Motion,Ex Parte: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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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

METALCLAD INSULATION CORPORATION

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 13 2010

Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

County OF SAN FRANCISCO

JOYCE JUELCH and
NORMAN JUELCH, SR.,

Plaintiffs,
v.

ASBESTOS DEFENDANTS, (BP), ef ai.,

Defendants.

Case No. CGC-09-275212

DEFENDANT’S MOTION IN LiviInE TO
PRECLUDE Misuse OF THE “SUBSTANTIAL
FACTOR” STANDARD OF CAUSATION [MIL 23]

TriaL Date: Apri 5, 2010
Depr.: 604
JUDGE: HONORABLE Marva J. MILLER

DEFENDANT'S MOTION IN LIMINE TO PRECLUDE MISUSE OF THE “SUBSTANTIAL FACTOR’ STANDARD OF CAUSATION [MiL 23}

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MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

L
INTRODUCTION

Plaintiffs are anticipated to improperly argue that Plaintiff's exposure to the above-named
defendant (“Defendant”)’s product was “more than zero but less than 100% of his total exposure
to asbestos” and, therefore, the jury should assign Defendant a percentage of liability “that is
neither zero nor 100%,” but which must be somewhere in between. Plaintiffs’ argument is
derived from the unsupportable position that every exposure to asbestos above background or
ambient levels is a substantial contributing factor in causing Plaintiff's asbestos-related disease.
This equates to an “any exposure equals liability” argument which is contrary to established case
law, improper, grossly prejudicial and should be precluded. Accordingly, Defendant seeks an
order precluding all parties, counsel and witnesses from discussing or conveying this opinion to
the jury.

‘The law is clear and undisputed. It is clearly not the law that any exposure contributes to
being a substantial factor. Plaintiffs must show that the exposure is of such a degree or character
that it constitutes a substantial factor. Plaintiffs’ medical experts cannot be allowed to make the
law meaningless by pronouncements that any exposure equals causation. The California Supreme
Court has set forth the two-part test for causation to be used in actions for asbestos-related
personal injury:

‘The Plaintiff must first establish some threshold exposure to the
Defendant’s defective asbestos-containing products, aad must
Jurther establish in reasonable medical probability that a particular

exposure or series of exposures was a ‘legal cause’ of his injury, ie.
a substantial factor in bringing about the injury.

Ruaherford » Owens-Illinois, lac (1997) 16 Cal.dih 953, 982 (emphasis partially in original:
footnote omitted),

H.
LEGAL STANDARD FoR EXCLUSION

A. DEFENDANT MAY PropeRLY Move To EXCLUDE PLAINTIFFS’ ULTIMATE CAUSATION
THEORY AS INADMISSIBLE UNDER KELLY-FRYE

Defendant seeks to exclude evidence that is “supported” only by unreliable opinion
testimony based on theories and hypotheses which can neither be tested or scientifically

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DEFENDANT'S MOTION IN LIMINE TO PRECLUDE MISUSE OF THE “SUBSTANTIAL FACTOR’ STANDARD OF CAUSATION [MIL 23]
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MCKENNA LONG &
AtoRipGs LLP.
ATTORNEYS AT LAW
Saw FRANCISCO

evaluated. A party may move a court for an order excluding from evidence the testimony and
opinions of an opposing party’s expert. (California Evidence Code sections Ta). 801(b), and
803; Pree v. (28. (1923) SM App.D.C. 46; People «. Kelly 1976) 1? Cal. 3d 24.) Under these
authorities an expert’s opinion must be rigorously scrutinized because:

The law does not accord to the expert’s opinion the same degree of
credence or integrity as it does the data underlying the opinion.
Like a house built on sand, the expert’s opinion is ne better than
the facts upon which it is based.

When an expert bases his or her conclusions on assumptions not

supported by the record, on matters not reasonably relied on by

other experts, or on factors that are remote, speculative, or

conjectural, then his or her opinion lacks evidentiary value.
(Peaple v. Gardefey (1996) 14 Cal 4th 605. 618, emphasis added; ffvait v. Sierra Boat Co. A978)
79 Cal App. 3d 325, 338-339.) Under the Kv//y test, plaintiffs bear the burden of showing that the
scientific technique at issue satisfies a three-step analysis:

(1) the scientific method upon which the expert testimony is
based must be “reliable,” which in this context means
showing that the technique has “gained general acceptance
in the particular field in which it belongs”;

(2) _ the witness must be qualified as an expert to give an
opinion in the area; and.

GB) the correct scientific procedures must be used.

(Kelly at 30.) Failure to satisfy even one prong of this test results in exclusion of the opinion.
(dy

‘The “every exposure” opinion of Plaintiffs’ experts not only fails to satisfy the Frye test
for admissibility, but it is not supported by any generally accepted methodologies in the relevant

scientific fields.

TIL.
ARGUMENT

A. PLAINTIFFS MUST PROVE ExposuRE To DEFENDANT’S PRODUCT AND THAT SUCH
Exposure Was A “SUBSTANTIAL FACTOR” IN CAUSING INJURY

The California Supreme Court has set forth the two-part test for causation to be used in

actions for asbestos-related personal injury:

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MCKENNA LONG &
ALDRIOGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO.

The Plaintiff must first establish some threshold exposure to the
Defendant’s defective asbestos-containing products, and must
further establish in reasonable medical probability that a particular
exposure or series of exposures was a ‘legal cause’ of his injury, i.e.
a substantial factor in bringing about the injury.

Rutherford v, Owens-Itlinuis, Ine (19973 16 Cal 4th 953. 982 (emphasis partially in original;
footnote omitted).

This test was adopted from /ineaweaver v. Plan Insulation Co, (1993) 34 Cal. App.ath
1409. 1416. “(T]he proper analysis is to ask whether the Plaintiff has proven exposure to a
Defendant’s product . . . and then to evaluate whether the exposure was a substantial factor.” To
be substantial, the exposure’s effect must be more than “negligible or theoretical.” Rutherford.

ue

supra, at 982, It must be more than negligible because “‘the substantial factor’ test subsumes the
but for test” of causation: an “actor’s negligent conduct is not a substantial factor — in bringing
about harm to another ~ ifthe harm would have been sustained even if the actor had not been
negligent,” Viner v. Sweet (2003) 30 Cal. 4th 1232. 1239, quoting Mitchell v. Gonzales (991) 34
Cal.3d 1041, 1032 and Rest.2d Torts, $432 (emphasis in } ier). A “substantial factor” necessary
to prove causation must be truly substantial, not just “minor,” “theoretical,” or “infinitesimal.”
Bockrath v. Ahdvich Chemica! Co. (1999) 2} Cal 4th 71. 79,

The burden to prove causation is borne by plaintiffs. Thus, plaintiffs must both

(1) establish a “threshold exposure” to Defendant’s products, and (2) prove that such exposure

was a “substantial factor” in causing Plaintiffs injuries.

B. PLAINTIFFS’ ANTICIPATED “0-100%”/" EVERY EXPOSURE” ARGUMENT IGNORES THE
RUTHERFORD TEST

It is anticipated that plaintiffs’ counsel will argue that two percentages of Plaintiff's
exposure to Defendant’s product is not correct — zero and one hundred percent. Counsel will
argue that once any type of exposure to Defendant’s product is shown, it is then Defendant’s
burden to show how much lower than one hundred percent exposure to Defendant’s product,
Plaintiff's exposure was. This all or nothing argument rests on the improper proposition that
exposure to any amount of asbestos above “background” levels, regardless of frequency, intensity
or duration causes asbestos-related disease. In other words, Plaintiffs contend that “every

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MCKENNA LONG &
ALoRIOGE LLP
ATTORNEYS AT Law
SAN FRANCISCO

exposure” or “every breath” of asbestos above background is a substantial factor in causing an
asbestos-related disease. Under this argument, no exposure to asbestos is too “negligible or
theoretical” to escape a finding of liability.

The opposite, however, has been held by California’s highest court. In Ausferford, the
Court recognized there could be exposure to a product that is “negligible or theoretical” and
therefore would not count as a “substantial factor in bringing about the injury.” 16 Cal 4th at 978.
982. Rutherford holds that substantial factor causation in the asbestos context, as here, requires
proof by plaintiffs of two prongs ~ “exposure” plus “substantial factor.” /c/ at 982. Proof of
exposure to Defendant’s product would satisfy only the first step and does not, by itself, establish
substantial factor causation. The Supreme Court requires that plaintiffs’ burden extends into
proof the exposure was a “substantial factor” and more than “negligible or theoretical” in causing
the asbestos-related disease. Accordingly, plaintiffs’ anticipated “0-100%” argument will not
comply with existing case law.

Cc PLAINTIFFS’ STANDARD FOR CAUSATION Is “FICTION”

Plaintiffs’ position that “every exposure” or “every breach” of asbestos above background
levels is a substantial factor in causing Plaintiff's asbestos-related disease. This position of
Plaintiffs and Plaintiffs’ experts ignores Rutherford, and is unsubstantiated. In fact, this opinion
is actually not even a scientific hypothesis — it is, as so succinctly put by the Pennsylvania
Supreme Court, nothing more than a “fiction,” dressed up as an expert opinion, created for the
sole purpose of holding every asbestos defendant liable without the necessity of proving
exposure, dose or causation. The court should recognize this fiction for what it is, an opinion
which is totally unsupported by any recognized science or scientific methodology.

Despite its lack of any scientific support, this “every exposure” opinion, which plaintiffs’
experts universally apply to every defendant, provides obvious and substantial benefits to
asbestos plaintiffs: it obviates the need to retain qualified industrial hygienists to quantify the
actual level of asbestos exposure from each defendant’s products (because any exposure,
whatever small, is supposedly enough); it eliminates the need to prove that a given quantity is

sufficient to cause disease (specific causation); it avoids any reason for discussing the type or
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MCKENNA LONC &
ALDRIDGE LLP
ATTORNEYS AT LAW
San FRANCISCO.

potency of the asbestos to which plaintiff was exposed; it shifts the burden of proof from plaintiff
to defendant to show which exposures are not causation (in direct violation of the Supreme
Court's decision in Ruderiord vy. Owens-Illinois (1977) 16 Cal 4th 933); and it forces most
defendants to settle before trial to avoid the risk that a court will allow this testimony and a jury
will believe it.

In fact, this “any exposure” opinion has been held to be inadmissible, or insufficient to
support a finding of causation by at least fourteen courts across the country, including both
federal and state courts’.

IV.
CONCLUSION

The California Supreme Court has recognized that some exposures to asbestos are too
negligible to be considered a legal cause of injury. Plaintiffs’ improper “every exposure means
liability” or “0-100%” arguments are in direct conflict with the Court’s holdings and should be
precluded. Plaintiffs’ improper argument must be nipped at the beginning rather than later, after
the jury has already been poisoned with prejudicial evidence. Since it is likely plaintiffs’ counsel
may make these prejudicial arguments in opening statements, the Court should advise plaintiffs

and their counsel that it will not allow the improper arguments at any time during trial.

‘ex. 2007) 232 SW. 3d 268. 774; Gregg wh Auto Party.
SE DA 2003) 2007 WI. XE Ou? Pa. LEXIS

» ALD, 03-319) 2006
1058 WDA 2006;
EBHO2) 2007 WI.

1 Borg-Warner Corp. v. Flores (1
fae. (Pa. Sup. Ct, Dev. 28, 2007, Now:
2935}; Vogelsherger vy. Owens-Hiinoi:
WIL. 2404008 at 13, on appeal; Be vb :
Georgia-Pacific Corp. v. Stephen: I. 26. 2007. Na. 22
2343882; Bartel y Jolu Crane inc (S. 1. Ohio 2¢ 4) 316 FL Supp.2d O03. O11, aff'd Lindsirom v.
"Prod. Lieh Trust (6th Cir, 2008) 424 F. 3d 488; bere HOR Grace & Co. (Bkrtes. D. Det.

. } 335 BR. 462, 474. 478. No. O1-0113 19 2006 WE 3a001 76 #20; Brooks vy. Stone
Architecnare (Miss Ct App. 2006) 934 Su.2d 38 3 Ederson v, ‘Lhe stos Corp.. Lid. et
ai, (Wash. Super.) Neo. GF {transcript of bench ruling, October 31, 2006, at 144-
45.); Letter Ruling, /7 re . Ishestos 4 ex. Dist. Ct. Trth Dist. huis County fan. 30. 2004) No.
2004-03964; Letter Ruling, Inve Ishestos (lex. Dist. CL. Pith Dist. (larris County Jul i
2007) No. 20d. 3964; Basile v. American Honda Motor Co. (Pa. CL Com. PL Feb. 22 }
Order Granting Caterpillar Inc.'s Motion to Exclude Plaintiffs’ Expert ‘Testimony, No. | 1484 cD
2005; Srammers v. Certain) eed Curp. (Pa. Super, 2005) 886 \.2d 24n. 244.

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McKenna LONG &
Avoaipce LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Alternatively, Defendant requests that the Court schedule an fvidesee Code § 402 hearing

to hear testimony and argument as to the admissibility of this expert opinion, including the

scientific bases, if any, for the opinion.

Dated: — April 5, 2010

MCKENNA LONG & ALDRIDGE LLP

By: | lu C. [ he

“Lisa L. OBERG
DANIEL B. HOYE
ALECIA E. COTTON

Attorneys for Defendant
METALCLAD INSULATION
CORPORATION

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GEFENDANT'S MOTION IN LIMINE TO PRECLUDE MISUSE OF THE “SUBSTANTIAL FACTOR STANDARD OF CAUSATION [MIL 23}

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