Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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Dean Pollack, State Bar No. 176440
Raymond A. Greene, III, State Bar No, 131510

BURNHAMBROWN ELECTRONICALLY
A Professional Law Corporation

P.O, Box 119 FILED
Oakland, California 94604-0119 Superior Court of California,
we County of San Francisco
1901 Harrison Street, 14th Floor JUN 01 2012
Oakland, California 94612 Clerk of the Court
Telephone: (510) 444-6800 BY: ALISON AGBAY
Facsimile: (510) 835-6666 Deputy Clerk

Attorneys for Defendant
YORK INTERNATIONAL CORPORATION

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
" UNLIMITED JURISDICTION

CHARLES HUSBAND, No, CGC-09-275098
Plaintiff, MOTION IN LIMINE NO. 7

v. : DEFENDANT YORK

. INTERNATIONAL CORPORATION’S
ASBESTOS DEFENDANTS (BP), MOTION IN LIMINE TO EXCLUDE
MEDICAL TREATISES, BOOKS AND
Defendants. ARTICLES WHICH ARE
INADMISSIBLE HEARSAY AND
LIMIT THE TESTIMONY OF
RICHARD COHEN, M.D.

Date: June 4, 2012

Time: 9:00 a.m.

Dept.: 608

Judge: Hon. Curtis E. A. Karnow

Complaint Filed: March 2, 2009
Trial Date: June 4, 2012

IL. INTRODUCTION

Defendant YORK INTERNATIONAL CORPORATION (“York”) respectfully moves this
Court for an Order in Limine limiting the testimony of Plaintiffs’ expert Richard Cohen, M.D. as

follows:
1

DEFENDANT YORK INTERNATIONAL CORPORATION’S MOTION IN LIMINE TO EXCLUDE CGC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT
THE TESTIMONY OF RICHARD COHEN, M.D.Co Pe SW DR A RF WY NR

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1. The recitation by Dr. Cohen on direct examination of the hearsay contents of
medical and scientific articles, text books and other similar documents. The documents are
hearsay and Dr. Cohen’s interpretation of such documents as well as the purported impact, or
lack thereof, on companies with alleged access to such documents, under the guise of “expert”
testimony does not constitute proper expert testimony; and

2. Cohen’s interpretation of Defendant’s internal documents as to what these
documents purportedly show about Defendant’s knowledge of certain hazards associated with
asbestos. Such testimony is nothing more than lawyer’s arguments dressed up under the guise of
“expert” testimony.

Defendant asks that this Court limit Dr. Cohen’s testimony on these subjects to exclude
Dr. Cohen’s interpretation of the documents as well as their purported impact, which amounts to

nothing more than the admission of otherwise inadmissible hearsay.

, IJ. LEGAL ARGUMENT
A. DR. COHEN CANNOT BE PERMITTED TO RECITE THE
CONTENTS OF MEDICAL AND SCIENTIFIC ARTICLES OR TO
PROVIDE AN INTERPRETATION OF THE CONTENTS OF THE
ARTICLES OR OF THEIR IMPORT
An expert may state on direct examination the matters on which his or her opinion is
based. People v, Catlin, (2001) 26 Cal. 4th 81, 137. An expert may not, however, testify as to
the details of matters if they are otherwise inadmissible. This includes hearsay evidence as
defined by Evidence Code section 1200. The expert “may not under the guise of reasons [for his
or her opinion] bring before the jury incompetent hearsay evidence.” People y. Colem:
(1985) 38 Cal. 3d 69, 92. Defendant anticipates that Plaintiffs will attempt to have Dr. Cohen
read from articles, texts, and documents he has collected, Such testimony is hearsay, plain and
simple. Among other things, an expert may not testify as to the context of reports on which his
opinion is based, Continental Airlines, Inc. v. McDonnell Douglas Corp., (1989) 26 Cal. App.
3d 388, 416. The court may exclude from an expert’s testimony any hearsay matter whose
irrelevance, unreliability, or potential for prejudice outweighs it proper probative value. People

v, Catlin, (2001) 26 Cal, 4th at 137.
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DEFENDANT YORK INTERNATIONAL CORPORATION’S MOTION IN LIMINE TO EXCLUDE CGC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT
THE TESTIMONY OF RICHARD COHEN, M.D.ee NY RH RB WB He

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Nor may Dr. Cohen regurgitate the contents of these inadmissible hearsay documents

under the guise of giving expert testimony. People y. Coleman, supra, 38 Cal. 3d at 92;
Continental Airlines, Inc. v. McDonnell Douglas Corp., supra, 26 Cal. App. 3d at 414-416,

In Coleman, the Supreme Court describes the 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.

Dr. Cohen should not be permitted to testify as to the contents of the hearsay documents.
Under Coleman, Dr. Cohen may state only that he has relied on the hearsay medical works, “he
may not testify as to the details of such matters [because] they are otherwise inadmissible.” Id.

Admission of such hearsay would be unduly prejudicial to Defendant since it will be
impossible for Defendant to address the methods, underpinnings, and assumptions of these
materials because the authors of such materials will not be subject to cross examination.

It is expected that Plaintiffs will argue that such testimony is not hearsay because it is not
offered for the truth of the matters asserted, but instead goes to show that Defendant should have
been on “notice” as to information about hazards associated with asbestos. This is a deceptive
rationale and this Court should reject it. To trigger a duty to warn, the notice in question must
logically be of factual findings — that is of reliable, truthful, non-speculative knowledge
concerning dangers related to a defendant’s product. Therefore, Plaintiffs’ offer of Dr. Cohen’s
opinion implicitly and necessarily asks the finder of fact to assume the contents of the
documents related by Cohen are true. While asking the finder of fact to make that assumption,
however, Plaintiffs necessarily ask the Court to ignore it — that is, to overlook the fact that
proffering a statement or statements as evidence of notice is equivalent to advancing an
argument for their truth.

The problem of expert opinion on notice that relies on out-of-court opinions and
conclusions was addressed by the California Supreme Court in Whitfield v. Roth, ( 1974) 10 Cal.

3d 874. Whitfield dealt with out-of-court statements admitted, over objection, to show the basis
3

DEFENDANT YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO EXCLUDE CGC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT
THE TESTIMONY OF RICHARD COHEN, M.D.ee WD RH &® HB YP

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for expert opinion about the interpretation of x-rays in a medical malpractice case. Plaintiff,
paralyzed as a result of delays in treatment, contended that a particular set of x-rays were
sufficient to put defendant physician and hospital on notice of her brain tumor. Id, at 893. Two
testifying physicians cited (and recited) the out-of-court statements of some 54 other doctors as
the basis for the witnesses’ opinions that the x-rays did not indicate the condition. Id, at 893-
894.

The out-of-court statements, repeated in court over objection, were held to be
inadmissible hearsay. The Court noted that the out-of-court testimony of the 545 doctors was
offered “to establish the opinion of such latter [testifying] doctors that the 1961 x-ray films
showed no abnormality. This was clearly hearsay. Id. at 896. Implicit in this holding is the
recognition that if not offered for their truth, and with the assumption of their truth (rendering
them hearsay by definition), the out-of-court statements of the 54 doctors would be meaningless.
As the Court stated, “it is eminently clear that the testimony concerning the out-of-court doctors’
opinion...was offered solely for the improper hearsay purpose, namely as ‘independent proof of
the facts” [citations omitted].” Ibid; see also Mosesian v. Pennwalt Corp. (1987) 191 Cal. App.
3d 851, 860.

The articles Defendant anticipates that Dr, Cohen will testify about are similarly offered
as independent proof of the alleged fact that a hazard existed of which Defendant should have
been, or was, aware. Plaintiffs’ argument that such articles merely support an opinion as to
notice is nonsensical because if the articles in question were not true, they could not support the
ptoposition that they constituted notice (recalling, of course, that the articles, letters, and
editorials in question are filtered through Dr. Cohen’s interpretations). [f not taken for such truth
of the matter asserted, they cannot possibly serve to support the contention that anyone was on
notice of any danger. This problem and the attendant danger of prejudice are compounded by
the fact that the articles address not only notice but, like the hearsay statements in Whitfield, “the
crucial issue in the case”: general causation.

Moreover, as the court noted in People v. Coleman, where an expert is permitted to recite

inadmissible hearsay to the jury, even a limiting instruction may not remedy the problem of the
4

DEFENDANT YORK INTERNATIONAL CORPORATION’S MOTION IN LIMINE TO EXCLUDE CGC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT
THE TESTIMONY OF RICHARD COHEN, M.D.wee WR OR ke we ee

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admission of such hearsay evidence. People v. Coleman, supra, 38 Cal, 3d at 92. “The trial
court must exercise its discretion pursuant to Evidence Code section 353 in order to limit the
evidence to its proper uses. The exercise of this discretion may require exclusion of portions of
inadmissible hearsay which were not related to the expert opinion. ..In still other cases where the
risk of improper use of the hearsay outweighs its probative value as a basis for the expert
opinion it may be necessary to exclude the evidence altogether.” Id, at 92-93.

Finally, any probative value of Dr. Cohen’s recitation of these hearsay documents is
substantially outweighed by the prejudicial effect of such testimony. Under Evidence Code
section 352, the court in its discretion may exclude evidence its probative value is substantially
outweighed by the possibility that its admission will: (a) necessitate undue consumption of time;
or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading he
jury.

As noted above, the Court may testify about hundreds of documents, which, as he
summarizes them, collectively depict any form of asbestos in any use as a deadly toxin, and all
manufacturers that utilized asbestos-containing products as corporate miscreants. The Court will
be told, of course, that these documents are offered not for the truth of the matter asserted, but
for the effect they should have had or did have upon Defendant and other companies using
asbestos. Aside from the logical contradiction in this proposition, it will almost certainly be
impossible for the jury to maintain this highly abstract distinction where confronted with
supposedly scientific documents addressing a key issue in the case. In fact, in anything but a
scholastic sense, Dr. Cohen’s testimony is about causation, not about state of the art. Should he
be allowed to testify under this Court’s imprimatur as an expert, it will be difficult, if not
impossible for the jury to avoid drawing conclusions on that issue from his testimony.

Defendant’s only recourse in that event would be to rebut each: document, consuming
enormous amounts of time and taking the jury’s patience and understanding. Through such
rebuttal, Defendant would run the risk of reinforcing the hearsay statements in the jurors’ minds.
The jury, meanwhile, would be required to penetrate multiple layers of hearsay and second-hand

summarizing ~ all to the end of recognizing the shaky underpinnings of testimony that should
5

DEFENDANT YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO EXCLUDE CGC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT
THE TESTIMONY OF RICHARD COHEN, M.D. . °So 2 1 A eH  B HPS

never have been admitted in the first place.

Moreover, in giving his subjective spin and interpretation of the documentary evidence,
Dr. Cohen is in fact, arguing the evidence. The attorneys, not the witnesses, must make any such
argument. Inre Air Disasterat New Orleans, (5th Cir. 1986) 795 F.2d 1230, 1233 (‘the trial
judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in
argument”). Dr. Cohen may be able to testify as to the existence of historical documents and the
steps he took to locate the documents, but this Court should not permit him to interpret the
contents of the documents nor to speculate as to what Defendant may or may not have known
concerning the contents of those documents, not should he be permitted to speculate regarding
the effect the documents may or should have had on Defendant. Accordingly, Defendant
respectfully requests that this Court limit Dr. Cohen’s testimony to the identification of the
documents he located during his research and a description of the steps he took to locate each

document.

B. DR. COHEN’S SUBJECTIVE INTERPRETATION ABOUT
DEFENDANT’S INTERNAL DOCUMENTS IS NOT A PROPER
SUBJECT OF EXPERT TESTIMONY

‘The test for the necessity of expert opinions and conclusions depends upon several
factors.

One factor is the expert’s skill and knowledge. A second factor is whether the trier of
fact can satisfactorily appraise the evidence without the expert’s help. As was pointed out in

People v. Arguello, (1966) 244 Cal.App2d 413:

The decisive consideration in determining the admissibility of expert opinion
evidence is whether the subject of inquiry is one of such common knowledge that
men of ordinary education could read a conclusion as intelligently as the witness
or whether, on the other hand, the matter is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.

Id. at 420.

Plaintiffs’ attempt to have Dr. Cohen discuss and interpret Defendant’s internal
documents is not expert witness testimony — it is lawyer’s argument as to what Defendant
supposedly knew about asbestos dressed up as expert testimony. The jury does not need an

expert witness to recite to them the contents of documents, The documents, if admissible, speak
6

DEFENDANT YORK. INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO EXCLUDE CGC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT
THE TESTIMONY OF RICHARD COHEN, M.D.Ce ey DH & BH NH

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for themselves.

Nor can Plaintiff's have Dr. Cohen speculate on the effect, or lack thereof, such
documents had or should have had on Defendant. Dr. Cohen had no involvement in any of the
events discussed in these documents, he has no personal knowledge as to what is discussed in
the documents, and thus any opinions he might wish to offer a jury regarding either their import
or effect as to Defendant have no basis, Because he lacks any proper basis for offering an
opinion as to the effect such documents had or should have had on Defendant, his opinions in
that regard are inadmissible and this Court should exclude any such opinions Plaintiffs attempt
to elicit from Dr. Cohen in this matter. Evid, Code § 803.

It is the exclusive purview of the jury to determine what import or credence to give to
evidence, Evid. Code § 312(b). To permit Dr, Cohen to re-interpret the documents and to
impart his unsupported opinions as to their import for the jury, would eviscerate the role of the
jury in this case,

Cc INTRODUCTION OF DR. COHEN’S TESTIMONY WOULD

CREATE A SUBSTANTIAL DANGER OF UNDUE PREJUDICE,
OF CONFUSING THE ISSUES AND MISLEADING THE JURY
AND WOULD NECESSITATE UNDUE CONSUMPTION OF TIME

Evidence Code § 352 permits the Court to exclude evidence if its probative value is
substantially outweighed by the probability that its admission will necessitate under
consumption of time or create a substantial danger of undue prejudice, of confusing the issues or
misleading the jury. Dr. Cohen’s testimony has the tendency of misleading the Jury into
thinking that simply because some obscure article was published in a medical journal of limited
circulation, that companies or defendants should be on notice and held to the same level of
knowledge and appreciation of the harm. If such were the case, then Dr. Cohen’s opinions
should likewise encompass unions, employers, or similarly situated trades. This allusion creates
the real likelihood of unduly prejudicing the defense.

In turn, Defendants will be required to spend more time on rebuttal testimony that
ultimately is designed to undercut the credibility of the witness and diminishes the basis of his

opinions. Ultimately, even with such time-consuming rebuttal evidence, there will be undue
7

DEFENDANT YORK INTERNATIONAL CORPORATION’S MOTION IN LIMINE TO EXCLUDE CGC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT.
THE TESTIMONY OF RICHARD COHEN, M.D.ec me a KD Hh F YB NH

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prejudice to defendants if the jury were to accept Dr. Cohen’s unreliable opinions. Avoiding
such consumption of time, confusion and possible undue prejudice are sufficient grounds to limit
his testimony under Evidence Code § 352.

Ii. CONCLUSION
For the reasons stated herein above, Defendant YORK INTERNATIONAL

CORPORATION respectfully requests that this Court grants Motion in Limine No. 7 and limit
the testimony of Plaintiffs’ expert Richard Cohen, M.D. to identification of the articles he has
located regarding “state of the art” and a description of the methods he employed in locating

those articles.

DATED: June 1, 2012 BURNHAM BROWN

By YO po—-

RAYMOND A. GREENE, III

Attorneys for Defendant
YORK INTERNATIONAL CORPORATION

1156658

8

DEFENDANT YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO EXCLUDE COC-09-275098
MEDICAL TREATISES, BOOKS AND ARTICLES WHICH ARE INADMISSIBLE HEARSAY AND LIMIT
‘THE TESTIMONY OF RICHARD COHEN, M.D.Re: Charles Husband v. Asbestos Defendants (BP)
Court: San Francisco Superior Court
Action No: CGC-09-275098

PROOF OF SERVICE OF ELECTRONIC SERVICE

I declare that I am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnham Brown whose business address is 1901 Harrison Street,
14" Floor, Oakland, Alameda County, California 94612 (mailing address: Post Office
Box 119, Oakland, California 94604).

On the date executed below, I electronically served the document(s) via
LexisNexis File & Serve described as:

DEFENDANT YORK INTERNATIONAL CORPORATION’S MOTION IN
LIMINE TO EXCLUDE MEDICAL TREATISES, BOOKS AND ARTICLES
WHICH ARE INADMISSIBLE HEARSAY AND LIMIT THE TESTIMONY OF
RICHARD COHEN, M.D.

on recipients designated on the Transaction Receipt located on the LexisNexis File &
Serve website. I declare under penalty of perjury under the laws of the State of
. California that the foregoing is true and correct and was executed on June 1, 2012, at

Oakland, California. .
4 .
CPhob\K AA sou PP erahel)

Linda Andrew-Marshall — ‘

1040060

PROOF OF SERVICE CGC 09-275098