exposure to a product that is “negligible or theoretical” and
therefore would not count as a “substantial factor in bringing about the injury.” 16 Cal.4" at 978,
982. Rutherford holds that substantial factor causation in the asbestos context, as here, requires
proof by plaintiffs of two prongs — “exposure” plus “substantial factor.” /d. at 982. Proof of
exposure to FORD’s product would satisfy only the first step and does not, by itself, establish
substantial factor causation. The Supreme Court requires that plaintiffs’ burden extends into preof|
the exposure was a “substantial factor” and more than “negligible or theoretical” in causing the
asbestos-related disease. Accordingly, plaintiffs’ anticipated “O-100%” argument will not comply
with existing case law.

c. PLAINTIFF’S STANDARD FOR CAUSATION IS “FICTION”

Plaintiff's position that “every exposure” or “every breach” of asbestos above background
levels is a substantial factor in causing plaintiff's asbestos-related disease. This position of
Plaintiff and plaintiff's experts ignored Rutherford, and is unsubstantiated. In fact, this opinion is
actually not even a scientific hypothesis — it is, as so succinctly put by the Pennsylvania Supreme
Court, nothing more than a “fiction,” dressed up as an expert opinion, created for the sole purpose
of holding every asbestos defendant liable without the necessity of proving exposure, dose or
causation, The court should recognize this fiction for what it is, an opinion which is totally

unsupported by any recognized science or scientific methodology.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO REQUIRE APPLICATION OF THE “SUBSTANTIAL FACTOR™ STANDARD OP
CAUSATION
[MEL #42]

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MORENO LLP.
ATTORNEYS ar LAW

Despite its lack of any scientific support, this “every exposure” opinion, which plaintiffs’
experts universally apply to every defendant, provides obvious and substantial benefits to
asbestos plaintiffs: it obviates the need to retain qualified industrial hygienists to quantify the
actual level of asbestos exposure from each defendant’s products (because any exposure,
whatever small, is supposedly enough); it eliminates the need to prove that a given quantity is
sufficient to cause disease (specific causation); it avoids any reason for discussing the type or
potency of the asbestos to which plaintiff was exposed; it shifts the burden of proof from plaintiff
to defendant to show which exposures are of causation (in direct violation of the Supreme
Court’s decision in Rutherford v. Owens-Illinois (1977) 16 Cal.4th 953);and it forces most
defendants to settle before trial to avoid the risk that a court will allow this testimony and a jury
will believe it.

Tn fact, this “any exposure” opinion has been held to be inadmissible, or insufficient to

support a finding of causation by at least fourteen courts across the country, including both
federal and state courts in the last two to four years!
D. IN LIMINE RELIEF IS NECESSARY.

Plaintiff may argue that requesting this relief in Jimine is premature; however, it is
anticipated that plaintiff's counsel will make the argument set forth above during opening

statements. The purpose of an in /imine motion “is to avoid the obviously futile attempt to unring

' Borg-Warner Corp. v. Flores (Tex. 2007) 232 S.W. 3d 765, 774; Gregg v. J. Auto Parts, Inc.
(Pa. Sup. Ct., Dec. 28, 2007, No. 3528 EDA 2003) 2007 WL 4557811 (2007 Pa. LEXIS 2935);
Vogelsberger v. Owens-Illinois, Inc. (Pa. Ct. C.P., Aug. 17, 2006, No. A.D, 03-319) 2006 WL
2404008 at 13, on appeal; Betz v. Pneumo-Abex LLC (Sup.Ct. Pa.) No. 1058 WDA 2006;
Georgia-Pacific Corp. v. Stephens (Tex. App., July 26, 2007, No. 22045-1BH02) 2007 WL
2343882; Bartel v. John Crane Inc (N.D. Ohio 2004) 316 F. Supp.2d 603, 611, aff'd Lindstrom v.
A-C Prod. Liab. Trust (6th Cir. 2005) 424 F. 3d 488 ; In re WR. Grace & Co. (Bkricy. D. Del.
Dec. 14, 2006) 355 B.R. 462, 474, 478, No. 01-01139, 2006 WL 3690176 *20 ; Brooks v. Stone
Architecture (Miss Ct. App. 2006) 934 So.2d 350, 355-56; Anderson v. Asbestos Corp.. Ltd. et
al, (Wash. Super.) No. 05-2-04551-5SEA (transcript of bench ruling, October 31, 2006, at 144-
45.); Letter Ruling, Jn re Asbestos (Tex. Dist. Ct., 11th Dist., Harris County Jan. 20, 2004) No.
2004-03964; Letter Ruling, /n re Asbestos (Tex. Dist. Ct., 11th Dist., Harris County July 18,
2007) No. 2004-3964; Basile v. American Honda Motor Co. (Pa. Ct. Com. PI. Feb. 22, 2007)
Order Granting Caterpillar Inc.'s Motion to Exclude Plaintiffs’ Expert Testimony, No. 11484 CD
2005; Summers v. CertainTeed Corp. (Pa. Super. 2005) 886 A.2d 240, 244.

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO REQUIRE APPLICATION OF THE “SUBSTANTIAL FACTOR™ STANDARD OP
CAUSATION
[MEL #42]

SF:27343761.428

LANKFORD
CRAWFORD

MORENO LLP.
ATTORNEYS ar LAW

the bell.” Hyatt v. Sierra Boat Co., 79 Cal. App.3d 325, 327 (1978). Plaintiffs’ improper argument
must be nipped at the beginning rather than later, after the jury has already been poisoned with
prejudicial evidence. Since it is likely plaintiff's counsel may make these prejudicial arguments in
opening statements, the Court should advise plaintiff and his counsel that it will not allow the
improper arguments at any time during trial.
Iv.
CONCLUSION

The California Supreme Court has recognized that some exposures to asbestos are too
negligible to be considered a legal cause of injury. Plaintiffs’ improper “every exposure means
liability” or “0-100%” arguments are in direct conflict with the Court’s holdings. Therefore, this
motion should be granted, and those arguments precluded.

Alternatively, FORD requests that the Court schedule an Evidence Code 402 hearing to
hear testimony and argument as to the admissibility of this expert opinion, including the scientific

bases, if any, for the opinion.

Dated: December 14, 2011 LANKFORD CRAWFORD MORENO LLP

By: Prk LEW A

PAUL LANNUS

Attorneys for Defendant,
FORD MOTOR COMPANY

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DEFENDANT FORD MOTOR COMPANY'S MOTION IN LIMINE TO REQUIRE APPLICATION OF THE “SUBSTANTIAL FACTOR™ STANDARD OP
CAUSATION
[MEL #42]

SF:27343761.1