Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                Hakr Law,
A PROFESSIONAL CORPORATION

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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
tucy@hakelaw.com

Attorneys for Defendant
BELL PRODUCTS, INC.

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

ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731

Plaintiffs, DEFENDANT BELL PRODUCTS, INC’S

RESPONSE TO PLAINTIFE’S
vs. SEPARATE STATEMENT OF DISPUTED
MATERIAL FACTS IN OPPOSITION TO
C.C, MOORE & CO., ENGINEERS, et al., ITS MOTION FOR SUMMARY

JUDGMENT

Defendants.
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, subdivision (b) and California Rules of|
Court Rule 3.1350, Defendant BELL PRODUCTS, INC., (“Defendant”) respectfully submits
this Response to Plaintiffs’ Separate Statement of Disputed Material Facts in Opposition to
Defendant’s Motion for Summary Judgment. By its citation of portions of David Schwartz,
M.D.’s deposition testimony, Defendant does not waive, and hereby preserves, any objection
thereto.

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bill@hakelaw.com Dopuil ClerkHakr Law,
A PROFESSIONAL CORPORATION

Plaintiff's Disputed Material Facts
and Supporting Evidence

Defendant Bell Products, Inc.’s Response

David Schwartz, M.D. reviewed
medical records from the plaintiff,
ROBERT ROSS, including his
pathology and radiology reports, and
including pulmonoglist Alvin J.
Schonfeld, M.D.’s report dated
September 16, 2009. Dr. Schwartz
conclude [sic] that Mr. ROSS has
asbestosis, as well as has developed
colon cancer which was in part
caused due to his exposure to
asbestos. 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
tisk of these two carcinogens is
multiplicative.

Supporting Evidence:
Declaration of David Schwartz,
M.D., attached as Exhibit A to the
Alesio Declaration, at 7.

Disputed. Plaintiffs’ supporting evidence is
inadmissible as David Schwartz, M.D.
(“Schwartz”) does not have the special
knowledge, skill, experience, or training
regarding causation as to colon cancer to
opine that ROSS has developed colon cancer
due to his asbestes exposure. (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.
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.
Furthermore, 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. Furthermore,
as Schwartz admits, cigarette smoking is an
alternative risk for colon cancer. This risk
must be eliminated in order to prove more
likely that not asbestos caused Plaintiffs
colon cancer. (Evid. Code § 352.) (See Jones
v. Ortho Pharmaceutical Corp. (1985) 163
Cal.App.3d 396, 403.) Any reference to
ROSS having or being diagnosed with
asbestosis is irrelevant as Plaintiffs have no
claim for asbestosis pursuant to the court
order granting in part and denying in part
Plaintiffs’ motion to file a third amended
complaint.

Supporting Evidence:

Excerpts of Reporter’s Daily Transcript of
Proceedings in Jeraldine Nicholson, et al. v.
Asbestos Defendants, et al., Los Angeles

-2-
i TSN S RE 5 EPARATE STATEME
MATERIAL FACTS IN OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT

“BISPUTED |Hakr Law,
A PROFESSIONAL CORPORATION

Plaintiff's Disputed Material Facts
and Supporting Evidence

Defendant Bell Products, Inc.’s Response

Superior Court Case No. BC413220
(‘Nicholson 402 hearing”), dated June 24,
2011, attached to the Declaration of Kathryn
L. Hoff (“Hoff Decl.”) as Exhibit A; Excerpts
of Deposition of David Schwartz, M.D. in
Jeraldine Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 (“Nicholson transcript’), dated
April 27, 2011, attached to Hoff Decl. as
Exhibit B; Excerpts of Deposition of David
Schwartz, M.D. in Edward Shortall v.
Bucyrus International, Inc., et al., San
Francisco Superior Court Case No, 275222
(“Shortall transcript”), dated January 30,
2013, attached to Hoff Decl. as Exhibit C;
Excerpts of Deposition of David A. Schwartz,
M.D., Volume I, in Edward Shortail v.
Bucyrus International, Inc., et al., San
Francisco Superior Court Case No. 275222
(“Shortall 1 transcript”), dated February 21,
2013, attached to Hoff Decl. as Exhibit D;
Excerpts of Deposition of David Schwartz,
M.D. in Robert Ross y. Allis-Chalmers Corp.,
et al., San Francisco Superior Court Case No.
274099 (“Ross transcript”), dated February 7,
2012, attached to Hoff Decl. as Exhibit E
(Collectively, “Schwartz Deposition
Excerpts”); Notice of Entry of Order
Granting in part and Denying in part Leave to
File Third Amended Complaint, filed on May
11, 2012, attached Declaration of Melissa
Ippolito filed in support of the within motion.

Asbestos fibers are complete human
carcinogens. Every asbestos fiber
that comes into contact with a cell in
the respiratory system or
gastrointestinal system may, on a
more likely than not basis, elicit a
physiological response from the
body. The body has a limited ability
to deal with this exposure burden.
Some of the fibers will stimulate
removal mechanisms and eventually

Disputed. Plaintiffs’ supporting evidence is
inadmissible as there is insufficient foundation|
laid to qualify Schwartz as an expert on what
constitutes a carcinogen. He is not an
oncologist or pathologist. Therefore Schwartz
does not have the special knowledge, skill,
experience, or training relating to the subject
matter. (Evid. Code §§ 720, 801). Further,
this is vague, overbroad and misleading.
Although asbestos related diseases might be
dose-response diseases, there is no foundation

i TSN S RE 5 EPARATE STATEME
MATERIAL FACTS IN OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT

3.

“BISPUTED |Hakr Law,
A PROFESSIONAL CORPORATION

Plaintiff's Disputed Material Facts
and Supporting Evidence

Defendant Bell Products, Inc.’s Response

be removed from the body. 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.

Supporting Evidence:
Declaration of David Schwartz,

M.D., attached as Exhibit A to the
Alesio Declaration, at § 8.

laid, or evidence supporting the idea that
colon cancer is an “asbestos related disease.”
Furthermore, there is 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 determining
causation as to colon cancer. (Evid. Code §§
720, 801) Schwartz is not an expert on colon
cancer; he has never published any article
relating te 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.
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.
Schwartz’s opinion is based on speculation
and therefore not based on anything that is
reasonably reliable 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.} Any reference to ROSS having or
being diagnosed with asbestosis is irrelevant
as Plaintiffs have no claim for asbestosis
pursuant to the court order granting in part
and denying in part Plaintiffs’ motion to file a
third amended complaint.

Supporting Evidence:

Schwartz Deposition Excerpts, attached as
Exhibits A-E to the Hoff Decl.; Notice of
Entry of Order Granting in part and Denying
in part Leave to File Third Amended
Complaint, filed on May 11, 2012, attached
Declaration of Melissa Ippolito filed in
support of the within motion.

3.

Any fiber contacting a cell may 3.
cause genetic damage, may induce

Disputed. Plaintiffs’ supporting evidence is
inadmissible as there is insufficient foundation|

-4-

i TSN S RE 5 EPARATE STATEME
MATERIAL FACTS IN OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT

“BISPUTED |Hakr Law,
A PROFESSIONAL CORPORATION

Plaintiff's Disputed Material Facts
and Supporting Evidence

Defendant Bell Products, Inc.’s Response

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.

Supporting Evidence:
Declaration of David Schwartz,

M_D., attached as Exhibit A to the
Alesio Declaration, at | 8.

laid to qualify Schwartz as an expert on
whether or how an asbestos fiber “may cause”
genetic damage, inflammatory reactions or
other biochemical reactions which lead to
colon cancer. Furthermore, there is no
foundation laid for the premise that asbestos
fibers actually do cause or contribute to the
development of colon cancer. Schwartz does
not have the special knowledge, skill,
experience, or training regarding
determination of 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.
The court in Jeraldine Nicholson y. Asbestos
Defendants, Los Angeles Superior Court Case
No. BC413220 excluded Schwartz as an
expert on causation as to colon cancer. Any
reference to ROSS having or being diagnosed
with asbestosis is irrelevant as Plaintiffs have
no claim for asbestosis pursuant to the court
order granting in part and denying in part
Plaintiffs’ motion to file a third amended
complaint.

Supporting Evidence:

Schwartz Deposition Excerpts, attached as
Exhibits A-E to the Hoff Decl.; Notice of
Entry of Order Granting in part and Denying
in part Leave to File Third Amended.
Complaint, filed on May 11, 2012, attached
Declaration of Melissa Ippolito filed in
support of the within motion.

Each and every one of the peer 4.
reviewed articles in the Annotated
Bibliography of Colon Cancer

Articles, attached as exhibit 4 to Dr.
Schwartz’s declaration is

Disputed. Plaintiffs’ supporting evidence is
inadmissible as there is insufficient foundation
laid to qualify as an expert on matters to
which testimony relates. Schwartz does not
have the special knowledge, skill, experience,

5.

i TSN S RE 5 EPARATE STATEME
MATERIAL FACTS IN OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT

“BISPUTED |Hakr Law,
A PROFESSIONAL CORPORATION

Plaintiff's Disputed Material Facts
and Supporting Evidence

Defendant Bell Products, Inc.’s Response

independently a basis for Dr.
Schwartz’s 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.

Supporting Evidence:
Declaration of David Schwartz,

M_D., attached as Exhibit A to the
Alesio Declaration, at 49.

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 “generally accepted in the medical
community” in relation to cancers of the G-
I track. Moreover, Schwartz’s opinion is not
based on matter that is of the type that may
reasonably be relied upon by any expert in
forming an opinion on the subject of causation
for colon cancer. (Evid. Code § 801(b).) The
articles he cites fail to control for or take into
account other potential risks factors for colon
cancer. Finally, 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.

Supporting Evidence:

Schwartz Deposition Excerpts, attached as
Exhibits A-E to the Hoff Decl.; Institute of
Medicine of the National Academies, National
Academy of Sciences, Committee on
Asbestos, Ashestos: Selected Cancers,
Washington DC: National Academies Press;
2006 (“LOM 2006 Report”), which was
previously attached as Exhibit D to the
Declaration of Robert W. Morgan, M.D.
served with the moving papers, attached to
Hoff Decl. as Exhibit F.

-6-
i TSN S RE 5 EPARATE STATEME
MATERIAL FACTS IN OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

Plaintiff's Disputed Material Facts
and Supporting Evidence

Defendant Bell Products, Inc.’s Response

Exposure to asbestos contributed to 5.
cause Mr. ROSS’s colon cancer and

that every occupational exposure to
asbestos, above background, given
sufficient minimum latency, was a
substantial contributing factor to

both Mr. Ross’s asbestosis and his

colon cancer, this exposure was
continuous, above background levels

and substantial.

Supporting Evidence:
Declaration of David Schwartz,

M.D., attached as Exhibit A to the
Alesio Declaration, at 10.

Disputed. Plaintiffs’ supporting evidence is
inadmissible as this opinion lacks foundation
and is based on speculation and therefore is
not 4 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.
Furthermore, Schwartz 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 expostire and colon cancer.
Schwartz’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. The court in Jeraldine
Nichalson v. Asbestos Defendants, Los
Angeles Superior Court Case No. BC413220
excluded Schwartz as an expert on causation
as to colon cancer. Any reference to ROSS

Te

i TSN S RE 5 EPARATE STATEME
MATERIAL FACTS IN OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT

“BISPUTED |Hakr Law,
A PROFESSIONAL CORPORATION

Plaintiff's Disputed Material Facts
and Supporting Evidence

Defendant Bell Products, Inc.’s Response

having or being diagnosed with asbestosis is
irrelevant as Plaintiffs have no claim for
asbestosis pursuant to the court order granting
in part and denying in part Plaintiffs’ motion
to file a third amended complaint.

Supporting Evidence:

Schwartz Deposition Excerpts, attached as
Exhibits A-E to the Hoff Decl.; Institute of
Medicine of the National Academies, National
Academy of Sciences, Committee on
Asbestos, Ashestos: Selected Cancers,
Washington DC: National Academies Press;
2006 (“LOM 2006 Report”), which was
previously attached as Exhibit D to the
Declaration of Robert W. Morgan, M.D.
served with the moving papers, attached to
Hoff Decl. as Exhibit F; Notice of Entry of
Order Granting in part and Denying in part
Leave to File Third Amended Complaint, filed
on May 11, 2012, attached Declaration of
Melissa Ippolito filed in support of the within
motion.

Respectfully Submitted,

Dated: May 3, 2013 HAKE LAW,

A PROFESSIONAL CORPORATION

By:

/s/ Kathryn L. Hoff

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

MATERIAL FACTS IN OPPOSITION TO

8.

EPARATE STATEME
ITS MOTION FOR SUMMARY JUDGMENT