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

BURNHAM BROWN ELECTRONICALLY
A Professional Law Corporation

Oakland, Calif ia 94604-0119 sper ir Eee
_ and, " ornta . County of San Francisco
1901 Harrison Street, 14th Floor FEB 21 2012
Oakland, California 94612 Clerk of the Court
Telephone: (510) 444-6800 BY: VANESSA WU
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. 2

v. DEFENDANT YORK
INTERNATIONAL CORPORATION’S
ASBESTOS DEFENDANTS (B*P), MOTION IN LIMINE TO EXCLUDE
THE EXPERT TESTIMONY OF
Defendants. KENNETH COHEN, C.LH.

Date:

Time:

Dept: 608

Judge: Hon. Curtis E. A. Karnow

Complaint Filed: March 2, 2009
Pretrial Date: March 9, 2012

1. INTRODUCTION

Defendant York International Corporation (“York”) respectfully moves this Court in
limine before trial and before selection of the jury, for an order excluding the opinion testimony
of Plaintiffs’ expert industrial hygienist Kenneth Cohen (C.I.H.) with respect to the levels of
asbestos to which Plaintiff Charles Husband (“Plaintiff”) was allegedly exposed. It is
anticipated that Mr. Cohen, as his previous record establishes, will formulate exposure

quantification on a foundation neither reliable nor based upon generally accepted methodology.

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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO EXCLUDE THE EXPERT CGC-09-275098
TESTIMONY OF KENNETH COHEN, C.LH..eC SP AD A Re RO Be

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In particular, York anticipates that Cohen will testify that all of the exposures that Plaintiff
encountered were a substantial exposure. In Cohen’s opinion “substantial” exposure is a level of
exposure in excess of ambient. Absent proof of the requisite foundation for his opinions,
Mr. Cohen’s testimony is entirely speculative and based on conjecture, As such, it has minimal
probative value and in order to prevent substantial prejudice to York, the exclusion of Mr.
Cohen’s testimony in warranted,
WU. LEGAL ARGUMENT

A. Requirements For The Admissibility Of Expert Testimony

California Evidence Code section 801(b) permits an expert to testify to an opinion
“[b]ased on matter (including his special knowledge, skill, experience, training, and education)
perceived by or personally known to the witness or made known to him at or before the hearing,
whether or not admissible, that is of a type that reasonably may be relied upon by an expert in
forming an opinion upon the subject to which his testimony relates, unless an expert is precluded
by law from using such matter as a basis for his opinion.”

B. Cohen’s Opinion Traditionally Consists Of Entirely Impermissible

Legal Opinions

Cohen generally testifies that “any exposure in excess of ambient is considered
“substantial.” His opinion will be offered to establish the legal doctrine of Causation. Cohen’s
opinion is generally offered to establish that every exposure that a Plaintiff encounters was a
substantial factor in contributing to his injury. The term “substantial” is a conclusion of law. In
Rutherford v. Owens-Illinois, 16 Cal. App. 4th 953, 976-977 (1997), the court held that
“plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the
plaintiff's exposure to defendant’s asbestos-containing product in reasonable medical probability
was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent
inhaled or ingested...” As a scientific expert, Cohen is required to employ scientifically valid
techniques and methods to support his opinions and not his own private conclusions of law.
Courts will not ordinarily consider an expert’s opinion to the extent it is a conclusion of law.

Kahn v. East Side Union High School Dist., 31 Cal. 4th 990, 1017 (2003). Because Mr. Cohen’s

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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO EXCLUDE THE EXPERT CGC-09-275098
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opinion testimony is offered to establish a conclusion of law rather than scientifically valid

techniques, his opinion is impermissible and should be excluded.

C, Cohen’s Anticipated Testimony Lacks Evidentiary Foundation And
Should Be Excluded

Pursuant to California Evidence Code section 801, “(t]he court may, and upon objection
shall, exclude testimony in the form of an opinion that is based in whole or in significant part on
matter that is not a proper basis for such an opinion...”

If Cohen testifies that any exposure in excess of ambient is substantial, he must provide a
basis for his conclusions of exposure. Generally, he suggests that the exposures are “substantial”
without relying on any epidemiological or hygienic studies to support his opinions. When a
witness qualifies as an expert, he does not possess a “carte blanche” to express any opinion

within the area of expertise. Summers v. L.A. Gilbert Co., 69 Cal. App. 4th 1155, 1178 (1999).

In order for an opinion to have evidentiary value, the expert’s opinion must be accompanied by a
reasoned. explanation connecting the factual predicates to the ultimate conclusion. Kelley v.
Trunk, 66 Cal. App. 4th 519, 524-525 (1998).

In the past, Cohen has not provided any reasoned explanation for his opinion and has not
provided any bases for concluding that every exposure above ambient is substantial. Further,
Cohen does not employ superior scientific knowledge and training as an expert to connect the
facts of this case with his ultimate conclusion. Cohen’s opinion is generally speculative. Where
an expert bases his conclusions upon assumptions which are not supported by the record and
upon matters which are not reasonably relied upon by other experts, or upon factors which are
speculative, remote or conjectural, then his conclusion has no evidentiary value. Lockheed
Litigation Cases, 115 Cal. App. 4th 558, 564-565 (2004). Based on the facts above, Cohen’s

testimony should be excluded.

D. Cohen's Opinion Testimony Will Be Prejudicial and Should Be
Excluded

California Evidence Code section 352(b) provides: “[t]he court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability that its

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DEF, YORK INTERNATIONAL CORPORATION’S MOTION IN LIMINE TO EXCLUDE THE EXPERT CGC-09-275098
TESTIMONY OF KENNETH COHEN, C.LHL.ee RD Hh Re BW NM OF

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admission will (a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” Any testimony offered by
Cohen using the terminology “substantial exposure” should be precluded on the grounds it will
unduly prejudice York. Plaintiffs must prove in this case that the exposure to a Defendant’s
product was a “substantial factor” in causing Plaintiff's harm. Rutherford, 16 Cal. 4th at 976-
977. Allowing Cohen to present to the jury his conclusion that Plaintiff was substantially
exposed to asbestos in the absence of any factual information or documents in support of his
opinion is prejudicial and misleading. Cohen’s subjective testimony regarding “substantial
exposure” to Plaintiff is without proper foundation and should be excluded. If the testimony is
presented to the jury, York’s right to a fair trial will be violated.
Til. CONCLUSION

For the foregoing reasons, Defendant York International Corporation respectfully
requests that this Court exclude the trial testimony of Kenneth Cohen in its entirety. At the time
of serving this motion, the complete transcript of Cohen’s deposition had not yet been received.
As such, York reserves the right to supplement the instant motion with case specific testimony if
appropriate and when available.
DATED: February 21, 2012 BURNHAM BROWN

By. SH

RAYMOND A. GREENE, III

“ Attorneys for Defendant
YORK. INTERNATIONAL CORPORATION

1114888

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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO EXCLUDE THE EXPERT CGC-09-275098
TESTIMONY OF KENNETH COHEN, C.LH..Re: Charles Husband v. Asbestos Defendants (BP)
Court: San Francisco Superior Court
Action No: CGC-09-275098

PROOF OF SERVICE OF ELECTRONIC SERVICE

{ 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 THE EXPERT TESTIMONY OF KENNETH COHEN,
CLL .

on recipients designated on the Transaction Receipt located on the LexisNexis Fi ile &
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 February 21, 2012,

at Oakland, California.
File (dbs pyr Po tine LO
¢

Linda Andrew-Marshall

1040060

PROOF OF SERVICE CGC 09-275098