Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                GILBERT L. PURCELL, ESQ., S.B. #113603
JAMES P. NEVIN, ESQ.., S.B. #220816

2) jnevin@braytonlaw.com
BRAYTON®PURCELL LLP ELECTRONICALLY
3) Attorneys at Law FILED
a] bo Boroieo ee Sugar Cour of Caton
_|| Novato, California 94948 10/01/2018
5]f (415) 898-1555 Lo; of 42 Court
BY: VANESSA WU
6 || Attorneys for Plaintiffs Deputy Clerk
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11]| ROBERT ROSS and JEAN ROSS, ) ASBESTOS
) No. CGC-10-275731
12 Plaintiffs, )
a zg ) PLAINTIFFS’ MOTION JN LIMINE RE:
z 13 }] vs. ) | EXAMINATION OF EXPERT
g ) WITNESSES REGARDING “BUT FOR”
a <2 14] C.C. MOORE & CO. ENGINEERS; ) | PROXIMATE CAUSE
& Defendants as Reflected on Exhibit | )
$: 15 ]] attached to the Summary Complaint )
z herein; and DOES 1-8500. ) Trial Date: October 1, 2018
SEZ ¢ 16 Dept.: 613, Hon. Angela Bradstreet
eta 2
2° 3 17
18 Defendants should be precluded from asking questions or eliciting answers intentionally

19 || designed to improperly suggest to the jury that its product(s) and/or conduct on “its own” was
20 || insufficient to cause the asbestos-related disease at issue. Such questioning would be a thinly
21]| disguised attempt to confuse and mislead the jury into applying an improper “but for” or

22|| “proximate cause” test for causation, in direct violation of Rutherford v. Owens Illinois, Inc.

23 || (1997) 16 Cal.4th 953, 954, and subsequent case law. As such, the questioning and testimony is
24 || irrelevant, misleading and prejudicial, and should be precluded under Evidence Code Section

25 || 350 and 352. Plaintiffs request an order and admonition to defense counsel to refrain from such
26 || examination, and to otherwise prohibit reference to a standard of causation other than that

27 | proscribed by California law.

284) ///

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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE,Plaintiffs do not contest the propriety of establishing through expert testimony notions
of overall risk for contracting a given asbestos-related disease, or calculations as they relate to a
given defendants’ participation in the aggregate dose as it relates to Proposition 51 allocation of
fault and determination of cause under the substantial factor test enumerated in CACI 435 and
CACTI 406, and California case law.

Rather, plaintiffs take issue with defendants’ attempts to inject improper questioning
and eliciting inappropriate opinions from expert witnesses couched in terms of “but for”
proximate cause, rather than substantial factor as the standard of legal causation.

Although it is virtually impossible to apprise this Court of each and every potential
question designed to focus the jury on a “but for” or proximate cause standard of causation,
nonetheless, plaintiffs submit that the following illustrative questions are clearly improper
as will be discussed, infra:

1. Doctor, was Mr. X’s exposure to asbestos, excluding that attributable to my client, sufficient
to have caused his asbestos-related disease?

2. Doctor, focusing on the exposure to my client’s product(s) or activities, was that sufficient
on its own to have caused plaintiffs asbestos-related disease?

3. If plaintiff had never been exposed to my client’s product(s) or activities, would he have still
been exposed to a dose of asbestos sufficient to cause his disease?

4. Doctor, based on your testing and/or research would you expect a person exposed solely to a
quantity of asbestos, such as that associated with my client’s product(s) or activities, to contract
an asbestos-related disease? : :

5. Can you state to a reasonable degree of medical/scientific certainty that my client’s product(s)
or activities on its own caused this man’s disease?

6. If my client’s product(s) or activities were Mr. X’s only exposure to asbestos, would he have
contracted an asbestos-related disease?

To be absolutely clear, plaintiffs request that this Court order defense counsel to refrain
from posing any of the aforementioned questions and/or any variation thereof designed to instill
in the jurors’ minds that plaintiffs must prove that the defendants’ product(s) or activities were
the “but for” proximate cause of the asbestos-related disease.

The “but for” test of cause in fact, which states that a defendants’ conduct is a cause of
an injury if the injury would not have occurred “but for” that conduct, has been expressly
rejected by the California Supreme Court. Mitchell v. Gonzales, (1991) 54 Cal.3d 1041. The
reason for abandoning the “but for” rule is that it improperly leads jurors to focus on

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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE,cause that is spatially or temporally closest to harm. Id., 54 Cal.3d at 1052.

The “but for” test for cause in fact determinations has been subsumed, and replaced, by
the “substantial factor” test. The “substantial factor” test is a clearer rule of causation which
addresses situations such as concurrent causes. In setting forth the mandatory Rutherford
standard in asbestos cases, the Supreme Court essentially prohibited evidence designed to parse
out a given defendants’ participation from the aggregate dose and focus a jury on whether such
participation was sufficient on its own to have caused the asbestos-related disease.

Asbestos defendants typically attempt to distort and mischaracterize the well-established

California law on asbestos causation. Rutherford, Jones v. John Crane, Inc. (2005) 132

Cal.App.4th 990, Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, CACI 431, and

CACTI 435 (and alternatively BAJI 3.76, 3.77, and 3.78) represent the applicable law. Despite
being repeatedly informed of this by trial courts, courts of appeal and the Judicial Council,
defendants continue to spuriously argue that, to be substantial, the exposure to asbestos
attributable to them must be large or over a certain threshold. However, established California
case law, California jury instructions, all scientists who are specialists in asbestos and do not
work for asbestos defendants, every relevant United States governmental regulatory body, every
global health organization, and, in fact, most countries, agree that the total dose of asbestos a
person is exposed to is what caused his/her asbestos-related disease.

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. As stated in Rutherford:

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 (footnote omitted). ]
lif

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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE,The Rutherford court went on to direct:

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 contributed to the plaintiff 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) remain correct in this
context and should also be given. [Id. at 982-983 (footnote omitted).]

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:
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 (emphasis added).]
Further, the Rutherford court, after setting out the substantial factor standard, specifically stated:
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 of malignancy. [Id. at 958 (emphasis
added).]
Plaintiffs will meet this burden under Rutherford by proving that the exposures to/from the
defendants’ asbestos-containing products/conduct were substantial factors in reasonable
medical probability in contributing to the aggregate dose of asbestos inhaled — precisely as
required by Rutherford. Plaintiffs will demonstrate that exposure to the defendants’
asbestos-containing products was a “substantial factor” in contributing to the aggregate dose of
asbestos inhaled and thus to the risk of developing asbestos-related disease — a disease which is
cumulative in nature.
The Supreme Court in its decision in Rutherford warned of defendants’ efforts to twist
the meaning of the word ‘substantial’:
Undue emphasis should not be placed on the term ‘substantial.’ For example, the
subsiantial 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 5th 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) [Id. at 969.] (Emphasis added.)
lif

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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE,While a “trivial” exposure cannot be considered “substantial” for the purposes of
Rutherford, an exposure does not become “trivial” merely because it is small or another
exposure is greater. The law recognizes that there are different degrees of responsibility. That
is why California adopted the doctrine of comparative negligence. (See Li v. Yellow Cab
(1975) 13 Cal.3d 804.)

In Hernandez, the Court of Appeal rejected the same assertions about causation from
Amcord that defendants make here in our case. Amcord argued, as do our defendants, that its
asbestos product/exposure 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 this assertion, and in addition to repeating the language of Rutherford,
the Hernandez court held, “notably, the Rutherford court made no distinction between general
causation and specific causation.” (1d. at 670, fn 4.) The court further held:

.. appellant set forth sufficient evidence of causation in this matter: ...some threshold

exposure to Riverside gun plastic cement; and .....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. ....in reasonable medical

probability it was a substantial factor contributing to Mr. Hernandez's risk of developing
cancer. (Rutherford, supra)...

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... 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."

...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...

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."

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 Tortorella v. Castro (2006) 140 Cal.App.4th 1, 12 [""No

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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE,recitation of "specific words or phrases mirroring statutory language" is necessary to
establish causation" ].)...

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.) Hernandez directly rebuts defendants’ assertion that plaintiffs
must somehow show that a specific quantified amount of a particular defendant’s particular type
of asbestos was sufficient to cause disease. Hernandez and Rutherford are in exact accord with
plaintiffs’ position: For someone who gets a clinical asbestos-related disease, accounting
for minimum latency, for biologic response to obtain all prior exposures that comprise
that person’s (not anyone else’s) total dose is what caused that response in him or her.
And, as Hernandez explains:
It is then up to the jury to determine whether that testimony is persuasive and, if so, to
what extent this defendant's product, rather than the other asbestos-containing products
to which the plaintiff (or decedent) was exposed, was a factor contributing to the
disease. There need not be testimony specifically linking the defendant's product in

isolation to the plaintiff's increased risk of developing cancer. (Id. 674-675.)
Dated: October 1, 2018 BRAYTON*’PURCELL LLP

By: /s/ James P. Nevin
James P. Nevin
Attorneys for Plaintiffs

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PLAINTIFFS’ MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE,om NDA HW PB WY

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PROOF OF SERVICE BY FILE & SERVEXPRESS

I am employed in the County of Marin, State of California. I am over the age of 18
ears and am not a party to the within action. My business address is 222 Rush Landing Road,
.O. Box 6169, Novato, California, 94948-6169.

On October 1, 2018, I electronically served (E-Service) the following-documents:

PLAINTIFF’S MOTION IN LIMINE RE: EXAMINATION OF EXPERT WITNESSES
REGARDING “BUT FOR” PROXIMATE CAUSE

on the interested parties in this action by causing File & ServeXpress E-service program to
transmit a true copy thereof to the following party(ies):

ASSOCIATED INSULATION OF CALIFORNIA
Selman Breitman, LLP - San Francisco Office

33 New Montgomery, 6" Floor

San Francisco, CA 94105

The above document was transmitted by File & ServeXpress E-Service and the
transmission was reported as complete and without error.

Executed on October 1, 2018, at Novato, California.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

AoteLuolh

AngelgPorterfie:

Robert Ross and Jean Ross v. C.C. Moore & Co. Engineers, et al.
San Francisco County Superior Court Case No. CGC-10-275731

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PLAINTIFFS’ MOTION JN LIMINE RE: EXAMINATION OF EXPERT WITNESSES REGARDING “BUT FOR” PROXIMATE CAUSE