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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                HAKE LAW,
A PROFESSIONAL CORPORATION

William M. Hake, Esq. (State Bar No. 110956)
Melissa D. Ippolito, Esq. (State Bar No. 239811)
Kathryn L. Hoff, Esq. (State Bar No, 260420)
HAKE LAW, A PROFESSIONAL CORPORATION
655 Montgomery Street, Suite 1000

San Francisco, CA 94111

Tel: 415-926-5800

Fax: 415-926-5801

bill@hakelaw.com

melissa@hakelaw.com

jucy@hakelaw.com

FILE

Superior Court of Calif
County of San Franci

JUL 03 201

Clerk of the Co
BY: VANESSA WU
Deput}

Attorneys for Defendant
EMIL J. WEBER ELECTRIC CO.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS AND JEAN ROSS,

3 Plaintiffs,

4 vs.

C.C. MOORE & CO., ENGINEERS, et al.,

Defendants.

Case No.: CGC-10-275731

NOTICE OF ENTRY OF ORDER ON
EVIDENTIARY OBJECTIONS AND
MOTION TO STRIKE THE
DECLARATION OF DAVID
SCHWARTZ, M.D. IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO

a nw

DEFENDANT EMIL J. WEBER
ELECTRIC CO.’S MOTION FOR
SUMMARY JUDGMENT

December 17, 2010
June 10, 2013

Complaint:
Trial Date:

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on May 31, 2013 in Department 503 of the San
Francisco Superior Court, the Honorable Teri L. Jackson entered the attached order sustaining in
part and overruling in part EMIL J. WEBER ELECTRIC CO.’S Evidentiary Objections and
Motion to Strike the Declaration of David Schwartz, M.D. in Support of Plaintiffs’ Opposition to}

Defendant EMIL J. WEBER ELECTRIC CO.’S Motion for Summary Judgment.

NOTICE OF ENTRY OF ORDER ON EVIDENTIARY OBJECTIONS ‘AND MOTION TO STRIKE THE DECLARATION OF
DAVID SCHWARTZ, M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT EMIL J. WEBER ELECTRIC

CO.’S MOTION FOR SUMMARY JUDGMENT

ELECTRONICALLY

nia,
co

rt

ClerkHAKE Law,
A PROFESSIONAL CORPORATION

DR Ww & WwW

A Copy of the Court’s Order is attached hereto as Exhibit A.

Respectiully Submitted,

Dated: July 2, 2013 HAKE LAW,
A PROFESSIONAL CORPORATION

By: Yh.
William M. e, Esq.
Melissa D. Ippolito, Esq.
Kathryn L. Hoff, Esq.
Attorneys for Defendant
EMIL J. WEBER ELECTRIC CO.

NOTICE OF ENTRY OF ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF
DAVID SCHWARTZ, M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT EMIL J. WEBER ELECTRIC

€O.S MOTION FOR SUMMARY JUDGMENTEXHIBIT AHaKE Law,
A PROFESSIONAL CORPORATION

Oo Oe WD WA BR BY ON

Rw BN YM NM NM NR Rm meme tae
ec UD AH BF FP NW & S owe QD AA RB wD He Oo

William M. Hake, Esq. (State Bar No. 110956)
Melissa D. Ippolito, Esq. (State Bar No, 239811)
Kathryn L. Hoff, Esq. (State Bar No. 260420)
HAKE LAW, A PROFESSIONAL CORPORATION
655 Montgomery Street, Suite 1000

San Francisco, CA 94111

Tel: 415-926-5800

Fax: 415-926-5801

bill@hakelaw.com

mehssa@hakelaw.com

lucy@hakelaw.com

Attorneys for Defendant
EMIL J. WEBER ELECTRIC CO.

SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS AND JEAN ROSS,
Plaintiffs,

Time:
Judge:
Dept.:

Pursuant to Code of Civil Procedure section 437c, subdivisions (b)(5) and (d), and
California Rules of Court, Rule 3.1352, Defendant Emil J. Weber Electric Co. (“Defendant”)
respectfully submits the following written objections and motion to strike the Declaration of

David A. Schwartz, M.D.in Support of Plaintiffs’ Opposition to Defendant Emil J. Weber Electrid

Co.'s Mation for Summary Judgment (“Schwartz Decl.”):
“il
if

Mt
ale

Case No.: CGC-10-275731

EVIDENTIARY OBJECTIONS AND
vs. MOTION TO STRIKE THE
DECLARATION OF DAVID A.

C.C. MOORE & CO., ENGINEERS, et al., SCHWARTZ, M.D. IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO
Defendants, DEFENDANT EMIL J. WEBER
ELECTRIC CO.’S MOTION FOR
SUMMARY JUDGMENT

Hearing Date:

Complaint:
Trial Date:

ENDORSED
FILED
$ rior Cyt oF Calor

camy of San Francis

MAY 3.1 2013

CLERK OF THE COURT
By. AUOREY HUIE
Depuly Clerk

ORDER ON

May 9, 2013

9:30 am.

Hon. Teri Jackson
503

December 17, 2010
June 10, 2013

PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A SCHWARTZ
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHaKE Law,
A PROFESSIONAL CORPORATION

I Dw RB WN

Ruling on

Material Objected To Grounds for Objection the
Objection
1. | Schwartz Decl., in its entirety. Lacks foundation and is based on Sustained:

speculation, and therefore is not a —
proper matter on which expert opinion
testimony may be based. (Evid. Code

§§ 403, 405, 801, 802 & 803; see also ope
Jennings v, Palomar (2003) 114 —
Cal.App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).)
Schwartz did not personally examine
ROSS, speak to ROSS or personally
review any of ROSS’s x-rays, CT
scans, pulmonary function tests or
pathology materials. He merely relied
on written reports by other experts in
this matter. (See Declaration of
Kathryn L. Hoff (“Hoff Decl.”), €f 2-
6)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for colon cancer, (Evid. Code §
720({a).) Schwartz is not an expert on
colon cancer; he has never published
any article relating to colon cancer; he
has never participated in any
epidemiologic studies to determine
whether asbestos is a cause of
colorectal cancers; and he has never

conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 1]
2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a |

“2e
| [PROPOSEDT ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Wom

Material Objected To

Ruling on
the
Objection

Grounds for Objection

survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl., €¥{ 2-6.)

2. | Schwartz Decl., 42, p. 1:24-26.

“} graduated from medical school in
1979, and I have been board certified
in medicine since 1984, in
occupational medicine since 1986,
and in pulmonary medicine since
1988.”

sneer

Insufficient foundation laid to Sustained:
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., {J
2-6.)

ove

Information will not assist the trier
of fact. (Evid. Code § 801{a).)

Irrelevant. (Evid. Code §§ 210, 350-
35h)

Undue Prejudice. (Evid. Code §
352.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that

a

[BROBGSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A_ SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

oO 0 em NU A OH Rw

Material Objected To

Grounds for Objection

Schwartz Decl., § 3.

“I attended the University of
Rochester, and received a Bachelor
of Arts degree with Honors in
Biology in 1974. I then attended the
University of California, San Diego,
Schoo! of Medicine and obtained my
medical degree in 1979, Following
medical school, in the summer of
1979, | took an 8-week course in
tropical medicine at the Walter Reed
Army Institute of Research. The
National Science Foundation
supported me as a Public Service
Science Resident in population-based
research until June of 1980. Between
July 1980 and June 1984, I was an
intern, resident and chief resident at
Harvard School of Public Health and
took courses in epidemiology,
occupational medicine, and industrial
hygiene. | received a Master’s degree
in Public Health (MPH) in 1985 and
joined the Robert Wood Johnson
Clinical Scholars Program at the
University of Washington that
allowed me to acquire research
skills, complete my occupational
medicine residency, and
startcomplete a fellowship in

narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
yeasoning.”) The court in Jeraidine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
{See Hoff Decl., ff 2-3.)

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates, Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., J
2-6.)

Irrelevant as to foundation and/or
qualifications for determining
causation for colon cancer. (Evid.
Code §§ 210, 350-351.)

Information will not assist the trier
of fact. (Evid. Code § 801{a).)

Undue Prejudice. (Evid. Code §
352.)

MeGonnell v. Kaiser Gypsum Co,
(2002) 98 Cal.App.4th 1098, 1105-

Sustained:

a.

| [PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A SCHWARTZ,

M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

oD OD RN OH BR ow

Material Objected To

pulmonary medicine. ] was recruited
to direct the clinical program in
occupational medicine at the
University of lowa in 1988 and was
appointed Assistant Professor of
Medicine in the Pulmonary Division
in the Department of Medicine.
During that time, | collaborated with
Drs. James Merchant and Gary
Hunninghake and focused my
clinical and research efforts on
understanding the environmental and
genetic determinants of pulmonary
fibrosis and asthma. In 2000, I was
recruited to Duke University to direct
the Division of Pulmonary and
Critical Care Medicine. During that
time, | developed three NIH support
programs in environmental health
{environmental genomics,
environmental asthma, and an
environmental health sciences
research center). In 2005, I was
recruited to direct the National
Institute of Environmental Health
Sciences and the National
Toxicology Program and developed
the Genes, Environment, and Health
Initiative, and the NIH Program in
Epigenomics. In 2008, | was
recruited to the National Jewish
Center and developed the Center for
Genes, Environment, and Health
where | am currently serving as
Provost. I have co-authored 178
journal articles, 68 editorials, and $2
book chapters. A number of these
articles have focused on asbestos-
related lung disease. | have served on
a number of journal editorial boards
(Am. J. Resp. Crit. Care Med and
Am. J. Resp. Cell Mol Biol.),
numerous grant review committees,

Grounds for Objection

1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., ¥ 2-3.)

Sa

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ]
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HAKE LAW,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

and am a member of the American
Society for Clinical Investigation and
Association of American Physicians.
In addition, 1 am the recipient of the
2003 American Thoracic Society

| Scientific Accomplishment Award.”

4, | Schwartz Decl., 44.

“Since the late 1980s, I have
participated in the diagnosis of
approximately several hundred cases
of asbestos-induced lung disease that
originated at the University of lowa,
Duke University, or National Jewish
Health where I am Professor of
Medicine, Pediatrics, and
Immunology and Director of the
Center for Genes, Environment, and
Health. I have also seen several
hundred cases referred to me by
other physicians or lawyers
Tepresenting patients with this
disease. During the course of my
career, I have kept abreast of the
scientific and medical literature
regarding the diagnosis and
causation of asbestos induced lung
disease and asbestos-induced
cancers,”

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer, (See Hoff Decl., {J
2-6.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Irrelevant. (Evid. Code §§ 210, 350-
351.)

Misleading, Prejudice outweighs
probative value. (Evid. Code § 352.)
Schwartz admitted he has never
conducted survey of the available
literature regarding asbestos exposure
and colon cancer and that he has not
even read the most recent,
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer. As such he has not
“kept abreast” of the literature relating
to “asbestos-induced cancers” in terms

Ruling on
the
Objection

PPROPOSPD] ORDER ON EVIDENTIARY OBJEC TONS AND MOTION 10 STRIKE THE DECLARATION OF DAVID A SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HaKE Law,
A PROFESSIONAL CORPORATION

oC OD Om YR WR YH

Material Objected To

Grounds for Objection

Ruling on
the

Objection

of colon cancer. (See Hoff Decl., 4] 2-
6)

McGonnell v, Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, 1108-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v, Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., 9 2-3.)

Speculative. (Evid. Code §§ 702,
800.)

5. | Schwartz Decl., $5.

“Over the past 20 years, I have
clinically evaluated at least 2,000
patients with asbestos related disease
to determine the type of disease, to
determine the relationship of that
disease to asbestos exposure and to
evaluate their exposure to asbestos.”

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl.,
2-6.)

Irrelevant. As to any experience
determining the relationship, if any, of

Sustained:

Overt:

Te

PPROPOSEDY ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ]
M.D. 1N SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

Ruling on

6. | Schwartz Decl., 7 6.

“I have been qualified to testify on
the issue of diagnosis and causation
in a number of states including, but
not limited to, North Caroline, South
Carolina, Texas, Florida, Colorado,
California, and New York.”

asbestos exposure to colon cancer.
(Evid. Code §§ 210, 350-351.)

Speculative. (Evid. Code §§ 702,
800.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Misleading, Prejudice outweighs
probative value. (Evid. Code § 352.)
Schwartz does not quantify the
mumber of cases in which he has
evaluated patients with colon cancer.
His testimony indicates that it has
been a very small number of cases.
(See Hoff Decl., (f 2-6.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 CaLApp.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson y. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., ff 2-3.)

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates, Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in

Sustained:

oy

=

[PREPESED} ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. fN SUPPORT OF PLAINTIFFS* OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

———

Material Objected To

Grounds for Objection

Ruling on
the

Objection

any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 4]
2-6.)

Irrelevant as to whether Schwartz has
been qualified to testify on the issue of
diagnosis and causation in colon
cancer cases, (Evid. Code §§ 210,
350-351.)

Lacks foundation as no evidence is
cited in support of these claims.
(Evid. Code §§ 403, 405, 802 & 803.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Misleading, Prejudice outweighs
probative value. (Evid. Code § 352.)
Schwartz was disqualified from
testifying as to causation for colon
cancer in Jeraldine Nicholson v.
Asbestos Defendants, Los Angeles
Superior Court Case No. BC413220.
(See Hoff Decl., 9] 2-6.)

McGonnell v, Kaiser Gypsum Co.
(2002) 98 Cal. App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an

9.

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS" OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

OO MR HR Rw Nm

RR NON Re
ON = 5S Owe DUDA A & BW HY &

28

“... having reviewed medical records
from the plaintiff, Robert Ross,
including his pathology and
radiology reports, and including
pulmonologist Alvin J. Schonfeld,
M.D.’s report dated September 16,
2009. I conclude that Mr. Ross has
asbestosis, as well as has developed
colon cancer which was in part
caused due to his exposure to
asbestos.”

Ruling on

Material Objected To Grounds for Objection the
Qbjection
expert on causation as to colon cancer.
(See Hoff Decl., 2-3.)
7. | Schwartz Decl., $7, p. 3:19-22. Lacks foundation and is based on Sustained:

speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
§§ 403, 405, 801, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal-App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).)
Schwartz did not personally examine
ROSS, speak to ROSS or personally
review any of ROSS’s x-rays, CT
scans, pulmonary function tests or
pathology materials. He merely relied
on written reports by other experts in
this matter. (See Declaration of
Kathryn L. Hoff (“Hoff Decl.”), 9¥ 2-
6.)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for colon cancer. (Evid. Code §
720(a).) Schwartz is not an expert on
colon cancer; he has never published
any article relating to colon cancer; he
has never participated in any
epidemiologic studies to determine
whether asbestos is a cause of
colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 4]
2-6.)

Speculative regarding diagnosis of
asbestosis as Schwartz did not make
this diagnosis on his own, but merely
relied up the diagnosis of Dr.

opp

10

PPROPESED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A, SCHWARTZ
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

co OU me YD OH BR Wwe

Material Objected To

Grounds for Objection

Ruling on
the

Objection

Schonfeld, and regarding the issue of
colon cancer caused by asbestos
exposure as Schwartz is not qualified
to render that opinion. (Evid. Code §§
702, 800.) (See Hoff Decl., fff 2-6.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based, (Evid. Code
$§ 403, 405, 802 & 803.)

Undue Prejudice, Especially as
Plaintiffs do not have a claim for
asbestosis in this matter, pursuant to
this Court’s order denying Plaintiffs’
motion to file a third amended
complaint as to asbestosis. (Evid.
Code § 352.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

McGonnell v. Kaiser Gypsum Co,
(2002) 98 Cal. App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v, Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an

expert on causation as to colon cancer.

(See Hoff Decl., 4 2-3.)

“Le

“FPROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 70 STRIKE THE DECLARATION OF DAVID A. SCHWARTZ]
M.D. 1N SUPPORT OF PLAINTIFES' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

eo me WN DW B® WN

MOR BM NR NM NY NR Rm ee
Se UA A € OH &§— S Cw HY DH B® BNR mM

Ruling on

“Additionally, people, such as Mr.
Ross, with asbestos exposure with an
additional history of tobacco
exposure, have a significantly higher
incidence of cancer complications
than with either asbestos or tobacco
exposure alone, as the combined
increased risk of these two
carcinogens is multiplicative.”

qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer, (See Hoff Decl.,
2-6.)

Lacks foundation and is based on
speculation, as no evidence or
medical literature is cited in support of
these claims. Therefore it is not a
proper matter on which expert opinion
testimony may be based (Evid. Code
$§ 403, 405, 802 & 803.)

Irrelevant as it does not relate to
colon cancer specifically. (Evid. Code
§§ 210, 350-351.)

Speculative, (Evid. Code §§ 702,
800.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal. App.4th 1098, 1105-
1106 (“The évidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion

Material Objected To Grounds for Objection the
Objection
8. | Schwartz Decl., 7, p.3:22-26 Insufficient foundation laid to Sustained:

Over

12

FEROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ
M.D. INSUPPORT OF PLAINTIFES” OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake LAW,
A PROFESSIONAL CORPORATION

Oo OC SW HA

10
ll
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Material Objected To

Grounds for Objection

Ruling on
the
Objection

jo

_.

with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v, Asbestos Defendants,
Los Angeles Superior Court Case No.
BC41 3220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., ff] 2-3.)

Misleading, Undue prejudice.
Cigarette smoking is an alternative
tisk for colon cancer that must be
eliminated in order to prove more
likely that not asbestos caused
Plaintiff's colon cancer. (Evid. Code
§ 352.) (See Jones v, Ortho
Pharmaceutical Corp. (1985) 163
Cal.App.3d 396, 403.)

Schwartz Decl., | 8, p. 3:27-4:2

“It is my opinion that every exposure
to asbestos above background level
contributed to cause Mr. Ross’s
asbestosis and colon cancer because
itis well understood that asbestos
related diseases are dose-response
related diseases and it is impossible
to show exactly which exposures to
asbestos caused the disease.”

Lop

Vague, Overbroad, Misleading.
Although asbestos related diseases
might be dose-response diseases, there
is no foundation laid, or evidence
supporting the idea that colon cancer
is an “asbestos related disease,”

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., "J
2-6.)

di

7

| [RRDEDSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,

M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

Ruting on
the
Objection

Lacks foundation and is based on
speculation, as no evidence or
medical literature is cited in support of
these claims. Therefore it is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
§§ 403, 405, 802 & 803.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Undue Prejudice (Evid. Code § 352.)

| Schwartz Decl., 4 8, p. 4:2

“Asbestos fibers are complete human
carcinogens.”

Insufficient foundation laid to
qualify Schwartz as an expert on what
constitutes a carcinogen, as he is not
an oncologist or pathologist.
Schwartz does not have the special
knowledge, skill, experience, or
training relating to the subject matter.
(Evid. Code $§ 720, 801.) (See Hoff
Decl., $4] 2-6.)

Trrelevant as to whether ROSS's
colon cancer was caused by asbestos
exposure. (Evid. Code §§ 210, 350-
351.)

Speculative as not all asbestos fibers
cause disease and therefore not all
asbestos fibers are carcinogens.
(Evid. Code §§ 702, 800.)

Improper & Unreliable Basis of
Expert Opinion as no basis is
provided. (Evid. Code § 801 (b).)

Lacks foundation and is based on
speculation, as no evidence or
medical literature are cited in support
of this bold statement and therefore is
not a proper matter on which expert
opinion testimony may be based.

Sustained:

ovr

-i4-

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A: SCHWAR’ aA

M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Co © 2 DA HW RF wy =

Roe; RNR NR RNR Rm em et
owe A HF FF YO YN |= GS CGC we ID DH BR BW NH =

Ruling on

“Any fiber contacting a cell may
cause genetic damage, may induce
inflammatory reactions, or may
cause other biochemical reactions,
including those which lead to the
development of asbestosis and colon
cancer. After accounting for
sufficient latency, these diseases
result from cumulative exposure to
asbestos. In individuais who develop
these diseases, such as Mr. Ross,
every occupational or para-
occupational exposure to asbestos
plays a role in causing the disease.”

qualify Schwartz as an expert on how
an asbestos fiber “may cause” genetic
damage, inflammatory reactions or
other biochemical reactions which
lead to colon cancer. No foundation
laid for the premise that asbestos
fibers actually do cause or contribute
to colon cancer. Schwartz does not
have the special knowledge, skill,
experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 9
2-6.)

Irrelevant as to whether ROSS’s
colon cancer was caused by asbestos
exposure. (Evid. Code §§ 210, 350-
351)

Speculative as not all asbestos fibers
cause disease and no evidence is cited
supporting a causal link between
asbestos exposure and colon cancer
(Evid. Code §§ 702, 800.)

Improper & Unreliable Basis of
Expert Opinion as no basis is

Material Objected To Grounds for Objection the
Objection
T
(Evid. Code §§ 403, 405, 802 & 803;
see also Jennings v. Palomar (2003)
114 Cal.App.4th 1108, 1117 (an
expert opinion is worth no more than
the reasons upon which it rests.”).)
paneer
IL} Schwartz Decl., 4 8, p. 4:6-11 Insufficient foundation laid to Sustained:

oy

|

4

w15=

[PROPOSES] ORDER ON EVIDENTIARY OBJEC TIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,

M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HAKE Law,
A PROFESSIONAL CORPORATION

Co 6 MD SD Hh & WN

Material Objected To

Grounds for Objection

provided. (Evid. Code § 801 (b).)

Lacks foundation and is based on
speculation, as no evidence or
medical literature are cited in support
of this bold statement and therefore is
not a proper matter on which expert
opinion testimony may be based.
(Evid. Code §§ 403, 405, 802 & 803;
sce also Jennings v. Palomar (2003)
114 Cal.App.4th 1108, 1117 (“an
expert opinion is worth no more than
the reasons upon which it rests.”).)

Ruling on
the

Objection

12.) Schwartz Decl., § 9, p. 4:14-20
“Dr. Morgan attested that there is
there is no causal relationship
between that the inhalation or
ingestion of asbestos is a
contributing factor in the
development, or even risk factor for
the development, of colon cancer.
Morgan Decl. at € 5. However, this is
an inaccurate conclusion that is not
supported by the breadth of scientific
literature on the topic (beyond that
which Dr. Morgan has evidently
been paid to generate). For the
reasons stated in my declaration, I
therefore also disagree with Dr.

é a A

a 6

6 a
a “”

oO
a
®

at

QO:
i Os
no®

MW) O

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to
colon cancer; he has never
participated in any epidemiologic
studies to determine whether
asbestos is a cause of colorectal
cancers; and he has never
conducted a survey of the available
literature regarding asbestos
exposure and colon cancer. As he
has not conducted a survey of the
available literature and has admitted
that he has not read the most recent,
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer, Schwartz is not
qualified to opine on what is
“supported by the breadth of
scientific literature on the topic”.
(See Hoff Decl., # 2-6.)

Declarant’s opinion is not based on

Overruled:

“16-

4

FPRROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIEFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

te

oO 0 8 YW DH BP Ww

Material Objected To Grounds for Objection the
Objection
{J |

matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl., 2-6.)

Misleading. Morgan’s declaration
states that he agrees with the 2006
IOM Report that there is insufficient
evidence to establish a causal
relationship between asbestos and
colon cancer. Therefore this is not a
direct contradiction and does not
create a triable issue.

Speculative as Schwartz disregards
the 2006 IOM Report entirely,
including Dr. Morgan’s reliance on
such document. (Evid. Code $§ 702,
800.)

Improper & Unreliable Basis of
Expert Opinion. (Evid. Code § 801
(b).)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
$§ 403, 405, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal.App.4th 1108, 1117 (‘an expert
7

| TPRERSSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. EN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

eo wn A A BR WN

Rom RN RM NR RN Beem
Se a aA A Be OWN = SF 0 ew NY Dn we WN KH Oo

Ruling on

in the limited colon tissue that he
was sent, that the colon cancer
cannot be caused by asbestos
exposure. Sheibani Decl. at ff 5-6.
Here again, though I have no quarrel
with his pathologie finding, his
conclusion regarding causation is not
supported by the medical literature
on the topic and does not even
correctly represent the criteria for
establishing the link between
asbestos exposure and lung cancer
from which Dr. Sheibani then
extrapolates his conclusions about
colon cancer. I note that Dr. Sheibani
does not cite to a single article or
book chapter concerning the
relationship between asbestos and
colon cancers in his declaration.”

skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon.
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. Furthermore,
Schwartz is not a pathologist. As he
has not conducted a survey of the
available literature and has admitted
that he has not read the most recent,
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer, Schwartz is not
qualified to opine on what is
supported by the medical literature.
(See Hoff Decl., J 2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and

Material Objected To Grounds for Objection the
{ Qhiection
opinion is worth no more than the
| reasons upon which it rests.”).
13) Schwartz Decl., $9, p. 4:21-28 Insufficient foundation laid to Sustained:
qualify as an expert on matters to iY
“Dr. Sheibani concludes that based which testimony relates. Schwartz
upon the absence of asbestos bodies | does not have the special knowledge, Overruled:

18

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,

M.D. [N SUPPORT OF PLAINTIFES' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Cm NADH RB we em

RoR WM NH NR BR RR meme me
e2 AAA FB Bb Be SF BG we WA DH BB HY Ye o

Material Objected To Grounds for Objection the

scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to contro! for or
take into account other potential risks
factors for colon cancer. Schwartz
cites no articles, studies or chapters in
support of his opinion that Dr.
Sheibani is using the incorrect criteria
for establishing a link between.
asbestos exposure and hung cancer.
Furthermore, Schwartz himself has
relied on the same criteria in regard
to establishing a link between
asbestos exposure and colon cancer.
{See Hoff Decl., §]] 2-6.)

Misleading. Sheibani’s declaration
states that he bases his opinion “on
established scientific facts in medical
literature, his own research in
oncologic pathology, objective
pathologic findings in the histologic
sections prepared from Mr. Ross’
colon tissue that showed
transformation of a benign polyp to
cancer, as well as the absence of
asbestos bodies in special stain studied
performed on his colon tissue.”
(Sheibani Decl., | 6.) He does not
only base his opinion on the absence
of asbestos bodies. Therefore this is
not a direct contradiction and does not
create a triable issue. Furthermore,
Sheibani does cite to literature
regarding the relationship between
polyps and colon cancer, which is the
subject on which he is opining. As
Schwartz does not cite to any source
regarding the “correct” criteria for
establishing a link between asbestos
exposure and colon cancer, he does
not directly contradict Sheibani’s

method or shift the burden back to

-19-
PROPOSED] ORDER ON EVIDENTIARY OBIECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS" OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHARE LAW,
A PROFESSIONAL CORPORATION

_

ou wm NKR OH RB YW NY

Material Objected To

Grounds for Objection

14,

show Sheibani is wrong.

Speculative. (Evid. Code §§ 702,
800.)

Improper & Unreliable Basis of
Expert Opinion. (Evid. Code § 801
).)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid, Code
$§ 403, 405, 802 & 803, see also
Jennings v. Palomar (2003) 114
Cal.App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).

Schwartz Decl., 9, p. 4:28-5:2.

“Based on my above-mentioned
experience, training, and historical
review, there are various articles that
Thave studied regarding the
association between asbestos
exposure and colon cancer.”

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl. {J
2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)

Sustained:

-20-

{BROPOSEDT ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

oS 2 Om IN A Hw BF wy

Material Objected To

Grounds for Objection

Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl., #¥ 2-6.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. The “various
articles” Schwartz has listed do not
encompass a review of the current
available literature. (Evid. Code §§
403, 405, 802 & 803.) Expert
conclusions based on assumptions not
supported by the evidentiary record or
factors which are speculative, remote,
or conjectural have no evidentiary
value. (Pacific Gas & Electric Co. v.
Zuckerman (1987) 189 Cal.App.3d
1113, 1135.)

Misleading. Schwartz does not have
“experience, training, and historical
teview” in regard to determining
causation for colon cancer. (See Hoff
Decl., (J 2-6.)

Irrelevant. (Evid. Code §§ 210, 350-
351.)

Speculative. (Evid. Code §§ 702,
800.)

McGonnell v. Kaiser Gypsum Co.

cL

2

Objection

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ]
M.D. IN SUPPORT OF PLAINTIFFS” OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

Co CO OM HRD WH RB BD

pet et

Material Objected To

Grounds for Objection

(2002) 98 Cal.App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., ¥f 2-3.)

Information will not assist the trier
of fact. (Evid. Code § 801{a).)

Undue prejudice. (Evid. Code §
352.)

15]

Schwartz Decl., 4 9, p. 5:3-7

“Bach and every one of these peer
reviewed articles in the attached
Annotated Bibliography of Colon.
Cancer Articles is independently a
basis for my conclusion that it is
generally accepted in the medical
community that exposure to asbestos
can and does cause asbestos induced
cancers of the G-l track, including
Mr. Ross’s asbestos induced colon
cancer.”

i

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special. knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to
colon cancer; he has never
participated in any epidemiologic
studies to determine whether
asbestos is a cause of colorectal
cancers; and he has never
conducted a survey of the available
literature regarding asbestos
exposure and colon cancer. As he
has not conducted a survey of the
available literature and has admitted
that he has not read. the most recent,
independent, comprehensive review of
the existing medical and scientific

Sustained:

ovghied

nnn

3.

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

co 6 6 WD WR BR BH NOH

Material Objected To

Grounds for Objection

literature regarding asbestos exposure
and colon cancer, Schwartz is not
qualified to opine on what is
“generally accepted in the medical
community” in relation to cancers
of the G-I track. (See Hoff Decl., {J
2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive.
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl., 4 2-6.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. Schwartz has
not conducted a survey of the
literature or even read the most recent
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer. (Evid. Code §§ 403,
405, 802 & 803.) Expert conclusions
based on assumptions not supported
by the evidentiary record or factors
which are speculative, remote, or
conjectural have no evidentiary value.
(Pacific Gas & Electric Co. v.

23-

[SROPESED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M_D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHaKE Law,
A PROFESSIONAL CORPORATION

ne

oo eC YT KD RH Bw! WY

Material Objected To

Grounds for Objection

Ruling on
the
Objection

Zuckerman (1987) 189 Cal.App.3d
1113, 1135.)

Irrelevant. The articles Schwartz
cites do not control for other risk
factors for colon cancer. (Evid. Code
§§ 210, 350-351.)

Speculative. (Evid. Code §§ 702,
800.)

McGonneil v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., #9 2-3.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Undue prejudice. (Evid. Code §
352.)

16, Schwartz Decl., | 10

“Based on my own evaluation of
medical records, pathology and
radiology reports in this case, my
own training, education, and
experience, and the references also
cited above, | conclude exposure to
asbestos, above background, given
sufficient minimum latency, was a

Lacks foundation and is based. on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
§8§ 403, 405, 801, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal.App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).)
Schwartz did not personally examine

1

|
Sustained:

led:

a

(PROPOSED) ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ)
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

CC me NAH RR WN

tat meet
IY A Ww RF Bw yD

18

Material Objected To

Grounds for Objection

Ruling on
the

Objection

|
substantial contributing factor to
both Mr. Ross’s asbestosis and his
colon cancer, this exposure was
continuous, above background levels
and substantial.”

ROSS, speak to ROSS or personally
review any of ROSS’s x-rays, CT
scans, pulmonary function tests or
pathology materials. He merely relied
on written reports by other experts in
this matter. (See Declaration of
Kathryn L. Hoff (“Hoff Decl.”), (9 2-
6.)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for colon cancer. (Evid. Code §
720(a).) Schwartz is not an expert on
colon cancer; he has never published
any articl