Document for ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                BRAYTON*PURCELL LLP

Co em 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 sopehr IL EDP
5 Rush Fanding Road 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

ASBESTOS
No. CGC-10-275731

PLAINTIFFS’ RESPONSE TO
DEFENDANT BELL PRODUCTS INC.’S
SEPARATE STATEMENT OF
UNDISPUTED MATERIAL FACTS

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit [,

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

ee

Plaintiffs hereby submit the following responses to defendant BELL PRODUCTS
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.

Supporting Evidence: Plaintiffs’ Third
Amended Complaint filed May 11, 2012,
attached as Exhibit B to the Declaration of

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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. of
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
A to 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
diagnosis of invasive adenocarcinoma of
the colon, which had originated from a pre-
existing benign polyp.

Kdinjurdh.t 9240 pldess BEL LPR wpd

2, Undisputed.

3. Undisputed.

4. Undisputed.

5. Undisputed.

6. 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

PRAITITT'S RESPONSE TO DEFENDANT BELL PRODUCTS INt

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Supporting Evidence: Declaration of
Khalil Sheibani, 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.

Kdinjurdh.t 9240 pldess BEL LPR wpd

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) 4] 9:59,
ch. 91-B; and Evid. Code § 705)

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 thas 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,
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)

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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.

Supporting Evidence: Declaration of
Khalil Shetbani, M.D. at 3:16-22.

Kdinjurdh.t 9240 pldess BEL LPR wpd

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.

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
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

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10. Dr. Sheibani also opines that the cause
of ROSS’s colon cancer is unrelated to any
alleged asbestos exposure.

Supporting Evidence: Declaration of
Khalil Sheibani, M.D. at 3:22-24.

Kdinjurdh.t 9240 pldess BEL LPR wpd

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 induce
colon cancer,

Declaration of David Schwartz,
M.D., attached as Exhibit A to the Alesio
Declaration, at € 9,

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

PRAITITT'S RESPONSE TO DEFENDANT BELL PRODUCTS INt

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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

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) 4 9:59,
ch. 91-B; and Evid. Code § 705.)

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 Feasonable
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;23:3 11-6.

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.

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PRAITITT'S RESPONSE TO DEFENDANT BELL PRODUCTS INC."S SEPARATE STATEMENT OF UNDISPUTED MATERIALCO OW YN DR A BY De

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il. 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.

Kdinjurdh.t 9240 pldess BEL LPR wpd

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
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.

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Kdinjurdh.t 9240 pldess BEL LPR wpd

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?

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.

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Kdinjurdh.t 9240 pldess BEL LPR wpd

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.”

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,

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).

However, each and every one of the
peer reviewed articles in the Annotated

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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.

Kdinjurdh.t 9240 pldess BEL LPR wpd

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.) 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
fnowledss ¢ is purely a conclusion.
(Guinan ue er Inc, (1984)

1; Brown & Weil,
Cali 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

PLAINTIFF’S RESPONSE TO DEFENDANT BELL PRODUCTS INt

FACTS:

SEPARATES STATEMENT OF UNDISPUTED MATERIALCO wm YD A BR RY

RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
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&

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 b
attomey’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 te 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?

sinjumd 1 9248\plduss DEL LPR. wpd i

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TANT’: RESPONSE TO DEFENDANT BELL PRODUCTS INC."S SEPARATE STATEMENT OF UNDISPUTED MATERIAL

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Kdinjurdh.t 9240 pldess BEL LPR wpd

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. 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.”

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.

TANT’: RESPONSE TO DEFENDANT BELL PRODUCTS INt

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13. Dr. Morgan agrees with the Institute of
Medicine of the National Academies
(“10M”) that there is no causal relationship
between asbestos and colorectal cancer.

Supporting Evidence: Declaration of
Robert W. Morgan, M.D. at 3:20-21.

Kdinjurdh.t 9240 pldess BEL LPR wpd

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.) 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

intends to rely on what turns out to be two

PLAINTIFF’S RESPONSE TO DEFENDANT BELL PRODUCTS INt

FACTS:

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

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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
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, 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?

FAC

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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. {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. FT 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.”

Trial Testimony of Robert Morgan in the

Phillip Hoeffer, Jr. matter (SFSC No.
413073) Vol. 15, Proceedings of

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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
wo the Declaration of Robert W. Morgan,

Kdinjurdh.t 9240 pldess BEL LPR wpd

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.

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 € 9.

14. 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)
10 Cal.3d 874; and Rodwin Metals, Inc. v.
Western (1970) 10 CalApp.3d 219- Tn
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.

FAC

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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
D to the Declaration of Robert W. Morgan,
M.D.

Mit
dif

Kdinjurdh.t 9240 pldess BEL LPR wpd

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.3d 219. Tn

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.

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Declaration of David Schwartz, M.D.,
attached as Exhibit A to the Alesio
Declaration, at § 9.

Dated: 4/24/13 BRAY TON*’PURCELL LLP

By: /s/ Jennifer L. Alesio

Kdinjurdh.t 9240 pldess BEL LPR wpd

Jennifer L. Alesio
Attorneys for Plaintiffs

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