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  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview
  • RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al ASBESTOS document preview 
						
                                
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Gordon & Rees LLP

Embarcadero Center West

275 Battery Street, Suite 2000
San Francisco, CA 94111

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MOMC/1059496/10185704v.1

MICHAEL J. PEETRYKOWSKI (SBN: 118677)
JAMES SCADDEN (SBN 090127)

MOLLY MCKAY (SBN: 184015) ELECTRONICALLY
GORDON & REES LLP FILED
Embarcadero Center West Superior Court of California,
275 Battery Street, Twentieth Floor County of San Francisco
San Francisco, CA 94111 JUL 19 2011

Telephone: (415) 986-5900

Facsimile: (415) 986-8054 Clerk of the Court

BY: JUANITA D. MURPHY
Deputy Clerk
Attorneys for Defendant puy

MCMASTER-CARR SUPPLY CO.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

RODRICK BRECKLER and CASE NO CGC-08-274566

JOANN BRECKLER,

DEFENDANT MCMASTER CARR
SUPPLY CO.’S MOTION IN LIMINE
TO BIFURCATE ISSUES OF
CAUSATION

Plaintiffs,

Complaint Filed: March 12, 2008
Trial Date: July 11, 2011
ASBESTOS DEFENDANTS (B“P),

Defendants.

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Defendant McMaster Carr (“defendant”), prior to trial and the selection of a jury, moves
this Court in limine for an order that:

dl) Trial of the issues of general causation and special causation are bifurcated from

trial of the issues of exposure, liability, damages and punitive damages.
Bifurcation of these issues will result in the expedient resolution of the case, promote judicial
economy, and in the interests of justice, prevent undue delay, confusion of the issues, and undue
prejudice to these defendants.
IL ARGUMENT

Plaintiffs novel and scientifically unsupported claims regarding causation should be tried
first

As the Court is well aware, it has the authority to order separate trials before separate

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DEFENDANT MCMASTER CARR SUPPLY CO.’S MOTION IN LIMINE TO BIFURCATE ISSUES OF
CAUSATIONGordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

juries of any issues that the court deems appropriate if a separate trial will avoid prejudice or is
convenient or expeditious. Code Civ. Proc. §§ 598, 1048(b).

Specifically, in Hilliard v. A.H. Robins Co. (1983) 148 Cal-App.3d 374, the court noted
that bifurcation is appropriate, at the trial court’s discretion, in those cases where “the ends of
justice”, and “...the economy and efficiency of handling the litigation...” will be promoted. /d. at
393, In Hilliard, the trial court was doubtful as to its authority to isolate the punitive damages
issue but felt it was necessary because it “was somewhat skeptical and uncertain that the plaintiff
had established a factual basis for punitive damages.” Jd. at 393. In these circumstances, the
bifurcated order was affirmed. Jd. at 394.

: In this case, bifurcation of the causation issues is indicated as a determination of them
will resolve the case without the unnecessary time and expense involved in presenting claims for
liability, exposure and damages. Basically, plaintiffs are relying exclusively upon their faithful
expert witness, Dr. Allan Smith to present a unsupportable and outdated claim that asbestos
exposure can cause kidney cancer. Dr. Smith ignores multiple published studies and important
advances of the last decade regarding cellular and molecular research that shows asbestos plays
no role in kidney cancer. His testimony wili be contradict by several defense experts ( this
defendant alone has timely designated and offered for deposition (though counsel for the plaintiff
elected to not depose any of our experts) Dr. Gerry Meyers as a pulmonologist, Dr. Norman
Moscow as a radiologist, Dr. Suresh Moolgavkar as an epidemiologist and Dr. Spivack as an
oncologist. All agree that Mr. Breckler has no asbestos related disease at all.)

Even should the claim that asbestos can cause kidney cancer be accepted, plaintiffs are
absolutely without a single medical expert to testify that the kidney cancer of Mr. Breckler in
particular was caused by exposure to asbestos. This case has been assigned to trial. All experts
have been deposed and expert discovery is closed. Plaintiffs have only Dr. Powers, a radiologist
to testify as to diagnosis, causation, prognosis and care and treatment (Dr. Smith is not a licensed
physician in the United States and has disavowed any intention to testify about diagnosis). Dr.
Powers has been deposed and testified to nothing more than pleural thickening. He did not

diagnose asbestosis and had no opinion regarding kidney cancer. Plaintiffs have not disclosed
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DEFENDANT MCMASTER CARR SUPPLY CQ.’S MOTION IN LIMINE TO BIFURCATE ISSUES OF
CAUSATIONGordon & Rees LLP
Embarcadero Center West

275 Battery Street, Suite 2000

San Francisco, CA 94111

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nor presented any other medical expert competent to testify to the diagnosis or causation of the
disease of Mr. Breckler.
If, CONCLUSION

In this case, the liability, damages and exposure issues would unduly muddy the waters
and confuse the issues in determining causation. Bifurcation of these issues will result in
increased judicial economy without prejudice to plaintiffs. Defendant respectfully requests this
court to order the issues of causation to be bifurcated and tried before the issues of exposure,
liability and damages.

Dated: July 18, 2011 GORDON & REES LLP

k Lo L

orneys for Defendant
MCMASTER-CARR SUPPLY CO.

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DEFENDANT MCMASTER CARR SUPPLY CO.’S MOTION IN LIMINE TO BIFURCATE ISSUES OF
CAUSATION2

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MCMCY1059496/10155773¥.1

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Rodrick Breckler, et al. y. Allis-Chalmers, et al.
San Francisco Superior Court Case No. CGC-08-274566

I, the undersigned, declare that: I am, and was, at the time of service of the document(s)
herein referred to, over the age of 18 years and not a party to the within action; and ] am
employed in the County of San Francisco, State of California. My business address is Gordon &
Rees LLP, 275 Battery Street, Suite 2000, San Francisco, California 94111.

On the date below, I served the document(s) described as:

DEFENDANT MCMASTER CARR SUPPLY CO.’S MOTION IN LIMINE
TO BIFURCATE ISSUES OF CAUSATION

by electronically providing the documents(s) listed above to the LEXISNEXIS FILE & SERVE
website pursuant to its instructions on that website. If the document(s) is(are) electronically
provided to LexisNexis File & Serve, then the document(s) will be deemed served on the date
and to the recipient(s) designated on the Transaction Receipt located on the LexisNexis File &
Serve website.

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.

Executed on July 18, 2011, at San Francisco, California.

onan Le by

Marie Saho

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION