On December 17, 2010 a Party Discovery was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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WILLIAM M. HAKE, ESQ. (State Bar No. 110956) Bill. Hake@wilsonelser.com JOHN E. ROSENTHAL, ESQ. (State Bar No. 233591) John.Rosenthal@wilsonelser.com JEREMY C. BERLA, ESQ. (State Bar No. 267331) Jeremy.Berla@wilsonelser.com ROCKFORD M. HEARN, ESQ. (State Bar No. 269074) Rockford. Hearn@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 525 Market Street, 17th Floor San Francisco, CA 94105-2725 Telephone: 415-433-0990 Facsimile: 415-434-1370 Attorneys for Defendants ADVANCE MECHANICAL CONTRACTORS, INC. ANDERSON, ROWE & BUCKLEY, INC. BELL PRODUCTS, INC. COLLINS ELECTRICAL COMPANY, INC. EMIL J. WEBER ELECTRICAL COMPANY, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO ROBERT ROSS AND JEAN ROSS, Plaintiffs, SUPPLEMENTAL BRIEF IN SUPPORT OF JOINT DEFENSE MOTION IN Per LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION C.C. MOORE & CO., ENGINEERS, et al., TESTIMONV-OF DRABAVED Defendants. SCHWARTZ, OR IN THE SUPPLEMENTAL BRIEF IN SUPPORT OF JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION TESTIMONY OF DR. DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE. SECTION 402 HEARING 14271 16v.1 Case No.: CGC-10-275731 ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING Complaint: Trial Date: November 30, 2010 August 10, 2015 ELECTRONICALLY FILE Superior Court of County of San 08/17/2015 Clerk of the Court BY:RONNIEwn wn I. INTRODUCTION Per the Court’s correspondence to the parties on August 15, 2015, all Defendants in this matter jointly submit this Supplemental Brief in Support of the Joint Defense Motion in Limine to Exclude Expected Trial Testimony and Deposition Testimony of Dr. David Schwartz, or in thd Alternative, Request for an Evidence Code Section 402 Hearing, specifically to address the recent unpublished case of Cooper v. Takeda Pharmaceuticals America, Inc., No. B250163 (CA Ct. App. filed July 16, 2015).' The Cooper case provides valuable contrast to this case on the sufficiency of basis for an expert to testify as to medical causation under the substantial factor test. The medical causation testimony in Cooper that was “wrongfully deemed inadmissible” was provided by Dr. Norm Smith, “one of the foremost experts in the world on bladder cancer [the disease at issue].” Cooper v. Takeda Pharmaceuticals America, Inc., No. B250163, slip op. at 41 (Ct. App. July 16, 2015). Plaintiffs expert in this instance testified he is “not a specialist in rectal cancer.” August 21, 2012 Deposition of David Schwartz, M.D. in Barragan v. Thomas Dee Engineering Co., San Francisco Superior Court Case No. 275713, p. 27:8-18. Thus, for all the reasons that Dr. Smith had the necessary foundation to give his medical causation opinions in Cooper, Dr. Schwartz lacks any basis for his opinions here: 1. Dr. Smith specializes in bladder cancer; Dr. Schwartz is not a specialist in colon cancer; 2. 80% of Dr. Smith’s practice is the treatment of bladder cancer patients; Dr. Schwartz has never treated a colon cancer patient; 3. Dr. Smith published over 56 peer-reviewed articles on bladder cancer causes and origins; Dr. Schwartz has never published or even done research regarding the colon; 4. Dr. Smith was trained as a leader in urology; Dr. Schwartz has never received any ' Under California Rules of Court, rule 8.1115(a), the Cooper opinion “must not be cited or relied on by a court or party in any other action, except under certain exceptions (rule 8.1115(b)) that are not applicable here. Substantive reliance on an unpublished decision therefore reversible error. Farmers Ins. Exchange v. Superior Court (Wilson) 218 Cal.App.4th 96 (2013). -l- SUPPLEMENTAL BRIEF IN SUPPORT OF JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION TESTIMONY OF DR. DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING 14271 16v.1oc Oo & training specific to the colon. Cooper, supra, slip op. at 5; May 9, 2013 Deposition of David Schwartz, M.D. in Ross v. C.C. Moore, San Francisco Superior Court Case No. 275731, pp. 27:24-30:2. Most importantly, the trial court in Cooper misapplied the substantial factor test, incorrectly finding that Dr. Smith was required to “exclude every other possible cause of [the] plaintiff's illness,” using a “patient-specific” inquiry, before he was permitted to conclude that defendant’s product was the cause of plaintiff's cancer. Cooper, supra, slip op. at 21; 23-25. Defendants in this case make no such contention. Defendants’ motion in limine shows (or alternatively, testimony and evidence at the requested Evidence Code section 402 hearing will show) that there is no substantial evidence providing Dr. Schwartz with any foundation to testify that asbestos causes colon cancer. In short, Dr. Schwartz’s testimony should be excluded for all the reasons that Dr. Smith’s testimony was admitted. II. DISCUSSION a. Dr. Schwartz Lacks the Basis to Opine on Asbestos as a Cause of Colon Cancer Plaintiff's expert Dr. Schwartz acknowledged that there are over a hundred studies examining the relationship between asbestos exposure and colon cancer, yet he failed to take all but a handful of them into account in forming his opinions. May 9, 2013 Deposition of Dr. Schwartz in Ross, pp. 27:24-39:23-40:8. Dr. Smith, in contrast, relied on 15 epidemiological studies which indicate that Actos® (defendant Takeda’s drug at issue) is associated with a significantly increased risk of bladder cancer. Cooper, supra, slip op. at 6. All of the studies — including eight studies by funded by Takeda — showed a statistically significant risk increase, meaning a relative risk of greater than 2.0. Jd. at 6-7. The Cooper court, citing Daubert v. Merrell Dow Pharmaceuticals Inc. (9th Cir. 1995) 43 F.3d 1311, notes that “[w]hen statistical analyses or probabilistic results of epidemiological studies are offered to prove specific causation ... under California law those analyses must show a relative risk greater than 2.0 to be ‘useful’ to} the jury.” Id. at 44. -2- SUPPLEMENTAL BRIEF IN SUPPORT OF JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION TESTIMONY OF DR. DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING 14271 16v.1Co eR DW FF Bw NY LY N RY NY YN NN NY See ewe Be eB Be eB ewe ec YW A A KF BH =— SF BC wMe RA AA Row NH FH SS The Takeda-funded studies showed a hazard ratio in excess of 2.5, meaning that there were well over twice as many cases of bladder cancer as expected when taking into account other risk factors. Id. at 4-7. Among the independent, peer-reviewed studies, one found the hazard ratio to be 4.3. Jd. at 7. A Takeda meta-analysis showed that patients taking higher and longer- term doses of Actos® were subject to hazard ratios ranging from 4.4 to 4.6. Id. at 13. Asa whole, the epidemiological studies Dr. Smith relied on showed Actos® exposure resulted in bladder cancer hazard ratios ranging from 2.54 to 6.97. Id. at 44. Perhaps for this reason, “Takeda acknowledged to the FDA in an email sent in May 2012 that the potential development of bladder cancer is now an identified risk of Actos®.” Id. at 7. Here, Plaintiff's sole medical causation witness Dr. Schwartz cannot identify a substantial body of peer-reviewed literature that demonstrates Plaintiff is at a significantly increased risk of colon cancer as a result of his alleged asbestos exposure. Dr. Schwartz’s opinions in this regard have been struck in California court, and he has since disavowed them. A causal link between asbestos exposure and colon cancer therefore exists in the imagination of Plaintiffs counsel, but nowhere else. b. Dr. Schwartz Fails to Take into Account Plaintiff's Other Risk Factors that are the Likely Cause of His Colon Cancer In Cooper, Dr. Smith took into account all other known or suspected risk factors in determining the cause of the plaintiff's bladder cancer, including age, sex, race, smoking, diabetes, hemoglobin A1C, occupation and exposure to electromagnetic power lines. Jd. at 10- 12. Based on the plaintiffs medical records, Dr. Smith ruled out radiation exposure, chemotherapy, infections, immunosuppression, phenacetin (a pain medication), aristolochia fungi, arsenic exposure, HPV virus, chlorinated or fluoridated water, vitamin D deficiency and gasoline or diesel fuel exposure. Jd. at 11. The trial court erroneously granted a JNOV to Takeda after striking Dr. Smith’s testimony because the expert failed to “affirmatively negate every other possible cause” of the plaintiff's bladder cancer. Jd. at 11. The appellate court found| that “[t]he trial court’s condemnation of Dr. Smith’s review of Cooper’s medical records did not 3. SUPPLEMENTAL BRIEF IN SUPPORT OF JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION TESTIMONY OF DR. DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING 14271 16v.1No point out any critical information that Dr. Smith overlooked. Rather, the trial court appeared to be speculating that some unknown exposure could be lurking in the unexamined records.” Jd. Here, Defendants submit or will submit evidence that Plaintiffs colon cancer originated in a polyp, and that asbestos exposure played no role in his colon cancer. See, e.g., Declarations of Khalil Sheibani, M.D. and Robert Morgan, M.D. But Plaintiff's expert Dr. Schwartz testified that he has no opinion on how asbestos causes colon cancer. August 21, 2012 Deposition of Dr. Schwartz in Barragan, p. 37:13-16. Dr. Schwartz acknowledged that he does not know whether Plaintiff has a history of colon cancer, if he ever suffered from polyps, or whether Plaintiff's diet. alcohol intake or smoking history contributed to his colon cancer. May 9, 2013 Deposition of Dr. Schwartz in Ross, pp. 18:9-22; 3417-35:10. Dr. Schwartz should not be permitted to speculate before the jury that Plaintiff's alleged asbestos exposure was a substantial factor in causing his colon cancer, when he has no foundation to form that opinion. c. There is Substantial Justification to Exclude Dr. Schwartz’s Medical Causation Opinions The Cooper court cites Bonds v. Roy (1999) 20 Cal.4th 140, 141, 148 for the proposition that the trial court should exclude any proferred opinion that the expert “had expressly disavowed at his deposition. Cooper, supra at 45. Here, Dr. Schwartz has testified that “I told [Brayton Purcell] that I was not comfortable supporting cases outside my areas of expertise, which are lung disease related to asbestos-related exposure — asbestos exposures.” Deposition| of David Schwartz, M.D., Spates v. Amcord, Inc., et al., Los Angeles Superior Court Case No. BC493752, Volume II, taken January 17, 2014 (emphasis added). Defendants are entitled to rely on Dr. Schwartz’s sworn testimony that he will not testify about asbestos causation as to colon cancer — particularly since he acknowledges that the subject is outside his area of expertise. Moreover, in making the above admission, Dr. Schwartz concedes the court’s ruling following his Evidence Code section 402 hearing in the Nicholson case: Furthermore, as to the foundation that Dr. Schwartz premises his opinion on, he: 4. SUPPLEMENTAL BRIEF IN SUPPORT OF JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION TESTIMONY OF DR. DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING 1427116v.1nn fF Ww A, has never treated a patient with colon cancer; B, has not done any epidemiological studies; C, has not done any animal studies; D, has not really, to any extent, surveyed the literature. Reporter’s Daily Transcript of Proceedings in Jeraldine Nicholson, et al. v. Asbestos Defendants, et al., Los Angeles Superior Court Case No. BC413220, dated June 24, 2011, at pp. 83:9-84:17, 85:24-86:1. IIL. CONCLUSION An Evidence Code section 402 hearing to examine Plaintiff's expert David Schwartz, M.D. on the basis of his opinion that Plaintiff's alleged asbestos exposures caused his colon cancer will simply confirm what Defendants have already shown in their motion in imine: Dr. Schwartz has no foundation for that testimony. The Cooper opinion, although unpublished, provides valuable examples of how sound, well-reasoned expert testimony on can meet the required evidentiary standard to demonstrate medical causation in a complex cancer case. Because Dr. Schwartz’s opinions fail on every test of that standard, they should be excluded. Dated: August 17, 2015 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By:_/s/ John E. Rosenthal William M. Hake, Esq. John E. Rosenthal, Esq. Jeremy C. Berla, Esq. Rockford M. Hearn, Esq. Attorneys for Defendants ADVANCE MECHANICAL CONTRACTORS, INC. ANDERSON, ROWE & BUCKLEY, INC. BELL PRODUCTS, INC. COLLINS ELECTRICAL COMPANY, INC. EMIL J. WEBER ELECTRICAL COMPANY, INC. “5- SUPPLEMENTAL BRIEF IN SUPPORT OF JOINT DEFENSE MOTION IN LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION TESTIMONY OF DR. DAVID SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING 1427116v.1