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

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A PROFESSIONAL CORPORATION

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William M. Hake, Esq. (State Bar No. 110956)
Melissa D. Ippolito, Esq. (State Bar No. 239811)
Kathryn L. Hoff, Esq. (State Bar No. 260420)

HAKE LAW, A PROFESSIONAL CORPORATION

655 Montgomery Street, Suite 1000
San Francisco, CA 94111

Tel: 415-926-5800

Fax: 415-926-5801
bill@hakelaw.com
melissa@hakelaw.com
tucy@hakelaw.com

Attorneys for Defendant
COLLINS ELECTRICAL COMPANY, INC,

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

ROBERT ROSS AND JEAN ROSS,

Plaintiffs,
vs.

C.C, MOORE & CO., ENGINEERS, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DEFENDANT COLLINS ELECTRICAL]
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENT

ELECTRONICAULY
FILED

Superior Court of Califprnia,
County of San Francisco

FEB 22 2013

Clerk of the Court
BY: WESLEY G. RAMIREZ
Deput)

Case No.: CGC-10-275731

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT COLLINS ELECTRICAL
COMPANY, INC.’S MOTION FOR

SUMMARY JUDGMENT

Hearing Date: May 9, 2013

Time: 9:30 a.m.

Judge: Hon. Teri Jackson
Dept.: 503

Complaint: December 17, 2010
Trial Date: June 10, 2013

ClerkHakr Law,
A PROFESSIONAL CORPORATION

L INTRODUCTION

Plaintiffs Robert and Jean Ross (“Plaintiffs”) filed a lawsuit claiming Robert Ross
(“ROSS”) had colon cancer that was caused by his alleged exposure to asbestos. ROSS
underwent surgery to have the cancer removed. The surgery was a success and the cancer is now]
in remission. Plaintiffs have failed to produce and cannot be reasonably expected to produce any
admissible evidence indicating that ROSS’s alleged asbestos exposure caused his colon cancer.
Furthermore, defendant has produced affirmative evidence demonstrating that to a reasonable
degree of medical certainty, ROSS’s colon cancer was not caused by any alleged asbestos
exposure. As such, Plaintiffs’ entire case fails for lack of causation, warranting summary
judgment. (See Code Civ. Proc., § 437c(c); Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th
953.)

Medical doctors and scientists have conducted studies and tests to determine if there is a
causal link between asbestos exposure and colon cancer. Medical science has not found such a
causal connection. In 2006, the issue was studied by a blue ribbon panel under a congressional
charge to ascertain if there is a causal relationship between asbestos and colon cancer (and other
cancers). The conclusion of this panel of experts was that there is insufficient medical evidence
to establish asbestos as a causal factor for colon cancer. Pursuant to the existing medical
evidence, there is no established causal connection between exposure to asbestos and colon
cancer. Therefore, ROSS’s colon cancer cannot have been caused by any alleged asbestos
exposure and all of Plaintiffs’ claims fail on the issue of causation.

Dr. Sheibani, a pathologist, reviewed the pathology tissue of ROSS and tested same, but
found no asbestos bodies. Dr. Sheibani’s review of ROSS’s colon tissue instead showed
transformation of a benign polyp to cancer. Based on his review of ROSS’s tissue, as well as
established scientific facts in the medical literature, Dr. Sheibani concluded that to a reasonable
degree of medical certainty ROSS’s colon cancer was caused by a polyp. As there is no causal
relationship between colorectal polyps and asbestos exposure, Dr. Sheibani further concluded
that to a reasonable degree of medical probability, the cause of ROSS’s colon cancer is unrelated

to any alleged asbestos exposure. There are other causes for the colon cancer that Plaintiffs
“Le

IRANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DEFEND.
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

cannot medically rule out. Therefore, all of Plaintiffs’ claims fail on the issue of causation.
i. FACTUAL SUMMARY

A, Pleadings.

Plaintiffs filed a Third Amended Complaint on May 11, 2012, wherein Plaintiffs claim
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. [SSUMF No. 1.] The Third
Amended Complaint alleges the following causes of action against this defendant: Negligence,
Strict Liability, Loss of Consortium and Premises Owner/Contractor Liability. [SSUMF No. 2.]
Defendant answered the Third Amended Complaint with a general denial and asserted
affirmative defenses. [SSUMF No. 3.] 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. [SSUMF No. 4.] 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. [SSUMF No. 5.]

B. Medical Experts Agree ROSS’s Colon Cancer Was Not Caused by Asbestos.

Pathology Confirms ROSS’s Colon Cancer Was Not Caused by Asbestos Exposure.

ROSS’s pathology material/tissue and medical records were sent to a pathologist, Dr.
Khalil Sheibani, for review and testing. 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. [SSUMF No. 6.] The progression of benign
colorectal polyps to carcinoma in-situ and eventually adenocarcinoma is a well-known
phenomenon and the data to support the polyp-cancer sequence come from both epidemiologic
and pathologic studies. Dr. Sheibani is of the opinion that there is no causal relationship betwee:
colorectal polyps and asbestos exposure, and there is no increased risk of colorectal polyps in
individuals who have been exposed to asbestos. [SSUMF No. 7.] Importantly, Dr. Sheibani
found no evidence of asbestos bodies in ROSS’s colon tissue. [SSUMF No. 8.] 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

22.

MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DAI
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

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. [SSUMF No. 9.]
Dr. Sheibani also opines that the cause of ROSS’s colon cancer is unrelated to any alleged
asbestos exposure. [SSUMF No. 10.]

Epidemiology Confirms ROSS’s Colon Cancer Was Not Caused by Asbestos Exposure.

Dr. Robert W. Morgan is an epidemiologist who has studied the effects of asbestos
exposure and whether there is a causal connection between such exposure and colon cancer. Dr.
Morgan has reviewed ROSS’s medical records, as well as medical literature and studies
(including some of his own) regarding whether there is any causal connection between asbestos
exposure and colon cancer. Dr. Morgan opines that to a degree of medical and scientific
certainty, the evidence does not support a relationship or causal connection between asbestos
exposure and colon cancer. [SSUMF No. | 1.] Dr. Morgan further opines that asbestos exposure
neither caused nor contributed to ROSS’s cancer. [SSUMF No. 12.]

Dr. Morgan agrees with the Institute of Medicine of the National Academies (“IOM”)
that there is no causal relationship between asbestos and colorectal cancer. [SSUMF No. 13.]
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. [SSUMF No. 14.] As such, the scientific
community has considered and presently rejects the notion that there is adequate proof or
evidence fo support a finding of a causal connection between asbestos and the incidence of colon

cancer, There are, however, many causal factors for colon cancer that are not asbestos related,

such as diet, exercise, smoking and alcohol consumption. [SSUMF No. 15.]

The LOM Concluded the Evidence Was Insufficient To Infer A
Causal Connection Between Asbestos Exposure and Colon Cancer.

The IOM was established in 1970 and acts under a congressional charter to be an adviser
of the federal government. In 2005, the IOM was charged with overseeing “a study that will

comprehensively review, evaluate, and summarize the peer-reviewed scientific and medical
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IRANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DEFEND.
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

literature regarding the association between asbestos and colorectal, laryngeal, esophageal,
pharyngeal, and stomach cancers.” (Institute of Medicine of the National Academies, National
Academy of Sciences, Committee on Asbestos, Asbestos: Selected Cancers, Washington DC:
National Academies Press; 2006 [hereinafter referred to as “IOM 2006 Report”], at pg. 13,
attached as Exhibit D to Declaration of Robert W. Morgan, M.D. in Support of Motion for
Summary Judgment.) “Based on its examination and evaluation of the extant literature and other|
information it may obtain in the course of the study, the committee will determine if there is a
causal association between asbestos and colorectal, laryngeal, esophageal, pharyngeal, or
stomach cancers.” (LOM 2006 Report, at pg.13, emphasis added.) The charge to determine if
asbestos played a causal role in the occurrence of these cancers was drawn from Senate Bill 852,
the Fairness in Asbestos Injury Resolution Act. “The bill would establish an industry-
underwritten $140 billion trust fund for orderly compensation of people suffering health
consequences of working with asbestos or of living in Libby, Montana.” (IOM 2006 Report, at

pg.13.) The IOM’s final report provides, in pertinent part, as follows:

People who have a diagnosis of asbestosis, ling cancer, or
mesothelioma will be eligible to file a claim documenting their
asbestos exposure. Eligibility may also be extended to any
additional cancers that are found to be causally associated with
asbestos by the report of the present IOM expert committee ....
{and the] report will be binding on the administrator and the
physicians’ panel that processes claims against the trust fund.

(10M 2006 Report, at pg. 14.)

The committee selected a four-level classification of the strength
of evidence for causal inference, classifying the evidence as
sufficient, suggestive, or inadequate to infer causality or suggestive
of no causal association. For the purpose of its charge, designating
an association of asbestos with cancers of the designated sites as
causal, the committee required the evidence to reach the level of
sufficient.

(JOM 2006 Report, at pg. 3.)

The committee concluded that the evidence is suggestive but not
sufficient to infer a causal relationship between asbestos exposure
and colorectal cancer.

(1OM 2006 Report, at pg. 10, emphasis in original.)

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MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DAI
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

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Hi, LEGAL ARGUMENT

A. Authority for Motion for Summary Judgment or Adjudication.

A party may move for summary judgment or adjudication when he or she contends the
non-moving party’s claims have no merit, (Code Civil Proc., § 437c, subd. (a) (hereinafter
“Section 437c”).) The California Supreme Court articulated a two-part test to determine whether
a moving party is entitled to summary judgment. First, the moving party must persuade the trial
court that there is no issue of material fact to preclude judgment as a matter of law, ie., “that
‘one or more elements of the ‘cause of action’ in question ‘cannot be established,’ or that ‘there
is a complete defense’ thereto.” (Aguilar v. Adantic Richfield Co. (2001) 25 Cal 4th 826, 850
(citing Section 437c, subd. (0)).) Second, the moving party “bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of material
fact.”! (Aguilar, supra, 25 Cal.4th at 850.) The moving party must support the motion with
evidence. e.g., declarations, responses to written discovery, and matters subject to judicial notice.
(Section 437c, subd. (b)(1).)

When a defendant has met this burden, “the burden shifts to the plaintiff... to show that
a triable issue of one or more material facts exists as to that cause of action.” (Section 437c,
subd. (p)(2).) The opposition “may not rely upon the mere allegations or denials of its pleadings
to show that a triable issue of material fact exists but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists.” (Ubid.)

A court shall grant the motion if the moving party is entitled to judgment as a matter of
law, Le., the moving papers demonstrate there is “no triable issue as to any material fact.”
(Section 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof.” (Aguilar. supra, 25 Cal.4" at

850.)

' Aguilar also provides that how a party carries its burdens of persuasion and production depends on which party
bears the burden of proving the particular element(s) at trial. A defendant moving for summary judgment “must
present evidence that would require a reasonable trier of fact nor to find any underlying material fact more likely
than not. (4guilar at 85] (italics in original).) The pleadings set the boundaries of the issues to be resolved at
summary judgment. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 90.)

MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DEFEND.
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

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B. Causation is an Essential Element to All Alleged Causes Action.

Each and every cause of action alleged by Plaintiffs has causation as an essential element,
Without admissible evidence that there is a causal connection between asbestos exposure and
colon cancer, any cause of action based on this theory fails, Specifically, because there is no
causal connection that asbestos exposure caused ROSS’s colon cancer, all of Plaintiffs’ causes of
action in the Third Amended Complaint fail.

C. Asbestos Exposure Cannot and Did Not Cause ROSS’s Colon Cancer.

As confirmed by Drs. Morgan and Sheibani, asbestos exposure did not cause ROSS’s
colon cancer. Dr. Sheibani conducted a pathology review related to ROSS and concluded there
were no asbestos bodies in the colon tissue. Dr. Sheibani’s review of ROSS’s colon tissue
instead showed transformation of a benign polyp to cancer. Based on his review of ROSS’s
tissue, as well as established scientific facts in the medical literature, Dr. Sheibani concluded that!
to a reasonable degree of medical certainty ROSS’s colon cancer was caused by a pre-existing
benign polyp. As there is no causal relationship between colorectal polyps and asbestos
exposure, Dr. Sheibani further concluded that to a reasonable degree of medical probability, the
cause of ROSS’s colon cancer is unrelated to any alleged asbestos exposure.

Similarly, Dr. Morgan reviewed ROSS’s medical records, as well as medical studies to
determine if the medical sciences recognized a causal relation between asbestos exposure and
colon cancer. Dr. Morgan’s review revealed no such correlation and he agrees with the IOM,
that the evidence is insufficient to draw a causal correlation between asbestos exposure and colon]
cancer.

Pursuant to the existing medical evidence, there is no established causal connection
between exposure to asbestos and colon cancer. The 1OM’s report is comprehensive. The clear]
import from the report is that the medical sciences cannot make a causal correlation between
asbestos and colon cancer. Plaintiffs cannot obtain admissible opinions from an expert to
counter these findings. Any such opinions would be speculative in nature and without

foundation as it is clear that the medical field is without sufficient science to support the causal

connection needed by Plaintiffs to overcome the within motion, As such, asbestos exposure
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MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DEFEND.
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

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cannot be the cause ROSS’s colon cancer.

D. Plaintiffs Cannot Produce Admissible Evidence That Asbestos Exposure More
Likely Than Not Caused ROSS’s Colon Cancer,

California law requires that “in a personal injury action causation must be proven within
a reasonable medical probability based [on] competent expert testimony.” (See Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal-App.4" 1108 at 1118.) California
requires scientific evidence and expert opinions to be founded upon reliable methodology and be
generally accepted within the scientific community. (See People v. Kelly (1976) 17 Cal.3d 24,
30.)

To survive a dispositive motion, a resisting plaintiff must produce evidence that exposure
to a product, more likely than not, caused his or her claimed injury. (Jones v. Ortho
Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) The Jones plaintiff alleged that
the defendant’s drug caused her cancer. (/d. at 399.) At the close of plaintiff’s case in chief, the
trial court granted defendant’s motion for nonsuit, because plaintiff's evidence was insufficient
to support a prima facie claim that the drug caused or contributed to plaintiff’s cancer.” (bid.)
Plaintiff's experts could only testify that “‘there is a reasonable medical possibility, defined as
less than a fifty-fifty chance,” that the drug in that case contributed to the development of
plaintiff's cancer, Ud. at 401 [emphasis added.]) The trial court ruled that this evidence was not
sufficient for the jury to “reasonably base a finding of causation.” (/d. at 402.) Plaintiff's
evidence only permitted “speculation” and “conjecture,” because “mere possibility [of causation]
is insufficient to establish a prima facie case.” (/bid. [citations omitted].)

At
Mt
Mit

? The standards for granting a motion for nonsuit are essentially identical to those governing motions for summary
judgment. A court may grant a motion for nonsuit only where, disregarding conflicting evidence on behalf of the
defendant and giving to plaintiff's evidence and legitimate inferences all the value to which they are legally entitled,
the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the
plaintiff. (Jones, 163 Cal.App.3d at 402 [citation omitted].) The court may not weigh evidence or consider witness
credibility. (/bid.)

MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DEFEND.
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENT

“T+Hakr Law,
A PROFESSIONAL CORPORATION

Instead of a “possibility,” a plaintiff must proffer evidence of medical probability, ie.,

that the product at issue more likely than not caused plaintiff's claimed harm:

That there is a distinction between a reasonable medical
‘probability’ and a medical ‘possibility’ needs little discussion.
There can be many possible ‘causes,’ indeed, an infinite number of
circumstances which can produce an injury or disease. A possible
cause_only becomes ‘probable’ when, in the absence of other
reasonable causal explanations, it becomes more likely than not
that the injury was a result of its action. This is the outer limit of
inference upon which an issue may be submitted to the jury.

(Jones, supra, 163 Cal App.3d at 403 (citation omitted) (emphasis added).)
A contrary rule would allow a plaintiff to presume causation, reversing the burden of
proof without any statutory or judicial authority:

Presumption of causation would be tantamount to a presumption of
the instrumentality which caused the injury. Such a quantum leap
is justified by neither logic, legal precedent nor public policy.

(Jones, supra, 163 Cal.App.3d at 406.)

Accordingly, the Court of Appeal for the Second District unanimously affirmed granting
the nonsuit. (/bid. (noting “there is a limit to the number of presumptions in which the court will
indulge solely for the purpose of assisting plaintiff in proving a case, especially when there is no
evidentiary starting point from which those presumptions can flow”).)

In light of the opinions and conclusions of Drs. Sheibani and Morgan, the IOM report and]
the fact that medical science has insufficient evidence to establish a causal connection, Plaintiffs
do not have, nor can they reasonably obtain, admissible evidence to establish ROSS’s colon
cancer was caused by exposure to asbestos.

E. ROSS’s Colon Cancer Was Caused by Factors Other Than Asbestos.

Dr. Sheibani identified a non-asbestos related cause for ROSS’s colon cancer — a pre-
existing polyp. Furthermore, Dr. Sheibani stated that there is no causal relationship between
colorectal polyps and asbestos exposure. Plaintiffs cannot prevail without producing prima facie
evidence to exclude the non-asbestos related cause of the colon cancer. (See Jones, supra, 163
Cal.App.3d at 403 (a “possible cause only becomes ‘probable’ when, in the absence of other

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MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DAI
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTHakr Law,
A PROFESSIONAL CORPORATION

reasonable causal explanations, it becomes more likely than not that the injury was a result of its
action. This is the outer limit of inference upon which an issue may be submitted to the jury.”).)

There are other medically recognized causal factors for colon cancer.

The risk of colon and rectum cancer increases with age; more than
90% of cases are diagnosed in people over 50 years old. Other risk
factors for colon cancer are obesity (especially in men), physical
inactivity, heavy consumption of alcohol and red or processed
meat, a history of inflammatory bowel disease, and a family
history of colon or rectum cancer, especially in persons under 40
years old. Tobacco-smoking is an established risk factor for
adenomatous polyps, the main precursor of colon cancer.

(IOM 2006 Report, at pg. 216.)

At most, Plaintiffs can provide “possibilities.” “speculation” and “conjecture” as to
causation but cannot reasonably provide evidence that asbestos exposure, not a pre-existing
polyp, was the probable cause of ROSS’s colon cancer herein. Furthermore, Plaintiffs cannot
rule out other causal factors, as recognized by the 1OM above.

IV, CONCLUSION

Because there is no medically supported causal connection between exposure to asbestos
and colon cancer, ROSS cannot maintain any cause of action against defendant. ROSS’ colon
cancer was, to a reasonable degree of medical certainty, caused by the transformation of a pre-
existing benign polyp to cancer. It was not caused by exposure to asbestos. Therefore, ROSS is
unable to proffer any evidence overcoming the within Motion for Summary Judgment. As such,

Defendant respectfully requests this court grant the within Motion.

Respectfully Submitted,

Dated: February 21, 2013 HAKE LAW,
A PROFESSIONAL CORPORATION

By: /si Melissa D. Ippolito
William M. Hake, Esq.
Melissa D. Ippolito, Esq.
Kathryn L. Hoff, Esq.
Attorneys for Defendant
COLLINS ELECTRICAL COMPANY, INC.

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MEMORANDUM OF POINTS AND AUTHORITIES TN SUPPORT OF DAI
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENT