Preview
28
MCKENNA LONG &
Atpripcs LLP
ATTORNEYS AT Law
SAN FRANCISCO.
LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO. 252777) ELECTRONICALLY
MCKENNA LONG & ALDRIDGE LLP FILED
101 California Street Superior Court of California,
41st Floor County of San Francisco
San Francisco, CA 94111
Telephone: (415) 267-4000 APR A 3 2010
Facsimile: (415) 267-4198 eer of the court
Deputy Clerk
Attorneys for Defendant
METALCLAD INSULATION CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and Case No. CGC-09-275212
NORMAN JUELCH, SR.,
DECLARATION OF ALECIA E. COTTON IN
SUPPORT OF DEFENDANT’S MOTION IN LIMINE
To EXCLUDE TESTIMONY OF PLAINTIFFS’
Plaintiffs, EXPERT KENNETH COHEN (MIL 32]
¥. TRIAL DATE: APRIL 5, 20106
Depr.: 604
ASBESTOS DEFENDANTS, (BP), et al., JUDGE: HONORABLE MARLA F, MILLER
Defendants.
1, ALecia E, Cotton, declare as follows:
1. 1am a member of the State Bar of California and an attorney with MCKENNA
LONG & ALDRIDGE LLP, counsel of record for Defendant in the above action. I have personal
knowledge of the facts set forth in this declaration and, if called as a witness, could and would
testify competently to such facts under oath.
2. Atiached hereto as Exhibit “A” is a true and correct copy of the deposition
wanscript of Kenneth Cohen taken in Denton and Joyce Crull v. A.W. Chesterton Company, et al.
-5.
DECLARATION OF ALECIA E. COTTON IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE 10 EXCLUDE TESTIMONY OF PLAINTIEFS”
EXPERT KENNETH COHEN [MIL 32]
SF 27418582.1NY DU & WwW NH
28
MCKENNA LONG &
Arprioce LLP
ATTORNEYS AT LAW
SAN FRANCISCO
3. Attached hereto as Exhibit “B” is a true and correct copy of the deposition
transcript of Kenneth Cohen (erroneously captioned “Richard Cohen”), dated November 26, 2008
in Herbert Moreno and Lauthell Moreno v. Advocate Mines Limited, et al.
I declare under penalty of perjury under the laws of the State of falifomia that the
foregoing is true and correct and that this declaration was executed on A dus g 6 , 2010, at San
Francisco, California.
| | (eva C lt
ALECIA E, COTTON
-6-
DECLARATION OF ALECIA E COTTON IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS
EXPERT KENNETH COHEN [MIL 32]
‘SF.27418582.1Exhibit A0060
1
2
3
4
5
1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA
COURT OF UNLIMITED JURISDICTION
DENTON E. CRULL and JOYCE A. )
CRULL, )
6
7
8
9
10
21
22
23
25
)
)
Plaintiffs, }
)
vs. ) Case No. RG 08404667
)
A.W. CHESTERTON COMPANY, et al.)
)
)
Defendants. —)
VOLUME 1
TELEPHONIC DEPOSITION OF KENNETH COHEN, Ph.D.
Tuesday, February 10, 2009
Reported by:
SARAH F. FOSS
CSR No. 9559
24
JOB No.
58229HAN
Cruill, D - Cohen, K 2/10/09 VI
Page 100002
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF ALAMEDA
3 COURT OF UNLIMITED JURISDICTION
4
5 DENTON E. CRULL and JOYCE A. )
CRULL, )
6 )
)
7 Plaintiffs, )
>
8 vs. ) Case No. RG 08404667
)
9 A.W. CHESTERTON COMPANY, et al.,)
)
10 )
Defendants. )
1S Telephonic Deposition of KENNETH COHEN, Ph.D.,
16 VOLUME I, taken on behalf of Defendants commencing at
17 9:36 a.m., Tuesday, February 10, 2009, before Sarah F.
18 Foss, CSR Number 9559, a Certified Shorthand Reporter in
19 and for the County of San Bernardino, State of
20 California.
21
22
23
24
25
Crull, D - Cohen, K 2/10/09 V1
Page 200003
| TELEPHONIC APPEARANCES:
2
3
4
w
FOR PLAINTIFFS:
PAUL & HANLEY, L.L.P.
BY: JON NEUMANN, ESQ.
1608 Fourth Street, Suite 300
Berkeley, California 94710
{510} 559-9980
FOR DEFENDANT M. SLAYEN & ASSOCIATES, INC.;
BECHERER, KANNETT & SCHWEITZER
BY: PATRICK BECHERER, ESQ.
1255 Powell Street
Emeryville, California 94608
(510) 658-3600
FOR DEFENDANT MINNESOTA MINING & MANUFACTURING CO,:
BLACKWELL, BURKE P.A.
BY: JERRY W. BLACKWELL, ESQ.
431 South 7th Street, Suite 2500
Minneapolis, Minnesota 55415
(612) 343-3200
FOR DEFENDANT PLANT INSULATION COMPANY:
BURNHAM BROWN
BY: JANE ACEITUNO, ESQ.
1901 Harrison Street, Eleventh Floor
Oakland, California 94612
(510) 444-6800
FOR DEFENDANT WARREN PUMPS, LLC:
CARROLL, BURDICK & MC DONOUGH, L.L.P.
BY: JAMES CUNNINGHAM, ESQ.
44 Montgomery Suet, Suite 400
San Francisco, California 94104
{415) 989-5900
Crult, D - Cohen, K 2/10/09 V1 Page 300004
| TELEPHONIC APPEARANCES: (CONTINUED)
2
3. FOR DEFENDANT FRYER-KNOWLES, INC., A CALIFORNIA
CORPORATION:
4
CONNOR & BISHOP
5 BY: CHARLES BISHOP, ESQ.
120 Montgomery Street, Suite 1350
6 San Francisco, California 94104-4316
(415) 434-3006
FOR DEFENDANT A.W. CHESTERTON COMPANY:
COOLEY, MANION, JONES, HAKE & KUROWSKL, L.LP.
9 BY: WILLIAM HAKE, ESQ.
201 Spear Street, Suite 1800
10 San Francisco, California 94105
(415) 512-4381
FOR DEFENDANT GOULD'S PUMP, INC.:
CROSBY & ROWELL
13 BY: AMY KIMMEL, ESQ.
299 Third Street, Second Floor
14 Oakland, California 94607
{510) 267-0300
FOR DEFENDANTS INGERSOLL-RAND COMPANY, and LESLIE
16 CONTROLS, INC.:
17 GORDON & REES, L.L.P.
BY: CHRISTOPHER STRUNK, ESQ.
18 Embarcadero Center West, Suite 2000
275 Battery Street
19 San Francisco, California 94111
(415) 986-5900
FOR DEFENDANTS IMO INDUSTRIES, INC., and EATON
21. ELECTRICAL, INC.:
22 HOWARD, ROME, MARTIN & RIDLEY, LLP.
BY: SEAN RIDLEY, ESQ.
23 1775 Woodside Road, Suite 200
Redwood City, California 94061-3436
24 (650) 365-7715
Cruil, D - Cohen, K 2/10/09 V1 Page 400005
1 TELEPHONIC APPEARANCES: (CONTINUED)
2
3 FOR DEFENDANTS BUFFALO PUMPS, INC., BWIP,
INCORPORATED, and DURAMETALLIC:
4
JACKSON & WALLACE, L.L.P.
5 BY: JULIE TORRES, ESQ.
55 Francisco Street, Sixth Floor
6 San Francisco, California 94133
(415) 982-6300
FOR DEFENDANTS CRANE CO., and SQUARE D:
K&L GATES, L.LP.
9 BY: BRENDAN TUORY, ESQ.
55 Second Street, Suite 1700
10 San Francisco, California 94105-3493
(415) 882-8200
FOR DEFENDANTS VELAN VALVE CORPORATION, and
12 METALCLAD INSULATION CORPORATION:
13 MC KENNA, LONG & ALDRIDGE, L.L.P.
BY: THOMAS POESCHL, ESQ.
14 101 California Sweet, Forty-First Floor
San Francisco, California 94111
15 (415) 267-4000
16 FOR DEFENDANT YARWAY CORPORATION:
17 MORGAN, LEWIS & BOCKIUS, L.L.P.
BY. MORTON HARTWELL, ESQ.
18 One Market, Spear Street Tower
San Francisco, California 94105
19 {415} 442-1000
20 FOR DEFENDANTS FRASER’S BOILER SERVICE, INC., and
ASTRA FLOORING COMPANY:
POND NORTH, L.L.P.
22 BY: GAVIN WHITIS, ESQ.
505 Montgomery Street, Thirteenth Floor
23 San Francisco, California 94111-2585
(415) 217-1240
24
28
Crull, D - Cohen, K 2/10/09 V1 Page 500006
| TELEPHONIC APPEARANCES: (CONTINUED)
2
3 FOR DEFENDANTS ITT CORPORATION, fka ITT INDUSTRIES,
INC.; SYD CARPENTER MARINE CONTRACTOR, INC.; and
4° TRIPLE A MACHINE SHOP, INC.:
5 PRINDLE, DECKER & AMARO, L.L.P.
BY: ROBERT BARONIAN, ESQ.
6 369 Pine Street, Suite 800
San Francisco, California 94104
7 (415) 788-8354
& FOR DEFENDANTS KENTILE FLOORS, INC., and NELSON
MARINE PRODUCTS:
SELMAN BREITMAN, L.LP.
10 BY: CRAIG MAKI, ESQ.
33 New Montgomery, Sixth Floor
W San Francisco, California 94105
(415) 979-0400
FOR DEFENDANT FEDERAL-MOGUL ASBESTOS PERSONAL INJURY
13. TRUST, AS SUCCESSOR TO FELT PRODUCTS MANUFACTURING
COMPANY:
SINUNU BRUNI, L.L.P,
15 BY: CHRIS BRUNI, ESQ.
333 Pine Street, Suite 400
16 San Francisco, California 94104
(415) 362-9700
FOR DEFENDANT ROCKWELL AUTOMATION, INC.:
TUCKER, ELLIS & WEST, L.L.P.
19 BY: NICOLE E. GAGE, ESQ.
135 Main Street, Suite 700
20 San Francisco, California 94105
(415) 617-2400
FOR DEFENDANT HILL BROTHERS CHEMICAL COMPANY:
VASQUEZ, ESTRADA & DUMONT, L.L.P.
23 BY: LOUIS BARELLA, ESQ,
1000 Fourth Street
24 Courthouse Square - Suite 700
San Rafael, California 94901
25 (415) 453-0555
Crall, D - Cohen, K 2/16/09 V1 Page 600028
1 Ihave not tested any products since June of 2003 when I
2 voluntarily resigned my certification in industrial
3 hygiene.
4 Q Do you have an estimate for the exposure level
5 regarding —- quantitative exposure level likely received
6 from any particular activity involving electrical
7 motor-control products?
8 OA Yes,
9 Q What is that?
10 A_ I would consider that it would be a significant
1) or substantial exposure assuming the fact that the
12 electrical component was asbestos containing.
13 Q Can you tell me what activity would have caused
14 that release?
15. A Maintenance of the arc chute, maintenance
16 during mounting or demounting of the device ona
17 Bakelite panel, any of those activities, scraping, or
18 inadvertent cutting of the Bakelite material due to
19 slippage of a screwdriver or other electrical tool.
20 When you say there would be si itor
21 lantial exposure, can you tell me it you mean by
22 that?
23. A Certainly.
24 A significant or substantia) first of
25 all, is based upon the carcinogenicity of asbestos, and
Crull, D - Cohen, K 2/10/09 V1: 28:20 - 29:700029
1 it would be a level quantitatively in excess of ambient
2 for the time period and geographic location and would
3 give rise to concern on the part of a competent
4 industri:
ist for the an individual in
5 that exposure environment and would more likely than not
6 elevate the risk of developing an asbestos related
7 disease,
8 UNIDENTIFIED SPEAKER: Madam Court Reporter,
9 may that | have read back, please.
10 (The record was read as follows:
i “A A significant or substantial exposure,
12 first of all, is based upon the carcinogenicity
13 of asbestos, and it would be a level
4 quantitatively in excess of ambient for the
1s time period and geographic location and would
16 Bive rise to concer on the part of a competent
17 industrial hygienist for the health of an
18 individual in that exposure environment and
19 would more likely than not elevate the risk of
20 developing an asbestos related disease.”)
21 BY MS. GAGE:
22° Q Are you aware that Mr, Crull served aboard the
23 Buchanan, the U.S.S, Buchanan between 1969 and 1975?
24 A Give mea second.
25 MR. NEUMANN: Objection. Misstates evidence.
Crull, D - Cohen, K 2/10/09 V1: 28:20 - 29:700086
1 REPORTER'S CERTIFICATE
4 |, Sarah F. Foss, CSR NO. 9559, a Certified
5. Shorthand Reporter in and for the State of California,
6 do hereby certify:
7 That prior to being examined the witness named
8 in the foregoing proceedings was by me duly sworn to
% testify to the truth, the whole truth, and nothing but
10 the truth;
W That said proceedings were taken by me in
12 shorthand at the time and place herein named and was
13. thereafter transcribed into typewriting under my
14 direction, said transcript being a true and correct
13 transcription of my shorthand notes.
16 1 further certify that [ have no interest in
17 the outcome of this action,
18
Sarah F. Foss
24 CSR No. 9559
25
Crull, D - Cohen, K 2/10/09 V1 Page 86Exhibit B00001
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 CITY AND COUNTY OF SAN FRANCISCO
3 UNLIMITED JURISDICTION
4 HERBERT MORENO and LAUTHELL )
5 MORENO, d
6 Plaintiffs, )
7 vs. JNo. 274701
8 ADVOCATE MINES, LTD, )
9 Defendant. )
1S TELEPHONIC DEPOSITION OF KENNETH COHEN
16 San Francisco, California
17 Wednesday, November 26, 2008
18
19
20
ai
22
23 REPORTED BY:
24 JAY W. HARBIDGE
25 CSR NO. 4090
Moreno, H - Cohen, K 11/26/08
Page 100002
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 CITY AND COUNTY OF SAN FRANCISCO
3 HERBERT MORENO and LAUTHELL )
4 MORENO, )
5 Plaintiffs, )
6 vs. ) No. 274701
7 ADVOCATE MINES, LTD, )
& Defendant. )
i Deposition of KENNETH COHEN, taken
12 telephonically on behalf of Defendant
13 beginning at 10:35 a.m. and ending at
14 12:25 p.m., on Wednesday, November 26,
15 2008, before Jay W. Harbidge, CSR No.
16 4090.
Moreno, H - Cohen, K 11/26/08 Page 200003
1 APPEARANCES
4 FOR PLAINTIFF:
5 PAUL & HANLEY, LLP
6 BY: CAROLE M. BOSCH, ATTORNEY AT LAW
7 1608 Fourth Street
8 Berkeley, California 94710
9 Tel: 800.933.2244
10 Fax: 510.559.9970
i cbosch@paulandhanley.com
15 FOR DEFENDANTS 8.R. FUNSTEN & CO. and MTD
16 HOLDINGS and TECUMSEH PRODUCTS, INC.:
17 MCKENNA, LONG & ALDRIDGE
18 BY: SHEILA O'GARE, ATTORNEY AT LAW
19 101 California Street, 41st Floor
20 San Francisco, California 94111
21 Tel: 415.267.4000
22 Fax: 415.267.4198
23 sogare@mckennalong.com
Moreno, H - Cohen, K 11/26/08 Page 300004
1 APPEARANCES
4 FOR DEFENDANT MAYTAG CORPORATION:
5 ADAMS, NYE, TRAPANI, BECHT, LLP
6 BY: GEORGES A. HADDAD, ATTORNEY AT LAW
7 222 Keamey Street, 7th Floor
8 San Francisco, California 94106-4521
9 Tel: 415.982.8955
10 Fax: 415.982.2042
Y ghaddad@adamsney.com
12
3
14
15 FOR DEFENDANT DANA CORPORATION:
16 BRYDON, HUGO & PARKER
7 BY: RANDALL K. BERNARD, ATTORNEY AT LAW
18 135 Main Street, 20th Floor
19 San Francisco, California 94105
20 Tel: 415.808.0300
21 Fax: 415.808.0333
22 rbernard@bhplaw.com
23
24
Moreno, H - Cohen, K 11/26/08
Page 400005
1 APPEARANCES
4 FOR DEFENDANT BRIGGS & STRATTON CORPORATION:
5 DRYDEN, MARGOLES, SCHIMANECK & WERTZ,
6 BY: ROGER A, AGEN, ATTORNEY AT LAW
7 305 Sansome Street, 6th Floor
8 San Francisco, Califomia 94111
9 Tel: 415.362.6715
10 Fax: 415.362.0638
YW taagen@drydenlaw.com
15. FOR DEFENDANT THE TORO COMPANY:
16 KRIEG, KELLER, SLOAN, REILLEY & ROMAN
7 BY: MARY E. REILLEY, ATTORNEY AT LAW
18 114 Sansome Street, Suite 400
19 San Francisco, California 94101-3898
20 Tel: 415.249.8330
21 Fax: 415.249.8333
22 mreilley@kkstr.com
23
24
25
Moreno, H - Cohen, K 11/26/08 Page 500006
APPEARANCES
4 FOR DEFENDANT ADVOCATE MINES LIMITED :
LEWIS, BRISBOIS, BISGAARD & SMITH, LLP
BY: KENNETH GOLDEN, ATTORNEY AT LAW
22} North Figueroa Street, Suite 1200
Los Angeles, California 90012
Tel: 213.256.1800
Fax: 213.250.7900
sgolden@lbhslaw.com
15 FOR DEFENDANT CAMPBELL HAUSFELD and
16 SCOTT FETZER COMPANY:
SEDGWICK, DETERT, MORAN & ARNOLD, LLP
BY: KATHERINE P, GARDINER,
ATTORNEY AT LAW
One Market Plaza,
Steuart Tower, 8th Floor
San Francisco, California 94105
Tel: 415.627.1404
Fax: 415.781.2635
katherine.gardiner@sdma.com
Moreno, H - Cohen, K 11/26/08
Page 600007
] APPEARANCES
4 FOR DEFENDANT BONDEX INTERNATIONAL, INC.:
5 WALSWORTH, FRANKLIN, BEVINS & McCALL
6 BY: THOMAS J. TARKOFF and
7 PAMELA RICHARDSON, ATTORNEYS AT LAW
& 601 Montgomery Street, 9th Floor
9 San Francisco, California 94104-1034
10 Tel: 415.781.7072
i Fax: 415.391.6258
12 ttarkoff@wfbm.com
13
4
15 FOR DEFENDANT CHRYSLER, LLP:
16 NIXON PEABODY
7 BY: JAMES J. OSTERTAG, ATTORNEY AT LAW
18 One Embarcadero Center, Suite 1800
19 San Francisco, California 94111
20 ‘Fel: 415.984.8381
21 Fax: 415.984.8300
22 jostertag@nixonpeabody.com
3
24
25
Moreno, H - Cohen, K 11/26/08 Page 700040
1 Q. Do you have any specific information
2 that any Campbell Hausfeld air compressors contained
3 any asbestos-containing gaskets or components at any
4 time?
5 A. don't know. I have no information.
6 ._Is it your opinion th: eve’
7 exposure Mr. Moreno had in bis lifetime to asbestos,
8 however slight, was a substantial factor in causing
9 his disease?
19 A. More likely than not, yes,
Q._Aad Is it your belief that every
12 exposure above ambient levels is a substantial
13 factor within a reasonable depree of medical
14 certainty or scientific certainty?
13 A a tw! be my conclusion.
16 MS. BOSCH: Compound.
17 BY MS. GARDINER:
18 Q. Now, when we say “above ambient,” can
19 you tell me what concentration of asbestos that
20 would mean?
21 A. Its time and geographic specific.
22 Q. Okay. And is the 1969 to 99 time
23 period, if we limited it to that time period, can
24 you tell me what "above ambient" levels would mean?
25 A. It's too broad a time period,
Moreno, H - Cohen, K 11/26/08: 40:6-1500041
1 Q. Okay. How would you break it down
2 during the '69 to '99 time period?
3 A. From the '60s, the ambient level more
4 likely than not would range between .001 and .009.
5 In each subsequent decade of the '70s, ‘80s and
6 ‘90s, it diminished by an order of magnitude.
7 Q. Sol'm sure I understand, does that mean
8 in the 1970s "ambient" ranged between .0001 and
9 .00097
10 A. That's correct.
MW Q. Allright. So then it would be your
12 opinion within a reasonable degree of scientific
13 certainty that each and every expdsure to asbestos
14 that Mr. Moreno had in the 1970s above .000! to
15 .0009 fibers per cc would constitute a substantial
16 factor in causing his asbestos-related disease?
17 A. You may be going beyond the scope for
een designated. If you're seeki
19 causation or medical testimony, I can't give it to
20 you. But that would be my conclusion from an
rial hygiene perspective, yes,
22 Q. Okay. Other than gaskets and friction
23 components of lawn and garden tractors, any gasket
24 components that may have been in any air compressors
25 that Mr. Moreno may have worked on and the joint
Moreno, H - Cohen, K 11/26/08: 40:6-1500056
| per his own testimony.
2 In your opinion, was that exposure in and
3 of itself sufficient to cause his mesothelioma?
4 MS. BOSCH: Asked and answered.
$s THE WITNESS: 1 believe that goes beyond
6 the scope of what I have been designated to testify
7 in this case. But from an industrial hygiene
8 perspective, I would consider that Johns-Manville
9 would be a contributing factor to his development of
10 mesothelioma.
i Q. So “contributing,” that means you would
12 not say in and of itself it would be the sole cause
13 of his mesothelioma; is that correct?
14 A. {don't know if it would be the sole
15 cause.
16 Q. Well, let's not limit itto Mr. Moreno,
17 then. [f someone. just worked at a Johns-Manville
18 plant for ten years doing the type of work that
19 Mr. Moreno did, do you believe that type of
20 exposure, in and of itself, would be sufficient to
21 be the sole cause of a person's mesothelioma?
22 A. Idon't know.
23 Q. You've used the word "substantial." How
24 do you define "substantial"?
25 A. _A level in excess of ambient for which a
Moreno, H - Cohen, K 11/26/08: 40:6-1500057
| competent industrial hygienist would be concerned
2 for the health of aa individual in that environment
3 and that would more likely than not increase that
4 individual's risk of developing an asbestos-related
5 disease,
6 Q. And clearly by your definition, his
7 work, Mr. Moreno's work at Johns-Manville, would
8 qualify as a substantial exposure, correct?
9 A. Absolutely.
16 Q. Have you ever given testimony in any
11 case that exposure to friction materials was
12 insufficient to have been a substantial factor ina
"13 person developing mesothelioma.
4 A. Prior to the year 2000, | had testified
15 that dust from back plates was insufficient to cause
16 an increased risk of developing an asbestos-related
17 disease. After the year 2000, after a new review of
18 the literature, I changed my opinions.
19 BY MS. O'GARE:
20 Q. What caused you to change your opinion?
2I A. Arereview of the literature.
22 Q. Okay. I'm going to ask you about the
23 literature, but did you do any independent testing
24 that caused you to change your opinion after 20007
25 A. Testing that 1 performed prior to 2000
Moreno, H - Cohen, K 1] 1/26/08: 40:6-1500090
1 State of California )
2 City and County of San Francisco }
3
4 1, JAY W. HARBIDGE, hereby certify that
5 the witness in the foregoing deposition was by me
6 duly sworn to testify te the truth, the whole truth
7 and nothing but the truth, in the within entitled
8 cause; that said deposition was taken at the time
9 and place herein named; that the deposition is a
10 tue record of the witness’ testimony as reported to
1] the best of my ability by me, a duly Certified
12 Shorthand Reporter and disinterested person, and was
13 thereafter transcribed under my direction into
14 typewriting by computer; that the wimess was given
15. an opportunity to read, correct and sign the
16 deposition.
7 | further certify that 1 am not
18 interested in the outcome of said action nor
19 connected with nor related to any of the parties in
20 said action nor to their respective counsel,
21
22
24 JAY W. HARBIDGE, CSR
Moreno, H - Cohen, K 11/26/08
Page 90
Preview
28 MCKENNA LONG & Atpripcs LLP ATTORNEYS AT Law SAN FRANCISCO. LISA L. OBERG (BAR NO. 120139) DANIEL B. HOYE (BAR NO. 139683) ALECIA E. COTTON (BAR NO. 252777) ELECTRONICALLY MCKENNA LONG & ALDRIDGE LLP FILED 101 California Street Superior Court of California, 41st Floor County of San Francisco San Francisco, CA 94111 Telephone: (415) 267-4000 APR A 3 2010 Facsimile: (415) 267-4198 eer of the court Deputy Clerk Attorneys for Defendant METALCLAD INSULATION CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE JUELCH and Case No. CGC-09-275212 NORMAN JUELCH, SR., DECLARATION OF ALECIA E. COTTON IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE To EXCLUDE TESTIMONY OF PLAINTIFFS’ Plaintiffs, EXPERT KENNETH COHEN (MIL 32] ¥. TRIAL DATE: APRIL 5, 20106 Depr.: 604 ASBESTOS DEFENDANTS, (BP), et al., JUDGE: HONORABLE MARLA F, MILLER Defendants. 1, ALecia E, Cotton, declare as follows: 1. 1am a member of the State Bar of California and an attorney with MCKENNA LONG & ALDRIDGE LLP, counsel of record for Defendant in the above action. I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. Atiached hereto as Exhibit “A” is a true and correct copy of the deposition wanscript of Kenneth Cohen taken in Denton and Joyce Crull v. A.W. Chesterton Company, et al. -5. DECLARATION OF ALECIA E. COTTON IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE 10 EXCLUDE TESTIMONY OF PLAINTIEFS” EXPERT KENNETH COHEN [MIL 32] SF 27418582.1NY DU & WwW NH 28 MCKENNA LONG & Arprioce LLP ATTORNEYS AT LAW SAN FRANCISCO 3. Attached hereto as Exhibit “B” is a true and correct copy of the deposition transcript of Kenneth Cohen (erroneously captioned “Richard Cohen”), dated November 26, 2008 in Herbert Moreno and Lauthell Moreno v. Advocate Mines Limited, et al. I declare under penalty of perjury under the laws of the State of falifomia that the foregoing is true and correct and that this declaration was executed on A dus g 6 , 2010, at San Francisco, California. | | (eva C lt ALECIA E, COTTON -6- DECLARATION OF ALECIA E COTTON IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS EXPERT KENNETH COHEN [MIL 32] ‘SF.27418582.1Exhibit A0060 1 2 3 4 5 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA COURT OF UNLIMITED JURISDICTION DENTON E. CRULL and JOYCE A. ) CRULL, ) 6 7 8 9 10 21 22 23 25 ) ) Plaintiffs, } ) vs. ) Case No. RG 08404667 ) A.W. CHESTERTON COMPANY, et al.) ) ) Defendants. —) VOLUME 1 TELEPHONIC DEPOSITION OF KENNETH COHEN, Ph.D. Tuesday, February 10, 2009 Reported by: SARAH F. FOSS CSR No. 9559 24 JOB No. 58229HAN Cruill, D - Cohen, K 2/10/09 VI Page 100002 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 FOR THE COUNTY OF ALAMEDA 3 COURT OF UNLIMITED JURISDICTION 4 5 DENTON E. CRULL and JOYCE A. ) CRULL, ) 6 ) ) 7 Plaintiffs, ) > 8 vs. ) Case No. RG 08404667 ) 9 A.W. CHESTERTON COMPANY, et al.,) ) 10 ) Defendants. ) 1S Telephonic Deposition of KENNETH COHEN, Ph.D., 16 VOLUME I, taken on behalf of Defendants commencing at 17 9:36 a.m., Tuesday, February 10, 2009, before Sarah F. 18 Foss, CSR Number 9559, a Certified Shorthand Reporter in 19 and for the County of San Bernardino, State of 20 California. 21 22 23 24 25 Crull, D - Cohen, K 2/10/09 V1 Page 200003 | TELEPHONIC APPEARANCES: 2 3 4 w FOR PLAINTIFFS: PAUL & HANLEY, L.L.P. BY: JON NEUMANN, ESQ. 1608 Fourth Street, Suite 300 Berkeley, California 94710 {510} 559-9980 FOR DEFENDANT M. SLAYEN & ASSOCIATES, INC.; BECHERER, KANNETT & SCHWEITZER BY: PATRICK BECHERER, ESQ. 1255 Powell Street Emeryville, California 94608 (510) 658-3600 FOR DEFENDANT MINNESOTA MINING & MANUFACTURING CO,: BLACKWELL, BURKE P.A. BY: JERRY W. BLACKWELL, ESQ. 431 South 7th Street, Suite 2500 Minneapolis, Minnesota 55415 (612) 343-3200 FOR DEFENDANT PLANT INSULATION COMPANY: BURNHAM BROWN BY: JANE ACEITUNO, ESQ. 1901 Harrison Street, Eleventh Floor Oakland, California 94612 (510) 444-6800 FOR DEFENDANT WARREN PUMPS, LLC: CARROLL, BURDICK & MC DONOUGH, L.L.P. BY: JAMES CUNNINGHAM, ESQ. 44 Montgomery Suet, Suite 400 San Francisco, California 94104 {415) 989-5900 Crult, D - Cohen, K 2/10/09 V1 Page 300004 | TELEPHONIC APPEARANCES: (CONTINUED) 2 3. FOR DEFENDANT FRYER-KNOWLES, INC., A CALIFORNIA CORPORATION: 4 CONNOR & BISHOP 5 BY: CHARLES BISHOP, ESQ. 120 Montgomery Street, Suite 1350 6 San Francisco, California 94104-4316 (415) 434-3006 FOR DEFENDANT A.W. CHESTERTON COMPANY: COOLEY, MANION, JONES, HAKE & KUROWSKL, L.LP. 9 BY: WILLIAM HAKE, ESQ. 201 Spear Street, Suite 1800 10 San Francisco, California 94105 (415) 512-4381 FOR DEFENDANT GOULD'S PUMP, INC.: CROSBY & ROWELL 13 BY: AMY KIMMEL, ESQ. 299 Third Street, Second Floor 14 Oakland, California 94607 {510) 267-0300 FOR DEFENDANTS INGERSOLL-RAND COMPANY, and LESLIE 16 CONTROLS, INC.: 17 GORDON & REES, L.L.P. BY: CHRISTOPHER STRUNK, ESQ. 18 Embarcadero Center West, Suite 2000 275 Battery Street 19 San Francisco, California 94111 (415) 986-5900 FOR DEFENDANTS IMO INDUSTRIES, INC., and EATON 21. ELECTRICAL, INC.: 22 HOWARD, ROME, MARTIN & RIDLEY, LLP. BY: SEAN RIDLEY, ESQ. 23 1775 Woodside Road, Suite 200 Redwood City, California 94061-3436 24 (650) 365-7715 Cruil, D - Cohen, K 2/10/09 V1 Page 400005 1 TELEPHONIC APPEARANCES: (CONTINUED) 2 3 FOR DEFENDANTS BUFFALO PUMPS, INC., BWIP, INCORPORATED, and DURAMETALLIC: 4 JACKSON & WALLACE, L.L.P. 5 BY: JULIE TORRES, ESQ. 55 Francisco Street, Sixth Floor 6 San Francisco, California 94133 (415) 982-6300 FOR DEFENDANTS CRANE CO., and SQUARE D: K&L GATES, L.LP. 9 BY: BRENDAN TUORY, ESQ. 55 Second Street, Suite 1700 10 San Francisco, California 94105-3493 (415) 882-8200 FOR DEFENDANTS VELAN VALVE CORPORATION, and 12 METALCLAD INSULATION CORPORATION: 13 MC KENNA, LONG & ALDRIDGE, L.L.P. BY: THOMAS POESCHL, ESQ. 14 101 California Sweet, Forty-First Floor San Francisco, California 94111 15 (415) 267-4000 16 FOR DEFENDANT YARWAY CORPORATION: 17 MORGAN, LEWIS & BOCKIUS, L.L.P. BY. MORTON HARTWELL, ESQ. 18 One Market, Spear Street Tower San Francisco, California 94105 19 {415} 442-1000 20 FOR DEFENDANTS FRASER’S BOILER SERVICE, INC., and ASTRA FLOORING COMPANY: POND NORTH, L.L.P. 22 BY: GAVIN WHITIS, ESQ. 505 Montgomery Street, Thirteenth Floor 23 San Francisco, California 94111-2585 (415) 217-1240 24 28 Crull, D - Cohen, K 2/10/09 V1 Page 500006 | TELEPHONIC APPEARANCES: (CONTINUED) 2 3 FOR DEFENDANTS ITT CORPORATION, fka ITT INDUSTRIES, INC.; SYD CARPENTER MARINE CONTRACTOR, INC.; and 4° TRIPLE A MACHINE SHOP, INC.: 5 PRINDLE, DECKER & AMARO, L.L.P. BY: ROBERT BARONIAN, ESQ. 6 369 Pine Street, Suite 800 San Francisco, California 94104 7 (415) 788-8354 & FOR DEFENDANTS KENTILE FLOORS, INC., and NELSON MARINE PRODUCTS: SELMAN BREITMAN, L.LP. 10 BY: CRAIG MAKI, ESQ. 33 New Montgomery, Sixth Floor W San Francisco, California 94105 (415) 979-0400 FOR DEFENDANT FEDERAL-MOGUL ASBESTOS PERSONAL INJURY 13. TRUST, AS SUCCESSOR TO FELT PRODUCTS MANUFACTURING COMPANY: SINUNU BRUNI, L.L.P, 15 BY: CHRIS BRUNI, ESQ. 333 Pine Street, Suite 400 16 San Francisco, California 94104 (415) 362-9700 FOR DEFENDANT ROCKWELL AUTOMATION, INC.: TUCKER, ELLIS & WEST, L.L.P. 19 BY: NICOLE E. GAGE, ESQ. 135 Main Street, Suite 700 20 San Francisco, California 94105 (415) 617-2400 FOR DEFENDANT HILL BROTHERS CHEMICAL COMPANY: VASQUEZ, ESTRADA & DUMONT, L.L.P. 23 BY: LOUIS BARELLA, ESQ, 1000 Fourth Street 24 Courthouse Square - Suite 700 San Rafael, California 94901 25 (415) 453-0555 Crall, D - Cohen, K 2/16/09 V1 Page 600028 1 Ihave not tested any products since June of 2003 when I 2 voluntarily resigned my certification in industrial 3 hygiene. 4 Q Do you have an estimate for the exposure level 5 regarding —- quantitative exposure level likely received 6 from any particular activity involving electrical 7 motor-control products? 8 OA Yes, 9 Q What is that? 10 A_ I would consider that it would be a significant 1) or substantial exposure assuming the fact that the 12 electrical component was asbestos containing. 13 Q Can you tell me what activity would have caused 14 that release? 15. A Maintenance of the arc chute, maintenance 16 during mounting or demounting of the device ona 17 Bakelite panel, any of those activities, scraping, or 18 inadvertent cutting of the Bakelite material due to 19 slippage of a screwdriver or other electrical tool. 20 When you say there would be si itor 21 lantial exposure, can you tell me it you mean by 22 that? 23. A Certainly. 24 A significant or substantia) first of 25 all, is based upon the carcinogenicity of asbestos, and Crull, D - Cohen, K 2/10/09 V1: 28:20 - 29:700029 1 it would be a level quantitatively in excess of ambient 2 for the time period and geographic location and would 3 give rise to concern on the part of a competent 4 industri: ist for the an individual in 5 that exposure environment and would more likely than not 6 elevate the risk of developing an asbestos related 7 disease, 8 UNIDENTIFIED SPEAKER: Madam Court Reporter, 9 may that | have read back, please. 10 (The record was read as follows: i “A A significant or substantial exposure, 12 first of all, is based upon the carcinogenicity 13 of asbestos, and it would be a level 4 quantitatively in excess of ambient for the 1s time period and geographic location and would 16 Bive rise to concer on the part of a competent 17 industrial hygienist for the health of an 18 individual in that exposure environment and 19 would more likely than not elevate the risk of 20 developing an asbestos related disease.”) 21 BY MS. GAGE: 22° Q Are you aware that Mr, Crull served aboard the 23 Buchanan, the U.S.S, Buchanan between 1969 and 1975? 24 A Give mea second. 25 MR. NEUMANN: Objection. Misstates evidence. Crull, D - Cohen, K 2/10/09 V1: 28:20 - 29:700086 1 REPORTER'S CERTIFICATE 4 |, Sarah F. Foss, CSR NO. 9559, a Certified 5. Shorthand Reporter in and for the State of California, 6 do hereby certify: 7 That prior to being examined the witness named 8 in the foregoing proceedings was by me duly sworn to % testify to the truth, the whole truth, and nothing but 10 the truth; W That said proceedings were taken by me in 12 shorthand at the time and place herein named and was 13. thereafter transcribed into typewriting under my 14 direction, said transcript being a true and correct 13 transcription of my shorthand notes. 16 1 further certify that [ have no interest in 17 the outcome of this action, 18 Sarah F. Foss 24 CSR No. 9559 25 Crull, D - Cohen, K 2/10/09 V1 Page 86Exhibit B00001 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 CITY AND COUNTY OF SAN FRANCISCO 3 UNLIMITED JURISDICTION 4 HERBERT MORENO and LAUTHELL ) 5 MORENO, d 6 Plaintiffs, ) 7 vs. JNo. 274701 8 ADVOCATE MINES, LTD, ) 9 Defendant. ) 1S TELEPHONIC DEPOSITION OF KENNETH COHEN 16 San Francisco, California 17 Wednesday, November 26, 2008 18 19 20 ai 22 23 REPORTED BY: 24 JAY W. HARBIDGE 25 CSR NO. 4090 Moreno, H - Cohen, K 11/26/08 Page 100002 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 CITY AND COUNTY OF SAN FRANCISCO 3 HERBERT MORENO and LAUTHELL ) 4 MORENO, ) 5 Plaintiffs, ) 6 vs. ) No. 274701 7 ADVOCATE MINES, LTD, ) & Defendant. ) i Deposition of KENNETH COHEN, taken 12 telephonically on behalf of Defendant 13 beginning at 10:35 a.m. and ending at 14 12:25 p.m., on Wednesday, November 26, 15 2008, before Jay W. Harbidge, CSR No. 16 4090. Moreno, H - Cohen, K 11/26/08 Page 200003 1 APPEARANCES 4 FOR PLAINTIFF: 5 PAUL & HANLEY, LLP 6 BY: CAROLE M. BOSCH, ATTORNEY AT LAW 7 1608 Fourth Street 8 Berkeley, California 94710 9 Tel: 800.933.2244 10 Fax: 510.559.9970 i cbosch@paulandhanley.com 15 FOR DEFENDANTS 8.R. FUNSTEN & CO. and MTD 16 HOLDINGS and TECUMSEH PRODUCTS, INC.: 17 MCKENNA, LONG & ALDRIDGE 18 BY: SHEILA O'GARE, ATTORNEY AT LAW 19 101 California Street, 41st Floor 20 San Francisco, California 94111 21 Tel: 415.267.4000 22 Fax: 415.267.4198 23 sogare@mckennalong.com Moreno, H - Cohen, K 11/26/08 Page 300004 1 APPEARANCES 4 FOR DEFENDANT MAYTAG CORPORATION: 5 ADAMS, NYE, TRAPANI, BECHT, LLP 6 BY: GEORGES A. HADDAD, ATTORNEY AT LAW 7 222 Keamey Street, 7th Floor 8 San Francisco, California 94106-4521 9 Tel: 415.982.8955 10 Fax: 415.982.2042 Y ghaddad@adamsney.com 12 3 14 15 FOR DEFENDANT DANA CORPORATION: 16 BRYDON, HUGO & PARKER 7 BY: RANDALL K. BERNARD, ATTORNEY AT LAW 18 135 Main Street, 20th Floor 19 San Francisco, California 94105 20 Tel: 415.808.0300 21 Fax: 415.808.0333 22 rbernard@bhplaw.com 23 24 Moreno, H - Cohen, K 11/26/08 Page 400005 1 APPEARANCES 4 FOR DEFENDANT BRIGGS & STRATTON CORPORATION: 5 DRYDEN, MARGOLES, SCHIMANECK & WERTZ, 6 BY: ROGER A, AGEN, ATTORNEY AT LAW 7 305 Sansome Street, 6th Floor 8 San Francisco, Califomia 94111 9 Tel: 415.362.6715 10 Fax: 415.362.0638 YW taagen@drydenlaw.com 15. FOR DEFENDANT THE TORO COMPANY: 16 KRIEG, KELLER, SLOAN, REILLEY & ROMAN 7 BY: MARY E. REILLEY, ATTORNEY AT LAW 18 114 Sansome Street, Suite 400 19 San Francisco, California 94101-3898 20 Tel: 415.249.8330 21 Fax: 415.249.8333 22 mreilley@kkstr.com 23 24 25 Moreno, H - Cohen, K 11/26/08 Page 500006 APPEARANCES 4 FOR DEFENDANT ADVOCATE MINES LIMITED : LEWIS, BRISBOIS, BISGAARD & SMITH, LLP BY: KENNETH GOLDEN, ATTORNEY AT LAW 22} North Figueroa Street, Suite 1200 Los Angeles, California 90012 Tel: 213.256.1800 Fax: 213.250.7900 sgolden@lbhslaw.com 15 FOR DEFENDANT CAMPBELL HAUSFELD and 16 SCOTT FETZER COMPANY: SEDGWICK, DETERT, MORAN & ARNOLD, LLP BY: KATHERINE P, GARDINER, ATTORNEY AT LAW One Market Plaza, Steuart Tower, 8th Floor San Francisco, California 94105 Tel: 415.627.1404 Fax: 415.781.2635 katherine.gardiner@sdma.com Moreno, H - Cohen, K 11/26/08 Page 600007 ] APPEARANCES 4 FOR DEFENDANT BONDEX INTERNATIONAL, INC.: 5 WALSWORTH, FRANKLIN, BEVINS & McCALL 6 BY: THOMAS J. TARKOFF and 7 PAMELA RICHARDSON, ATTORNEYS AT LAW & 601 Montgomery Street, 9th Floor 9 San Francisco, California 94104-1034 10 Tel: 415.781.7072 i Fax: 415.391.6258 12 ttarkoff@wfbm.com 13 4 15 FOR DEFENDANT CHRYSLER, LLP: 16 NIXON PEABODY 7 BY: JAMES J. OSTERTAG, ATTORNEY AT LAW 18 One Embarcadero Center, Suite 1800 19 San Francisco, California 94111 20 ‘Fel: 415.984.8381 21 Fax: 415.984.8300 22 jostertag@nixonpeabody.com 3 24 25 Moreno, H - Cohen, K 11/26/08 Page 700040 1 Q. Do you have any specific information 2 that any Campbell Hausfeld air compressors contained 3 any asbestos-containing gaskets or components at any 4 time? 5 A. don't know. I have no information. 6 ._Is it your opinion th: eve’ 7 exposure Mr. Moreno had in bis lifetime to asbestos, 8 however slight, was a substantial factor in causing 9 his disease? 19 A. More likely than not, yes, Q._Aad Is it your belief that every 12 exposure above ambient levels is a substantial 13 factor within a reasonable depree of medical 14 certainty or scientific certainty? 13 A a tw! be my conclusion. 16 MS. BOSCH: Compound. 17 BY MS. GARDINER: 18 Q. Now, when we say “above ambient,” can 19 you tell me what concentration of asbestos that 20 would mean? 21 A. Its time and geographic specific. 22 Q. Okay. And is the 1969 to 99 time 23 period, if we limited it to that time period, can 24 you tell me what "above ambient" levels would mean? 25 A. It's too broad a time period, Moreno, H - Cohen, K 11/26/08: 40:6-1500041 1 Q. Okay. How would you break it down 2 during the '69 to '99 time period? 3 A. From the '60s, the ambient level more 4 likely than not would range between .001 and .009. 5 In each subsequent decade of the '70s, ‘80s and 6 ‘90s, it diminished by an order of magnitude. 7 Q. Sol'm sure I understand, does that mean 8 in the 1970s "ambient" ranged between .0001 and 9 .00097 10 A. That's correct. MW Q. Allright. So then it would be your 12 opinion within a reasonable degree of scientific 13 certainty that each and every expdsure to asbestos 14 that Mr. Moreno had in the 1970s above .000! to 15 .0009 fibers per cc would constitute a substantial 16 factor in causing his asbestos-related disease? 17 A. You may be going beyond the scope for een designated. If you're seeki 19 causation or medical testimony, I can't give it to 20 you. But that would be my conclusion from an rial hygiene perspective, yes, 22 Q. Okay. Other than gaskets and friction 23 components of lawn and garden tractors, any gasket 24 components that may have been in any air compressors 25 that Mr. Moreno may have worked on and the joint Moreno, H - Cohen, K 11/26/08: 40:6-1500056 | per his own testimony. 2 In your opinion, was that exposure in and 3 of itself sufficient to cause his mesothelioma? 4 MS. BOSCH: Asked and answered. $s THE WITNESS: 1 believe that goes beyond 6 the scope of what I have been designated to testify 7 in this case. But from an industrial hygiene 8 perspective, I would consider that Johns-Manville 9 would be a contributing factor to his development of 10 mesothelioma. i Q. So “contributing,” that means you would 12 not say in and of itself it would be the sole cause 13 of his mesothelioma; is that correct? 14 A. {don't know if it would be the sole 15 cause. 16 Q. Well, let's not limit itto Mr. Moreno, 17 then. [f someone. just worked at a Johns-Manville 18 plant for ten years doing the type of work that 19 Mr. Moreno did, do you believe that type of 20 exposure, in and of itself, would be sufficient to 21 be the sole cause of a person's mesothelioma? 22 A. Idon't know. 23 Q. You've used the word "substantial." How 24 do you define "substantial"? 25 A. _A level in excess of ambient for which a Moreno, H - Cohen, K 11/26/08: 40:6-1500057 | competent industrial hygienist would be concerned 2 for the health of aa individual in that environment 3 and that would more likely than not increase that 4 individual's risk of developing an asbestos-related 5 disease, 6 Q. And clearly by your definition, his 7 work, Mr. Moreno's work at Johns-Manville, would 8 qualify as a substantial exposure, correct? 9 A. Absolutely. 16 Q. Have you ever given testimony in any 11 case that exposure to friction materials was 12 insufficient to have been a substantial factor ina "13 person developing mesothelioma. 4 A. Prior to the year 2000, | had testified 15 that dust from back plates was insufficient to cause 16 an increased risk of developing an asbestos-related 17 disease. After the year 2000, after a new review of 18 the literature, I changed my opinions. 19 BY MS. O'GARE: 20 Q. What caused you to change your opinion? 2I A. Arereview of the literature. 22 Q. Okay. I'm going to ask you about the 23 literature, but did you do any independent testing 24 that caused you to change your opinion after 20007 25 A. Testing that 1 performed prior to 2000 Moreno, H - Cohen, K 1] 1/26/08: 40:6-1500090 1 State of California ) 2 City and County of San Francisco } 3 4 1, JAY W. HARBIDGE, hereby certify that 5 the witness in the foregoing deposition was by me 6 duly sworn to testify te the truth, the whole truth 7 and nothing but the truth, in the within entitled 8 cause; that said deposition was taken at the time 9 and place herein named; that the deposition is a 10 tue record of the witness’ testimony as reported to 1] the best of my ability by me, a duly Certified 12 Shorthand Reporter and disinterested person, and was 13 thereafter transcribed under my direction into 14 typewriting by computer; that the wimess was given 15. an opportunity to read, correct and sign the 16 deposition. 7 | further certify that 1 am not 18 interested in the outcome of said action nor 19 connected with nor related to any of the parties in 20 said action nor to their respective counsel, 21 22 24 JAY W. HARBIDGE, CSR Moreno, H - Cohen, K 11/26/08 Page 90