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McKenna LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
San FRANCISCO
LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
ALECIA E. COTTON (BAR NO, 252777)
MCKENNA LONG & ALDRIDGE LLP
101 California Street
41st Floor
San Francisco, CA 94111
Telephone: (415) 267-4000
Facsimile: (415) 267-4198
Attorneys for Defendant
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
APR 13 2010
Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk
METALCLAD INSULATION CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and
NORMAN JUELCH, SR.,
Plaintiffs,
¥.
ASBESTOS DEFENDANTS, (BP), et al.
Defendants.
>
Case No. CGC-09-275212
DEFENDANT’S MOTION IN LiMINE TO
EXCLUDE THE TESTIMONY OF PLAINTIFFS’
EXPERT Dr. RICHARD COHEN
[MIL 35]
TRIAL DATE: APRIL 5, 2010
DEPT.: 604
JUDGE: HONORABLE MARA J. MILLER
DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT OR RICHARD COHEN
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1
INTRODUCTION
The above-named Defendant (hereinafter “Defendant”) hereby moves this court for an
order to preclude plaintiffs from introducing any evidence from plaintiffs’ expert witness,
Dr. Richard Cohen.
In this case, Dr. Cohen has compiled numerous documents, which include medical
articles, journal reviews, and unauthenticated reports and records. In turn, Dr. Cohen intends to
regurgitate these documents into the record in order to establish what was known or knowable,
over the past century, regarding the health hazards associated with asbestos. Further, plaintiffs
also intend to use Dr. Cohen’s testimony to meet plaintiffs’ burden of proof regarding causation.
Dr. Cohen’s testimony should be precluded on a number of grounds. First, his testimony
is not the proper subject of expert opinion testimony. Second, his testimony constitutes
inadmissible hearsay. Third, his testimony regarding causation is inadmissible because it is based
on unreliable matters. For all these reasons, Dr. Cohen should be precluded from offering
opinion testimony in this matter.
i.
ARGUMENT
A. GIVEN THAT THE JURY Can READ THE DOCUMENTARY EVIDENCE Just AS EASILY AS
DR. COHEN, COHEN’s SIMPLE REGURGITATION OF THs EVIDENCE Is NoT THE
Prover Supsect OF EXPERT TESTIMONY
Cul Evid. Code § 801 narrowly limits an expert’s opinion to that which is “(rJelated to a
subject that is sufficiently beyond common experience that the opinion of an expert would assist
the trier of fact.” The courts have long held that “expert opinion is not admissible if it consists of
inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by
1
the witness.” People v. Torres (1995) 33 Cal. App-tth 37. 45 [39 Cx Rptr.td 103 |; see also
Westhrooks v. State (1985) 173 Cal App.3d 1203. 1200-10 [219 Cal Kptr 674). In short, experts
cannot be allowed to opine on matters that juries can evaluate and decide on their own. Allowing
an expert to opine on such matters usurps the jury’s function. //. In addition, “the trial judge
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ought to insist that a proffered expert bring to the jury more than the lawyers can offer in
argument.” [are Air Crasft Disaster at Nes Orleans (Sth Cir, }9801 798 F.2d 1230. 1233.
As already noted, Dr. Cohen intends to recite to the jury the contents of the documents
that he has compiled. His testimony consists of nothing more than his own subjective spin and
interpretation of selected articles, which contain opinions and conclusions made by others.
Furthermore, Dr. Cohen will argue that, based on the opinions and conclusions reflected in the
documents, Defendant knew or should have known that users of its asbestos-containing products
had a significant risk of contracting an asbestos-related illness.
Under Yorres and fa re tir Crash Disaster, De. Cohen’s testimony is not the proper
subject of expert opinion testimony. The documents speak for themselves; the jury does not need
an expert to read and regurgitate the documents for them. Moreover, it is the jury’s job, not the
expert’s, to determine whether the documents constitute notice to Defendant. Dr. Cohen’s
“expert opinion is not admissible [because] it consists of inferences and conclusions which can be
drawn as easily and intelligently by the trier of fact as by the witness.” Jurrey. 33 Cal.App-tth at
45,
Moreover, in giving his subjective spin and interpretation of the documentary evidence,
Dr. Cohen is simply arguing the evidence. The attorneys, not the witnesses, must make such
argument, fi re dir Disuster. supra, 798 F.2d at 1233 (“the trial judge ought to insist that a
proffered expert bring to the jury more than the lawyers can offer in argument”). Accordingly,
Dr. Cohen should be precluded from testifying for this additional reason as well.
B. Dr. COHEN SHOULD BE PROHIBITED FROM TESTIFYING BECAUSE HE INTENDS TO
TESTIFY REGARDING INADMISSIBLE MATTERS
1. THE DOCUMENTARY EVIDENCE CONSTITUTES INADMISSIBLE HEARSAY; THUS,
Dr, COHEN’S REGURGITATION OF THIS EVIDENCE ALSO CONSTITUTES
INADMISSIBLE HEARSAY
As already noted, Dr. Cohen intends to simply recite the contents of other documentary
evidence. The courts have long held that the types of documentary evidence that Dr. Cohen
intends to recite—medical treatises, case reports, articles, and studies—constitute inadmissible
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hearsay. Cai. Bvid. Code § 1200, Notably, in Baile v. Areadcomen 1904) $41 Cal. S19, 522 [75
P. 104], the California Supreme Court stated:
“ft has been held, without conflict and in an extended line of cases
in this state, that medical works are hearsay and inadmissible in
evidence, except perhaps on cross-examination when a specific
work may be referred to, it seems, to discredit a witness who has
based his testimony upon it... . If the books themselves are
hearsay and inadmissible, certainly any recital of their contents or
the substance thereof is none the less hearsay, and should be
excluded for that reason.” (Citations omitted.)
Given that the “medical works” that Dr. Cohen intends to recite “are hearsay and
inadmissible in evidence,” his “recital of their contents or the substance thereof is none the less
hearsay, and should be excluded for that reason.” [/.
Nor may Dr. Cohen regurgitate the contents of these inadmissible hearsay documents
under the guise of giving “expert” testimony. People v. Colewiai (1983) 38 Cal.3d 69, 92 [211
Cal. Rp. 102); Comincatal Airlines. lac. v. MeDonaell Dowstay Corp. 11989) 16 CaLApp.3d
388. 414-16 [264 Cal.Rpir. 779], In Coleman, the Supreme Court set forth this rule as follows:
“While an expert may state on direct examination the matters on
which he relied in forming his opinion, he may not testify as to the
details of such matters if they are otherwise inadmissible. The rule
rests on the rationale that while an expert may give reasons on
direct examination for his opinions, including the matters he
considered in forming them, he may not under the guise of reason
bring before the jury incompetent hearsay evidence.”
38 Cal.3d at 92 (emphasis added) (citations omitted).
Under Cofenunt, Dr. Cohen may state only that he relied on the hearsay medical works;
“he may not testify as to the details of such matters [because] they are otherwise inadmissible.”
td.
Undoubtedly, plaintiffs will argue that the documentary evidence at issue does not
constitute hearsay because it is not offered for the truth of the matter asserted. Instead, plaintiffs
contend, this evidence is offered to show notice of the hazardous nature of asbestos by showing
the state of medical knowledge regarding the hazards of asbestos over the past century. In fact,
Dr. Cohen’s testimony shows otherwise; his testimony shows that it is being offered for its
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“truth” on the issue of causation. For example, when Dr. Cohen testified in prior similar asbestos
cases, he stated as follows:
Q: What’s the next important article that appears in the
literature?
A: ... This was an article by Doctor Cooke from Great
Britain. And he wrote the first good medical description of
somebody who had died with asbestosis. So he described
the findings on the autopsy from this person who had
asbestosis. And it was just one patient. And it was in the
British medical journal. See Trial Transcript of Dr. Richard
Cohen in Berning v. AP. Green Industries, et al, San
Francisco Superior Court Case No. 319733, attached as
Exhibit A to the Declaration of Alecia E. Cotton
(hereinafter “Cotton Decl. Exhibit A”).
Q: And the importance of that article is it shows that people
can get asbestosis from asbestos exposure?
A Clearly.” (Cotton Decl. Exhibit A) (emphasis added).
Q@: And what’s the next article on that subject on lung cancer
that’s important in the literature?
A: [I]n 1960 we had a study from South Africa by Doctor
Wagner. And he looked at people who died in South
Africa and pulled out those people who had
mesothelioma. . .. And he found that most of these people
had come from an area of South Africa where they had
mined crocidolite asbestos. ... So this study pretty much
established that asbestos caused malignant mesothelioma.”
(Cotton Decl. Exhibit A) (emphasis added).
In sum, through Dr. Cohen, plaintiffs will attempt to establish outright the following truths
regarding the crucial issue of causation: when persons are exposed to asbestos in the manner that
the persons in Dr. Cohen's case reports are so exposed, such exposure to asbestos causes
asbestos-related ilinesses such as asbestosis and mesothelioma. From this “truth,” it is a very
smail step to the ultimate “truth” that plaintiffs want to establish here: that Plaintiff's exposure to
asbestos, in the manner that she was allegedly exposed, caused her lung cancer and/or other
asbestos-related disease. In sum, it is apparent that Dr. Cohen’s testimony regurgitating the
hearsay documents is offered for the truth of the matter asserted, and, as such, comes within the
definition of hearsay. Accordingly, his testimony should be excluded.
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2. Unber TH Guise Or INTRODUCING TESTIMONY REGARDING “NOTICE” AND
“KNOWLEDGE OF STATE OF THE ART,” PLAINTIFFS ARE ATTEMPTING TO
INTRODUCE UNRELIABLE AND INADMISSIBLE CAUSATION EVIDENCE THROUGH
THE BACKDOOR
As demonstrated above, Dr. Cohen’s testimony is offered to prove causation, not just
“notice” or “knowledge of state of the art.” By camouflaging this causation evidence, plaintiffs
are attempting to circumvent the rigorous legal standards regarding what constitutes reliable and
admissible causation evidence. Plaintiffs’ attempts are improper. Dr, Cohen’s causation
evidence must be subject to these standards, and, it must be excluded because it does not meet
these standards.
Ordinarily, epidemiological evidence is considered the best proof of causation in humans.
Epidemiology is the statistical study of the causes of disease in human populations, To evaluate a
possible cause of a disease in a particular population, an epidemiologist compares the frequency
of the disease in members of a group exposed to the potential causal agent to the frequency of the
disease in members of a group not exposed to the potential causal agent. Measherr y, Merrell Dow
Phavar (th Cir, 1993) 43 ¥3d 1311. 1321 (citing Fleiss. Nutisiical Methods for Rates ant
Proportions (2d ed. 1981)), The resulting ratio is expressed as the “relative risk” factor
associated with the agent. /c/.
A relative risk factor of 1.0 indicates that the disease in question occurs in the exposed
population with the same frequency that it occurs in the unexposed population. A relative risk
factor of 2.0 indicates that it occurs twice as frequently in the exposed population. (vos v
Onited Stutes (SD. Cal. 1982) 545 F.Supp. 300, 308 9.1. An important corollary is that a relative
risk factor of 2.0 indicates that half of the cases in the exposed population are attributable to the
exposure while half are attributable to other (or “background”) causes. [¢. In other words, where
the relative risk factor is 2.0, it is equally possible that the disease was caused by exposure to the
causal agent, as it is that the disease was caused by something other than the causal agent. In
sum, an epidemiological study shows that there is more likely than not a causal relationship only
where the relative risk factor is found to be greater than 2.0. Mushers. 43 Fld at 1320; Cook. 345
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F Supp. at 306, 308 n.1 (“Once the relative risk rises above two, it becomes more probable than
not that a given case was caused by the vaccine.”).
Because studies showing a relative risk of 2.0 or less do not show that it is more likely
than not that the agent or exposure in question caused the disease, case law holds that such studies
are not relevant or admissible to prove causation. Sanderson v. dernational Flavors &
Fragrances (same) 950 F Supp. 981, 1000, dismissed. (C1). Cal, August 30, 1996) 1996 LES.
Dist. LEXIS 20746; Dunhert v. Merrell Dow Pharmacemicals. foc. ih Cir. 1995) 43 F.3d 134 E
{applying California’s causation law—i.e., California’s more likely than not standard); (wok.
F.Supp. at 308 a1, For example, in Juncrs, the court held that studies with a relative risk of 2.0
or less are irrelevant and inadmissible, as is any expert testimony based on such studies, because
such studies “would not be helpful, and indeed would only serve to confuse the jury, if offered to
prove rather than refute causation.” 43 F.3d at 1321. In fact, “[a] relative risk of less than two
... actually tends to disprove legal causation.”
In this case, Dr. Cohen does not indicate that any of the studies that he relies upon, and
that he intends to recite to the jury, are epidemiological studies showing a relative risk of greater
than 2.0. Rather than introducing such reliable epidemiological evidence, Dr. Cohen intends to
testify regarding causation evidence that the courts have traditionally found to be unreliable and
inadmissible. First, Dr. Cohen intends to testify that, based on case Teports, it was established as
early as 1952 that asbestos causes lung cancer:
Q: When was it established by the medical and scientific
literature that asbestos can cause the disease lung cancer?
A For lung cancer I’Il put 1952. And again, some could argue
1949 if we wanted to. I'll put 1952 simply because by then
again there had been studies showing increased lung cancer
in people with asbestos exposure. There had been case
reports. There had been opinions expressed. So there’s
plenty of evidence by then.” (Cotton Decl. Exhibit A)
(emphasis added).
Further, as noted in the section on hearsay above, Dr. Cohen will testify that, based on a
single autopsy case report from a person who had asbestosis, it was “clearly” established that
people can get asbestosis from asbestos exposure. (Cotton Decl. Exhibit A) Dr. Cohen also
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intends to testify that, based on a survey report showing that “most of [the people in South Africa
whe died from mesothelioma} had come {rom an area of South Africa where they had mined
crocidolite asbestos,” it was “pretty much established that asbestos caused malignant
mesothelioma.” (Cotton Decl. Exhibit A.)
Such case reports are generally considered unreliable in establishing the causes of a
disease, in part because they lack many of the indicia of reliability that epidemiological studies
possess. As one court noted:
“[C]ase reports are not reliable scientific evidence of causation,
because they simply describe reported phenomena without
comparison to the rate at which the phenomena occur in the general
population or in a defined control group; do not isolate and exclude
potentially alternative causes; and do not investigate or explain the
mechanism of causation” Casey 1. Okie Med Prods. (ND. Cal.
1995) 877 F Supp. 1380. 13858.
Casey"s skepticism regarding case reports is well warranted in this case. For example, the
South African survey noting that people around a crocidolite mine were dying from mesothelioma
presents, at best, a reasonable, but unproven theory about the possible cause of mesothelioma. In
the words of the Casey court, this survey “[1] simply describe[s] reported phenomena without
comparison to the rate at which the phenomena occur|s] in. . . a defined control group; [2] dof[es]
not isolate and exclude potentially alternative causes; and [3] doles} not investigate or explain the
mechanism of causation.” 877 F.Supp. al 1385. Further, the autopsy case report concluding that
asbestos causes asbestosis based on one lone autopsy is even less compelling and also lacks these
three indicia of reliability. All told, these “case reports are not reliable scientific evidence of
causation.” /d, Accordingly, Dr. Cohen should be precluded from testifying to prove causation
based on these case reports.
Second, Dr. Cohen relies on studies and case reports where the facts regarding the
subjects’ exposure to asbestos are substantially different than the facts regarding Plaintiff’s
alleged exposures. Dr. Cohen’s studies and case reports relate largely to raw asbestos and to
asbestos-containing products as used by miners, manufacturing workers and insulators. Those
products and working environments differ markedly from the products and working environments
at issue in this action during the time period in question, ie. the 1980s. In essence, Dr. Cohen
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seeks to compare apples to oranges. As a result, the articles and findings based on these
dissimilar types of products and these dissimilar types of exposures do not constitute reliable
support for Dr. Cohen’s opinions regarding Defendant, its products or the types of exposure at
issue here.
The Jones v. Ortho Pharm. Corp. (1985) 163 Cai. App.3d 396 [209 Cal.Rptr. 456], case
demonstrates that the facts regarding exposure in the studies that the expert relies on must be
substantially similar to the facts regarding the plaintiff's exposure. In 4.15, the Court of Appeal
affirmed a non-suit in favor of the defendant manufacturer of a drug, holding the plaintiff's
proffered expert testimony was speculative and insufficient to establish the essential element of
causation to support plaintiff's product liability claims. fe. wt 402-40-. The plaintiff in Jones
alleged there was a causal connection between the development of her cancer and her ingestion of
a contraceptive drug manufactured by the defendant. To support her claim, the plaintiff relied on
the expert testimony. The plaintiff's experts attempted to base their opinions on studies
concerning the acceleration of cancer among women who tcok oral contraceptives for five or six
years, even though the plaintiff only took the drug for six months. Given this dissimilarity
regarding the nature of the exposure in the studies as compared to the nature of the plaintiff's
exposure, the court rejected as unduly speculative the expert’s attempt to draw conclusions about
causation in the plaintiffs case based on these studies.
“On the issue of whether the drug accelerated the normal
progression of the disease, the testimony was equally as uncertain
and speculative. The experts found it difficult, if not impossible, to
relate acceleration studies among women who took oral
contraceptives for five or six years to someone like plaintiff who
took the drug for only six months. Under the circumstances, we
can only conclude that plaintiff did not establish a prima facie case
and that the motion for nonsuit was properly granted.” Ai. at 404,
Similarly, given that Dr. Cohen does not present scientific studies showing causation in
cases that are similar to this case, Dr. Cohen’s testimony that Defendant should have known that
persons using Defendant's product were in danger of developing an asbestos-related illness is
unduly speculative. For this reason, Dr. Cohen’s testimony should be deemed inadmissible.
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Third, Dr. Cohen's testimony is based on unpublished and unreliable matters and reports.
Dr. Cohen has testified as follows:
Q Did you focus only on published literature in the research
that you've done or did you focus on unpublished literature
as well?
A: .. . [I]n the course of litigation sometimes lawyers will
provide documents to me that weren’t available, you know,
that weren't published documents, but they were able to
obtain from their clients or from the company they were
suing or whatever. (Cotton Decl. Exhibit A).
Testimony that is based on such unsubstantiated information is inadmissible because it is
without adequate foundation. Cabrera y. Cordis Corp. th Cir, $998) 134 F.3d HALTS. In
Cubrera, the court excluded the testimony of four experts that the plaintiff proffered to support
her claim against the manufacturer of a medical device known as a brain shunt. 134 3d at 1422-
23, The Cabrera court excluded these experts because they based their testimony on unpublished
“aficionado’s knowledge.” if at 1423. In excluding plaintiff’s expert witnesses, the court stated
the following:
“[The expert witness] stated that relevant information was
essentially left unpublished and unlearned. It was not conveyed to
the medical community on average. It is what we call an
aficionado’s knowledge . . . it has simply been kept very closed to
manufacturing circles and has not been shared with the medical
community. By [the expert’s] own characterization, he is relying
on underground knowledge, untested and unknown to the scientific
community. An opinion based on such unsubstantiated and
undocumented information is the antithesis of the scientifically
reliable expert opinion admissible under Daubert and Rule 702.”
dd, (emphasis added) (internal quotations and citations omitted).
Likewise, in this case, Dr. Cohen’s testimony is based on unpublished “aficionado’s
knowledge,” which” is the antithesis of . . . scientifically reliable expert opinion.” fd.
Accordingly, this Court should exclude Dr. Cohen’s opinion testimony as unreliable and without
foundation.
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In.
CONCLUSION
Based on the foregoing, Defendant respectfully requests that the Court grant this Motion
Jn Limine and enter an order precluding any opinions by Dr. Richard Cohen at trial.
Dated: — April 5, 2010 MCKENNA LONG & ALDRIDGE LLP
By: ll big G. lle
Lisa L. OBERG
DANIEL B. HOYE
ALECIA E. COTTON
Attorneys for Defendant
METALCLAD INSULATION
CORPORATION
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28 McKenna LONG & ALDRIDGE LLP ATTORNEYS AT LAW San FRANCISCO LISA L. OBERG (BAR NO. 120139) DANIEL B. HOYE (BAR NO. 139683) ALECIA E. COTTON (BAR NO, 252777) MCKENNA LONG & ALDRIDGE LLP 101 California Street 41st Floor San Francisco, CA 94111 Telephone: (415) 267-4000 Facsimile: (415) 267-4198 Attorneys for Defendant ELECTRONICALLY FILED Superior Court of California, County of San Francisco APR 13 2010 Clerk of the Court BY: CHRISTLE ARRIOLA Deputy Clerk METALCLAD INSULATION CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE JUELCH and NORMAN JUELCH, SR., Plaintiffs, ¥. ASBESTOS DEFENDANTS, (BP), et al. Defendants. > Case No. CGC-09-275212 DEFENDANT’S MOTION IN LiMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS’ EXPERT Dr. RICHARD COHEN [MIL 35] TRIAL DATE: APRIL 5, 2010 DEPT.: 604 JUDGE: HONORABLE MARA J. MILLER DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT OR RICHARD COHEN SF:27418586.1 (Mit. 35]CO OM DR WH BRB Ww wD MB NM NM BY NR NR RD meee SN OD WwW BW NHN | SB CGC e UN HA WA BP BH ES 28 McKenna LONG & ALDRIDGE LLP ATTORNEYS AT LAW SAN FRANCISCO. 1 INTRODUCTION The above-named Defendant (hereinafter “Defendant”) hereby moves this court for an order to preclude plaintiffs from introducing any evidence from plaintiffs’ expert witness, Dr. Richard Cohen. In this case, Dr. Cohen has compiled numerous documents, which include medical articles, journal reviews, and unauthenticated reports and records. In turn, Dr. Cohen intends to regurgitate these documents into the record in order to establish what was known or knowable, over the past century, regarding the health hazards associated with asbestos. Further, plaintiffs also intend to use Dr. Cohen’s testimony to meet plaintiffs’ burden of proof regarding causation. Dr. Cohen’s testimony should be precluded on a number of grounds. First, his testimony is not the proper subject of expert opinion testimony. Second, his testimony constitutes inadmissible hearsay. Third, his testimony regarding causation is inadmissible because it is based on unreliable matters. For all these reasons, Dr. Cohen should be precluded from offering opinion testimony in this matter. i. ARGUMENT A. GIVEN THAT THE JURY Can READ THE DOCUMENTARY EVIDENCE Just AS EASILY AS DR. COHEN, COHEN’s SIMPLE REGURGITATION OF THs EVIDENCE Is NoT THE Prover Supsect OF EXPERT TESTIMONY Cul Evid. Code § 801 narrowly limits an expert’s opinion to that which is “(rJelated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” The courts have long held that “expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by 1 the witness.” People v. Torres (1995) 33 Cal. App-tth 37. 45 [39 Cx Rptr.td 103 |; see also Westhrooks v. State (1985) 173 Cal App.3d 1203. 1200-10 [219 Cal Kptr 674). In short, experts cannot be allowed to opine on matters that juries can evaluate and decide on their own. Allowing an expert to opine on such matters usurps the jury’s function. //. In addition, “the trial judge -1- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS’ EXPERT OR RICHARD COHEN [MIL 35] SP:27418586.128 MCKENNA LONG ALDRIDGE LLP ATTORNEYS AT LAW SAN FRANCISCO ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument.” [are Air Crasft Disaster at Nes Orleans (Sth Cir, }9801 798 F.2d 1230. 1233. As already noted, Dr. Cohen intends to recite to the jury the contents of the documents that he has compiled. His testimony consists of nothing more than his own subjective spin and interpretation of selected articles, which contain opinions and conclusions made by others. Furthermore, Dr. Cohen will argue that, based on the opinions and conclusions reflected in the documents, Defendant knew or should have known that users of its asbestos-containing products had a significant risk of contracting an asbestos-related illness. Under Yorres and fa re tir Crash Disaster, De. Cohen’s testimony is not the proper subject of expert opinion testimony. The documents speak for themselves; the jury does not need an expert to read and regurgitate the documents for them. Moreover, it is the jury’s job, not the expert’s, to determine whether the documents constitute notice to Defendant. Dr. Cohen’s “expert opinion is not admissible [because] it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.” Jurrey. 33 Cal.App-tth at 45, Moreover, in giving his subjective spin and interpretation of the documentary evidence, Dr. Cohen is simply arguing the evidence. The attorneys, not the witnesses, must make such argument, fi re dir Disuster. supra, 798 F.2d at 1233 (“the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument”). Accordingly, Dr. Cohen should be precluded from testifying for this additional reason as well. B. Dr. COHEN SHOULD BE PROHIBITED FROM TESTIFYING BECAUSE HE INTENDS TO TESTIFY REGARDING INADMISSIBLE MATTERS 1. THE DOCUMENTARY EVIDENCE CONSTITUTES INADMISSIBLE HEARSAY; THUS, Dr, COHEN’S REGURGITATION OF THIS EVIDENCE ALSO CONSTITUTES INADMISSIBLE HEARSAY As already noted, Dr. Cohen intends to simply recite the contents of other documentary evidence. The courts have long held that the types of documentary evidence that Dr. Cohen intends to recite—medical treatises, case reports, articles, and studies—constitute inadmissible -2- DEFENDANT'S MOTION IN LIMINE TO EXCLUOE THE TESTIMONY OF PLAINTIFFS EXPERT DR. RICHARD COHEN (Mit 35} SF:27418586.1nN Oo Ob Se SOR A RB BON ae Noo SBS OBO CO SD Be RR me 28 McKenna Lone & ALDRIDGE LLP ATTORNEYS AT LAW San Francisca, hearsay. Cai. Bvid. Code § 1200, Notably, in Baile v. Areadcomen 1904) $41 Cal. S19, 522 [75 P. 104], the California Supreme Court stated: “ft has been held, without conflict and in an extended line of cases in this state, that medical works are hearsay and inadmissible in evidence, except perhaps on cross-examination when a specific work may be referred to, it seems, to discredit a witness who has based his testimony upon it... . If the books themselves are hearsay and inadmissible, certainly any recital of their contents or the substance thereof is none the less hearsay, and should be excluded for that reason.” (Citations omitted.) Given that the “medical works” that Dr. Cohen intends to recite “are hearsay and inadmissible in evidence,” his “recital of their contents or the substance thereof is none the less hearsay, and should be excluded for that reason.” [/. Nor may Dr. Cohen regurgitate the contents of these inadmissible hearsay documents under the guise of giving “expert” testimony. People v. Colewiai (1983) 38 Cal.3d 69, 92 [211 Cal. Rp. 102); Comincatal Airlines. lac. v. MeDonaell Dowstay Corp. 11989) 16 CaLApp.3d 388. 414-16 [264 Cal.Rpir. 779], In Coleman, the Supreme Court set forth this rule as follows: “While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reason bring before the jury incompetent hearsay evidence.” 38 Cal.3d at 92 (emphasis added) (citations omitted). Under Cofenunt, Dr. Cohen may state only that he relied on the hearsay medical works; “he may not testify as to the details of such matters [because] they are otherwise inadmissible.” td. Undoubtedly, plaintiffs will argue that the documentary evidence at issue does not constitute hearsay because it is not offered for the truth of the matter asserted. Instead, plaintiffs contend, this evidence is offered to show notice of the hazardous nature of asbestos by showing the state of medical knowledge regarding the hazards of asbestos over the past century. In fact, Dr. Cohen’s testimony shows otherwise; his testimony shows that it is being offered for its -3- DEFENOANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT DR RICHARD COHEN [MIL 35) SE:27418586.1Oo 6 YQ A A eR Ww NM oO 11 28 MCKENNA LONG & ALoRIoGe LLP ATTORNEYS AT LAW SAN FRANCISCO “truth” on the issue of causation. For example, when Dr. Cohen testified in prior similar asbestos cases, he stated as follows: Q: What’s the next important article that appears in the literature? A: ... This was an article by Doctor Cooke from Great Britain. And he wrote the first good medical description of somebody who had died with asbestosis. So he described the findings on the autopsy from this person who had asbestosis. And it was just one patient. And it was in the British medical journal. See Trial Transcript of Dr. Richard Cohen in Berning v. AP. Green Industries, et al, San Francisco Superior Court Case No. 319733, attached as Exhibit A to the Declaration of Alecia E. Cotton (hereinafter “Cotton Decl. Exhibit A”). Q: And the importance of that article is it shows that people can get asbestosis from asbestos exposure? A Clearly.” (Cotton Decl. Exhibit A) (emphasis added). Q@: And what’s the next article on that subject on lung cancer that’s important in the literature? A: [I]n 1960 we had a study from South Africa by Doctor Wagner. And he looked at people who died in South Africa and pulled out those people who had mesothelioma. . .. And he found that most of these people had come from an area of South Africa where they had mined crocidolite asbestos. ... So this study pretty much established that asbestos caused malignant mesothelioma.” (Cotton Decl. Exhibit A) (emphasis added). In sum, through Dr. Cohen, plaintiffs will attempt to establish outright the following truths regarding the crucial issue of causation: when persons are exposed to asbestos in the manner that the persons in Dr. Cohen's case reports are so exposed, such exposure to asbestos causes asbestos-related ilinesses such as asbestosis and mesothelioma. From this “truth,” it is a very smail step to the ultimate “truth” that plaintiffs want to establish here: that Plaintiff's exposure to asbestos, in the manner that she was allegedly exposed, caused her lung cancer and/or other asbestos-related disease. In sum, it is apparent that Dr. Cohen’s testimony regurgitating the hearsay documents is offered for the truth of the matter asserted, and, as such, comes within the definition of hearsay. Accordingly, his testimony should be excluded. -4- DEFENDANT'S MOTION in LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT DR. RICHARD COHEN (MIL 35] SE.27418586.1A vn & WH 28 MCKENNA LONG & ALDRIDGE LLP ATTORNEYS AT Law SAN FRancisco. 2. Unber TH Guise Or INTRODUCING TESTIMONY REGARDING “NOTICE” AND “KNOWLEDGE OF STATE OF THE ART,” PLAINTIFFS ARE ATTEMPTING TO INTRODUCE UNRELIABLE AND INADMISSIBLE CAUSATION EVIDENCE THROUGH THE BACKDOOR As demonstrated above, Dr. Cohen’s testimony is offered to prove causation, not just “notice” or “knowledge of state of the art.” By camouflaging this causation evidence, plaintiffs are attempting to circumvent the rigorous legal standards regarding what constitutes reliable and admissible causation evidence. Plaintiffs’ attempts are improper. Dr, Cohen’s causation evidence must be subject to these standards, and, it must be excluded because it does not meet these standards. Ordinarily, epidemiological evidence is considered the best proof of causation in humans. Epidemiology is the statistical study of the causes of disease in human populations, To evaluate a possible cause of a disease in a particular population, an epidemiologist compares the frequency of the disease in members of a group exposed to the potential causal agent to the frequency of the disease in members of a group not exposed to the potential causal agent. Measherr y, Merrell Dow Phavar (th Cir, 1993) 43 ¥3d 1311. 1321 (citing Fleiss. Nutisiical Methods for Rates ant Proportions (2d ed. 1981)), The resulting ratio is expressed as the “relative risk” factor associated with the agent. /c/. A relative risk factor of 1.0 indicates that the disease in question occurs in the exposed population with the same frequency that it occurs in the unexposed population. A relative risk factor of 2.0 indicates that it occurs twice as frequently in the exposed population. (vos v Onited Stutes (SD. Cal. 1982) 545 F.Supp. 300, 308 9.1. An important corollary is that a relative risk factor of 2.0 indicates that half of the cases in the exposed population are attributable to the exposure while half are attributable to other (or “background”) causes. [¢. In other words, where the relative risk factor is 2.0, it is equally possible that the disease was caused by exposure to the causal agent, as it is that the disease was caused by something other than the causal agent. In sum, an epidemiological study shows that there is more likely than not a causal relationship only where the relative risk factor is found to be greater than 2.0. Mushers. 43 Fld at 1320; Cook. 345 -5- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS’ EXPERT OR. RICHARD COHEN [Mit 35} ‘SF:27418586.1Ce SH ND HW BF BW Lm NR ON DN RN mee SOA MW & YW NH &— SF © ee WY HA HW & WHY FE SS 28 MCKENNA LONG & ALperoce LLP ATTORNEYS AT LAW SAN FRANCISCO F Supp. at 306, 308 n.1 (“Once the relative risk rises above two, it becomes more probable than not that a given case was caused by the vaccine.”). Because studies showing a relative risk of 2.0 or less do not show that it is more likely than not that the agent or exposure in question caused the disease, case law holds that such studies are not relevant or admissible to prove causation. Sanderson v. dernational Flavors & Fragrances (same) 950 F Supp. 981, 1000, dismissed. (C1). Cal, August 30, 1996) 1996 LES. Dist. LEXIS 20746; Dunhert v. Merrell Dow Pharmacemicals. foc. ih Cir. 1995) 43 F.3d 134 E {applying California’s causation law—i.e., California’s more likely than not standard); (wok. F.Supp. at 308 a1, For example, in Juncrs, the court held that studies with a relative risk of 2.0 or less are irrelevant and inadmissible, as is any expert testimony based on such studies, because such studies “would not be helpful, and indeed would only serve to confuse the jury, if offered to prove rather than refute causation.” 43 F.3d at 1321. In fact, “[a] relative risk of less than two ... actually tends to disprove legal causation.” In this case, Dr. Cohen does not indicate that any of the studies that he relies upon, and that he intends to recite to the jury, are epidemiological studies showing a relative risk of greater than 2.0. Rather than introducing such reliable epidemiological evidence, Dr. Cohen intends to testify regarding causation evidence that the courts have traditionally found to be unreliable and inadmissible. First, Dr. Cohen intends to testify that, based on case Teports, it was established as early as 1952 that asbestos causes lung cancer: Q: When was it established by the medical and scientific literature that asbestos can cause the disease lung cancer? A For lung cancer I’Il put 1952. And again, some could argue 1949 if we wanted to. I'll put 1952 simply because by then again there had been studies showing increased lung cancer in people with asbestos exposure. There had been case reports. There had been opinions expressed. So there’s plenty of evidence by then.” (Cotton Decl. Exhibit A) (emphasis added). Further, as noted in the section on hearsay above, Dr. Cohen will testify that, based on a single autopsy case report from a person who had asbestosis, it was “clearly” established that people can get asbestosis from asbestos exposure. (Cotton Decl. Exhibit A) Dr. Cohen also -6- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT DR. RICHARD COHEN [Mit 35} S¥:27418586.128 MCKENNA LONG & ALORIDGE LLP. AYTORNEYS AT LAW SAN FRANCISCO. intends to testify that, based on a survey report showing that “most of [the people in South Africa whe died from mesothelioma} had come {rom an area of South Africa where they had mined crocidolite asbestos,” it was “pretty much established that asbestos caused malignant mesothelioma.” (Cotton Decl. Exhibit A.) Such case reports are generally considered unreliable in establishing the causes of a disease, in part because they lack many of the indicia of reliability that epidemiological studies possess. As one court noted: “[C]ase reports are not reliable scientific evidence of causation, because they simply describe reported phenomena without comparison to the rate at which the phenomena occur in the general population or in a defined control group; do not isolate and exclude potentially alternative causes; and do not investigate or explain the mechanism of causation” Casey 1. Okie Med Prods. (ND. Cal. 1995) 877 F Supp. 1380. 13858. Casey"s skepticism regarding case reports is well warranted in this case. For example, the South African survey noting that people around a crocidolite mine were dying from mesothelioma presents, at best, a reasonable, but unproven theory about the possible cause of mesothelioma. In the words of the Casey court, this survey “[1] simply describe[s] reported phenomena without comparison to the rate at which the phenomena occur|s] in. . . a defined control group; [2] dof[es] not isolate and exclude potentially alternative causes; and [3] doles} not investigate or explain the mechanism of causation.” 877 F.Supp. al 1385. Further, the autopsy case report concluding that asbestos causes asbestosis based on one lone autopsy is even less compelling and also lacks these three indicia of reliability. All told, these “case reports are not reliable scientific evidence of causation.” /d, Accordingly, Dr. Cohen should be precluded from testifying to prove causation based on these case reports. Second, Dr. Cohen relies on studies and case reports where the facts regarding the subjects’ exposure to asbestos are substantially different than the facts regarding Plaintiff’s alleged exposures. Dr. Cohen’s studies and case reports relate largely to raw asbestos and to asbestos-containing products as used by miners, manufacturing workers and insulators. Those products and working environments differ markedly from the products and working environments at issue in this action during the time period in question, ie. the 1980s. In essence, Dr. Cohen -7- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT DR. RICHARD COHEN IMit 35} ‘SF:27418886.1OO I DA HM Bw YD RM NM YM RON Deeks SN OA MW BF WH — S oD we TY DH HW BF DW BP & S 28 MCKENNa LONG & ALDRIDGE LLY ATTORNEYS AT LAW SAW FRANCISCO seeks to compare apples to oranges. As a result, the articles and findings based on these dissimilar types of products and these dissimilar types of exposures do not constitute reliable support for Dr. Cohen’s opinions regarding Defendant, its products or the types of exposure at issue here. The Jones v. Ortho Pharm. Corp. (1985) 163 Cai. App.3d 396 [209 Cal.Rptr. 456], case demonstrates that the facts regarding exposure in the studies that the expert relies on must be substantially similar to the facts regarding the plaintiff's exposure. In 4.15, the Court of Appeal affirmed a non-suit in favor of the defendant manufacturer of a drug, holding the plaintiff's proffered expert testimony was speculative and insufficient to establish the essential element of causation to support plaintiff's product liability claims. fe. wt 402-40-. The plaintiff in Jones alleged there was a causal connection between the development of her cancer and her ingestion of a contraceptive drug manufactured by the defendant. To support her claim, the plaintiff relied on the expert testimony. The plaintiff's experts attempted to base their opinions on studies concerning the acceleration of cancer among women who tcok oral contraceptives for five or six years, even though the plaintiff only took the drug for six months. Given this dissimilarity regarding the nature of the exposure in the studies as compared to the nature of the plaintiff's exposure, the court rejected as unduly speculative the expert’s attempt to draw conclusions about causation in the plaintiffs case based on these studies. “On the issue of whether the drug accelerated the normal progression of the disease, the testimony was equally as uncertain and speculative. The experts found it difficult, if not impossible, to relate acceleration studies among women who took oral contraceptives for five or six years to someone like plaintiff who took the drug for only six months. Under the circumstances, we can only conclude that plaintiff did not establish a prima facie case and that the motion for nonsuit was properly granted.” Ai. at 404, Similarly, given that Dr. Cohen does not present scientific studies showing causation in cases that are similar to this case, Dr. Cohen’s testimony that Defendant should have known that persons using Defendant's product were in danger of developing an asbestos-related illness is unduly speculative. For this reason, Dr. Cohen’s testimony should be deemed inadmissible. -8- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS’ EXPERT DR. RICHARO COHEN MIL 95} SF:27418586.1SD rH & WwW 28 MCKENNA LONG & ALoRIDGE LLP ATTORNEYS AT Law SAN FRANCISCO Third, Dr. Cohen's testimony is based on unpublished and unreliable matters and reports. Dr. Cohen has testified as follows: Q Did you focus only on published literature in the research that you've done or did you focus on unpublished literature as well? A: .. . [I]n the course of litigation sometimes lawyers will provide documents to me that weren’t available, you know, that weren't published documents, but they were able to obtain from their clients or from the company they were suing or whatever. (Cotton Decl. Exhibit A). Testimony that is based on such unsubstantiated information is inadmissible because it is without adequate foundation. Cabrera y. Cordis Corp. th Cir, $998) 134 F.3d HALTS. In Cubrera, the court excluded the testimony of four experts that the plaintiff proffered to support her claim against the manufacturer of a medical device known as a brain shunt. 134 3d at 1422- 23, The Cabrera court excluded these experts because they based their testimony on unpublished “aficionado’s knowledge.” if at 1423. In excluding plaintiff’s expert witnesses, the court stated the following: “[The expert witness] stated that relevant information was essentially left unpublished and unlearned. It was not conveyed to the medical community on average. It is what we call an aficionado’s knowledge . . . it has simply been kept very closed to manufacturing circles and has not been shared with the medical community. By [the expert’s] own characterization, he is relying on underground knowledge, untested and unknown to the scientific community. An opinion based on such unsubstantiated and undocumented information is the antithesis of the scientifically reliable expert opinion admissible under Daubert and Rule 702.” dd, (emphasis added) (internal quotations and citations omitted). Likewise, in this case, Dr. Cohen’s testimony is based on unpublished “aficionado’s knowledge,” which” is the antithesis of . . . scientifically reliable expert opinion.” fd. Accordingly, this Court should exclude Dr. Cohen’s opinion testimony as unreliable and without foundation. -9- DEFENDANT'S MOTION WN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT DR. RICHARD COHEN [Mi 35} SF:27418586.1CO Oe NY DH HA RB WD eH S it 28 MCKENNA LONG & ALbaioce LLP AVTORNEYS AT LAW Sak FRancisco In. CONCLUSION Based on the foregoing, Defendant respectfully requests that the Court grant this Motion Jn Limine and enter an order precluding any opinions by Dr. Richard Cohen at trial. Dated: — April 5, 2010 MCKENNA LONG & ALDRIDGE LLP By: ll big G. lle Lisa L. OBERG DANIEL B. HOYE ALECIA E. COTTON Attorneys for Defendant METALCLAD INSULATION CORPORATION -10- DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF PLAINTIFFS EXPERT DR. RICHARD COHEN IMIL 35} SF:27418586.1