On December 17, 2010 a Motion-Secondary was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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BRAYTON*PURCELL LLP ATTORNEYS ATLAW 222 RUSH LANDING ROAD. PO BOX 6169 NOVATO, CALIFORNIA 94948-6169 (415) 808-1555 oem NY KD A BY 10 ALAN R. BRAYTON, ESQ., 8.B. #73685 DAVID R. DONADIO, ESQ., S.B. #154436 JENNIFER L ALESIO, ESQ., S.B. #258413 ELECTRONICALLY BRAYTON#PURCELL LLP Attorneys at Law FILED 222 Rush Landing Road P.O. Box 6169 Superior Court of California, County of San Francisco Novato, California 94948-6169 APR 25 2013 (415) 898-1555 Clerk of the Court BY: ALISON AGBAY Attorneys for Plaintiffs Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ASBESTOS No. CGC-10-275731 Plaintiffs, PLAINTIFFS' EVIDENTIARY vs. OBJECTIONS TO EVIDENCE C.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit | attached to the Summary Complaint herein; and DOES 1-8500. Date: May 9, 2013 Time: 9:30 a.m. Dept: 503, Hon. Teri L, Jackson Trial Date: June 10, 2013 Action Filed: December 17, 2010 eee Plaintiffs respectfully request that this Court rule on plaintiffs’ evidentiary objections in accordance with California Rules of Court, Rules 3.1352 and 3.1354, Vineyard Springs Estates, LLC vy. Super. Ct. (Wyatt) (2004) 120 Cal.App.4th 633, 635; Sambrano v. City of San Diego (2001) 94 Cal_App.4th 225, 235; Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736, and Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2005) 10:301.1, ch. 10-F. Plaintiffs object to and move to strike defendant’s proffered evidence as follows: 1. Paragraph 3 of the Declaration of Robert Morgan, M.D., in particular the following conclusion: “. .. scientists and government agencies turn to meta- analysis, which is a method of combining all available studies into a single estimate of risk. Meta-analysis is widely accepted and used as the basis for evidence based medicine” Mh KeInjered: 030 ltd obje BELEPR wep \ ts PLAINTIVS' EVIDENTIARY OBJECTIONS TO EVIDENCECo em YW KD hw BR YY 10 Material Objected To: 1. The Morgan Declaration, at 43 Kunjurod. 9349p ldbovid objs BELL PR wepd Grounds for Objection: 1. This testimony is vague, lacks foundation and competence, is speculative, irrelevant, and immaterial. (Evid. Code §§ 210, 350, 403, 405, and 702.) It is not enough for the declarant simply to state that he has personal knowledge of the facts stated. Rather, the declaration itself must contain facts showing the declaration’s connection with the matters stated therein, thereby establishing the source of his or her information, Otherwise, the declarant’s testimony that he or she has such knowledge is purely a conclusion. Osmond v. EWAP, Inc, (1984) 153 Cal.App. + 81; Brown & Weil, Calif. Practice Guide: Civil Procedure Before Trial (The Rutter Group) ¥ 9:59, ch. 91-B; and Evid. Code § 702.) It is not at all clear from this statement what “scientists” or what “government agencies,” to the extent that any exist, rely on this particular epidemiological tool that Dr. Morgan rates so highly. It is similarly mystifying as to what the reason would be for these unnamed and undescribed scientists and “government agencies” to “turn to meta- analysis.” To the extent that Dr. Morgan intends to rely on what turns out to be two meta-analyses that he published and one other for his “estimate of risk” it is important that the Court heed the Docter’s own advice when he testified in the matter of Jersey Gray vs. Allis-Chalmers, Corp. (SFSC No.274042): “Well, causation is more than just issues of relative risk . When you're looking at causation, you have other things to be concerned about as well. And you don't make up your mind purely on the basis of a telative risk . So when you give me some relative risks and sort of say, well, is this causation or is that not causation? I'm saying, look, causation is more than just a series of relative risks” Deposition of Robert Morgan, taken on Nov, 7, 2007, pg 32:4-11. As the Doctor, correctly notes above, causation is a great deal more than merely an assessment of risk, yet the Dr.’s HLA PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO EVIDENCECo em YW KD hw BR YY 10 conclusions contained in the instant declaration rely solely on risk assessment to derive his conclusion that colon cancer is not caused by asbestos exposure, COURT’S RULING ON OBJECTION NO. 1: Dated: Sustained: Overruled: 2. Objections to Paragraphs 4-5 of the Morgan Declaration. Material Objected To: Grounds for Objection: 2. Morgan declaration, 4-5 2. This testimony is vague, lacks foundation and competence, is speculative, irrelevant, and immaterial. (Evid. Code §§ 210, 350, 403, 405, and 702.) Dr. Morgan did indeed author a “meta-analysis” regarding GI track cancers in the 1980s. However, the Doctor neglects to mention that this “analysis” was 1) tejected for publication by a prominent peer-reviewed epidemiological journal and 2) that this “analysis” was funded by attorey’s representing asbestos defendants in the amount of over $40,000. “Q. You mentioned that you published. some articles; is that correct? A. Yes. Q. And out of that body of work, J think you said something like six or half a dozen, I think you described, had something to do with asbestos? A. Yes. Q. You're familiar with the peer-review process; are you not? A. Yes. Q. One of the journals to which you've submitted articles on asbestos was the British Journal of Industrial Medicine; isn't that correct? A. That's right. Q. That's a well-regarded journal in your field? KeInjered: 030 ltd obje BELEPR wep 3 ts PLAINTIVS' EVIDENTIARY OBJECTIONS TO EVIDENCECo em YW KD hw BR YY 10 Kunjurod. 9349p ldbovid objs BELL PR wepd A. Yes. Q. The article that you submitted was on gastrointestinal cancer as to whether that’s caused by asbestos; correct? A. Yes. Q. You submitted that in the 1980s; correct? A. Correct. Q. [think it was October 10th of 1983; isn't that correct? A. Approximately. Q. And that article, by the way, concluded no link between GI cancer and asbestos; correct? A. That's right. Q. And the article was rejected in November of 1983; isn't that correct? A. E don't remember the date, but it was rejected. Q. And that article emanated from your research into the topic; did it not, Doctor? A. Yes. Q. And that research was funded by attorneys representing asbestos defendants; correct? A. Tt was. Q. And your company received about $40,000 at the time from those attorneys to conduct that project; correct? A. Somewhere about that.” Trial Testimony of Robert Morgan in the Phillip Hoeffer, Jr. matter (SFSC No. 413073) Vol. 15, Proceedings of November 24, 2003, at pgs. 1637:12-1638: 20. Furthermore, this testimony lacks foundation and is speculative as Dr. HLA PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO EVIDENCECo em YW KD hw BR YY 10 COURT’S RULING ON OBJECTION NO. 2: Dated: Morgan has admitted on several occasions that he is not an expert on the biology of how cancer is caused: “Q . Are you an expert in carcinogenesis? A.No. Q. Are you an expert in the pathogenesis of asbestos disease? A. No.” Deposition of Robert Morgan, taken on Nov. 7, 2007, at pg 24:22- 25:1, in the matter of Jersey Gray vs. Allis-Chalmers. Corp. (SFSC No.274042). Sustained: Overruled: 3. Objections to the Declaration of Khalil Sheibani, at €4, which states “To my knowledge, there is no causal relationship between colorectal polyps and asbestos exposure, and there is no increased risk of colorectal polyps in individuals who have been exposed to asbestos”. Material Objected To: 3. Declaration of Khalil Sheibani, at (4, which states “ To my knowledge, there is no causal relationship between colorectal polyps and asbestos exposure, and there is no increased risk of colorectal polyps in individuals who have been exposed to asbestos” Kunjurod. 9349p ldbovid objs BELL PR wepd Grounds for Objection: 3. This testimony is vague, lacks foundation and competence, is speculative, irrelevant, and immaterial. (Evid. Code §§ 210, 350, 403, 405, and 702.) It is not enough for the declarant simply to state that he has personal knowledge of the facts stated. Rather, the declaration itself must contain facts showing the declaration’s connection with the matters stated therein, thereby establishing the source of his or her information, Otherwise, the declarant’s testimony that he or she has such knowledge is purely a conclusion. (Osmond v. EWAP, Tne, (1984) 153 Cal App.3d 842, 831; Brown & Weil, Calif. Practice Guide: Civil Procedure Before Trial (The Rutter Group) 9:59, ch. 9I-B; and Evid. Code § 702.) This statement is irrelevant to the issue at hand of whether or not asbestos contributed te cause colon cancer in an individual such as Mr. Ross who has evidence of individual susceptibility to asbestos exposure given the radiographic HLA PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO EVIDENCECo em YW KD hw BR YY 10 findings of pleural plaques and the clinical diagnosis of asbestosis. Dr. Sheibani does not cite a single paper, report, publication or other work that he has undertaken that provides a basis for his conclusion stated in this paragraph. COURT’S RULING ON OBJECTION NO. 3: Dated: Sustained: Overruled: 4. Objections to the Declaration of Khalil Sheibani, at (5 Material Objected To: Grounds for Objection: 4. Declaration of Khalil Sheibani, at (5 4. This testimony is vague, lacks foundation and competence, is speculative, irrelevant, and immaterial. (Evid. Code §§ 210, 350, 403, 405, and 702.) It is not enough for the declarant simply to state that he has personal knowledge of the facts stated, Rather, the declaration itself must contain facts showing the deelaration’s connection with the matters stated therein, thereby establishing the source of his or her information. Otherwise, the declarant’s testimony that he or she has such knowledge is purely a conclusion. (Osmond v. EWAP. Inc. (1984) 153 Cal.App.3d 842, 851; Brown & Weil, Calif. Practice Guide: Civil Procedure Before Trial (The Rutter Group) £9:59" ch. OI-B; and Evid. Code § 702.) Without any explanation, Dr. Sheibani pronounces that it is “scientifically reasonable” to apply one diagnostic criteria picked at random from the realm of lung cancer to that of colon cancer. The Doctor does not explain why it would not also be scientifically reasonable to apply the pathologic criteria for diagnosis of Mesothelioma or Laryngeal Cancer, other asbestos-caused cancers. The doctor, likewise, does not discuss that in the alternative finding to asbestos bodies in lung tissue, the causal relationship between lung cancer and asbestos may be Tinked by the presence of asbestosis in the affected individual or, in the absence of asbestosis or pathologic evidence, a history of exposures to asbestos in excess of 25 f/cc years. Consensus Report: Asbestos, Asbestosis, and cancer: The Helsinki criteria for KeInjered: 030 ltd obje BELEPR wep 6 ts PLAINTIVS' EVIDENTIARY OBJECTIONS TO EVIDENCECo em YW KD hw BR YY 10 COURT’S RULING ON OBJECTION NO. 4: Dated: diagnosis and attribution, Scand J. Work Environ Health, 1997;23:31 1-6. Sustained: Overruled: 5. Objections to the Declaration of Khalil Sheibani, at §6 Material Objected To: 5. Declaration of Khalil Sheibani, at 96 Kunjurod. 9349p ldbovid objs BELL PR wepd Grounds for Objection: 5. This testimony is vague, lacks foundation and competence, is speculative, irrelevant, and immaterial. (Evid. Code §§ 210, 350, 403, 405, and 702.) It is not enough for the declarant simply to state that he has personal knowledge of the facts stated. Rather, the declaration itself must contain facts showing the declaration’s connection with the matters stated therein, thereby establishing the source of his or her information, Otherwise, the declarant’s testimony that he or she has such knowledge is purely a conclusion. (Osmond v. EWAP, Ine, (1984) 153 Cal App.3d 842, 857; Brown & Weil, Calif. Practice Guide: Civil Procedure Before Trial (The Rutter Group) € 9:59, ch. 9I-B; and Evid. Code § 702.) Dr. Sheibani pronounces that it is “scientifically reasonable” to apply one diagnostic criteria picked at random from the realm of lung cancer to that of colon cancer. The Doctor does not explain why it would not also be scientifically reasonable to apply the pathologic criteria for diagnosis of Mesothelioma or Laryngeal Cancer, other asbestos-caused cancers. The doctor, likewise, does not discuss that in the alternative finding to asbestos bodies in lung tissue, the causal relationship between lung cancer and asbestos may be linked by the presence of asbestosis in the affected individual or, in the absence of asbestosis or pathologic evidence, a history of exposures to asbestos in excess of 25 f/ec years. Consensus Report: Asbestos, Asbestosis, and cancer: The Helsinki criteria for diagnosis and attribution, Scand J. Work Environ Health, 1997;23:311-6. Dr. Sheibani does not cite a single aper, report, publication or other work that he has undertaken that provides a basis for HLA PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO EVIDENCECo em YW KD hw BR YY 10 his conclusion stated in this paragraph which amounts to a summary of his earlier unsupported conclusions combined to reach an even more tenuously supported conclusion that plainly has no foundational support in this declaration. COURT’S RULING ON OBJECTION NO. 3: Dated: Sustained: Overruled: 6. Objections to the Institute of Medicine of the National Academies, National Academy of Sciences, Committee on Asbestos, Ashestos: Selected Cancers, Washington, DC: National Academies Press; 2006, at pg. 10, attached as Exhibit D to the Declaration of Robert W. Morgan, M.D. Material Objected To: Grounds for Objection: 6. Institute of Medicine of the National 6. Experts may properly rely on hearsay in Academies, National Academy of Sciences, forming their opinions in their field, but Committee on Asbestos, Asbestos: Selected they may not relate the hearsay Cancers, Washington, DC: National statements/findings of another as proof of Academies Press; 2006, at pg. 10, attached facts. Korsak v. Atlas Hotels (1992) 2 as Exhibit D to the Declaration of Robert W. Cal. App.4th 1516; Whitfield’v. Roth (1974) Morgan, M.D. 10 Cal.3d 874; and Rodwin Metals, Inc. v. Western (1970) 10 Cal App.3d 219. In short, Dr. Morgan may rely on enumerated publications (in so far as they exist) to arrive at his conclusions but the publications themselves are hearsay without exception and are not themselves, independently admissible as evidence or to prove any fact. COURT’S RULING ON OBJECTION NO. 6.: Dated: Sustained: Overruled: Dated: 4/24/13 BRAYTON“PURCELL LLP By: /s/ Jennifer L. Alesio Jennifer L. Alesio Attorneys for Plaintiffs KeInjered: 030 ltd obje BELEPR wep 8 ts PLAINTIVS' EVIDENTIARY OBJECTIONS TO EVIDENCE