Trial Materials: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                (415) 898-1555

BRAYTON*PURCE!

GILBERT L. PURCELL, ESQ., S.B. #113603
gpurcell@braytonlaw.com

JAMES P. NEVIN, ESQ., S.B. #220816
JNevin@braytonlaw.com
BRAYTON*PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

(415) 898-1555

Attorneys for Plaintiffs

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

10/01/2018

Clerk of the Court
BY: MADONNA CARANTO.
Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS,
Plaintiffs,

vs.

C.C. MOORE & CO. ENGINEERS;

Defendants as Reflected on Exhibit |

attached to the Summary Complaint
herein; and DOES 1-8500.

eee

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ASBESTOS
No. CGC-10-275731

PLAINTIFFS' TRIAL BRIEF
REGARDING CASE OVERVIEW

Trial Date: October 1, 2018
Dept.: 624

PLAINTIFFS' TRIAL BRIEF REGARDING CASE OVERVIEWAPPENDIX
Appendix A - Plaintiff's Work History Summary (“Exhibit A”)
Appendix B - Brief Details of Asbestos Exposure Caused By Remaining Defendant
Appendix C - Plaintiffs' Experts

TABLE OF CONTENTS
I. INTRODUCTION 0.00.0 cece teen tenet tenet nee
Il. NEGLIGENCE CAUSE OF ACTION . 2... 0.6.00 cc cece ence eee ees
Tl. PRODUCTS LIABILITY: FAILURE-TO-WARN CAUSE OF ACTION..........
IV. PRODUCTS LIABILITY: DESIGN-DEFECT CAUSE OF ACTION.............
Vv. CAUSATION: RUTHERFORD v. OWENS-ILLINOIS, INC... 0000000 eee es
VI. CAUSATION: HERNANDEZ v. AMCORD . 1.06 ccc eee
VII. CAUSATION: IZELL v. UNION CARBIDE CORP...

VIII. CAUSATION: DAVIS vy. HONEYWELL INTERNATIONAL INC, ..... 02600-0655

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.TABLE OF AUTHORITIES
CASES
Anderson v. Owens-Corning Fiberglas Corporation (1993) 53 Cal.3d 987 .............. 3,4
Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 0.00... 0c eee eee 4
Basler v. Sacramento Gas & Electric Co. (1910) 158 Cal. 514. ..0..........020.0202005 3
Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764 0.00... 002s 2
Davis v. Honeywell International, Inc. (2016) 245 Cal.App.4th 477. ...........0.00 05 5, 10
Elsner v. Uveges (2004) 34 Cal.4th 915. 000... e neces 2
Hernandez v. Amcord, Inc, (2013) 215 Cal.App.4th 659. 2.2.00... 0 0. eee eee eee eee 3,7
Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30.2.0 cece eee eee 3
Izell v. Union Carbide Corp. (2014) 231 Cal. App.4th 962 0.00.00... cee ee 5,9
Jones v. John Crane, Inc. (2005) 132 Cal. App.4th 990. 2... eee eee eee 5
Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703 0.0.00... 0 eee eee 3
Mitchell vy. Gonzales (1991) 54 Cal.3d 1053. ........00. 00000 c ccc eee centers 6
Morton v. Owens-Corning Fiberglas Corporation (1995) 33 Cal.App.4th 1529............ 4
Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359 0.02... eee eee 2
Rowland v. Christian (1968) 69 Cal.2d 108 0.0.00... cece eee eee ences 2
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953 .......... 0... 5, 7-133
Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758.000... 0c eee eee 3
Soule v. General Motors Corporation (1994) 8 Cal.4th 548 000... 4
Sparks v. Owens-Illinois, Inc. (1995) 32 Cal.App.4th 461.000.000.000... 20222 e eee 4
Tortorella v. Castro (2006) 140 Cal. App.4th 1]... eee nee 8
Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146. ........... 0.00 cee eee 2
STATUTES
Civil Code $1714 0... nent n ene nets 2,3
Civil Code § 1714 (a). 0. tenet n eee ee eens 2
Health and Safety Code § 40.200 .. 2
Labor Code § 6400.0... ccc eee e ener ene e nae 2
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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.TABLE OF AUTHORITIES (Cont'd)
STATUTES (cont'd.)

United States Code § 3601(a)(3). 0... ccc eee nen e nee 2
MISCELLANEOUS

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CACI 401. cnet ene e eee eee e anes 2
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CACTI AS 5 ttt tet Ft ed ett lt Stas ddd lottotct tol tle cadedadedatadtababet 2,4-7, 11
CACTIAZ0O TTT ToT TTI deledalalahalalabaldetedededadeletotct tab ctddededsdedalalalabalatalaedededelat 4
CACTI 2035 ee loleleh chee dadadtdad tft hte lededodedeladebalehebatdedhdededad tft bob tlle tedelededelalelalelshehdeddddod 4
CACTI 20S (ielelelebebeheldd dtd ttt tL LEM le lelalelelelelaldaeced ddd tt S EEG LNW lelelalalelolelelddlae dd td 4
CACTAZ20 Te lelelel al epera ttetact ttt te lela allel lea seated dat tot t tt hl lee ledalelalelalalaealdodat 2
CA CTIZ2 Lm lelelelalet epee eeteg gtk tte ele ele lela Glebe eee gett ele lalallala ella dee 2
CA CTD 222 te eles xx ae dn tte fe ew a ela a a 2,3
CACTI 22 3 se letetel= tet spac ge ete eta eet a te fetefetat etree 2,4

Prosser & Keeton on Torts (Sth ed., 1988 supp.) § 41, pp. 43-44...

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.L INTRODUCTION

This is a personal injury action involving the claims of plaintiff for personal injury
sustained as a result of his exposure to asbestos and asbestos-containing products from
approximately 1954-1993. Mr. Ross is 84 years old and suffers from colon cancer, asbestosis,
and pleural disease caused by his exposure to asbestos, and diagnosed in August of 2010 (colon
cancer), May of 2009 (asbestosis), and May of 2006 (pleural disease).

Plaintiff worked as an insulator at various locations, set forth in detail in Appendix A.
The remaining defendant, and the brief details of exposure caused by them, is set forth in the
attached Appendix B. Plaintiffs will prove that this defendant, along with other entities, were a
substantial factor contributing to cause his asbestos disease outcome. Fundamental medicine
and science teach what plaintiffs' experts testify to: that in someone with an asbestos-related
disease, you cannot look back in retrospect and assign cause to portions of that person’s latent
aggregate dose and disregard the causal contribution of any other portion of the latent aggregate
dose. Contrary to defendants’ characterization of plaintiffs' case and the evidence and
testimony of plaintiffs' experts, plaintiffs' case is not about an increased risk of disease that the
injured party did not have.

To prove the case, plaintiffs will call to trial the experts listed in Appendix C. There is
general agreement among scientists, health care providers, physicians, and health and science
related agencies and organizations that exposure to any asbestos fiber type increases the risk of
disease, including but not limited to sub-clinical pleural, lung, and other organ scarring, cancer,
mesothelioma, and non-malignant lung and pleural disorders. A rigorous review of the
epidemiologic evidence confirms that all types of asbestos fibre are causally implicated in the
development of various diseases and premature death. These conclusions are based on the full
body of evidence, including the epidemiology, toxicology, industrial hygiene, biology,
pathology, and other related literature published to the time of the respective evaluations.
Evaluation of all available human data provides no evidence for a "safe" level of asbestos
exposure below which risk of clinical disease is not increased. For example, section 3601(a)(3)

of Title 20 of the United States Code recites the findings of Congress, which includes:

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PLAINTIFF'S TRIAL

IEF REGARDING CASE OVERVIEW“medical science has not established any minimum level of exposure to asbestos fibers which is
considered to be safe to individuals expose to the fibers.” And, the Occupational Safety and
Health Administration’s (OSHA) 1994 final rule for occupational exposure to asbestos in
general industry, which states “[a] significant risk remains at the PEL of 0.1 f/ec ...”

I. NEGLIGENCE CAUSE OF ACTION

Plaintiffs will request that the jury be instructed, pursuant to Civil Code § 1714, using
CACTI 400, 401, 431, 435, 1220, 1221, 1222, 1223, or alternatively BAJI 3.00, 3.10, 3.11, 3.12,
3.76, 3.77, 3.78, 9.19, 9.20, 9.21. Each correctly states California law. A basic tenet of
California law is that everyone is required to use ordinary care to prevent injury to others from

their conduct. (Civ. Code § 1714, subd. (a); Pedeferri v. Seidner Enterprises (2013) 216

Cal.App.4th 359, 365; Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th 764 .) This general
tule means that those who own, posses, or control property, as well as contractors or other
persons involved therewith, have a duty to exercise ordinary care in the management of a
premises in order to provide a safe work environment and to avoid exposing persons to an

unreasonable risk of harm. (Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146,

203 Cal.Rptr.3d 536, 540-545; Rowland v. Christian (1968) 69 Cal.2d 108, 112-119; Pedeferri,
supra.) Those defendants' duties to maintain and provide safe premises, a safe place to work,
and to warn of dangerous conditions are non-delegable; said duties arise out of common law,
Civil Code § 1714, and Labor Code § 6400, et seg., or Health and Safety Code § 40.200, et seq.,
Cal-OSHA provisions, local air quality regulations, and regulations promulgated thereunder.
Civil plaintiffs may use safety regulations non-retroactively to show a standard of care, even
though the defendant is not their employer. (Elsner v. Uveges (2004) 34 Cal.4th 915, 935-936.)
Civil Code § 1714 does not limit responsibility for negligence to a certain class of
defendants; rather, it provides that “[e]very one is responsible for an injury occasioned to
another by [one’s] want of ordinary care or skill.” (Safeco Ins. Co. v. Robert S. (2001)
26 Cal.4th 758, 764.)
Negligence may be active or passive in character. It may consist in heedlessly

doing an improper thing or in heedlessly refraining from doing the proper thing.
Whether the circumstances call for activity or passivity, one who does not do

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.what he should is equally chargeable with negligence with him who does what
he should not. [Basler v. Sacramento Gas & Electric Co. (1910) 158 Cal. 514,
518.]

Under general negligence principles, everyone is “obligated to exercise due care in his
or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty
generally is owed to the class of persons who it is reasonably foreseeable may be injured as the

result of the actor's conduct.” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716;

Cal. Civ. Code, § 1714.) The California Supreme Court has defined “ordinary care” as the
degree of care that ordinarily prudent people can be expected to exercise under similar
circumstances. (Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36.) The greater the danger and
seriousness of the reasonably anticipated consequences, the higher the degree of care that must
be exercised. (Id.)

Plaintiffs’ negligence case will focus on the defendant's conduct and experience with
asbestos-containing products. It will involve testing, warnings, and what the defendant knew,
or should have known, dating from the turn of the last century. The jury will be able to make a
finding of negligence on any of the following grounds: breach of ordinary care, breach of duty
to warn, and/or breach of reasonable care in design, manufacture, testing, or inspection. One
consideration for the jury is whether the defendant knew or should have known of the potential

risk of its asbestos-containing product. (See, e.g., Anderson v. Owens-Corning Fiberglas

Corporation (1993) 53 Cal.3d 987, 991.) (CACI 1222.)

Defendant had a duty to exercise reasonable care in designing, manufacturing, testing,
inspecting, producing, selling, or disturbing asbestos-containing products so that the products
could be safely used in a manner and for a purpose for which they were made. Defendants were
manufacturers/suppliers/disturbers of asbestos-containing products that they knew, or had
reason to know, were dangerous or likely to be dangerous. The evidence will show that the
hazards of exposure to asbestos-containing products were known from the late 1800s. Concepts
of long latency and total dose response were established in 1930 by Dr. Merewether, Chief

Inspector of Factories for England, as part of his study of asbestos. The development of

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.comprehensive understanding of the hazards of asbestos continued through the 1930s and
1940s, and by 1950 the cancer aspects of exposure to asbestos were established.
Tl. PRODUCTS LIABILITY: FAILURE TO WARN CAUSE OF ACTION

Plaintiffs will request that the jury be instructed on CACI 431, 435, 1200,1205, and

1223, or, alternatively, BAJI 9.00 and 9.00.7, which set forth the essential elements of a
products liability failure-to-warn or recall cause of action. The product liability defendants each
had a duty to warn because the use of their asbestos-containing products in a manner that was
reasonably foreseeable involved potential dangers that would not be readily recognized by the
ordinary user of the product, and the dangers were known or knowable in light of the generally
recognized and prevailing best scientific and medical knowledge available at the time of the
manufacture or distribution of the asbestos-containing products. One consideration for the jury
is whether potential risk of harm was known or knowable to the defendant. (See, e.g.,
Anderson, supra, at 991.) (CACI 1205.)

TV. PRODUCTS LIABILITY: DESIGN DEFECT CAUSE OF ACTION

Plaintiffs will request that the jury be instructed on CACI 431, 435, 1200, and 1203, or
alternatively BAJI 9.00 and BAJI 9.00.5, which follows the second-prong of Barker v. Lull
Engineering Co. (1978) 20 Cal.3d 413, 143, which provides that a product is defective if it fails
to perform as safely as an ordinary consumer would expect when it is used in an intended or

reasonably foreseeable manner. (See also Soule v. General Motors Corporation (1994)

8 Cal.4th 548.) Defendants’ products fail this test. California case law has held over and over

again that this test applies to asbestos products and fiber. (See, i.e., Sparks v. Owens-Illinois.

Inc. (1995) 32 Cal.App.4th 461 and Morton v. Owens-Coming Fiberglas Corporation (1995) 33

Cal.App.4th 1529.) And all cases on point since then have held the same. There is not a single
published California case in which an asbestos plaintiff was not permitted to present the
consumer expectations prong of Barker regardless of the type of product at issue.

Vv. CAUSATION: RUTHERFORD vy, OWENS-ILLINOIS, INC.

Asbestos defendants typically attempt to distort and mischaracterize the well-

established California law on asbestos causation. Rutherford v. Owens-Illinois, Inc. (1997) 16

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.Cal.4th 953, Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, Jones v. John Crane, Inc.

(2005) 132 Cal.App.4th 990, Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, Davis
v. Honeywell International, Inc. (2016) 245 Cal.App.4th 477, CACI 431, and CAC] 435

represent the applicable law.

Despite Hernandez, Izell and Davis essentially telling defendants that enough is enough

(as did Jones v. John Crane, supra, long ago -- essentially repeating the language of Rutherford),
defendants ask this Court to ignore the California Supreme Court law on causation in asbestos
cases as set forth in Rutherford. Asbestos-related disease is a dose-responsive disease, so that
in a patient who has been diagnosed with an asbestos-related disease, all exposure to asbestos
that the patients suffered more than 10 years prior to diagnosis — no matter the size of the dose —
was a substantial factor in increasing the aggregate dose of asbestos the patient inhaled and,
hence, the patient’s risk of developing asbestos-related disease. Just as it is impossible to rule
out any particular cigarette as a cause of a smoker’s lung cancer, it is also impossible to rule out
any asbestos exposure as a cause of plaintiff's asbestos-related disease. When a person
contracts an asbestos-related disease after exposure to multiple asbestos-containing products,
each exposure contributes to the person’s dose and, therefore, to the total fiber burden, and,
therefore, to the development of clinical disease that occurs. As a practical matter, there is no
way to identify which product in particular, or most substantially, “caused” the disease, or to
state with any degree of certainty that the person would not have contracted the disease but for a
particular product. Plaintiffs do not have to show that a defendant’s asbestos-containing
product was the major exposure — the most frequent exposure — or the single most significant
exposure — that contributed to the disease. Rutherford (supra) held:

Proof of causation in such cases will always present inherent practical

difficulties, piven the long latency period of asbestos-related disease, and the

occupational settings that commonly exposed the worker to multiple forms and

brands of asbestos products with varying degrees of toxicity. In gencral,

however, no inseparable barriers prevent an asbestos-related cancer plaintiff

from demonstrating that exposure to the defendant’s asbestos products was, in

reasonable medical probability, a substantial factor in causing or contributing

to his risk of developing cancer. We conclude that plaintiffs are required to

prove no more than this. In particular, they need not prove with medical

exactitude that fibers from a particular defendant’s asbestos-containing
products were those, or among those, that actually began the cellular process

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.of malignancy. Instruction on the limits of the plaintiff's burden of proof of
causation, together with the standardized instructions defining cause-in-fact
causation under the substantial factor test (BAJI No. 3.76) [pow CACI 4851
and the doctrine of concurrent proximate legal causation (BAJI No. 3.77)
[now CACTI 431], will adequately apprise the jury of the elements required
to establish causation... [Id. at 957.] Although the plaintiff must, in
accordance with traditional tort principles, demonstrate to a reasonable medical
probability that a product or products supplied by the defendant, to which he
became exposed, were a substantial factor in causing his disease or risk of
injuries, he is free to further establish that his particular asbestos disease is
cumulative in nature, with many separate exposures each havin:
constituted a “substantial factor” (BAJI No. 3.76) [now CACI 435] that
contributed to his risk of injury. And although a defendant cannot escape
liability simply because it cannot be determined with medical exactitude the
precise contribution that exposure to fibers from defendant’s products made to
plaintiff's ultimate contraction of asbestos-related disease, all joint tortfeasors
found liable as named defendants will remain entitled to limit damages
ultimately assessed against them in accordance with established comparative
fault and apportionment principles... [Id. at 958.]

Medical testimony was also presented to establish that the plaintiffs’ asbestos-
related disease was “dose-related,” i.e., that the risk of developing asbestos-
related cancer increased as the total occupational dose of inhaled asbestos
fibers increased. Dr. Allan Smith, a professor of epidemiology, testified that
asbestos-related lung cancers are dose-related diseases, and that all
occupational exposures through the latency period can contribute to the
risk of contracting the diseases. The term “substantial factor” has not been
judicially defined with specificity, and indeed it has been observed that it is
“neither possible nor desirable to reduce it to any lower terms.” (Prosser &
Keeton on Torts, supra, § 41, p. 267.).... [Id. at 969.]

Undue emphasis should not be placed on the term “substantial.” For
example, the substantial factor standard, formulated to aid plaintiffs as a
broader rule of causality than the “but for” test, has been invoked by
defendants whose conduct is clearly a “but for” cause of plaintiff’s injury
but is nevertheless urged as an insubstantial contribution to the injury.
(Prosser & Keeton on Torts (Sth ed., 1988 supp.) § 41, pp. 43-44.) Misused in
this way, the substantial factor test “undermines the principles of
comparative negligence, under which a party is responsible for his or her
share of negligence and the harm caused thereby.” (Mitchell v. Gonzales,
supra, 54 Cal.3d at p. 1053.) [Id. at 969.] Plaintiffs cannot be expected to prove
the scientifically unknown details of carcinogenesis, or trace the unknowable
path of a given asbestos fiber. But the impossibility of such proof does not
dictate use of a burden shift. Instead, we can bridge this gap in the humanly
knowable by holding that plaintiffs may prove causation in asbestos-related
cancer cases by demonstrating that the plaintiff's exposure to defendant’s
asbestos-containing product in reasonable medical probability was a substantial
factor in contributing to the aggregate dose of asbestos the plaintiff or
decedent inhaled or ingested, and hence to the risk of developing asbestos-
related cancer, without the need to demonstrate that fibers from the defendant’s
particular product were the ones, or among the ones, that actually produced the
malignant growth... [Id. at 976-977.]

[T]he jury should be told that the plaintiff's or decedent’s exposure to a
particular product was a substantial factor in causing or bringing about the

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.disease if in reasonable medical probability it was a substantial factor
contributing to the plaintiff’s or decedent’s risk of developing cancer.... [Id.
at 977.] The substantial factor standard is a relatively broad one, requiring
only that the contribution of the individual cause be more than negligible or
theoretical... [Id. at 978.] [W]e have determined the jury should simply be told
that legal causation can be shown through evidence of exposure to a
defendant’s product that in reasonable medical probability was a substantial
factor contributing to the plaintiff's or decedent’s risk of developing
cancer... [Id. at 979.]

In the context of a cause of action for asbestos-related latent injuries, the plaintiff
must first establish some threshold exposure to the defendant’s defective
asbestos-containing products, and must further establish in reasonable medical
probability that a particular exposure or series of exposures was a “legal cause”
of his injury, i.e., a substantial factor in bringing about the injury. In an
asbestos-related cancer case, the plaintiff need not prove that fibers from the
defendant’s product were the ones, or among the ones, that actually began the
process of malignant cellular growth. Instead, the plaintiff may meet the burden
of proving that exposure to defendant’s product was a substantial factor causing
the illness by showing that in reasonable medical probability it was a substantial
factor contributing to the plaintiffs or decedent’s risk of developing cancer.
The jury should be so instructed. The standard instructions on substantial
factor and concurrent causation (BAJI Nos. 3.76 & 3.77) [pow CACI 435
and 431] remain correct in this context and should also be given. [Id. at 982.]

VI. CAUSATION: HERNANDEZ v. AMCORD
In Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, the defendant Amcord

argued, as do our defendants, that its asbestos product was different, special, and safe, and that
plaintiffs failed to show exposure of a sufficient quantity, duration, and frequency to its
particular product. The Hernandez court rejected these same assertions:

Notably, the Rutherford court made no distinction between general causation
and specific causation. Therefore, despite respondent’s use of these terms, we
decline to evaluate the evidence in terms of general versus specific

causation, and instead evaluate appellant’s evidence as a whole.... [Id. at 670.]

Based on the authorities discussed above, we apply the following standard in
determining whether appellant set forth sufficient evidence of causation in this
matter: (1) first, appellant must establish some threshold exposure to Riverside
gun plastic cement; and (2) appellant must further establish in reasonable
medical probability that the exposure to Riverside gun plastic cement was a
“legal cause” of Mr. Hernandez’s injury, i.e., a substantial factor in bringing
about the injury. Appellant may meet th burden of proving that exposure to
Riverside gun plastic cement was a substantial factor causing the illness by
showing that in reasonable medical probability it was a substantial factor
contributing to Mr. Hernandez’s risk of developing cancer. (Rutherford, supra,
16 Cal.4th at pp. 982-983.) Further, we bear in mind the Supreme Court’s
instruction that “[t]he substantial factor standard is a relatively broad one,
requiring only that the contribution of the individual cause be more than
negligible or theoretical.” [Id. at p. 673.]

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.VIL.

We find that appellant met this standard. As to the first requirement that
appellant show a threshold exposure to Riverside gun plastic cement,

Mr. Hernandez’s brother’s testimony was sufficient, As set forth above, Alfredo
worked with decedent for 10 to 12 years, starting in 1969. They did not
constantly work together; they worked apart during the week but worked
together on the weekends to earn extra money. During this time period,

Mr. Hernandez used Riverside gun plastic cement “a lot of times,” or “all the
time.”

Riverside gun plastic cement was packaged in 94-pound bags. In order to open a
bag of Riverside gun plastic cement, Mr. Hernandez would cut the bag in the
middle, which created visible dust ‘around his face and clothing. Mr. “Hernandez
would then dump the bag of Riverside gun plastic cement into a mixer, which
also created “a little bit” more dust that got on his face and clothing. This
testimony meets the threshold requirement of exposure to the respondent’s
product. [Id. at 673-674.)

Dr. Kradin gave his professional opinion that there was a direct connection
between Mr. Hernandez’s work history and his illness: “It is my opinion, to a
reasonable degree of medical probability, that [the decedent’s] malignant
mesothelioma was caused by asbestos.” [Id. at p. 675.]

We disagree with the trial court’s view that Rutherford mandates that a medical
doctor must expressly link together the evidence of substantial factor
causation. The Rutherford court did not create a requirement that specific words
must be recited by appellant’s expert. (See also also Tortorella v. Castro (2006) 140
Cal.App.4th 1, 12 [No recitation of “specific words or phrases mirroring
statutory language” is necessary to establish causation’”|.)... [Id.] In addition,
appellant presented expert testimony from an epidemiologist suggesting that if
an individual is exposed to many different asbestos-containing products, each of
those products would contribute to an increased risk of asbestos-related
disease, as long as the asbestos was inhaled and retained in the worker’s body.
And finally, appellant presented expert testimony that Mr. Hernandez’s illness
was caused by asbestos to a reasonable degree of medical probability. [Id. at
674-675, emphasis added.] Here, as in Rutherford, appellant set forth evidence
of the decedent’s exposure to respondent’s product, along with testimony
regarding the dust which would become airborne and settle on Mr. Hernandez’s
face and clothing. In addition, appellant presented expert testimony from an
epidemiologist suggesting that if an individual is exposed to many different
asbestos-containing products, each of those products would contribute to an
increased risk of asbestos-related disease, as long as the asbestos was
inhaled and retained in the worker’s body. And finally, appellant presented
expert testimony that Mr. Hernandez’s illness was caused by asbestos to a
reasonable degree of medical probability. Viewing this evidence in appellant’s
favor--as we must--it was sufficient to support a jury’s inference that exposure
to respondent’s product was a substantial factor contributing to the
decedent’s risk of developing mesothelioma. [Id. at 676.]

CAUSATION: IZELL v. UNION CARBIDE CORP.

In, Izell v. Union Carbide Corp. (2014) 231 Cal-App.4th 962, the Court of Appeal again

rejected these same arguments made here from defendants:

Union Carbide contends Plaintiffs’ medical evidence was inadequate to establish

Knjure19349uriaT bet case overview - 2018p 8

PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.legal causation under the Rutherford test. In particular, Union Carbide
emphasizes the following testimony by Plaintiffs’ medical expert, Dr. Eugene
Mark, which it claims improperly conflates a threshold showing of exposure
with proof of legal causation: Question : “If [Mr. Izell] was exposed to asbestos
supplied by Union Carbide that went into some of these various asbestos-
containing joint compounds, would the Union Carbide asbestos have been a
contributing cause of his mesothelioma as well?” Answer : “All of the asbestos
together contributes to cause mesothelioma. The asbestos fibers don’t come into
the body labeled Union Carbide. They come in as asbestos fibers with certain
physical, chemical, and biological principles. And those asbestos fibers, all of
them together in total, contributed to cause this disease.” [Id. at 976.]

Union Carbide asserts the foregoing testimony cannot be squared with
Rutherford’s two-step causation test. Under Dr. Mark’s approach, Union
Carbide argues, “it is only the first step-proof of exposure-that matters, because
every exposure contributes to the overall increase in risk”; thus, “[tJ]he second
step would be wholly unnecessary, since proof of exposure automatically equates
with proof that the exposure constituted a ‘substantial factor.” This argument
does not withstand scrutiny. [Id. at 976.]

To begin, the purported fallacy Union Carbide claims - that the “second step
[of the Rutherford test] would be wholly unnecessary” under Dr. Mark’s
approach - disregards the fact that Dr. Mark’s expert medical testimony is the
evidence that satisfies Rutherford ‘s second step. In other words, proof of
exposure establishes legal causation only if the jury accepts Dr. Mark’s
expert medical testimony that all exposures constitute a substantial factor
contributing to the risk of developing mesothelioma. This is not inconsistent
with Rutherford ‘s two-step causation test. Nothing in Rutherford
precludes a plaintiff from establishing legal causation through opinion
testimony by a competent medical expert to the effect that every exposure to
respirable asbestos contributes to the risk of developing mesothelioma. On
the contrary, Rutherford acknowledges the scientific debate between the
“every exposure” and “insignificant exposure” camps, and recognizes that
the conflict is one for the jury to resolve. (See Rutherford, supra, 16 Cal.4th at
pp. 984, 985 [discussing jury’s resolution of conflict between defense expert
opinion that “a very light or brief exposure could be considered “insignificant or
at least nearly so’” in assessing increased risk of cancer and plaintiffs’ expert’s
contrary opinion that “each exposure, even a relatively small one, contributed
to the occupational ‘dose’ and hence to the risk of cancer”; noting jury
“rejected defendant’s argument that such a small contribution should be
considered insubstantial”].) [Id. at 977.]

In any event, Union Carbide’s argument ignores the distinction Dr. Mark
drew between significant exposures that contributed to Mr. Izell’s risk of
contracting the disease and “trivial exposures” that would not have been
substantial factors increasing his risk. In particular, Dr. Mark testified that
asbestos fibers had to be “respirable and put into the air” and Mr. Izell needed to
have “breathed it in” for the exposure to constitute a “substantial contributing
factor” toward his mesothelioma. In contrast, Dr. Mark testified that if Mr. Izell
had been exposed to asbestos in a “wet slurry” this would be a “trivial exposure,
and I would not be able to say that was a contributing factor.” Contrary to
Union Carbide’s characterization, Dr. Mark did not opine that every
exposure constituted a substantial factor. Rather, he testified that only
those exposures in which the asbestos-containing product was “dry enough
so that asbestos fibers could be released into the air,” and the asbestos

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PLAINTIFF'S TRIAL

IEF REGARDING CASE OVERVIEWVII.

became “airborne” and Mr. Izell “breathed it in” would be significant
enough to contribute to his risk of contracting cancer. [Id. at 977.]

As discussed above, Plaintiffs presented sufficient evidence for the jury to
conclude that Mr. Izell was exposed to Union Carbide asbestos contained in
Hamilton Red Dot joint compound. Mr. Izell testified that he not only saw his
workers apply Hamilton Red Dot in its wet form, but he also watched them sand
the dried product, and inhaled the resulting dust when it became airborne.
Viewed in the light most favorable to the judgment, this evidence, coupled with
Dr. Mark’s expert testimony, is sufficient to establish in reasonable medical

robability that exposure to Union Carbide asbestos was a substantial

actor contributing to Mr. Izell’s risk of contracting mesothelioma.... [Id. at
977-978.]

Similar to the defense expert in Rutherford, Union Carbide’s expert testified that
some asbestos exposures, such as earlier ones, create a greater risk of developing
mesothelioma, while exposure to Union Carbide’s chrysotile asbestos creates no
risk at all. As in Rutherford, the jury here could resolve the conflict between
the competing expert opinions and conclude, based on Dr. Mark’s
testimony, that even a single exposure to respirable asbestos fibers was a
substantial factor in increasing Mr. Izell’s risk of developing mesothelioma.
[Id. at FN 5.]

Indeed, the evidence in this case, including Dr. Mark’s expert medical testimony,
was substantively similar to the evidence presented at trial in Rutherford. In
Rutherford, the plaintiffs’ causation showing included factual evidence of the
decedent’s exposure to the defendant’s product, expert testimony from an
epidemiologist who opined as to the cause of mesothelioma generally, and expert
medical testimony on the relationship between asbestos exposure and lung
cancer. Specifically, the plaintiffs’ medical expert, like Dr. Mark, offered an
opinion “to the effect that each exposure, even a relatively small one,
contributed to the occupational ‘dose’ and hence to the risk of cancer.”
(Rutherford, supra, 16 Cal.4th at p. 984.) The Supreme Court held this
evidence was sufficient for a jury to determine legal causation. [Id. at FN 6.]

CAUSATION: DAVIS v. HONEYWELL INTERNATIONAL, INC.

Most recently, the Appellate Court in Davis v. Honeywell International, Inc. (2016) 245

Cal.App.4th 477, explicitly debunked the defendants’ strawman attack on supposed “each and

every fiber or exposure” opinions, as well as the defendants’ supposed 2.0 relative risk

threshold for epidemiology:

... exposure to even low doses of asbestos contributes to the development of
mesothelioma, an asbestos-related cancer. (See id. at p. 984 [plaintiff's expert
opined “that each exposure, even a relatively small one, contributed to the
occupational ‘dose’ and hence to the risk of cancer,” therefore the plaintiff's
exposure to defendant’s product, even if very small, was a substantial factor in
contributing to the risk of developing cancer].). In the case before us, plaintiff
Nickole Davis presented such expert testimony.... [Id. at p. 480.]

..defendant Honeywell International Inc. (Honeywell) contends that this opinion
testimony - which commonly is referred to as the “every exposure,” “any

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PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.KMinjured 19349 wriadbet ease

exposure,” or “any fiber” theory - should have been excluded under Sargon....
[Id. at p. 480. ]

Having reviewed much of the commentary and scientific literature cited in
support of and against the “every exposure” theory, we conclude the theory is the
subject of legitimate scientific debate. Because in ruling on the admissibility of
expert testimony the trial court “does not resolve scientific controversies”
(Sargon, supra, 55 Cal.4th at p. 772), it is for the jury to resolve the conflict
between the every exposure theory and any competing expert opinions.
(Rutherford, supra, 16 Cal.4th at p. 984 [noting conflicting expert opinions were
presented to jury, and jury rejected defense expert’s testimony that “a very light
or brief exposure could be considered ‘insignificant or at least nearly so”” in
assessing whether the exposure was a substantial factor in contributing to
plaintiff’s risk of developing cancer].) Therefore, we hold the trial court did not
abuse its discretion by allowing plaintiff's medical expert to testify. [Id. at p.
480.]

The other issue presented in this appeal is whether the trial court erred in
refusing to give Honeywell’s proposed supplemental jury instruction based upon
language in Rutherford regarding factors that may be relevant in determining
whether a plaintiffs exposure to a particular asbestos-containing product should
be deemed a substantial factor in causing the cancer at issue. We conclude the
issue of causation was adequately covered by the jury instructions given, and
therefore hold the trial court did not err by refusing to give Honeywell’s
proposed instruction... [Id. at p. 481.]

Honeywell filed a motion in limine to preclude plaintiff from presenting expert
opinion testimony that every exposure to asbestos above background levels
contributed to Davis’s mesothelioma, or that Davis’s exposure to “encapsulated,
short fiber chrysotile asbestos from automotive brake products” contributed to
his disease... [Id. at p. 481.]

Honeywell proposed a special jury instruction: “...[m]Jany factors are relevant in
assessing the medical probability that any alleged asbestos exposure was a
substantial factor in causing an injury. These factors include the type of asbestos,
the nature of the exposure, the frequency of exposure, the regularity of exposure,
the duration of exposure, the proximity of the asbestos-containing product, and
the type of asbestos-containing product.” The trial court refused that instruction,
and instead instructed the jury using CACI No. 435 (Causation for Asbestos-
Related Cancer Claims)... [Id. at p. 485.]

Honeywell contends the judgment must be reversed because (1) the trial court
failed to properly exercise its gatekeeper role and exclude Dr. Strauchen’s expert
opinion testimony that was based upon an “every exposure” theory, and (2) the
trial court erroneously refused to instruct the jury with Honeywell’s proposed
special instruction on causation, which prejudiced Honeywell. [Id. at p. 486.]

In Sargon...[t]he Court observed that...the trial court must “act as a gatekeeper to
exclude expert opinion testimony that is (1) based on matter of a type on which
an expert may not reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or (3) speculative”...”[t]he trial court’s
gatekeeping role does not involve choosing between competing expert opinions.”
(Cd. at p. 772.) Importantly, “[t]he court does not resolve scientific controversies.
Rather, it conducts a ‘circumscribed inquiry’ to “determine whether, as a matter

erview = 2018 pd Ut

PLAINTIFF'S TRIAL

IEF REGARDING CASE OVERVIEWKMinjured 19349 wriadbet ease

of logic, the studies and other information cited by experts adequately support
the conclusion that the expert’s general theory or technique is valid.” The goal of
trial court gatekeeping is simply to exclude ‘clearly invalid and unreliable”
expert opinion...’whether basing testimony upon professional studies or personal
experience’...We conclude the trial court did not abuse its discretion in admitting
the testimony... [Id. at p. 486.]

Even if there is a threshold level of exposure below which there is no likelihood
of developing mesothelioma, it is not illogical to conclude that each exposure -
even a low exposure - when added to other exposures (including other low
exposures) could result in a cumulative exposure that is above the threshold
level, giving rise to the risk of developing mesothelioma...his reasoning is
neither speculative nor illogical... [Id. at p. 487.]

...the gate tended is not a partisan checkpoint. It bars expert opinion only if it
fails to meets the minimum qualifications for admission... The aim, as we have
stated, is not to admit only persuasive expert opinion; it is to exclude only
“clearly invalid and unreliable’ expert opinion,”.... [Id. at p. 492.]

..contrary to Honeywell’s assertion, Rutherford does not require a “dose level
estimation.” Instead, it requires a determination, to a reasonable medical
probability, that the plaintiff's (or decedent’s) exposure to the defendant’s
asbestos-containing product was a substantial factor in contributing to the risk of
developing mesothelioma. (Rutherford, supra, 16 Cal.4th at pp. 976-977.) The
Rutherford court itself acknowledged that a plaintiff may satisfy this requirement
through the presentation of expert witness testimony that “each exposure, even a
relatively small one, contributed to the occupational * ‘dose’ and hence to the risk
of cancer,” (Id. at p. 984.).... [Id. at p. 492-493.]

As additional support for its argument that the “every exposure” theory should
be rejected by this court, Honeywell points to cases from other jurisdictions in
which courts have rejected that theory....We are not convinced. [Id. at p. 493.]

First and foremost, we are bound by our Supreme Court, which issued a clear
statement of a plaintiff's burden in an asbestos-related cancer case - to
demonstrate that the defendant’s product was a substantial factor in contributing
to the plaintiff's aggregate dose of asbestos and hence to the risk of developing
mesothelioma - and affirmed the judgment in favor of the plaintiff where the
plaintiff met her burden through an expert witness who testified that each
exposure to asbestos contributed to the aggregate dose and hence to the risk of
cancer. [Id. at p. 493.]

Second, the standards required by other jurisdictions for establishing causation
differ from those in California. For example, in Texas, “in the absence of direct
proof of causation, establishing causation in fact against a defendant in an
asbestos-related disease case requires scientifically reliable proof that the
plaintiff's exposure to the defendant’s product more than doubled his risk of

contracting the disease.” (Bostic, supra, 439 S.W.3d at p. 350.) There is no such
requirement in California.... [Id. at p. 493.]

.-if (as in this case) the expert testifies that asbestos exposure is cumulative
because the fibers remain in the lungs for a long period of time, it is not illogical
to conclude that each exposure, when added to other exposures, can result ina
cumulative exposure sufficient to cause mesothelioma or other asbestos-related

crview - 2018 wpa 12

PLAINTIFF'S TRIAL

IEF REGARDING CASE OVERVIEWdiseases, and therefore each exposure is a substantial factor in contributing to the
disease.... [Id. at p. 494.]

Honeywell contends the trial court’s refusal to give the proposed instruction was
error, and that Honeywell was prejudiced by that error. We find there was no
error.... [Id. at p. 494,]

.. Honeywell argues the trial court’s refusal to give its proposed instruction was
error because the instruction set forth “the requirement in Rutherford that
causation be decided by taking into account ‘the length, frequency, proximity
and intensity of exposure, the peculiar properties of the individual product, [and]
any other potential causes to which the disease could be attributed.””...But
Rutherford does not require the jury to take these factors into account when
deciding whether a plaintiff's exposure to an asbestos-containing product was a
substantial factor in causing mesothelioma. Instead, those factors are ones that a
medical expert may rely upon in forming his or her expert medical opinion....
[Id. at p. 495.]

Therefore, the [Rutherford] Court instructed that “the jury should be told that the
plaintiff's or decedent’s exposure to a particular product was a substantial factor
in causing or bringing about the disease if in reasonable medical probability it
was a substantial factor contributing to plaintiff's or decedent’s risk of
developing cancer.” (Ibid.) [Id. at p. 496.]

The instructions given to the jury in this case included such an instruction. The
jury was instructed that “[a] substantial factor in causing harm is a factor that a
reasonable person would consider to have contributed to the harm. It does not
have to be the only cause of the harm. Nickole Davis may prove that exposure to
asbestos from Honeywell International Inc.’s product was a substantial factor
causing Sam Davis’ illness by showing, through expert testimony, that there is a
reasonable medical probability that the exposure was a substantial factor
contributing to his risk of developing cancer.” [Id. at p. 496.]

Honeywell’s proposed instruction was unnecessary because it was not directed to
facts that the jury was required to decide. While Honeywell was free to discuss
during its closing argument the factors set forth in its proposed instruction as
factors the jury might consider in assessing the credibility of Dr. Strauchen’s
opinion testimony, instructing the jury on those factors was not required. [Id. at
p. 497.]

Dated: October 1, 2018 BRAYTON*®PURCELL LLP

By: lowe f° fl-— 2.

’ Tapéés P. Nevin
Attorneys for Plaintiffs

KUnjuex193494riaT bt case averview = 2018 wpe 13

PLAINTIFF'S TRIAL BRIEF REGARDING CASE OVERVIEW.EXHIBIT A

Robert Ross
Employer Location Job Title Dates
General Mills Company General Mills Warehouseman 1952-1/1954;
Minneapolis, MN Vallejo, CA 2/1956-6/1956

Job Duties: Plaintiff worked in the feed mill. Plaintiff swept floors. On present information and
belief, with investigations and discovery ongoing, plaintiff and plaintiff's counsel, to whom
questions are posed, are currently unaware if plaintiff was exposed to asbestos during this
employment.

Employer Location Job Title Dates

United States Army Fort Ord, Infantryman 2/9/1954-
Monterey, CA; 1/27/1956
United States Army

Okinawa, Japan

Job Duties: Plaintiff served in the United States Army as an infantryman. Plaintiff served at Fort
Ord, Monterey, California, for 16 weeks, and the remainder of his time in Okinawa, Japan.
Plaintiff performed maneuvers and combat exercises. On present information and belief, with
investigations and discovery ongoing, plaintiff and plaintiff's counsel, to whom questions are
posed, are currently unaware if plaintiff was exposed to asbestos during this employment.

Employer Location Job Title Dates

A.M. Devincenzi Company A.M. Devincenzi Company Truck Driver 8/1956-2/1959;
1598 Carroll Avenue 1598 Carroll Avenue 12/1959-1/1960
San Francisco, CA San Francisco, CA (2 weeks); 9/1960

Job Duties: Plaintiff loaded and unloaded trucks. On present information and belief, with
investigations and discovery ongoing, plaintiff and plaintiff's counsel, to whom questions are
posed, are currently unaware if plaintiff was exposed to asbestos during this employment.

CAUsers pasise\Desktop\Exhibit A-PD (2).wpd 1Employer Location Job Title Dates

San Mateo Junior College San Mateo Junior College Welder 1958-1959
San Mateo, CA San Mateo, CA (Trainee)

Job Duties: Plaintiff attended welding classes. On present information and belief, with
investigations and discovery ongoing, plaintiff and plaintiff's counsel, to whom questions are
posed, are currently unaware if plaintiff was exposed to asbestos during this employment.

Employer Location Job Title Dates

Philip Carey Corp Warehouse Warehouseman 2/1959-8/1959;

Cincinnati, OH 101 Williams 12/1959-1/1960
San Francisco, CA (1 week)

Jack Tar Hotel

(aka Cathedral Hill Hotel)
1101 Van Ness

San Francisco, CA

Job Duties: Plaintiff unloaded boxcars full of asbestos-containing products. Plaintiff swept
floors and delivered asbestos-containing materials to jobsites. Plaintiff recalls unloading and
delivering the following asbestos-containing products: PHILIP CAREY (RAPID-AMERICAN
CORPORATION), JOHNS-MANVILLE (MANVILLE TRUST), KAYLO (OWENS CORNING
FIBERGLAS), and UNIBESTOS (UNARCO) block insulation. Plaintiff recalls unloading and
delivering the f