On December 03, 2013 a
Motion-Secondary
was filed
involving a dispute between
Karidis-Koepke, Nancy,
Koepke, Harold,
and
A.B.C. Mobile Systems,
A.B.C. Mobile Systems, Individually And As,
American Honda Motor Co. Inc.,
Bell Industries, Inc.,
Bell Industries Inc., Individually And As,
Belnortel Corporation, D.B.A. A.B.C. Mobile Brake,
Borgwarner Morse Tec, Inc.,
Borgwarner Morse Tec Inc., Individually And As,
Burlingame Auto Supply,
Continental Automotive Systems, Inc.,
Cooper Industries Llc,
Cooper Industries, Llc, Individually And As,
Don L. Morris, Inc.,
First Doe Through Four Hundredth Doe, Inclusive,
Fmc Corporation-John Bean Automotive Equipment,
Fmc Technologies, Inc., Individually And As,
Folsom Auto Supply,
Ford Motor Company,
Foreland Parts, Inc.,,
Genuine Parts Company,
H.M. Royal, Inc.,
Honeywell International, Inc., Fka Allied Signal,,
Kelsey-Hayes Company,
Lear Siegler Diversified Holdings Corp.,,
Les Vogel Chevrolet Company,
Metropolitan Life Insurance Company,
Morton International, Inc., A Rohm And Haas,
Morton International, Llc, Formerly Known As,
National Automotive Parts Association,
Parker Hannifin Corporation,
Parker Hannifin Corporation, Individually And As,
Pneumo Abex Llc, Individually And As Successor In,
Rox Automotive,
Shell Oil Company,
Specialty Foreign Auto Parts, Inc., Erroneously,
The Budd Company,
Thyssenkrupp Budd Company Sued As "The Budd,
Toyota Motor Sales, U.S.A., Inc.,
University Distributors, Inc., Erroneously Sued,
Volkswagen Group Of America, Inc.,
W. Berry Hurley Corporation, D.B.A. Federal Auto,
Karidis-Koepke, Nancy,
Koepke, Harold,
The Hertz Corporation,
for civil
in the District Court of San Francisco County.
Preview
Garrett Sanderson TH, Bar No. 131026
gsanderson@cbmlaw.com
Peter H. Cruz, Bar No. 220850 ELECTRONICALLY
peruz@cbmiaw.com
CARROLL, BURDICK & McDONOUGH LLP FILED
Superior Court of California,
Attorneys at Law County of San Francisco
44 Montgomery Street, Suite 400
San Francisco, California 94104 JUN 24 2014
Telephone: 415.989.5900 Clerk of the Court
BY: ROMY RISK
Facsimile: 415.989.0932
Deputy Clerk
Attorneys for Defendant Volkswagen Group of
America, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
10
Il HAROLD KOEPKE and NANCY KARIDIS- Case No. CGC-13-276217
KOEPKE,
12 DECLARATION OF GARRETT SANDERSON IIE
Plaintiffs, IN SUPPORT OF MOTION IN LIMINE NO, 2 TO
13 PRECLUDE CAUSATION OPINIONS OF
Vv. PLAINTIFFS’ EXPERTS THAT ARE CONTRARY
14 TO RUTHERFORD
FORD MOTOR COMPANY, et al.,
15 Date: June 24, 2014
Defendants. Time: 3:30 p.m.
16 Dept.: 624
17 Action Filed: December 3, 2013
Trial Date: June 16, 2014
18
19 I, Garrett Sanderson I, declare as follows:
20 1 I make this declaration based upon my personal knowledge and, if called as a
21 witness, could and would testify competently to the matters stated here.
22 2 jam a member in good standing of the State Bar of California and am a partner of
23 Carroll, Burdick & McDonough LLP, attorneys for defendant Volkswagen Group of America, Inc.
24 3 Exhibit A to this declaration is a true and correct copy of excerpts from the
25 deposition of plaintiffs’ expert Dr. Allan Smith. I am informed and believe based on deposing Dr.
26 Smith, reviewing the transcript of his deposition, and reviewing plaintiffs’ expert witness
27 disclosure, that Dr. Smith is an expert in the field of epidemiology.
28
CARROLL, BuRDICK &
MCDONOUGH LLP. CBM-SFISF63087 1-1 Case No. CGC-13-276217
Artonaes1 Last
‘SAN FRANCISCO DECLARATION OF GARRETT SANDERSON II ISO MIL No. 2 CAUSATION OPINIONS OF RUTHERFORD
4 Exhibit B to this declaration is a true and correct copy of excerpts from the
deposition of plaintiffs’ expert Dr. Michael Ellenbecker. 1 am informed and believe based on
reviewing the transcript of Dr. Ellenbecker’s deposition and based on plaintiffs’ expert witness
disclosure, that Dr. Ellenbecker is an expert in industrial hygiene.
5 Exhibit c to this declaration is a true and correct copy of excerpts from the
deposition of plaintiffs’ expert Dr. Eugene Mark. I am informed and believe based on reading
plaintiffs’ expert disclosure and Dr. Mark’s report that he is a pathologist.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on rne2- ow, at San
10 Francisco, California.
ll Jo \ ee]
12 / Garrett Sanderson HI
13
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CARROLL, BURDICK &
McDonovor LLP CBM-SFIST630871-1 -2- Case No. CGC-13-276217
AntoRNEYSAt LAW
SAN FRANCISCO DECLARATION OF GARRETT SANDERSON ITT [SO MIL No. 2 CAUSATION OPINIONS OF RUTHERFORD
EXHIBIT A
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. CGC1i3 276217
FORD MOTOR COMPANY, et al.,
Defendants
10
11
12
13 DEPOSITION OF ALLAN H. SMITH, M.D.
14 VOLUME I, Pages 1-199
15
16
17 Taken before EARLY LANGLEY, CLR, RSA, RMR
18 CSR No, 3537
19 May 28, 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
60
calculation for carpenters, namely, does Rake?
That is what is on that line.
And so his is higher than Roelofs odds ratio;
true?
They're not comparable.
Why are they not comparable?
A Because they're using different techniques.
Q Is it merely the difference, as you say,
between comparing an occupation to nonexposed
10 individuals or is there another reason they are not
11 comparable?
12 A Well, apparently it's the type of data used
13 that relates to the exposure, and there is also the
14 fact that the estimates in the Rake tables are not
15 compared to their nonexposure.
16 Q In Rake; true?
17 A Right.
18 Q All right. And then -- all right.
19 So then, let me just get back to generally.
20 Can you tell me the opinions that you expect to give at
21 the trial of this case?
22 MR. SATTERLEY: Objection. Overly broad.
23 THE WITNESS: It is my opinion that the
24 mesothelioma was caused by inhalation of asbestos dust.
25 BY MR. SANDERSON:
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
61
Q That is Mr. Koepke's?
A Correct.
Q Do you have any other opinion you expect to
give at trial in this case?
MR. SATTERLEY: Objection. Overly broad.
THE WITNESS: That is the underlying opinion.
There are opinions that relate to it, but,
nevertheless, that would be the opinion I would give.
If I may be asked about pleural plaques, I would say,
10 you don't have to have pleural plaques for asbestos to
11 cause mesothelioma, but they may provide evidence of
12 occupational exposure, I may be asked about latency,
13 and I would note that the peak latency is 30 to
14 50 years after first exposure and that the latency here
15 is quite typical.
16 BY MR. SANDERSON:
17 Q Okay. And can the latency period be beyond
18 50 years?
19 A Yes.
20 Q What's the outside or maximum number of years,
21 in your opinion?
22 A I don't think that there is a maximum.
23 Q So it could be an exposure happening 70 years
24 prior to diagnosis, in your opinion; true?
25 A Part of the exposure could be that long before
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
105
Vague. Improper hypothetical.
THE WITNESS: If somebody gets mesothelioma, I
Took at the overall evidence of exposure. If I have
reached a conclusion that it was probabte that asbestos
dust inhalation caused it. then if asbestos dust was
inhated in one brake job, then it woutd contribute to
the dose of asbestos that increased the risk that
caused the cancer.
BY MR. SANDERSON:
10 Q Would that exposure, the breathing of the dust
44 from the one brake replacement, would that be a
12 substantial factor, in your opinion, in increasing the
13 person's risk of developing mesothelioma or would it be
44 a negligible or an infinitesimal factor?
15 MR. SATTERLEY: Could you read that question
16 back. I didn't understand it, Early.
17 (Record read by the court reporter.)
18 MR, SATTERLEY: Objection, Assumes facts not
19 in evidence. Improper hypothetical. Vague.
20 Ambiguous. Argumentative.
21 THE WITNESS: Again, I've referred to a
22 conclusion that asbestos dust caused a mesothelioma.
23 If it's probable that asbestos dust inhalation caused
24 the mesothelioma, then the dose of asbestos that
25 increased the risk is made up of al? inhalations of
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
106
asbestos dust and all such inhaltations are important
and meaningful and can be thought of as a substantial
factor.
BY MR. SANDERSON:
Q Okay. So every dose, then, would be -- or
every act of breathing asbestos dust, in your opinion,
would be treated the same in terms of causing the
mesothelioma; is that correct?
A That's not what I said.
10 Q Okay. So would that -- what I said, is that
14 is what I said incorrect?
12 A I-don't know what you mean by “treated the
13 same."
14 Q In other words, in your opinion, if a person
15 breathed asbestos from one brake replacement using a
16 Volkswagen-supptied brake, is that as causative, in
17 your opinion, as if the person breathed asbestos dust
18 from 500 brakes supplied by General Motors?
19 MR. SATTERLEY: Objection. Assumes facts not
20 in evidence. Improper hypothetical. Vague.
21 Ambiguous. Argumentative. And asked and answered.
22 THE WITNESS: I don't know what you mean by "as
23 causative.” That's not the way I would word it in
24 terms of if one concluded that asbestos dust inhalation
25 caused a mesothelioma, then it's all inhalations of
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
118
would that be a sufficient exposure alone to cause his
pleural mesothelioma?
MR. SATTERLEY: Once again, Tet me place an
objection. Improper hypothetical. Assumes facts not
in evidence. No factual testimony from any witnesses
to support that. Vague. Ambiguous. Also contrary to
the well established caselaw in California on
causation, the Rutherford case.
THE WITNESS: It did not do so. There was
10 subsequent exposure to asbestos which contributed to
14 the dose that increased the risk. If that occurred,
12 then it would be part of the dose that increased the
13 risk that caused the cancer.
14 BY MR. SANDERSON:
15 Q If what I had outiined in my hypothetical
16 occurred, would that be a substantial factor that
17 increased Mr. Koepke's risk of developing pleural
18 mesothelioma?
19 MR. SATTERLEY: Same objections. Assumes fact s
20 not in evidence. Improper hypothetical contrary to
21 existing caselaw.
22 THE WITNESS: It's ail inhalation of asbestos
23 dust that increases the risk that causes the cancer is,
24 in my opinion, a substantial factor.
25 BY MR. SANDERSON:
Aiken Welch Court Reporters Alvan Smith, M.D. 05/28/2014
104
A Correct. So we're all straight there.
Q Thank you. Before I get to those in any
detail, you indicated before the break that a point
source is generally something that involves many years
of exposure to asbestas dust rather than one point in
time; is that correct?
MR. SATTERLEY: Objection. Mischaracterizes
prior testimony.
THE WITNESS: No. In the context of
10 mesothelioma and its occurrence when the point source
14 is something like a factory or mine, then people are
12 living there for usually years.
13 BY MR. SANDERSON:
14 Q By a mine, you mean, a mine?
15 A Either factory or mine or something like that
16 that is the point source, then in order to -- or those
17 cases of mesothelioma that are found have had that
18 point source of exposure over a matter of years.
19 Q Okay. In a person who's been diagnosed with
20 pleural mesothelioma, if that person's occupational
2 history shows that he was exposed to asbestos dust as a
22 result of one brake replacement on an automobile, in
23 your opinion, would that exposure increase his risk of
24 developing mesothelioma?
25 MR. SATTERLEY: Objection. Overly broad.
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
83
used in certain applications?
A Not really, no. Over the years I've seen it
mentioned in the literature, but I've not studied that.
It's not in my area of expertise.
Q Can you think of any articles that you've read
that discussed Forsterite?
A No.
Q Have you read any papers or studies describing
how much, if any, asbestos fibers are contained in the
10 dust that results from brake application in a drum
11 brake system?
12 A I'm not expert on that.
13 Q Have you read any papers or studies about that?
14 A I might have. I don't recall.
15 Q Have you read any studies or papers describing
16 the quantity of asbestos fibers, if any, that is
17 contained in the dust or residue of a disc brake system
18 as a result of brake application?
19 A I don't recall.
20 Q In providing opinions, and for any opinion in
21 this case, do you do any analysis of the quantity of
22 asbestos by volume or weight that is contained in dust
23 from a given source?
24 A No.
25 Q And you haven't done so in this case; correct?
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
84
A I don't do that.
Q And you are aware of papers, or at least one
paper, indicating that the relative potency of
crocidolite, amosite, and chrysotile is 500 to 100 to
1?
MR. SATTERLEY: Objection,
BY MR. SANDERSON:
Q -Respectively; correct?
MR. SATTERLEY: Calls for speculation with
10 regards -- and also foundation,
1 But go ahead.
12 THE WITNESS: If you're referring to a paper by
13 Hodgson, I have seen that, yes.
14 BY MR. SANDERSON:
15 Q Your opinion is different, though; correct?
16 A Right. It's wrong.
17 Q Your opinion is that crocidolite is about,
18 what, two to four times more potent than chrysotile?
19 A Very roughly, yes.
20 Q What do you base that on?
21 A It's based on information presented in the
22 paper I published in 1996.
23 Q And in that paper you looked at chrysotile in
24 various occupations; is that correct?
25 A No.
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
108
answer it.
BY MR. SANDERSON:
Q All right. Let's just take a hypothetical
person. Assume that person A sands 1,000 brake shoes
in his career, and 999 of those brake shoes are
GM-supplied brake shoes and they al? contain chrysotile
asbestos. One of the brake shoes he sands was supplied
by Volkswagen Group of America and also contained
chrysotile asbestos.
10 In your opinion, would his sanding of that one
44 brake shoe, also assuming he breathed asbestos dust
12 from all 1,000 of them --
13 MR. SATTERLEY: Same --
14 BY MR. SANDERSON:
15 Q - would the one supplied by Volkswagen Group
16 of America be a substantial factor in causing his
17 mesothelioma, in your opinion?
18 MR. SATTERLEY: Same objection. Improper
19 hypothetical. Assumes facts not in evidence. Vague.
20 Ambiguous. Argumentative. Asked and answered.
21 THE WITNESS: Well, I would look at the total
22 work history, if that was all the exposure I was aware
23 of and if I reached the opinion that asbestos dust
24 caused that mesothelioma, then, in my opinion the dose
25 is made up of all the inhalations of asbestos dust from
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
109
all the brakes, and you can't take away any one of them
and say they're not important and meaningful, and
therefore, I would think of all such exposures as a
substantial factor in contributing to the dose that
increased the risk that caused the cancer.
BY MR. SANDERSON:
Q Including the one from the Volkswagen?
A That is correct. There's no label to say this
is Volkswagen. As far as the person’s lungs and the
10 pleural lining are concerned, it's asbestos dust that's
1 coming in over the course of those activities.
12 Q Are you familiar with the amphitheater at
13 Mt. Tam?
14 A No.
15 Q I'm going to ask you to assume there's an
16 amphitheater at Mt. Tam and I'm going to ask you to
17 assume that the amphitheater is = the seats contain
18 chrysotile asbestos, and I'm going to ask you to assume
19 that a person sitting in the amphitheater generates
20 asbestos dust during the course of a performance at the
21 amphitheater, and I'm going to ask you to assume that
22 the person sitting there breathes dust containing
23 chrysotile asbestos. Would the amphitheater on Mt. Tam
24 then be a point source, in your opinion, for asbestos
25 dust?
Aiken Welch Court Reporters Allan Smith, M.D. OS 12812044
199
STATE OF CALIFORNIA
ss
COUNTY OF ALAMEDA )
I, EARLY LANGLEY, a Certified Shorthand
Reporter, State of California, do hereby certify:
That ALLAN H. SMITH, M.D., in the foregoing
10 deposition named, was present and by me sworn as a
11 witness in the above-entitled action at the time and
12 place therein specified;
13 That said deposition was taken before me at
14 said time and place, and was taken down in shorthand by
15 me, a Certified Shorthand Reporter of the State of
16 California, and was thereafter transcribed into
17 typewriting, and that the foregoing transcript
18 constitutes a full, true and correct report of said
19 deposition and of the proceedings that took place;
20 IN WITNESS WHEREOF, T have hereunder subscribed,
rs
rl
21 on May 30, 2014.
Se
22
23
BARLY LAN@LEY;(G¢R NO. 3537
24 State of California
25
Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
---000---
HAROLD KOEPKE and NANCY KOEPKE,
Plaintiffs,
vs. No. CGC-13-276217
FORD MOTOR COMPANY, et al.,
Defendants.
10
11
12
13
14 DEPOSITION OF ALLAN SMITH, M.D., Ph.D.
15 VOLUME If
16 (Page 200 through 319)
17 Taken before KIMBERLEY RICHARDSON, RPR, CCRR
18 CSR No. 5915
19 June 16, 2014
20
21
22
Aiken Welch Court Reporting
23 One Kaiser Plaza, Suite 250
Oakland, California 94612
24 (510) 451-1580/(877) 451-1580
Fax (510) 451-3797
25 www.aikenwelch.com
273
before getting the mesothelioma, that would reduce life
expectancy somewhat.
Q. Do you expect to give an opinion at trial that
his cigarette smoking reduced his life expectancy
before he developed mesothelioma?
A. Only if you asked me.
Q. Do you have an opinion what -- by how much it
reduced his life expectancy?
A. No. I have not tried to work that out, and
10 itts not relevant to my opinions in this case.
11 Q. All right.
12 In terms of your work on this case, you have
13 not done any assessment of the asbestos fiber type or
14 any dust that Mr. Koepke may have inhaled during the
15 latency period; is that correct?
16 A. I£ you leave out during the latency period,
17 then that is correct.
18 Q. And you have not done an evaluation of the
19 frequency of Mr. Koepke's exposure to asbestos from any
20 particular company's product; is that true?
a1 A. Correct.
22 Q. I'm sorry?
23 A. Correct.
24 Q. Okay. Thank you.
25 And you have not done any evaluation of Mr.
Aiken Welch ALLAN SMITH, M.D., Ph.D, V.2 06/16/2014
274
Koepke's proximity to any company's asbestos-containing
products when any asbestos dust may have been generated
that Mr. Koepke inhaled; is that true?
A. Correct.
Q. And, you know, the last time we were together,
I asked you a hypothetical. I'm going to ask you
another one.
Assume person A sands 10,000
asbestos-containing brake shoe linings. Assume each
10 brake lining has chrysotile and the same amount of
11 chrysotile. Assume that all the brake shoe linings are
12 sanded in the latency period approximately. Assume
13 person A sands each brake lining for one minute.
14 Assume person A breathes asbestos dust in the course of
15 sanding each brake shoe lining.
16 So assume of those 10,000 brake shoe linings
17 that person A sands 9,999 of them comes from GM and one
18 of them comes from Volkswagen Group of America and
19 assume that those 10,000 brake shoe linings that that
20 person sands constitutes the totality of his exposures
21 to asbestos.
22 If person A develops mesothelioma, and you have
23 determined that it was caused by breathing asbestos
24 dust, is the one brake shoe supplied by Volkswagen
25 Group of America a substantial factor in increasing
Aiken Welch ALLAN SMITH, M.D., Ph.D., V.2 06/16/2014
319
REPORTER'S CERTIFICATE
qT, KIMBERLEY RICHARDSON, a Shorthand Reporter,
State of California, do hereby certify:
That ALLAN SMITH, M.D., Ph.D., in the foregoing
deposition named, was present and by me sworn as a
witness in the above-entitled action at the time and
place therein specified;
10 That said deposition was taken before me at
11 said time and place, and was taken down in shorthand by
12 me, a Certified Shorthand Reporter of the State of
13 California, and was thereafter transcribed into
14 typewriting, and that the foregoing transcript
15 constitutes a full, true and correct report of said
16 deposition and of the proceedings that took place;
17 IN WITNESS WHEREOF, I have hereunder subscribed
18 my hand this 17th day of June 2014.
19 Pe,
ey
20
a1
22
23 5915
State of California
24
25
Aiken Welch ALLAN SMITH, M.D., Ph.D. V.2 06/16/2014
EXHIBIT B
In the Matter Of:
KOEPKE vs. FORD MOTOR
MICHAEL ELLENBECKER
June 06, 2014
Court Reporters, Videography, Trial Preparation
Videoconference Center G
Oakland « SanFrancisco « SanJose « Los Angeles
887.451.1580
www.aikenwelch.com
PANT eral
Wieltea
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Page 38
Is it true that you have no written
notes?
Correct.
And the opinions you gave were to
Andrea?
Yes.
Did you give any of your opinions to
Mr. Satterley on the occasions you spoke with
him?
10 A No.
11 Q Have you performed any type of
12 calculation with respect to anything that you
13 believed to be an exposure related to
14 Mr. Koepke?
15 MS. HUSTON: Assumes facts.
16 A Because I don't think there's enough
17 information available to quantify his exposure,
18 I did not de any calculations to come up with a
19 quantitative estimate of his exposure. I don't
20 think that's possible based on the information,
21 so I did not.
22 BY MR. MARKS:
23 Q Have
Preview
Garrett Sanderson TH, Bar No. 131026 gsanderson@cbmlaw.com Peter H. Cruz, Bar No. 220850 ELECTRONICALLY peruz@cbmiaw.com CARROLL, BURDICK & McDONOUGH LLP FILED Superior Court of California, Attorneys at Law County of San Francisco 44 Montgomery Street, Suite 400 San Francisco, California 94104 JUN 24 2014 Telephone: 415.989.5900 Clerk of the Court BY: ROMY RISK Facsimile: 415.989.0932 Deputy Clerk Attorneys for Defendant Volkswagen Group of America, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 Il HAROLD KOEPKE and NANCY KARIDIS- Case No. CGC-13-276217 KOEPKE, 12 DECLARATION OF GARRETT SANDERSON IIE Plaintiffs, IN SUPPORT OF MOTION IN LIMINE NO, 2 TO 13 PRECLUDE CAUSATION OPINIONS OF Vv. PLAINTIFFS’ EXPERTS THAT ARE CONTRARY 14 TO RUTHERFORD FORD MOTOR COMPANY, et al., 15 Date: June 24, 2014 Defendants. Time: 3:30 p.m. 16 Dept.: 624 17 Action Filed: December 3, 2013 Trial Date: June 16, 2014 18 19 I, Garrett Sanderson I, declare as follows: 20 1 I make this declaration based upon my personal knowledge and, if called as a 21 witness, could and would testify competently to the matters stated here. 22 2 jam a member in good standing of the State Bar of California and am a partner of 23 Carroll, Burdick & McDonough LLP, attorneys for defendant Volkswagen Group of America, Inc. 24 3 Exhibit A to this declaration is a true and correct copy of excerpts from the 25 deposition of plaintiffs’ expert Dr. Allan Smith. I am informed and believe based on deposing Dr. 26 Smith, reviewing the transcript of his deposition, and reviewing plaintiffs’ expert witness 27 disclosure, that Dr. Smith is an expert in the field of epidemiology. 28 CARROLL, BuRDICK & MCDONOUGH LLP. CBM-SFISF63087 1-1 Case No. CGC-13-276217 Artonaes1 Last ‘SAN FRANCISCO DECLARATION OF GARRETT SANDERSON II ISO MIL No. 2 CAUSATION OPINIONS OF RUTHERFORD 4 Exhibit B to this declaration is a true and correct copy of excerpts from the deposition of plaintiffs’ expert Dr. Michael Ellenbecker. 1 am informed and believe based on reviewing the transcript of Dr. Ellenbecker’s deposition and based on plaintiffs’ expert witness disclosure, that Dr. Ellenbecker is an expert in industrial hygiene. 5 Exhibit c to this declaration is a true and correct copy of excerpts from the deposition of plaintiffs’ expert Dr. Eugene Mark. I am informed and believe based on reading plaintiffs’ expert disclosure and Dr. Mark’s report that he is a pathologist. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on rne2- ow, at San 10 Francisco, California. ll Jo \ ee] 12 / Garrett Sanderson HI 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CARROLL, BURDICK & McDonovor LLP CBM-SFIST630871-1 -2- Case No. CGC-13-276217 AntoRNEYSAt LAW SAN FRANCISCO DECLARATION OF GARRETT SANDERSON ITT [SO MIL No. 2 CAUSATION OPINIONS OF RUTHERFORD EXHIBIT A 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. CGC1i3 276217 FORD MOTOR COMPANY, et al., Defendants 10 11 12 13 DEPOSITION OF ALLAN H. SMITH, M.D. 14 VOLUME I, Pages 1-199 15 16 17 Taken before EARLY LANGLEY, CLR, RSA, RMR 18 CSR No, 3537 19 May 28, 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 60 calculation for carpenters, namely, does Rake? That is what is on that line. And so his is higher than Roelofs odds ratio; true? They're not comparable. Why are they not comparable? A Because they're using different techniques. Q Is it merely the difference, as you say, between comparing an occupation to nonexposed 10 individuals or is there another reason they are not 11 comparable? 12 A Well, apparently it's the type of data used 13 that relates to the exposure, and there is also the 14 fact that the estimates in the Rake tables are not 15 compared to their nonexposure. 16 Q In Rake; true? 17 A Right. 18 Q All right. And then -- all right. 19 So then, let me just get back to generally. 20 Can you tell me the opinions that you expect to give at 21 the trial of this case? 22 MR. SATTERLEY: Objection. Overly broad. 23 THE WITNESS: It is my opinion that the 24 mesothelioma was caused by inhalation of asbestos dust. 25 BY MR. SANDERSON: Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 61 Q That is Mr. Koepke's? A Correct. Q Do you have any other opinion you expect to give at trial in this case? MR. SATTERLEY: Objection. Overly broad. THE WITNESS: That is the underlying opinion. There are opinions that relate to it, but, nevertheless, that would be the opinion I would give. If I may be asked about pleural plaques, I would say, 10 you don't have to have pleural plaques for asbestos to 11 cause mesothelioma, but they may provide evidence of 12 occupational exposure, I may be asked about latency, 13 and I would note that the peak latency is 30 to 14 50 years after first exposure and that the latency here 15 is quite typical. 16 BY MR. SANDERSON: 17 Q Okay. And can the latency period be beyond 18 50 years? 19 A Yes. 20 Q What's the outside or maximum number of years, 21 in your opinion? 22 A I don't think that there is a maximum. 23 Q So it could be an exposure happening 70 years 24 prior to diagnosis, in your opinion; true? 25 A Part of the exposure could be that long before Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 105 Vague. Improper hypothetical. THE WITNESS: If somebody gets mesothelioma, I Took at the overall evidence of exposure. If I have reached a conclusion that it was probabte that asbestos dust inhalation caused it. then if asbestos dust was inhated in one brake job, then it woutd contribute to the dose of asbestos that increased the risk that caused the cancer. BY MR. SANDERSON: 10 Q Would that exposure, the breathing of the dust 44 from the one brake replacement, would that be a 12 substantial factor, in your opinion, in increasing the 13 person's risk of developing mesothelioma or would it be 44 a negligible or an infinitesimal factor? 15 MR. SATTERLEY: Could you read that question 16 back. I didn't understand it, Early. 17 (Record read by the court reporter.) 18 MR, SATTERLEY: Objection, Assumes facts not 19 in evidence. Improper hypothetical. Vague. 20 Ambiguous. Argumentative. 21 THE WITNESS: Again, I've referred to a 22 conclusion that asbestos dust caused a mesothelioma. 23 If it's probable that asbestos dust inhalation caused 24 the mesothelioma, then the dose of asbestos that 25 increased the risk is made up of al? inhalations of Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 106 asbestos dust and all such inhaltations are important and meaningful and can be thought of as a substantial factor. BY MR. SANDERSON: Q Okay. So every dose, then, would be -- or every act of breathing asbestos dust, in your opinion, would be treated the same in terms of causing the mesothelioma; is that correct? A That's not what I said. 10 Q Okay. So would that -- what I said, is that 14 is what I said incorrect? 12 A I-don't know what you mean by “treated the 13 same." 14 Q In other words, in your opinion, if a person 15 breathed asbestos from one brake replacement using a 16 Volkswagen-supptied brake, is that as causative, in 17 your opinion, as if the person breathed asbestos dust 18 from 500 brakes supplied by General Motors? 19 MR. SATTERLEY: Objection. Assumes facts not 20 in evidence. Improper hypothetical. Vague. 21 Ambiguous. Argumentative. And asked and answered. 22 THE WITNESS: I don't know what you mean by "as 23 causative.” That's not the way I would word it in 24 terms of if one concluded that asbestos dust inhalation 25 caused a mesothelioma, then it's all inhalations of Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 118 would that be a sufficient exposure alone to cause his pleural mesothelioma? MR. SATTERLEY: Once again, Tet me place an objection. Improper hypothetical. Assumes facts not in evidence. No factual testimony from any witnesses to support that. Vague. Ambiguous. Also contrary to the well established caselaw in California on causation, the Rutherford case. THE WITNESS: It did not do so. There was 10 subsequent exposure to asbestos which contributed to 14 the dose that increased the risk. If that occurred, 12 then it would be part of the dose that increased the 13 risk that caused the cancer. 14 BY MR. SANDERSON: 15 Q If what I had outiined in my hypothetical 16 occurred, would that be a substantial factor that 17 increased Mr. Koepke's risk of developing pleural 18 mesothelioma? 19 MR. SATTERLEY: Same objections. Assumes fact s 20 not in evidence. Improper hypothetical contrary to 21 existing caselaw. 22 THE WITNESS: It's ail inhalation of asbestos 23 dust that increases the risk that causes the cancer is, 24 in my opinion, a substantial factor. 25 BY MR. SANDERSON: Aiken Welch Court Reporters Alvan Smith, M.D. 05/28/2014 104 A Correct. So we're all straight there. Q Thank you. Before I get to those in any detail, you indicated before the break that a point source is generally something that involves many years of exposure to asbestas dust rather than one point in time; is that correct? MR. SATTERLEY: Objection. Mischaracterizes prior testimony. THE WITNESS: No. In the context of 10 mesothelioma and its occurrence when the point source 14 is something like a factory or mine, then people are 12 living there for usually years. 13 BY MR. SANDERSON: 14 Q By a mine, you mean, a mine? 15 A Either factory or mine or something like that 16 that is the point source, then in order to -- or those 17 cases of mesothelioma that are found have had that 18 point source of exposure over a matter of years. 19 Q Okay. In a person who's been diagnosed with 20 pleural mesothelioma, if that person's occupational 2 history shows that he was exposed to asbestos dust as a 22 result of one brake replacement on an automobile, in 23 your opinion, would that exposure increase his risk of 24 developing mesothelioma? 25 MR. SATTERLEY: Objection. Overly broad. Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 83 used in certain applications? A Not really, no. Over the years I've seen it mentioned in the literature, but I've not studied that. It's not in my area of expertise. Q Can you think of any articles that you've read that discussed Forsterite? A No. Q Have you read any papers or studies describing how much, if any, asbestos fibers are contained in the 10 dust that results from brake application in a drum 11 brake system? 12 A I'm not expert on that. 13 Q Have you read any papers or studies about that? 14 A I might have. I don't recall. 15 Q Have you read any studies or papers describing 16 the quantity of asbestos fibers, if any, that is 17 contained in the dust or residue of a disc brake system 18 as a result of brake application? 19 A I don't recall. 20 Q In providing opinions, and for any opinion in 21 this case, do you do any analysis of the quantity of 22 asbestos by volume or weight that is contained in dust 23 from a given source? 24 A No. 25 Q And you haven't done so in this case; correct? Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 84 A I don't do that. Q And you are aware of papers, or at least one paper, indicating that the relative potency of crocidolite, amosite, and chrysotile is 500 to 100 to 1? MR. SATTERLEY: Objection, BY MR. SANDERSON: Q -Respectively; correct? MR. SATTERLEY: Calls for speculation with 10 regards -- and also foundation, 1 But go ahead. 12 THE WITNESS: If you're referring to a paper by 13 Hodgson, I have seen that, yes. 14 BY MR. SANDERSON: 15 Q Your opinion is different, though; correct? 16 A Right. It's wrong. 17 Q Your opinion is that crocidolite is about, 18 what, two to four times more potent than chrysotile? 19 A Very roughly, yes. 20 Q What do you base that on? 21 A It's based on information presented in the 22 paper I published in 1996. 23 Q And in that paper you looked at chrysotile in 24 various occupations; is that correct? 25 A No. Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 108 answer it. BY MR. SANDERSON: Q All right. Let's just take a hypothetical person. Assume that person A sands 1,000 brake shoes in his career, and 999 of those brake shoes are GM-supplied brake shoes and they al? contain chrysotile asbestos. One of the brake shoes he sands was supplied by Volkswagen Group of America and also contained chrysotile asbestos. 10 In your opinion, would his sanding of that one 44 brake shoe, also assuming he breathed asbestos dust 12 from all 1,000 of them -- 13 MR. SATTERLEY: Same -- 14 BY MR. SANDERSON: 15 Q - would the one supplied by Volkswagen Group 16 of America be a substantial factor in causing his 17 mesothelioma, in your opinion? 18 MR. SATTERLEY: Same objection. Improper 19 hypothetical. Assumes facts not in evidence. Vague. 20 Ambiguous. Argumentative. Asked and answered. 21 THE WITNESS: Well, I would look at the total 22 work history, if that was all the exposure I was aware 23 of and if I reached the opinion that asbestos dust 24 caused that mesothelioma, then, in my opinion the dose 25 is made up of all the inhalations of asbestos dust from Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 109 all the brakes, and you can't take away any one of them and say they're not important and meaningful, and therefore, I would think of all such exposures as a substantial factor in contributing to the dose that increased the risk that caused the cancer. BY MR. SANDERSON: Q Including the one from the Volkswagen? A That is correct. There's no label to say this is Volkswagen. As far as the person’s lungs and the 10 pleural lining are concerned, it's asbestos dust that's 1 coming in over the course of those activities. 12 Q Are you familiar with the amphitheater at 13 Mt. Tam? 14 A No. 15 Q I'm going to ask you to assume there's an 16 amphitheater at Mt. Tam and I'm going to ask you to 17 assume that the amphitheater is = the seats contain 18 chrysotile asbestos, and I'm going to ask you to assume 19 that a person sitting in the amphitheater generates 20 asbestos dust during the course of a performance at the 21 amphitheater, and I'm going to ask you to assume that 22 the person sitting there breathes dust containing 23 chrysotile asbestos. Would the amphitheater on Mt. Tam 24 then be a point source, in your opinion, for asbestos 25 dust? Aiken Welch Court Reporters Allan Smith, M.D. OS 12812044 199 STATE OF CALIFORNIA ss COUNTY OF ALAMEDA ) I, EARLY LANGLEY, a Certified Shorthand Reporter, State of California, do hereby certify: That ALLAN H. SMITH, M.D., in the foregoing 10 deposition named, was present and by me sworn as a 11 witness in the above-entitled action at the time and 12 place therein specified; 13 That said deposition was taken before me at 14 said time and place, and was taken down in shorthand by 15 me, a Certified Shorthand Reporter of the State of 16 California, and was thereafter transcribed into 17 typewriting, and that the foregoing transcript 18 constitutes a full, true and correct report of said 19 deposition and of the proceedings that took place; 20 IN WITNESS WHEREOF, T have hereunder subscribed, rs rl 21 on May 30, 2014. Se 22 23 BARLY LAN@LEY;(G¢R NO. 3537 24 State of California 25 Aiken Welch Court Reporters Allan Smith, M.D. 05/28/2014 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO ---000--- HAROLD KOEPKE and NANCY KOEPKE, Plaintiffs, vs. No. CGC-13-276217 FORD MOTOR COMPANY, et al., Defendants. 10 11 12 13 14 DEPOSITION OF ALLAN SMITH, M.D., Ph.D. 15 VOLUME If 16 (Page 200 through 319) 17 Taken before KIMBERLEY RICHARDSON, RPR, CCRR 18 CSR No. 5915 19 June 16, 2014 20 21 22 Aiken Welch Court Reporting 23 One Kaiser Plaza, Suite 250 Oakland, California 94612 24 (510) 451-1580/(877) 451-1580 Fax (510) 451-3797 25 www.aikenwelch.com 273 before getting the mesothelioma, that would reduce life expectancy somewhat. Q. Do you expect to give an opinion at trial that his cigarette smoking reduced his life expectancy before he developed mesothelioma? A. Only if you asked me. Q. Do you have an opinion what -- by how much it reduced his life expectancy? A. No. I have not tried to work that out, and 10 itts not relevant to my opinions in this case. 11 Q. All right. 12 In terms of your work on this case, you have 13 not done any assessment of the asbestos fiber type or 14 any dust that Mr. Koepke may have inhaled during the 15 latency period; is that correct? 16 A. I£ you leave out during the latency period, 17 then that is correct. 18 Q. And you have not done an evaluation of the 19 frequency of Mr. Koepke's exposure to asbestos from any 20 particular company's product; is that true? a1 A. Correct. 22 Q. I'm sorry? 23 A. Correct. 24 Q. Okay. Thank you. 25 And you have not done any evaluation of Mr. Aiken Welch ALLAN SMITH, M.D., Ph.D, V.2 06/16/2014 274 Koepke's proximity to any company's asbestos-containing products when any asbestos dust may have been generated that Mr. Koepke inhaled; is that true? A. Correct. Q. And, you know, the last time we were together, I asked you a hypothetical. I'm going to ask you another one. Assume person A sands 10,000 asbestos-containing brake shoe linings. Assume each 10 brake lining has chrysotile and the same amount of 11 chrysotile. Assume that all the brake shoe linings are 12 sanded in the latency period approximately. Assume 13 person A sands each brake lining for one minute. 14 Assume person A breathes asbestos dust in the course of 15 sanding each brake shoe lining. 16 So assume of those 10,000 brake shoe linings 17 that person A sands 9,999 of them comes from GM and one 18 of them comes from Volkswagen Group of America and 19 assume that those 10,000 brake shoe linings that that 20 person sands constitutes the totality of his exposures 21 to asbestos. 22 If person A develops mesothelioma, and you have 23 determined that it was caused by breathing asbestos 24 dust, is the one brake shoe supplied by Volkswagen 25 Group of America a substantial factor in increasing Aiken Welch ALLAN SMITH, M.D., Ph.D., V.2 06/16/2014 319 REPORTER'S CERTIFICATE qT, KIMBERLEY RICHARDSON, a Shorthand Reporter, State of California, do hereby certify: That ALLAN SMITH, M.D., Ph.D., in the foregoing deposition named, was present and by me sworn as a witness in the above-entitled action at the time and place therein specified; 10 That said deposition was taken before me at 11 said time and place, and was taken down in shorthand by 12 me, a Certified Shorthand Reporter of the State of 13 California, and was thereafter transcribed into 14 typewriting, and that the foregoing transcript 15 constitutes a full, true and correct report of said 16 deposition and of the proceedings that took place; 17 IN WITNESS WHEREOF, I have hereunder subscribed 18 my hand this 17th day of June 2014. 19 Pe, ey 20 a1 22 23 5915 State of California 24 25 Aiken Welch ALLAN SMITH, M.D., Ph.D. V.2 06/16/2014 EXHIBIT B In the Matter Of: KOEPKE vs. FORD MOTOR MICHAEL ELLENBECKER June 06, 2014 Court Reporters, Videography, Trial Preparation Videoconference Center G Oakland « SanFrancisco « SanJose « Los Angeles 887.451.1580 www.aikenwelch.com PANT eral Wieltea eo as a siel0 sa i) Page 38 Is it true that you have no written notes? Correct. And the opinions you gave were to Andrea? Yes. Did you give any of your opinions to Mr. Satterley on the occasions you spoke with him? 10 A No. 11 Q Have you performed any type of 12 calculation with respect to anything that you 13 believed to be an exposure related to 14 Mr. Koepke? 15 MS. HUSTON: Assumes facts. 16 A Because I don't think there's enough 17 information available to quantify his exposure, 18 I did not de any calculations to come up with a 19 quantitative estimate of his exposure. I don't 20 think that's possible based on the information, 21 so I did not. 22 BY MR. MARKS: 23 Q Have