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

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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

ELECTRONICALLY

g> Montgomery Street Suite 1000 Seer eee reepen
an Francisco,

Tel: 415-926-5800 MAY 03 2013
tote el ornset ne Ca
bill@hakelaw.com Dopuil Clerk

melissa@hakelaw.com
tucy@hakelaw.com

Attorneys for Defendant
EMIL J. WEBER ELECTRIC CO,

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

ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731
Plaintiffs, REPLY IN SUPPORT OF DEFENDANT
EMIL J. WEBER ELECTRIC CO.’S
vs. MOTION FOR SUMMARY JUDGMENT
C.C. MOORE & CO., ENGINEERS, et al., Hearing Date: May 9, 2013
Time: 9:30 a.m.
Defendants. Judge: Hon. Teri Jackson
Dept.: 503
Complaint: December 17, 2010
Trial Date: June 10, 2013

L INTRODUCTION

Plaintiffs have failed to produce specific admissible evidence indicating that Plaintiff
Robert Ross’s (“ROSS”) alleged asbestos exposure caused his colon cancer. The only evidence
Plaintiffs produced is the declaration of an expert who is not qualified to provide opinions as to
causation for colon cancer and who has been previously excluded from testifying at trial on this
exact issue. Furthermore, Plaintiffs’ argument that Emil J. Weber Electric, Co, (“Defendant”)
has failed to shift its burden is ill-founded. Defendant has not only shown Plaintiffs’ lack of
admissible evidence based on the state of the medical and scientific literature, Defendant has

produced admissible affirmative evidence demonstrating to a reasonable degree of medical

certainty, ROSS’s colon cancer was not caused by any alleged asbestos exposure.

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TE. LEGAL ARGUMENT

A. Plaintiff Cannot Establish That ROSS’s Alleged Asbestos Exposure More
Likely Than Not Caused ROSS’s Colon Cancer.

The declaration of Dr. David Schwartz (“Schwartz”) is Plaintiffs’ only support for their
contention that ROSS’s alleged exposure to asbestos caused ROSS’s colon cancer. (Declaration
of David A. Schwartz, M.D. (“Schwartz Decl.”), attached as Exhibit A to Declaration of Jennifer
L. Alesio In Support Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment
(“Alesio Decl.”).) First, Schwartz is simply not qualified to render the opinions and conclusion
in his declaration. Second, despite Plaintiffs’ attempt to manufacture a reasonable basis for
Schwartz’s opinions by utilizing a cherry-picked list of publications that purport to support a
causal link between asbestos exposure and colon cancer, the fact remains that Schwartz is not an.
expert on colon cancer; he has never published any article relating to colon cancer; he 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, As such,
Schwartz has no reliable basis to connect ROSS’s alleged asbestos exposure to ROSS’s colon
cancer on a more likely than not standard. Schwartz's declaration is therefore inadmissible

speculation that cannot defeat Defendant’s motion for summary judgment.

1. Schwartz’s Declaration is Inadmissible as He is Not Qualified as an
Expert Regarding Causation of Colon Cancer.

An expert witness must have “special knowledge, skill, experience, training, or
education” on the specific subject matter of his testimony. (Evidence Code (“EC”) § 720(a).)
Such expertise must be shown by affirmative evidence before the witness testifies. (EC § 720(a),
(b).) An expert’s testimony in the form of an opinion “is limited to such an opinion as is based
on matter (including his special knowledge, skill, experience, training, or education)...that is of a
type that reasonably may be relied upon by an expert in forming an opinion upon the subject to
which his testimony relates.” (EC § 801(b).) When deciding whether to admit expert testimony,

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the Court must “carefully distinguish[] and limit{]” the witness’s field of expertise. (People v.
Williams (1989) 48 Cal.3d 1112, 1136 (internal quotes omitted).) A witness’s general
experience in a particular field may not qualify him to testify on specific, narrow aspects of that
field. (People v. Davis (1965) 62 Cal.2d 791, 801.) 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: additional citations omitted.)

Although Schwartz’s declaration states that he has been “qualified to testify on the issue
of diagnosis and causation” in a number of states, including California (see Schwartz Decl., 4 6),
he is not qualified to testify as to causation of colorectal cancers. In fact, he was excluded from]
testifying on this exact issue in Jeraldine Nicholson, et al. v. Asbestos Defendants, et al., Los
Angeles Superior Court Case No. BC413220. For the reasons set forth below, the court in
Nicholson concluded that Schwartz did not have the foundation to form an opinion that colon
cancer bears a causal connection to asbestos exposure and Schwartz did not indicate anything he
relied on in that case was of the type that may be reasonably relied upon by an expert in forming
such an opinion. (Excerpts of Reporter’s Daily Transcript of Proceedings in Jeraldine
Nicholson, et al. v. Asbestos Defendants, et al., Los Angeles Superior Court Case No. BC413220
(Nicholson 402 hearing”), dated June 24, 2011, at pp. 83:9-84:17, 85:24-86:1, attached to the
Declaration of Kathryn L. Hoff (“Hoff Decl.”) as Exhibit A.)

Schwartz is an internist, a pulmonologist and a specialist in occupational medicine.
(Nicholson 402 hearing at p. 5:5-7.) An internist is specifically trained in adult medicine during
a three year residency program. (Id. at p. 5:8-14.) A pulmonologist is specially trained in a three|
year fellowship beyond the internal medicine training program in pulmonary medicine (diseases
and conditions involving the chest and respiratory tract). (Id. at p. 5:15-23.) Occupational
medicine is a type of preventative medicine which requires schooling to obtain a master’s degree
in public health and focuses on management of illness, injury or disability related to the
workplace. (Id. at p. 5:23-6:7.) These are Schwartz’s only medical qualifications.

Schwartz is not an expert in colon cancer or the treatment of colon cancer, (Excerpts of

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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, at p.
36:8-17, attached to the Hoff Decl. as Exhibit B; see also Nicholson 402 hearing at p. 16:26-
17:17.) He has never done any research regarding the colon. (Nicholson 402 hearing at p.
17:28-18:2.) Purthermore, he has not received any specialized training regarding the anatomy of
the GI tract or performed any research that has to do with exposing animals to asbestos in a way
that would cause gastrointestinal abnormalities. (Id. at p. 20:12-24.)

Schwartz is not an epidemiologist. (Nicholson 402 hearing at p. 21:12-17.) He testified
that the purpose of the study of epidemiology is to try to understand relationship between
exposures and disease in order to understand the cause of disease and, as such, epidemiology is
important in determining whether asbestos can cause colon cancer. (Id. at pp. 21:1-17, 22:13-
16.) However, he has not conducted or participated in any epidemiological study to determine
whether or not asbestos causes colon cancer, he has not published any peer-reviewed literature or|
prepared any written materials regarding asbestos as a cause of colon cancer, and he has not
testified at trial regarding this issue. (Id. at pp. 18:10-19:24.)

Schwartz is not a pathologist (Nicholson transcript at p. 27:7-11.) A pathologist is
defined as one who interprets and diagnoses the changes caused by disease in tissues and body
fluids. (“pathologist.” Merriam-Webster.com. 2013. http://www.merriam-
webster.com/dictionary/pathologist (2 May 2013.) Schwartz agrees that when determining
causation it is important to look at pathology, because pathology can help define the disease
more precisely than radiographic studies and can be used as a way of identifying exposure to
asbestos by identifying asbestos bedies. (Nicholson 402 hearing at pp, 33:12-34:14.) However,
Schwartz admitted that he did not look at the underlying pathology or pathological study, he
merely relied on written reports the pathologists prepared, (Nicholson transcript at p. 16:2-19.)

The court in Nicholson based its exclusion of Schwartz on the above findings which sho
Schwartz’s lack of experience, lack of credentials, and lack of underlying foundational work to
form an opinion as to causation of colon cancer. (Nicholson 402 hearing at pp. 85:24-86:1.)

in January and February of this year, Schwartz again testified in deposition as to his

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qualifications to render an opinion that asbestos exposure causes colorectal cancer. During his
deposition Schwartz admitted that he has never published any article (peer-reviewed or
otherwise) regarding asbestos causing colorectal cancers. (Excerpts of Deposition of David
Schwartz, M.D. in Edward Shortall v. Buevrus International, Inc., et al., San Francisco Superior’
Court Case No. 275222 (“Shortall transcript”), dated January 30, 2013, at pp. 21:11-15, attached
to the Hoff Decl. as Exhibit C.) Nor has he written any textbooks or chapters on the causal
telationship between asbestos exposure and colorectal cancer, received any research grant to
study whether asbestos causes colon cancer, or participated in any editorial reviews regarding
this issue. (Excerpts of Deposition of David A. Schwartz, M.D., Volume II, in Rdward Shortall
v. Bucyrus International, Inc., et al., San Francisco Superior Court Case No. 275222 (“Shortall TH
transcript”), dated February 21, 2013, at p. 58:12-15, 58:25-59:9, attached to the Hoff Decl. as
Exhibit D.) in fact, he has not authored any peer reviewed paper on the disease colon cancer,
rectal cancer, or any malignancies in the gastrointestinal tract. (Id. at p. 58:1-11.) Schwartz
further admitted that he has never submitted a written criticism of any publication that suggested
that asbestos was not a cause of colorectal cancer, he has never participated in any epidemiologic
studies to determine whether asbestos is a cause of colorectal cancers, he has not performed any
meta-analysis of any data regarding asbestos as a cause for colorectal cancer, and he has not
conducted a survey of the available literature on this issue. (Shortall transcript at pp. 21:15-
22:10.) His only claimed expertise is in his review of the literature listed in his annotated
bibliography. (Shortall ll transcript at p. 59:10-14; see Exhibit 4 to Schwartz Decl.) As

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discussed below, Schwartz’s “review of the literature” is woefully inadequate, and does not
make him an expert in causation as it relates to colon cancer. As Schwartz has not made any
improvement upon the extensive list of experience, education and training he is lacking since his

exclusion by the court in Nicholson, he is clearly not qualified as an expert in causation of colon

cancer,

2. Schwartz’s Declaration Lacks Foundation and a Reliable Basis to
Conclude ROSS’ Colon Cancer was Caused by His Alleged Asbestos
Exposure.

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a. Schwartz Lacks Foundation.

Schwartz was deposed in ROSS’s prior action, during which deposition he admitted he
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. (Excerpts of Deposition of David
Schwartz, M.D. in Robert Ross v. Allis-Chalmers Corp., et al., San Francisco Superior Court
Case No. 274099 (“Ross transcript”), dated February 7, 2012, at pp. 6:6-8:7, 21:6-25 attached to
the Hoff Decl. as Exhibit E.) He merely relied on written reports by other experts in this matter.
(id.) As such, similar to Nicholson, he lacks foundation to opine regarding the radiographic or
pathologic findings in this case, including whether the pathologic samples of ROSS’s colon
contained asbestos fibers.'

b, Schwartz’s List of Publications Do Not Create a Reliable Basis.

Moreover, Schwartz's cherry-picked list of publications that purport to support a causal
link between asbestos exposure and colon cancer on which he claims to rely, are not a reasonable|
basis on which he can rely to form his proffered opinions as to causation in this matter. (EC §
801(b).) The articles Schwartz relies on in Shortall to conclude that Edward Shortall’s rectal
cancer is caused by asbestos exposure are the same articles he listed in support of his conclusion
that ROSS’s colon cancer was caused by asbestos. (Shortall transcript at pp. 24:1-16.) Schwartz
admits that the articles he selected represent only some of the existing articles on asbestos and
colon cancer and although there are articles in the published literature that show no increase of
colon cancer associated with asbestos exposure, he did not include a single one of those articles
on his list. (Ross transcript at pp.45:7-46:2.) Further, although Schwartz claims to have reviewe
some articles concluding that asbestas does not cause colorectal cancer, he could not cite a single!
one of these articles during his 2013 deposition. (Shortall transcript at pp. 25:24-26:12; Shortall

I transcript at pp. 68:22-69:22.) He did not recognize a single one of thirteen articles which

conclude that there is no statistically significant relationship between asbestos exposure and

colon cancer when the titles, authors, dates and names of publications for these articles were

' Schwartz actually admitted that no one reported finding any asbestos in ROSS’s colon tissue. (Ross transcript at p.
17:15-17,)

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listed for him by counsel. (Shortall II transcript at pp. 69:23-74:3.) This list included a 2001
article in which the lead author Puntoni went back and looked at the same cohort group of
shipyard workers in Genoa, Italy on which he had published an article in 1979 and in his updated!
research found an insignificant correlation between asbestos exposure and colorectal cancer.
Cid.) Schwartz admitted that he relies on Puntoni’s 1979 article, but is not familiar with
Puntoni’s updated 2001 article. (1d.)

Additionally, although Schwartz stated that he believes the International Agency on
Research Carcinogens opinion (1982), the OSHA guidelines (1983), the EPA conclusions (1986)
and the conclusions by the National Toxicology Program represent the consensus opinion and
support a relationship between asbestos exposure and colon cancer, he admitted that the he has
not read any more recent articles. (Shortall transcript at pp. 26:17-27:24.) In particular he
stated that he is not aware of the 2006 position paper by the National Academies of Science, the

Institute of Medicine (“IOM 2006 Report”), which comprehensively evaluated the peer-reviewed

scientific and medical literature and concluded there is insufficient evidence to infer a causal

connection between asbestos exposure and colorectal cancer. (Shortall II transcript at p. 74:10-
22; see also IOM 2006 Report, at pp. 3-14, attached to the Hoff Decl. as Exhibit F.)

In regard to the articles Schwartz claims to have reviewed with the countervailing
conclusion that there is no statistically significant correlation between asbestos exposure and
colorectal cancer, he could give no reason as to why he disregards or discounts these articles in
his final analysis in Shertall. (Shortall ] transcript at pp. 81:5-82:18, 83:17-24.) In his
deposition in the prior ROSS matter in February 2012, Schwartz stated his only reason for not
including any of the countervailing articles is his reliance on the “federal agencies that have
assessed the relationship between asbestos and colon cancer and concluded uniformly that
asbestos causes colon cancer.” (Ross transcript at p. 46:3-9.) However, Schwartz agreed during
this deposition that (1) the Institute of Medicine of the National Academy of Sciences is a federal
agency charged with the responsibility of advising Congress on medical matters, (2) he is aware
of the IOM 2006 Report entitled “Asbestos and Selected Cancers,” (3) there is no reason he did
not include the report in his bibliography (other than that he has not yet read it), and (4) if he

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were to read the 1OM 2006 Report it might change his opinion on whether the evidence supports
a causal connection between asbestos and colon cancer. (Id. at pp. 46:11-49:25.) Schwartz
indicated that if he were to read the IOM 2006 Report he would advise plaintiff’s counsel so that
there could be a further deposition regarding its effect on his opinions. (Id. at p, 50:1-7.)
However, there is no evidence that Schwartz has yet read the IOM 2006 Report, even though he
has been aware of this since at least February 2012, he provided deposition testimony in the

Shortail matter in January and February 2013 during which he was again questioned about this

report, and the report was attached to the moving papers for the within motion. Without reading
the most recent, independent, comprehensive study regarding the state of the medical and
scientific literature performed by a “federal agency.” Schwartz has no basis for his opinion
regarding the consensus of the “federal agencies” on this subject. Furthermore, Plaintiff cannot
proved that the literature Schwartz relies on, which excludes the 2006 IOM Report, is of a type
that reasonably may be relied upon by and expert in forming an opinion regarding asbestos and
causation of colon cancer.

cc Schwartz Cannot Rule Out Other Causal Factors.

Schwartz admits there are other risk factors for colorectal cancer including cigarette
smoking, obesity, diet, and history of colon polyps. (Shortall transcript at pp. 22:15-23:25; see
also Shortall If transcript at pp. 77:6-8, 80:11-22.) While Schwartz agrees that it is important in
performing studies to determine whether asbestos causes colon cancer for the investigators to
take into account other risk factors for colon cancer, Schwartz admits that only one of the eleven
(11) articles listed on his annotated bibliography controlled for these factors in their analysis.
(Ross transcript at pp. 27:5-20, 31:12-60:21.) In the one study which did control for some other
tisk factors, the results were not statistically significant to conclude a causal relationship between
asbestos exposure and colon cancer. (Id. at pp. 50:18-60:21.)

Schwartz has no reliable basis as he cannot cite to any literature to support his opinion
that in a person with both asbestos exposure and polyps, colon cancer is caused by asbestos, not
by a polyp. (Shortall II transcript at pp. 79:18-80:10.) Further, he presents no evidence that he
has ruled out these factors in this case. In fact he admits ROSS’s smoking history is a risk for his|

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cancer, (Schwartz Decl., 7.) As such, he cannot conclude to reasonable degree of medical
certainty that ROSS’s alleged asbestos exposure more likely than not caused his colon cancer.

(See Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403.)

B. Plaintiff's Argument that Defendant Has Not Met its Burden is Ill-founded
and Cannot Defeat Defendant’s Motion for Summary Judgment.

Plaintiffs argue that Defendant has not met its burden because the declarations of Drs.
Morgan and Sheibani are inadmissible. However, Plaintiffs have failed to present any relevant,

admissible evidence supporting these claims.

1, Defendant’s Affirmative Evidence is Admissible.

a. Drs, Morgan and Sheibani are Specifically Qualified, and Have
Foundation and Reliable Bases for Their Opinions.

Plaintiffs” greatest criticism of Dr. Morgan is that he relies on two of his own peer-
reviewed published studies in forming his opinion. The fact that Dr. Morgan has actually
published several peer-reviewed epidemiologic articles relating to asbestos exposure and colon
cancer demonstrates his experience in the specific area on which he is providing an opinion in
this matter, unlike Dr. Schwartz. Although Plaintiffs provide some vague, incomplete and out of
context deposition testimony Dr. Morgan gave in a prior case relating to the rejection of one of
his articles, they fail to provide any facts or reasons as to why Dr. Morgan’s article was rejected
and fail to include that it was shortly thereafter accepted and published by another well-respected
publication. Furthermore, Plaintiffs completely ignore the fact that Dr. Morgan relies on the
2006 1OM Report, an independent, comprehensive assessment of the entire field of peer-
reviewed scientific and medical literature regarding the association between asbestos exposure
and several cancers, including colon cancer, which was conducted at the request of Congress.
Additionally, Plaintiffs’ own expert concedes the importance of epidemiology and the
epidemiologic literature in determining the causation of colon cancer in an individual.

Likewise, Plaintiffs’ greatest criticisms of Dr. Sheibani are (1) that he applies a well-
established scientific criterion for determining whether lung cancer is caused by asbestos

exposure to colon cancer ~ namely the presence of asbestos bodies in the affected tissue, and (2)

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that he does not cite any paper that provides a basis for his opinion that polyps cause colon
cancer. In regard to the first criticism, the criteria Dr. Sheibani relies upon is so well
documented that Plaintiffs’ own expert has admitted to its reasonableness in prior deposition
testimony in a colon cancer matter, (Nicholson testimony at pp. 33:12-34:14.) In regard to the
second criticism, Dr. Sheibani relies not only on ROSS’s pathology materials which show the
presence of a polyp, but also on his experience in the field (which Plaintiff does not dispute), the
conclusions and opinions of Dr. Morgan to conclude that ROSS’s colon cancer was caused by a
pre-existing polyp and is unrelated to any asbestos exposure. (See Mosesian v. Penwalt (1987)
19] Cal. App.3d 851, 860, stating experts may rely upon hearsay in forming opinions.)
Plaintiffs’ efforts to discredit the qualifications, foundation, and reliable bases for the

opinions of Drs. Morgan and Sheibani clearly fail flat.

b. Assuming, Arguendo, the Court Finds the Declarations of Drs.
Morgan and Sheibani Inadmissible, The 2006 [OM Report
Establishes the State of the Medical Literature at Issue.

Defendant does not concede that the declarations of Drs. Morgan and Sheibani are
inadmissible, but should the court find them inadmissible for any reason, Defendant has still met
it burden. The 2006 [OM Report (previously attached to the Morgan Declaration in the moving
papers) is a comprehensive, irrefutable, and independent assessment of the entire field of peer-
reviewed scientific and medical literature regarding the association between asbestos and
colorectal, laryngeal, esophageal, pharyngeal, and stomach cancers. The LOM report is not

hearsay as it is offered not for the truth of the matter, but to show current state of the literature.

As Defendant has shifted its burden and Plaintiff has failed to produce any countervailing
admissible evidence to shift it back, Defendant requests this Court grant summary judgment in
its favor.

HAKE LAW, A PROFESSIONAL CORPORATION
Dated: May 3, 2013
By: /s/ Kathryn L. Hoff,
William M. Hake, Esq.
Melissa D. Ippolito, Esq.
Kathryn L. Hoff, Esq.
Attorneys for Defendant
EMIL J. WEBER ELECTRICAL CO.

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