Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                ONO

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Jun-03-2013 9:42 am

Case Number: CGC-10-275731

Filing Date: May-31-2013 9:41
Filed by: AUDREY HUIE
Juke Box: 001 Image: 04076410
ORDER

ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

001004076410

Instructions:
Please place this sheet on top of the document to be scanned.HaKE Law,

A PROFESSIONAL CORPORATION

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William M. Hake, Esq. (State Bar No. 110956) FILED
Melissa D. Ippolito, Esq. (State Bar No. 239811) ior Coyrt of California
Kathryn L. Hoff, Esq. (State Bar No. 260420) “
HAKE LAW, A PROFESSIONAL CORPORATION MAY 3.1 2013

655 Montgomery Street, Suite 1000

San Francisco, CA 94111

Tel: 415-926-5800 CLERK OF THE COURT
Fax: 415-926-5801 py. finds
bill@hakelaw.com Bepuly Clerk
melissa@hakelaw.com

lucy@hakelaw.com.

Attomeys for Defendant
EMIL J. WEBER ELECTRIC CO.

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

ROBERT ROSS AND JEAN ROSS, Case}

Plaintiffs, IP g
EVENTI OBJECTIONS AND
vs. MOTION TY STRIKE THE
DECLARATION OF DAVID A.

C.C. MOORE & CO., ENGINEERS, et al., SCHWARTZ, M.D. IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO

Defendants. DEFENDANT EMIL J. WEBER
ELECTRIC CO.’S MOTION FOR
SUMMARY JUDGMENT
Hearing Date: May 9, 2013
Time: 9:30 a.m.
Judge: Hon. Teri Jackson
Dept.: 503
Compiaint: December 17, 2010
Trial Date: June 10, 2013

Pursuant to Code of Civil Procedure section 437c, subdivisions (b)(5) and (d), and
Califomia Rules of Court, Rule 3.1352, Defendant Emil J. Weber Electric Co. (“Defendant”)
respectfully submits the following written objections and motion to strike the Declaration of
David A. Schwartz, M.D.in Support of Plaintiffs’ Opposition to Defendant Emil J. Weber Electriq
Co. 's Motion for Summary Judgment (“Schwartz Decl.”):
Wt
Mt

Mit
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[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

Schwartz Decl., in its entirety.

Grounds for Objection

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
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 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., TJ
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

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

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

“T 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.”

Ruling on

Grounds for Objection 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., {fj 2-6.)

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., 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
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[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M_D. IN SLIPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTHAKE Law,

A PROFESSIONAL CORPORATION

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4

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, I took an 8-week course in
tropical medicine at the Walter Reed
Army Institute of Research. The
National Science Foundation
supported me as a Public Service
Science Resident in population-based
research until June of 1980, Between
July 1980 and June 1984, I was an
intern, resident and chief resident at
Harvard School of Public Health and
took courses in epidemiology,
occupational medicine, and industrial
hygiene. I received a Master’s degree

Material Objected To Grounds for Objection the
Qbjection

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.)

Schwartz Deel., { 3. Insufficient foundation laid to Sustained:
qualify as an expert on matters to —_—

“] 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 | OY

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.)

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
allowed me to acquire research
skills, complete my occupational
medicine residency, and
start/complete a fellowship in

Undue Prejudice. (Evid. Code §
352.)

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

-

Ruling on

[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

Material Objected To Grounds for Objection the
Objection

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

pulmonary medicine. 1 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, I 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,

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

SEY TRI STIBDADT AE PL ARTIFE®?’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHaAKE Law,
A PROFESSIONAL CORPORATION

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Material Objected To

and am a member of the American
Society for Clinical Investigation and
Association of American Physicians.
In addition, I am the recipient of the
2003 American Thoracic Society
Scientific Accomplishment Award.”

4. | Schwartz Decl., 4 4.

“Since the late 1980s, I have
participated in the diagnosis of
approximately several hundred cases
of asbestos-induced lung disease that
originated at the University of lowa,
Duke University, or National Jewish
Health where I am Professor of
Medicine, Pediatrics, and
Immunology and Director of the
Center for Genes, Environment, and
Health. ] 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.”

Grounds for Objection

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.)

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

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

A PROFESSIONAL CORPORATION

Material Objected To

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.”

Grounds for Objection

of colon cancer. (See Hoff Decl., {J 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.)

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

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., 7]
2-6.)

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

=

| puting on
the

Objection

Sustained:

[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

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.”

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 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
expert on causation as to colon cancer.
(See Hoff Decl., {J 2-3.)

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

Objection

Sustained:

led:

8.

[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

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

9.

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

A PROFESSIONAL CORPORATION

Material Objected To

Schwartz, Decl., 7, p. 3:19-22.

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.”

Grounds for Objection

expert on causation as to colon cancer.
(See Hoff Decl., f¥ 2-3.)

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

“... having reviewed medical records | 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.)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for colon cancer. (Evid. Code §
720(a).) Schwartz is not an expert on
colon cancer; he has never published
any article relating to colon cancer; he
has never participated in any
epidemiologic studies to determine
whether asbestos is a cause of
colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 1]
2-6.)

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

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Ruling on
the
Objection

Sustained:

[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

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., {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. (Evid. Code
§§ 403, 405, 802 & 803.)

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

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

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

-l-

Ruling on
the

Objection

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

A PROFESSIONAL CORPORATION

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So aw aA A BF BN S&F SBD we at DH RF Bw NH KF GS

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.”

Grounds for Objection

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., {ff
2-6.)

Oo

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

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

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

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

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, 1105-
1106 (“The 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-

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

A PROFESSIONAL CORPORATION

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Material Objected To

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
telated diseases are dose-response
related diseases and it is impossible
to show exactly which exposures to
asbestos caused the disease.”

Grounds for 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 Deel., fff 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.)

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., {ff
2-6.)

~13-

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

A PROFESSIONAL CORPORATION

Oo eo YD DW FF YW YY

bw Be Ree Fe se Be Be ee ee Be
SYS = 6 © wm AA HM RB YBN HK DTD

23
24
25
26
27
28

Material Objected To

.| Schwartz Decl., 7 8, p. 4:2

“Asbestos fibers are complete human
carcinogens.”

Grounds for 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.)

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., ff] 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.

“14.

Ruling on
the
Objection

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

A PROFESSIONAL CORPORATION

Material Objected To

| Schwartz Decl., { 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.”

Grounds for Objection

(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.”).)

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., {]
2-6.)

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

Speculative as not ali 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-

[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

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

“Dr. Morgan attested that there is
there is no causal relationship
between that the inhalation or
ingestion of asbestos is a
contributing factor in the
development, or even risk factor for
the development, of colon cancer.

an inaccurate conclusion that is not

literature on the topic (beyond that
which Dr. Morgan has evidently
been paid to generate). For the
reasons stated in my declaration, I
therefore also disagree with Dr.

é a A

a

fl O

Morgan Decl. at { 5. However, this is

supported by the breadth of scientific

Ruling on

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.”).)

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

Overruled:

Declarant’s opinion is not based on
-16-

[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

Ruling on

Grounds for Objection the
Objection

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.)

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,
300.)

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
§8§ 403, 405, 802 & 803; see also
Jennings v. Palomar (2003) 114

Cal.App.4th 1108, 1117 (“an expert
17.

[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

| Schwartz Decl., 79, 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 J 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.”

Grounds for Objection

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

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., ff 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

718-

[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

Material Objected To Grounds for Objection the
Objection

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 the same criteria in regard
to establishing a link between
asbestos exposure and colon cancer.
(See Hoff Decl., #9 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., 1 6.) He does not
only base his opinion on the absence
of asbestos bodies. Therefore this is
not a direct contradiction and does not
create a triable issue. Furthermore,
Sheibani does cite to literature
regarding the relationship between.
polyps and colon cancer, which is the
subject on which he is opining. As

Schwartz does not cite to any source
regarding the “correct” criteria for
establishing a link between asbestos
exposure and colon cancer, he does
not directly contradict Sheibani’s
method or shift the burden back to

-19-
[PROPOSED] ORDER ON EVIDENTIARY 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

oe ND HW BF Ww NY

bom Ye RNY NN NY RSF Be es Be Be Be Se ee
So ak oO FON SF SF oO Ww HM DH BW HY = So

Material Objected To . Grounds for Objection

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.”).

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., {ff
2-6.)

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

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

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-

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARIZ,|
M_D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENTHakE Law,
A PROFESSIONAL CORPORATION

Cc ma nN DH FF BW YY =

bow BR Be YR NNN Be Be eB ee eB Be Be BS
ow A A RB ON KF SOD we I DH EF BN K- SS

Material Objected To

Grounds for Objection

Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
teview 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. 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., ff 2-6.)

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

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

McGonnell v. Kaiser Gypsum Co.

-2i-

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

co om NI DH RF WON

—

Material Objected To

| 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.”

rr

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 vy. 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.)

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

Undue prejudice. (Evid. Code §
352.)

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

22.

[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

Ruling on

Grounds for Objection the
Qbjection

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.,
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., §¥J 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.

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

Co wo 1 DH WN

10
11
12
13
14
15
16
7
18
19
20
21
22
23
24
25
26
27
28

Material Objected To

16] Schwartz Decl., 4 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

Ruling on
the

Grounds for Objection the

Objection

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

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

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

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 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.)

Sustained:

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

Qyafuled:

asbestos, above background, given
sufficient minimum latency, was a

724.

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

Cem ND WH PF Bw NH =

wR NY NR YN NN DB
eo 9 &F FO FOS f= 5S GCGwme AN DH BF WY FH OD

Material Objected To

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

Ruling on

Grounds for Objection the
Objection

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 Deel.”), 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., 9]
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

-25-

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 10 STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIEFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHaAKE LAW,
A PROFESSIONAL CORPORATION

we NAW RF BW NY

Ny NM NY NN N KY NY SF FP FSF FP SF PF ee
o 2 AA F&F YB NH =F So we NI DH RY NHN Ff SO

Ruling on

Material Qbjected To Grounds for Objection the
Objection
_ | |
17) Schwartz Decl., 11 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 writte