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

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                                HAKE Law,
A PROFESSIONAL CORPORATION

w

William M. Hake, Esq. (State Bar No. 110956)

Melissa D. Ippolito, Esq. (State Bar No. 239811) ELECTRONICALLY
Kathryn L. Hoff, Esq. (State Bar No. 260420) FILE
HAKE LAW, A PROFESSIONAL CORPORATION Superior Court of Califarnia,
655 Montgomery Street, Suite 1000 County of San Franci§co
San Francisco, CA 94111 JUL 03 2013
pee AS 6-5 800 Clerk of the Court
‘ax: 415-926-5801 BY: VANESSA WU
bill@hakelaw.com Deputy Clerk

melissa@hakelaw.com
lucy@hakelaw.com

Attorneys for Defendant
BELL PRODUCTS, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731
Plaintiffs, NOTICE OF ENTRY OF ORDER ON
EVIDENTIARY OBJECTIONS AND

VS. MOTION TO STRIKE THE

DECLARATION OF DAVID
C.C. MOORE & CO., EERS, et al.,
MOORE & CO., ENGIN ae SCHWARTZ, M.D. IN SUPPORT OF

Defendants, PLAINTIFFS’ OPPOSITION TO
DEFENDANT BELL PRODUCTS, INC.’S
MOTION FOR SUMMARY JUDGMENT

Complaint: December 17, 2010
Trial Date: June 10, 2013

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 BELL PRODUCTS, INC.’S Evidentiary Objections and Motion to
Strike the Declaration of David Schwartz, M.D. in Support of Plaintiffs’ Opposition to
Defendant BELL PRODUCTS, INC.’S Motion for Summary Judgment.

“le

NOTICE OF ENTRY OF ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION oH

DAVID SCHWARTZ, M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT BELL PRODUCTS, INC.’S
MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

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

Respectfully Submitted,

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

By: Kethuyn Atteys

William M. hee Esq.
Melissa D. Ippolito, Esq.
Kathryn L. Hoff, Esq.
Attorneys for Defendant
BELL PRODUCTS, INC.

MOTION FOR SUMMARY JUDGMENTEXHIBIT AHAKE 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) ENDORSED
HAKE LAW, A PROFESSIONAL CORPORATION sFadicodt feats

655 Montgomery Street, Suite 1000 ony of San Beenie

San Francisco, CA 94111 ons

Tel: 415-926-5800 MaY¥ 31 20i5

Fax: 415-926-5801 /
aE aa CLERK OF THE COURT
melissa@hakelaw.com - AUDSEY HUE
lucy@hakelaw.com oy: BEY Moi Bak

Attorneys for Defendant
BELL PRODUCTS, INC.

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

ROBERT ROSS AND JEAN ROSS,

Plaintiffs,
vs.
DECLARATION OF DAVID A.
C.C. MOORE & CO., ENGINEERS, et al., SCHWARTZ, M.D. IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO
Defendants. DEFENDANT BELL PRODUCTS, INC.’S

MOTION FOR SUMMARY JUDGMENT
Hearing Date: May 9, 2013

Time: 9:30 a.m.

Judge: Hon. Teri Jackson
Dept.: 503

Complaint: December 17, 2010
Trial Date: June 10, 2013

Pursuant to Code of Civil Procedure section 437c, subdivisions (b)(5) and (d), and
California Rules of Court, Rule 3.1352, Defendant Bell Products, Inc. (“Defendant”) respectful.
submits the following written objections and motion to strike the Declaration of David A.
Schwartz, M.D.in Support of Plaintiffs‘ Opposition to Defendant Bell Products, Inc.'s Motion for|
Summary Judgment (“Schwartz Decl.”):
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‘EROPOSED] 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

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Ruling on

Material Objected To Grounds for Objection the
Objection
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
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.”), ff 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.)

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

2

"JERSFOSED] ORDER ON EVIDENTIARY OBIECTIONS AND MOTION TO STRIRE THE DECLARATION OF DAVID A SCHWARTZ,

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

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Material Objected To

Grounds for Objection

Ruling on
the
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
Deel., 2-6.)

Schwartz Decl., § 2, p. 1:24-26.

“IT 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.”

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., ff
2-6.)

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

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

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

TBROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTE]

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

Ruling on
Material Objected To Grounds for Objection the
Qbiection
—
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.)
4 ———}
3. | Schwartz Decl., 4 3. Insufficient foundation laid to Sustained:
qualify as an expert on matters to —
“I attended the University of which testimony relates. Schwartz
Rochester, and received a Bachelor does not have the special knowledge,
of Arts degree with Honors in skill, experience, or training regarding Ovprtuled:
Biology in 1974. I then attended the | causation as to colon cancer. (Evid. —_—
University of California, San Diego, | Code §§ 720, 801) Schwartz is not an
School of Medicine and obtained my | expert on colon cancer; he has never
medical degree in 1979, Following published any article relating to colon
medical school, in the summer of cancer; he has never participated in
1979, I took an 8-week course in any epidemiologic studies to
tropical medicine at the Walter Reed | determine whether asbestos is a cause
Army Institute of Research. The of colorectal cancers, and he has never
National Science Foundation conducted a survey of the available
supported me as a Public Service literature regarding asbestos exposure
Science Resident in population-based | and colon cancer. (See Hoff Decl., ff
research until June of 1980. Between | 2-6.)
July 1980 and June 1984, I was an
intern, resident and chief resident at | Irrelevant as to foundation and/or
Harvard School of Public Health and | qualifications for determining
took courses in epidemiology, causation for colon cancer. (Evid.
occupational medicine, and industrial | Code §§ 210, 350-351.)
hygiene. I received a Master’s degree
in Public Health (MPH) in 1985 and | Information will not assist the trier
joined the Robert Wood Johnson of fact. (Evid. Code § 801(a).)
Clinical Scholars Program at the
University of Washington that Undue Prejudice. (Evid. Code §
allowed me to acquire research 352.)
skills, complete my occupational
medicine residency, and McGonnell v. Kaiser Gypsum Co,
start/complete a fellowship in {2002) 98 Cal.App.4th 1098, 1105-
(PRORSSED] ORDER ON EVIDENTIARY OBJECTIONS AND STON TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,

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

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Material Objected To

Grounds for Objection

pulmonary medicine. I 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, | 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, I was
recruited to the National Jewish
Center and developed the Center for
Genes, Environment, and Health
where I am currently serving as
Provost. I have co-authored 178
journal articles, 68 editorials, and 52
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,

1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
harrow 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 Deel., f 2-3.)

L

5.

[EROPOSED) 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

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Material Obiected To Grounds for Objection the

Qbiection

and am a member of the American

Society for Clinical Investigation and

Association of American Physicians.

In addition, | am the recipient of the

2003 American Thoracic Society

Scientific Accomplishment Award.”

Schwartz Decl., ¥ 4. Insufficient foundation laid to Sustained:

qualify as an expert on matters to —

“Since the late 1980s, I have which testimony relates. Schwartz

participated in the diagnosis of does not have the special knowledge,

approximately several hundred cases | skill, experience, or training regarding Ovepptiled

of asbestos-induced lung disease that | causation as to colon cancer. (Evid.

originated at the University of lowa, | Code §§ 720, 801) Schwartz is not an

Duke University, or National Jewish | expert on colon cancer; he has never

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
representing 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.”

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.)

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 |
be
Te

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

a aA WH

Material Objected To

Grounds for Objection

Ruling on

the

Qbjection

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

McGonnell v. Kaiser Gypsum Co.
(2062) 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
teasoning.”) 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.)

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

S. | Schwartz Decl., 4 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:

7

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVIDA. SCTIW.

M.D, IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ARTZ]Hake LAW,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

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
number 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 Deel., {J 2-6.)

McGonnell y, 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 y. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., J 2-3.)

Ruling on
the
Objection

6. | Schwartz Decl., | 6.

“T 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.”

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: |

onghat

a

[PROPOSED] ORDER ON EVIDENTIARY OBIEC TIONS 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

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., $f
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., ff] 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.

Ruling on
the

Objection

[PROPOSED] ORDER GN 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

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“... 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,”

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.”), ff 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.,
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.

Material Objected To Grounds for Objection the
Objection
—_—
expert on causation as to colon cancer.
(See Hoff Decl., ¥f 2-3.)
7, | Schwartz Decl., 47, p. 3:19-22. Lacks foundation and is based on Sustained:

{Py

10.

SED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 10 STRIKE THE DECLARATION OF DAVID” 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

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., {¥ 2-6.)

Lacks foundation and is based on
speculation, and therefore is nota
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 § 80i(a).)

MeGonnell 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
teasoning.”) The court in Jeraldine
Nicholson vy. Asbestos Defendanis,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., 99 2-3.)

Ee

[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

Ruling on

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.”

Material Objected To Grounds for Objection the
Objection
8. | Schwartz Decl., § 7, p.3:22-26 Insufficient foundation laid to Sustained:
qualify as an expert on matters to —
“Additionally, people, such as Mr. which testimony relates, Schwartz
Ross, with asbestos exposure with an | does not have the special knowledge, overpfled:

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.)

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
ptoper 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 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

“12.

{BLGPOSED] 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

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Material Objected To

{+}

Grounds for Objection

on
the
Objection

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., J 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.)

9. | Schwartz Deel., $8, p. 3:27-4:2

“Tt is my opinion that every exposure
to asbestos above background level
contributed to cause Mr. Ross's
asbestosis and colon cancer because
it is 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,”

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,
2-6.)

1

Sustained:

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 10 STRIKE THE DECLARATION OF DAVID A, SCHWARTZ
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTco 0 BM IY DH FB BH HK

HAKE LAW,
A PROFESSIONAL CORPORATION

Ruling on

Material Objected To Grounds for Objection 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.)

vol Schwartz Deel., | 8, p. 4:2 Insufficient foundation laid to Sustained:
qualify Schwartz as an expert on what | ___.
“Asbestos fibers are complete human | constitutes a carcinogen, as he is not
carcinogens.” an oncologist or pathologist.

Schwartz does not have the special Ove
knowledge, skill, experience, or —
training relating to the subject matter.
(Evid. Code §§ 720, 801.) (See Hoff
Deel., 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 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.

ex old
away ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A, SCHWARTZ.
M.D. IN SUPPORT OF PLAENTIFFS” OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.Hake Law,
A PROFESSIONAL CORPORATION

Cm WD He Bw Ny

YON MD NR RM NR RN Rw eee
oN BR We YOY NH = SO we wa HRA ROH TS

Material Objected To Grounds for Objection the
Qbiection
++
(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.”).)
|
11 Schwartz Decl., 78, p. 4:6-11 Insufficient foundation laid to Sustained:

“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 individuals 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., J
2-6.)

Irrelevant as to whether ROSS’s
colon cancer was caused by asbestos
exposure, (Evid. Cade §§ 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

“15-

TPROPOSEDT 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

Ri on
Material Objected To Grounds for Objection the
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;
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.”).) y
12] Schwartz Decl., 99, p. 4:14-20 Insufficient foundation laid to we |
qualify as an expert on matters to —
“Dr. Morgan attested that there is which testimony relates. Schwartz
there is no causal relationship does not have the special knowledge,
between that the inhalation or skill, experience, or training regarding Overruled:
ingestion of asbestos is a causation as to colon cancer. (Evid. —
contributing factor in the Code §§ 720, 801) Schwartz is not an
development, or even risk factor for | expert on colon cancer; he has never
the development, of colon cancer. published any article relating to
Morgan Decl. at ¢ 5. However, this is | colon cancer; he has never
an inaccurate conclusion that is not participated in any epidemiologic
supported by the breadth of scientific | studies to determine whether
literature on the topic (beyond that asbestos is a cause of colorectal
which Dr. Morgan has evidently cancers; and he has never
been paid to generate), For the conducted a survey of the available
reasons stated in my declaration, I literature regarding asbestos
therefore also disagree with Dr. exposure and colon cancer. As he
Morgan’s opinion there has been has not conducted a survey of the
established no causal relationship available literature and has admitted
between asbestos exposure and colon | that he has not read the most recent,
cancer, Morgan Decl. at { 5.” 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., 9f 2-6.)
ts onint
i Declarant’s opinion is not based on

-16-

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

NDR MW BP wiwD

Traimzen|
Material Objected To Grounds for Objection the
Objection

4

Ll

matter that is of the type that may r
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
10M 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

Ti

brsoeRty ‘ORDER ON EVIDENTIARY GBIECTIONS AND Mi

M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

IOTION TO STRIKE THE DECLARATION OF DAVID A. sowHAKE LAW,
A PROFESSIONAL CORPORATION

Oe WA WH RB Bw HY

RON RP RN RR RR mm aka
oH DH FF YW NY &— Seo we HY A A BY NH FS

Material Objected To

Grounds for Objection

Ruling on

1

opinion is worth no more than the
teasons upon which it rests.”).

134

Schwartz Decl., | 9, p. 4:21-28

“Dr. Sheibani concludes that based
upon the absence of asbestos bodies
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 | have no quarrel
with his pathologic 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.”

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. 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., ¥f 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

71s-

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

oe YN A UW BR WN

MON BR NR RNR DR Reet
ec 2 Aw FY YN = SC wMH NIN DH BR WwW NH & Oo

Material Objected To

Grounds for Objection

Ruling on
the

Qbiection

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. 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 lung cancer.
Furthermore, Schwartz himself has
relied on this same criteria in
regard to establishing a link
between asbestos exposure and
colon cancer. (See Hoff Decl., {ff 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., 46.) 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

19.

[PROPOSEDY ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M1. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

4.

method or shift the burden back to
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
teview, there are various articles that
have 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., #4
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

—i...

Sustained:

-20-

4

[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

Material Objected To

Grounds for Objection

Ruling on
the
Objection

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., #9 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.3¢
1113, 1135.)

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

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

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

McGonnell v. Kaiser Gypsum Co.

4

2

M.D. IN SUPPORT OF PLAINTIFFS” OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

[Err ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,HAKE LAW,
A PROFESSIONAL CORPORATION

Dn Ww bh Ww

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., J 2-3.)

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

Undue prejudice. (Evid. Code §
352.)

al

Schwartz Decl., 99, p. 5:3-7

“Each 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-I track, including
Mr. Ross’s asbestos induced 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. 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

wae

| BROPISED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIRE 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

N

oOo me KA Oh he Ow

RR RP NR NY KN RNR mem
oe a DA Hw BB BW YN = SB wR DH Bw NY

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., 47
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., ff 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.

L

(ERGPOSED] 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 6B WR HW BP BW NY

Material Objected To

Grounds for Objection

on
the

Objection

Zuckerman (1987) 189 Cal.App.3d
4113, 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.)

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
teasoning.”) 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.)

|

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, I 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
§§ 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

Sustained:

led:

wade

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

4

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.”), 99 2-
6.)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for coton 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., {¥
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 for