Motion,Ex Parte: KENNETH MOSES SR. VS. KAISER GYPSUM COMPANY, INC. et al

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                                SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

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Nov-09-2015 1:55 pm

Case Number: CGC-13-276180
Filing Date: Nov-09-2015 1:55
Filed by: SAJJA RAVINANTAPRICA
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KENNETH MOSES SR. VS. KAISER GYPSUM COMPANY, INC. et al

001005149852

Instructions:
Please place this sheet on top of the document to be scanned.IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO F . .
San Francisco County Superior Court

NOV ~9 2015
KENNETH MOSES SR. Case No. CGC-13-276180
CLERK OF ve COURT
Plaintiff, BY 4 Deputy Clerk

RULINGS ON MOTIONS IN LIMINE

vs.
ASBESTOS DEFENDANTS,
Defendants.

Plaintiff’: ions

Allow Dr. Levy to Rely on Dr. Breyer’s Report

Plaintiff moves to permit Dr. Richard Levy to rely at trial on Dr. Donald Breyer’s expert
report. Judge Jackson ordered in this case on October 13, 2015: “The reports and opinions of Dr.
Donald Breyer disclosed after the May 3, 2015 close of expert discovery shall not be used or
referenced in Plaintiff's case-in-chief, and shall not be relied on by any of Plaintiff's experts in
Plaintiff's case-in-chief.” The motion is therefore DENIED.
Improper Questioning of Prospective Jurors During Voir Dire

The motion is DENIED. As discussed with counsel at the initial pretrial conference, a
motion in limine is a motion that seeks to exclude or include evidence, which this motion does
not do. See People v. Moore (1991) 53 Cal.3d 152, 188. Juror voir dire will be discussed during

a pretrial conference.“But For” Proximate Cause

This motion in limine violates the five-page limit established by the Court’s May 7, 2014
Asbestos Trial Management Order and is therefore DENIED. Before counsel filed motions in
limine in this case, the Court cautioned them that the five-page limit would be adhered to strictly.
“Background”/“Ambient” Exposure to Asbestos

Plaintiff seeks to exclude all evidence of and references to background or ambient
asbestos. The motion is DENIED.

It is undisputed that essentially everyone in modern society is exposed to some level of
airborne asbestos. As plaintiffs often point out, this level of exposure serves as a baseline from
which experts can calculate the risk of disease in individuals exposed to more than background
levels. Thus, plaintiffs themselves often address background/ambient asbestos at trial.

In any event, the Court is confident San Francisco jurors (county residents have
America’s highest level of college degrees and advanced degrees) are able to discern the
difference between ambient levels of asbestos and levels capable of increasing the risk of
asbestos-related disease. On the other hand, defendants in California asbestos cases are known
to unnecessarily consume trial time with the notion that asbestos was “the state rock.” That will
not be permitted.

Defendants’ Motions
Joint No. 1: Lay Opinion Whether Products Released Asbestos Fibers

This motion seeks to preclude all lay witnesses from opining “whether dust emitted by a
particular product contained asbestos fibers.” Mot. 4:8-11. A given lay witness may or may not
have bases for such opinions; that will be determined at trial. The motion is thus overbroad and

is DENIED.Joint No. 2: “Every Exposure” Theory of Causation

Addressing a recurring issue in asbestos litigation, defendants move to exclude opinions
that “every exposure” above background levels necessarily contributed substantially to plaintiff's
alleged asbestos-related disease. Such opinions would be contrary to the California Supreme
Court’s Rutherford decision, 16 Cal.4th 953, so the motion is GRANTED.

Rutherford established a two-step process to prove “causation in asbestos-related cancer
cases.” First, it must be proved that a plaintiff was exposed to a particular defendant or third
party’s asbestos-containing product. Second, it must be proved to a “reasonable medical
probability” that the particular party’s product “was a substantial factor in contributing to the
aggregate doses of asbestos the plaintiff inhaled or ingested, and hence to the risk of developing
asbestos-related cancer.”

Were it true that every asbestos exposure is invariably a substantial factor, there would be
no need for Rutherford’s second step, because every exposure would be a substantial factor.
Moreover, our supreme court closely bracketed its core holding in Rutherford with two important
statements. At page 975, the court addressed the question of “whether the risk of cancer created
by a plaintiff's exposure to a particular asbestos-containing product was significant enough to be
considered a legal cause of the disease.” Similarly, at page 977, the court addressed the question
of “which exposures to asbestos-containing products contributed significantly enough to the total
occupational doses to be considered ‘substantial factors’ in causing the disease.” Those
questions would not have been asked if every exposure to an asbestos-containing product —

regardless of number or size — is automatically a substantial factor.Joint No. 3: Documents Sponsored by Dr. Cohen

Defendants move to exclude from evidence documents that Dr. Richard Cohen may rely
on to show “historical development of medical and scientific information” regarding asbestos
dangers. As noted at the initial pretrial conference, all issues of document admissibility will be
individually addressed by counsel and the Court before a jury panel is summoned.

Joint No. 4: Lost Household Services

Highlighting another recurring issue in asbestos litigation, defendants move to exclude all
expert testimony regarding plaintiff's “lost household services.” The closest an appellate court
has come to directly addressing this issue is a footnote in Overly v. Ingalls Shipbuilding (1999)
74 Cal.App.4th 164, 171 n.5 — dicta that both plaintiffs and defendants spin their way.

The time periods before and after a plaintiff's expected date of death should be analyzed
separately. Currently, and for several years, plaintiff's sister has performed household services
that plaintiff himself formerly performed. That is likely to continue until he dies. If he proves
liability, plaintiff “should be compensated for the value of the services he would have
performed” during the time before his expected death. See Overly, 74 Cal-App.4th at 171 n.5.

Seizing on an Overly dictum, defendants argue that plaintiff is not a “family unit”
because he has lived alone. See id. However, one person — particularly in modern society,
where a large minority of people live by themselves — can be a “family unit.” Defendants also
argue that a stroke, and not asbestos-related disease, is the reason for plaintiff’s disability. But
that is a factual dispute for trial.

The years after plaintiffs expected death, but before his life expectancy absent asbestos-
telated disease, present different issues. In a case where a widow is left in a house that a plaintiff

resided in before his death, someone may have to be paid, for example, to mow the lawn that heformerly mowed. Not so with a single person like plaintiff here — there will be no continuing
“family unit” requiring such services. See id.

Plaintiff argues that household services should be compensated for like Social Security
benefits. But one is a cost, the other a benefit. Seizing on another Overly dictum, plaintiff also
argues that “limiting household services damages to the period of actual life expectancy would
grant the defendant a windfall for shortening a plaintiff's life as opposed to permanently
disabling him.” See Overly, 74 Cal.App.4th at 171 n.5. By that logic, a plaintiff like Mr. Moses
should be compensated for all his costs of living during the period of actual life expectancy, such
as housing, transportation, food and entertainment. No one contends that is the law, or shows
that household chores are somehow an exceptional cost of living.

Accordingly, the Court DENIES this motion for the time period before plaintiff's
expected death and GRANTS it for the period after that.

Joint No. 5: Other Asbestos-Related Diseases

Defendants seek to exclude any and all mention of facts that asbestos causes lung cancer,
asbestosis or mesothelioma, as plaintiff has not been diagnosed with those diseases. However,
such evidence is relevant, at a minimum, to when asbestos dangers were generally known or
knowable. Given San Francisco jurors’ pre-existing knowledge of asbestos dangers, a motion of
this kind is also futile. The motion is DENIED.

Dated: November 9, 2015

Nef BLA

Richard B. Ulmer Ir.
Judge of the Superior Court