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

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                                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

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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
Tentative Ruling Contest Email: contestasbestasTR@braytonlaw,com BY: ALISON AGBAY

Deputy Clerk

Attomeys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No, CGC-10-275731
Plaintiffs, )
)  PLAINTIFFS' MEMORANDUM OF
Vs. ) POINTS AND AUTHORITIES IN
) OPPOSITION TO DEFENDANT BELL
C.C. MOORE & CO. ENGINEERS; ) PRODUCTS INC.’S MOTION FOR
Defendants as Reflected on Exhibit [, ) SUMMARY JUDGMENT
Exhibit H, Exhibit I; 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
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TABLE OF CONTENTS

1 INTRODUCTION |. 2.02 eee 1
ul STATEMENT OF FACTS ... 0000. eects 2
Hl. LEGAL ARGUMENT ... 0.06000 cee ent ene eee 3

A. THE SCOPE OF BELL PRODUCTS’S MOTION IS LIMITED
TO THE ISSUES PRESENTED IN ITS SEPARATE
STATEMENT OF UNDISPUTED MATERIAL FACTS ..............0.. 3

B. THE MORGAN AND SHEIBANI DECLARATIONS ARE
VAGUE, SPECULATIVE, LACKING IN FOUNDATION AND
THEREFORE INSUFFICIENT TO SHIFT THE BURDEN OF
PRODUCTION TO PLAINTIFFS . 00.006. cnet 4

c. TRIABLE ISSUES OF MATERIAL FACT EXIST
REGARDING PLAINTIFF'S EXPOSURE TO ASBESTOS FOR
WHICH BELL PRODUCTS IS LIABLE . 00.0... eee eee eee 6

1. Plaintiffs’ Expert’s Declaration Must Be Liberally
Construed and Is Entitled to All Favorable
inferences. It Does Not Have te Be Detailed, and
Any Questions as to Foundation Go to the Weight
and Not to the Admissibility of the Expert's

Opinion 2.6.2.2 ee eee 8
CONCLUSION 0.0 enn en nnn eee enn EES il
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TABLE OF AUTHORITIES

CASES

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 20.0... ccc cee eee 7
Andrews v. Foster Wheeler (2006) 138 Cal. App.4th 96.......0...000 000s eee ee eee 10, 11
Black v. Sullivan (1975) 48 Cal -App.3d 557...00 000000 cece eee eee 7
Buckwalter v. Airline Training Center (1982) 134 Cal.App.3d 547. 0000.00.00. cca 9
Conn v. National Can Corp, (1981) 124 Cal.App.3d 630... 0.00.00... eee 3
Furla v. Jon Douglas Co. (1998) 65 Cal. App.4th 1069. 22... 0022 7
Hanson v. Grode (1999) 76 Cal.App.4th 601 0... eee cece eee eee ees 8,9
Herber v. Yaeger (1967) 251 Cal App.2d 258 0... 7
Jersey Gray vs. Allis-Chalmers, Corp. SFSC No.274042 0.0.00 o nee 5
Joslin vy. Marin Municipal Water District (1967) 67 Cal.2d 132.000... cece cee ene 7
Juge v. County of Sacramento (1993) 12 Cal App.4th 59... eee eee 3,4
Kelley v. Trunk (1998) 66 Cal.App.4th 519 0000000 eee 9
Powell v. Kleinman (2007) 151 Cal.App.4th 112 0.0... 9
Sanchez v, Hillerich & Bradsby Co. (2002) 104 Cal App.4th 703. ...........0. 0.000005 9

Varlow-Prudent, Inc. v. Hampshire Construction Company (1975) 51 Cal.App.3d 654. 7

Whaley v. Fowler, 152 Cal. App.2d 379 000... occ cnet trent ee 7
Walsh v. Walsh (1941) 18 Cal.2d 439 000 ce cece 7
STATUTES
Code of Civil Procedure § 437¢. nen eee eee eee e eens 3
Evidence Code section 801(b) . 0. cece cee teens 8
MISCELLANEOUS
“Consensus Report: Asbestos, Asbestosis, and cancer: The Helsinki criteria

for diagnosis and attribution,” Scand J. Work Environ Health, 1997.00.00... 0000s eas 6
The Law Revision Commission comment 801... .......-0 0600 e cece eee eee 8
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L
INTRODUCTION

Defendant BELL PRODUCTS INC. (hereinafter “defendant” or “BELL PRODUCTS ”)
Motion For Summary Judgment argues that summary judgment should be granted based one
contentions, namely that plaintiff ROBERT ROSS (“plaintiff”) cannot demonstrate a
compensable injury caused by his occupational asbestos exposure. BELL PRODUCTS’s
motion does not dispute that plaintiff was exposed to asbestos by the work of its
MECHANICAL employees. Neither does BELL PRODUCTS dispute that plaintiff has colon
cancer. BELL PRODUCTS’s only arguments relate to the issue of causation and do not involve
the extent or nature of any asbestos exposure.

In support of its argument that plaintiffs cannot establish that a compensable injury
attributable to BELL PRODUCTS exists, BELL PRODUCTS relies on the inadmissible
declarations of Drs. Khalil Sheibani and Robert Morgan Dr. Morgan concludes that colon
cancer is not causally connected to any asbestos exposure in anyone ever and therefore cannot
be caused by asbestos in Mr. ROSS and Dr. Sheibani insists, without any explanation or citation
to a single peer-reviewed article, that it is perfectly reasonable to extrapolate diagnostic criteria
for lung cancer attribution to asbestos to colon cancer. However, Drs. Sheibani and Morgan’s
conclusions as set forth in their declarations should be stricken as both have failed to indicate

the necessary foundation. (See Plaintiffs’ Evidentiary Objections.)

If this Court determines that the declarations of Drs. Sheibani and Morgan are
admissible in their entirety, plaintiffs nevertheless establish that a triable issue of fact exists
regarding the issue of causation. In response to defendant’s arguments, plaintiffs offer the
declaration of Dr. David A. Schwartz, M.D., who concludes that Mr. ROSS has asbestosis as
well as asbestos-induced colon cancer. He further concludes that Mr. ROSS’s colon cancer is
in part caused by his exposure to asbestos. Additionally, Dr. Schwartz concludes that people,
such as Mr. ROSS, with asbestos exposure and with an additional history of tobacco exposure,
have a significantly higher incidence of cancer complications than with either asbestos or

dif

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tobacco exposure alone, as the combined increased risk of these two carcinogens is
multiplicative.

Referencing numerous and clearly identified scientific and medical articles,
Dr. Schwartz concluded that it is generally accepted in the medical community that exposure to
asbestos can cause asbestos-induced cancers, including Mr. ROSS’s asbestos-induced colon
cancer. Dr. Schwartz further concludes that every occupational exposure to asbestos above
ackground, 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
evels, and substantial.

The conflicting expert declarations establish that a triable issue of fact exists as it

pertains to the only issue raised by BELL PRODUCTS in its Motion, namely the issue of
causation.
i.
STATEMENT OF FACTS

David Schwartz, M.D., reviewed medical records from the plaintiff ROBERT ROSS,
including his pathology and radiology reports, and including pulmonologist Alvin J. Schonfeld,
M.D.'s report dated September 16, 2009. Dr. Schwartz concluded that Mr. ROSS has
asbestosis, and, as well, he has developed colon cancer which was caused in part by 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
risk of these two carcinogens is multiplicative, (Plaintiffs’ Separate Statement of Disputed
Material Facts “PSS” No. 1.)

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 be removed from the body. Every exposure to asbestos above background level

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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. Any fiber contacting a cell may cause
genetic damage, may induce inflammatory reactions, or may cause other biochemical reactions,
including those which lead to the development of asbestosis and colon cancer. After accounting
for sufficient latency, these diseases result from cumulative exposure to asbestos. In individuals
who develop these diseases, such as Mr. ROSS, every occupational or para-occupational
exposure to asbestos plays a role in causing the disease. (PSS Nos.2-3.)

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. (PSS No, 4.)

Exposure to asbestos contributed to cause Mr. ROSS’s colon cancer and 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. (PSS No. 5.)

I.
LEGAL ARGUMENT.
A. THE SCOPE OF BELL PRODUCTS’S MOTION IS LIMITED TO THE

ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS

California Code of Civil Procedure § 437c¢ imposes “on the moving party both a
pleading requirement and a substantive burden in order to prevail on a motion for summary

judgment.” (Juge v. County of Sacramento (1993) 12 Cal. App.4th 59, 66.) “[T]he initial duty

to define the issues presented by the complaint and to challenge them factually is on the
defendant who seeks a summary judgment.” (Conn v. National Can Corp. (1981)
124 Cal. App.3d 630, 638.) This duty requires a defendant seeking summary judgment to set

forth in its moving papers “with specificity (1) the issues tendered by the complaint or answer

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which are pertinent to the summary judgment motion and (2) each of the grounds of law upon
which the moving party is relying in asserting that the action has no merit or there is no defense
to the action.” (Juge, 12 Cal. App.4th at 67.)

BELL PRODUCTS argues in its Motion that plaintiffs cannot obtain evidence that
would establish that plaintiff ROBERT ROSS has a compensable injury caused by his
occupational asbestos exposure. BELL PRODUCTS makes no claim that plaintiffs’ discovery
responses and deposition testimony are factually devoid or deficient. In addition, BELL
PRODUCTS does not dispute the asbestos content of its products or that as a result of its
employees working with and around its equipment or products plaintiff was exposed to
substantial levels of respirable asbestos. BELL PRODUCTS also does not dispute that plaintiff
has colon cancer nor does BELL PRODUCTS dispute that plaintiff has asbestosis.

Since none of the above-listed issues are in dispute, BELL PRODUCTS cannot later
raise these issues in any reply or at oral hearing. The only issue before this Court pertains to
whether plaintiffs have established by the evidence they presented in opposition to BELL
PRODUCTS’s Motion that a triable issue of fact exists regarding whether Mr. ROSS suffered a
compensable injury which was caused by his occupational asbestos exposure.

B. THE MORGAN AND SHEIBANI DECLARATIONS ARE VAGUE,

SPECULATIVE, LACKING IN FOUNDATION AND THEREFORE

INSUFFICIENT TO SHIFT THE BURDEN OF PRODUCTION TO
PLAINTIFFS

The declarations of Drs. Morgan and Sheibani are impossibly general, vague, and
without support for the “opinions” they hepe to advance. Dr. Morgan, an. epidemiologist whose
most notable publication in the area was rejected by a peer-reviewed journal and was the
product of $40,000 of asbestos-defense funding, relies on a grand total of three meta-analyses
(including his own) for his conclusions. His declaration speaks in exceedingly broad terms
intended to play up the utility and reliability of the three studies he cherry picked from the
literature . Itis unclear what other “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
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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 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 November 7, 2007, pg 32:4-11, attached as Exhibit B
to the Alesio Declaration.)

As Dr. Morgan 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 opinion that colon cancer is not caused by asbestos exposure.
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 November 7, 2007, at pg 24:22- 25:1, in the matter of

Jersey Gray vs. Allis-Chalmers, Corp. (SFSC No.274042).)

Dr. Sheibani, a pathologist, is qualified to describe the type of cancer he saw under the
microscope in the particularly limited amount of tissue he was given(in this case
adenocarcinoma of the colon, undisputed by plaintiffs), but he leaps to conclusions regarding
causation that, in addition to having no foundation contained anywhere in the declaration,

tnisstate criteria for lung cancer attribution that he attempts (without explanation) to apply to

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colon cancer. Dr. Sheibani pronounces that it is “scientifically reasonable” to apply one
diagnostic criterion 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 to finding 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/ce years. (“Consensus Report:
Asbestos, Asbestosis, and cancer: The Helsinki criteria for diagnosis and attribution,” Scand J.
Work Environ Health, 1997; 23:311-6.)

Incidentally, ROBERT ROSS has both clinical asbestosis and over 30 years of work as
an insulator, so if Dr. Sheibani wishes to rely on lung cancer criteria for asbestos attribution,
Mr. ROSS meets that test at least two separate ways. With respect to his conclusions about
polyps being the sole cause to the exclusion over 30 years of asbestos exposure, Dr. Sheibani
does not cite a single paper, report, publication, or other work that he has undertaken that
provides a basis for this opinion, Accordingly, the Court should strike these portions of his
declaration as being speculative and lacking in foundation.

c. TRIABLE ISSUES OF MATERIAL FACT EXIST REGARDING

PLAINTIFF’S EXPOSURE TO ASBESTOS FOR WHICH BELL PRODUCTS
iS LIABLE

If the Court should find that BELL PRODUCTS has shifted the burden to plaintiffs
which it has not, the Court should deny BELL PRODUCTS’s Motion for Summary Judgment
as triable issues of material fact exist. When evaluating the evidence before the Court, the
Court must remember that in ruling upon a summary judgment motion, it is the primary duty of
the trial court to determine if the opposing party has presented any facts which give rise to a
triable issue. Ifa single material issue surfaces, the Court is powerless to proceed further, but
rather must allow the issue to be resolved by a trier of fact. As is well established in California,
the focus of the courts’ entire inquiry when faced with a summary judgment motion is issue

finding, not issue determination. (Black v. Sullivan (1975) 48 Cal.App.3d 557.) The purpose

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of the summary judgment procedure is to discover, through the medium of affidavits, whether
parties possess evidence requiring the weighing procedures of trial. (Joslin v. Marin Municipal
Water District (1967) 57 Cal.2d 132.)

A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find
in favor of the party opposing the motion in accordance with the standard of proof applicable at

trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) In ruling upon the

propricty of a summary judgment the Court will consider most liberally the affidavits filed on
behalf of the party defending the motion, even considering ultimate facts and conclusions of law
to the end that no case with a possible triable issue of fact will be disposed of summarily.
(Whaley v. Fowler, 152 Cal App.2d 379.) The trial court, in examining the supporting and
opposing papers, must strictly construe the evidence offered by the moving party and liberally
interpret the evidence of the opposing party. (Varlow-Prudent, Inc. v. Hampshire Construction

Company (1975) 51 Cal.App.3d 654.)

The facts alleged in the affidavits of the party opposing the motion must be accepted as
true, and the allegations therein need not necessarily state strictly evidentiary facts in order to be
sufficient to warrant denial of the motion, (Herber v. Yaeger (1967) 251 Cal.App.2d 258.) If
the Court should find that BELL PRODUCTS has somehow shifted the burden to plaintiffs,
which it has not, the Court should still deny BELL PRODUCTS’s motion as triable issues of
material fact exist. “The function of the trial court in ruling on a motion for summary judgment
is merely to determine whether such issues of fact exist, not to decide the merits of the issues
themselves.” (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-7.) “The primary
duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, it
is then powerless to proceed further, but must allow such issue to be tried by a jury unless a
jury trial is waived.” (Walsh v. Walsh (1941) 18 Cal.2d 439, 441, emphasis added.) “If an
issue of fact is present the trial court abuses its discretion in granting such a motion.” (Black v.
Sullivan, supra.)

Mit
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i. Plaintiffs' Expert’s Declaration Must Be Liberally Construed and Is
Entitled to All Favorable Inferences. It Does Not Have to Be Detailed,
and Any Questions as to Foundation Go to the Weight and Not to the
Admissibility of the Expert’s Opinion

Evidence Code section 801(b) provides:
Testimony of expert witness must be...

Based on matter (including his special knowledge, skill,
experience, training, and education) perceived by or personally
known to the witness or made known to him at or before the
hearing, whether or not admissible, 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, unless an expert
is precluded by law from using such matter as a basis for is
opinion.

The Law Revision Commission comments to 801 state:

In regard to some matters of expert opinion, an expert must, if he
is gong to give an opinion that will be helpful to the jury, rely on
reports, statements, and other information that might not be
admissible evidence.

(T)he matter relied upon by the expert in forming his opinion
must be of a type that reasonably may be relied upon by experts in
forming an opinion upon the subject to which his testimony
relates.

The rule stated in subdivision (b) thus permits an expert to base
his opinion upon reliable matter, whether or not admissible, of a
type that may reasonably be used in forming an opinion upon the
subject to which his expert testimony relates.

In determining whether the facts as shown by the parties give rise to a triable issue of
material fact, “the moving party’s affidavits are strictly construed while those of the opposing
are liberally construed... We accept as undisputed facts only those portions of the moving
party’s evidence that are not contradicted by the opposing party’s evidence... “ In other words,
the facts alleged in the evidence of the party opposing summary judgment and the reasonable
inferences therefrom must be accepted as true. (Hanson v. Grode (1999) 76 Cal.App.4th 601, at

604, citing A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427,

433-434.)
Cases dismissing expert declarations in connection with summary judgment motions do

so on the basis that the opinions were either speculative or were stated without sufficient

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certainty. It is sufficient if an expert declaration establishes the matters relied upon in
expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and

the bases for the opinion. (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal_App.4th 703,

718.)

However, in deciding on the sufficiency and admissibility of expert’s declarations there
are different considerations, dependant upon whether the declarations are proffered in support
of, or in opposition to, a motion for summary judgment. The court in Kelley v. Trunk (1998) 66
Cal.App.4th 519, considered the sufficiency of the declaration of defendant’s expert in support
of the defendant’s motion for summary judgment.

in Hansen v. Grode (1999) 76 Cal. App.4th 601, the court was considering the
sufficiency of the declaration of the plaintiff's expert in opposition to the defendant’s summary
judgment motion. The court in Powell v. Kleinman (2007) 151 Cal.App.4th 112, reconciled the
two:

The court in Kelley was considering the sufficiency of the
declaration of the Tefendant's expert in support of the defendant’s
motion for summary judgment. In such cases, the defendant
‘bears the burden of persuasion that there is no genuine issue of
material fact and that he is entitled to judgment as a matter of
law.’ (Citation) Thus the Kelley court was considering the burden
of production to make a prima Facie showing of the nonexistence
of any genuine issue of material fact. To meet such a burden, the
Kelley court concluded the declaration of the defendant’s expert
had to be detailed and with foundation. (Citing Kelley, supra, at
524) In contrast, the court in Hanson was considering the
sufficiency of the declaration of the Plaintiff's expert in
opposition to the defendant’s summary judgment motion. In such
a case, the declaration submitted by the Plaintiff did not have to
be detailed, was entitled to all favorable inferences and was
deemed sufficient to defeat the summary judgment motion.
(Citing Hanson, supra, at 607-608)

We conclude that both the Kelley and Hanson courts properly
applied the rule that, when considering the declarations of the
parties’ experts, we liberally construe the declarations for the
Plaintiff's experts and resolve any doubts as to the propriety of
granting the motion in favor of Plaintiff. Accordingly, we apply
this well-settled rule of evidence... (at 125-126, emphasis the
court’s)

Likewise, in Buckwalter v. Airline Training Center (1982) 134 Cal. App.3d 547, 553-

554, the court held:

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The reasonableness of an expert's reliance is a question of degree,
and may well vary with the circumstances. Where, as here, there
is little or no direct evidence upon which the expert can base an
opinion, the expert may have to turn to forms of circumstantial
evidence on which he might not otherwise rely. In such
circumstances, the necessity for the information dictates that
courts accord to experts somewhat greater latitude in sources
oripsormation than might otherwise be the case. (Emphasis
added.

Plaintiffs’ expert declaration herein — lengthy, detailed and reasoned, stated with
certainty ~ are qualitatively and substantively different from those offered in Andrews v. Foster

Wheeler (2006) 138 Cal_-App.4th 96. The well-settled rules of evidence to construe these

declarations “liberally” with an entitlement to all “favorable inferences” cannot be ignored.

The factual bases, explanations and reasoning for the expert’s conclusions can be
transparently and readily determined. The opinions are directly based upon the expert’s
personal observations, research and testing, supported and/or based upon a plethora of scientific
writings and treatises, all specifically set forth in their declarations.

The expert’s facts, reasoning, and explanations are neither obtuse or oblique. They are
not “speculation” or “conjecture” but rather are the specific well-researched and tested opinions
of an expert with vast experience in the field of asbestos exposure. His opinions are rendered
with reasoned explanations of why the underlying facts lead to their ultimate conclusion.
Moreover, as set forth above, when considering the declaration, it must be liberally construed
by the Court, entitling the declaration to all favorable inferences. Accordingly, this matter is
readily distinguishable from Andrews. Here, as opposed to Andrews, “how [the expert] reached
their conclusions” is eminently understandable.

In support of their Opposition, plaintiffs submit the declaration of Dr. David A.
Schwartz, a medical doctor, who concludes that Mr. ROSS has asbestosis, as well as asbestos-
induced colon cancer. In fact, unlike BELL PRODUCTS’s Dr. Morgan, Dr. Schwartz
performed an examination of Mr. ROSS. (See Declaration of David A. Schwartz (“Schwartz
Decl”) at § 7, attached as Exhibit A to the Declaration of Jennifer L. Alesio (“Alesio Decl.”).)
Dr. Schwartz, concludes that people, such as Mr. ROSS, with asbestos exposure with an

additional history of tobacco exposure, have a significantly higher incidence of cancer

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MOTION FOR SUMMARY JUDGMENTCO OW YN DR A BY De

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eo WA A PB OH se So we IY DR mA BW BW ee oS

complications than with either asbestos or tobacco exposure alone, as the combined increased
risk of these two carcinogens is multiplicative.

BELL PRODUCTS maintains that plaintiffs colon cancer cannot be caused by asbestos
exposure. In response thereto, plaintiffs offer evidence directly contradicting the conclusions
reached by BELL PRODUCTS’s doctors. Dr. Schwartz declares that based on his experience,
training, and historical review, there are various articles that he has studied regarding the
association between asbestos exposure and colon cancer, He attaches the Annotated
Bibliography of Colon Cancer Articles to his declaration. Each and every one of these peer-
reviewed articles in the attached Annotated Bibliography of Colon Cancer Articles is
independently a basis for his conclusion that it is generally accepted in the medical community
that exposure to asbestos can cause asbestos-induced cancers, including Mr. ROSS's asbestos-
induced colon cancer.

Dr, Schwartz further concludes 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. (PSS 6.) Therefore, Dr. Schwartz’s declaration is admissible evidence.
Here, unlike Andrews, it is detailed and factually based with reasoned explanations for the
opinions and conclusions. The declaration, and all the favorable inferences derived therefrom,
demonstrates that there exist triable issues of material fact.

CONCLUSION

For the reasons stated herein, plaintiffs respectfully request that this Court deny BELL
PRODUCTS INC.’s Motion for Summary Judgment, as plaintiffs have offered affirmative
evidence establishing that a triable issue of fact exists that there is a compensable injury caused
by Mr. ROSS’s occupational asbestos exposure.

Dated: 4/25/13 BRAYTON“PURCELL LLP
By: /s/ Jennifer L. Alesio

Jennifer L. Alesio
Attorneys for Plaintiffs

Kaiju 108-7 Copp BELLPR wpe Wi JA

PLAINTIFFS' MEMORANDLIM OF POINTS AND AUTHORITIES IN OPPOSEFION TO DEFENDANT BELL PRODUCTS INC.’S
MOTION FOR SUMMARY JUDGMENTCO 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

[To comply with Department 503's rule regarding tentative rulings, you must email the
Court notice if you wish to contest the tentative ruling at the following email address:
contestasbestostr@sftc.org. A copy of any email notification to Department 503 must also

be sent to our firm at contestasbestostr@braytonlaw.com.]

Kaiju 108-7 Copp BELLPR wpe 12 JA
PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT BELL PRODUCTS INC.S.
MOTION FOR SUMMARY JUDGMENT222 RUSH LANDING ROAD
PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

BRAYTON@PURCELL LLP
ATTORNEYS AT LAW

(415) 898-1553

27
28

PROOF OF SERVICE BY LEXIS-NEXIS E-SERVICE

lam employed in the County of Marin, State of California. | am over the age of 18
years and am not a party to the within action. My business address is 222 Rush Landing Road,
P.O. Box 6169, Novato, California, 94948-6169.

On Ue ws 13 I electronically served (E-Service), pursuant to General Order
No. 158, the following documents:

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANT BELL PRODUCTS INC.’S MOTION FOR SUMMARY
JUDGMENT; DECLARATION OF JENNIFER L. ALESIO IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO BELL PRODUCTS INC.’S MOTION FOR
SUMMARY JUDGMENT; PLAINTIFE’S RESPONSE TO DEFENDANT BELL
PRODUCTS INC.’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL
FACTS; PLAINTIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO DEFENDANT BELL PRODUCTS INC.’S MOTION
FOR SUMMARY JUDGMENT; PLAINTIFFS' EVIDENTIARY OBJECTIONS TO

on the interested parties in this action by causing Lexis-Nexis E-service program pursuant to
General Order No. 158, to transmit a true copy thereof to the following party(ies):

SEE ATTACHED SERVICE LIST

The above document was transmitted by Lexis-Nexis E-Service and the transmission
was reported as complete and without error.

Executed on 4.95 SB vat Novato, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Angela erfiel

Robert Ross and Jean Ross v. C.C. Moore & Co. Engineers, et al,
San Francisco Superior Court Case No. CGC-10-275731

PROOF OF SERVICE BY E-SERVICEDate Created: 4/22/2013-1:44:25 PM

(AAP)

Brayton-Purcell Service List

Created by: LitSupport ~ ServiceList - Reporting

Matter Number:

Adams Nye Becht LLP
222 Kearny Street, Seventh Floor
San Francisco, CA 94108
415-982-8955 415-982-2042 (fax)
Defendants:

Pribuss Engineering, Inc. (PRIBUS)

Becherer, Kannett & Schweitzer
Water Tower
1255 Powell Street
Emeryville, CA 94608-2604
510-658-3600 510-658-1151 (fax)
Defendants:
CSK Auto, inc. (CSKAUT)
Johnson Controls, Inc. (OHCON)

Bishop, Barry, Drath
Watergate Tower HI
2006 Powell Street, Suite 1425
Emeryville, CA 94608
510-596-0888 | $10-596-0899 (fax)
Defendants:

Foley Electric Co. (FOLELE)

Buty & Curliano
555° - 12” Street, Suite 1280
Oakland, CA 94607
510-267-3000 510-267-0117 (fax)
Defendants:
Critchfieid Mechanical, Inc. (CRIMEC)
Harold Beasley Plumbing and Heating, Inc.
(BEASLY)
$.J. Amoroso Construction Co,, Inc.
(AMOCON)

Foley & Mansfield PLLP
300 Lakeside Drive, Suite 1900
Oakland, CA 94612
510-590-9500 510-590-9595 (fax)
Defendants:
Acco Engineered Systems, Inc.
(ACCHEA)
D.W., Nicholson Corporation (DWNICH)
Fluor Corporation (FLUOR.
kone Star Industries, Inc. (UNSTR)
aay Interior Systems-North

len Mulder Sheet Metal, Inc, (VANMSM)

19349.004 - Robert Ross

Archer Norris

P.O. Box 8035

2033 N. Main Street, puite 800
Walnut Creek, CA 94596
925-930-6600 925-930-6620 (fax)
Defendants:

Albay Construction Company (ALBAY)

Cahill Construction Co., Inc. (CAHILC)
Cahill Contractors, Inc. (CAHILL)
Cupertino Electric, Inc. (CUPELE)

Bennett, Samuelsen, Reynolds & Allard
1301 Marina Village Parkway
Suite 300
Alameda, CA 94501-1084
510-444-7688 510-444-5849 (fax)
Defendants:

Slakey Brothers, Inc. (SLAKEY)

Br Brydon Hugo & Parker
Main Street, 20° Floor
Sen Francisco, CA 941
415-808-0300 415- 208. 0533 (fax)
Defendants:
A. Teichert & Son, Inc. {a TEICH)
Bayer Cropscience Inc. BAyeRO)
Domco Products Texas, L.P. (DOMCO)
Perini Corporation (PERCOR;}
Rountree Plumbing & Heating Inc.
(RNTPLU)
Swinerton Builders (SWINBU)

Cooley Manion Jones, LLP

201 Spear Street

Suite 1800

San Francisco, CA 941
415-512-4381 415-: 312. "6791 (fax)
Defendants:

Temporary Plant Cleaners, Inc. (TEMPLA)

Gordon & Rees LLP
Shari Weintraub, Esq.
101 West Broadway, is Floor
San Die; oB0, C
619-69 B00. 619-696-7124 (fax)
Defendants:
Marshco Auto Parts, Inc. (MARAPI)

Run By : Porterfield, Angela

Bassi, Edlin, Huie & Blum LLP
500 Washington Street
Suite 700
San Francisco, CA 94111
415-397-9006 415-397-1339 (fax)
Defendants:
Balliet Bros. Construction Corporation
(BALBRO)
LT. Thorpe & Son, Inc. (THORPE)
Malm Metal Products, Inc, (MALMSM)

Berry & Berry
P.O. Box 16071
2930 Lakeshore Avenue
Oakland, CA 94610
510-835-8330 510-835-5117 (fax)
Defendants:

Berry & Berry (B&B)

Burnham Brown
1901 Harrison pies, 14" Ploor
Oakland, CA 94612
510-444-6800 510-835-6666 (fax)
Defendants:

California Drywall Co. (CALDRY)

Drinker Biddle & Reath LLP
50 Fremont Street, 20° Floor
San Francisco, CA 94105-2235
415-591-7500 415-591- -7510 (fax)
Defendants:

Pharmacia Corporation, which will do
business in California as Pharmacia
Pharmaceutical Corporation (PHARCA)

Gordon & Rees LLP
Embarcadero Center West
275 Battery Street, Suite 7000
San Francisco, CA
415-986-5900 ns. 38e- 's0s4 (fax)
Defendants:
Goodyear Tire & Rubber Company, The
(GOODYR)Date Created: 4/22/2013-1:44:25 PM

A. (AAP)

Brayton-Purcell Service List

Created by: LitSupport ~ ServiceList - Reporting

Matter Number:

Haas & Najarian, LLP
58 Maiden
Second Floor
San Francisco, CA 94108
415-788-6330 415-391-0555 (fax)
Defendants:

McClure Electric, Inc. (MCCLUR)

Law Offices of Glaspy & Glaspy, Inc.

One Walnut Creek Center
100 Pringle Avenue, Suite 750
Walnut Creek, CA 94596
925-947-1300 925-947-1594 (fax)
Defendants:

Fairmont Hote! Company (FAIRH)

McInerney & Dillon, P.C.
1999 Harrison Street, "Suite 1700
Oakland, CA_ 94612
510-465-7100 510-465-8556 (fax)
Defendants:

Allied Fire Protection (ALLFIR)

Selman Breitman LLP
33 New Montgomery
6" Floor
San Francisco, CA 94105
415-979-0400 415-979-2099 (fax)
Defendants:

Rountree Piumbing & Heating Inc.
(RNTPLU)

Waisworth, Franklin, Bevins & McCall,

LLP
601 Montgomery Street, 9" Floor
San Francisco, CA 94111
415-781-7072 415-391-6258 (fax)
Defendants:
D. Zelinsky & Sons, Inc. (ZELINS)
Duro Dyne Corporation (DURODN)

19349.004 - Robert Ross

Hake Law, A Professional Corporation
655 Montgomery Street

Suite 1000

San Francisco, CA 9411

415-926-5800  415- 26: "5801 (fax)

Defendants:
Advance Mechanical Contractors, Inc.
(ADVMEC)
Anderson, Rowe & Buckley, Inc: (AR&B)
Belt Products Inc. (BELLPR)
reget Investment Company, Inc.
BRA

Callins  Blectrical Company, Inc.
(COLEI 1
Emil J. Weber Electric Co. (EMILJW)

Lew, Bail & Lynch

$05 Montgomery Street, 7° Floor
San Francisco, CA 94111-2584
415-981-6630 415-399-1506 (fax)
Defendants:

Pao Me & Co. (GIAMPO)
Pacific Mechanical Corporation
(PACMCR

Perkins Coie LLP
Four Embarcadero Genter, Suite 2400
San Francisco, CA 941
415-344-7000 415-: 344. 1050 (fax)
Defendants:

General Mills, Inc. (GMILLS)

Sinunu Bruni LLP
333 Pine Street, Suite 400
San Francisco, CA 94104
415-362-9700 415-362-9707 (fax)
Defendants:

McClure Electric, Inc. (MCCLUR)

Run By : Porterfield, Angela

Imai, Tadlock, Keeney & Cordery, LLP
100 Bush Street, Suite 1300
San Francisco, CA 94104
415-675-7000 415-675-7008 (fax)
Defendants:
Clausen-Patten, Inc. (CLSNPT)
Commair Mechanical Services
(COMMAR;
Henry C. Beck Company (HCBECK)
Webcor Builders, Inc. (WEBCOR)

McDowall Cotter, A.P,C,
2070 Pioneer Court
San Mateo, CA 94403
650-572-7933 650-572-0834 (fax)
Defendants:

Beta Mechanical Contractors, Limited
(BETAMC)

Prindle, Amaro, Goetz, Hillyard, Barnes
& Reinholtz LLP
One California queet, Suite 1910
San Francisco, CA 94111
415-788-8354 415-788-3625 (fax)
Defendants:

JW. McClenahan Company, Inc,
GWMCCL)

Red Ee) Electric Co. Emeryville, Inc.
(REDEL!

Sweeney, Mason, Wilson & Bosomworth
A Professional Law Corporation
983 University Ave,, Suite 104C
Los Gatos, CA 95032-7637
408-356-3000 408-354-8839 (fax)
Defendants:

Red ee) Electric Co. Emeryville, Inc.
(REDEL