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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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                                Dennis M. Young, Esq. SBN 121178
T. Eric Sun, Esq. SBN 187486
Robert M. Menchini, Esq. | SBN 133734
FOLEY & MANSFIELD, PLLP

300 Lakeside Drive, Suite 1900

Oakland, CA 94612

Telephone: (510) 590-9500

Facsimile: (510) 590-9595

E-mail: dyoung@foleymansfield.com

Attorneys for Defendant
ACCO ENGINEERED SYSTEMS, INC.

ELECTRONICALLY

FILED

Superior Court of
County of San

08/12/2011
Clerk of the Coul
BY:RONNIE OTERO.

fa,

Deputy Glerk

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

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs.
C.C. MOORE & CO., et al.,

Defendants.

Case No. CGC-10-275731
“ Asbestos-Related Case”

ROSS DEFENDANTS JOINT MOTION IN
LIMINE TO PRECLUDE UNRELIABLE
OPINION TESTIMONY OF A CAUSAL
CONNECTION BETWEEN ASBESTOS
EXPOSURE AND COLON CANCER; AND
REQUEST FOR EVIDENTIARY HEARING

FILED JOINTLY FOR ALL ROSS
DEFENDANTS

Date: August 19, 2015

Time: 9:00 am

Place: Department 613

The Honorable Harold E. J. Kahn

1

DEFENDANTS’ JOINT DEFENSE MOTION IN LIMINE PRECLUDE EVIDENCE OF A CAUSAL CONNECTION BETWEEN
ASBESTOS AND COLON CANCER OR, IN THE ALTERNATIVE, REQUEST FOR A EVIDENCE CODE § 402 HEARINGI. INTRODUCTION AND SUMMARY OF FACTUAL BACK GROUND

Defendants in this case jointly object to and move to preclude plaintiff's unreliable
opinion evidence of a causal association between asbestos exposure and colon cancer.
Defendants object to this “opinion evidence” on the grounds that it is contrary to the findings of
the definitive scientific authority charged with the investigation of this very question, namely,
that there is in insufficient evidence to infer a causal relationship between asbestos exposure and
colorectal cancer.

To that end, Defendants request an evidentiary hearing under Cal. Evid. Code § 402; that
plaintiff be compelled to present a prima facie showing of causality between asbestos and colon
cancer; and for Defendants to present evidence on the prevailing science on the subject.

I. ARGUMENT
A. Scientific Evidence Must Be Generally Accepted Within the
Scientific Community.

Expert testimony deduced from novel scientific principles may be admissible if the
proponent of the evidence makes a preliminary showing of general acceptance of the principles
in the relevant scientific community. (People v. Kelly (1976) 17 Cal.3d 24, 30-31.) In this case,
plaintiff's argument of a causal association between asbestos exposure and colon cancer is not
generally accepted within the scientific community.

The legal standard for attributing causation is that it is medically probable that an
occupational exposure was a substantial contributing factor in causing the condition,
(Rutherford v. Owens-Illinois (1997) 16 Cal4th 953). In order to express this opinion,
epidemiologists require data indicating a sufficient risk of cancer in the population with known
or suspected risk factors as compared to the population without the known or suspected risk
factors. Courts have found that, “[t]he use of scientifically reliable epidemiological studies and
the requirement of more than a doubling of the risk strikes a balance between the needs of our
legal system and the limits of science.” (See Merrell Dow Pharmaceuticals, Inc. v. Havner
(1997) 953 S.W.2d 706, 718; see also Michael Dore, A Commentary on the Use of

Epidemiological Evidence in Demonstrating Cause-in-Fact, 7 Harv. Evntl. L. Review 429 420-
1

DEFENDANTS’ JOINT DEFENSE MOTION IN LIMINE PRECLUDE EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS
AND COLON CANCER OR, IN THE ALTERNATIVE, REQUEST FOR A EVIDENCE CODE § 402 HEARING431 (1983).

The court in Merrell Dow Pharmaceuticals held, in order to

[raise a fact issue on causation and thus to survive legal sufficiency review, a
claimant must do more than simply introduce into evidence epidemiological
studies that show a substantial elevated risk. A claimant must show that he or she
is similar to those in the studies. This would include proof that the injured person
was exposed to the same substance that the exposure or dose levels were
comparable to or greater than those in the studies, that the exposure occurred
before the onset of injury, and that the timing of the onset of injury was consistent
with that experiences by those in the study.

(Id. at 720.)

Because there is a distinction between a reasonable medical probability and a possible
cause, statements of possibility instead of probability are not sufficient to prove causation and
must not be presented to the jury. (See Jones v. Ortho Pharmaceutical Corp. (1985) 163
Cal.App.3d 396; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1387). The court in Jones
held that in “a personal injury action causation must be proven within a reasonable medical
probability based upon competent expert testimony. Mere possibility alone of a causal
connection is insufficient. 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.” (Id. at. 402-403). This, the court held, is the outer limit of inference upon which
an issue may be submitted to a jury. Based on that reasoning the Court of Appeals in Jones
affirmed defendant’s motion for a nonsuit. (Id.)

As discussed below, this Court’s determination is more straightforward than those in
Merrell and Jones — thanks to the investigation and conclusions by the definitive relevant

scientific authority on the very subject of causality between asbestos and colon cancer.

B. The Science Community Has Specifically Investigated the Claim of
Causality Between Asbestos and Colon Cancer, and Found Insufficient
Evidence for it.

In 2004, the Institute of Medicine of The National Academies! commissioned a blue-

" The National Academy of Sciences was chartered in ee under President Abraham Lincoln’s administration.
DEFENDANTS’ JOINT DEFENSE MOTION IN LIMINE PRECLUDE EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS
AND COLON CANCER OR, IN THE ALTERNATIVE, REQUEST FOR A EVIDENCE CODE § 402 HEARINGribbon panel of experts to study hypothesis of causality between asbestos exposure and five
specific cancers along the alimentary canal, including colorectal cancer. The specific charge of
the multidisciplinary committee of 12 doctors and scientists, each notables in their respected

fields, are as follows:

The Institute of Medicine (IOM) Board on Population Health and Public Health
Practices will oversee a study that will comprehensively review, evaluate, and
summarize the peer-reviewed scientific and medical literature regarding the
association between asbestos and colorectal, laryngeal, esophageal, pharyngeal,
and stomach cancers. 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.

In 2006, the Committee on Asbestos (“Committee”) published it’s findings, analysis,
methodology and data source in Asbestos, Selected Cancers, The National Academy Press,
Washington, D.C., 2015 Copyright National Academy of Sciences. (Exhibit A to Menchini
Decl. Ref Chapter 11: Colorectal Cancer and Asbestos, at 216.)

The committee “undertook a systematic review of the available human and toxicological
evidence, setting up a uniform approach for reviewing the full body of relevant epidemiological
literature and for abstracting and synthesizing study results.” Based on this review, the
Committee reached a conclusion regarding causation as to each type of cancer. The draft of the
Committee’s findings was submitted to independent review by a panel of an additional twelve
Reviewers “chosen for their diverse perspectives and technical expertise in accordance with
procedures approved by the National Research Council’s Report Review Committee.” (Id. at

vii.)
The purpose of this independent review is to provide candid and critical
comments that will assist the institution in making its published report as
sound as possible and to ensure that the report meets institutional standards of
objectivity, evidence, and responsiveness to the study charge. (Id.)

Nearly 150 years later, the National Academy of Sciences has expanded into what is collectively known as the
National Academies, which comprises the National Academy of Sciences, the National Academy of Engineering,
the National Research Council, and the IOM. Established in 1970, The Institute of Medicine (IOM) is the health
arm of the National Academy of Sciences. See http://www.iom.edu/About-lOM.aspx

3

DEFENDANTS’ JOINT DEFENSE MOTION IN LIMINE PRECLUDE EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS
AND COLON CANCER OR, IN THE ALTERNATIVE, REQUEST FOR A EVIDENCE CODE § 402 HEARINGWith the Reviewers’ comments incorporated, The Committee’s findings were published
in 2006. (Seeid., Exhibit A, at pg. 2.)

Specific to colorectal cancer, the Committee studied epidemiological evidence consisting
of 41 cohort populations and 11 case-controlled studies on colorectal cancer cases that had been
exposed to asbestos. (See id., at pg. 217, and 224; see also Figure 11.1 at pg. 220.) The
Committee found that colon cancer “appears more clearly associated with family history,
physical inactivity, and several other factors such as body mass index and dietary and alcohol
intake.” (Id., at pg. 217.) It also found that “evidence of a dose-response relationship in the
case-control studies was lacking,” (Id. at pg. 225; see also Merrell, supra, 953 S.W.2d, at 718.)
It further noted that “overall animal models [i.e., animal studies] have failed to produce colon or
colorectal cancer.” (Id., at 225.)

Ultimately, the Committee concluded:

The overall lack of consistency or of the suggestion of an association among the
case-control studies (even those of the highest quality) and the absence of
convincing dose-response relationships in either type of study design, however,
weigh against causality. Thus, the committee determined that the evidence is
suggestive but not sufficient to infer a causal relationship between asbestos
exposure and colorectal cancer.

(Id., at pg. 226.) (emphasis added)

A panel of recognized experts was tasked by the Institute of Medicine to investigate the
very subject of this Motion, and concluded there is insufficient evidence to infer causality
between asbestos and colon cancer. Judicial prudence counsels for the Court’s deference to the

collective wisdom of these 24 recognized experts, who have spoken on this subject.

C. The Court's“ Gate K eeping Responsibility” Requires it to Exclude Opinion
Testimony That is Contrary to Generally Accepted Science.

The California Supreme Court has held “{uJnder California law, trial courts have a
substantial “gatekeeping” responsibility,” because of “the need to exclude unreliable evidence.”
(Sargon v. Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769.)
Under Sargon the trial courts are empowered and directed to inquire into the “matter upon which

[suspect expert opinion] is based.” (Cal. Evid. Code, §§ 801, 802.) “[T]he courts have an
4

DEFENDANTS’ JOINT DEFENSE MOTION IN LIMINE PRECLUDE EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS
AND COLON CANCER OR, IN THE ALTERNATIVE, REQUEST FOR A EVIDENCE CODE § 402 HEARINGobligation to...require adequate foundation for the [expert’s] opinion.” (Kotla v. Regents of the
University of California (2004) 115 Cal.App.4th 283, 293.) Expert witnesses have an obligation
to support their opinions with reliable foundation. (Cal. Evid. Code § 801(b)). Expert opinions
that have no evidentiary or rational foundation have no evidentiary value. (See generally People
v. Lawey (2002) 27 Cal.4th 102, 132.) When an expert bases his conclusions upon assumptions
not supported by the records and upon matters which are not reasonably relied on by other
experts or upon speculative factors the that expert’s conclusions have no evidentiary value.
(Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) An expert
opinion has no value if its basis is unreliable. (In re Lockheed Litigation Cases (2004) 115
Cal.App.4th 558, 563 and 564; see also Jennings v. Palomar (2003) 114 Cal.App.4th 1108,
1116.)

As established hereinabove, a multi-discipline blue-ribbon Committee commissioned by
the Institute of Medicine concluded, after weighing the totality of scientific evidence, “there is
insufficient evidence to infer a causal relationship between asbestos exposure and colorectal
cancer.”

Plaintiff, on the other hand, would have the Court reject the Committee’s findings,
proffering the “expert opinion” of a single Pulmonologist, Dr. David Schwartz, who reached far
out of his trained medical expertise by training himself on colon cancer reading cherry-picked
studies that appear to help plaintiff's cause, and ignoring the rest that represent the weight of
medical authority of the subject — including the IOM Committee Report. (See Separate Defense
Motion to Exclude Dr. Schwartz.)

At the Evidence Hearing, defendants will present an epidemiologist (either Dr. Noel
Weiss, one of the twelve Reviewers of the IOM Committee on Asbestos, or Dr. David
Garabrandt, author of several original epidemiological studies on asbestos-colon cancer
causality), and a medical oncologist Dr. Samuel Spivack. Dr. Weiss or Garabrandt will discuss
the role of epidemiology in establishing causation, the quality of exposure assessment and
statistical analysis in epidemiological study design, and address the Court’s questions regarding

the IOM endeavor. Dr. Spivack, who treats patients with colon cancer, will discuss the known
5

DEFENDANTS’ JOINT DEFENSE MOTION IN LIMINE PRECLUDE EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS
AND COLON CANCER OR, IN THE ALTERNATIVE, REQUEST FOR A EVIDENCE CODE § 402 HEARINGcauses of colon cancer that are accepted by the medical community, and the sufficiency of those
causes in plaintiffs disease.
Il. CONCLUSION
Defendants respectfully move to preclude evidence of a causal connection between
asbestos exposure and colon cancer — contrary to the conclusion of the definitive scientific
authority on the subject. Defendants request an evidentiary hearing outside the presence of the

jury to determine the admissibility of any such evidence.

Dated: August 12, 2015 FOLEY & MANSFIELD, PLLP
< s
a
By: ue

nnis M. Young
T. Eric Sun
Robert M. Menchini
Attorneys for Defendant
ACCO ENGINEERED SYSTEMS, INC.

6

DEFENDANTS’ JOINT DEFENSE MOTION IN LIMINE PRECLUDE EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS
AND COLON CANCER OR, IN THE ALTERNATIVE, REQUEST FOR A EVIDENCE CODE § 402 HEARING