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

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                                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) FILED
HAKE LAW, A PROFESSIONAL CORPORATION

melissa@hakelaw.com
lucy@hakelaw.com

Attorneys for Defendant
ADVANCE MECHANICAL CONTRACTORS, 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., ENGINEERS, et al.,
CO., ENGINEERS, ¢ al SCHWARTZ, M.D. IN SUPPORT OF
Defendants. PLAINTIFFS’ OPPOSITION TO

DEFENDANT ADVANCE MECHANICAL
CONTRACTORS, 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 ADVANCE MECHANICAL CONTRACTORS, INC.’S Evidentiary
Objections and Motion to Strike the Declaration of David Schwartz, M.D. in Support of
Plaintiffs’ Opposition to Defendant ADVANCE MECHANICAL CONTRACTORS, INC.’S

Motion for Summary Judgment.
ate

NOTICE OF ENTRY OF ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF|
DAVID SCHWARTZ, M.D. [N SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT ADVANCE MECHANICAL
CONTRACTORS, INC.S MOTION FOR SUMMARY JUDGMENT

ELECTRONICALLY

j f Califprnia,
655 Montgomery Street, Suite 1000 Se German 00
San Francisco, CA 94111
Tel: 415-926-5800 JUL 03 2048
Fax: 415-926-5801 Clerk of the Court
bill@hakelaw.com encase ve epull ClerkHAKE Law,
A PROFESSIONAL CORPORATION

1 {| A Copy of the Court’s Order is attached hereto as Exhibit A.
2
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4 Respectfully Submitted,
5 || Dated: July 2, 2013 HAKE LAW,
6 A PROFESSIONAL CORPORATION
7 By: apy eh:
William M. ‘e, Esq.
8 Melissa D. Ippolito, Esq.
Kathryn L. Hoff, Esq.
9 Attorneys for Defendant
ADVANCE MECHANICAL CONTRACTORS,
0 INC,
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28 2s
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 ADVANCE MECHANICAL
CONTRACTORS, INC’S. MOTION FOR SUMMARY JUDGMENTEXHIBIT AHaAKE Law,
A PROFESSIONAL CORPORATION

4 DA WwW PB ww

William M. Hake, Esq. (State Bar No. 110956)
Melissa D. Ippolito, Esq. (State Bar No. 239811) ENDORSE
Kathryn L. Hoff, Esq. (State Bar No. 260420) ods abtuthors
HAKE LAW, A PROFESSIONAL CORPORATION Se Oe en
655 Montgomery Street, Suite 1000
San Francisco, CA 94111 MAY 3.1 2013
Tel: 415-926-5800
filters CLERK OF THE COURT
bill@hakelaw.com UOREY HU
melissa@hakelaw.com By: AUDREY IE cg
lucy@hakelaw.com
Attorneys for Defendant
ADVANCE MECHANICAL CONTRACTORS, INC. Y
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCIS
ROBERT ROSS AND JEAN ROSS, Case 3
Plaintiffs, {PR
EVID ARY OBJECTIONS AND
vs. MOTION TO STRIKE THE
DECLARATION OF DAVID A.
C.C. MOORE & CO., ENGINEERS, etal., SCHWARTZ, M.D. IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO
Defendants. DEFENDANT ADVANCE MECHANICAL]
CONTRACTORS, 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 Advance Mechanical Contractors, Inc.
(“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
Advance Mechanical Contractors, Inc.'s Motion for Summary Judgment (“Schwartz Decl.”):
i
ME
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| RROBGSEDTORDER ON EVIDENTIARY OBJECTIONS AND MOTION 76 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
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
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.)

Overptled:

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., J
2-6.)

Deciarant’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

ena

dh

{EROPOSED] ORDER ON EVIDENTIARY OBIECTIONS AND MOTION TO STRIKE THE DECI ARATION OF DAVID A. SCHWARTZ,
M_D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HAKE Law,
A PROFESSIONAL CORPORATION

a Aw

Material Objected To

Grounds for Objection

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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
Decl., 2-6.)

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

“I 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.,
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

Sustained:

led:

a

(EREPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVIN A. SCHWARTZ,

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

Material Objected To

[een

Grounds for Objection

Rating on
the
Qbiection

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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 exchided Schwartz as an
expert on causation as to colon cancer.
{See Hoff Decl., § 2-3.)

3. | Schwartz Decl., 43.

“T 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,
School 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, | was an
intern, resident and chief resident at
Harvard School of Public Health and
took courses in epidemiology,
occupational medicine, and industrial
hygiene. I 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
start/complete a fellowship in

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 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.)

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

a

[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

Material Objected To

Grounds for Objection

Ruling on
the

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, I 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, 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. I 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
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.)

abe

[RROPOSED] 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 JUDGMENTHaKE LAW,
A PROFESSIONAL CORPORATION

Ruling on

Material Objected To Grounds for Objection the
Objection
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.”
4. | Schwartz Decl., 44. 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, overfiled:

approximately several hundred cases
of asbestos-induced lung disease that
originated at the University of lowa,
Duke University, or National Jewish
Health where | 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, 1 have kept abreast of the
scientific and medical literature
tegarding the diagnosis and
causation of asbestos induced lung
disease and asbestos-induced
cancers,”

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.)

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

“6

{PREPOSED] 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

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Ruling on
the

Grounds for Objection the
Qbiection

of colon cancer. (See Hoff Decl., 49 2-
6.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1698, 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.)

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.”

Sustained:

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., #¥f
2-6.)

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

=

[PROPOSED] ORDER ON EVIDENTIARY OBIECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID X SCHWARTZ]
M.D. PN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTWoo

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HAKE Law,
A PROFESSIONAL CORPORATION

Ruling on

Material Objected To Grounds for Objection the
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 Decl., 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
expert on causation as to colon cancer.
(See Hoff Decl., ff 2-3.)

6. | Schwartz Decl., 6. Insufficient foundation laid to Sustained:
qualify as an expert on matters to —
“I have been qualified to testify on which testimony relates. Schwartz

the issue of diagnosis and causation | does not have the special knowledge,

in a number of states including, but _| skill, experience, or training regarding Ove
not limited to, North Caroline, South / causation as to colon cancer, (Evid. —
Carolina, Texas, Florida, Colorado, | Code §§ 720, 801) Schwartz is not an
California, and New York.” expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in

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

s
= ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,HAKE Law,
A PROFESSIONAL CORPORATION

Nome

Material Objected To

Grounds for Objection

pep

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., 14
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., {J 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
teasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an

Ruling on
the
Objection

Qe

[EBOPSSED]| ORDER ON EVIDENTIARY OBIECTIONS AND MO"

TION 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

“... 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.”

uu

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 Deci.”), 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., ff
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. 49 2-3.)
7. | Schwartz Decl., 7, p. 3:19-22. Lacks foundation and is based on Sustained:

=10-

[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

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Material Objected To

Grounds for Objection

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., #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. (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 vy, 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 vy. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Dect., (9 2-3.)

“UL

[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

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Material Objected To

8. | Schwartz Decl., { 7, p.3:22-26

“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.”

Ruling on
Grounds for Objection the
QObiectio:
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.)

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).}

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

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#12.

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

oc OD mW DD mh RB YW KH

Material Objected To

PO

Grounds for Objection

Ruling on
the
Objection

peepee

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.)

Misleading, Undue prejudice.
Cigarette smoking is an alternative
risk 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.)

2°
—}—

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
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.)

Sustained:

One

“ie

[PROPOSED] 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 JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

oO 6G TD HR RB Be He

MN YM BR NR RN RR mem ett
oc WP A A FF YP NY &— S © we A A HW Bw HH A Ss

Material Objected To

10,

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

“Asbestos fibers are complete human.
carcinogens.”

Lacks foundation and is based on
speculation, as no evidence or
medical literature is cited in support of
these claims. Therefore it is nota
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.)

Ruling on
Grounds for Objection the

Objection

Sustained:

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., €¥ 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.

Evid. Code §§ 403, 405, 802 & 803;
(Evi le $§

oye

wide

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

oC COC Om NN OR BR WY OD

Material Objected To

Grounds for Objection

Ruling on
the

Obiection

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., 4 8, p. 4:6-11

“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.”

Leeda

Insufficient foundation laid to
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. 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
provided. (Evid. Code § 801 (b).)

Sustained:

Oey

-15-

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND Mi

IOTION 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

Nv

Material Objected To

Grounds for Objection

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.”}.)

eH
Schwartz Decl., 9 9, p. 4:14-20

“Dr. Morgan attested that there is
there is no causal relationship

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
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 Dect. €¥ 2-6.)

Declarant’s opinion is not based on

| matter that is of the type that may
[PROPOSED] GRBER ON EVIDENTIARY OBJECTIONS AND wae 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 the
Qhiection

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
opinion is worth no more than the

T

1 ED] 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

in the limited colon tissue that he
was sent, that the colon cancer
cannot be caused by asbestos
exposure. Sheibani Decl. at (¥ 5-6.
Here again, though I 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.”

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().)
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

18

Material Objected To Grounds for Objection the
Objection
4
reasons upon which it rests.’””).
jefe
13] Schwartz Deel. | 9, p. 4:21-28 Insufficient foundation laid to Sestdined:
qualify as an expert on matters to ——
“Dr. Sheibani concludes that based which testimony relates. Schwartz
upon the absence of asbestos bodies | does not have the special knowledge, Overmled
ve iS

[PROPOSED] ORDER ON EVIDENTIARY OBIECTIONS AND Mi

IOTION 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

po
Material Obijected To

Grounds for Objection

Ruling on
the

Objection

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., € 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.

Pi

ED} 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

Ce YW DA Rh YW Km

NR YR RB NR NR RR ee
eo KR WF YH FE SG GO ew WN BDH RB YW YW mem oS

Material Objected To

Grounds for Objection

fe tne

show Sheibani is wrong.

Speculative. (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
opinion is worth no more than the
reasons upon which it rests.”).

Ruling on
the

QObiection

14)

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.,
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).)

-20-

Sustained:

Ova:

[PBOPOSED} 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

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., §f 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
review” in regard to determining
causation for colon cancer. (See Hoff
Decl., 2-6.)

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

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

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

2b

[ERDBOSED) ORDER ON EVIDENTIARY OBIECTIONS 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

oD YD DH RB WN

BPN BP NM NN NR ON Rm eas
ea YB WF BH = FS owe ABR HF YW Ye S

Material Objected To

Grounds for Objection

Ruling on
the
Objection

ey

——_—{—____

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.)

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

Undue prejudice. (Evid. Code §
352.)

154 Schwartz Decl., { 9, 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.”

Leen

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

Sustained:

ar

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

PROPOSED] ORDER OW EVIDENTIARY OBIEC TIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,HAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

Jone renee

Grounds for Objection

Ruling on

b

the

ion

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., #]
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.
Zuckerman (1987) 189 Cal.App.3d

~23~

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

A PROFESSIONAL CORPORATION

YD WwW BF wWK

Material Objected To

Grounds for Objection

the

Ruling on
Objection

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.)

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., ¥] 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, I conclude exposure to
asbestos, above background, given
sufficient minimum latency, was a

substantial contributing factor to
i.

proper matter on which expert opinion
testimony may be based. (Evid. Code

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

§§ 403, 405, 801, 802 & 803; see also | V9

Lacks foundation and is based on Sustained:
speculation, and therefore is not a

led:

74

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

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

Material Gbjected To

Grounds for Objection

Raling on
the
Objection

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

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