On December 17, 2010 a
RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS (TRANSACTION ID # 51967263) FILED BY PLAINTIFF ROSS, ROBERT ROSS, JEAN
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.
Preview
BRAYTON*PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
PO BOX 6169
NOVATO, CALIFORNEA 94948-6169
4415) 808-1585
oem NY KD A BY
10
ALAN R. BRAYTON, ESQ., 8.B. #73685
JENNIFER L. ALESIO, ESQ., 8.B. #258413
BRAYTON*#PURCELL LLP ELECTRONICALLY
Attorneys at Law
222 Rush Landing Road F ILE D .
P.O. Box 6169 Superior Court of California,
Novato, California 94948-6169 County of San Francisco
(415) 898-1555 APR 25 2013
. Clerk of the Court
Attorneys for Plaintiffs BY: ALISON AGBAY
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ASBESTOS
No. CGC-10-275731
PLAINTIFFS’ RESPONSE TO
DEFENDANT COLLINS ELECTRICAL
COMPANY, INC.’S SEPARATE
STATEMENT OF UNDISPUTED
MATERIAL FACTS
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
ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs.
C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit |
attached to the Summary Complaint
herein; and DOES 1-8500.
eee
Plaintiffs hereby submit the following responses to defendant COLLINS ELECTRICAL
COMPANY, INC.’s Separate Statement of Undisputed Facts in Support of Motion for
Summary Judgment, with reference to plaintiffs’ supporting evidence disputing such
statements.
UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE/EVIDENCE
1. Plaintiffs filed a Third Amended 1. Undisputed.
Complaint on May 11, 2012, wherein
Plaintiffs claim Plaintiff Robert Ross
(“ROSS”) had been diagnosed with colon
cancer and that the cancer was caused by his
alleged exposure to asbestos attributable to
the defendants named herein.
KAinjuredi 93.9) piss COLELC apd 1
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.S SEPARATE STATEMENT OF UNDISPUTED
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Supporting Evidence: Plaintiffs’ Third
Amended Complaint filed May 11, 2012,
attached as Exhibit B to the Declaration of
Melissa D. Ippolito, Esq. (hereinafter
referred to as “Decl. of Ippolito”).
2. The Third Amended Complaint alleges
the following causes of action against this
defendant: Negligence, Strict Liability,
Loss of Consortium and Premises
Owner/Contractor Liability.
Supporting Evidence: Plaintiffs’ Third
Amended Complaint filed May 11, 2012,
attached as Exhibit B to the Decl. of
Ippolito.
3. Defendant answered the Third Amended
Complaint with a general denial and
asserted affirmative defenses.
Supporting Evidence: Defendant’s
Answer to the Third Amended Complaint,
attached as Exhibit C to the Decl. o
Ippolito.
4. Plaintiffs dismissed the cause of action
for Strict Liability and the claims arising
from the May 2009 diagnosis of asbestosis
and asbestos-related pleural disease.
Supporting Evidence: Request for
Dismissal., attached as Exhibit D to the
Decl. of Ippolito.
5. Plaintiffs sought leave of court to add an
asbestosis claim when filing the Third
Amended Complaint; the court rejected the
asbestosis claim as that claim was included
in a prior lawsuit adjudicated in this same
court.
Supporting Evidence: Notice of Entry of
Order Granting in part and Denying in part
Leave to File Third Amended Complaint,
filed on May 11, 2012, attached as Exhibit
Ato the Decl. of Ippolito; and Order
Granting Defendant Temporary Plant
Cleaners, Inc.’s Motion to Strike Portions
of Plaintiff's Third Amended Complaint,
attached as Exhibit E to the Decl. of
Ippolito.
6. Upon review and staining of pathology
slides, Dr. Sheibani confirmed ROSS’s
Kainjured b3-4¥iplss COLELC wad
2
2. Undisputed.
3. Undisputed.
4. Undisputed.
5. Undisputed.
6. Disputed. This testimony is vague, lacks
foundation and competence, is speculative,
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
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diagnosis of invasive adenocarcinoma of
the colon, which had originated from a pre-
existing benign polyp.
Supportin Evidence: Declaration of
Khalil Shetbani, M.D. at 2:22-24.
7. Dr. Sheibani is of the opinion that there
is no casual relationship between colorectal
polyps and asbestos exposure, and there is
no increased risk of colorectal polyps in
individuals who have been exposed to
asbestos.
Supporting Evidence: Declaration of
Khalil Shetbani, M.D, at 3:3-5.
Kainjured b3-4¥iplss COLELC wad
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 i 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. 91-B; and Evid. Code § 702.)
This statement is irrelevant to the
issue at hand of whether or not asbestos
contributed to cause colon cancer in an
individual such as Mr. ROSS who has
evidence of individual susceptibility to
asbestos exposure given the radiographic
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.
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at § 9.
7. Undisputed that this is Dr. Sheibani’s
“opinion. ” Disputed as to the content of his
opinion.
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,
3
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.S SEPARATE STATEMENT OF UNDISPUTED
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8. Dr. Sheibani found no evidence of
asbestos bodies in ROSS’s colon tissue.
Supporting Evidence: Declaration of
Khalil Sheibani, M.D. at 3:14-15.
9. Dr. Sheibani opines, based on the
established scientific facts in medical
literature, his experience and research in the
field of oncologic pathology, and objective
findings in the histologic sections prepared
from ROSS’s colon tissue that showed
transformation of benign polyp to cancer, as
well as the absence of asbestos bodies, that
to a reasonable degree of medical certainty
ROSS’s colon cancer originated from a pre-
existing polyp and the polyp is the cause of
the cancer.
Kainjured b3-4¥iplss COLELC wad
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.3 > 851; Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) 79:59,
ch. 91-B; and Evid. Code § 702.)
This statement is irrelevant to the
issue at hand of whether or not asbestos
contributed to cause colon cancer in an
individual such as Mr, ROSS who has
evidence of individual susceptibility to
asbestos exposure given the radiographic
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.
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at € 9.
8. Undisputed.
9. Undisputed that this is Dr. Sheibani’s
“opinion. ” Disputed as to the content of his
opinion.
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
4
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
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Supporting Evidence: Declaration of
Khalil Sheibani, M.D. at 3:16-22.
dif
Kainjured b3-4¥iplss COLELC wad
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, 831; Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) 4 9:59,
ch. 9-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/cc years.
Consensus Report: Asbestos, Asbestosis,
and cancer: The Helsinki criteria for
diagnosis and attribution, Scand J. Work
Environ Health, 1997;23:31 1-6.
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
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
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at € 9.
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
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10. Dr. Sheibani also opines that the cause
of ROSS’s colon cancer is unrelated to any
alleged asbestos exposure.
Supportin Evidence: Declaration of
Khalil Shetbani, M.D. at 3:22-24.
Kainjured b3-4¥iplss COLELC wad
10. Undisputed that this is Dr. Sheibani’s
“opinion. ” Disputed as to the content of his
opinion.
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 yv. EWAP, Inc. (1984)
153 Cal_App.3 , 851; Brown & Weil,
Calif, Practice Guide: Civil Procedure
Before Trial (The Rutter Group) § 9:59,
ch. 91-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/cc years.
Consensus Report: Asbestos, Asbestosis.
and cancer: The Helsinki criteria for
diagnosis and attribution, Scand 7 Work
Environ Health, 1997;23:311-6.
Dr. Sheibani does not cite a single
paner. report, publication or other work that
e has undertaken that provides a basis for
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.
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
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11. Dr. Morgan opines that to a degree of
medical and scientific certainty, the
evidence does not support a relationship or
casual connection between asbestos
exposure and colon cancer.
Supporting Evidence: Declaration of
Robert W. Morgan, M.D. at 4:1-2.
Kainjured b3-4¥iplss COLELC wad
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at € 9.
11. Disputed. 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.3d 842, 851; 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 Doctor’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
relative risk . So when you give me some
telative risks and sort of say, well, is this
PLAINTIFF'S: RETRONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC."S SEPARATE STATEMENT OF UNDISPUTED
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eo WA A BOB He se Ss oO we YY BD mA Bw ww
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, p. 32:4-11.
As the Doctor correctly notes above,
causation is a great deal more than merely
an assessment of risk, yet the Doctor’s
conclusions contained in the instant
declaration rely solely on risk assessment to
derive his conclusion that colon cancer is
not caused by asbestos exposure.
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)
rejected for publication by a prominent
peer-reviewed epidemiological journal and
2) that this “analysis” was funded by
attorney’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, I 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?
A. Yes.
Q. The article that you submitted was on
gastrointestinal cancer as to whether that's
caused by asbestos; correct?
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A. Yes.
Q. You submitted that in the 1980s;
correct?
A. Correct.
Q. I 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. TE 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 pp. 1637:12-1638: 20.
Furthermore, this testimony lacks
foundation and is speculative as Dr.
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.
KAinjuredi 93.9) piss COLELC apd 9
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.'S SEPARATE STATEMENT OF UNDISPUTED
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12. Dr. Morgan further opines that
asbestos exposure neither caused nor
contributed to ROSS’s cancer.
Supporting Evidence: Declaration of
Robert W. Morgan, M.D. at 4:3-4.
Kainjured b3-4¥iplss COLELC wad
Q. Are you an expert in the pathogenesis of
asbestos disease?
A. No.”
Deposition of Robert Morgan, taken on
Noy. 7, 2007, at pg 24:22- 25:1, in the
matter of Jersey Gray vs. Allis-Chalmers,
Corp. (SFSC No.274042).
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at 9.
12. Disputed. 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 i is purely a conclusion.
Qupen v. EWAP, Ine, (1984)
15. pp. 1; Brown & Weil,
Calif. Practee 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
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCO OW YN DR A BY De
RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS
Kainjured b3-4¥iplss COLELC wad
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 Doctor’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
issucs 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
relative 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, p. 32:4-11,
As the Doctor correctly notes above,
causation is a great deal more than merely
an assessment of risk, yet the Doctor’s
conclusions contained in the instant
declaration rely solely on risk assessment to
derive his conclusion that colon cancer is
not caused by asbestos exposure.
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)
rejected for publication by a prominent
peer-reviewed epidemiological journal and
2) that this “analysis” was funded by
attorney’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, I 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
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCO OW YN DR A BY De
RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS
Kainjured b3-4¥iplss COLELC wad
British Journal of Industrial Medicine; isn't
that correct’?
A. That's right.
Q. That's a well-regarded journal in your
field?
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. I 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. It was.
Q. And your company received about
$40,000 at the time from those attorneys
to conduct that project; correct?
A. Somewhere about that.”
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
10
13. Dr. Morgan agrees with the Institute of
Medicine of the National Academies
(“IOM”) that there is no causal relationship
between asbestos and colorectal cancer.
Supporting Evidence: Declaration of
Robert W. Morgan, M.D. at 3:20-21.
Kainjured b3-4¥iplss COLELC wad
13
Trial Testimony of Robert Morgan in the
Phillip Hoeffer, Jr. matter (SFSC No.
413073) Vol. 15, Proceedings of
November 24, 2003, at pp. 1637:12-1638:
20.
Furthermore, this testimony lacks
foundation and is speculative as Dr.
Morgan has admitted on several occasions
that he is net 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 pp. 24:22- 25:1, in the
matter of Jersey Gray vs. Allis-Chalmers.
Corp. (SFSC No.274042).
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr, Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at { 9.
13. Disputed. This testimony is vague,
lacks foundation and competence, is
speculative, irrelevant, and immaterial.
(Evid. Code §§ 210, 350, 403, 405, and
702.) Itis 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.
fnowledge is purely a conclusion.
Osmond v. EWAP, Inc. (1984)
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCO OW YN DR A BY De
RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS
153 Cal.App.3d 842, 851; Brown & Weil,
Calif. Practice Guide: Civil Procedure
Before Trial (The Rutter Group) J 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, p. 32:4-11.
As the Doctor correctly notes above,
causation is a great deal more than merely
an assessment of risk, yet the Doctor’s
conclusions contained in the instant
declaration rely solely on risk assessment to
derive his conclusion that colon cancer is
not caused by asbestos exposure.
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)
rejected for publication by a prominent
peer-reviewed epidemiological journal and
2) that this “analysis” was funded by
attorney’s representing asbestos defendants
in the amount of over $40,000.
“Q. You mentioned that you published
some articles; is that correct?
A. Yes.
KAinjuredi 93.9) piss COLELC apd 14
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
10
Kainjured b3-4¥iplss COLELC wad
Q. And out of that body of work, I 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?
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. I 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. Edon't remember the date, but it was
rejected.
Q. And that article emanated from your
research into the topic; did it not,
Doctor?
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
10
dif
Kainjured b3-4¥iplss COLELC wad
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 pp. 1637:12-1638:
Furthermore, this testimony lacks
foundation and is speculative as Dr.
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 p, 24:22- 25:1, in the
matter of Jersey Gray vs. Allis-Chalmers.
Corp. (SFSC No.274042).
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at 4 9.
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
10
14. The IOM conducted an exhaustive
review of scientific studies and tests on the
issue and determined that there is not a
sufficient scientific basis to support a
designation of causality between asbestos
exposure and colon cancer.
Supporting Evidence: Institute of
Medicine of the National Academies,
National Academy of Sciences, Committee
on Asbestos, Asbestos: Selected Cancers,
Washington, DC: National Academies
Press; 2006, at pg. 10, attached as Exhibit D
to the Declaration of Robert W. Morgan,
M.D.
15. There are many causal factors for colon
cancer that are not related, such as diet,
exercise, smoking and alcohol
consumption.
Supporting Evidence: Institute of
Medicine of the National Academies,
National Academy of Sciences, Committee
on Asbestos, Asbestos: Selected Cancers,
Washington, DC: National Academies
Press: 2006, at pg. 216, attached as Exhibit
Dio the Declaration of Robert W. Morgan,
Kainjured b3-4¥iplss COLELC wad
17
4, Disputed. The “supporting evidence”
cited is hearsay without exception.
Experts may properly rely on
hearsay in forming their opinions in their
field, but they may not relate the hearsay
statements/findings of another as proof of
facts. Korsak v. Atlas Hotels (1992) 2
Cal.App-4th 1516; Whitfield'v. Roth (1974)
0 Cal.3d 874; and Rodwin Metals, Inc. v.
Western (1970) 10 Cal.App.3d 219. In
short, Dr. Morgan (and, by extension, Dr.
Schwartz) may rely on enumerated
publications 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 as defendant apparently is
attempting to do here.
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at § 9.
15. Undisputed insofar as plaintiffs agree
there are other factors which may also
contribute to cause colon cancer. Disputed
insofar as defendant intends to suggest that
these causes exclude or somehow protected
Mr. ROSS from the carcinogenic effects of
asbestos. Additionally, the “supporting
evidence” cited is hearsay without
exception.
Experts may properly rely on
hearsay in forming their opinions in their
field, but they may not relate the hearsay
statements/findings of another as proof of
facts. Korsak v. Atlas Hotels (1992) 2
Cal_App.4th 1516; Whitfield v. Roth (1974)
10 Cal.3d 874; and Rodwin Metals, Inc. v.
Western (1970) 10 Cal. App.. . In
short, Dr. Morgan (and, by extension, Dr.
Schwartz) may rely on enumerated
publications to arrive at his conclusions but
the publications themselves are hearsay
without exception and are not themselves,
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.’S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTSCo em YW KD hw BR YY
10
independently admissible as evidence or to
prove any fact as defendant apparently is
attempting to do here.
However, each and every one of the
peer reviewed articles in the Annotated
Bibliography of Colon Cancer Articles,
attached as Exhibit 4 to Dr. Schwartz’s
declaration is 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.
Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at { 9.
Dated: 424/13 BRAY TON*®PURCELL LLP
By: /s/ Jennifer L. Alesio
Jennifer L. Alesio
Attorneys for Plaintiffs
KAinjuredi 93.9) piss COLELC apd 18
PLAINTIFF'S RESPONSE TO DEFENDANT COLLINS ELECTRICAL COMPANY, INC.'S SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS,