Party Discovery: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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WILLIAM M. HAKE, ESQ. (SBN 110956)

Bill. Hake@wilsonelser.com ELECTRONICALLY

JEREMY C. BERLA, ESQ. (SBN 267331) FILED

Jeremy.Berla@wilsonelser.com Palplardat lebceleh od coda

ROCKFORD M. HEARN, ESQ. (SBN 269074) County of oie Frevicteco

Rockford. Hearn@wilsonelser.com

WILSON, ELSER, MOSKOWITZ, 08/13/2015
EDELMAN & DICKER LLP BY:RONNIE OTERO

525 Market Street, 17th Floor Deputy Clerk

San Francisco, CA 94105-2725
Telephone: (415) 433-0990
Facsimile: (415) 434-1370

Attorneys for Defendants

ADVANCE MECHANICAL CONTRACTORS, INC.
ANDERSON, ROWE & BUCKLEY, INC.

BELL PRODUCTS, INC.

COLLINS ELECTRICAL COMPANY, INC.

EMIL J. WEBER ELECTRICAL COMPANY, INC.

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

ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731
Plaintiffs, EXHIBIT E TO DECLARATION OF
JEREMY C. BERLA IN SUPPORT OF
vs. JOINT DEFENSE MOTION IN LIMINE
TO EXCLUDE EXPECTED TRIAL
C.C. MOORE & CO., ENGINEERS, et al., TESTIMONY AND DEPOSITION
TESTIMONY OF DR. DAVID
Defendants. SCHWARTZ, OR IN THE ALTERNATIVE,

REQUEST FOR AN EVIDENCE CODE
SECTION 402 HEARING

Complaint: December 17, 2010
Trial Date: August 10, 2015

1

EXHIBIT E TO DECLARATION OF JEREMY C. BERLA IN SUPPORT OF JOINT DEFENSE MOTION IN
LIMINE TO EXCLUDE EXPECTED TRIAL TESTIMONY AND DEPOSITION TESTIMONY OF DR. DAVID
SCHWARTZ, OR IN THE ALTERNATIVE, REQUEST FOR AN EVIDENCE CODE SECTION 402 HEARING

1425652v.1EXHIBIT ESUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

Department 48 Hon. Elizabeth A. White, Judge

Jeraldine Nicholson, et al.,
Plaintiffs,

vs. Case No: BC413220
Asbestos Defendants, et al.,

Defendants.

CERTIFIED COPY

REPORTER'S DAILY TRANSCRIPT OF PROCEEDINGS

FRIDAY, JUNE 24, 2011

APPEARANCES:

For the Plaintiffs: Brayton Purcell, LLP

BY: JAMES P. NEVIN, ESQ
JANETTE H. GLASER, ESQ.
KSENIA L. SNYLYK, ESQ.

222 Rush Landing Road

PO Box 6169 1940

Novato, California 94948-6169

(415) 898-1555

For Defendant: Selman Breitman, LLP
Amcord: BY: RHONDA L. WOO, ESQ.
BRAD D. BLEICHNER, ESQ.
33 New Montgomery
Sixth Floor
San Francisco, California 94105
(415) 979-0400

(Appearances continued next page.)
Reported by:

Louis R. Machuca, CSR No. 12274
Official Court ReporterAPPEARANCES CONTINUED:

For Defendant George M. Raymond:

Foley & Mansfield, PLLP

BY: T. ERIC SUN, ESQ.
DOUGLAS G. WAH, ESQ.
THOMAS J. TARKOFF, ESQ.

300 Lakeside Drive

Suite 1900

Oakland, California 94612

(510) 590-9595

For Defendants Kaiser Gypsum and Hansen Permanente
Cement:

DeHay Elliston, LLP

BY: BRIAN YASUZAWA, ESQ.
TODD J. SUDDLESON, ESQ.

800 West 6th Street

Suite 788

Los Angeles, California 90017

(213) 271-2727

For Defendants Thompson Building Materials and Westside
Building Material Corp.:

Law, Ball & Lynch
BY: PAMELA Y. LOUIE, ESQ.
GUY W. STILSON, ESQ.
505 Montgomery Street
7th Floor
San Francisco, California 94111
(415) 981-6630

For Defendant Lear Siegler:

Law Offices of Keesal, Young &
Logan

BY: ELIZABETH A. KENDRICK, ESQ.
400 Oceangate

8th Floor

Long Beach, California 90802
(562) 436-2000

For Defendant Highland Stucco:

Archer Norris

BY: JOSEPH V. MACHA, ESQ.
333 South Grand Avenue

Suite 1700

Los Angeles, California 90071
(213) 437-4000APPEARANCES CONTINUED:

For Defendant Mowery-Thomason, Inc. and Reischel &
Cottrell, Inc.:

Bassi Edlin Huie & Blum, LLP

BY: ANTONIO P. GARCIA, Jr., ESQ.
351 California Street

Suite 200

San Francisco, California 94104
(415) 397-9006

For Defendant Hendricks Builder Supply Company:

Brydon Hugo & Parker

BY: SHAGHIG D. AGOPIAN, ESQ.
135 Main Street

20th Floor

San Francisco, California 94105
(415) 808-0300

For Defendant Frontier Building Supply Company:

Law Offices of Prindle, Amaro,
Goetz, Hillyard, Barnes &
Reinholtz, LLP

BY: CARLA LYNN CROCHET, ESQ.
310 Golden Shore

4th Floor

Long Beach, California 90802
(562) 436-3946

For Defendant Fishback & Moore Building Supply Company,
now known as XFM, Inc.:

Sinunu Bruni, LLP

BY: CHRISTOPHER B. BRUNI, ESQ.
333 Pine Street

Suite 400

San Francisco, California 94104
(415) 362-9700INDEX

Friday, June 24, 2011

EXAMINATION
Witness Name

DAVID A. SCHWARTZ, M.D. (Called by plaintiffs)
Direct Examination By
Voir Dire Examination
Voir Dire Examination
Voir Dire Examination
Voir Dire Examination
Direct Examination By
Cross-Examination By
Cross-Examination By
Cross-Examination By . Suddleson
Cross-Examination By . Stilson..
Redirect Examination Mr. Nevin

EXHIBITS
Exhibit Description Identification Evidence

Curriculum vitae of 7 86
David A. Schwartz,
M.D.

12/18/10 David A.
Schwartz, M.D.'s
clinical noteCase Number: BC413220

Case Name: Jeraldine Nicholson, et al. vs.
Asbestos Defendants, et al.

Los Angeles, California Friday, June 24, 2011

Department 48 Judge Elizabeth A. White

Appearances: (As heretofore noted.)

Reporter: Louis Machuca, CSR No. 12274

Time: Morning Session

(Proceedings began at 9:37 a.m.)

THE COURT: Good morning. We're on the record in

Nicholson versus Amcord, Case Number BC413220. We have

quite a few counsel present in the courtroom. What I

will ask counsel to do is, starting from my left at
plaintiff's counsel table, we'll start with the names of
counsel. And then we'll move to my right and then we'll
start in the first row of the jury box and then move to
the last row of the jury box.

And if you could please state your name and
who you represent clearly and articulately for our court
reporter. Thank you.

MR. NEVIN: Good morning, Your Honor. James Nevin
from Brayton Purcell for the plaintiffs.

MS. GLASER: Good morning, Your Honor.
Janette Glaser from Brayton Purcell for the plaintiffs.

MS. WOO: Good morning, Your Honor. Rhonda Woofrom Selman Breitman for Amcord.

MR. SUN: Good morning, Your Honor. Eric Sun on
behalf of George M. Raymond Company.

MR. YASUZAWA: Good morning, Your Honor.
Brian Yasuzawa on behalf of Kaiser Gypsum and Hansen
Permanente Cement.

MR. SUDDLESON: Good morning, Your Honor.
Todd Suddleson also on behalf of Kaiser Gypsum and
Hansen Permanente Cement.

MS. LOUIE: Good morning, Your Honor. Pamela Louie
on behalf of Thompson Building Materials and Westside
Building Material Corp.

MR. STILSON: Good morning, Your Honor.

Guy Stilson also on behalf of Westside and Thompson.

MR. TARKOFF: Thomas Tarkoff for George Raymond.
MS. KENDRICK: Good morning, Your Honor.
Elizabeth Kendrick on behalf of Lear Siegler.
MR. MACHA: Good morning, Your Honor. Joseph Macha
on behalf of Highland Stucco.
MR. GARCIA: Good morning, Your Honor.
Antonio Garcia for Mowery-Thomason, Inc. and Reischel &
Cottrell, Inc.
MS. AGOPIAN: Good morning, Your Honor.
Shaghig Agopian for Hendricks Supply Company.
MS. CROCHET: Good morning, Your Honor.
Carla Crochet on behalf of defendant Frontier Building
Supply Company.

MR. BRUNI: Good morning, Your Honor.Christopher Bruni on behalf of Fishback & Moore,
Incorporated, now known as XFM, Inc., and we've resolved
this matter. I wanted to let the court know.

THE COURT: All right. I appreciate it. Thank

MS. SNYLYK: Good morning, Your Honor.
Ksenia Snylyk on behalf of the plaintiffs.

THE COURT: All right. Thank you so much. Who is
representing Cal Portland?

MR. NEVIN: They resolved, Your Honor.

THE COURT: All right. So the motion which was
before the court, Motion in Limine Number 19 which was
filed by Cal Portland has been joined in by the other
defendants?

MR. SUN: Yes, Your Honor.

THE COURT: Ali right.

All right. For today's hearing, we're
conducting a hearing outside the presence of the jury
under Evidence Code Section 402. The jury has not yet
been called. Clearly, a jury has not yet even been

empanelled. We handled a number of the motions in

limine previously, but we set a hearing date today for

purposes of the 402 hearing on Defense Motion in Limine
Number 19, which is captioned as "Motion in Limine to
Preclude Plaintiff's Testimony of a Causal Association
Between Asbestos Exposure and Colon Cancer," or in the
alternative, request for a Kelly hearing, which is,

essentially, what we're doing here today under EvidenceCode Section 402.

I assume plaintiffs have an expert who is

ready and able to testify?

MR. NEVIN: Yes, we do, Your Honor.

THE COURT: And the name of that expert.

MR. NEVIN: Dr. David Schwartz.

THE COURT: All right. And Dr. Schwartz, where is
he? Is he in the courtroom?

All right. Sir, if you would please come
forward. All right. And, Dr. Schwartz, if you would
please face the clerk and raise your right hand to be
sworn.

THE CLERK: Right here, sir.

Do you solemnly state that the testimony you

may give in the cause now pending before this court

shall be the truth, the whole truth, and nothing but the
truth so help you God?

THE WITNESS: I do.

THE CLERK: Please be seated. Sir, would you
please state and spell your name for the record.

THE WITNESS: David Albert Schwartz,
S-c-h-w-a-r-t-z.

THE CLERK: Thank you.

THE COURT: All right. And you may proceed.

MR. NEVIN: Thank you, Your Honor.

DAVID A. SCHWARTZ, M.D.,

called as a witness on behalf of the plaintiffs, was

sworn and testified as follows:DIRECT EXAMINATION
BY MR. NEVIN:

Good morning, Dr. Schwartz.

What kind of a doctor are you?

Q
A Good morning.
Q
A

I'm an internist, a pulmonologist, a
specialist in occupational medicine.

Q What does it mean to be an internist?

A It means that you have gone through medical
school, then been specifically trained in adult medicine
during a three-year residency training program. And
then that qualifies you to sit for the boards and then I
took the boards. And you pass the boards and then
you're a board certified internist.

Q What is pulmonary medicine?

A Pulmonary medicine is a specialty beyond
internal medicine, and it involves a three-year
fellowship beyond the internal medicine training program
where you practice pulmonary medicine, learn pulmonary
medicine. You qualify to sit for the boards, you take
the boards, and then you -- then you're board certified.
If you pass the boards, you're a board certified
pulmonologist.

Q What is occupational medicine?

A Occupational medicine is a separate set of
boards separate from internal medicine. It is a
preventative medicine board, and it requires going to

the school of public health, getting a master's inpublic health and, at the same time, learning
specifically occupational medicine. That qualifies you
to sit for the boards.

And then one takes the boards and then that
person is a board certified occupational medicine
physician. And I took the boards and passed the boards
in that case, as well.

Q For how long have you been board certified?

A I received my internal medicine boards in
1984. I passed my internal medicine boards in 1984.
passed my occupational medicine boards in 1986 and my
pulmonary medicine boards in 1988.

Q Where do you currently practice?

At the University of Colorado.

A
Q And what do you do there?
A

I'm chairman of medicine at the University of
Colorado, and I also direct a center for genes
environment and health.

Q What are your duties as chairman?

A The duties are to oversee a large diffuse
department of medicine that involves various aspects of
medicine: Pulmonary medicine; hematology; oncology;
cardiology; all sorts of specialties in medicine. There
are over 600 faculty in my department that I oversee and
13 different divisions.

MR. NEVIN: Your Honor, may I approach?

THE COURT: You may.

MR. NEVIN: Doctor, I'd like to show you what I'vemarked as Plaintiff's Exhibit 111, and I have a copy for
Your Honor as well.

THE COURT: Thank you.

(Exhibit 111 was marked for

identification.)

BY MR. NEVIN: Doctor, are you familiar with

Yes, I am.

And what is this document?

It's my curriculum vitae.

Does it accurately set forth your education,
experience, publications and so forth?

A Yes, it does.

Where were you previously employed?

A I was previously employed at National Jewish
Health, and I was employed there to direct the center --
to build and direct the Center for Genes Environment and
Health, which I still do since National Jewish health is
only a few miles from the University of Colorado.

Q Where did you work prior to that?

A Prior to that, I was at the National
Institutes of health, and I directed the National
Institute of Environmental Health Sciences and the

national toxicology program.

Q And what did your job duties -- what were your

job duties as the director of the National Institute ofEnvironmental Health?

A To oversee the allocation of grants in the
area of environmental health sciences and to build
programs in environmental health sciences and also
interact with the other institute directors at the
to create cross-disciplinary programs.

Q Your C.V. lists a number of publications.

Approximately, how many peer-reviewed journal
articles have you been an author or co-author in?

A Well, in aggregate, about 300.

Q What does it mean to author in a peer-reviewed
journal?

A It means that you write something. You submit
it to a journal. They review it anonymously by two
different -- at least two different individuals,
sometimes more than two different individuals. And then
the journal editor decides that they will accept the
paper based on the reviews and the response to the
reviews.

Q Approximately, what percentage of those

articles were related to occupational disease?

A Well, that's a little hard to say. So if
strictly occupational diseases, I would say maybe about
25 of those articles; maybe at most 50. But I view many
occupational diseases as an interaction between post
determinants, like genetic factors, and exposures in the
environment. And, in that context, almost all of them

are related to gene environment or host environmentinteractions.

Q Approximately, how many or percentage are
related to asbestos?

A Probably about 25, so relatively small
percent.

Q Have you also published in various medical
textbooks?

I have.

Can you give us an example?

I think there's a section in my C.V. that just
focuses on textbooks, book chapters. It's on page 26 of
my C.V. And there are over 50 publications in book
chapters -- in books as chapters. And then, in
addition, there are two texts -- two books, not
textbooks but two books that I've written.

Q Briefly review for us your education.

A I went to the University of Rochester as an
undergraduate and graduated there in 1975. And then I
went to medical school at the University of California
in San Diego. I graduated there in 1979. And then

spent a year doing research at the National Science

Foundation. Well, not at the National Science

Foundation but in San Diego funded by the National
Science Foundation. I got a grant while I was in
medical school.

And then I started my internal medicine
residency in 1980 at Boston City Hospital.

A What did you do in between that and your work10

for the National Institute of Environmental Health.
Q Well, I was an intern and resident of Boston

City Hospital between 1980 and 1983. Between 1983 and
1984, I was a chief medical resident at Boston City
Hospital. In 1984, I went to the Harvard School of
Public Health, and I got a master's in public health
between 1984 and 1985.

1985, I went to Seattle, Washington, became a
Robert Wood Johnson clinical scholar. Completed my
occupational medicine residence and then started a
pulmonary and critical care fellowship and completed
that in 1988.

In 1988, I got my first real job at the
University of Iowa as an assistant professor in the
pulmonary division in charge of the occupational

medicine program and led the occupational medicine

program for the next 12 years and built my research

career at the same time.
And in 2000, after being at the University of

Iowa for 12 years, I was recruited to Duke University as
director of the pulmonary and critical care division and
also vice chair for research and also director of the
center for environmental genomics. And I did that for
five years between 2000, 2005; then went to the NIH as
director of the National Institute of Environmental
Health Sciences.

Q Over the course of your career, in addition to

your research and your writing and your work as a11

director of various medical affiliates, have you had the
opportunity to examine and interact with patients?

A Yes.

Tell us about that.

A Well, when I went to the University of Iowa in
1988, I was not only hired as an assistant professor of
medicine, but I was ~-- part of my job was to see
patients, both in pulmonary medicine as well as
occupational medicine. And when I started at the
University of Iowa, we were seeing -- and I was also
charged with directing the occupational medicine clinic
there.

So when I went to the University of Iowa, we
were seeing about 50 patients a year in the occupational
medicine clinic. When I left the University of Iowa, we

were seeing over a thousand patients a year in the

occupational medicine clinic.

When I went to the University of Iowa in 1988,
we weren't involved in the health care for the rest of
the university faculty, and I believe there are 20,000
university faculty at the University of Iowa. When I
left the University of Iowa in 2000, we were in charge
of the occupational medicine program overseeing the care
of individuals at the University of Iowa, the 20,000
individuals at the University of Iowa in terms of their
occupational exposures, their hazards and their problems
that they developed at the workplace.

In addition, I was -- I was and still ama12

practicing pulmonologist, so I took care of patients in
the intensive care unit and on the wards. And when I
went to Duke University, I was director of the pulmonary
and critical care division and would see -- would attend
in the intensive care unit two months a year. So I
would take care of patients on ventilators with severe
lung diseases with house staff and with fellows to
months of the year.

When I went to the NIH, I ~~ because of a
variety of different issues, I couldn't practice
medicine because it just was not -- I didn't have the
time, and it created problems for me to interact with
universities, so I stopped practicing medicine in 2005.
But when I went to National Jewish Hospital in 2008, I
started seeing patients occasionally in the outpatient
clinic.

Q Over the course of your career participating
in the care of patients, has that included patients with
asbestos-related disease?

A Yes.

Q Can you ballpark for us approximately how many

that might be?

A Well, it's definitely over a thousand, and
it's probably under 2,000, but I can't really ballpark
it any better than that.

Qo And, nowadays, how do you split your time
between let's call it your real jobs and

litigation-related consulting, like what you're here for13

today?

A Well, I have a very busy schedule at work, and
I would say that my real job occupies about 80 hours a
week, 70 to 80 hours a week, including the work that I
do as chair of medicine and the work that I do as head
of the Center for Genes Environment and Health. And I
would say that the litigation-related work is a few
hours every other week or every -- every month.

So it's a minimal time commitment in
relationship to my other work.

Q All right. Doctor, today, when I ask you for
your opinion, I want you to respond only if your answer
would be to a reasonable degree of medical certainty.

Do you understand that?

A Yes.

Q Okay. and, Doctor, if we had a jury, I'd next
ask you to go through what we call "lungs 101" and
"colon 101," but with the court's permission I think
we'll skip the basics and move to the meat of the issue.

Is that okay, Your Honor?

THE COURT: Well, I don't know what you mean by
"basics" and what you mean by "the meat of the issue,"
so I'll let you determine what you feel is appropriate
for purposes of the motion.

MR. NEVIN: Thank you, Your Honor.

Q BY MR. NEVIN: Doctor, well, give us a brief
overview. How does asbestos get into the body?

A The most common way it gets into the body isit's inhaled.

Q Any other ways?

A I would imagine that it can be ~-- that you can
get it in your eyes and in the mucosal areas of your
body and your nose, and it's possible that you could

also swallow it by getting it in your mouth.

Q What is the gastrointestinal tract or the GI

tract?

A - It's the tract that starts at your lips and
ends at your anus.

Q And we do know that asbestos reaches the
colon. Do we know how it gets there?

A It probably get there's because it's first
inhaled into the lungs.

MR. SUDDLESON: Object. Assumes facts not in
evidence.

THE COURT: Well, with respect to the answer, “it
probably," I'm going to go ahead and strike the answer.
"Probably" is not going to be sufficient for the court's
purposes, so I'll ask you to rephrase the question and
perhaps we can clarify that.

Q BY MR. NEVIN: Does asbestos get to the colon?

Yes.

Does asbestos get to the lungs?
Yes.

Does asbestos get to the kidneys?
Yes, it does.

And are there various ways that asbestos getsto those places?

A Yes.

Q Now, in any one individual, we don't know
exactly how asbestos got to a particular target location
in their body, correct?

A That's correct.

Q But we do know the various ways that science
has shown that asbestos reaches parts of the body,
correct?

A Yes.

Q All right. So backing up, how does asbestos
get to the lungs?

A It's inhaled into the lungs.

Q Okay. How does asbestos get to the pleura,
which is the organ that surrounds the lungs?

A After being inhaled into the lungs, it's taken
up by inflammatory cells. Those inflammatory cells go
into the lymphatics and the lymphatics then distribute

those asbestos fibers in the pleura, as well as other

organs throughout the body.

Q The -- I'm sorry.

A The second way it gets to the pleura is that
it can work its way in the lung tissue and work its way
to the plural surface through the lung tissue and break
through the lungs.

Q What are the lymphatics?

A The lymphatics are a system in the -- a

transport system in the body that moves a lymph, which16

is fluid and lymphatic cells or immune cells throughout
the body.

So the lymphatics are a major defense
mechanism in the body that allow the lymphocytes to
circulate, recirculate, get exposed to things and then
come back to lymphoid centers, like the spleen and the
thymus and lymph nodes, and communicate with those
different organs to identify whether there are foreign
agents that the body needs to try to eradicate, like a
bacterial infection or a viral infection.

It's a circulatory system.

Q How does asbestos reach the colon?

MS. WOO: Your Honor, objection. Lacks foundation.
Calls for speculation. Specifically, this expert has no
expertise in that regard.

MR. NEVIN: It's the whole purpose of this 402
hearing.

MS. WOO: Your Honor, I would like the opportunity
to voir dire if he's allowed to give any opinion --

THE COURT: I'll allow voir dire. Go ahead.

VOIR DIRE EXAMINATION
BY MS. WOO:
Q Good morning, Dr. Schwartz.
A Good morning.

Q Dr. Schwartz, do you have any specialized

training, education or experience in determining the

cause of colon cancer?17

MR. NEVIN: Objection. Vague. Overbroad.
THE COURT: Overruled.
THE WITNESS: I have experience in terms of

occupational and environmental causes of colon cancer.

I don't have specific experience in terms of treating

colon cancer.

Q BY MS. WOO: Do you hold yourself out to be an
expert in the treatment of colon cancer?

A No.

Q Your areas of expertise involve the lungs; is
that fair to say?

MR. NEVIN: Objection. Vague. Misstates evidence.

THE COURT: Overruled.

THE WITNESS: My areas of expertise involve the
lung, the environment, occupational diseases and the
interaction between environmental slash occupational
exposures and host defense factors.

Q BY MS. WOO: You have some principal areas of
research; is that fair to say?

A That's correct.

And those principal areas of research are

A The principal -- the overarching theme of my
research is to understand the interaction between
genetic and environmental determinants of complex human

diseases that are focused on pulmonary fibrosis, asthma

and innate immunity.

Q Have you done any research regarding the |18

Q In instances where you have diagnosed a
patient with colon cancer, you refer the patient to a
specialist; is that correct?

A Yes.

Q You've never been the primary care physician
for a patient with colon cancer; is that fair to say?

A Yes.

Q And you've never published any peer-reviewed
literature regarding asbestos as a cause of colon
cancer; is that correct?

A Yes, that's correct.

Q You've never published anything on the topic
of cancers and what causes cancer of the colon; is that

fair to say?

A That's two questions. Which one would you

like me to answer?

Q All right. Let me break it up for you.

Have you ever published anything on the topic
of what cancers are caused by exposure to asbestos?

A Yes.

Q And in those occasions where you've talked
about or published on cancers and asbestos, did it
include the colon?

A No.

Q Have you ever prepared any written materials,

even though they weren't published, in any peer-reviewed19

literature summarizing your opinions whether asbestos
causes colon cancer?

A No.

Q Have you ever conducted or participated in any
epidemiological study to determine whether or not
asbestos causes colon cancer?

A No.

Q Have you ever performed any animal studies for
the purpose of determining whether asbestos causes colon
cancer?

A No.

Q Other than asbestos as a cause of mesothelioma
in lung cancer, have you ever lectured about asbestos as
a cause of any cancer?

A I may have given a talk early in my career in
the relationship between asbestos and B-Cell lymphomas.

QO And other than mesothelioma, lung cancer, and
B-Cell lymphoma, have you ever lectured about asbestos
as a cause of any other cancer?

A No.

Q Have you ever testified at trial regarding

whether asbestos -- or excuse me, regarding asbestos as

a cause of colon cancer?

A No.

MS. WOO: Those are my questions for now, Your
Honor.

MR. SUN: Your Honor, may I?

THE COURT: Yes. And then we'll go back to thequestion that was posed by plaintiff.

MR. NEVIN: I don't think this has anything to do
with the question.

THE COURT: I understand your position. You can
sit down, by the way.

MR. SUN: This is still part of the voir dire, Your
Honor.

THE COURT: Yes.

VOIR DIRE EXAMINATION

Q Yes, Dr. Schwartz, prior to your
specialization in pulmonary medicine, you received
training in the general anatomy of the body, correct?

A Yes.

Q Yes. Beyond that general training of the

anatomy, have you received any other specialized

training specific to the anatomy of the GI tract?

A No.

Q And have you ever participated in any animal
research that specifically has to do with exposing
animals to asbestos in such a way that would cause
gastrointestinal abnormalities?

No.

Okay. Have you ever reviewed such studies?
No.

SUN: Thank you, Your Honor.

COURT: All right. If we could -- I'm sorry.21

MR. SUDDLESON: I have some additional voir
Your Honor. Should I do it from the box?
THE COURT: That's fine right there.

MR. SUDDLESON: Thank you.

VOIR DIRE EXAMINATION

BY MR. SUDDLESON:

Good morning, Dr. Schwartz.

Good morning.

You are not an epidemiologist, correct?

That's correct.

You understand that the study of epidemiology
is to relate causation to populations, correct? To
study populations --

A I don't think it is, but I think it's more to
try to understand the relationship between exposures and
disease and to try to understand the causes of disease.

Q With regard to cancers, the only way to
determine the causation of a cancer is by epidemiology,
correct?

MR. NEVIN: Objection. Vague.

THE WITNESS: No, I don't think so.

THE COURT: He's answered. Overruled.

Q BY MR. SUDDLESON: You cannot look at a
specific tumor under a microscope and determine what
caused it, correct?

A That's correct.

The reason we know that lung cancer can be22

caused by cigarette smoking is because of epidemiologic
studies, correct?

MR. NEVIN: Objection. Misleading. Incomplete --

THE COURT: Sustained.

THE WITNESS: That's one of --

THE COURT: Sustained. Sustained. You don't need
to answer.

THE WITNESS: I'm sorry.

THE COURT: That's all right. That's all right.

Q BY MR. SUDDLESON: And you are not a
epidemiologist, correct?

A I thought I answered that.

Q All right. And you agree that epidemiology is
important in determining whether a substance can cause
colon, correct?

A It's one of the important factors, yes.

Q Okay. And you have not studied the literature
relating to whether asbestos causes colon cancer,
correct?

MR. NEVIN: Objection. Vague. Overbroad.

THE COURT: Overruled.

THE WITNESS: No, I have.

Q BY MR. SUDDLESON: Okay. As I understand from

your prior testimony, you are aware that there are some

studies by Dr. Selikoff that suggests that there's a
relationship between asbestos exposure and colon cancer,
correct?

A I think what I --23

MR. NEVIN: Objection.

THE WITNESS: -- stated before was that I was aware
that Selikoff had published a study and that there were
a number of other studies that were published. And that
if asked to provide additional information, I would
review that literature before testifying.

Q BY MR. SUDDLESON: And in this case, you gave
a deposition, correct?

A Yes.

Q And you were asked if you could identify a
single study that supported your position that asbestos
could even cause colon cancer, correct?

A That's correct.

Qo You were not able to identify a single study,
were you?

MR. NEVIN: Objection. Vague as to "identify."

THE COURT: Overruled.

THE WITNESS: I hadn't yet reviewed the literature.

Q BY MR. SUDDLESON: And you are aware that
there are studies that show that there is no association
between asbestos exposure and colon cancer, correct?

A Yes.

You have not reviewed those studies, have you?

Q
A Yes, I have.
Q

Okay. When you gave your deposition in this
case, you testified that you had not reviewed those
studies?

A24

MR. NEVIN: Objection. Vague as to time.

THE WITNESS: That's correct.

THE COURT: Overruled. When he gave his
deposition. Overruled.

Q BY MR. SUDDLESON: And you gave your
deposition in this case in April of this year?

A Yes.

Q And at that time, you were not familiar -- you
had not reviewed the studies relating to asbestos
exposure and colon cancer where there was no association
shown, correct?

MR. NEVIN: Vague as to time of review.

THE COURT: At the time of his deposition.
Overruled.

THE WITNESS: Yes, that's correct.

Q BY MR. SUDDLESON: Okay. And at the time of

your deposition, you were not prepared to discuss with

counsel the various studies that show or fail to show
any association between asbestos exposure and colon
cancer, despite the fact that you're aware that some
exist?

A That's correct.

THE COURT: All right. Counsel, I think we're
going beyond what's needed for voir dire and we're going
into the cross-examination. So let's move back to the
question that was posed when voir dire was requested.

MR. STILSON: I have one question, if I may, Your

Honor.THE COURT: On voir dire?

MR. STILSON: On voir dire.

VOIR DIRE EXAMINATION

BY MR. STILSON:
Q Sir, you're not an expert in colon cancer; is

that correct?

25

MR. NEVIN: Objection. Vague. Asked and answered.

THE COURT: It's been asked and answered.
If we could go back to the question that was

posed when counsel asked for voir dire. Thank you.

MR. NEVIN: Let me first actually back up.

THE COURT: Let's have the question first.

MR. NEVIN: Okay.

THE COURT: The court reporter will read back the
question.

THE COURT REPORTER: How does asbestos reach the
colon?

MS. WOO: Your Honor, so again, the objection is
lacks foundation. Calls for speculation.

THE COURT: I'm going to sustain the objection in

light of the voir dire.

DIRECT EXAMINATION (RESUMED)

BY MR. NEVIN:
Q Well, in light of voir dire, let's discuss
some of these issues.

First off, as to that specific question,26

somebody who finished medical school could probably
answer that question, correct?

MS. WOO: Calls for to speculation. Lacks
foundation.

THE COURT: Sustained.

Q BY MR. NEVIN: You were asked if you do any
animal research.

You are, in fact, not a cellular biologist who
specializes in exposing animals to asbestos, correct?

A I have never -- I've been involved in one
study in which animals were exposed to asbestos, but
they were exposed to asbestos by another laboratory.

Q Okay. And so the overall topic of exposing
asbestos to animals and doing that cellular research is
another field, not yours, correct?

A Well, I would say it's a related field.

Q But it's not something that you would
personally undertake to do yourself?

A Very few laboratories exposure animals to
asbestos.

Q And since you're not an epidemiologist, it's

also -- doing mass epidemiology studies not something

you would undertake to perform yourself either, correct?
A That's correct.
Q And since you're not an oncologist or GI
specialist, it wouldn't make sense for you to actually
be the treater of anyone suffering from colon cancer,

correct?27

A That's correct.

Q But that has nothing to do with causation,
correct?

MS. WOO: Objection. Lacks foundation.

THE COURT: Sustained.

Q BY MR. NEVIN: You were asked about
epidemiology, and you responded that epidemiology is a
tool, right?

A Yes.

Q And so a tool that's for use in determining
causation in a particular individual?

A I would characterize it as a methodology, yes.

Q Okay. In your opinion, what limitations does
epidemiology have when applied to a specific individual
who has cancer such as colon cancer?

A Epidemiology relates to populations not to
individuals, and it's an extrapolation from those
epidemiologic studies to the specific individual.

Q Over the course of your career, before you
would treat a patient, would you go back and reread all
the literature on that subject before you went and

treated the patient?

A If I wasn't familiar with the literature, I

would.

Qo And when you were discussing your deposition
and you said you hadn't reviewed literature, you
meant -- did you mean for that particular deposition or

did you mean you've never reviewed literature onasbestos and colon cancer ever?

MS. WOO: The question was asked and answered at

deposition, Your Honor, and this is just giving the

plaintiff the --

THE COURT: If it was asked and answered at
deposition, it's not a basis for an objection here in
court. You may go ahead.

Had you completed your question?

MR. NEVIN: Yes.

THE COURT: All right. You may answer.

THE WITNESS: I did not review the literature for
that specific deposition.

Q BY MR. NEVIN: But, in the past, you have
reviewed literature on asbestos in colon cancer?

A Yes.

Q Okay. And is that one of the tools that you
use as one of the bases for your opinions on asbestos
and colon cancer in Mrs. Nicholson?

MS. WOO: Lacks foundation. Calis for speculation.

May I voir dire, Your Honor?

MR. NEVIN: This is all cause.

THE COURT: Hold on. This is for
cross-examination, but let me just clarify the question.

You indicate, Doctor, that you didn't review
literature before your deposition with regard to
asbestos and colon cancer.

Is the question specific to Mrs. Nicholson

now? Perhaps we should --29

MR. NEVIN: Well, I could broaden it to anyone.

THE COURT: Perhaps we should have the question
read back, because, as I understand it, you were
comparing before the deposition and after the
deposition. And then after the deposition, you made it
specific to Mrs. Nicholson, which was not the way the
question was phrased previously, but I'll have the
question read back.

THE COURT REPORTER: Okay. And is that one of the
tools that you use as one of the bases for your opinions
on asbestos and colon cancer in Mrs. Nicholson?

THE WITNESS: I think --

THE COURT: I'm going to sustain the objection. As
specific to Mrs. Nicholson, there's no foundation.

MR. NEVIN: Sure, and I meant to say like
Mrs. Nicholson.

THE COURT: Rephrase.

MR. NEVIN: Sure.

Where I'm going here is you were presented
with a motion that said the literature is the end-all

and be-all, and what Dr. Schwartz and I are trying to

convey is it's one of the many pieces of puzzle. So I'm

trying to talk about the puzzle.

THE COURT: Well, the motion is specific to
causation. It not specific, necessarily, to literature.
It's specific to causation, so we're addressing
causation.

MR. NEVIN: Right.30

THE COURT: All right. Go ahead.

Q BY MR. NEVIN: So in terms of -- let's take a
step back.

In your capacity as a specialist in
occupational medicine, and you have an individual who is
exposed to asbestos and develops what might be an
asbestos related disease, what are the types of tools
that you use to determine causation?

A There have a variety of tools. So
epidemiology, in other words, the literature in
populations exposed to that agent is one of the tools.
The second tool is to understand the inherent toxicity
of that particular agent and the way in which that
particular agent affects the body and cells in the body.

The third tool is understanding how that

particular agent causes disease; in other words, how

disease progresses and changes and how one moves from
health to disease as a result of that agent and/or other
factors that are involved in the development of disease
within that individual, related to that specific
disease.

Q Okay. Can we call that last one like clinical
course or latency or what --

A I would call that one the interaction between
the environment or the occupational exposure and the
host defense mechanisms.

Q So going back to the epidemiology tool, over

the course of your career, have you had opportunity to31

review literature on asbestos and colon cancer?

A Yes.

Q Okay. And does that -- whether or not you
keep those literature constantly in mind, do those form
one of the bases of guidance for you in ~- when you look
at causation in a particular individual?

A Yes.

Qo Okay. And the second area was toxicity.

Does that include whether or not a substances
is a carcinogen?

Yes.

Okay. Is asbestos a carcinogen?

Yes, it is.

What does it mean when asbestos is called a
Class 1A human carcinogen?

A Tt means that it can cause cells to change
from normal cells to cancerous cells. And that being a
Class 1 carcinogen, it's been shown to have the
collective evidence in humans, in cells and in animals
to cause specific types of cancer.

Q And then the clinical -- or what I try to

paraphrase as quote/unquote clinical course, does that

start to get into the specific individuals, or are you

still looking at it on a more global basis, when
you look --
A Within specific individuals.
Q And so within specific individuals when you

either in a clinical setting or for a legal setting,what tools do you use with a particular individual to
help you in determining cause?

A Well, you place that in the context of other
risk factors that that individual has, to identify
whether they were more or less susceptible to that
particular agent. And while we can define some of those
risk factors in 2011, in the years to come, we're going
to be able to define many, many, more of those risk
factors in terms of susceptibility.

Q Are you aware of other risk factors for colon
cancer besides asbestos?

A Yes.

Tell us some.

A Family history, a history of ulcerative
colitis, a history of polyps and dietary factors.

Q And in determining -- in order to get these

risk factors history or lack thereof in a individual,

how is that accomplished? How is that obtained?

A By sitting down and talking with that
individual.

Q Okay. So some sort of exam has to be done?

A An exam, a history, yes.

Q Okay. Is it also important for an exposure
history to be done?

A Yes, it is.

Why is that?
A Well, in many cases, exposures that occur many

years ago could influence the development of disease33

subsequently. Asbestos is a classic agent that causes
disease many years after the initial exposure takes
place. And so the patient may not be entirely aware of
the exposures that they incurred that could have an
affect on the development of disease.

Q In determining whether or not an individual --
a colon cancer patiént has an asbestos caused colon
cancer, is it important to look for markers of asbestos
exposure?

MS. WOO: Lacks foundation. Calls for speculation.

THE COURT: Sustained.

Q BY MR. NEVIN: When you, either in a clinical
setting or a legal setting, look at an individual to
determine causation, do you consider radiology?

A Yes.

Why?

A Because that will give you additional evidence
of exposure to asbestos. It will not only give you
additional evidence of exposure to asbestos, it will
give you additional evidence of substantial exposure to

asbestos.

Q And when you say "substantial," you mean a lot

of exposure?

A I mean a lot of exposure that's enough to
cause pulmonary fibrosis or plural fibrosis.

Q Is a finding of asbestosis a marker of that
type of exposure?

A Yes.34

Q Is it important to consider pathology, a
pathology as available?

MS. WOO: Vague and overbroad, Your Honor.
Ambiguous.

THE COURT: Overruled.

THE WITNESS: Yes, it is.

Q BY MR. NEVIN: Why is that?

A Pathology can be helpful in many ways.
Pathology can help define the disease more precisely

than radiographic studies. Pathology can also be used

as a way of identifying exposure to asbestos by

identifying asbestos bodies.

Q How about -—

And asbestos fibers. Excuse me.

Q How about tools such as a pulmonary function
test? Is that important?

MR. SUN: Objection. Your Honor, are we still
talking about colon cancer here?

MR. NEVIN: Yeah, we are.

THE COURT: I'm going to allow it. Go ahead.

THE WITNESS: Pulmonary function tests can be
helpful as well.

Q BY MR. NEVIN: When you look at an individual
who has colon cancer and determine whether or not the
colon cancer was asbestos caused, what do you look for?

MS. WOO: Lacks foundation. Calls --

THE COURT: Sustained.

Q BY MR. NEVIN: Why do you look for anything?35

Why not just say -- come in here and say asbestos causes
colon cancer and we're done?

MS. WOO: Same objections, Your Honor

THE COURT: Sustained.

MR. NEVIN: Your Honor, this is ridiculous. Their
whole notion is that you can only decide this based on
literature and it's just not true. And if I can't
present how he determines causation, how do -- this is
not even a fair 402 hearing.

THE COURT: As I understand it, Counsel, he's never
treated a colon cancer patient. He's done no studies
with regard to colon cancer and its association with
asbestos. He's clearly identified that he's not an
epidemiologist. He is not someone who has a background
in colon cancer in any respect. He doesn't treat
patients with colon cancer. He hasn't done studies with
regard to colon cancer and asbestos. He hasn't done
animal studies. He hasn't done epidemiological studies.

And now you're asking how he would determine
the causation in any specific patient who has colon
cancer. As I understand it, he's never treated a colon

cancer patient.

MR. NEVIN: A treater doesn't determine causation

in asbestos. All those other entities, epidemiologists,
animal study guys, they don't determine causation in
asbestos. They give you one piece of the puzzle. Then
the occupational medicine doctor, which is him, takes

all those pieces and makes a determination. That's my36

point. So I have to ask him about all those pieces.

THE COURT: Well, you're going to -- I'm going to
sustain the objection, Counsel. You'll have to figure
out another way to ask the question.

Q BY MR. NEVIN: Doctor, the over course of your
career in dealing -- you said you dealt with between
1,000 and 2,000 individuals suffering from
asbestos-related disease, correct?

A Yes, that's correct.

Q All right. Do you have an estimate for how
many folks you've seen also in the litigation context
where you've ~~ your task has been to determine
causation?

A I would say, approximately, 500.

Q Okay. So between 1500 and 2500 folks that

you're looking at to determine whether or not this

person has an asbestos-related disease, what are the big
picture items that you look at?

A First, one needs to define exposure and be
certain that that individual was exposed to the agent.
There are only three elements to this.

Second, one needs to define disease an be
certain that that individual has that particular type of
disease.

And the third element to this is the
literature connecting that exposure with that disease
given the dosing and the timing of the exposure in

relationship to the onset of disease.37

Q So give us an example in a person with
mesothelioma, how you would go about one, two and three?

MS. WOO: Objection.

MR. SUN: Objection. Relevance.

THE COURT: Sustained.

QO BY MR. NEVIN: Give us an example in relation
to lung cancer how you would go about one, two and
three.

MS. WOO: Same objection, Your Honor.

MR. SUN: Relevance.

THE COURT: Sustained.

Q BY MR. NEVIN: Is the process any different
for determining causation in someone with colon cancer
then it is for determining causation for someone with
mesothelioma, lung cancer, asbestosis, lymphoma, or any
of the other asbestos-causing diseases?

MS. WOO: Lacks foundation. Calls for speculation,
Your Honor.

MR. SUN: Objection.

THE COURT: Sustained.

Q BY MR. NEVIN: Doctor, in fact, isn't not that

what you've done for between 1500 and 2500 patients?

MS. WOO: Misstates testimony, Your Honor. He --

THE COURT: Sustained. He indicated that he had
about 1,000 to 2,000 patients who were treated for
asbestos-related disease. Of those 500, they were
defined as having a disease that was related to

asbestos, that he testified to.MR. NEVIN: No, that's not accurate, Your Honor.
He saw in the clinical context patients between 1,000

and 2,000. And then he said he's seen, in the

litigation context, an additional 500. I was putting

the two numbers together.
THE COURT: All right.

Q BY MR. NEVIN: Either way, setting apart

38

together, there is a process as an occupational medicine

specialist that you go through when you get one of these

individuals to determine causation and determine what
disease they have, correct?

A Yes.

Q So, for example, someone has fibrosis on their

lungs, can you automatically assume, without any other
analysis, that they have asbestosis?

A No.

Why not?

A There are a number of causes of fibrosis, of
pulmonary fibrosis, and asbestosis is only one of the
causes of pulmonary fibrosis.

Q So, in that context, you go through your
analysis of exposure, disease and the literature?

A Yes.

Q Okay. And so, for example, you would take a
medical history to determine if they had any other
sources of fibrotic disease?

A Yes.

MR. SUN: Objection. Your Honor, my concern,39

again, is with the breadth of these questions. It's
irrelevant.
THE COURT: Let me see if I can narrow it down.

Dr. Schwartz, have you ever determined any
patient that you've treated or that you've tried to
associate causation for purposes of litigation, have you
ever determined causation of colon cancer with regard to
asbestos?

THE WITNESS: Yes.

THE COURT: All right. Why don't you narrow it
down.

Q BY MR. NEVIN: And how do you go about doing
that?

MR. SUN: Objection. Foundation, Your Honor.

THE COURT: I'm going to allow him to answer. Go
ahead.

THE WITNESS: You do that by identifying the
exposures that that individual came in contact with.
You do that by identifying the timing of the exposure
that that individual came in contact with asbestos. You
do that by considering other risk factors like family
history, ulcerative colitis, dietary changes and
polyposis, history of polyposis.

And you also do that by being certain that the
diagnosis of colon cancer is made by a pathologist who

is looking at tissue that is relevant and has made the

diagnosis conclusively of colon cancer.

QO BY MR. NEVIN: And so, for example, in the40

litigation context, when you are given of a patient, an
individual with colon cancer, do you always determine
that they have asbestos-caused colon cancer?

A No.

Q Okay. So if you had a hypothetical person who
did not have a sufficient history of exposure and had no
asbestosis marker and had a family history of polyposis,
would you opine that that person had an asbestos-caused
colon cancer?

A No.

Q So in looking at an individual, one of the
things you do, then, is determine if that person has any
other risk factors?

Yes, that's correct.

A
Q And did you do that in this case?
A

Yes.

Q Okay. And another thing you do in looking at
an individual is you determine whether or not they have
radiological and/or pathological marker of exposure in
that they have asbestosis, either radiologically or
pathologically, correct?

A Or that they have a sufficient history of
exposure.

Q Okay. Did you do all three of those things in
this case?

A yes.

Q Okay. And you did a report in this case,

correct?41

A Yes, I did.
Q Let me mark it as 112. Oh, you have a
right there.

A Yes, I do.

(Exhibit 112 was marked for

identification.)

Q BY MR. NEVIN: Dr. Schwartz, what I've
marked as Exhibit 112, is this the report --

A Yes, it is.

Q -- in this case?

Give us an overview of the reports that you
looked at in this case.

A Well, I reviewed a number of previous medical
reports: The pathology reports; the radiology reports;
medical records from Dr. Richard Bordon, Dr. Daniel
Powers, Dr. William Sawlyer, medical records from the
family practice specialists, medical records from Havasu
Regional Medical Center; medical records from the

Midwest Internal Medicine Clinic; and medical records

from Sunrise Hospital and Medical Center, as well as

answers to standard asbestos case interrogatories.

Q So why did you look at the pathology report in
Mrs. Nicholson's case?

A Because I wanted to see what the opinion of

the pathologist was -- the pathologists were in this42

particular case in relation to the initial b