Motion,Ex Parte: GODOFREDO PIQUE VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                DAVID T. BIDERMAN, State Bar No. 101577
dbiderman@perkinscoie.com

BRIEN F. MCMAHON, State Bar No. 66809
bmemahon@perkinscoie.com

ERIC D. SENTLINGER, State Bar No. 215380
esentlinger@perkinscoie.com

PERKINS COIE LLP

Four Embarcadero Center, Suite 2400

San Francisco, CA 94111

Telephone: (415) 344-7000

Facsimile: (415) 344-7288

KEVIN C. MAYER, State Bar No. 118177
kmayer@crowell.com

CROWELL & MORING LLP

515 South Flower Street, 40th Floor

Los Angeles, CA 90071

Telephone: (213) 622-4750

Faesimile: (213) 622-2690

Attorneys for Defendant
HONEY WELL INTERNATIONAL INC.,
fik/a AlliedSignal, Inc., Successor-in-Interest to

“The Bendix Corporation

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 30 2013

Clerk of the Court
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ROSITA PIQUE, et al.,
Plaintiffs,
ve
DANA COMPANIES, LLC, et. al.,

Defendants.

Case No. CGC-08-274659

MOTION IN LIMINE TO EXCLUDE 1986
EPA GUIDANCE

MOTION IN LIMINE NO. 12

Trial Date: April 29, 2013
Time: 9:00 a.m.
Dept.: 613

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1L INTRODUCTION

Defendant Honeywell International Inc., f/k/a AlliedSignal Inc., as successor-in-interest to
The Bendix Corporation (“Honeywell”), respectfully moves the court for an order precluding
Plaintiffs from referring to, eliciting testimony about, or seeking to admit a document prepared by
an unknown author at the U.S. Environmental Protection Agency (“EPA”) in 1986 entitled
“Guidance for Preventing Asbestos Disease Among Auto Mechanics” (the “Guidance”), Exhibit
A to the Declaration of Eric D. Sentlinger (“Sentlinger Decl.”). Honeywell anticipates that
Plaintiffs will attempt to use the Guidance to claim that—contrary to the world’s published
epidemiologic data--automotive brake mechanics are susceptible to and likely to develop
asbestos-related disease.

The court should exclude the Guidance for several reasons. First, the Guidance—whose
author is unidentified—is hearsay for which there is no valid exception that would allow its
admission. Second, the Guidance is not a scientific publication and is so unreliable that no expert
could reasonably rely on it to form an opinion that would assist the jury in deciding any contested
fact issue, and therefore inadmissible under California Evidence Code section 801, subdivision
(b). Third, the Guidance has been completely superseded by a March 2007 EPA publication,
Current Best Practices for Preventing Asbestos Exposure Among Brake and Clutch Repair
Workers (Exhibit B to Sentlinger Declaration), and therefore is not a source on which an expert
may reasonably rely. Finally, the Guidance should be excluded under California Evidence Code
section 352 because its probative value, if any, is substantially outweighed by the probability that
its admission would unduly prejudice Honeywell and mislead the jury.

IL STATEMENT OF FACTS

The Guidance was released by the EPA in June 1986.) It purports to provide information
concerning the general health effects of asbestos, exposure to asbestos during automotive brake
work, the purported occurrence of asbestos-related diseases in automotive mechanics and their

families, and recommended safety measures for performing brake work. The Guidance contains

' Defendant does not seek the exclusion of the superseding EPA document published in
March 2007 entitled “Preventing Asbestos Exposure Among Brake and Clutch Repair Workers.”
A copy of this document is attached to the Sentlinger Decl. as Exhibit B.

2

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1assertions that are inflammatory, unsupported by competent authority, and simply wrong; an
impressive and robust body of science from around the world has conclusively demonstrated that
brake work——even by career mechanics--does not cause asbestos-related disease. For the reasons
set forth below, the Guidance and its contents should be excluded.

Til. ARGUMENT

A. The Guidance Should Be Excluded Because It Is Inadmissible Hearsay.

Hearsay is “evidence of a statement that was made other than by a witness while testifying
at the hearing and that is offered to prove the truth of the matter stated.” California Evidence
Code section 1200, subdivision (a). Hearsay is inadmissible. See California Evidence Code
section 1200, subdivision (b).

The Guidance should be excluded because it is inadmissible and unreliable hearsay. The
Guidance asserts, among other things, that “[mJesothelioma [a disease not at issue in these three
cases]... can be caused by very low exposures to asbestos” and that mesothelioma “has occurred.
among brake mechanics, their wives, and their children.” See Exhibit A to Sentlinger Decl., p. 2.
Plaintiffs are likely to refer to, elicit testimony about, or introduce the Guidance in order to prove
the truth of these (and possibly other) statements in the Guidance. The hearsay rule prohibits
Plaintiffs from offering these out-of-court statements to prove their truth as to the fundamental
issue of causation in this case.

B. The Guidance Does Not Fall Within Any Exception To The Hearsay Rule.

As the proponent of this evidence, Plaintiffs have the burden to demonstrate that the
Guidance falls within an exception to the rule against hearsay. See People v. Ashmus, 54 Cal.3d
932, 970 (1991). In this case, Plaintiffs may argue that the Guidance should be admitted under
the “public records” exception to the hearsay rule. This argument is unavailing. The Guidance
does not satisfy any of the foundational requirements for admission under the “public records”
hearsay exception.

The “public records” hearsay exception is codified in California Evidence Code section

1280, which provides:

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1“Evidence of a writing made as a record of an act, condition, or
event is not made inadmissible by the hearsay rule when offered in
any civil or criminal proceeding ta prove the act, condition, or event
if all of the following applies:

(a) The writing was made by and within the scope of duty of a
public employee.

(b) The writing was made at or near the time of the act, condition,
or event.

(c) The sources of information and method and time of preparation
were such as to indicate its trustworthiness.”

In addition to these statutory prerequisites, the courts have imposed two additional
foundational requirements: the proponent of a “public record” must a/so prove (1) the record was
made by an official pursuant to a governmental duty; and (2) the record was based upon the
observation of an informant having a duty to observe and report. See People v. Ramos, 15 Cal.4th
1133, 1177 (1997) (citations omitted).

The Guidance satisfies none of these foundational requirements. It does not report “an
act, condition or event.” There is no evidence that the Guidance was made by an official pursuant
to a governmental duty or that it was based on the observation of an informant who had a duty to
observe and report. Indeed, the author of the Guidance is not even known and is not available to
be cross-examined on the bald, speculative and erroneous assertions in the Guidance, There is no
available information about how, when, or why the Guidance was prepared.

Furthermore, the sources of information and method and time of preparation do not
indicate that the Guidance is trustworthy; in fact, its sources of information indicate just the
opposite. For example, the Guidance states that mesothelioma “can be caused by very low
exposure to asbestos” without citing any authority—medical, epidemiological, or otherwise—to
support this proposition, It then goes on to say that mesothelioma has occurred among children of
brake mechanics. To support this proposition, the Guidance cites only a British television show.
The Guidance is riddled with other examples of either critically-flawed studies cited as authority
for inflammatory statements or, more often, a complete dearth of authority for conclusory

statements regarding medical causation. The Guidance is anything but trustworthy.

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1Cc The Guidance Should Be Excluded Because No Expert Could Reasonably Rely On It
To Support A Causation Opinion.

1. The Guidance Does Not Constitute the Kind of Information Experts
Reasonably Rely on in Forming Opinions.

Plaintiffs may attempt to introduce the Guidance into evidence as one of the documents
their experts relied upon in reaching their opinions in this case. While an expert may rely on
inadmissible evidence in formulating an opinion, that evidence must be the kind of information
upon which experts reasonably rely in forming an opinion. See California Evidence Code section
801, subdivision (b). Otherwise, the evidence should be excluded. See Luque v. McLean, 8
Cal.3d 136, 148 (£972) (trial court properly excluded articles and studies that were not “the type
of professional technical literature ‘that reasonably may be relied upon by an expert in forming an
opinion”).

The Guidance is not the kind of evidence a competent expert would rely upon in forming
an opinion that would be of any assistance to the jury in this case. As discussed below, the
Guidance contains bald (indeed, erroneous) conclusions made by an. unknown. author, the
background and qualifications of whom are equally unknown. The Guidance also relies on case
reports as authority for some of its conclusions, even though case reports are widely criticized as
an improper basis for a causation opinion. Finally, the Guidance cites some studies which are
rendered wholly unreliable by their flawed methodologies. For all of these reasons, the Guidance
is unreliable and should not be mentioned, discussed, or admitted at trial.

2. The Author Of The Guidance Is Not Known.

The author of the Guidance is not identified in the document. Consequently, we do not
know if he or she has any medical or scientific knowledge, experience, or expertise. The author
states, without citation to any authority, that mesothelioma “can be caused by very low exposures
to asbestos” and that “[eJach added exposure increases the risk of [lung] cancer.” No expert
could reasonably rely on such statements in formulating a causation opinion without knowing the
basis for the statements or the identity of the individual who made them. An unsupported
statement by an unknown author is not the type of information on which an expert can reasonably

rely in forming a causation opinion. See Luque, 8 Cal.3d at 148.

5

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.13. Case Reports Are Unreliable Foundation For An Expert Opinion.

To support its statement that wives and children of brake mechanics have contracted
mesothelioma, the Guidance cites some case reports and a British television show about a brake
mechanic’s son who supposedly developed mesothelioma. Case reports describe “clinical events
involving one individual or a few individuals.” Federal Judicial Center, Reference Manual on
Scientific Evidence, p. 474 (2d ed. 2000). “They report unusual or new disease presentations,
treatments, or manifestations, or suspected associations between two diseases, effects of
medication, or external causes of diseases.” Jd.

Tt is well settled that case reports are unreliable and inadmissible hearsay. See Bailey v.
Kreutzmann, 141 Cal. 519, 521-22 (1901). In Bailey, the California Supreme Court held that
expert witnesses could not refer to or testify about case reports discussed in medical textbooks to
illustrate the difficulties inherent in properly diagnosing cancer. bid. More recent authorities
have likewise held that case reports are not reliable evidence of causation. See, e.g., Casey v.
Ohio Medical Products, 877 F. Supp. 1380, 1385 (N.D. Cal. 1995) (case 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.”); Allison v. McGhan Medical Corp., 184 F.3d 1300, 1316
(11th Cir. 1999) (‘case reports and case studies are universally regarded as an insufficient
scientific basis for a conclusion regarding causation because [they] lack controls’”); Rider v.
Sandoz Pharmaceuticals Corp., 295 F.3d 1194, 1199 (11th Cir. 2002) (“case reports are merely
accounts of medical events. They reflect only reported data, not scientific methodology”);
Siharath v. Sandoz Pharmaceuticals Corp., 131 F. Supp. 2d 1347, 1362 (N.D. Ga. 2001)
(“‘[Case] reports record nothing more than a temporal association between an exposure and a
particular occurrence. . . . [O]ne cannot draw causation conclusions from such anecdotal data”).

Here, the Guidance cites case reports as support for its supposition that wives of brake
mechanics have developed mesothelioma, The case reports themselves would not be admissible

as evidence of such causation, nor do they provide reliable evidence of causation on which an

6

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1expert could reasonably rely. Thus, the Guidance is inadmissible and cannot be a proper
foundation for Plaintiffs’ expert causation testimony. See Luque, 8 Cal.3d at 148.

The British television show—which does not even rise to the level of a case report—has
no evidentiary value. There is no basis upon which this court could determine if a proper
foundation exists for the statements allegedly made in the television show by persons whose
expertise is unknown and who cannot be cross-examined. No expert witness could reasonably

rely on the television show in formulating an opinion.

D. The Guidance Should Be Excluded Because It Has Been Completely Superseded by a
March 2007 EPA Publication

The 1986 brochure is alse irrelevant because it was completely superseded by a March
2007 EPA publication, Current Best Practices for Preventing Asbestos Exposure Among Brake
and Clutch Repair Workers. (Sentlinger Decl., Exhibit B.) For this reason, the 1986 brochure is
not a relevant information source on which an expert could reasonably rely under California
Evidence Code section 801, subdivision (b).

The contemporaneous Federal Register makes clear that the March 2007 EPA publication
superseded the 1986 brochure:

e Federal Register Vol. 72, No. 62, April 2, 2007 at p. 15691: “This brochure
[Current Best Practices for Preventing Asbestos Exposure Among Brake and Clutch Repair
Workers] replaces the existing 1986 document entitled, Guidance for Preventing Asbestos
Disease Among Auto Mechanics (EPA ~ 560 ~ OPTS ~ 86-002), commonly referred to as the
“Gold Book.’” (Exhibit C to Sentlinger Declaration}

. Federal Register Vol. 71, No. 164, August 24, 2006 at p. 50060: “When finalized,
this brochure [Current Best Practices for Preventing Asbestos Exposure Among Brake and Clutch
Repair Workers|, will update and supersede the existing document entitled, Guidance for
Preventing Asbestos Disease Among Auto Mechanics (EPA — 560 — OPTS — 86-002), commonly
referred to as the ‘Gold Book.*” (Exhibit D to Sentlinger Declaration)

“Health and Safety Information, EPA and OSHA could improve their processes for

repairing communication products”. (Sentlinger Decl., Exhibit E)
7

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1e “... EPA’s brochure was an update to the Gold Book (a 16-page
booklet).” (p. 18)

e “[T]he EPA brochure differs from the previous Gold Book in
several ways. The Gold Book not only drew attention to what it
considered to be very serious health consequences that resulted
from exposure to asbestos during brake and clutch repair, but also
stated that it was very difficult to make the repair of asbestos-
containing parts safe. The new brochure lists the health
consequences of exposure to asbestos, but also outlines best
practices that when followed, can reduce the potential for exposure
to asbestos so that repair work on asbestos brakes can be conducted
ina safe manner.” (pp. 18-19)

® “After posting the [2007] brochure, EPA removed the Gold Book
from its Web Site.” (pp. 20-21)

Other courts have agreed that the 1986 Guidance should be excluded. In Lemberger v.

General Motors Corp. et, al. (2008) (Wisconsin Circuit Court, Milwaukee County), No. 05-CV-

10416, the court sustained the defense objection to plaintiff’s expert’s reliance on the 1986 EPA

Guidance document:

Experts are entitled to rely on hearsay if it’s the kind of document that an expert would
normally rely on.

I'm satisfied...that the EPA report is not such a report. I should say not such a
source material that an expert would rely on, at least not a reasonable one.

ae

The second reason that Mr. Parker gave was is that the 1986 report was not really replaced
by the 2007 report, and it that he is just flatly wrong. He says that the 2007 report is just
an add-on to the 1986 report; but as I review the 2007 report, it certainly doesn’t say as
much, nor is it formatted in such a way to suggest that it’s simply additional findings that
should be read in conjunction with the 1986 report.

I think that there is a possibility that there are statements in the 2007 report that are
contrary to the statements in the 1986 report, and I don’t think a reasonable expert would
rely on the earlier report knowing that the later one replaced it so that’s why I sustained
the objection.”

Lemberger Trial Transcript at pp. 1487-1488. (Sentlinger Decl., Exhibit F)

E.

The Guidance Should Be Excluded Because Its Minimal Probative Value Is
Substantially Outweighed By The Probability That Its Admission Would Unduly
Prejudice Honeywell.

The Guidance should also be excluded because the prejudicial effect of admitting it far

outweighs any possible probative value it might have. Evidence Code Section 352 provides:

8

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1The court in its discretion may exclude evidence if its probative

value is substantially outweighed by the probability 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 the jury.
in this case, a jury would likely accord undue weight to statements in the Guidance, despite its
evidentiary deficiencies, because these statements are contained in what purports to be a
government publication rather than the utterance of a paid expert witness. Because Honeywell
cannot cross-examine the unknown author, it would be highly prejudicial to admit the Guidance
or to allow Plaintiffs’ experts to testify about its contents, particularly in light of its patent
unreliability discussed above.

IV. CONCLUSION
For ail the foregoing reasons, the court should exclude from evidence and preclude

Plaintiffs from referring to or eliciting testimony about the EPA’s 1986 “Guidance for Preventing

Asbestos Disease Among Auto Mechanics.”

DATED: April 30, 2013 PERKINS COLE LLP

By: /S/ Eric D. Sentlinger

Eric D. Sentlinger

Attorneys for Defendant

HONEY WELL INTERNATIONAL INC. ,
Jik/a AlliedSignal Inc., Successor-In-Interest to
The Bendix Corporation

MIL NO, 12 TO EXCLUDE 1986 EPA GUIDANCE
398 | 2-0003,2073/LEGAL23823982.1