On December 17, 2010 a Motion,Ex Parte 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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CO SK RR BR 14 15 SONJA E. BLOMQUIST, SBN #099341, sblomquist@lowball.com PAMELA Y. LOUIE, SBN #259391, plouie@iowball.com LOW, BALL & LYNCH ho ELECTRONICALLY 505 Montgomery Street, 7" Floor San Francisco, California 94111-2584 sopekr IL ED. Telephone (415) 981-6630 County of San Francisco Facsimile (415) 399-1506 AUG 30 2013 Attorneys for Defendant celerk ofthe Court GIAMPOLINI & COMPANY Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731 Plaintiffs, MOTION IN LIMINE NO. 6 GIAMPOLINI & COMPANY’S MOTION IN LIVMIINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF ASBESTOS CAN CAUSE OR INCREASE THE RISK OF ASBESTOS-RELATED DISEASE ve C.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit | attached to the Summary Complaint herein; and DOES 1-8500, Defendants. Judge: Hon. Teri L. Jackson Dept.: 503 Trial Date: September 9, 2013 Complaint Filed: December 17, 2010 ee Ne el a a Nall! Nl L INTRODUCTION Defendant GIAMPOLINI & COMPANY (hereinafter "Giampolini") hereby moves the Court for an Order excluding any purported expert testimony or other evidence that may be offered by Plaintiffs that a “single fiber” of asbestos can cause, or increase the risk of, mesothelioma, lung cancer, or other asbestos related disease. This motion is based on the following grounds: 1) Itis irrelevant to Plaintiffs’ claims which are based entirely on the alleged "cumulative effect" of all asbestos exposures, not on the effect of a single fiber; -l- \\Server?igen-inst2040\SF2006\G MP MIL s\MUl. 6 ~ Single Piber.docwm 2) Plaintiffs will not and cannot present evidence that a single fiber from any particular product caused or contributed to Plaintiff Robert Ross’ alleged asbestos related disease; 3} Such evidence is speculative and lacks any scientific or factual basis. 1n fact, all peer reviewed epidemiological studies to date refute this unfounded theory; 4) The introduction of such evidence asks the jury to speculate, in the absence of any evidence, that a single fiber from a particular defendant’s product might have caused Robert Ross to sustain some form of asbestos related disease; and 5) The potential prejudice from such evidence far outweighs any possible probative value under Evidence Code 352. Il. RELEVANT FACTS Tn the instant case, Plaintiffs seek to hold Giampolini liable by claiming that exposure to asbestos from Giampolini contributed to the “aggregate dose” of asbestos, and that it was the cumulative effect of that aggregate dose that caused Robert Ross to develop an asbestos related disease. There is an inherent contradiction between Plaintiffs’ reliance on the "aggregate dose" theory of causation of an asbestos related disease, and the argument that a single exposure to a single fiber alone can cause disease. Plaintiffs should not be permitted to introduce expert testimony or other evidence that even a "single fiber" of asbestos can increase the risk of mesothelioma, lung cancer or other asbestos related disease, yet at the same time argue to the jury that the numerous defendants named in this case are all responsible for Mr. Ross’ alleged exposures because of the cumulative effect of their products. Because such evidence is entirely inconsistent with Plaintiffs’ attempt to hold all defendants liable based on the alleged cumulative effect of many exposures, and asks the jury to speculate about the actual effect of each single fiber inhaled by Mr. Ross during his lifetime, such evidence should be excluded from trial. oD “GIAMPOLINI'S MIL TO PRECLUDE TESTIMONY OR EVIDENCE RE SINGLE FIBER THEORY \Server?\gen-ins\2040\SF 1006\GMP MILs\MIL 6 - Single Fiber, deeiti, ARGUMENT A. The Court May Exclude Prejudicial Evidence In Advance Of Trial by Way Of An In Limine Motion. The Court has the inherent power to grant a motion in limine to exclude any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. Although not expressly authorized by statute, a motion in limin is recognized as.a proper request, which the trial court has the inherent power to entertain and ‘| grant. Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444,451. A motion in limine outside the presence of the jury is the proper method of objecting to evidence which counsel believes the epposing party will attempt to introduce into evidence. It is noted that "the advantage of such motions is to avoid the obviously futile attempt to “unring the bel!" in the event a motion to strike is granted in the proceedings before the jury. Hyatt v. Sierra Boat (1978) Cal.App.3d 325, 337. In the present case, Giampolini seeks a motion in limine to prevent the admission of evidence that a "single fiber" of asbestos can cause, or increase the risk of, mesothelioma, lung cancer, or other asbestos-related disease. As set forth below, the evidence is highly questionable and irregular and no expert was designated to testify about that particular issue. As such, it has a substantial likelihood of creating undue bias against all defendants while simply confusing the jury. Therefore, all references to such testimony must be excluded. B. Plaintiff's Burden of Proof as to Causation. In an asbestos exposure case that squarely addressed the Plaintiff's burden of proving that his claimed disease resulted from a particular exposure, the California Supreme Court acknowledged that it is virtually impossible to prove that any single fiber of asbestos caused or contributed to the disease. Accordingly, the Court established a standard of causation in asbestos cases based on total exposure, rather than evidence as to the actual effect of any particular fiber or product: ~3~ GIAMPOLINI’S MIL TO PRECLUDE TESTIMONY OR EVIDENCE RE SINGLE FIBER THEORY \Server?\gen-ins\2040\8F)006\GMP MILs\MIL 6 - Single Fiber.docPlaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber... . Instead, we can bridge this gap in the humanly knowable by holding that plaintiffs may preve causation im asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth. |- Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 976-77 (emphasis added). Under this standard, the Plaintiff must prove actual exposure to asbestos from a particular defendant’s product, and further must quantify the “aggregate dose" of exposure that Plaintiff's claim caused Robert Ross’ disease. Subsequent cases have clarified that under the Rutherford standard, the "mere possibility of exposure" does not satisfy this standard or create a triable issue of fact. McGonnell v. Kaiser Gypsum Co, (2002) 98 Cal. App. 4th 1098, 1105. Moreover, although the degree of exposure necessary to satisfy the substantial factor test is ultimately a jury question, an exposure that is "infinitesimal," “negligible," or “theoretical” cannot satisfy the substantial factor test. Bockrath v. Aldrich Chem. Co. (1999) 21 Cal. 4th 71,79 {internal quotations and citations omitted). Thus, the law is well-defined with regard to a Plaintiff's burden of proving causation in asbestos exposure cases. Plaintifis must, at a minimum, establish an exposure to asbestos from a particular defendant’s product (i.., product identification), and must further prove that such exposure was of sufficient length, frequency, proximity, and intensity that, under the circumstances of the case, it will support an expert opinion that such exposure was a substantial factor in causing the disease "to a reasonable medical probability." Rutherford. supra, 16 Cal. 4th 975-76 (noting that the causation question "takes into account the length, frequency, proximity and intensity of exposure" as well as other factors). “GIAMPOLINDS MIL TO PRECLUDE TESTIMONY OR EVIDENCE RE SINGLE FIBER THEORY \lerver/\gerins\2040SF 1OOAGMP MILSIMEL. 6 - Single Fixer doww i4 15 c. The "Single Fiber" Argument Contradicts the Mandate of the Rutherford Court and the Language of the Newly-Revised CACTI Instructions, while Simply Confusing and Misleading the Jury The law requires Plaintiff to prove the frequency, regularity and proximity of Plaintiff Robert Ross’ exposure to a particular defendant’s product. Thus, it is not a single fiber or a lone exposure that culminates in the disease process - - it is the entirety of the circumstances of exposure over a long period of time, as California courts have recognized time and again: Many factors are relevant in assessing the medical probability that an exposure contributed to plaintiff's asbestos disease, Frequency of exposure, regularity of exposure, and proximity of the asbestos product to plaintiff are certainly relevant... Additional factors may also be significant in individual cases, such as the type of asbestos product to which plaintiff was exposed, the type of injury suffered by plaintiff, and other possible sources of plaintiff's injury. Lineaweaver v. Plant Insulation Co. (1995) 31 Cal. App.4th 1409, 1416-17 (emphasis added). Despite the clear mandate of these cases, plaintiffs here may seek to introduce evidence that a "single fiber" of asbestos can cause mesothelioma, lung cancer or asbestos-related disease. Plaintiffs seek to have the jury believe that a single, negligible contact with a particular defendant's product can cause or increase the risk of asbestos-related disease. In short, Plaintiffs will attempt to circumvent their burden of proof relating to causation without introducing proof of either (1) actual causation from any such single fiber; or (2) total exposure to the product sufficient to constitute a substantial factor in increasing the risk of developing disease. The California Supreme Court and numerous appellate courts have repeatedly ruled on this issue, holding that the single fiber argument is speculative and lacks scientific basis. They recognize that the biological mechanisms by which asbestos leads to mesothelioma or lung cancer unknown and the subject of scientific debate. Rutherford, supra, 16 Cal. 4th at 974-75. The theory that a single fiber causes mesothelioma, lung cancer or other asbestos-related disease is just that—a theory. Id. It is equally likely, if not more likely, that disease results from the cumulative effect of millions of fibers—to which the contribution of any single fiber would be infinitesimal and theoretical, not a “substantial factor.” Id. The newly-revised CACI jury * se * 5 =. tana sane GIAMPOLINI’S MIL TO PRECLUDE TESTIMONY OR EVIDENCE RE SINGLE FIBER THEORY \ Server? \gen-ins\2040\SF 1006\GMP MILs\MIL 6 - Single Fiber.docinstructions on causation mirror this language. As Plaintiffs are pursuing claims against all defendants based on their alleged contribution (the “aggregate dose" of asbestos to which Robert Ross was exposed) and since the effect of any ingle fiber is unknown and unknowable, Plaintiffs should not be allowed to mislead the jury about the possible effect of a single fiber. The danger of jury speculation from such evidence is any single fiber is not at issue in this case, the prejudicial effect of such evidence far outweighs any probative value and will simply confuse the issues and mislead the jury. Iv. CONCLUSION Based on the above, Giampolini respectfully requests that this motion in limine be granted and that the Court probibit all witnesses and attorneys from making any references regarding the “single fiber theory" in the presence of the jury. Dated: August “8 2013 LOW, BALL & LYNCH By: i - now ce SONTA E BLOMOUIST PAMELA Y. LOUIE Attorneys for Defendant GIAMPOLINI & COMPANY “66 \ServerTigen-ins\ZO40\SF 100S\GMP MILS\MIL 6 - Single Fiber.doc