Hearing: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                1 | GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ.., S.B. #220816

2 SLONIKER, ESQ., S.B. #268049
g raytonlaw.com ELECTRONICALLY

3 || BRAYTON®PURCELL LLP FILED
Attorneys at Law ‘Califor’

4]| 222 Rush Landing Road a ccungoraun menemeot
P.O. Box 6169

5 || Novato, California 94948-6169 08/18/2015
(415) 898-1555 BY:RONNIE OTERO

6 Deputy Clerk
Attorneys for Plaintiffs

7

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SAN FRANCISCO

10

11]| ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No. CGC-10-275731
12 Plaintiffs, )
g ) | PLAINTIFFS’ OPPOSITION TO JOINT
£ 13 ]] vs. ) DEFENSE MOTION IN LIMINE TO
g ) | EXCLUDE EXPECTED TRIAL
a =%  14]) C.C. MOORE & CO. ENGINEERS; ) TESTIMONY OF DR. DAVID SCHWARTZ.
5 Bz Defendants as Reflected on Exhibit 1 ) OR IN THE ALTERNATIVE, REQUEST
SE £2 15] attached to the Summary Complaint herein; ) FOR AN EVIDENCE CODE SECTION 402
5 zs and DOES 1-8500. ) HEARING
Ee g 16 )
gh 3
a 2 17 In Trial
Dept. 613
18
19
20

Based the complex subject matter of the opposition to defendant's motion in limine, and in accordance with CRC 3.1113(d) ("...no... responding
21 ]] memorandum may exceed 15 pages." "[tJhe page limit does not include exhibits, declarations, attachments..."), and in the spirit of CRC
3.1113(e) (". for permission to file a longer memorandum...") plaintiff seeks leave to exceed the San Francisco Court imposed limit of 5 pages
22 |} and no exhibits. Plaintiff requests permission to file, and for this Court to consider in its entirety, this 36-page opposition.

K.iInjurec\19349 triallopp mil exel 402 colon cancer Schwartz.wpd ATTY
PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGTABLE OF CONTENTS
L INTRODUCTION. .. 2.006 een tnt n teens 1
Il. ARGUMENT... .... 00.0 e ent e nets 2
A. DR. SCHWARTZ IS A WELL-QUALIFIED ASBESTOS MEDICAL
CAUSATION EXPERT WHO SETS FORTH IN EXTENSIVE DETAIL
THE FACTUAL AND SCIENTIFIC BASIS FOR HIS MEDICAL
CAUSATION OPINION. ..... 0.00 2

B. FEDERAL LAW AND REGULATIONS SUPPORT ASBESTOS
AS A CAUSE OF COLON CANCER, «0.2.0.0. 00 e eee ene eee eee if

Cc. A WEALTH OF ADDITIONAL MEDICAL LITERATURE SUPPORTS
DR. SCHWARTZ’S OPINION THAT ASBESTOS IS A CAUSE OF COLON
CANCER... 0. ee cette teen e nent nes 10

Dz. PLAINTIFFS’ CAUSATION ANALYSIS IS ADMISSIBLE UNDER

CALIFORNIA LAW. ... 00.00
1. California Follows the Kelly Test for the Admi:
Scientific Techniques
2. The Kelly-Frye Rule Cannot Exclude Expert Medical Testimony. .... 15
3. Sargon Does Not Change This California Court’s Role Regarding
Medical Causation Opinions. .......00 0.0 c cece eee eee ee 17
3. The Court in Cooper Exceeded it’s Gatekeeper Boundaries Regarding
the Admissibility of Expert Testimony...............0...0000005 2

E. DEFENDANT OFFERS NO EVIDENCE TO SUPPORT ITS MOTION. ... . 21
F. DEFENDANT CHALLENGES THE WEIGHT OF THE EVIDENCE,

NOT ITS ADMISSIBILITY. ......... 006.00 e cece cece eee eee 22
G. DEFENDANT FAILS TO MEET ITS BURDEN UNDER EVIDENCE

CODE SECTION 352. 2... 0.2 23
H. DEFENDANT'S MOTION IS NOTHING MORE THAN AN UNTIMELY

MOTION FOR SUMMARY JUDGMENT ON CAUSATION. ..........-. 24
IL DEFENDANT’S MOTION IS MERELY PROCEDURALLY IMPROPER

MOTION FOR NONC-SUIT.... 0.00.6 e tenes 25

J. DEFENDANT MISSTATES AND MISCONSTRUES THE LAW AND THE
SCIENCE IN RELATION TO EPIDEMIOLOGY RELATIVE RISK 2.0..... 26

1. A Relative Risk Factor of 2.0 Is Not Necessary to Consider an
Epidemiological Study for the Purpose of Proving a “More Likely than
Not” Standard of Causation. 27

The “More Likely than Not” Standard of Causation Applied in Tort Law
Is Not the Equivalent of Scientific “Doubling of the Risk”........... 29

Klnjuced19349iria opp mil excl 402 colon cancer Schwarz pd i ATTY

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGTABLE OF CONTENTS (Cont'd)

3. Statistical Significance Is Not the Only Benchmark of Causation... ... 30
K. DEFENDANT MISUNDERSTANDS EPIDEMIOLOGY................. 31
L. THERE IS NO BASIS TO EXCLUDE CASE REPORTS UNDER

CALIFORNIA LAW. ... 06.0 e eee eens 34

1. The United States Supreme Court Has Found Case Reports to Be a
Reliable Indicator of Causation. ..........0.. 0000. e eee e eee 35
BONES O Nee etpetefr et ar-obab ead tots tetebeteetatapeeaeteart 36
Teta teletelee deat cet aelelidetoleleteleldelele ii ary

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGTABLE OF AUTHORITIES

CASES

Adams v. Murakami (1991) 54 C.3d. 105.0... 0.0 ccc cence eens 5
Anderson v. Akzo Nobel Coatings, 2011 Wash. LEXIS 669. .............000.000005 23, 30
Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333 ........00.....0.02 0008s 34
Building & Construction Trades v Brock 838 F.2d 1258 (1988) ................0 0c eee eee 9
Campbell v. General Motors Corp. (1982) 32 Cal.3d 112........ 0.0.0. e cece eee ee 25
Carson v. Facilities Development Company (1984) 36 Cal.3d 830. 2.0.2.0... eee eee 25
Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931.......... 0000020000005 6
Cooper v. Takada Pharmeceuticals America, Inc (2015) Cal.App. LEXIS 697. .... 1, 20, 21, 28

Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S.579 (1993) .... 14, 16, 17, 18, 19, 26, 28

Douglas v. Ostermeier (1991) 1 Cal.App.4th 729. 0... cee eee eee 2,3,5
Edwards v. Centex Real Estate Corporation (1997) 53 Cal.App.4th 15...............0008 25
Elkins vy. Superior Court (2007) 41 Cal.4th 1337. 0.0... 0c eee eee 6
Galanek v. Wismar (1999) 68 Cal-App.4th 1417. 0.00.0 cee eee 26
Galloway v. U.S. 319 U.S. 372 (1943) 2.00.0 ce eee eee ee 6
Guardianship of Waite (1939) 14 Cal.2d. 727... 20.0.6 cc ccc ccc cece eee ee 6
Huntingdon v. Crowley (1996) 64 Cal.2d 647.0... 000. e eee eee 14, 15
Hymen v. Gordon (1973) 35 Cal.App.3d. 769... 2.0... 4
In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig.

324 F. Supp. 2d 1166 (N.D. Cal. 2007)... 2.00... cece secs ceeeeeeveeeeceeeeseess 28
In re: Winship 397 U.S. 358 (1970)... eee eee renee ee 29
Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432..............0.020008 6
Jennings v. Palomar Pomerado Health Sys.. Inc. (2003) 114 Cal.App.4th 1108. 2.0.2.0... 21
Kelley v. Bailey (1961) 189 Cal.App.2d 728.0000... ccc cece eee e eee 2
Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659. 00.0... eee eee 6
Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516.00.00. 0000. e cece cece eee ee eee 3
Lockheed Litigation Cases (2005) 126 Cal.App.4th 271........... 0.00.00 5c eee 18, 27, 28
Kallnjured\19349\trial opp mil excl 402 colon cancer Schwarz. iii ATTY

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGCASES (Cont'd)

People v. Cegers (1992) 7 Cal. App.4th 988. 00... eee eee eee 15
People ex rel Dept. of Transp. v. Clauser/Wells Partnership

(2002) 95 Cal-App.4th 1085 2 cece eee eee eee 6, 20
People v. Jackson (1971) 18 Cal.App.3d 504, 507. 20.06... 16

People v. Kelly (1976) 17 Cal.3d. 24... 0... c cece eee eee eens

People v. McDonald (1984) 37 Cal.3d 351...

People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293- 1294... 0... e cee eee ee 16
People v. Leahy (1994) 8 Cal.4th 587.00... 0. e eens 15, 18
People v. Lucas (2014) 60 Cal.4th 153. 0.0.06... cece nce eee 17, 18
People v. Luna (1988) 204 Cal.App.3d 726. 2.0.0... cee cence eee eee 16
People v. Rowland (1992) 4 Cal.4th 238.0... 0.0 e eee 15
People v. Stoll (1989) 49 Cal.3d. 1136.00... 0.0 ene eee 15
People v. Stuller (1970) 10 Cal.App.3d 582. 2.2.0... ee cee eee eee 6
Roberti v. Andy's Termite and Pest Control, Inc.

(2003) 113 Cal-App.4th 893 2 ccc eee 14, 15, 16, 17, 27, 28
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953.00... 0. 23, 32
Sargon v. University of Southern California (2012) 55 Cal.4th 747....... 1, 17, 18, 19, 20, 21
Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573............ 00000 ee 21
Talley v. Mitchell 275 F.2d 244 (6" Cir. 1960). 00... e eee cee eee 6
United States v. Addison 498 F.2d 741 (1974) 00... ccc eee eee 14
Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467. .....0.... 0.00.2 35
Kallnjured\19349\trial opp mil excl 402 colon cancer Schwarz. iv ATTY

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGTABLE OF AUTHORITIES (Cont'd)

STATUTES
Code of Civil Procedure § 437c(a).. 2.0 cece e eens 24
Evidence Code § 352.0... ec n ene eee ete eee n ene 23

STATUTES (Cont'd)

Evidence Code §720(a). 0.6.0 e nee eee e nee n eae 3,4
Evidence Code § 720(b)... 0... e eee eee teens 3,4
Evidence Code § 801. 0.2... ec ccc eee ee 3, 18, 19, 21, 22
Evidence Code § 801(b) 0... 002s 17, 32, 34
Evidence Code § 802. 2... 002. e cece eens 18, 19, 21, 22
Evidence Code §804. 2.0... ccc cnc n nett nn eee eee enn ee eee 22
MISCELLANEOUS
CAST Oa eet spec att gtr Dw at a att eles ee ea 22, 24
ee OTT re ete te ete eT ete e eb eter st see tlt tteetee 22, 24
CAC 221... nnn nent nee e een eee eee 22, 24
Wegner, et al., Calif, Prac. Guide: Civil Trials and Evidence

(The Rutter Group 2002). 0. ccc nee n eee een eee neces 6
K:juteh19349iria op mi exc 402 colon cancer Schwartz pd v ATTY

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGI
INTRODUCTION
Defendant (hereafter “defendant”) has filed substantively barren, argumentative motions
in limine that brashly misstate the science on asbestos colon cancer causation and California law
on the admissibility of expert medical causation opinions. Moreover, defendant relies on

Sargon v. University of Southern California (2012) 55 Cal.4th 747, claiming that it somehow

has created a new standard of law in California regarding expert admissibility — it has not!
Under long standing and still current California law, a qualified expert’s medical causation
opinion is not subject to an admissibility challenge. The Court of Appeals recently agreed with
the current law in Cooper v. Takada Pharmeceuticals America, Inc (2015) Cal.App. LEXIS
697, when it held that the expert was qualified to testify to his medical opinion. Such is the case
here. Dr. Schwartz fits all criteria required under California law to testify on behalf of plaintiffs.

Citing only two sources in its favor and flagrantly misstating some of the literature
favorable to the plaintiff is somehow not, defendant claims that Dr. Schwartz’s (who testifies as
often for asbestos defendants as he does for asbestos plaintiffs) expert medical causation

opinion is out on a limb, and is a “new” “theory” or “hypothetical”. In truth, asbestos as a
medical cause of colon cancer has been well established since at least 1964. While the strength
of association is not as off-the-charts strong as with the signature disease of mesothelioma, the
bulk of the mainstream medical and scientific community and regulatory bodies charged with
asbestos safety and health throughout the globe supports the diagnosis of asbestos as a cause of
colon cancer. Moreover, the medical literature cited by Dr. Schwartz, and in this opposition,
clearly establishes asbestos as a cause of colon cancer.

After cutting through the factual misstatements, defendant’s motions boil down to a
dressed-up version of the same old tired asbestos defense spin that defendant's product and its
fiber is somehow magically special, different, and safe. In truth, the medical literature clearly
shows an increased incidence of colon cancer among individuals exposed to asbestos, which is
in accord with Dr. Schwartz’s medical causation opinion in this case.

Mt

agate cho tnk debe ae ai teloenad 1 arty
PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR.
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGIl.
ARGUMENT

A. DR. SCHWARTZ IS A WELL-QUALIFIED ASBESTOS MEDICAL
CAUSATION EXPERT WHO SETS FORTH IN EXTENSIVE DETAIL THE
FACTUAL AND SCIENTIFIC BASIS FOR HIS MEDICAL CAUSATION
OPINION

Whether it be for an asbestos plaintiff, or an asbestos defendant, Dr. Schwartz calls it as
he sees it. Dr. Schwartz’s expert medical opinion testimony has been provided in numerous
depositions and trials to assist the trier of fact in understanding asbestos causation, including
how asbestos fibers cause injury in and to the human colon. Dr. Schwartz’s opinion is based
upon his decades of vast experience, investigation, and published science Dr. Schwartz has been
board-certified in general, occupational and pulmonary medicine for 31 years. His curriculum
vitae is attached as Exhibit A to the Newbold Declaration.

Dr. Schwartz’s testimony shows that he has extensive experience in the area of asbestos
related disease. As a pulmonologist and an internist, he has both treated and diagnosed patients.
The court cannot focused narrowly on the fact that Dr. Schwartz was “just a pulmonologist” and
thus not qualified to testify about colorectal cancer. This ignores the evidence of Dr. Schwartz’s
dual specialization as an internist. This Court cannot look past the fact that an internist is a
specialist who deals with the entire patient, covering diagnosis and medical treatment (other
than surgical) of adults. This qualification invalidates the defendants argument that Dr.
Schwartz was not qualified to talk about the colorectal cancer. His board certification in
internal medicine makes him imminently qualified to consider, study, and address diseases of
the whole body, including colorectal disease.

The Court is required to liberally interpret the qualifications of an expert to testify since
the expert's qualifications go to the weight, not the admissibility of his testimony. In_ Douglas v.
Ostermeier, a defendant challenged the admissibility of the testimony of a real estate agent to
testify to the value of his commercial property in a punitive damages action. The agent had not
conducted a comparative market analysis of the property. She also admitted, except for the

three times she visited appellants’ property for the purpose of purchasing a car, she had not

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PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGvisited the property and had never scrutinized the property for purposes of valuation. She
admitted she did not know how the property was zoned, was not familiar with the exact property
values of nearby high-rise hotels and office buildings and, ultimately, that she had limited
familiarity with commercial properties. Nonetheless, upholding the admission of the testimony,
the court held:

That her opinion of the value of appellants” property was not substantiated by :

solid documentary evidence is a challenge not to the admissibility of [the agent’s]

testimony but rather to the weight to be given her opinion.
Douglas v. Ostermeier, (1991) 1 Cal. App. 4th 729, 739.

Dr. Schwartz has properly relied on authoritative and peer-reviewed medical and
scientific sources in forming his opinions in the case as well as the opinions and examination
results of other doctors. (See Kelley v. Bailey (1961) 189 Cal.App.2d 728, 737 [a doctor may
base an opinion on a diagnoses or examination made by other doctors]; Mann v. Cracchiolo
(1985) 38 Cal.3d 18, 37 [a doctor may rely on a study of medical texts].) Dr. Schwartz’s
causation opinions in the present case are based upon proper foundation as will be established
during his trial testimony. The complaints voiced by defendant go to the weight it may want a
fact-finder to assign to Dr. Schwartz’s testimony, not his competency to so testify, nor the
admissibility of his expert testimony.

A witness may testify as an expert witness if he or she has “special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to which
his testimony relates.” (Ev. Code §720(a).) This expertise may be shown by admissible
evidence, including the witness’s own testimony. (Ev. Code §720(b).) Further, “[i]t is
prejudicial error to exclude relevant and material expert evidence where a proper foundation for
it has been laid, and the proffered testimony is within the proper scope of expert opinion.”

Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.) California Evidence Code
§ 801 provides that the testimony of an expert witness must be:

(a) related to a subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact; and

(b) based on matter (including his special knowledge, skill, experience, training,
and education) perceived by or personally known to the witness or made known

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PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGto him at or before the hearing, whether or not admissible, that is of a type that

reasonably may be relied upon by an expert in forming an opinion upon the

subject to which his testimony relates, unless an expert is precluded by law from

using such matter as a basis for his opinion.

The role of asbestos in causing the disease Dr. Schwartz will testify about is clearly
beyond common experience. Dr. Schwartz has the requisite knowledge, skill, experience,
training and education to qualify as an expert and to provide the jury with information it needs
to come to a verdict in this case. To qualify as an expert witness under Evidence Code § 720(a),
one is required to have "special knowledge, skill, experience, training, or education . . . to which
[his or her] testimony relates." Such expertise, "may be shown by any otherwise admissible
evidence," including the witness's own testimony. (Evidence Code § 720(b).) There are no
rigid classifications regarding the qualifications of an expert to testify on a specific subject
within the expert’s general expertise. (Mann v. Cracchiolo, supra, 38.)

An expert may testify regarding a subject within his expertise despite the lack of
occupational experience in the particular field. (Miller v. Silver (1986) 181 Cal.App.3d. 652,
660.) Work in a particular field is not a prerequisite to qualification of an expert in that field.

(Osbourne v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 274. See also People v.

Alexander (1963) 212 Cal.App.2d. 84, 91; Naples Restaurant v. Coverly Ford (1968) 259
Cal.App.2d. 881, 884; Hymen v. Gordon (1973) 35 Cal.App.3d. 769, 774.)

Defendants cite old deposition testimony in an effort to mislead this court regarding Dr.
Schwartz’s expertise. Defendants are trying to lead this court to believe that over the course of
years a professional would not be able to further their expertise in a specific area, this argument
is absurd. Dr. Schwartz has testified regarding his expertise and work in colon cancer cases in
other depositions.

When asked about his work as an expert witness in colon cancer cases relating to
asbestos exposure, Dr. Schwartz stated in deposition that he had been retained multiple times.

Q. Within the past five years, can you give me an
estimate as to how many times you have been retained in
matters involving allegation of colon cancer related to
asbestos exposure?

agate cho tnk debe ae ai teloenad 4 arty
PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR.
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGA. This is just an approximate number, but I would
say maybe one to one and a half dozen times. So
between 12 and 18 times.

(Robert and Jean Ross v. C.C. Moore & Co. Engineers, et al., San Francisco Superior Court
Case No. 275731, pp. 13:7-11)

Dr. Schwartz also testified in deposition that he has extensive experience treating
patients with colon cancer:

Q. And you have never treated anyone with colon

A. That's correct. Excuse me, that is not correct. | have treated a lot of patients with colon
cancer. I have not been the oncologist treating those patients.

What does your treatment of them entail?

Sometimes I have been involved in the diagnosis of those individuals, performing a
sigmoidoscopy and a biopsy. Sometimes I have been involved as a consultant taking care
of pulmonary lung problems of those individuals. And sometimes I have just been
involved with the general medical care of those individuals.

Peo

(Ross Depo., pp. 26:25-27:11)
In deposition testimony in Robert Ross v. Allis-Chalmers Corp. et al. (San Francisco
Superior Court Case No. 274099 taken 02-17-2012) Dr. Schwartz relied on published literature

to form an opinion:

Q. by his exposure to asbestos. Well, how much did asbestos contribute to his colon
cancer?

A. His exposure to asbestos increased his risk of developing colon cancer by about
twofold.

Q. What is that based on?

A. It's based on a series of papers that were reported in the literature over the past

twenty-five years.

And are all those papers referenced in your annotated bibliography of colon cancer
articles?

Yes.

P 2

The Court is required to give liberal interpretation of the qualifications necessary for an
expert to testify, since the expert’s qualification go to the weight, not the admissibility of his
testimony. (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729; Adams v. Murakami (1991)

54 C.3d. 105.) One of the elements of a fair trial is the right to offer relevant and competent

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PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR.
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGevidence on a material issue. Denial of this fundamental right is almost always considered
reversible error. (Guardianship of Waite (1939) 14 Cal.2d. 727, 730; Elkins v. Superior Court
(2007) 41 Cal.4th 1337, 1357.) A party’s opportunity to call witnesses to testify and to proffer

admissible evidence is central to having his day in court. (Kelly v. New West Federal Savings

(1996) 49 Cal.App.4th 659, 677; Elkins v. Superior Court, supra.).

Dr. Schwartz's expertise cannot be seriously challenged since, whether hired by the
plaintiff or the defense, he has never failed to qualify as an asbestos medical causation expert
witness in any court. Plaintiffs are unaware of a single instance in which Dr. Schwartz’s
asbestos medical opinion testimony has been excluded at trial. His credentials unequivocally
satisfy the requirements set forth in the Evidence Code for expert witnesses.

Under California law, if the witness is shown to have “special” knowledge of the subject
~here, the cancers associated with the inhalation of asbestos particles, dust and fibers — it is
generally an abuse of discretion for a trial court to refuse to permit a him or her to testify as an
expert as “the question of degree of expertise or knowledge goes to the weight of the testimony

rather than its admissibility.” (Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d

1432, 1443-1444; Miller v. Silver, supra, 660; People ex rel Dept. of Transp. v. Clauser/Wells

Partnership (2002) 95 Cal.App.4th at 1085-1086; Wegner, et al., Calif. Prac. Guide: Civil Trials
and Evidence (The Rutter Group 2002) at 11:97.)

Under the California Constitution, Article I, § 16, a court may not deprive a plaintiff of
his/her right to have a jury decide factual issues, including the weight and credence to be
accorded expert testimony. This right is similar to the right to a jury trial afforded by the
Seventh Amendment to the U.S. Constitution, which includes the right to have a jury hear
testimony of expert witnesses. (See, e.g., Galloway v. U.S. 319 U.S. (1943) 372, 396; Talley v.
Mitchell 275 F.2d 244, 245 (6" Cir. 1960) .) In accord is Cooper v. Board of Medical
Examiners (1975) 49 Cal.App.3d 931, 945, in which the court held that determining the
qualifications of an expert and the degree of his or her knowledge is a matter affecting the

weight of the testimony, not its admissibility. (See also, People v. Stuller (1970) 10 Cal.App.3d

582, 597.) The complaints defendants voice go to the weight they may want a fact-finder to

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PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGassign to Dr. Schwartz’s testimony, not his competency to so testify nor the admissibility of his

expert testimony.
B. FEDERAL LAW AND REGULATIONS SUPPORT ASBESTOS AS A CAUSE
OF COLON CANCER

It is absurd for defendants to try to exclude expert witness testimony on a subject when
the United States government takes the same position as the witness. Numerous federal
government bodies have found that asbestos exposure puts a person at risk for gastrointestinal
cancers, including the Environmental Protection Agency and the Department of Labor:

(1) Exposure to asbestos causes many painful, premature deaths due to. . .
gastrointestinal and other cancers. . . . . ” (54 The Federal Register (July 12, 1989) 29460,
29467)

[Under heading] A. Health Effects and Magnitude of Exposure to Asbestos; 1.
Health Effects; b. Gastrointestinal cancer:

EPA recognizes that the evidence supporting an association between
gastrointestinal cancer and asbestos exposure is not as strong as that which is
available to support an association between asbestos exposure and lung cancer
and mesothelioma. However, after weighing available information, EPA
believes that there is evidence of a strong causal relationship between asbestos
exposure and gastrointestinal cancer excess. This evidence includes the
following: (1) A statistically significant increase in gastrointestinal cancer was
found in 10 of 23 epidemiological studies. (2) A consistent relationship exists
between increased gastrointestinal cancer risk and increased lung cancer risk
(approximately 10 to 30 percent of the lung cancer excess). (3) It is biologically
plausible that asbestos could be associated with tumor sites, because it is
conceivable that the majority of fibers inhaled are cleared from the respiratory
tract and subsequently swallowed, allowing the fibers to enter the gastrointestinal
tract (Ref. 5). Additionally fibers may be swallowed directly. . . . | Further, EPA
does not accept the argument that all gastrointestinal cancers identified in the
epidemiology studies described above are the result of misdiagnosis. Cancers of
some gastrointestinal sites (e.g., stomach and pancreas) could be the result of
misdiagnosis of peritoneal mesothelioma. However, this does not account for all
of the excess cancers seen at sites such as the colon or rectum.” (/d., p. 29469)

OSHA is aware of no instances in which exposure to a toxic substance has
more clearly demonstrated detrimental health effects on humans than has
asbestos exposure. The diseases caused by asbestos exposure are in large part
life-threatening or disabling. Among these diseases are lung cancer, cancer of
the mesothelial lining of the pleura and peritoneum, and asbestosis. In addition,
workers exposed to asbestos are at an increased risk of gastrointestinal cancer.
as shown by epidemiologic studies. Although colo-rectal cancer may be curable
if detected in an early stage, other gastrointestinal cancers are usually fatal.
OSHA also believes that asbestos might induce cancers at other sites, which are
also often fatal.” (48 The Federal Register ( November 4, 1983), 51085, 51089,
emphasis supplied.)

agate cho tnk debe ae ai teloenad 1 arty

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGSome epidemiologic studies have observed increases in esophageal, stomach,
colo-rectal, kidney, laryngeal, pharyngeal, and buccal cavity cancers.” (Jd. at
51099, emphasis supplied.)

(2) The United States Federal Register - Vol. 48, No. 215, Part VIL, Department of
Labor, OSHA, Occupational Exposure to Asbestos, Emergency Temporary Standard. Friday,
November 4, 1983, pps. 51085-51140, with special attention to the following at p. 51089, first
column, bottom paragraph, going to the second column, top paragraph:

OSHA is aware of no instances in which exposure to a toxic substance has more
clearly demonstrated detrimental health effects on humans than has asbestos
exposure. The diseases caused by asbestos exposure are in large part life-threatening or
disabling. Among these diseases are lung cancer, cancer of the mesothelial lining of the
pleura and peritoneum, and asbestosis. In addition, workers exposed to asbestos are at
an increased risk of gastrointestinal cancer, as shown by epidemiologic studies.
Although colo-rectal cancer may be curable if detected in an early stage, other
gastrointestinal cancers are usually fatal. OSHA also believes that asbestos might induce
cancers at other sites, which are also often fatal. [Emphasis supplied; see, also,
California Evidence Code section 451 (a) (mandatory judicial notice).]

(3) The United States Federal Register - Vol. 48, No. 215, Part VII, Department of
Labor, OSHA, Occupational Exposure to Asbestos, Emergency Temporary Standard. Friday,
November 4, 1983, pps. 51085-51140, with special attention to the following at p. 51099, third
column, middle of the page:

Some epidemiologic studies have observed increases in esophageal, stomach,

colo-rectal, kidney, laryngeal, pharyngeal, and buccal cavity cancers. [Emphasis
supplied; see also, California Evidence Code section 45 1(a) (mandatory judicial notice).]

(4) The United States Federal Register - Vol. 48, No. 215, Part VII, Department of
Labor, OSHA, Occupational Exposure to Asbestos, Emergency Temporary Standard. Friday,
November 4, 1983, pps. 51085-51140, with special attention to the following at page 51108,
first column, top third of the page:
There is no evidence for an association between cigarette smoking and either
mesothelioma risk or gastrointestinal cancer.
(5) The United States Federal Register - Vol. 48, No. 215, Part VII, Department of
Labor, OSHA, Occupational Exposure to Asbestos, Emergency Temporary Standard. Friday,
November 4, 1983, pps. 51085-51140, with special attention to the following at pages 51128-

51129 (chart of expected deaths from asbestos exposure):

agate cho tnk debe ae ai teloenad 8 arty

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGESTIMATED Asbestos-related CANCER MORTALITY PER 100,000 BY NUMBER
OF YEARS EXPOSED AND EXPOSURE LEVEL
[Right hand column, Cancer mortality, per 100,000 humans exposed - four
sub-columns]:

(1) Lung cancer;

(2) mesothelioma;

(3) gastrointestinal cancer; and
(4) total estimated deaths from asbestos exposure

[NOTE: even at OSHA's 0.1 f/cc concentration, OSHA estimated that just 12 months of
asbestos exposure equals roughly one fatality (one dead human being) from asbestos-induced
Gastro-Intestinal cancer alone, being per 100,000 exposed persons, and 14 fatalities (14 dead
human beings) from asbestos-induced Gastro-Intestinal cancer alone, per 100,000 exposed
persons, if exposed to 0.1 f/ce for 20 years] (emphasis supplied); See also, California Evidence
Code section 451(a) (mandatory judicial notice).

(6) Building & Construction Trades v Brock 838 F.2d 1258 (1988) , where the

United States Court of Appeals affirmed OSHA’s worker health regulations that mandated that
employers lower the permissible exposure limit (“PEL”) to asbestos fibers, dust, and particles,
of U.S. workers, acknowledging that under the then existing rules OSHA estimated that at the
1976 OSHA PEL of 2 f/cc asbestos use generated a lifetime excess risk per 1000 workers of 64
excess deaths from asbestos-related cancers, and an excess incidence of 50 cases of asbestosis.
51 Fed.Reg. at 22,644/3:

Inhalation of the fibers causes, or is at least causally related to, a number of

serious and often fatal diseases. These include lung cancer, asbestosis (a chronic

and disabling lung disease), mesothelioma (cancer of the lining of the chest

cavity or abdomen), and gastrointestinal cancer. 51 Federal Register at 22,61

5/3. It is also associated with an increased risk of cancer of the esophagus,

stomach, colon, kidneys, larynx, pharynx, and buccal cavity. Id. at 22,61 6/1. In

the preamble to the standards here at issue, the Secretary emphasized that ‘OSHA

is aware of no instance in which exposure to a toxic substance has more clearly

demonstrated detrimental health effects on humans than has asbestos exposure.’

[ld. at 22, 615/3.]

Plaintiffs will request that the Court take judicial notice of these and other such government
documents if necessary.

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agate cho tnk debe ae ai teloenad 9 arty
PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR.
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGCc. A WEALTH OF ADDITIONAL MEDICAL LITERATURE SUPPORTS
DR. SCHWARTZ’S OPINION THAT ASBESTOS IS A CAUSE OF COLON
CANCER

In addition to the above regulations, and the literature that Dr. Schwartz cites and
summarizes in his reports, a wealth of additional medical literature supports Dr. Schwartz’s
medical causation opinion that asbestos is a cause of colon cancer. The following 70 medical
articles are collectively referenced as Exhibit B to the Newbold Declaration, and, due to the fact
that it would be several boxes' worth of paper, is provided via CD to the court and hightail to
defendants :

001 - Selikoff, Irving J., M.D., et al., JAMA, April 6, 1964, “Asbestos Exposure and Neoplasia”
002 - Hammond - Neoplasia Among Insulation Workers In the United States - 1965
003 - Selikoff - Asbestos Exposure Smoking and Neoplasia JAMA - 1968

004 - Blot - Cancer Mortality in US Counties with Shipyard Industries During World War II
NCI - 1978

005 - Puntoni - “Mortality Among Shipyard Workers in Genoa Italy” 1979

006 - Selikoff - “Mortality Experience of Insulation Workers in the United State and Canada
1943-1976” - 1979

007 - Donham - “Effects of Long Term Exposure to Asbestos on the Colon in Rats”- 1980
008 - IARC Monographs Supplement 4 Asbestos (Group 1) - 1980

009 - Kaminski - “Mortality Analysis of Plumbers and Pipefitters” JOM - 1980

010 - McDonald - "Dust Exposure and Mortality in Chrysotile Mining 1910-1975" - 1980

011 - Tagnon, “Mesothelioma Associated with the Shipbuilding Industry in Coastal Virginia”
1980

012 - Federal Register Vol 48 No 215 OSHA Rules and Regulations - 1983

013 - Finkelstein - "Mortality among long-term employees of an Ontario asbestos-cement
factory" BJIM 1983

014 - Teta - “Mesothelioma in Connecticut 1955-1977 Occupational and Geographic
Associations” - 1983

015 - Spiegelman - “Investigations on Man” US Dept of Health and Human Services JNCI 1985

016 - Sprince - “Asbestos-Related Disease in Plumbers and Pipefitters Employed in Building
Construction” - 1985

017 - Cantor - “Patterns of Mortality Among Plumbers and Pipefitters” AJIM - 1986

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PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR.
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING018 - EPA Airborne Asbestos Health Assessment Update Research and Development - 1986

019 - Frumkin - “Asbestos Exposure and Gastrointestinal Malignancy Review and
Meta-Analysis” AJIM - 1988

020 - Teta - “A Mortality Study of a Research Engineering and Metal Fabrication Facility in
Western New York State” AJE - 1988

021 - Woitowitz - “Mortality rates in Federal Republic of Germany following previous
occupational exposure to asbestos dust” OEH - 1986

022 - Sherman - “Use of Oblique Chest Roentgenograms in Detecting Pleural Disease in
Asbestos-exposed Workers” 1988

023 - Federal Register Asbestos Manufacture Importation Processing and Distribution in
Commerce Prohibitions Final Rule - 1989

024 - Jakobsson - “Gastrointestinal cancer among cement workers A case-referent study” Intl
Archives OEH 1990

025 - Ehrlich - Carcinoma of the Colon in Asbestos-exposed workers - 1991

026 - Neugut - “Brief Communication Association of Asbestos Exposure With Colorectal
Adenomatous Polyps and Cancer” 1991”

027 - Rosenstock “Roentgenographic Manifestations and Pulmonary Function Effects of
Asbestos-Induced Pleural Thickening” Toxicology and Industrial Health - 1991

028 - Garabrant - Asbestos and Colon Cancer Lack of Association in a Large Case-Control
Study - 1992

029 - Gerhardsson de Verdler - “Occupational Exposures and Cancer of the Colon and Rectum”
- 1992

030 - Andersen - “Incidence of Cancer among Lighthouse Keepers Exposed to Asbestos in
Drinking Water” - 1993

031 - Lindsay - “The Canadian Labour Force Ten Percent Sample Study Cancer Mortality
among Men 1965-1979” - 1993

032 - Magnani - A cohort study on Mortality among wives of workers in the asbestos Cement
industry in Italy - 1993

033 - Mille - “Diffuse Thickening Superimposed on Circumscribed Pleural Thickening Related
to Asbestos Exposure” - 1993

034 - Demers - “Construction Occupations Asbestos Exposure and Cancer of the Colon and
Rectum” 1994

035 - Rosler Joachim - “Mortality Rates in a Female Cohort Following Asbestos Exposure in
Germany” 1994

036 - Tarchi Marzia - “Cohort Mortality Study of Rock Salt Workers in Italy” - 1994

037 - Ward Elizabeth - “Cancer Mortality Patterns Among Female and Male Workers Employed
in a Cable Manufacturing Plant During World War II” 1994

Feiaetehie pteto a telat clan ateleceaela u arty

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING038 - De Stefani - “Occupation and the risk of lung cancer in Uruguay” Scand J Work Environ
Health - 1996

039 - Raff Edith - “Colorectal Cancer in Asbestos Cement Workers in Denmark” - 1996

040 - Teschke “Mesothelioma surveillance to locate sources of exposure to asbestos” Can J
Public Health - 1997

041 - Hessel Patrick - “Lung Health among plumbers and pipefitters in Edmonton Alberta”
Occup Environ Med - 1998

042 - Kurmumatani - “A Historical Cohort Mortality Study of Workers Exposed to Asbestos in
a Refitting Shipyard” Industrial Health 1998

043 - Germani D - “Cohort Mortality Study of Women Compensated for Asbestosis in Italy” -
1999

044 - Tulchinsky Theodore - “Cancer in Ex-Asbestos Cement Workers in Israel 1953-1992” -
1999

045 - Berry - “Mortality from all cancers of asbestos factory workers in east London 1933-80”
Occup Environ Med - 2000

046 - Lewis Jeffrey R - “Updated mortality among diverse operating segments of a petroleum
company” Occup Environ Med - 2000

047 - Goldberg Mark S - “A Case-Control Study of the Relationship Between the Risk of Colon
Cancer in Men and Exposure to Occupational Agents” AJIM - 2001

048 - Puntoni Riccardo - “A Historical Cohort Mortality Study Among Shipyard Workers in
Genoa Italy” AJIM - 2001

049 - S de la Provote - “Incidence of digestive cancers and occupational exposure to asbestos”
European Journal of Cancer Prevention - 2002

050 - American Thoracic Society - Diagnosis and Initial Management of Nonmalignant Disease
Related to Asbestos - 2003

051 - Chen - “The CUSCORE test and the q-interval cluster analyses of colon cancer and of
lymphoma among asbestos workers” Statistics in Medicine - 2003

052 - Finkelstein - “A cohort study of mortality among Ontario pipe trades workers” Occup
Environ Med - 2004

053 - Kjaerheim Kristina - “Cancer of the gastrointestinal tract and exposure to asbestos in
drinking water among lighthouse keepers (Norway) - 200

054 - Wingren G - “Mortality and cancer incidence in a Swedish art glassworks—an updated
cohort study” Int Arch Occup Environ Health - 2004

055 - Aliyu O - Evid Excess Colorectal Cancer Incide Amg Asb exp men in the Beta Carotene
and Retinol Efficacy Trial - 2005

056 - Browne Marilyn L - “Cancer incidence and asbestos in drinking water Town of
Woodstock New York 1980-1998 Environmental Research - 2005

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PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING057 - Salg J - “A Proportionate Mortality Study of Bricklayers and Allied Craftworkers” AJIM -
2005

058 - Dodson & Hammar 2nd Ed - Excerpts Re Colon Cancer - Asbestos Risk Assessment
Epidemiology and Health Effects - 2006

059 - Harding H “Mortality among British asbestos workers undergoing regular medical
examinations (1971-2005)” Occup Environ Med - 2009

060 - Loomis D “Lung cancer mortality and fibre exposures among North Carolina asbestos
textile workers” Occup Environ Med - 2009

061 - Pira E “Mortality from cancer and other causes in the Balangero cohort of chrysotile
asbestos miners” Occup Environ Med 66 805-809 - 2009

062 - Pesche Beate - “Cancer Mortality in a surveillance cohort of German males formerly
exposed to asbestos” Int J Hyg Environ Health - 2010

063 - CIB 62 “Asbestos Fibers and Other Elongate Mineral Particles State of the Science and
Roadmap for Research” Dept Health and Human Services CDC NIOSH - 2011

064 - Clin - Cancer incidence within a cohort occupationally exposed to asbestos - a study of
dose response relationships - 2011

065 - Magnani C - “Cancer risk after cessation of asbestos exposure a cohort study of Italian
asbestos cement workers” - 2011

066 - US Dept of Labor Asbestos OSHA Guide - 2011
067 - Asbestos IARC - 2012
068 - Asbestos Asbestosis and Cancer - Helsinki Criteria for Diagnosis and Attribution - 2014

069 - Lin Sihao - Exposure to Chrysotile Mining Dust and Digestive Cancer Mortality in a
Chinese MinerlMiller Cohort Occup Environ Med - 2014

070 - Offerman N - Occup asb exp and risk of esophageal gastric and colorectal cancer in
Netherlands study Int J Cancer - 135-1970-1977 - 2014

In short, based on all the medical literature referenced above, it is simply absurd for the

defendant to argue that Dr. Schwartz’s opinion is a “new” “novel” “hypothetical” “theory” that
is add odds with the scientific community. The fact that there is disagreement within the
community does not create an admissibility bar -- it creates a trial.

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Feiaetehie pteto a telat clan ateleceaela 1B arty

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGDz. PLAINTIFFS’ CAUSATION ANALYSIS IS ADMISSIBLE UNDER
CALIFORNIA LAW

1. California Follows the Kelly Test for the Admissibility of New
Scientific Techniques

With regard to scientific testimony, California courts historically courts follow the Frye
rule as set out in People v. Kelly (1976) 17 Cal.3d. 24, requiring “preliminary showing of
general acceptance of the new technique in the relevant scientific community.” (Id. at 30.) The
court established this rule because of the “existence of a ‘... misleading aura of certainty which
often envelops a new scientific process, obscuring its currently experimental nature.””
(Huntingdon v. Crowley (1996) 64 Cal.2d 647, 656, qtd. in Kelly at p. 32.) The concern was
that “scientific proof may in some instances assume a posture of mystic infallibility in the eyes
ofa jury ....” (United States v. Addison 498 F.2d 741, 744 (1974) , qtd. in Kelly at p. 32.) The
emphasis, thus, is on both the newness of the technique used to establish the evidence in
question and the machine-like quality of the method used.' The court held that expert testimony
about a new scientific technique could only be admitted if: (1) the technique is generally
accepted as reliable in the relevant scientific community; (2) the witness is properly qualified as
an expert; and (3) the technique is properly applied to the facts being considered. (Kelly at 30.)

Furthermore, in Roberti v. Andy's Termite and Pest Control, Inc. (2003)

113 Cal.App.4th 893, the Court held that: (1) California courts do not apply the reliable
foundation test derived from Rule 702 of the Federal Rules of Evidence and established by the

United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579,

"The technique at issue in Kelly was “voice-printing,” which is not at all analogous to the testimony
plaintiffs’ expert offers here. “When a witness gives his personal opinion on the stand even if he qualifies as an
expert the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge
that all human beings are fallible. But the opposite may be true when the evidence is produced by a machine: like
many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently
‘scientific’ mechanism, instrument, or procedure. Yet the aura of infallibility that often surrounds such evidence
may well conceal the fact that it remains experimental and tentative. For this reason, courts have invoked the
Kelly-Frye rule primarily in cases involving novel devices or processes such as lie detectors, “truth scrum,” Nalline
testing, experimental systems of blood typing, ‘voiceprints,’ identification by human bite marks, microscopic
analysis of gunshot residue, and hypnosis, and, most recently, proof of guilt by ‘rape trauma syndrome’. In some
instances the evidence passed the Kelly-Frye test, in others it failed; but in all such cases ‘the rule serves its salutary
purpose of preventing the jury from being misled by unproven and ultimately unsound scientific methods.”
(People v. McDonald (1984) 37 Cal.3d 351, 372-373, citations omitted.)

Fiat ehi eto alae clan tel tceaela 14 arty

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING587 (1993) ; (2) the Kelly test applies only to new scientific techniques, not medical

causation opinions. (Roberti, supra, at p. 906.)

2. The Kelly-Frye Rule Cannot Exclude Expert Medical Testimony

With regard to scientific testimony, California courts follow People v. Kelly (1976)
17 Cal.3d. 24, requiring “preliminary showing of general acceptance of the new technique in
the relevant scientific community.” (Id. at 30.) The court established this rule because of the
“existence of a ‘... misleading aura of certainty which often envelops a new scientific process,
obscuring its currently experimental nature.’” (Huntingdon v. Crowley (1996) 64 Cal.2d 647,
656, qtd. in Kelly at p. 32.) The emphasis, thus, is on both the newness of the technique used to
establish the evidence in question and the machine-like quality of the method used. The court
held that expert testimony about a new scientific technique could only be admitted if: (1) the
technique is generally accepted as reliable in the relevant scientific community; (2) the witness
is properly qualified as an expert; and (3) the technique is properly applied to the facts being
considered. (Kelly at 30.)

Many subsequent cases held that the Kelly standard could not be used to exclude

medical causation testimony. (See, for example, People v. McDonald (1984) 37 Cal.3d 351,

373; People v. Stoll (1989) 49 Cal.3d. 1136, 1157; People v. Rowland (1992) 4 Cal.4th 238,
266); People v. Cegers (1992) 7 Cal.App.4th 988.); and People v. Leahy (1994) 8 Cal.4th 587.
In People v. McDonald, supra, in holding that the Kelly-Frye rule does not apply to expert
testimony on eyewitness identification, the court recognized that there is an important
distinction between expert testimony and scientific evidence. (Id. at p. 372.) In McDonald no
“scientific” mechanism, instrument, or procedure was at issue. and, the court held:

We have never applied the Kelly-Frye rule to expert medical testimony, even

when the witness is a psychiatrist and the subject matter is as esoteric as the

reconstitution of a past state of mind or the prediction of future dangerousness, or

even the diagnosis of an unusual form of mental illness not listed in the

diagnostic manual of the American Psychiatric Association. (Id. at 373)
In People v. Cegers, supra, the court cited the holding in McDonald: “Kelly-Frye had no
application, since the information to be provided was not “scientific evidence” but rather simply

“expert testimony.” (Id. at p. 997.) Then expanded upon McDonald, finding:

Feiaetehie pteto a telat clan ateleceaela 15 arty

PLAINTIFFS’ OPPOSITION TO JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY OF DR
DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARINGAn expert may always give his opinion as to the cause of a particular injury or
condition, and lack of absolute scientific certainty does not constitute a basis for
excluding the opinion. ‘[A] medical diagnosis based on medical literature will

not be viewed as a new scientific technique, but simply the development of

an opinion from studies of certain types of case