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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                oyu Dd

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 A 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 A 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 Aoc GC MD NN OD Oo RF Ww NY =

=

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
---000---
ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs. No. 275731

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

Defendants.

TELEPHONIC DEPOSITION OF DAVID SCHWARTZ, M.D.

Taken before JANET M. MCCLEARY
CSR No. 3008
May 9, 2013

Aiken Welch Court Reporters
One Kaiser Plaza, Suite 505
Oakland, California 94612
(510) 451-1580 (877) 451-1580
Fax: (510) 451-3797
www.aikenwelch.comoclUcOOUlUODWUNCUCUCUCOOUOUOUCUCUMR UBOUND

DEPOSITION OF DAVID SCHWARTZ, M.D.

BE IT REMEMBERED, that pursuant to Notice, and on

the 9th day of May 2013, commencing at the hour of 5:14

p.m. before me, JANET M. MCCLEARY, a Certified

Shorthand Reporter, telephonically appeared DAVID
SCHWARTZ, M.D., produced as a witness in said action,
and being by me first duly sworn, was thereupon

examined as a witness in said cause.

---000---

APPEARANCES: (All appeared by phone)

For the Plaintiffs:

CHRISTOPHER HERSOM

Brayton Purcell

222 Rush Landing Road

Novato, California 94948-6169

For the Defendant Pribuss Engineering, Inc.:

GEORGE HADDAD

Adams Nye Becht

222 Kearny Street, 7th Floor

San Francisco, California 94108-4521

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013=

oO MOD N DOD HO BF WN

DAVID SCHWARTZ, M.D.
sworn as a witness,
testified as follows:
EXAMINATION BY MR. YUEN:
Do we have a stipulation that the Court
Reporter may swear the witness in remotely?
MR. HERSOM: Yes.
BY MR. YUEN:
Q. Good afternoon, Dr. Schwartz. My name is Roger
Yuen. I will be taking your deposition today. Can you
please state your name for the record and spell your

last name?

A. David Albert SCHWART Z.

Q.

Because I know you have been deposed many times

in the past, may I dispense with the usual admonitions?

A. Yes.

Q.

Doctor, what is your current rate for
deposition testimony?

A. $600 an hour.
Q.

Doctor, I represent that my office has sent a

check to your attention. I believe it was delivered

today, but if that's not the case, please feel free to

let Plaintiffs’ counsel know or me know, okay?
A. Okay.

Q.

Where are you physically located right now?

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013I am in my home in Denver, Colorado.

Doctor, what is your primary area of expertise?

Pulmonary and occupational medicine.

Doctor, I understand you have been retained by
Plaintiffs in the Robert Ross matter; is that correct?

Yes, I have.

Do you recall when you were first retained?

I think that it was in December of 2010.

I understand that there are two Robert Ross
matters, a prior asbestosis action and a current colon
cancer- only action; is that your understanding,
doctor?

A. I was not aware of the different legal actions
that are ongoing.

Q. I also understand, doctor, you were deposed in
the Robert Ross case, the prior asbestosis action,
sometime in February of 2012. Do you recall that?

A. Yes, I do.

Q. Is there any way you can differentiate any

opinions or any materials that you have reviewed in

preparation for your deposition here today that was in

addition to what was reviewed in the prior deposition
taken in February 2012? Is there any way?
A. I am not sure what you mean by that.

Q. I will rephrase. With respect to the materials

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013provided to you by the Brayton Purcell firm, do you
recall receiving any additional material other than
what you have received in preparation for your February
2012 deposition in the Robert Ross matter?

A. No.

Q. Doctor, how much time have you spent with
respect to your work in the Robert Ross action?

A. I think about three hours so far.

Q. What did that preparation consist of?

A. I didn't hear that you asked me about
preparation. I thought you asked me how much time I
have spent on the case.

Q. With respect to the time spent, what did that
time entail?

A. It involved reviewing records and writing
reports in December 2010 and in April 2011. And then
giving the deposition in February of 2012.

Q. Since your deposition in February of 2012, have

you spoken to anyone from the Brayton Purcell firm with

respect to this case?

A. No.

Q. I am going to refer you to a list of material
which was entitled “your file" that was provided to
defense in preparation of your deposition. I am going

to attach that as Exhibit A to this deposition.

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oO ON OD Oo BF WY =

bh MM DY NY NH B@B B@ Bw ew Be ew aw aw en
a FB © NY = 0D © ON OD HD F WH =

11

And basically, the file that was provided to us
has a few caption sheets. The first one being medical
binder for David Schwartz, M.D. dated 12-20-2010 which
consists of a report by Daniel Raybin -- Dr. Raybin, a
report from Dr. Schonfeld and answers to standard case
interrogatories. Are those documents accurate as far
as being a part of your file in this case?

A. I believe they are, yes.

Q. And second caption I see is a supplemental
medical binder for David A. Schwartz, M.D. dated
4-14-2011. It consists of ten items. They are
pathology reports, radiology reports, a report prepared
by you dated 12-28-2010, Arizona Oncology Associates.

I believe that should be medical records. Medical
records from Bend Memorial Clinic; medical records from
El Dorado Medical Association; from Gastro -- I think
it is Gastroenterology Associates in Tucson, Arizona; a
Dr. Hollander in Tucson, Arizona; and St. Joseph
Hospital, Tucson, Arizona; and answers to standard case
interrogatories.

Do those documents that I just referenced seem
accurate as far as documents that were contained in
your file?

A. Yes.

Q. With that, I will coordinate with Plaintiffs

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oO ODN OD HO BF WY =

mw mM MY DY HY NY B&B Ba a aw a an a a a
a F&F © NY = GCG o© ODN D2 TO BF Ww ND =

MR. HERSOM: Vague and ambiguous.
THE WITNESS: It depends on the individual.
BY MR. YUEN:

Q. But those factors that I have listed, those are
primary factors in colon cancer, would that be
accurate?

MR. HERSOM: Vague and ambiguous.
THE WITNESS: General population, yes.
BY MR. YUEN:

Q. Is smoking also a factor towards the
development of colon cancer in your opinion?

A. I don't believe it is, no.

Q. What about obesity? Is obesity a factor in the
development of colon cancer?

A. Yes.

Q. What about alcohol consumption? Is that a
factor in one's development of colon cancer?

A. I don't know the answer to that.

Q. You just testified that you don't believe

cigarette smoking is a factor for colon cancer.

Do you have any medical literature or studies
that support that opinion?
A. No, not at this point in time. I just don't
know of it as a clear risk factor. That's the point

that I was trying to make.

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013=

Q. Understood.

A. I don't have studies that suggest to me that it
is a definite risk factor. That's what I am saying.

Q. Sir, is it accurate that according to medical

records and interrogatories, Mr. Ross had an

oO an fF WOW DN

approximate 31-pack-year smoking history? Does that
7 sound accurate? I will refer --

A.

Yes.

Q. Okay. Do you know if Mr. Ross had a family

history of colon cancer?

A. I don't know.

Q. Do you know if Mr. Ross ever suffered or
suffers from ulcerative colitis?

A. I don't know.

Q. Do you know if Mr. Ross suffered or currently
suffers from any polyps?

A. I don't know.

Q. Do you know what factors, if any, with respect
to Mr. Ross's diet may have contributed to any colon
cancer that he suffered?

MR. HERSOM: Assumes facts.
THE WITNESS: Again, I don't know.
BY MR. YUEN:

Q

Doctor, with respect to colon cancers

generally, do they normally occur through the

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oOo ON OO FF WO NY

development of polyps?
MR. HERSOM: Vague and ambiguous.
BY MR. YUEN:

Q. I will rephrase that if you need to, doctor.

A. Yes, that would be helpful.

Q. Is there an occasion where one would suffer
from colon cancer without suffering from any polyps?

A. Yes.

Q. And what is the likelihood of that occurring?
Basically, my question is, is it more likely than not a
person with colon cancer is suffering from polyps?

MR. HERSOM: Vague and ambiguous

THE WITNESS: Yes. It is common for
individuals with colon cancer to have polyps. And it
is common for colon cancer to develop from polyps, but
I imagine colon cancer can develop on its own as well.
BY MR. YUEN:

Q. With respect to someone who develops polyps,

what are the contributing factors, in your opinion,

that would lead to a person suffering from polyps?

A. There is a syndrome called familial polyposis
where you develop a number of polyps throughout your
colon that are mostly benign but sometimes become
malignant.

So it really is completely dependant on the age

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oc 0 ODN OD ODO RB WHY =

ea oa a a ae a
oO n FF WON &

17
18
19
20
24
22
23
24
25

that would cause that according to any studies or
research that you have reviewed?

A. I don't know. I would assume that it has to do
with what polyp gets exposed to in the colon.
Sometimes it gets exposed to carcinogens in the colon

like asbestos and sometimes it get exposed to

carcinogens in meat that people eat. Sometimes it gets

-- sometimes it is just a more malignant variety of a
polyp. I honestly don't know why some polyps become
malignant if that's what your question is.

Q. Just trying to search your memory as to what
studies you have encountered that address that
question.

Going back to my question about cigarette
smoking, is it accurate that you don't recall ever
seeing a study that listed cigarette smoking as one of
the carcinogens that may be a factor in causing polyps
to be colon cancer?

A. That's correct.

Q. I am going to turn your attention to what was
marked as Exhibit 4 to your declaration, marked as
Exhibit B to this deposition. That is your
bibliography of colon cancer articles. There is a slew
of articles here.

And my first question is, do all these articles

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oO Mm N OD HO BRB Ww HY =

= 0a
Nn =

listed in this bibliography support your opinion that
asbestos may cause colon cancer?

A. By and large, yes.

Q. And are you aware of any studies out that have
been published that suggest the opposite, that asbestos
has no correlation to colon cancer?

Have you ever come across any articles with
respect to that conclusion?

A. I am aware that there are studies that are out,
but I am not specifically aware of those studies that
you are referring to. I am aware that this is a
controversial subject.

Q. You are not an epidemiologist; is that correct?

That's correct.

That's correct.

A
Q. You are not a pathologist, correct?
A
Q

Sir, other than testifying at trial, do you
anticipate any further work on the Robert Ross matter?

A. No.

Q. Other than the opinions presented in your
declaration, which we marked as Exhibit B, and the
clinical notes dated December 28, 2010 and April 23,
2011, do you have any other further opinions related to
the Robert Ross action?

MR. HERSOM: Overbroad.

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013a

oO ON OO FF WO NY

24

THE WITNESS: None more than -- I mean I don't
know how to answer that question because it is clear
that I may be asked things that may address opinions.
I don't know what you mean.

BY MR. YUEN:

Q. Let me put a caveat on that. Barring any
hypotheticals or any questions at trial at this point,
do your declaration and the two clinical notes cover
the opinions that you are prepared to give here today
with respect to the Robert Ross case?

A. Yes.

Q. Are there any other materials that you would
like to have reviewed which you believe would help you
formulate any further opinions in this case?

MR. HERSOM: Objection. The doctor is being

offered to testify regarding the reasonableness of past

and future medical expenses and has provided some
medical special information
MR. YUEN: Thank you, Chris.

BY MR. YUEN:

Q. Are you aware of reviewing any past medical
bills in the Robert Ross case?

A. I am not aware of reviewing any bills in this
particular case, no.

Q. As we sit here today, are you prepared to give

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013co © ee NO HO BF WHY =

yw MY DY HY NY @& B= 2 2B Ba Be a an Ba a
a fF © NN = SG O© ODN OD TD BF WHY S|

25

any opinions with respect to the reasonableness of past
medical expenses related to any medical treatment
provided to Mr. Robert Ross?

A. Not until I review those records.

Q. Sure. And as we sit here today, are you
prepared to provide any opinions as to any future
medical costs related to any future care for Mr. Ross?

A. I would have to review the care that he has
received thus far.

Q. Just so the record is clear, you have not had
an opportunity to review the past medical bills in
order to formulate the opinions that I have just asked
you; is that correct?

A. That's correct.

MR. YUEN:

Doctor, I appreciate your time. I

am going to turn the stand over to one of my

colleagues. Her name is Lucy Hoff.
EXAMINATION BY MS. HOFF:

Q.

Can you hear me all right?

A. I can.

Q. Doctor, you gave a deposition in the Nicholson

versus Asbestos Defendants matter in Los Angeles

Superior Court, case number BC 413220 in April of 2011,

correct?

A. I don't recall, but I assume that that's

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oO ODN DO HO RB Ww MY =

Nm SB ae ae a a ae a Bw aw
iS Oo ODN OD OD BF WH =

correct.

Q. The testimony in this deposition was under
oath, correct?

A. Yes.

MR. HERSOM: Lacks foundation, calls for
speculation. He can't recall the testimony.
BY MS. HOFF:

Q. Assuming you gave a deposition in the Nicholson
matter, that deposition testimony would have been under
oath, correct?

A. Yes.

Q. And you gave testimony during an evidence code
section 402 hearing on defense motions in limine in the
same matter, the Nicholson matter, in Los Angeles in
June of 2011, correct?

A. Again, I don't recall.

Q. Do you recall giving deposition testimony in
the Edward Shorthall matter in January and February of

this year, 2013?

Doctor, you are not an expert on colon cancer,
correct?
A.
Q.

That's correct.

And you have never treated anyone with colon

cancer, correct?

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013CO ON OD OD RB WwW DY AB

yw NM YH MH BSB Ba Ba Ba ae a Ba aw aw
oN += CG © © NN OD HO BF Ww ND B=

A. That's correct. Excuse me, that is not
correct. I have treated a lot of patients with colon
cancer. I have not been the oncologist treating those
patients.

Q. What does your treatment of them entail?

A. Sometimes I have been involved in the diagnosis
of those individuals, performing a sigmoidoscopy and a
biopsy. Sometimes I have been involved as a consultant
taking care of pulmonary lung problems of those
individuals. And sometimes I have just been involved
with the general medical care of those individuals.

Q. But you are not a pathologist, correct?

MR. HERSOM: Asked and answered.
THE WITNESS: That's correct.
BY MS. HOFF:

Q. Can you tell me how you were involved in the

diagnosis?

A. I am an internist, ma'am. And I oftentimes see
patients in the hospital with general medical problems.
And colon cancer is considered a general medical
problem. Pathologists usually don't take care of
patients; they just look at things under the
microscope.

Q. You have never done any research regarding the

colon, correct?

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013A. That's correct.

Q. And you have not received any specialized
training specific to the GI tract, correct?

A. Correct.

Q. You have not conducted or participated in any
epidemiological studies to determine whether or not
asbestos exposure causes colon cancer, correct?

A. Correct.

Q. You have not conducted or participated in any
animal studies exposing animals to asbestos in a way
that would cause any gastrointestinal abnormalities,
correct?

A. That's correct.

Q. You have not conducted or participated in any

animal studies for purposes of determining whether or

not asbestos exposure causes colon cancer, correct?

A. Correct.

Q. You have not received a research grant to study
whether or not asbestos causes colon cancer, correct?

A. That is correct.

Q. And you have not published any peer-reviewed
literature regarding asbestos exposure as a cause of
colon cancer, correct?

A. That is correct.

Q. And you have not published any peer-reviewed

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013a

oO Oo ON OO RF WN

paper on the disease colon cancer itself, correct?

A. Yes, that is correct.

Q. And you have not published any peer-reviewed
paper on any malignancies within the gastrointestinal
tract, correct?

A. Yes.

Q. You have not written any textbook or book
chapters on asbestos exposure as a cause of colon
cancer, correct?

A. Yes, that's correct.

Q. You have not participated in any editorials or
reviews relating to the investigation of whether or not
asbestos causes colon cancer, correct?

A. Yes.

Q. You have never performed any meta-analysis of

data regarding asbestos as a cause for colorectal

cancer, correct?

A. That's correct.

Q. And you have not submitted any written
criticism of written publications which suggest
asbestos is not a cause of colorectal cancer, correct?

A. Yes, that is correct.

Q. And you have never conducted a survey of the
majority of available medical literature regarding

whether asbestos exposure is or is not a cause of colon

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oO 0 ODN OD ODO BF WIN

cancer, correct?

A. Yes.

You are familiar with the Institute of
Medicine, correct?

A. Yes.

Q. And you would agree that it is a prestigious
organization of experts in medicine and science who get
together to discuss issues that are important and come
to conclusions, correct?

A. Yes.

Q. You agree that is part of the National Academy
of Sciences?

A. Excuse me?

Q. Do you agree that it is part of the National

Academy of Sciences?

A. What is "it"?

Q. I am sorry. The Institute of Medicine.

A. Yes. Hold on one minute, please.

(Discussion off the record.)

Q. Doctor, you agree that the National Academy of
Sciences is an advisor to the US Congress on scientific
matters, correct?

A. Yes.

Q. And you are aware that the Institute of

Medicine prepared a report in 2006 regarding the

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013relationship between asbestos exposure and several
cancers including colorectal cancer, correct?

A. I am not aware of that, no.

Q. If you are not aware of that, I assume you have

not read this report; is that correct?

A. That's correct.

Q. Are you aware that the committee concluded that

the evidence is suggested but not --
THE REPORTER: Can you please slow down and
start that question over?

BY MS. HOFF:

Q. Are you aware that the committee concluded that
the evidence is suggestive but not sufficient to infer
a causal relationship between asbestos exposure and
colorectal cancer?
MR. HERSOM:

Lacks foundation, calls for

speculation.

THE WITNESS: I am not sure because I haven't
read the report.
20 BY MS. HOFF:

21 Q. Sir, in reference to your annotated

22 bibliography of colon cancer articles which is attached
23 as Exhibit 4 to your declaration, this is a complete

list of the literature that you rely on for your

correct?

opinions in this case,

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013A. Yes.

Q. And you have nothing else to add to this list

at this time?

A. That's correct.

Q. Doctor, you did not personally examine Mr. Ross
in this case, correct?

A. That's correct.

Q. And you did not speak to Mr. Ross, correct?

A. That's correct.

Q. And you did not personally review any of Mr.
Ross's --

A. I didn't hear what you said. You said it too
fast.

Q. You did not personally review any of Mr. Ross's
X-rays, correct?

A. That's correct.

Q. You did not personally review any of Mr. Ross's
CT scans, correct?

A. That's correct.

Q. You did not personally review any of Mr. Ross's
pulmonary function tests, correct?

A. That's correct.

Q. And you did not personally review
Ross's pathology specimens, correct?

A. That's correct.

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oc O© ON OD Oo BF WN A=

wy MW NH NY NY NY BB Ba Ba se oa aw a a oa
a fF WNH + 09 © 8B N DOD HO F&F Ww NY =

33

Q. I know you stated that you haven't spoken with
anyone from the Brayton firm since your 2012
deposition. Have you received any written
communication from the Brayton firm since that
deposition?

A. I received an e-mail with the attachment of the
May 7, 2013 declaration and a copy of my deposition
notice that I gave in February of 2012. And I received
that about a week and a half ago.

Q. Have you received any other written
communication?

A. No.

Q. I would like to attach a copy of that e-mail.

A. I don't have it.

Q. Is there any way you could get it for us?

A. I don't know. The Brayton Purcell firm
generated that e-mail. They should have a copy of it.

MS. HOFF: Chris, is there any way you could
send that e-mail to the Court Reporter to attach it to

the deposition?

MR. HERSOM: I will see if I can locate it. We
will do it if we can find it.

MS. HOFF: I'd like to attach it as Exhibit C.

Sir, I am going to reserve my right if you undertake

any further review or look at any documents to this

Aiken Welch Court Reporters Dr. Schwartz 05/09/201334

case after this deposition, and I would move to strike
any opinions derived therefrom. And with that I will
pass to other counsel. Thank you for your time.
MR. HERSOM: Anybody else have questions?
EXAMINATION BY MR. BUDDELL:
Q. I have got some questions for you. What do you
know about Mr. Ross's diet?
MR. HERSOM: Overbroad, vague and ambiguous.
THE WITNESS: I don't know anything about his
diet.
BY MR. BUDDELL:
Q. What do you know about his alcohol intake?
MR. HERSOM: Same objections.
THE WITNESS: I don't know anything about his
alcohol intake.
BY MR. BUDDELL:
Q. Do you know whether he has ever suffered a
history of colorectal polyps?
A. No, I don't.

Q. Do you know whether he has ever suffered a

history of inflammatory intestinal conditions?

A. No, I don't.
Q. Do you know whether he has a family history of
colon cancer?

A. No, I don't.

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013Q.
A.

Do you know whether --

Excuse me, I do. He does not have a family
history of colon cancer.

Q. Do you know whether he has a family history of
colon polyps?

A. No.

Q. Do you know anything about his lifestyle;

specifically, whether he is more sedentary or active?
MR. HERSOM: Vague and ambiguous.
THE WITNESS: No, I don't.
11 BY MR. BUDDELL:
12 Q. Do you know whether he has ever suffered from
13 diabetes?
14 A. No.
15 Do you know what his weight is?
16 No.
17 I am sorry, I didn't understand your answer.
18 No.
19 When you opine that Mr. Ross's colon cancer was
20 caused by asbestos, are you opining that asbestos was
21 the sole cause of his colon cancer?
22 A. No, I think I say that his colon cancer was
23 caused, in part, by exposure to asbestos.
24 Q. What else caused it?
25 A. I don't know.

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oO ODN OOHULULRUBOULULDN

36

Q. Are you able to apportion the causation of Mr

Ross's colon cancer which you believe is attributable
to asbestos in any way?

A. No.

Q. So you wouldn't be able to provide a percentage
if asked, correct?

A. I would be able to say based on what I know
from the literature, on a more likely than not basis,
Mr. Ross's colon cancer was caused by asbestos.

Q. Right, but your opinion is that it was caused,
in part, by asbestos, not solely, correct?

A. That is correct.

Q. So if we take into account the other potential
causes of his colon cancer, how would you apportion the
causation of colon cancer between asbestos and the
other factors?

MR. HERSOM: Misstates legal standard, calls
for speculation.

THE WITNESS: I didn't say that I could
apportion his risk of colon cancer between asbestos and
other factors. I never said that.

BY MR. BUDDELL:

Q. I would like to turn your attention to your

declaration, page 4, specifically paragraph 9.

A. Okay.

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013oO a FF wW DN

A. It is an assumption I am making.
Q. Would that be similar to -- strike that.
Would his being paid to generate that opinion
be similar to you being paid to generate your opinion
that colon cancer is caused by asbestos?
MR. HERSOM: Argumentative.
THE WITNESS: Yes, it would be.
MR. BUDDELL: I have no further questions,
doctor. Thank you.
EXAMINATION BY MR. JONES:
Q. I just want to follow up talking about the
declaration. You base your opinion on the breadth of

scientific literature. What literature search have you

conducted with respect to the causation between colon
cancer and asbestos?
A.

I have not -- we went over this in the

deposition with the female attorney. I have not

generated any literature on colon cancer

Q. My question was a little bit different. I am

not necessarily asking whether you have generated
necessarily a study.

My question is -- let me lay a foundation.

First off, you understand that, from what you said

earlier, the idea that asbestos causes colon cancer is

controversial I believe is the word you used; is that

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013=

correct?

A. Yes.

Q. And you made a report ascribing to the theory
that asbestos causes colon cancer, correct?

A. Yes.

Q. So you anticipated that you would be asked as

to the foundations that are supporting your opinions,
correct?

A. Yes.

oc 0 MW NOD OD RB WN

Q. In order to make yourself current on the most
recent science regarding that issue, did you undertake
a literature review?

Yes, I did.

When did you do that?

I don't recall the date.

Well, give me roughly. Was it last week? Last
month? Give me a rough timeframe when you conducted
that literature review.

A. I'd say within the past two years.

Q. And what was the scope of your literature
review? What did you look at?

A. I don't know what you are asking, sir.

Q. Well, what was your process for your review?
What did you look at?

A. PubMed, and I went through the colon cancer and

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013asbestos literature in PubMed.

SO Offa N jo ao BF Ww ND

wy Sa SB Ba a aw aw aw a
oO 0 DN DO HO BF WD =

Q. Is it true that there are about -- there are
over a hundred and one studies that have looked into
the relationship between asbestos exposure and colon

cancer?

And did you look at each one of those studies?

I looked at most of them, yes.

And did you take any effort to determine how
many of those studies came out with a relative risk
above one versus those that came out with a relative
risk below one?

A. Honestly, I don't recall how I did that, but I
read through most of the studies. And in the annotated
bibliography that I provided, I provided some
literature that supported the conclusion that I came
to, which is that asbestos caused his colon cancer.

Q. Well, would you agree that a scientific

approach to determining causation in a case like this

would be to look at all of the competent scientific
studies that were done?

MR. HERSOM: Argumentative, vague and
ambiguous.

THE WITNESS: Yes, but that is the way I

approached the task at hand. I reviewed all of the

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013o an . W IN

scientific literature that I thought was relevant to

this question.

BY MR. JONES:

Q. Again, your scope was, you looked for every
case study and cohort study involving the relationship
between asbestos exposure and colon cancer; is that

what you were looking at?

A. Yes.
Q. I am trying to find -- so are you referring
to -- with respect to the list of your supporting

material, are you talking about something that was
attached to the declaration that you signed or is that
someplace else?

A. There was a list of articles that I provided,
annotated list of articles that I provided, that are
part of the material that has been referred to
throughout this deposition.

Q. Where can I find that list? What does it start
with?

MR. CALLAHAN: It is already attached as an

exhibit.

THE WITNESS: And bibliography list of colon

cancer articles.

BY MR. JONES:

Q.

Is that part of your CV or part of the

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013study. And you evaluate the consistency of the
findings. And you evaluate the weight of the evidence.
So there are several features here.

We have come to the end of the hour. At least,
on my clock.

MR. HERSOM: Let's go off the record for a

(Discussion had off record)
MR. HERSOM: There's indication on the phone
there are further questions of Dr. Schwartz. We 1
go ahead and adjourn the deposition and schedule a
in the near future. My office will send out a
for Dr. Schwartz.

MR. GILBERT: Can I get a copy of what we have

MS. HOFF: Before we go off the record, I would
just like to state that I object to the deposition

being continued at a different time and reserve my

right to move to exclude for not completing the

deposition as scheduled.
MR. BUDDELL: I would like a copy of the
transcript, please.
MR. GILBERT: Me too. Berry & Berry.
MS. HOFF: I would like a copy, please.

(The deposition was adjourned at 6:15 p.m.)

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013=

oo Oo ON OO FF WwW DN

46

STATE OF CALIFORNIA )

COUNTY OF ALAMEDA )

I, JANET M. MCCLEARY, do hereby certify:

That DAVID SCHWARTZ, M.D., in the foregoing
deposition named, was present and by me sworn as a
witness in the above-entitled action at the time and
place therein specified;

That said deposition was taken before me at said
time and place, and was taken down in shorthand by me,
a Certified Shorthand Reporter of the State of
California, and was thereafter transcribed into
typewriting, and that the foregoing transcript
constitutes a full, true and correct report of said
deposition and of the proceedings that took place;

IN WITNESS WHEREOF, I have hereunder subscribed my

hand this 15th day of May 2013.

Que hn Pr Chaang ‘
JANET M. MCCLEARY, CSR Yo. 3

State of California

Aiken Welch Court Reporters Dr. Schwartz 05/09/2013