Motion-Secondary: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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Watsworth,
Franklin,
Bevins &

McCalt, LLP

ATTOaMEYSATLAR

ROBERT M. CHANNEL, STATE BAR NO. 109273
TAN P. DILLON, STATE BAR NO. 203612

PAMELA C. BOBOWSKI, State Bar No. 226390

WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP ELECTRONICALLY

601 Montgomery Street, Ninth Floor FILED

San Francisco, California 94111-2612 Superior Court of California,

Telephone: (415) 781-7072 County of San Francisco

Facsimile: (415) 391-6258 APR 02 2010
Clerk of the Court

Attorneys for Defendant BY: JUDITH NUNEZ

HAMILTON MATERIALS, INC. Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JOYCE JUELCH and NORMAN JUELCH, SR., | Case No. CGC-09-275212

Plaintiffs, DEFENDANT HAMILTON
MATERIALS, INC.’S OPPOSITION TO
v. PLAINTIFF’S MOTION IN LIMINE TO
PRECLUDE EXAMINATION OF
ASBESTOS DEFENDANTS, et al., EXPERT WITNESSES REGARDING

“BUT FOR” PROXIMATE CAUSE

Defendants.

Trial Date: April 5, 2010

Defendant Hamilton Materials, Inc. (“Hamilton”) hereby opposes plaintiffs JOYCE

JUELCH (“plaintiff”) and NORMAN JUELCH’s (collectively referred to as “plaintiffs”) Motion in
Limine seeking to preclude examination of expert witnesses regarding “but for” proximate cause.
This opposition is based on the ground that this motion is premature, as there is no question,
argument or evidence pending, and the relevance of such a question cannot be determined out of
context, Furthermore, the relief plaintiffs seek is impermissibly broad, and seeks to constrain proper
cross-examination of plaintiffs’ experts, as it rests upon the faulty assumption that defendants may
only ask questions which mislead the jury regarding a plaintiff's burden of proof. For these reasons,
the relief requested should be denied.
ARGUMENT
A. The Motion Is Premature.
Plaintiffs seek relief that this court cannot properly give at this stage of the trial. No
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DEFENDANT HAMILTON MATERIALS, INC.’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE TO
PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE

9003211
1155-5,.25571] questions have been asked. No argument has been made. No evidence has been proffered. Thus,
unlike other types of inquiry (for example, into insurance carried either by the plaintiff or the
defendant in a personal injury case), it cannot be said at the outset of this trial that the issues
plaintiff seems to be asking the court to preclude are never proper in asbestos litigation.

The entire purpose of the first phase of trial is to establish medical causation as a predicate

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6 | showing before plaintiffs can seek to present their case in chief. By definition, this requires expert
7 | testimony and evidence on causation. Otherwise, as will be shown below, the relief plaintiffs seek
8 | will improperly preclude defendants from adequately responding to evidence presented by

9 | plaintiffs,

10 | B. The Motion Seeks To Improperly Constrain Cross-Examination

il At the heart of plaintiffs’ motion is the faulty argument that it is “improper” for defendants
12 | in asbestos litigation to argue that the contribution of asbestos dust from their companies’ products,
13 || to the harm eventually suffered by plaintiff, was so small or insubstantial that they should not be
14 | liable. Therefore, according to plaintiff, once they establish exposure to a particular defendant’s

15 | product, the only issue is the magnitude of its contribution to the asbestos-related injury. This is a
16 | misstatement of the very cases cited by plaintiffs in their motion and brief.

17 California courts do not agree. As stated by the California Supreme Court in Rutherford v.
18 || Owens-Illinois, (1997) 16 Cal.4th 953, the correct causation standard applicable to this case by

19 | definition requires such evidence. Rutherford demonstrates that careful consideration of a number
20 | of critical facts relevant to the determination of whether a particular product was a substantial

21 | factor in creating the risk of cancer must be addressed before causation can be determined.

22 Rutherford casts the question of establishing a defendant’s liability in an asbestos cancer

23 | case as follows:

24 [T]he question arises whether the risk of cancer created by a
25 plaintiffs exposure to a particular asbestos-containing product was
26 significant enough to be considered a legal cause of the disease.
27 Taking into account the length, frequency, proximity and intensity of
28 exposure, the peculiar properties of the individual product, any other
Water, -2-
Bevins & DEFENDANT HAMILTON MATERIALS, INC.’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE TO
McCall, LLP aR OMUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE

ATTORNEYS APLAW

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Walsworth,
Franklin,
Bevins &

McCall, LLP

Arron AT AN

potential causes to which the disease could be attributed (e.g., other
asbestos products, cigarette smoking), and perhaps other factors
affecting the assessment of comparative risk, should inhalation of
fibers from the particular product be deemed a ‘substantial factor’ in
causing the cancer?

Rutherford, supra, 16 Cal.4th at 975.

The court squarely placed on a plaintiff the burden of establishing “which exposures to
asbestos-containing products contributed significantly enough to the total occupational dose to be
considered ‘substantial factors’ in causing the disease.” Rutherford, supra, 16 Cal.4th at 977.
This standard means that exposures must ‘be more than negligible or theoretical.” 16 Cal.4th at
978. But the nature of the burden placed on the plaintiff does not, in and of itself, limit a
defendant’s ability to cross-examine an expert with regard to opinions offered at trial.

Defendants must be afforded the “greatest latitude” to probe the soundness of plaintiffs’
experts’ opinions before the jury. Being denied the ability to ask experts which exposures were
sufficient to cause the injuries, which were not, and how the experts determine the “substantiality”
of each of the exposures would prevent Defendants from questioning the experts on the very
factors identified by the court in Rutherford as relevant to the determination of a particular
defendant’s legal responsibility for plaintiff s injuries.

Defendants anticipate that plaintiffs’ experts will testify that each and every occupational
exposure to asbestos played a participatory role in elevating plaintiff's risk of disease. In order to
grant plaintiffs the relief they seek, and to preclude defendants from engaging in a searching
inquiry as to the validity of the assumptions and reasoning underlying plaintiffs’ experts’
conclusions, the court would necessarily need to judicially determine that plaintiffs’ experts are
correct, as a matter of law, that every exposure is a substantial exposure. If that is the case, then, as
a natural result of plaintiffs’ argument, the only evidence which defendants could put on would
cither be that there was no exposure to their product, or simply how much exposure to their product
actually occurred.

Under Rutherford, it is not plaintiff's burden to tie individual fibers or products to the

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DEFENDANT HAMILTON MATERIALS, INC.’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE T
PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE

900321,
1 193-3:25571 | ultimate injuries, only to show that a defendant’s products substantially contributed to a
2 | plaintiff's risk of developing cancer. The existence and characterization of plaintiff's burden does
3 | not, and cannot, mean that defendants may only introduce evidence directly on that question, and
4 | may not cast doubt on how plaintiff attempts to meet her burden.
5 CONCLUSION
6 For all of the foregoing reasons, the relief requested in plaintiff’s motion to preclude
7 || causation testimony at this stage of the trial must be denied.
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9|Dated: April 2 _, 2010 WALSWORTH, FRANKLIN, BEVINS & McCALL, LLP
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1 Onn Qe MS
Robert M. Channel
12 Tan P. Dillon
Pamela C. Bobowski
13 Attomeys for Defendant
HAMILTON MATERIALS, INC,
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Bevins & DEFENDANT HAMILTON MATERIALS, INC,’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE TO
ee PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE.
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Walsworth,
‘Franklin,
Bevins &

‘McCall, LLP

ATTORNEYS AT LAW

PROOF OF SERVICE

1am employed in the County of San Francisco, State of California. I am over the age of 18
and not a party fo the within action. My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612.

On April 2, 2010, I served the within documeni(s) described as:

DEFENDANT HAMILTON MATERIALS, INC.’S OPPOSITION TO PLAINTIFF’S
MOTION IN LIMINE TO PRECLUDE EXAMINATION OF EXPERT WITNESSES
REGARDING “BUT FOR” PROXIMATE CAUSE

on the interested parties in this action as stated below:

Brayton Purcell LLP ALL DEFENSE COUNSEL ON FILE WITH
222 Rush Landing Road LEXIS
P.O. Box 6169

Novato, CA 94948

X} (BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above
electronically to the LexisNexis File & Serve Website to the parties on the Service List
maintained on the LexisNexis File & Serve Website for this case. If the document is
provided to LexisNexis electronically by 5:00 p.m., then the document wili be deemed
served on the date that it was provided to LexisNexis. A copy of the "LexisNexis File &
Serve Filing Receipt" page will be maintained with the original document(s) in our office.

Executed on April 2, 2010, at San Francisco, California.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. A
Phyllis Thomas !

(Type or print name) Signature)

5.
DEFENDANT HAMILTON MATERIALS, INC.’S OPPOSITION TO PLAINTIFF'S MOTION IN LIMINE TO
PRECLUDE EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE

900321,1
1155-5.2557