Preview
Joseph D. Satterley, Esq. (C.S.B. #286890)
Ted W. Pelletier, Esq. (C.S.B. #172938) ELECTRONICALLY
Ryan Harris, Esq. (C.S.B. #287105)
tharris@kazanlaw.com FILED
KAZAN, McCLAIN, SATTERLEY & GREENWOOD Superior Court of California,
County of San Francisco
A Professional Law Corporation
Jack London Market JUL 01 2014
55 Harrison Street, Suite 400 Clerk of the Court
Oakland, California 94607 BY: JUDITH NUNEZ
Deputy Clerk
Telephone: (510) 302-1000
Facsimile: (510) 835-4913
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
10
il HAROLD KOEPKE and NANCY Case No. CGC-13-276217
KARIDIS-KOEPKE,
12 EXHIBITS 8 THROUGH 15 TO DECLARATION
Plaintiffs, OF RYAN HARRIS IN SUPPORT OF
13 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
v. AMENDED JOINT MOTION IN LIMINE NO. 6
14 TO EXCLUDE THE TESTIMONY OF DAVID
FORD MOTOR COMPANY, et al., EGILMAN, M.D.
15
Defendants. Dept.: 624 (Hon. Richard B. Ulmer, Jr.)
16 Case Filed: December 3, 2013
Trial Date: June 16, 2014
17
18
Attached are Exhibits 8 through 15 to the Declaration of Ryan Harris in Support of
19
Plaintiffs’ Opposition to Defendants’ Amended Joint Motion in Limine No. 6 to Exclude the
20
Testimony of David Egilman, M.D.
21
22
23
24
25
26
27
28
Exhibits 8 through 15 to Declaration of Ryan Harris in Opposition to Defendants’ Amended MIL No. 6
to Exclude the Testimony of David Egilman
Exhibit 8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
~--000-->
HAROLD KOEPKE AND NANCY KARIDIS-KOEPKE,
Plaintiffs,
vs. No. CGC13276217
FORD MOTOR COMPANY, et al.,
Defendants.
10
1i
12
TELEPHONIC
13
DEPOSITION OF DAVID S. EGILMAN, M.D.
14
VOLUME IV, Pages 561 to 661
15
16
17
Taken before EARLY LANGLEY, CLR, RSA, RMR
18
CSR No. 3537
19
June i7, 2014
20
21
22
Aiken Welch Court Reporters
23
One Kaiser Plaza, Suite 250
Oakland, California 94612
24
(510) 451-1580/ (877) 451-1580
Fax: (510) 451-3797
25
www.aikenwelch.com
2
10 (Pages 594 to 597}
594 596
would have to go back through each question with a guess, my shorthand for who you represent, would have
different question. You know. So some of these in had a research and development department that would
some of these issues it's not clear in the deposition have known how to determine whether asbestos was a
what's being referred to, who's doing the research, for hazard.
example. So | guess | didn't — | had my own impression
Q. But, to figure that out, | would look at, for of it and | didn’t do anything to determine whether my
7 instance, Mr. Schmidt's deposition; correct? impression was correct or not.
A. | don't think you could figure it out looking BY MR. FRASER:
at Mr. Schmidt's deposition because Mr. Schmidt's Q. And in Exhibit 28, which is the Honda folder
io questions and answers are not so clear on that issue in 10 again, you put a torn-up copy of a listing of Ford
an all cases. di documents; is that correct?
12 Now, he is the person most qualified for the i2 A, Well, there's two Ford indexes, right, which
13 entity that you represent, but some cf his answers 13 weren't Ford documents but they were indexes to
14 appear to represent information that may have come 14 asbestos articles that they had in their library.
is from -- yeah. Because he says -- you know, for 1s Q. Right. And you don't know one way or the other
Le example, on page 141, okay, he had discussions with 16 whether or not people at Honda in Japan, for instance,
a7 Honda R&D. Okay, now, | don't think American Honda had iy actually saw that; you were simply making the point
18 an R&D. That seems to refer to the Japanese R&D. But 18 that they existed and you didn't know if they saw it?
py it may be that Honda sales had an R&D department, but 9 MR. SATTERLEY: Object.
20 it's not clear to me that that's what he's referring 20 THE WITNESS: That wasn't the point | was
2u to. 24 making. That's not correct
22 So that's just one example where it's not 22 MR. SATTERLEY: Object to the form of the
23 clear. So | don't think you can figure it out 23 question.
24 necessarily by reading his deposition. 24 BY MR, FRASER:
25 Q. Have you done anything to clarify those sorts 25 Q. What was the point you were making?
a ovine
595 $97
of points that you feit were unclear upon reading his a A. You missed the point.
deposition? 2” Q, Ido that sometimes. What was it?
A. Have | done anything? A. The point | was making was 2 similarly situated
MR. SATTERLEY: Object to the form of the company went out and do research -- and did research on
question. Overly broad. Vague and ambiguous. asbestos as a Honda representative said Honda did,
Compound. found at least what f - what Ford found, or would have
THE WITNESS: i mean. Well, | had -- for found at least what Ford found, and so had they done
example, F had my own -- until you asked about this what they said they did, which is apparently what Ford
what | just read you on page 141, | assumed when you at least in part did, they would have at a minimum
30 said he spoke to Honda R&D, this was analogous to when 10 found what Ford found, and should have found what Ford
iL the VW salesperson spoke to German VW. Because | An found plus more. But at a minimum what Ford found.
42 didn't think that Honda -- ! didn't think that a sales 12 And that they got that information and that that
i3 company in the U.S. had a research and development 13 information in no way supports the assertion of the
14 department that would have had specific information 14 conclusions that Mr. Schmidt claimed Honda sales
1 about hazards of asbestos. That would have been 15 developed from deing that research which was that
1lé something that would have come from the manufacturer of 16 asbestos work with brakes was not a hazard -- the work
i? the car, which is -- which is the Japanese parent. At ay with asbestos brakes was not a hazard. And that after
18 least until the car started to be manufactured in the 18 finding this allegedly exculpatory material, with
19 United States, at which point there may have been R&D 19 respect to the perspective of this lawsuit or other
20 here, but | think -- don't think even at that time -- 20 potential lawsuits, is destroyed.
a1 most of the R&D in the cars -- the cars would have been 24 Q. Now, that last part is what | was trying to
22 designed in -- in Japan. 22 figure oul. Are you saying that you know that Honda
23 | don't think the -- my understanding of the 23 had this material and destroyed it?
24 structure of the company would be such that | do not 24 A. No. | know that Honda had — well, | don't
28 think that the sales department, which is whom, | 25 know anything. | know what they testified. They
Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014
i {Pages 598 to 601)
598 600
testified that they did research, and my view is that question in that fashion.
had they done research, they would have found at least BY MR. FRASER:
what a similarly situated company found, which is what Q. Doctor, your answer?
Ford had, all right, and | know they said they didn't A. Why don't you repeat the question, please.
keep any notes or any of that research in their files. Q. Yeah. Have you --
So they said they did research, okay? | said A. Mr. Satterley discombobulated my thinking.
that a similarly situated company also did research and Q. He's good at that.
they found what Ford found and what Ford kept, and so. A. ['m all too familiar with that problem.
Now, what | haven't been abie to find is any Q. And tet the record reflect I'm just joking.
1G evidence that any of that research supports the 10 MR. SATTERLEY: I'll try to do that at trial
di conclusion Schmidt gave in his deposition that the work 11 sometimes, foo.
12 was safe. Haven't been able to find that, Haven't 12 MR. FRASER: You'll probably succeed.
13 been able to find that in the Ford documents. Haven't 13 BY MR. FRASER:
14 been able to find that in any research I've done during 14 Q. Have you seen materials which were produced in
4s this time period. And that whatever they found is connection with Dr. Longo’s deposition in this case
16 presumably that supports that opinion -- that's what he 16 which you understood to be materials that were elther
a7 testified about under oath -- is missing. 17 generated by or relied upon by Dr. Longo for purposes
igs Q. Have -- did you read Dr. -- excuse me -- i8 of this case?
19 Mr. Longo's deposition in this case? 19 A, [have not seen his transcript or reliance
20 MR. SATTERLEY: You mean Dr. Longo? 20 materials as he presented them in this case.
22 BY MR. FRASER: 2h However, | have seen his reliance materials,
22 Q. Dr. Longo, okay. 22 studies, et cetera, that he generalized on in this type
23 A. You mean William Longo? 23 of case. in addition, | have cited and published some
24 Q. Yeah. Sorry. It's Mr. Hatfield, Dr. Longo. 24 of his results that were previously unpublished in
25 Dr. Longo, yeah. 25 papers that | have written.
oe
599 601
MR. SATTERLEY: And Mr. Hatfield's not a 1 imagine there is an overlap between the
witness in this case, though. materials that | have previously reviewed that
MR. FRASER; | know. That's why | made a Dr, Longo has relied on in this case and the materials
mistake. | apologize. that he has relied on in this case, but I can't be sure
THE WITNESS: No problem. { make them all the because | have not seen a list of his reliance
tine. materials in this case.
No. | haven't read his transcript in this Q. Have you ever seen anything in any setting that
case. Dr. Longo has done which involves testing of Honda
BY MR. FRASER: automobile parts?
10 Q. Have you looked at his, quote, reliance 10 A. No.
al materials, the materials he's either generated or il MR. FRASER: Sir, that's all |have. Thank you
42 relied upon in this case? 12 very much.
413 MR. SATTERLEY: Objection. 13 MR. SATTERLEY: We've been going for about an
14 THE WITNESS: Generally -- | don't know —-1 44 hour,
is don't know what he said he relied on in this case, but, is Can we take a five- to seven-minute break?
16 you know, I've seen and have ~- what? 16 MR. FRASER: Sounds fine with me.
1? MR. SATTERLEY: Let me object. At least give AT MR. SATTERLEY: | think Hertz is up next.
48 me a second. 18 (Break taken.)
19 THE WITNESS: f'm sorry, fm sorry. You know, ig EXAMINATION BY MR. RANUCCE
20 we're on the phone here, you know, and you got to speak 20 Q. Good morning, Dr. Egilman. 1 represent the
22 up. a1 Hertz Corporation. How are you?
22 MR. SATTERLEY: Yes. Let me object to the 22 A. Good, how are you.
23 question as overly broad, vague, ambiguous. And you 23 Q. Good, thanks.
24 haven't identified what those reliance materials are, 24 ft wasn't at your last deposition session, but]
25 and | think it's unfair to the witness to ask him a 25 was told that you produced some PowerPoint slides
Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014
15 (Pages 614 to 617}
614 616
BY MR. RANUCCI: replacement brakes that were manipulated at
Q. Let's just finish this list and I'll go through Mr. Koepke's facilities that resulted in asbestos
them ail again, one by one. Okay. exposures caused or contributed to his development of
Bulletin, what comes after bulletin? mesothelioma.
A. Weil, that mischaracterizes my answer, but And then | would incorporate by reference all
let's continue with the list. of my previous testimony during this deposition, that
MR, SATTERLEY: Somebody's phone is making a is, the previous 21 hours or 22 hours, and all of the
lot of noise. So you -- some of the folks might want previous references I've made and documents that I've
to put their phone on mute if you're not asking provided in my reliance materials as to who knew what,
10 questions. Thanks. LO when, about the hazards of asbestos and, in particular,
Ah THE WITNESS: Okay. Hertz, quote, skipped over 12 the hazards of asbestos brakes, all of that information
12 warning materials, close quote, in their own operations 12 would have been available to Hertz and should have been
13 and apparently in dealing with people like Mr. Koepke. i3 acquired by Hertz.
14 Hertz never complied with OSHA requirements or 14 And 1 think that's it.
is the information that was provided by Ford to Hertz in as BY MR. RANUCCI:
16 their manuals. And there's overlap there. 16 Q. Dr. Egiiman, would it be fair to say that
iz Hertz was not aware of and did not advise ay you're intending on offering opinions with respect to
18 Mr. Koepke of what a wet method was, so they should 18 Hertz that relate to the standard of care of a rentai
ig have been aware of what a wet method was and they 19 car company?
20 should have advised Mr. Koepke to use wet methads, 20 MR. SATTERLEY: Object to the form of the
aL particularly to the extent that they actually had 21 question. Vague, ambiguous. Incomplete.
22 people present at his shop. 22 THE WITNESS: /’m not sure | understand the
23 in other words, Hertz personnel visited his 23 question. First,| don't have intent. | only have
24 shop and failed to communicate to him or inspect the 24 opinions. And the standard of care is for companies
25 shop to make sure that he was properly addressing 25 that were selling products that contained
a _
615 617
hazards of asbestos from working on brakes on their asbestos-containing products and in particular, in this
cars. case, asbestos-containing brakes on automobiles. So,
And that would apply to all the procedures in in that sense, since Hertz is a large seller of cars,
the '75 NIOSH bulletin, many of which were repeated in it's similarly situated to some of the companies from
the Ford manual. whom it purchased and resells cars to.
Hertz should have had a policy of communicating So the standard of care would be to a large —
7 known risks of components of the products that it was remember, all these companies are sellers that we've
selling and/or having maintained to people who were been talking about today. That was the Honda, the VW.
doing the work and they did not have such a policy. They sell cars. They don't manufacture cars. So the
10 Hertz itself was approached by Safety-Kieen and 10 standard of care for Honda and VW is the same as Hertz
11 Safety-Kleen expiained the risks of asbestos and had a il in that Hertz is a large seller of cars.
12 product to reduce those risks by reducing dust i2 Beyond that, Hertz has additional
13 exposures, and they never passed that information on to 13 responsibilities because -- and should have additional
14 Mr. Koepke or similarly situated vendors who worked on 14 knowledge because Hertz actually has 700 brake
is Hertz automobiles. is mechanics in the United States working on -- or
16 Hertz did not have a policy for maintaining and 16 mechanics in the United States, some of them may even
17 communicating or complying with the OSHA hazard 7 work on brakes, and so i's got its own employees doing
18 communications law when it went into effect in 1986, or 18 this, different from, for example, Honda or VW or
19 before that, complying with what would be a general 19 Toyota whose actual employees never actually do work
20 standard, community standard, for passing on 20 the brakes -- work on the brakes, it's the
2h information that it was made available -- that was made 21 distributors/dealers who do that, were separate
22 available to them through MSDSs to people like 22 entities from the sales company, whereas Hertz
23 Mr. Koepke. 23 incorporates both sales and maintenance employees,
24 And the exposures to asbestos from brakes that 24 in addition, Hertz globally is in many
25 were on Hertz cars that Mr. Koepke was exposed to and 25 countries where asbestos brakes, for example, were
eel
Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014
16 (Pages 618 to 621)
618 620
banned in the ‘80s and where there were other specific ay . Pm done.
information on asbestos hazards, so it was positioned Q. | do appreciate that you believe that Hertz is
at least as weil and perhaps better as a corporate similarly situated to companies like Honda and the
entity, as | understand It, to know about health risk other ones you've mentioned. But my question was very
information and procedures in England and Europe, for spacific.
example, particularly Germany. Have you ever testified as to the standard of
So that standard of care would be broader and care of a rental car company?
different from perhaps the other companies that 1 MR. SATTERLEY: Object. Same objections.
talked about today. But the distinctions are not Mischaracterizes prior testimony. Mischaracterizes
16 great. 10 previous answers.
il BY MR. RANUCCE: ii THE WITNESS: | think we have a definitional
12 Q. Now, Dr. Egiiman, | take it you've testified in 42 problem here. | just explained that | view Hertz if
13 prior matters on the standard of care insofar as it 13. you're calling them a rental company as a major buyer
14 relates to vehicle manufacturers; is that correct? 14 and seller of cars. So I'm characterizing them as a
18 A. Yes. 15 sales company. You're characterizing them as a rental
16 Q. Have you ever testified in any other matier on 16 car. i'm saying that they primarily buy and sell cars
a7 the standard of care of a rental car company? la and they rent in between.
18 MR. SATTERLEY: Objection. Mischaracterizes 18 And so their standard of care would be the same
19 the prior testimony. 19 as everybody else selling a lot of cars.
20 THE WITNESS: Well, | wouldn't make that 20 BY MR. RANUCCI:
24 distinction because the manufacturers — | mean, Hertz 2i Q. My question did not specifically characterize
22 has more direct ~- maybe you didn't listen. Let me 22 Heriz as a rental car company. It was just a general
23 repeat it again, okay? 23 question as io whether you've ever festified on a
24 Honda and VW and Toyota are not the actual 24 standard of care of a rental company.
25 sellers. The sellers of their cars are the dealers. 25 MR. SATTERLEY: Same objections. Also, it's a
ann
619 621
They distribute to dealers. On the other hand, Hertz different question.
is a direct seller of cars like a dealer, okay? So the MR. RANUCCI: it's the same question,
standard of care of a direct seller, not going through THE WITNESS: You know, “rental company" is not
an intermediary, would be at least as strong as that of @ specific term, I quess is what we've established so
a sales company that was acting as a distributor like far in this deposition, so why don't you give me your
the others. definition of a rental company and 1'll tell you
So when you call them a rental car, actually, whether I've testified about standard of care. If
they're not -- that may be how they're commonly we're talking about Hertz, | said yes. if we're
understood perhaps by a layman, but] think in the talking about, you know, some car company down the
10 industry, a lot of what they do is sales. And their 10 street where the guy has two cars and he rents one,
ain company is actually primarily dealing with buying and aL then the answer is no.
412 selling cars and that the rental business is an 12 BY MR, RANUCCI:
13 intermediary function. 13 Q. Have you ever testified in any prior matter as
14 But no single entity turns over more cars in 14 to the standard of care insofar as it relates to Hertz,
is terms of sales that ! know of than a company like as Enterprise, Budget, Alamo, National, or any of the
16 Hertz. Their sales are greater than Mazda or many of 16 other generally recognized rental car companies?
7 the other companies that people view as sales 17 MR. SATTERLEY: Object to the form of the
18 companies. They may be as large as any of the majors. 18 question. Compound. Overly broad. Vague. Ambiguous.
19 haven't looked at those numbers, but certainly a9 THE WITNESS: Could you define “generally
20 they're larger than. !'m sure you sell more cars than 20 recognized"?
2. Honda on a daily basis during some of these years. 21 BY MR. RANUCCI:
22 No offense to Honda. 22 Q, How about just those companies | identified.
23 BY MR. RANUCCI: 23 MR. SATTERLEY: Same objections.
24 Q. Sir, | didn't want to cut you off. Are you 24 THE WITNESS: | don't think I've testified in
25 done? 25 any cases where they've been the defendant.
Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014
Exhibit 9
#1315631
Gee Thace
este
‘ oe
( 65587531
Jon 122014 |
O4:07°M
aS. vn oan
See Boal
¥ Superior Gaunt of Calfornia
Comniy of aad Prancisea
JUN 12 2014.
CLERK OF HE COURT
BY.
—"Bopuly Clark
SUPERIOR COURT OF THE STATS OF CALIFORNIA
COUNTY OF SAN FRANCISCO
10
ASBESTOS LAW AND MOTION DEPARTMENT
ul
12
13 HAROLD KOEPKE and NANCY No. CGC-13-276217
KARIDIS-KOEPKE,
14 ORDER DENYING DEFENDANT THE
Plaintiffs, HERTZ CORPORATION'S MOTION
15 FOR SUMMARY JUDGMENT AND
WS, SUMMARY ADJUDICATION AS TO
16 ISSUES 1, 4, 5, 6,7 AND 8, AND
FORD MOTOR COMPANY, etal., GRANTING SUMMARY
17 ADJUDICATION AS TO ISSUES 2
Defendants. AND 3
18
19
20
21 The Mation of Defendant ‘The Herlz Corporation (‘Heri2") for Summary Judgment or
22 alternatively Summary Adjudication was set for hearing on June 10, 2014 at 9:30 aim. in
23 Deparment 563 before the Honorable Teri L. Jackson. The matter was argued and
24 submitted, and good cause appearing therefore, IT IS HEREBY ORDERED THAT:
25 Defendant The Hertz Corporation's Motion for Summary Judgment is denied and its
26 alternate Motion for Summary Adjudication is denied as to issues 1, 4, 5, 6, 7 and 8, granted
27 as to issue 2 (breach of implied warranty) and issue 3 (strict Hability),
28 As to Summary Judgment and Summary Adjudication issues 1, 4, 6, 7 and 8,
ORDER DENYING DEFENDANT THE HERTZ CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY
ADJUDICATION AS TO ISSUES 1. 4, 5, 6,7 AND 8, AND GRANTING SUMMARY ADJUDICATION AS TO ISSUES
CCCAS-275207 2 AND 3
a
defendant failed to sustain its initial burden under either prong of Aguifur, Defendant failed
to sustain its initial burden of demonstrating that plaintiffs do not possess and cannot
reasonably obtain evidence supporting those claims. Defendant is preciuded from
successitilly invoking the factually devoid prong of Aguilar because it did not demonstrate
that plaintiffs failed to provide meaningful responses to comprehensive discovery designed to
elicit all the evidence plaintiffs have to support their contention of liability against defendant,
Defendant also failed to sustain its initial burden as to these issues because it failed to negate
an essential element of plaintiffs' claims.
As to Summary Adjudication issue 5, defendant failed to sustain its burden of
10 demonstrating that the sophisticated user defonse applies to bar plaintifis' claims agaist it,
i As to Summary Adjudication issue 2 (breach of implied wurranfy), defendant
12 sustained its inital burden and plaintiffs’ opposition did not oppose adjudication of this cause
13 of action nor did plaintiffs submit admissible evidence creating 4 triable issue whether
14 defendant is liable for breach of implied warranty.
15 As to issue 3 (strict liability) defendant sustained its initial burden and plaintiffs did
16 not submit admissible evidence cteating a trlable issue whether defendant is Hable undor
7 strict Hability. Public policy limits imposition of Hability under the circumstances in this
case.
18
19 TPES 80 ORDERED.
20
aL Dated: 6 f L aH?
By Ms,
henorable Terd » Jackson
22 Judge of the Superior Court
23
24
25
26
27
28
ORDER DENVING DEFENDANT THE HERT? CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY
ADJUDICATION AS TO ISSUES 1 4,5,6,7 AND & AND GRANTING SUMMARY ADJUDICATION AS TO IS8C28 2 AND 3
COCAS-276217
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Joseph D. Satterley, Esq. (C.S.B. #286890) Ted W. Pelletier, Esq. (C.S.B. #172938) ELECTRONICALLY Ryan Harris, Esq. (C.S.B. #287105) tharris@kazanlaw.com FILED KAZAN, McCLAIN, SATTERLEY & GREENWOOD Superior Court of California, County of San Francisco A Professional Law Corporation Jack London Market JUL 01 2014 55 Harrison Street, Suite 400 Clerk of the Court Oakland, California 94607 BY: JUDITH NUNEZ Deputy Clerk Telephone: (510) 302-1000 Facsimile: (510) 835-4913 Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 il HAROLD KOEPKE and NANCY Case No. CGC-13-276217 KARIDIS-KOEPKE, 12 EXHIBITS 8 THROUGH 15 TO DECLARATION Plaintiffs, OF RYAN HARRIS IN SUPPORT OF 13 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ v. AMENDED JOINT MOTION IN LIMINE NO. 6 14 TO EXCLUDE THE TESTIMONY OF DAVID FORD MOTOR COMPANY, et al., EGILMAN, M.D. 15 Defendants. Dept.: 624 (Hon. Richard B. Ulmer, Jr.) 16 Case Filed: December 3, 2013 Trial Date: June 16, 2014 17 18 Attached are Exhibits 8 through 15 to the Declaration of Ryan Harris in Support of 19 Plaintiffs’ Opposition to Defendants’ Amended Joint Motion in Limine No. 6 to Exclude the 20 Testimony of David Egilman, M.D. 21 22 23 24 25 26 27 28 Exhibits 8 through 15 to Declaration of Ryan Harris in Opposition to Defendants’ Amended MIL No. 6 to Exclude the Testimony of David Egilman Exhibit 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO ~--000--> HAROLD KOEPKE AND NANCY KARIDIS-KOEPKE, Plaintiffs, vs. No. CGC13276217 FORD MOTOR COMPANY, et al., Defendants. 10 1i 12 TELEPHONIC 13 DEPOSITION OF DAVID S. EGILMAN, M.D. 14 VOLUME IV, Pages 561 to 661 15 16 17 Taken before EARLY LANGLEY, CLR, RSA, RMR 18 CSR No. 3537 19 June i7, 2014 20 21 22 Aiken Welch Court Reporters 23 One Kaiser Plaza, Suite 250 Oakland, California 94612 24 (510) 451-1580/ (877) 451-1580 Fax: (510) 451-3797 25 www.aikenwelch.com 2 10 (Pages 594 to 597} 594 596 would have to go back through each question with a guess, my shorthand for who you represent, would have different question. You know. So some of these in had a research and development department that would some of these issues it's not clear in the deposition have known how to determine whether asbestos was a what's being referred to, who's doing the research, for hazard. example. So | guess | didn't — | had my own impression Q. But, to figure that out, | would look at, for of it and | didn’t do anything to determine whether my 7 instance, Mr. Schmidt's deposition; correct? impression was correct or not. A. | don't think you could figure it out looking BY MR. FRASER: at Mr. Schmidt's deposition because Mr. Schmidt's Q. And in Exhibit 28, which is the Honda folder io questions and answers are not so clear on that issue in 10 again, you put a torn-up copy of a listing of Ford an all cases. di documents; is that correct? 12 Now, he is the person most qualified for the i2 A, Well, there's two Ford indexes, right, which 13 entity that you represent, but some cf his answers 13 weren't Ford documents but they were indexes to 14 appear to represent information that may have come 14 asbestos articles that they had in their library. is from -- yeah. Because he says -- you know, for 1s Q. Right. And you don't know one way or the other Le example, on page 141, okay, he had discussions with 16 whether or not people at Honda in Japan, for instance, a7 Honda R&D. Okay, now, | don't think American Honda had iy actually saw that; you were simply making the point 18 an R&D. That seems to refer to the Japanese R&D. But 18 that they existed and you didn't know if they saw it? py it may be that Honda sales had an R&D department, but 9 MR. SATTERLEY: Object. 20 it's not clear to me that that's what he's referring 20 THE WITNESS: That wasn't the point | was 2u to. 24 making. That's not correct 22 So that's just one example where it's not 22 MR. SATTERLEY: Object to the form of the 23 clear. So | don't think you can figure it out 23 question. 24 necessarily by reading his deposition. 24 BY MR, FRASER: 25 Q. Have you done anything to clarify those sorts 25 Q. What was the point you were making? a ovine 595 $97 of points that you feit were unclear upon reading his a A. You missed the point. deposition? 2” Q, Ido that sometimes. What was it? A. Have | done anything? A. The point | was making was 2 similarly situated MR. SATTERLEY: Object to the form of the company went out and do research -- and did research on question. Overly broad. Vague and ambiguous. asbestos as a Honda representative said Honda did, Compound. found at least what f - what Ford found, or would have THE WITNESS: i mean. Well, | had -- for found at least what Ford found, and so had they done example, F had my own -- until you asked about this what they said they did, which is apparently what Ford what | just read you on page 141, | assumed when you at least in part did, they would have at a minimum 30 said he spoke to Honda R&D, this was analogous to when 10 found what Ford found, and should have found what Ford iL the VW salesperson spoke to German VW. Because | An found plus more. But at a minimum what Ford found. 42 didn't think that Honda -- ! didn't think that a sales 12 And that they got that information and that that i3 company in the U.S. had a research and development 13 information in no way supports the assertion of the 14 department that would have had specific information 14 conclusions that Mr. Schmidt claimed Honda sales 1 about hazards of asbestos. That would have been 15 developed from deing that research which was that 1lé something that would have come from the manufacturer of 16 asbestos work with brakes was not a hazard -- the work i? the car, which is -- which is the Japanese parent. At ay with asbestos brakes was not a hazard. And that after 18 least until the car started to be manufactured in the 18 finding this allegedly exculpatory material, with 19 United States, at which point there may have been R&D 19 respect to the perspective of this lawsuit or other 20 here, but | think -- don't think even at that time -- 20 potential lawsuits, is destroyed. a1 most of the R&D in the cars -- the cars would have been 24 Q. Now, that last part is what | was trying to 22 designed in -- in Japan. 22 figure oul. Are you saying that you know that Honda 23 | don't think the -- my understanding of the 23 had this material and destroyed it? 24 structure of the company would be such that | do not 24 A. No. | know that Honda had — well, | don't 28 think that the sales department, which is whom, | 25 know anything. | know what they testified. They Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014 i {Pages 598 to 601) 598 600 testified that they did research, and my view is that question in that fashion. had they done research, they would have found at least BY MR. FRASER: what a similarly situated company found, which is what Q. Doctor, your answer? Ford had, all right, and | know they said they didn't A. Why don't you repeat the question, please. keep any notes or any of that research in their files. Q. Yeah. Have you -- So they said they did research, okay? | said A. Mr. Satterley discombobulated my thinking. that a similarly situated company also did research and Q. He's good at that. they found what Ford found and what Ford kept, and so. A. ['m all too familiar with that problem. Now, what | haven't been abie to find is any Q. And tet the record reflect I'm just joking. 1G evidence that any of that research supports the 10 MR. SATTERLEY: I'll try to do that at trial di conclusion Schmidt gave in his deposition that the work 11 sometimes, foo. 12 was safe. Haven't been able to find that, Haven't 12 MR. FRASER: You'll probably succeed. 13 been able to find that in the Ford documents. Haven't 13 BY MR. FRASER: 14 been able to find that in any research I've done during 14 Q. Have you seen materials which were produced in 4s this time period. And that whatever they found is connection with Dr. Longo’s deposition in this case 16 presumably that supports that opinion -- that's what he 16 which you understood to be materials that were elther a7 testified about under oath -- is missing. 17 generated by or relied upon by Dr. Longo for purposes igs Q. Have -- did you read Dr. -- excuse me -- i8 of this case? 19 Mr. Longo's deposition in this case? 19 A, [have not seen his transcript or reliance 20 MR. SATTERLEY: You mean Dr. Longo? 20 materials as he presented them in this case. 22 BY MR. FRASER: 2h However, | have seen his reliance materials, 22 Q. Dr. Longo, okay. 22 studies, et cetera, that he generalized on in this type 23 A. You mean William Longo? 23 of case. in addition, | have cited and published some 24 Q. Yeah. Sorry. It's Mr. Hatfield, Dr. Longo. 24 of his results that were previously unpublished in 25 Dr. Longo, yeah. 25 papers that | have written. oe 599 601 MR. SATTERLEY: And Mr. Hatfield's not a 1 imagine there is an overlap between the witness in this case, though. materials that | have previously reviewed that MR. FRASER; | know. That's why | made a Dr, Longo has relied on in this case and the materials mistake. | apologize. that he has relied on in this case, but I can't be sure THE WITNESS: No problem. { make them all the because | have not seen a list of his reliance tine. materials in this case. No. | haven't read his transcript in this Q. Have you ever seen anything in any setting that case. Dr. Longo has done which involves testing of Honda BY MR. FRASER: automobile parts? 10 Q. Have you looked at his, quote, reliance 10 A. No. al materials, the materials he's either generated or il MR. FRASER: Sir, that's all |have. Thank you 42 relied upon in this case? 12 very much. 413 MR. SATTERLEY: Objection. 13 MR. SATTERLEY: We've been going for about an 14 THE WITNESS: Generally -- | don't know —-1 44 hour, is don't know what he said he relied on in this case, but, is Can we take a five- to seven-minute break? 16 you know, I've seen and have ~- what? 16 MR. FRASER: Sounds fine with me. 1? MR. SATTERLEY: Let me object. At least give AT MR. SATTERLEY: | think Hertz is up next. 48 me a second. 18 (Break taken.) 19 THE WITNESS: f'm sorry, fm sorry. You know, ig EXAMINATION BY MR. RANUCCE 20 we're on the phone here, you know, and you got to speak 20 Q. Good morning, Dr. Egilman. 1 represent the 22 up. a1 Hertz Corporation. How are you? 22 MR. SATTERLEY: Yes. Let me object to the 22 A. Good, how are you. 23 question as overly broad, vague, ambiguous. And you 23 Q. Good, thanks. 24 haven't identified what those reliance materials are, 24 ft wasn't at your last deposition session, but] 25 and | think it's unfair to the witness to ask him a 25 was told that you produced some PowerPoint slides Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014 15 (Pages 614 to 617} 614 616 BY MR. RANUCCI: replacement brakes that were manipulated at Q. Let's just finish this list and I'll go through Mr. Koepke's facilities that resulted in asbestos them ail again, one by one. Okay. exposures caused or contributed to his development of Bulletin, what comes after bulletin? mesothelioma. A. Weil, that mischaracterizes my answer, but And then | would incorporate by reference all let's continue with the list. of my previous testimony during this deposition, that MR, SATTERLEY: Somebody's phone is making a is, the previous 21 hours or 22 hours, and all of the lot of noise. So you -- some of the folks might want previous references I've made and documents that I've to put their phone on mute if you're not asking provided in my reliance materials as to who knew what, 10 questions. Thanks. LO when, about the hazards of asbestos and, in particular, Ah THE WITNESS: Okay. Hertz, quote, skipped over 12 the hazards of asbestos brakes, all of that information 12 warning materials, close quote, in their own operations 12 would have been available to Hertz and should have been 13 and apparently in dealing with people like Mr. Koepke. i3 acquired by Hertz. 14 Hertz never complied with OSHA requirements or 14 And 1 think that's it. is the information that was provided by Ford to Hertz in as BY MR. RANUCCI: 16 their manuals. And there's overlap there. 16 Q. Dr. Egiiman, would it be fair to say that iz Hertz was not aware of and did not advise ay you're intending on offering opinions with respect to 18 Mr. Koepke of what a wet method was, so they should 18 Hertz that relate to the standard of care of a rentai ig have been aware of what a wet method was and they 19 car company? 20 should have advised Mr. Koepke to use wet methads, 20 MR. SATTERLEY: Object to the form of the aL particularly to the extent that they actually had 21 question. Vague, ambiguous. Incomplete. 22 people present at his shop. 22 THE WITNESS: /’m not sure | understand the 23 in other words, Hertz personnel visited his 23 question. First,| don't have intent. | only have 24 shop and failed to communicate to him or inspect the 24 opinions. And the standard of care is for companies 25 shop to make sure that he was properly addressing 25 that were selling products that contained a _ 615 617 hazards of asbestos from working on brakes on their asbestos-containing products and in particular, in this cars. case, asbestos-containing brakes on automobiles. So, And that would apply to all the procedures in in that sense, since Hertz is a large seller of cars, the '75 NIOSH bulletin, many of which were repeated in it's similarly situated to some of the companies from the Ford manual. whom it purchased and resells cars to. Hertz should have had a policy of communicating So the standard of care would be to a large — 7 known risks of components of the products that it was remember, all these companies are sellers that we've selling and/or having maintained to people who were been talking about today. That was the Honda, the VW. doing the work and they did not have such a policy. They sell cars. They don't manufacture cars. So the 10 Hertz itself was approached by Safety-Kieen and 10 standard of care for Honda and VW is the same as Hertz 11 Safety-Kleen expiained the risks of asbestos and had a il in that Hertz is a large seller of cars. 12 product to reduce those risks by reducing dust i2 Beyond that, Hertz has additional 13 exposures, and they never passed that information on to 13 responsibilities because -- and should have additional 14 Mr. Koepke or similarly situated vendors who worked on 14 knowledge because Hertz actually has 700 brake is Hertz automobiles. is mechanics in the United States working on -- or 16 Hertz did not have a policy for maintaining and 16 mechanics in the United States, some of them may even 17 communicating or complying with the OSHA hazard 7 work on brakes, and so i's got its own employees doing 18 communications law when it went into effect in 1986, or 18 this, different from, for example, Honda or VW or 19 before that, complying with what would be a general 19 Toyota whose actual employees never actually do work 20 standard, community standard, for passing on 20 the brakes -- work on the brakes, it's the 2h information that it was made available -- that was made 21 distributors/dealers who do that, were separate 22 available to them through MSDSs to people like 22 entities from the sales company, whereas Hertz 23 Mr. Koepke. 23 incorporates both sales and maintenance employees, 24 And the exposures to asbestos from brakes that 24 in addition, Hertz globally is in many 25 were on Hertz cars that Mr. Koepke was exposed to and 25 countries where asbestos brakes, for example, were eel Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014 16 (Pages 618 to 621) 618 620 banned in the ‘80s and where there were other specific ay . Pm done. information on asbestos hazards, so it was positioned Q. | do appreciate that you believe that Hertz is at least as weil and perhaps better as a corporate similarly situated to companies like Honda and the entity, as | understand It, to know about health risk other ones you've mentioned. But my question was very information and procedures in England and Europe, for spacific. example, particularly Germany. Have you ever testified as to the standard of So that standard of care would be broader and care of a rental car company? different from perhaps the other companies that 1 MR. SATTERLEY: Object. Same objections. talked about today. But the distinctions are not Mischaracterizes prior testimony. Mischaracterizes 16 great. 10 previous answers. il BY MR. RANUCCE: ii THE WITNESS: | think we have a definitional 12 Q. Now, Dr. Egiiman, | take it you've testified in 42 problem here. | just explained that | view Hertz if 13 prior matters on the standard of care insofar as it 13. you're calling them a rental company as a major buyer 14 relates to vehicle manufacturers; is that correct? 14 and seller of cars. So I'm characterizing them as a 18 A. Yes. 15 sales company. You're characterizing them as a rental 16 Q. Have you ever testified in any other matier on 16 car. i'm saying that they primarily buy and sell cars a7 the standard of care of a rental car company? la and they rent in between. 18 MR. SATTERLEY: Objection. Mischaracterizes 18 And so their standard of care would be the same 19 the prior testimony. 19 as everybody else selling a lot of cars. 20 THE WITNESS: Well, | wouldn't make that 20 BY MR. RANUCCI: 24 distinction because the manufacturers — | mean, Hertz 2i Q. My question did not specifically characterize 22 has more direct ~- maybe you didn't listen. Let me 22 Heriz as a rental car company. It was just a general 23 repeat it again, okay? 23 question as io whether you've ever festified on a 24 Honda and VW and Toyota are not the actual 24 standard of care of a rental company. 25 sellers. The sellers of their cars are the dealers. 25 MR. SATTERLEY: Same objections. Also, it's a ann 619 621 They distribute to dealers. On the other hand, Hertz different question. is a direct seller of cars like a dealer, okay? So the MR. RANUCCI: it's the same question, standard of care of a direct seller, not going through THE WITNESS: You know, “rental company" is not an intermediary, would be at least as strong as that of @ specific term, I quess is what we've established so a sales company that was acting as a distributor like far in this deposition, so why don't you give me your the others. definition of a rental company and 1'll tell you So when you call them a rental car, actually, whether I've testified about standard of care. If they're not -- that may be how they're commonly we're talking about Hertz, | said yes. if we're understood perhaps by a layman, but] think in the talking about, you know, some car company down the 10 industry, a lot of what they do is sales. And their 10 street where the guy has two cars and he rents one, ain company is actually primarily dealing with buying and aL then the answer is no. 412 selling cars and that the rental business is an 12 BY MR, RANUCCI: 13 intermediary function. 13 Q. Have you ever testified in any prior matter as 14 But no single entity turns over more cars in 14 to the standard of care insofar as it relates to Hertz, is terms of sales that ! know of than a company like as Enterprise, Budget, Alamo, National, or any of the 16 Hertz. Their sales are greater than Mazda or many of 16 other generally recognized rental car companies? 7 the other companies that people view as sales 17 MR. SATTERLEY: Object to the form of the 18 companies. They may be as large as any of the majors. 18 question. Compound. Overly broad. Vague. Ambiguous. 19 haven't looked at those numbers, but certainly a9 THE WITNESS: Could you define “generally 20 they're larger than. !'m sure you sell more cars than 20 recognized"? 2. Honda on a daily basis during some of these years. 21 BY MR. RANUCCI: 22 No offense to Honda. 22 Q, How about just those companies | identified. 23 BY MR. RANUCCI: 23 MR. SATTERLEY: Same objections. 24 Q. Sir, | didn't want to cut you off. Are you 24 THE WITNESS: | don't think I've testified in 25 done? 25 any cases where they've been the defendant. Aiken Welch Court Reporters David Egilman, M.D. 06/17/2014 Exhibit 9 #1315631 Gee Thace este ‘ oe ( 65587531 Jon 122014 | O4:07°M aS. vn oan See Boal ¥ Superior Gaunt of Calfornia Comniy of aad Prancisea JUN 12 2014. CLERK OF HE COURT BY. —"Bopuly Clark SUPERIOR COURT OF THE STATS OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 ASBESTOS LAW AND MOTION DEPARTMENT ul 12 13 HAROLD KOEPKE and NANCY No. CGC-13-276217 KARIDIS-KOEPKE, 14 ORDER DENYING DEFENDANT THE Plaintiffs, HERTZ CORPORATION'S MOTION 15 FOR SUMMARY JUDGMENT AND WS, SUMMARY ADJUDICATION AS TO 16 ISSUES 1, 4, 5, 6,7 AND 8, AND FORD MOTOR COMPANY, etal., GRANTING SUMMARY 17 ADJUDICATION AS TO ISSUES 2 Defendants. AND 3 18 19 20 21 The Mation of Defendant ‘The Herlz Corporation (‘Heri2") for Summary Judgment or 22 alternatively Summary Adjudication was set for hearing on June 10, 2014 at 9:30 aim. in 23 Deparment 563 before the Honorable Teri L. Jackson. The matter was argued and 24 submitted, and good cause appearing therefore, IT IS HEREBY ORDERED THAT: 25 Defendant The Hertz Corporation's Motion for Summary Judgment is denied and its 26 alternate Motion for Summary Adjudication is denied as to issues 1, 4, 5, 6, 7 and 8, granted 27 as to issue 2 (breach of implied warranty) and issue 3 (strict Hability), 28 As to Summary Judgment and Summary Adjudication issues 1, 4, 6, 7 and 8, ORDER DENYING DEFENDANT THE HERTZ CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION AS TO ISSUES 1. 4, 5, 6,7 AND 8, AND GRANTING SUMMARY ADJUDICATION AS TO ISSUES CCCAS-275207 2 AND 3 a defendant failed to sustain its initial burden under either prong of Aguifur, Defendant failed to sustain its initial burden of demonstrating that plaintiffs do not possess and cannot reasonably obtain evidence supporting those claims. Defendant is preciuded from successitilly invoking the factually devoid prong of Aguilar because it did not demonstrate that plaintiffs failed to provide meaningful responses to comprehensive discovery designed to elicit all the evidence plaintiffs have to support their contention of liability against defendant, Defendant also failed to sustain its initial burden as to these issues because it failed to negate an essential element of plaintiffs' claims. As to Summary Adjudication issue 5, defendant failed to sustain its burden of 10 demonstrating that the sophisticated user defonse applies to bar plaintifis' claims agaist it, i As to Summary Adjudication issue 2 (breach of implied wurranfy), defendant 12 sustained its inital burden and plaintiffs’ opposition did not oppose adjudication of this cause 13 of action nor did plaintiffs submit admissible evidence creating 4 triable issue whether 14 defendant is liable for breach of implied warranty. 15 As to issue 3 (strict liability) defendant sustained its initial burden and plaintiffs did 16 not submit admissible evidence cteating a trlable issue whether defendant is Hable undor 7 strict Hability. Public policy limits imposition of Hability under the circumstances in this case. 18 19 TPES 80 ORDERED. 20 aL Dated: 6 f L aH? By Ms, henorable Terd » Jackson 22 Judge of the Superior Court 23 24 25 26 27 28 ORDER DENVING DEFENDANT THE HERT? 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