Motion,Ex Parte: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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                                Gordon & Rees LLP

101 W. Broadway

Suite 2000

San Diego, CA 92101

ROGER M. MANSUKHANI (SBN: 164463)
STEVEN SOBEL (SBN: 177210)
MITCHELL B. MALACHOWSKI (SBN: 245595)

GORDON & REES tLe 3000 ELECTRONICALLY
101 West Broadway, Suite
San Diego, CA 92101 FILED

Superior Court of California,
County of San Francisco

JUL 11 2011

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

Phone: (619) 696-6700
Fax: (619) 696-7124

Attorneys for Defendant
PACIFIC SCIENTIFIC CO.

SUPERIOR COURT OF CALIFORNIA -
CITY AND COUNTY OF SAN FRANCISCO
CIVIC CENTER COURTHOUSE

RODRICK BRECKLER and CASE NO. CGC-08-274566

JOANN BRECKLER,

Plaintiffs,

DEFENDANT PACIFIC SCIENTIFIC
CO.’S MOTION IN LIMINE TO
EXCLUDE “NO SAFE DOSE” AND
“SINGLE FIBER” ARGUMENT AND
EVIDENCE [MIL #17 of 29]

Filing date: March 12, 2008
Trial date: July 11, 2011

vs.

ASBESTOS DEFENDANTS (B#P) As
Reflected on Exhibits B, B-1, C, H, I; and
DOES 1-8500; and SEE ATTACHED LIST.

L INTRODUCTION

This court’s order in limine is necessary to prevent Plaintiffs from presenting an
argument, likely beginning in counsel’s opening statement, that states the burden of proof
backwards and is totally contrary to governing Supreme Court authority. Absent this court’s
order, Plaintiffs’ counsel will argue that “there is no safe dose of asbestos,” or its corollary, that a
“single fiber” is enough to cause disease, and that the jury must therefore find Pacific Scientific
Co. (“Defendant”) liable if it finds that Plaintiff Rodrick Breckler (“Plaintiff”) had any exposure
at all to asbestos containing products. This argument is flatly incorrect as a matter of law.

First, the ‘"no safe dose” theory impermissibly flips the burden of proof to Defendant to
prove that its products did not cause the injury. The concept of the Defendant to “prove the
negative” is contrary to standard burden of proof where it is the Plaintiffs’ burden to prove that

the Defendant caused Plaintiff's injury.

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MOTION IN LIMINE TO EXCLUDE "NO SAFE DOSE" AND "SINGLE FIBER" ARGUMENT AND
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Second, the California Supreme Court has recognized that some exposure to asbestos
may be “negligible,” and therefore not a “substantial factor” in causing disease, Because only
“substantial” factors impose liability, “negligible” exposures do not result in liability, That
Plaintiffs can identify a product does not mean that that product was a “substantial factor” in
causing injury. The question is not “has science determined a safe dose,” but whether this
particular Plaintiff's exposure to this particular Defendant's product was a “substantial factor.”
Percentage of exposure does not translate to percentage of liability, when that exposure is
negligible or insubstantial.

Third, Plaintiffs do not claim and can present no evidence that a “single fiber” caused
them to develop an asbestos-related disease. Instead, their claims are premised on the
“cumulative effect” of a lifetime of exposure to many fibers from many products. The United
States Supreme Court has rejected a “no safe dose” argument, even under administrative
rulemaking standards that are far more lax than those required to impose civil liability.
(industrial Union Dept, AFL-CIO v. Am. Petroleum Inst. (1980) 448 US. 607.) In that case, the
court rejected an argument substantially identical to the “single fiber” variant of the “no safe
dose” argument. This Court should follow the Supreme Court's lead, and exclude arguments of
“no safe dose” or “single fiber” without proof that a “single fiber” is a “substantial” factor in
causing asbestos-related disease.

Il. ARGUMENT

This court should preclude Plaintiffs from arguing, or characterizing the evidence as
saying, that “there is no safe level of exposure to asbestos,” or that “a single fiber can cause
disease” (sometimes hereafter referred to jointly as the “no safe dose” argument). The argument
is inadmissible because it misstates the law, misstates the facts, and is based on twisting
statements that are not themselves admissible.

A. The “No Safe Dose" Argument Misstates The Applicable Burden Of Proof.

“[A] party has the burden of proof as to each fact the existence ... of which is essential to
the claim for relief ... [that party] is asserting.” (Evid. Code, § 500.) Whether Defendant
products injured Plaintiff is essential to Plaintiffs’ claim for relief. Therefore, it is Plaintiffs’

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burden to prove that bis exposure to each defendant's product was harmful and caused his illness.
(Evid. Code, § 521 [a “party claiming that a person did not exercise a requisite degree of care
[e.g., was negligent] has the burden of proof on that issue”].)

The “no safe dose” argument impermissibly reverses this burden of proof. If there is “no
safe dose,” then it would be up to Defendant to prove that its particular exposure was not
harmful. But it is not any defendant's burden to prove that Plaintiff's exposures were not
harmful; it is Plaintiffs’ burden to prove that the exposure was harmful. (Evid. Code, § 500.)
Defendant need not prove the negative.

Courts from other jurisdictions have rejected “no safe dose” arguments on the rationale
that such arguments get the burden of proof backwards. “Scientific knowledge of the harmful
level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities,
are minimal facts necessary to sustain the plaintiff's burden in a toxic tort case.” (Allen v.
Pennsylvania Engineering Corp. (Sth Cir. 1996) 102 F.3d 194, 198; see also Nat'l Bank of
Commerce v. Assoc. Milk Producers (E.D. Ark, 1998) 22 F.Supp.2d 942, 961 [excluding
plaintiff's expert testimony because it did not set forth the minimum level required for danger].)

This court should do the same.

B. The Court Should Exclude The "No Safe Dose" Argument Because It Is Contrary
To The Proof Of Causation Required In Asbestos Cases By The California
Supreme Court,

“Strict liability . -. was never intended to make the manufacturer or distributor of a
product its insurer.” (Anderson v, Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 994;
accord Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733; Barker v, Lull Engineering Co.
(1978) 20 Cal.3d 413, 432.) Because “manufacturers are not insurers of their products[,] they
are liable in tort only when ‘defects’ in their products cause injury.” (Soule v. General Motors
Corp. (1994) 8 Cal .4th 548, 568 fn.5.) Thus, even “strict liability cannot be equated with
absolute liability,” because “(causation is a necessary element in strict liability just as it is in
negligent liability.” (Thomas v. Lusk (1994) 27 Cal.App.4th 1709, 1717 n.3, emphasis added.)
In asbestos cases, governing California Supreme Court authority holds that plaintiffs must show
both exposure and that the exposure was a “substantial factor” in causing their injuries.

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(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982.)

But Plaintiffs’ “‘no safe dose” argument assumes the all-important element of causation
out of the equation. It says that any exposure is unsafe and therefore a cause of injury. Not only
is this wrong (if it were true, then everyone ever exposed to any amount of asbestos would
develop asbestos-related disease), it is contrary to principles of tort causation generally (e.g.,
Barker, supra, and Thomas, supra) and their application to asbestos cases specifically
(Rutherford, supra).

“Argument is improper when it is neither based on the evidence nor related to a matter of
common knowledge.” (People v. Pitts (1990) 223 Cal.App.3d 606, 702, citations omitted.) The
effect of and liability for asbestos exposure, not "a matter of common knowledge,” has been
declared by the California Supreme Court to be one thing, by Plaintiffs’ “no safe dose” argument

another. Plaintiffs’ argument is therefore improper and should be excluded.

1. A Plaintiff Must Prove Both (1) That he was Exposed to a Defendant's
Products and (2) That Such Exposure was a “Substantial factor” in Causing
his Injury

The California Supreme Court has set forth a two-part test for causation to be applied in

all actions for asbestos-related personal injury:

the plaintiff must first establish some threshold exposure to the
defendant's defective asbestos-containing products, and must
Surther establish in reasonable medical probability that a particular
exposure or series of exposures was a ‘legal cause’ of his injury,
i.¢., a substantial factor in bringing about the injury.

(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982 [emphasis partially in original].)
“[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.” (Lineaweaver v.
Plant Insulation Co. (1995) 31 Cal.App. 4611409, 1416.)

To be substantial, the exposure's effect must be more than "negligible or theoretical.”
(Rutherford, supra, 16 Cal.4th at p. 978.) A “substantial factor” necessary to prove causation
must be truly substantial, not just “minor ... negligible, theoretical, or infinitesimal,” or a “mere
possibility.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal 4th 71, 79.) It must be more than
negligible because “the substantial factor test subsumes the but for test” of causation, under

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which 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
(2003) 30 Cal.4th 1232,1239; Mitchell v. Gonzales (1991) 54 Cal.3d 1041,1052; Rest2d Torts, §
388.) If Plaintiffs were exposed to vast amounts of asbestos in other pursuits in life, but only a
tiny amount (if any) of asbestos from any of Defendant's exposure, then it is entirely likely that
even if Defendant were negligent, that conduct is not a substantial factor in bringing about the
harm because “the harm would have been sustained even if [Foster Wheeler] had not been
negligent.” (Viner, 30 Cal.4th at p. 1239.)

The burden to prove causation is on the plaintiff. (Rutherford, supra, 16 Cal.4th at p.
975; Evid. Code, § 500.) Hence, Plaintiffs must both (a) establish a “threshold exposure” for
which Defendant is responsible, and (b) prove that such exposure was a “substantial factor” in
causing Plaintiffs' injuries.

2. “No Safe Dose" Argument Ignores the Second Prong of the Rutherford Test

and Ignores That Some Exposures may be too “Negligible” to be a
“Substantial Factor.”

Plaintiffs' counsel may attempt to argue that “there is no safe level of exposure to
asbestos.” This “no safe dose” argument asserts that any exposure to any amount of asbestos,
regardless of frequency, intensity or duration, causes disease. Under this theory, any release of
asbestos from a Defendant’s product anywhere near Plaintiff thereby “caused” his diseases.
Under this argument, no exposure is too “negligible or theoretical” to escape liability.

But California's highest court has held the opposite, and specifically recognized that
“negligible or theoretical” exposure to a defendant's product is not a “substantial factor in
bringing about the injury.” (Rutherford, supra, 16 Cal.4th at p. 982.) Rutherford holds that
substantial factor causation in the asbestos context requires a two-step process: exposure plus
“substantial factor.” (Ibid.) Proving exposure to a particular defendant's product satisfies only
the first step, and does not by itself establish substantial factor causation.

If Plaintiffs' argument is right, then all a plaintiff would have to prove would be the first
prong: “exposure to a defendant's [asbestos-containing] product.” But the Supreme Court
requires a second prong: “evaluating whether the exposure was a substantial factor,” more than

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negligible or theoretical, in causing the plaintiff's disease.” (Rutherford, supra, 16 Cal .4th at p.
982, citing Lineaweaver, supra, 31 Cal.App.4th at p. 1416.) Arguing that any exposure is unsafe
would ignore this second step, and would impose liability even where exposure was not a

“substantial factor.”

Cc. The Arguments Are Irrelevant And Prejudicial Because They Are Not, What
Plaintiffs Claim Or Will Present Evidence Supporting.

The “no safe dose” and especially “single fiber” arguments are irrelevant to Plaintiffs’
claims, which are based on the cumulative effect of lifetime exposures and not any single fiber or
exposure. Plaintiffs will present no evidence that any single fiber caused them to contract any
asbestos-related disease. The California Supreme Court has recognized that the biological
mechanisms of asbestos-related disease causation are unknown. (Rutherford, supra, 16 Cal.4th
at pp. 974-975.) Thus, the arguments invite the jury to speculate that some single fiber might
have caused disease. But that is not the issue for the jury to decide: Plaintiffs are not claiming
that any single fiber caused their injuries, but that the cumulative effects of their lifetimes of
exposure caused their injuries. The "no single fiber" argument therefore confuses or misleads the
jury as to the proper determination it is to make, thereby unduly prejudices the jury against this
Defendant and other defendants, and should be excluded. (Evid. Code, § 352.)

D. The "No Safe Dose't Argument Is Factually Unreliable, And Is Not Susceptible To
Proof By Testing.

That there is "no known safe level of exposure to asbestos" says less than what Plaintiffs
may make it out to sound. It does not say that there is no safe dose, only that the level at which
lack of harm can be guaranteed is not known. Courts in other jurisdictions have rejected a "no-
threshold theory of causation" that benzene in water caused leukemia, holding the theory
unreliable because "it cannot be falsified, nor can it be validated." (Sutera v. Perrier Group of
America Inc. (D. Mass. 1997) 986 F.Supp. 655, 667; see also Missouri Pacific Railroad Co. v.
Navarro (Tex. App. 2002) 90 S.W.3d 747, 757 [expert testimony must state minimum harmful
exposure or it is unreliable and should not be admitted into evidence] [diesel exhaust].) There
are obvious ethical problems in experimenting on humans to determine what a "safe" dose might

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be: who would ever volunteer for such a study? Further, there is no real reason to conduct such
an ethically questionable study, given that asbestos in many forms is being phased out of use. To
argue that no one has ever figured out what amount of asbestos it takes for the disease is one

thing. To say "no safe dose" - that any dose, even a single fiber, is unsafe - is quite another.

E. The Court Should Exclude "No Safe Dose" Evidence, Because It Is Hearsay, An
End-Run Around Expert Witness Statutes, And Addressed To A Different
Standard Of Proof And Applicable Law.

Plaintiffs will likely attempt to support the "no safe dose" argument with statements by
public health agencies, like OSHA and EPA. Yet these statements are themselves inadmissible
and inapt for a variety of reasons.

Hearsay is evidence of statements "made other than by a witness while testifying ...
offered for the truth of the matter stated." (Evid. Code, § 1200, subd. (a). Hearsay- is
inadmissible. (/d, subd. (b).) OSHA and EPA reports satisfy both components of the statutory
test for hearsay. First, they are statements “made other than by a witness while testifying."
Second, they are “offered for the truth of the matter stated in the reports. They are therefore
inadmissible as hearsay. They fall under no recognized exception to the hearsay rule. If
Plaintiffs want to introduce these statements, Plaintiffs should call the authors to testify.

Excluding OSHA and EPA reports comports not only with the language, but with the
purposes of the hearsay rule. "The chief reasons for this general rule of inadmissibility are that
the statements are not made under oath the adverse party has no opportunity to cross-examine the
declarant, and the jury cannot observe the declarant's demeanor while making the statements."
(People v. Duarte (2000) 24 Cal .4th 603, 610.) Instead, witnesses are supposed to testify only
about their own personal knowledge. (Evid. Code, § 702) OSHA and EPA reports are not made
under oath, and the person making the statement (the report's authors) cannot be cross-examined
to determine their demeanor or the meaning, as well as the reliability and credibility, of
statements contained in the reports.

The effects of asbestos are matters outside common experience and therefore a proper
subject of expert testimony. (Evid. Code, § 801.) To render such opinions, a proposed expert

witness must demonstrate qualifications; the substance of the witness's testimony must be

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disclosed in advance; and the expert must be made available for deposition, at which all opinions
the witness is to render at trial may be fully explored. (Code Civ. Proc., §§ 2034.210 et seq.)

Expert opinion is not to be automatically accepted, but critically examined, by the court
as well as the jury. Expert opinions "are worth no more than the reasons and factual data on
which they are based." (Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847; see
also CACI 221.) Accordingly, "an expert opinion has no value if its basis is unsound."
(Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) The court should examine the
expert's reasoning and whether the expert relied on matter appropriate for an expert in the area.
(ibid.) A conclusory opinion not adequately supported may not be the basis of a verdict and
should be excluded from evidence. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003)
114 Cal.App.4th 1108, 1117.)

None of these everyday protections against unreliable opinion are available to test
Plaintiffs' “opinions" that there is "no safe dose." The reasons, reasoning, and other bases of the
reports are not subject to inquiry by this Defendant or the court. Plaintiffs should not be allowed
to use the simple expedient of quoting from a study to end-run these requirements of qualified
experts to give sound, supportable opinion.

If Plaintiffs were allowed to introduce these reports into evidence, then there would be no
need for live expert witnesses in any case; counsel could just read from texts. But the law is just
the opposite: even expert witnesses cannot read from even indisputably learned texts on direct
examination. As the California Supreme Court explained:

It has been held, without conflict and in an extended line of cases in this state, that
medical works are hearsay and inadmissible in evidence, except perhaps on cross-examination
when a specific work may be referred to ... to discredit a witness who has based his testimony
upon it... If the books themselves are hearsay and inadmissible, certainly any recital of their
contents or the substance thereof is none the less hearsay, and should be excluded for that reason.

(Baity v. Kreutzmann (1904) 141 Cal. 519, 521522; accord Jamison y. Lindsay (1980)
108 Cal.App.3d 223; Brown v. Colm (1974) 11 Cal.3d 639, 690 n,4.)
fil

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MOTION IN LIMINE TO EXCLUDE "NO SAFE DOSE" AND "SINGLE FIBER" ARGUMENT AND
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Also, OSHA statements are also not a substitute for expert testimony because the
standard of proof in a civil lawsuit is different and higher than the standard for decision making
by an administrative agency.

Both the United States Supreme Court and OSHA recognize this. "OSHA is not required
to support its finding that a significant risk exists with anything approaching scientific certainty."
Undustrial Union Dept, AFL-CIO v. Am. Petroleum Inst. (1980) 448 U.S. 607, 655, 656
["American Petroleum), quoted in the 1986 preamble to OSHA's asbestos regulations.) This is
because a regulatory agency, unlike a court, "is free to risk [ ] error on the side of overprotection
rather than underprotection." (/bid.)

A court, by contrast, is to neither overprotect nor under protect but to reach a just result
on the facts of the case, requiring in toxic tort cases expert testimony that does "approach
scientific certainty." A plaintiff "must ... establish in reasonable medical probability that a
particular exposure or series of exposures was...a substantial factor in bringing about the
injury." (Rutherford v Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982 [emphasis added].) "[Ijt
may be appropriate for the EPA to protect people from chemical exposure on weak evidence that
it would cause any harm, but that does not make it equally appropriate to impose a judgment of
several million dollars on weak evidence that a defendant caused any harm." (Exxon Corp. v,
Malofski (Tex. App. 2003) 116 S.W.3d 176,187-88 [overturning verdict because no reliable
scientific evidence establishes that benzene causes plaintiff's leukemia].) Courts should not
"rush to impose liability when scientifically reliable evidence is unavailable." (/d. at 191.)
Because OSHA and EPA reports and actions are directed to a different goal than civil suits and
because the contents of those reports are not subject to the same level of scientific scrutiny and
certainty as evidence in a civil case, the reports should not be admitted as evidence.

The Fifth Circuit, distinguishing OSHA regulations from causation in a tort case, noted
that a regulator's purpose is to "suggest or make prophylactic rules governing human exposure ...
from the preventive perspective that agencies adopt in order to reduce public exposure to harmful
substances." (dilen v. Pennsylvania Engineering Corp. (Sth Cir.1996) 102 F.3d 194, 198.) The
"agencies" threshold of proof is reasonably lower than that in tort law, which ‘traditionally

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make[s] more particularized inquiries into cause and effect' and requires a plaintiff to prove that
it is more likely than not that another individual has caused him or her harm. (/d. [quoting
Wright v. Willamette Indus., Inc. (8th Cir.1996) 91 F.3d 1105, 1107].)

Administrative agencies have different goals and different standards of proof than courts.
General administrative rulemaking should not guide court adjudication of particular disputes.
This Court should reject the proffered, unsubstantiated assertions of administrative agencies as
evidence in this case.

Although Plaintiffs may attempt to persuade the court that various branches or
departments of the government have opined that there is "no safe dose" of exposure to asbestos,
in fact, the position of the Government on this issue has been anything but consistent. As of at
least 1967, the well established law of the land for providing a safe workplace for workers
performing under contract with the U.S. government was found in the Walsh Healy Public
Contracts Act (41 U.S.C. 35).

That no part of such contract will be performed ... under working
conditions which are unsanitary or hazardous or dangerous to the
heath and safety of employees engaged in the performance of said
contract. Compliance with the safety, sanitary, and factory
inspection laws of the State in which the work or part thereof is to

be performed shall be prima-fade evidence of compliance with this
subsection.

In 1959, Secretary of Labor James Mitchell proposed regulations to be enacted under the
authority of the Walsh Healy Public Contracts Act. The goal of the Secretary was to promulgate
regulations for employers that were to be "reasonably necessary to protect the life, health, and
safety of such employees, and to render safe such employment and places of employment, and to
prevent injury to his employees." (Fed. Reg., July 17, 1959, pg. 5743, emphasis added). The
Secretary did in fact promulgate such regulations, which mandated the use of certain personnel
protective equipment and the application of certain 'Threshold Limit Values" for exposure to
asbestos dust, the implementation of which would in fact "render safe" working with asbestos
containing materials (Title 41, Code of Federal Regulations, Part 50 -204, at Section 50-204.7
and Section 50-204.50). These same regulations remained in force and effect until at least 1971.
Thus, according to the Secretary of Labor, adhering to these regulations, which allowed

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MOTION IN LIMINE TO EXCLUDE "NO SAFE DOSE" AND "SINGLE FIBER" ARGUMENT AND
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employment activities.

The United States Supreme Court has rejected the "no safe dose" argument in a case
under the less restrictive administrative standard. The court invalidated an OSHA regulation that
was premised on the theory that there is "no safe dose" of benzene. (American Petroleum, supra,

448 U.S. 607.) This language echoing the issues in the present case, the Court explained:

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[Tyhe critical issue becomes how to define and allocate the burden
of proving the significance of the risk in a case such as this, where
scientific knowledge is imperfect and the precise quantification of
risks is therefore impossible. The Agency's position is that there is
substantial evidence in the record to support its conclusion that
there is no absolutely safe level for a carcinogen and that,
therefore, the burden is properly on industry to prove, apparently
beyond a shadow of a doubt, that there is a safe level for benzene
exposure.

*653 We disagree.... the burden was on the Agency to show, on the
basis of substantial evidence, that it is at least more likely than not
that long-term exposure [at specified level] benzene presents a
significant risk of material health impairment.

(448 U.S. at pp, 652-653.) Here, too, where "precise quantification" of risks may be impossible,
the burden is nevertheless on Plaintiffs to show "that it is at least more likely than not that ...
exposure" at a given level "presents a significant risk" (or, as otherwise phrased; "is a substantial

factor in increasing risk").

The rationale advanced by OSHA and rejected by the Supreme Court sounds like that

advanced by Plaintiffs here, substituting 'benzene" for "asbestos":

In the end, OSHA's rationale for lowering the permissible exposure
limit to 1 ppm was based, not on any finding that leukemia has
ever been caused by exposure to 10 ppm of benzene and that it will
not be caused by exposure to 1 ppm, but rather on a series of
assumptions indicating that some leukemias might result from
exposure to 10 ppm and that the number of cases might be reduced
by reducing the exposure level to 1 ppm, In reaching that result,
the Agency concluded that industry had failed to prove that there is
a safe threshold level of exposure to benzene below which no
excess leukemia cases would occur. In reaching this conclusion
OSHA rejected industry contentions that certain epidemiological
studies indicating no excess risk of leukemia among workers
exposed at levels below 10 ppm were sufficient to establish that
the threshold level of safe exposure was at or above [*635] 10
ppm. It also rejected an industry witness's testimony that a dose-
response curve could be constructed on the basis of the reported

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epidemiological studies and that this curve indicated that reducing
the permissible exposure limit from 10 to 1 ppm would prevent at
most one leukemia and one other cancer death every six years. ...
[T]he Agency [concluded] that, in the absence of definitive [*636]
proof of a safe level, it must be assumed that any level above zero
presents some increased risk of cancer ... there are [sic] a number
of scientists and public health specialists who subscribe to this
view, theorizing that a susceptible person may contract cancer
from the absorption of even one molecule of a carcinogen like
benzene.

(id. at pp. 634-636, emphasis added.) The Court rejected the "even one molecule" argument,
which is the benzene equivalent of Plaintiffs' "single fiber asbestos argument, where there was no
proof that that amount was toxic. If the United States Supreme Court has held that "no safe dose"
assumptions without proof of a minimum level of toxicity do not pass muster under the more
relaxed administrative standards, then much less does Plaintiffs’ "no safe dose" argument pass
muster under standards applicable to civil litigation.

In this case ... [OSHA] relied squarely on a special policy for

carcinogens that imposed the burden on industry of proving the

existence of a safe level of exposure, thereby avoiding [OSHA's]

threshold responsibility of establishing the need for more stringent

standards... These assumptions are not a proper substitute for the
findings of a significant risk of harm.

(Cd. at p. 659 and 662, emphasis added.) Similarly, this court should not impose the burden on
Defendant of proving the existence of a safe level of and toxicity, Plaintiffs' unsupportable,
unverifiable "no safe dose" and "single fiber" arguments "are not a proper substitute for

[evidence] of a significant risk of harm.”

F. The Court Should Address This Issue in Limine Rather Than Trying to “Unring the
Bell” at Trial.

This motion in limine is necessary because otherwise Plaintiffs' counsel may present this
argument as early as opening statement. The purpose of a motion in limine is to avoid "the
obviously futile attempt to unring the bell" later, after the jury has already been poisoned with
the prejudicial argument or evidence. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App3d 325, 337.)
The "no safe dose” argument will prejudice and mislead the jury into believing that exposure
equals liability. To prevent such prejudice and improper argument, and to eliminate the need for
objection during opening statement, this court should prohibit Plaintiffs from arguing, and

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MOTION IN LIMINE TO EXCLUDE "NO SAFE DOSE" AND "SINGLE FIBER" ARGUMENT AND
EVIDENCE [MIL #17 of 29]Com ND HW BF WN

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exclude evidence regarding, the no safe dose" or "single fiber" theory that any exposure to
asbestos automatically results in liability.

An in limine motion is also a proper way to exclude hearsay evidence, such as the EPA
and OSHA reports. (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670
[excluding party's testimony about what party heard from someone else].)

The Court should grant this motion, shield the jury from prejudicial and inaccurate
presentations, and steer the trial toward the relevant issues.

Ww. CONCLUSION

The California Supreme Court has recognized that some exposures to asbestos are too
negligible to be considered a legal cause of injury. Plaintiffs' "no safe dose" and "single fiber"
arguments are directly contrary to this authority. Plaintiffs' arguments are based on hearsay
accounts utilizing a different standard of analysis. This motion should be granted, and those
arguments and evidence precluded.
Dated: July &. 2011 GORDON & REES LLP

Roger M. Mansukhani
Steven Sobel

Mitchell B. Malachowski
Attorneys for Defendant
PACIFIC SCIENTIFIC CO.

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MOTION IN LIMINE TO EXCLUDE "NO SAFE DOSE" AND "SINGLE FIBER" ARGUMENT AND
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