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

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                                HAKE Law,
A PROFESSIONAL CORPORATION

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

Kathryn L. Hoff, Esq. (State Bar No. 260420) FILE
HAKE LAW, A PROFESSIONAL CORPORATION Superior Court of Califé
655 Montgomery Street, Suite 1000 County of San Francis
San Francisco, CA 94111 JUL 03 201
Tel: 415-926-5800 Clerk of the Cou
Fax: 415-926-5801 BY: VANESSA WU
bill@hakelaw.com Deputy
melissa@hakelaw.com

lucy@hakelaw.com

Attorneys for Defendant
COLLINS ELECTRICAL COMPANY, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731

Plaintiffs, NOTICE OF ENTRY OF ORDER ON
EVIDENTIARY OBJECTIONS AND
vs. MOTION TO STRIKE THE
DECLARATION OF DAVID
cc, E & CO., EN ,etal.,
MOOR! GINEERS, et a SCHWARTZ, M.D. EN SUPPORT OF
Defendants. PLAINTIFFS’ OPPOSITION TO

DEFENDANT COLLINS ELECTRICAL
COMPANY, INC.’S MOTION FOR

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

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on May 31, 2013 in Department 503 of the San
Francisco Superior Court, the Honorable Teri L. Jackson entered the attached order sustaining in
part and overruling in part COLLINS ELECTRICAL COMPANY, INC.’S Evidentiary
Objections and Motion to Strike the Declaration of David Schwartz, M.D. in Support of
Plaintiffs’ Opposition to Defendant COLLINS ELECTRICAL COMPANY, INC.’S Motion for

Summary Judgment.

NOTICE OF ENTRY OF ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF|
DAVID SCHWARTZ, M.D. IN SUPPORT OF PLAINTIFFS” OPPOSITION TO DEFENDANT COLLINS ELECTRICAL,
COMPANY, INC."S MOTION FOR SUMMARY JUDGMENT

ELECTRONICALLY

nia,
co

ClerkHAKE Law,
A PROFESSIONAL CORPORATION

A Copy of the Court’s Order is attached hereto as Exhibit A.

Respectfully Submitted,

Dated: July 1, 2013 HAKE LAW,
A PROFESSIONAL CORPORATION

By: Ky oy Ate
William M. e, Esq.

Melissa D. Ippolito, Esq.

Kathryn L. Hoff, Esq.

Attorneys for Defendant

COLLINS ELECTRICAL COMPANY, INC.

22s.
OBJECTIONS AND MOTION TO STI

RY OF O} ON EVIDE! RA’
DAVID SCHWARTZ, M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT COLLINS. TLECTRICAL.
COMPANY, INC.’S MOTION FOR SUMMARY JUDGMENTEXHIBIT AHake LAW,
A PROFESSIONAL CORPORATION

William M. Hake, Esq. (State Bar No. 110956)

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

HAKE LAW, A PROFESSIONAL CORPORATION
655 Montgomery Street, Suite 1000

San Francisco, CA 94111 May 31 2013

Tel: 415-926-5800

Fax: 415-926-5801 CLERK QF THE COURT
dill@hakelaw.com By: AUOREY HUIE
melissa@hakelaw.com ~ Deputy Clerk

lucy@hakelaw.com

Attorneys for Defendant
COLLINS ELECTRICAL COMPANY, INC.

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

ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731

Plaintiffs, [PROPOSED] ORDER ON
EVIDENTIARY OBJECTIONS AND

vs. MOTION TO STRIKE THE
DECLARATION OF DAVID A.

C.C, MOORE & CO., ENGINEERS, et al., SCHWARTZ, M.D. IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO
Defendants. DEFENDANT COLLINS ELECTRICAL
COMPANY, INC.’°S MOTION FOR
SUMMARY JUDGMENT

Hearing Date: May 9, 2013
Time: 9:30 am.

Judge: Hon. Teri Jackson
Dept.: 503

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

Pursuant to Code of Civil Procedure section 437c, subdivisions (b)(5) and (d), and

California Rules of Court, Rule 3.1352, Defendant Collins Electrical Company, Ine.
(“Defendant”) respectfully submits the following written objections and motion to strike the
Declaration of David A. Schwartz, M.D.in Support of Plaintiffs’ Opposition to Defendant Collins}
Electrical Company, Inc.'s Motion for Summary Judgment (“Schwartz Decl.”):

Mit

Ut

dt

TEROPOSEDT ORDER ON EVIDENTIARY GBIECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTE]
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HAKE Law,
A PROFESSIONAL CORPORATION

oC OD OBO NM KR HR RB NY

Material Objected To

Schwartz Decl., in its entirety.

Grounds for Objection the

Lacks foundation and is based on Sustained:
speculation, and therefore is not a —_—_
proper matter on which expert opinion
testimony may be based. (Evid. Code

§§ 403, 405, 801, 802 & 803; see also | Overrated:
Jennings v. Palomar (2003) 114 —
Cal.App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).)
Schwartz did not personally examine
ROSS, speak to ROSS or personally
Teview any of ROSS's x-rays, CT
scans, pulmonary function tests or
pathology materials. He merely relied
on written reports by other experts in
this matter. (See Declaration of
Kathryn L. Hoff (“Hoff Decl.”), 97.2-
6.)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for colon cancer. (Evid. Code §
720(a).) Schwartz is not an expert on
colon cancer; he has never published
any article relating to colon cancer; he
has never participated in any
epidemiologic studies to determine
whether asbestos is a cause of
colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl.,
2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a

2

TEROPOSED) ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

Material Objected To

Schwartz Decl., 2, p. 1:24-26.

“I graduated from medical school in
1979, and I have been board certified
in medicine since 1984, in
occupational medicine since 1986,
and in pulmonary medicine since
1988.”

Grounds for Objection

survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl., (9 2-6.)

Tasufficient foundation laid to
qualify as an expert on matters to
which testimony relates, Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 9
2-6.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Irrelevant. (Evid. Code §§ 210, 350-
351.)

Undue Prejudice. (Evid. Code §
352.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, 1105-
1106 (“The evidence creates only ‘a

3

TERFOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objectio

Ruling on
the
biection

4

dwindling strearn of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer,
(See Hoff Decl., ¥f 2-3.)

Schwartz Decl., { 3.

“] attended the University of
Rochester, and received a Bachelor
of Arts degree with Honors in
Biology in 1974. I then attended the
University of California, San Diego,
Schoo! of Medicine and obtained my
medical degree in 1979, Following
medical school, in the summer of
1979, I took an 8-week course in
tropical medicine at the Walter Reed
Army Institute of Research. The
National Science Foundation
supported me as a Public Service
Science Resident in population-based
research until June of 1980. Between
July 1980 and June 1984, [ was an
intern, resident and chief resident at
Harvard School of Public Health and
took courses in epidemiology,
occupational medicine, and industrial
hygiene. | received a Master’s degree
in Public Health (MPH) in 1985 and
joined the Robert Wood Johnson
Clinical Scholars Program at the
University of Washington that
allowed me to acquire research
skills, complete my occupational

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code $§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., $f
2-6)

Irrelevant as to foundation and/or
qualifications for determining
causation for colon cancer. (Evid.
Code §§ 210, 350-351.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Undue Prejudice. (Evid. Code §
352.)

Sustained:

=e

| [PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ.

M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

YA Ww PF &B NH

Material Objected To

Grounds for Objection

Ruling on
the

Objection

medicine residency, and
start/complete a fellowship in
pulmonary medicine. | was recruited
to direct the clinical program in
occupational medicine at the
University of lowa in 1988 and was
appointed Assistant Professor of
Medicine in the Pulmonary Division
in the Department of Medicine.
During that time, [ collaborated with
Drs. James Merchant and Gary
Hunninghake and focused my
clinical and research efforts on
understanding the environmental and
genetic determinants of pulmonary
fibrosis and asthma. In 2000, I was
recruited to Duke University to direct
the Division of Pulmonary and
Critical Care Medicine. During that
time, | developed three NIH support
programs in environmental health
{environmental genomics,
environmental asthma, and an
environmental health sciences
research center). In 2005, I was
recruited to direct the National
Institute of Environmental Health
Sciences and the National
Toxicology Program and developed
the Genes, Environment, and Health
Initiative, and the NIH Program in
Epigenomics. In 2008, | was
recruited to the National Jewish
Center and developed the Center for
Genes, Environment, and Health
where I am currently serving as
Provost. I have co-authored 178
journal articles, 68 editorials, and 52
book chapters. A number of these
articles have focused on asbestos-
related lung disease. I have served on
a number of journal editorial boards
(Am. J, Resp. Crit. Care Med and

hen

McGonnell v, Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
teasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendanis,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an

expert on causation as to colon cancer.

{See Hoff Decl., f] 2-3.)

Se

|

4
TPRDPOSED] GRDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,

M.D. IN SUPPORT OF PLAINTIFFS" OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENTa nD iw

HAKE LAW,
A PROFESSIONAL CORPORATION

Ruling on

Material Objected To Grounds for Objection the
Objection

Am. J. Resp. Cell Mol Biol.),
numerous grant review committees,
and am a member of the American
Society for Clinical Investigation and
Association of American Physicians.
In addition, | am the recipient of the
2003 American Thoracic Society
Scientific Accomplishment Award.”

nn
4, | Schwartz Decl., § 4. Insufficient foundation laid to Sustained:
qualify as an expert on matters to —
“Since the late 1980s, I have which testimony relates. Schwartz
participated in the diagnosis of does not have the special knowledge,

approximately several hundred cases | skill, experience, or training regarding
of asbestos-induced lung disease that | causation as to colon cancer. (Evid. a
originated at the University of lowa, | Code §§ 720, 801) Schwartz is not an
Duke University, or National Jewish | expert on colon cancer; he has never

Heaith where | am Professor of published any article relating to colon
Medicine, Pediatrics, and cancer; he has never participated in
Immunology and Director of the any epidemiologic studies to

Center for Genes, Environment, and | determine whether asbestos is a cause
Health. I have also seen several of colorectal cancers; and he has never
hundred cases referred to me by conducted a survey of the available
other physicians or lawyers literature regarding asbestos exposure
representing patients with this and colon cancer. (See Hoff Decl., 9
disease. During the course of my 2-6.)

career, I have kept abreast of the

scientific and medical literature Information will not assist the trier
regarding the diagnosis and of fact. (Evid. Code § 801{a).)
causation of asbestos induced lung

disease and asbestos-induced Irrelevant. (Evid. Code $§ 210, 350-
cancers.” 351.)

Misleading, Prejudice outweighs
probative value. (Evid. Code § 352.)
Schwartz admitted he has never
conducted survey of the available
literature regarding asbestos exposure
and colon cancer and that he has not
even read the most recent,
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer. As such he has not

6

{PEOBSSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 10 STRIRE THE DECLARATION OF DAVID A SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHaki Law,
A PROFESSIONAL CORPORATION

Co OW YN RH RB We =

NON RON NR RR Re mat
oN DR HW BF YW NHN &— SD 0 ww NY A Hh BW Bm oO

Material Objected To

Grounds for Objection

5. | Schwartz Decl., 4 5.

“Over the past 20 years, [ have
clinically evaluated at least 2,000
patients with asbestos related disease
to determine the type of disease, to
determine the relationship of that
disease to asbestos exposure and to
evaluate their exposure to asbestos.”

“kept abreast” of the literature relating
to “asbestos-induced cancers” in terms
of colon cancer. (See Hoff Decl., ¥[ 2-
6)

McGonnell v, Kaiser Gypsum Co.
(2002) 98 Cal. App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid.
of any basis, explanation, or
Teasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., 2-3.)

Speculative. (Evid. Code §§ 702,
800.)

4.

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 9]
2-6.)

Sustained:

-7

[ROPSSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 10 STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS" OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HAKE LAW,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

Irrelevant. As to any experience
determining the relationship, if any, of
asbestos exposure to colon cancer.
(Evid, Code §§ 210, 350-351.)

Speculative. (Evid. Code §§ 702,
800.)

Information will not assist the trier
of fact, (Evid. Code § 801(a).}

Misleading, Prejudice outweighs
probative value. (Evid. Code § 352.)
Schwartz does not quantify the
number of cases in which he has
evaluated patients with colon cancer.
His testimony indicates that it has
been a very small number of cases.
(See Hoff Decl., {f 2-6.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v, Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., €¥] 2-3.)

6. | Schwartz Decl., 4 6.

“L have been qualified to testify on
the issue of diagnosis and causation
in a number of states including, but
not limited to, North Caroline, South

Carolina, Texas, Florida, Colorado,

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an

Sustained:

Overrfiled:

=

TPEGRESED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 10 STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HaKE LAW,
A PROFESSIONAL CORPORATION

Ruling on
Material Objected To Grounds for Objection the
Objection
he
California, and New York.” expert on colon cancer; he has never

published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., {Ff
2-6.)

Irrelevant as to whether Schwartz has
been qualified to testify on the issue of

diagnosis and causation in colon
cancer cases. (Evid. Code §§ 210,
350-351.)

Lacks foundation as no evidence is
cited in support of these claims.
(Evid. Code §§ 403, 405, 802 & 803.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Misleading, Prejudice outweighs
probative value. (Evid. Code § 352.)
Schwartz was disqualified from
testifying as to causation for colon
cancer in Jeraldine Nicholson v.
Asbestos Defendants, Los Angeles
Superior Court Case No. BC413220.
(See Hoff Decl., ff 2-6.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine

9.

[PBOPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS" OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHaKE LAW,
A PROFESSIONAL CORPORATION

Material Objected To

Schwartz Decl., 4 7, p. 3:19-22.

“.., having reviewed medical records
from the plaintiff, Robert Ross,
including his pathology and
radiology reports, and including
pulmonologist Alvin J. Schonfeld,
M.D.’s report dated September 16,
2009. I conclude that Mr. Ross has
asbestosis, as well as has developed
colon cancer which was in part
caused due to his exposure to
asbestos.”

Grounds for Objection

Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., { 2-3.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
§§ 403, 405, 801, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal.App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon. which it rests.”).)
Schwartz did not personally examine
ROSS, speak to ROSS or personally
review any of ROSS’s x-rays, CT
scans, pulmonary function tests or
pathology materials. He merely relied
on written reports by other experts in
this matter. (See Declaration of
Kathryn L. Hoff (“Hoff Decl.”), 9] 2-
6)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for colon cancer. (Evid. Code §
720(a).) Schwartz is not an expert on
colon cancer; he has never published
any article relating to colon cancer; he
has never participated in any
epidemiologic studies to determine
whether asbestos is a cause of
colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., ff]
2-6.)

“10-

Sustained:

[PEOPESED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A SCHWARTZ]
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To Grounds for Objection the
Qbiection

Speculative regarding diagnosis of
asbestosis as Schwartz did not make
this diagnosis on his own, but merely
relied up the diagnosis of Dr.
Schonfeld, and regarding the issue of
colon cancer caused by asbestos
exposure as Schwartz is not qualified
to render that opinion. (Evid. Code §§
702, 800.) (See Hoff Decl., {ff 2-6.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
$§ 403, 405, 802 & 803.)

Undue Prejudice. Especially as
Plaintiffs do not have a claim for
asbestosis in this matter, pursuant to
this Court’s order denying Plaintiffs’
motion to file a third amended
complaint as to asbestosis. (Evid.
Code § 352.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v, Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert On causation as to colon cancer.
(See Hoff Decl., ff] 2-3.)

Ld t

Le

{PROBOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A: SCHWARTZ]
M.D. IN SUPPORT OF PLAINTIFFS” OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

8. | Schwartz Decl., § 7, p.3:22-26

“Additionally, people, such as Mr.
Ross, with asbestos exposure with an
additional history of tobacco
exposure, have a significantly higher
incidence of cancer complications
than with either asbestos or tobacco
exposure alone, as the combined
increased risk of these two
carcinogens is multiplicative.”

Grounds for Objection

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., $j
2-6.)

Lacks foundation and is based on
speculation, as no evidence or
medical literature is cited in support of
these claims. Therefore it is not a
proper matter on which expert opinion
testimony may be based (Evid. Code
§$§ 403, 405, 802 & 803.)

Irrelevant as it does not relate to
colon cancer specifically. (Evid. Code
§§ 210, 350-351.)

Speculative. (Evid. Code §§ 702,
800.)

Information will not assist the trier
of fact. (Evid. Code § 801{a).)

MeGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal. App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’.., Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion

Ruling on
the
Objection

Sustained:

Overs:

“1d

——

[EROPGSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE TRE DECLARATION OF DAVID A: SCHWARTZ)
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Materiat Objected To

9. | Schwartz Decl., 8, p. 3:27-4:2

“It is my opinion that every exposure
to asbestos above background level
contributed to cause Mr. Ross's
asbestosis and colon cancer because
it is well understood that asbestos
telated diseases are dose-response
related diseases and it is impossible
to show exactly which exposures to
asbestos caused the disease.”

|

Grounds for Objection

with self-serving conclusions devoid

of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., (f 2-3.)

Misleading, Undue prejudice.
Cigarette smoking is an altemative
risk for colon cancer that must be
eliminated in order to prove more
likely that not asbestos caused
Plaintiff's colon cancer. (Evid. Code
§ 352.) (See Jones v. Ortho
Pharmaceutical Corp, (1985) 163
Cal.App.3d 396, 403.)

Vague, Overbroad, Misleading.
Although asbestos related diseases
might be dose-response diseases, there
is no foundation laid, or evidence
supporting the idea that colon cancer
is an “asbestos related disease.”

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 4¥

“3.

Sustained:

orgat

————-4

TPRGPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIRE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. 1N SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE LAW,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

|

2-6.)

Lacks foundation and is based on
speculation, as no evidence or
medical literature is cited in support of
these claims. Therefore it is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
§§ 403, 405, 802 & 803.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Undue Prejudice (Evid. Code § 352.)

Schwartz Decl., § 8, p. 4:2

“Asbestos fibers are complete human
carcinogens.”

Insufficient foundation laid to Sustained:
qualify Schwartz as an expert on what
constitutes a carcinogen, as he is not
an oncologist or pathologist.

Schwartz does not have the special
knowledge, skill, experience, or
training relating to the subject matter.
(Evid. Code §§ 720, 801.) (See Hoff
Decl., 2-6.)

Irrelevant as to whether ROSS’s
colon cancer was caused by asbestos
exposure. (Evid. Code §§ 210, 350-
351)

Speculative as not all asbestos fibers
cause disease and therefore not ail
asbestos fibers are carcinogens.
(Evid. Code §§ 702, 800.)

Improper & Unreliable Basis of
Expert Opinion as no basis is
provided. (Evid. Code § 801 ().)

Lacks foundation and is based on
speculation, as no evidence or

medical literature are cited in support
of this bold statement and therefore is
not a proper matter on which expert

“it

[ERGPOSED] ORDER ON EVIDENTIARY OBIECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Obijected To

Grounds for Objection

| Schwartz Decl., 8, p. 4:6-11

“Any fiber contacting a cell may
cause genetic damage, may induce
inflammatory reactions, or may
cause other biochemical reactions,
including those which lead to the
development of asbestosis and colon

cancer. After accounting for
sufficient latency, these diseases
result from cumulative exposure to
asbestos. In individuals who develop
these diseases, such as Mr. Ross,
every occupational or para-
occupational exposure to asbestos
plays a role in causing the disease.”

ft

opinion testimony may be based.
(Evid. Code §§ 403, 405, 802 & 803;
see also Jennings v. Palomar (2003)
114 Cal.App.4th 1108, 1117 (“an
expert opinion is worth no more than
the reasons upon which it rests.”).)

Irrelevant as to whether ROSS's
colon cancer was caused by asbestos
exposure. (Evid. Code §§ 210, 350-
351.)

Speculative as not all asbestos fibers
cause disease and no evidence is cited
supporting a causal link between
asbestos exposure and colon cancer
(Evid. Code §§ 702, 800.)

Improper & Unreliable Basis of
Expert Opinion as no basis is
provided. (Evid. Code § 801 (b).)

Lacks foundation and is based on
speculation, as no evidence or
medical literature are cited in support
of this bold statement and therefore is
not a proper matter on which expert
opinion testimony may be based.
(Evid. Code §§ 403, 405, 802 & 803;
see also Jennings v. Palomar (2003)
114 Cal. App.4th 1108, 1117 (an
expert opinion is worth no more than
the reasons upon which it rests.”).)

+

Sustained:

Oveyated

4 Schwartz Decl., 79, p, 4:14-20

“Dr. Morgan attested that there is
there is no causal relationship
between that the inhalation or
ingestion of asbestos is a
contributing factor in the

[ development, or even risk factor for

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer, he has never

Supp:

Overruled:

“1S.

TEROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ]
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

Material Objected To

the development, of colon cancer.
Morgan Decl. at 4 5. However, this is
an inaccurate conclusion that is not
supported by the breadth of scientific
literature on the topic (beyond that
which Dr, Morgan has evidently
been paid to generate). For the
reasons stated in my declaration, |
therefore also disagree with Dr.
Morgan’s opinion there has been
established no causal relationship
between asbestos exposure and colon
cancer. Morgan Decl. at { 5.”

Grounds for Objection

Ruling on
the
Objection

published any article relating to
colon cancer; he has never
participated in any epidemiologic
studies to determine whether
asbestos is a cause of colorectal
cancers; and he has never
conducted a survey of the available
literature regarding asbestos
exposure and colon cancer. As he
has not conducted a survey of the
available literature and has admitted
that he has not read the most recent,
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer, Schwartz is not
qualified to opine on what is
“supported by the breadth of
scientific literature on the topic”.
(See Hoff Decl., {¥ 2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon.
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl., {fj 2-6.)

Misleading. Morgan’s declaration
states that he agrees with the 2006
IOM Report that there is insufficient

1b

PROPOSED] ORDER ON EVIDENTIARY OBIEC TIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

13)

Schwartz Dect., | 9, p. 4:21-28

“Dr. Sheibani concludes that based
upon the absence of asbestos bodies
in the limited colon tissue that he
was sent, that the colon cancer
cannot be caused by asbestos
exposure. Sheibani Decl. at (5-6.
Here again, though | have no quarrel
with his pathologic finding, his
conclusion regarding causation is not
supported by the medical literature
on the topic and does not even
correctly represent the criteria for
establishing the link between
asbestos exposure and lung cancer
from which Dr. Sheibani then

evidence to establish a causal
telationship between asbestos and
colon cancer. Therefore this is not a
direct contradiction and does not
create a triable issue.

Speculative as Schwartz disregards
the 2006 IOM Report entirely,
including Dr. Morgan’s reliance on
such document. (Evid. Code §$§ 702,
800.)

Improper & Unreliable Basis of
Expert Opinion. (Evid. Code § 801
(b).}

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion.
testimony may be based. (Evid. Code
§§ 403, 405, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal.App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).

Ruling on
the

Objection

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates. Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. Furthermore,
Schwartz is not a pathologist. As he

Ae

SED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A, SCHWARTZ,

[rmrsen

M.D. IN SUPPORT OF PLAINTIFFS” OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.HAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

extrapolates his conclusions about
colon cancer. I note that Dr. Sheibani
does not cite to a single article or
book chapter concerning the
relationship between asbestos and
colon cancers in his declaration.”

Grounds for Objection

Ruling on
the
Objection

has not conducted a survey of the
available literature and has admitted
that he has not read the most recent,
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer, Schwartz is not
qualified to opine on what is
supported by the medical literature.
(See Hoff Decl., $f] 2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid, Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
tecent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. Schwartz
cites no articles, studies or chapters in
support of his opinion that Dr.
Sheibani is using the incorrect criteria
for establishing a link between
asbestos exposure and lung cancer.
Furthermore, Schwartz himself has
relied on this same criteria in
regard to establishing a link
between asbestos exposure and
colon cancer, (See Hoff Decl., $f 2-
6.)

Misleading. Sheibani’s declaration
states that he bases his opinion “on
established scientific facts in medical

-18-

[PROPOSED] ORDER ON EVIDENTIARY OBIEC TIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

Om YW A HW Fw HN

pet ek meet
Yn wk YW NY * 2

Material Objected To

Grounds for Objection

Ruling on

ani

&

literature, his own research in

oncologic pathology, objective
pathologic findings in the histologic
sections prepared from Mr. Ross’
colon tissue that showed
transformation of a benign polyp to
cancer, as well as the absence of
asbestos bodies in special stain studied
performed on his colon tissue.”
(Sheibani Decl., 6.) He does not
only base his opinion on the absence
of asbestos bodies. Therefore this is
not a direct contradiction and does not
create a triable issue. Furthermore,
Sheibani does cite to literature
regarding the relationship between
polyps and colon cancer, which is the
subject on which he is opining. As
Schwartz does not cite to any source
regarding the “correct” criteria for
establishing a link between asbestos
exposure and colon cancer, he does
not directly contradict Sheibani’s
method or shift the burden back to
show Sheibani is wrong.

Speculative. (Evid. Code §§ 702,
300.)

Improper & Unreliable Basis of
Expert Opinion. (Evid. Code § 801
(b).)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
$§ 403, 405, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal.App.4th 1108, 1117 (Can expert
opinion is worth no more than the
reasons upon which it rests.”).

“19.

[PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION 10 STRIKE THE DECLARATION OF DAVID A. SCHWARTZ.
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
APROFESSIONAL CORPORATION

Material Objected To

14] Schwartz Decl., #9, p. 4:28-5:2.

“Based on my above-mentioned
experience, training, and historical
review, there are various articles that
I have studied regarding the
association between asbestos
exposure and colon cancer.”

Grounds for Objection

Insufficient foundation laid to
qualify as an expert on matters to
which testimony relates, Schwartz
does not have the special knowledge,
skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to colon
cancer; he has never participated in
any epidemiologic studies to
determine whether asbestos is a cause
of colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl.,
2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid, Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl., $f 2-6.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based, The “various
articles” Schwartz has listed do not
encompass a review of the current

-20-

Ruling on
the

Objection

Sustained:

ove

[PROPOSED] ORDER ON EVIDENTIARY OBIEC TIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

_

oO 80 6 a DA A RR WY NH

Material Objected To

Grounds for Objection

available literature. (Evid. Code §§
403, 405, 802 & 803.) Expert
conclusions based on assumptions not
supported by the evidentiary record or
factors which are speculative, remote,
or conjectural have no evidentiary
value. (Pacific Gas & Electric Co. v.
Zuckerman (1987) 189 Cal.App.3d
1143, 1135.)

Misleading. Schwartz does not have
“experience, training, and historical
review” in regard to determining
causation for colon cancer. (See Hoff
Decl., 4] 2-6.)

Irrelevant. (Evid. Code §§ 210, 350-
351.)

Speculative. (Evid. Code §§ 702,
300.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098, £105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid
of any basis, explanation, or
reasoning.”) The court in Jeraldine
Nicholson v. Asbestos Defendants,
Los Angeles Superior Court Case No,
BC413220 excluded Schwartz as an

expert on causation as to colon cancer.

(See Hoff Decl., $f] 2-3.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Undue prejudice. (Evid. Code §
352.)

-2-

PROPOSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION GF DAVID A. SCHWARTZ,
M.D. IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT,HAKE Law,

A PROFESSIONAL CORPORATION

nN

oO mM BD

+

Material Objected To

Schwartz Decl., 49, p. 5:3-7

“Each and every one of these peer
reviewed articles in the attached
Annotated Bibliography of Colon
Cancer Articles is independently a
basis for my conclusion that it is
generally accepted in the medical
community that exposure to asbestos
can and does cause asbestos induced
cancers of the G-I track, including
Mr. Ross's asbestos induced colon
cancer.”

skill, experience, or training regarding
causation as to colon cancer. (Evid.
Code §§ 720, 801) Schwartz is not an
expert on colon cancer; he has never
published any article relating to
colon cancer; he has never
participated in any epidemiologic
studies to determine whether
asbestos is a cause of colorectal
cancers; and he has never
conducted a survey of the available
literature regarding asbestos
exposure and colon cancer, As he
has not conducted a survey of the
available literature and has admitted
that he has not read the most recent,
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer, Schwartz is not
qualified to opine on what is
“generally accepted in the medical
community” in relation to cancers
of the G-I track. (See Hoff Decl., $f]
2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos

2

Grounds for Objection the
Objection
Insufficient foundation laid to Sustained:
qualify as an expert on matters to —
which testimony relates. Schwartz
does not have the special knowledge, overt:

[PROPOSTD] ORDER ON EVIDENTIARY GDIECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ,

M.D. IN SUPPORT OF PLAINTIFFS: OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHaAkE Law,
A PROFESSIONAL CORPORATION

oc OD Om AH RB YW =

Material Objected To

Grounds for Objection

exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Deel., €9] 2-6.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. Schwartz has
not conducted a survey of the
literature or even read the most recent
independent, comprehensive review of
the existing medical and scientific
literature regarding asbestos exposure
and colon cancer. (Evid. Code $§ 403,
405, 802 & 803.) Expert conclusions
based on assumptions not supported
by the evidentiary record or factors
which are speculative, remote, or
conjectural have no evidentiary value.
(Pacific Gas & Electric Co. v.
Zuckerman (1987) 189 Cal.App.3d
1113, 1135.)

Irrelevant. The articles Schwartz
cites do not control for other risk
factors for colon cancer. (Evid. Code
§§ 210, 350-351.)

Speculative. (Evid. Code §§ 702,
800.)

McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal_App.4th 1098, 1105-
1106 (“The evidence creates only ‘a
dwindling stream of probabilities that
narrow into conjecture.’... Plaintiffs
cannot manufacture a triable issue of
fact through use of an expert opinion
with self-serving conclusions devoid

of any basis, explanation, or
reasoning.”) The court in Jeraldine

2.

[EROPOSED] ORDER GN EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A SCHWARTZ]
M.D.1N SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHake Law,
A PROFESSIONAL CORPORATION

a DN ww

Material Objected To

Grounds for Objection

Ruling on
oni Y
jectia!

Nicholson v, Asbestos Defendants,
Los Angeles Superior Court Case No.
BC413220 excluded Schwartz as an
expert on causation as to colon cancer.
(See Hoff Decl., {9 2-3.)

Information will not assist the trier
of fact. (Evid. Code § 801(a).)

Undue prejudice. (Evid. Code §
352.)

16) Schwartz Decl., 4 10

“Based on my own evaluation of
medical records, pathology and
radiology reports in this case, my
own training, education, and
experience, and the references also
cited above, I conclude exposure to
asbestos, above background, given
sufficient minimum latency, was a
substantial contributing factor to
both Mr. Ross’s asbestosis and his
colon cancer, this exposure was
continuous, above background levels
and substantial.”

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
§§ 403, 405, 801, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal.App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).)
Schwartz did not personally examine
ROSS, speak to ROSS or personally
review any of ROSS’s x-rays, CT
scans, pulmonary function tests or
pathology materials. He merely relied
on written reports by other experts in
this matter. (See Declaration of
Kathryn L. Hoff (“Hoff Decl.”), 49 2-
6.)

Declarant does not have the special
knowledge, skill, experience, or
education, to render any expert
opinion on the subject of causation
for colon cancer. (Evid. Code §
720{a).) Schwartz is not an expert on
colon cancer; he has never published
any article relating to colon cancer; he
has never participated in any
epidemiologic studies to determine
whether asbestos is a cause of

Sustained:

2

TPROPSSED] ORDER ON EVIDENTIARY OBJECTIONS AND MOTION TO STRIKE THE DECLARATION OF DAVID A. SCHWARTZ]
M.D. EN SUPPORT OF PLAIN [TEFS' OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENTHAKE Law,
A PROFESSIONAL CORPORATION

Material Objected To

Grounds for Objection

Ruling on
the
Objection

17] Schwartz Decl., €11

“All my opinions expressed herein
are to a reasonable degree of
scientific certainty.”

colorectal cancers; and he has never
conducted a survey of the available
literature regarding asbestos exposure
and colon cancer. (See Hoff Decl., 9
2-6.)

Declarant’s opinion is not based on
matter that is of the type that may
be reasonably relied upon by an
expert in forming an opinion on the
subject of causation for colon
cancer. (Evid. Code § 801(b).)
Schwartz has never conducted a
survey of the available literature
regarding asbestos exposure and colon
cancer; he has not even read the most
recent, independent, comprehensive
review of the existing medical and
scientific literature regarding asbestos
exposure and colon cancer; and the
articles he cites fail to control for or
take into account other potential risks
factors for colon cancer. (See Hoff
Decl. {ff 2-6.)

Lacks foundation and is based on
speculation, and therefore is not a
proper matter on which expert opinion
testimony may be based. (Evid. Code
§$§ 403, 405, 801, 802 & 803; see also
Jennings v. Palomar (2003) 114
Cal_App.4th 1108, 1117 (“an expert
opinion is worth no more than the
reasons upon which it rests.”).)
Schwartz did not personally examine
ROSS, speak to ROSS or personally
review any of ROSS's x-rays, CT
scans, pulmonary function tests or
pathology mat