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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 COTE 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
Facsimile: (213) 622-2690
Attorneys for Defendant
HONEYWELL INTERNATIONAL INC.,
frk/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,
Vv.
DANA COMPANIES, LLC, et. al.,
Defendants.
Case No. CGC-08-274659
MOTION IN LIMINE TO EXCLUDE
TESTIMONY OF PLAINTIFFS’ EXPERT
DAVID SCHWARTZ, M.D.
MOTION IN LIMINE NO. 10
Trial Date: April 29, 2013
Time: 9:00 a.m.
Dept.: 613
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
398 12-0003,2073/LEGAL2394 7008.L
iL.
TABLE OF CONTENTS
A. Expert Witnesses May Not Simply Parrot Inadmissible Hearsay...
B. Dr. Schwartz Lacks A Proper Or Reliable Foundation To Provide An
Admissible Expert Causation Opinion... sie sceseseseercseseeneereereseeneerse
1. Dr. Schwartz’s Causation Opinion D Does Not ot Satisty 7 The
Requirements of Rutherford... sectetteneneeneeres
2. Dr. Schwartz’s Opinion Regarding What Must Be Shown In Order
To Ascribe Causation of Lung Cancer to Asbestos Exposure
Cannot Be Substantiated 0.0.0... esses nestesaesetseeneeseeseeneenesneeeeeee
3. Dr. Schwartz Cannot Cite Any Reliable Source for His Opinion
That Every Exposure Above Background Increases The Risk of
Disease
4, Dr. Schwartz is Not Familiar With The Epidemiology Concerning
Automotive Mechanics’ Exposure to Chrysotile Asbestos in Brakes
CONCLUSION ooo cee erssesesinseesssecsieentsessecaetantesseameassecsissnsensensensensenseseeses
i
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
3983 2-0003.2073/LEGAL23947008.1TABLE OF AUTHORITIES
PAGE
CASES
Continental Airlines. Inc. v. McDonnell Douglas Corp.,
216 Cal App.3d 388 (1989) ....cceecececsscneessessersnteseeseesessitesrssssessessssussesesetssessersnesseasecsee by 2
Frampton v. Hartzell,
179 Cab App.2d 771 (1960)... cence nests cs nensenensscsienssnensscscssetsesenscseetensenscsentanee 2
Lockheed Litigation Cases,
115 Cal. App.4" 558 (2004)...
Mosesian v. Pennwatt Corp.,
LOT Cal App.3d 851 (1987). cece scenic cseeeenescsesticssessssienssnenssnsnenssnensacsnenanes 2
People v. Ashmus,
54 Cal.3d 932 (1991) eee es essesecascsesseesnsesssesseessessnesuesiessvssessnsacsuesseseensensennesse 4
People v. Coleman,
38 Cal.3d 69 (1985) ooo cece ceeicerededieceneseeieese recedes ireeeeeeede 1
Rutherford v. Owens-Illinois, Inc.
16 Cal.4" 953 (1977).
Sargon Enterprises, Inc. v. University of Southern Cal.,
55 Cal. Ath 747 (2012) vescseesssecsssecsnsssssessneessssssseensseeessesssvecsssssssesssnerssesssseensassssseesnersissenesse 3
Smith v. ACandS, Inc.,
1 Cal. App. 4th 77 7am). overruled in part, Camargo y, Maarda Daity, 25 Cal. 4th
1235 (2001)... seeteesseneeeee seteeeseeseeee see oe seeessescsrsanesecsssassensees $
STATUTES
Cal. Evid. Code § 801 oc cceescesneesesscsesssnsneenenssssnsneenensssensnesnesssssnsnsensnsecsesnsavensessesnsavensesseenens 3,5
Cal. Evid. Code § 801(D) .cccccscsssessecssssissessesusseresseesersennensersssiesseseeneessassasssanesicersanesesersassensees D
Cal. Evid. Code § 802 0. cei r eens oy Ay 5
Cal. Evid. Code § 803 occ eeceesesssseseseeesssssesesncassssnenesncassnsneneansassnsnaneansassnsearenssnsenaarenssasecneaenseets 4
Cal. Evid. Code § 1200 ...cccceccccessssescsesessescesesesescnssssesesesenssesesesesensseseseresenaresansneseearensesneaeeeeaaeene 2
it
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
398 12-0003,2073/LEGAL2394 7008.Defendant Honeywell International Inc., formerly known as AlliedSignal, Inc., suceessor-
in-interest to The Bendix Corporation (hereinafter “Defendant”), respectfully moves this Court in
limine for an order to preclude any testimony and opinions from Plaintiffs’ occupational medicine
expert, Dr. David Schwartz.
Dr. Schwartz’s proffered testimony is nothing more than the improper regurgitation of the
contents of other Plaintiff experts’ inadmissible hearsay causation reports and opinions. Indeed,
Dr. Schwartz, who has not examined a single treating medical record, x-ray, CT scan, or any
pathology, has no reasonable or proper foundation to state an admissible opinion concerning
medical causation with respect to asbestos generally, or Bendix brakes specifically. Therefore, he
should be precluded from testifying at trial.
I ARGUMENT
A. Expert Witnesses May Not Simply Parrot Inadmissible Hearsay
it is well-settled that an expert may not recite the contents of inadmissible hearsay
documents on direct examination through the guise of “expert” testimony. See, e.g., People v.
Coleman 38 Cal.3d 69, 92 (1985); Continental Airlines. Inc. v. McDonnell Douglas Corp. 216
Cal. App.3d 388, 414-16 (1989).
In Coleman, the Supreme Court explained this rule:
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. (Citations omitted.) 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.
Coleman, supra, 38 Cal. 3d at 92 (emphasis added).
in Continental Airlines, supra, the Court of Appeal affirmed an order that precluded an
expert from testifying on direct examination about the details of a report that was prepared by
others. The plaintiff airline brought an action for fraud and breach of contract after an aircraft
purchased from the defendant manufacturer ignited during a crash. Before trial, defendant’s
expert instructed two members of his staff to estimate the cost of the damage, assuming there had
been no fire as a result of the alleged fraud, At trial, defendant’s expert stated his opinion
1
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 1regarding damages and attempted to support his opinion by testifying to the contents of the
document prepared by his associates.
The trial court held that since the expert’s associates were not present in court to testify,
the report was hearsay and the expert was precluded from testifying about any details of the
report. In affirming, the court of appeal discussed the relevant case law that supported the
preclusion of the expert’s testimony:
in Frampton, the court held the testimony of an expert witness psychiatrist as to
the opinion of the medical staff at the hospital where he was a supervisor-
psychiatrist, was inadmissible hearsay. The rationale for the holding was that the
party to whom the testimony is adverse is denied the right of cross-examination.
fd. at 415 citing Frampton v. Hartzell, 179 Cal.App.2d 771, 773 (1960).
As the Court noted, “[e]xperts may rely upon hearsay in forming opinions. They
may not relate an out-of-court opinion by another expert as independent proof of fact. It
is proper to solicit the fact that another expert was consulted to show the foundation of
the testifving expert's opinion, but not to reveal the contents of the hearsay opinion.” Id.
at 415-416 citing Mosesian v. Pennwalt Corp., 191 Cal.App.3d 851, 860 (1987)
(emphasis added).
Here, in violation of Cal. Evid. Code §1200, Plaintiffs intend to offer precisely
such inadmissible hearsay opinion testimony from Dr, Schwartz to support their
contention that Decedent’s lung cancer was caused by exposure to chrysotile asbestos in
brakes. At bottom, Dr, Schwartz simply restates or paraphrases the contents of various
Plaintiffs’ expert reports which he reviewed and used solely to form the basis of his
causation opinion. However, as Dr. Schwartz concedes he has no direct knowledge of
any of the information contained in those other experts’ reports, his recitation of their
contents in the guise of giving his opinion is improper and inadmissible.
Notably, Dr. Schwartz has not read, and is unaware of, the deposition testimony
of any of Plaintiffs’ other experts, and has no interest in reading them. Exhibit “B”,
Sentlinger Decl., Depo. taken in Pique v. Dana Companies on November 14, 2011, p.
9:9-10:8. Dr. Schwartz did not review any medical records or reports from Decedent’s
actual treating physicians, nor did he speak with any of them. Exhibit “B”, Sentlinger
2
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 1Decl., Depo. taken in Pigue v. Dana Companies on November 14, 2011, p. 8:3-7. He did
not speak with any other of Plaintiffs’ experts, and did not review any radiography (i.e.,
chest x-rays and computerized tomography scans) or pathology of actual lung tissue
himself. Exhibit “B”, Sentlinger Decl., Depo. taken in Pique v. Dana Companies on.
November 14, 2011. p. 10:9-18.
The only thing that Dr. Schwartz could do, and which Plaintiffs seek to have him do at
trial, is regurgitate the contents of other experts’ reports, many of whom will nor be testifying at
trial (e.g., Dr. Carolyn Ray, who is deceased; Dr. Herman Bruch; and Dr. William Salyer), and
based solely upon such inadmissible hearsay, provide a blanket causation opinion that Decedent’s
lung cancer was caused by exposure to asbestos. As discussed above, this is wholly improper.
On this basis alone, he should be precluded from testifying at trial.
B. Dr. Schwartz Lacks A Proper Or Reliable Foundation To Provide An Admissible
Expert Causation Opinion
As held in the California Supreme Court’s decision in Sargon Enterprises, Inc. v.
University of Southern Cal., 55 Cal.4th 747, 769 (2012) (Sargon), under Evidence Code sections
801 and 802, trial courts must exercise a “substantial ‘gatekeeping’ responsibility” with respect to
expert testimony in civil cases, 55 Cal 4th at 769, The Supreme Court explained that a trial
court’s inquiry is not limited to simply confirming that the pe of material upon which the expert
relies provides a proper foundation for the expert’s opinion. The court must dig further and
determine whether the opinion is actually supported by the substance of the material upon which
the expert relies, /d. at 771-772.
Further, as explained in Sargon, Evidence Code § 802 requires the trial court to determine
whether an expert’s opinion is based on reasons supported by the material upon which the expert
relies, ie., whether that material actually supports the expert's reasoning, before the expert may
testify in front of the jury. Moreover, the trial court must also exclude expert testimony that is
contrary to decisional law or is speculative. Jd.
Under Evidence Code section 801(b), an expert’s opinion must be “[b]ased on matter. . .
that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the
3
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 1subject to which is testimony relates.” And, under Evidence Code section 802, an expert must
rest his or her opinion on reliable matter that “provides a reasonable basis for [that] opinion.”
Lockheed Litigation Cases 115 Cal.App.4" 558, 564 (2004). Otherwise, the opinion must be
excluded. Jd. at 564-65; Cal. Evid. Code §803 (“The 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”). “Of course, the party offering the evidence has the
burden of proving its admissibility.” People v. Ashmus, 54 Cal.3d 932, 970 (1991).
In Smith v. ACandS, Inc., 1 Cal. App. 4th 77 (1994), overruled in part, Camargo v.
Tjaarda Dairy, 25 Cal. 4th 1235 (2001), the trial court allowed plaintiffs’ industrial hygienist,
Kenneth Cohen, to extrapolate asbestos concentrations at a work site from photographs. Mr.
Cohen opined that the pictures depicted asbestos levels between five and 25 fibers per cubic
centimeter. The court of appeal found this opinion testimony without foundation and unreliable:
Conjecture and speculation provide no proper basis for an expert’s
opinion. Reliance on old black-and-white photographs to deduce
specific concentration levels of asbestos in the air is highly
suspect. As Cohen himself testified, the scientific standard for
measuring asbestos levels is to filter air through a membrane and
use an electron microscope to magnify the membrane to count the
retained asbestos fibers. Even that technique permits only an
estimate of asbestos levels and a great deal of variability attends
the results. We are unpersuaded that one can extrapolate accurate
asbestos concentration levels from the messy appearance of
asbestos materials at a work site. Certainly, no foundation was laid
that industrial hygienists reasonably rely upon photographs to
assess asbestos levels.
dd, at 93 (citations omitted),
Furthermore, the California Supreme Court, in Rutherford v. Owens-Illinois, Inc. 16
Cal.4* 953 (1977), set forth the requirement that plaintiffs in asbestos/cancer cases must establish
the “length, frequency, proximity and intensity of exposure” to asbestos fibers, from each
defendant’s product, in efforts to prove which produci(s), if any, contributed “substantially
enough” to be considered a legal cause of decedents’ respective diseases. /d at 977.
4
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 11. Dr. Schwartz’s Causation Opinion Does Not Satisfy The Requirements of
Rutherford
Dr. Schwartz’s opinions do not satisfy any of the requirements of Evidence Code sections
801 and 802 for proper expert testimony, and he should be precluded from testifying at trial
because that testimony is speculative and irrelevant.
Dr. Schwartz glibly opines initially (as discussed below, this opinion later changed) that
“every exposure above background” contributes to the development” of lung cancer.! Exhibit
“A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, p.
13:8-14:17. Nonetheless, Dr. Schwartz has no opinion as to the duration, intensity, or
concentration of Decedents’ purported exposures to chrysotile asbestos fibers from brakes (or any
product), at any location at any time. Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v.
Thomas Dee Engineering on June 4, 2012, p. 18:21-19:11. These essential factors are mandated
by Rutherford. Based on this alone, Dr. Schwartz should be precluded from providing an expert
opinion as to causation.
2. Dr. Schwartz’s Opinion Regarding What Must Be Shown In Order To
Ascribe Causation of Lung Cancer to Asbestos Exposure Cannot Be
Substantiated
Dr. Schwartz believes the minimum level of mixed asbestos exposure (i.¢., exposures to
both amphiboles and chrysotile) that a person must have before that individual is at an increased
risk of lung cancer is 25 fiber per cc/years—consistent with the so-called “Helsinki criteria”
published in 1997, Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee
Engineering on June 4, 2012, p.49:17-50:10. He also believes, citing a study by Selikoff, that
there is a minimum level of exposure or dose above background which inereases the risk of an
asbestos-induced lung cancer in humans—equivalent to one month of working in a shipyard.
Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4,
2012, p.60:21-25. He does not know, however, what that level of exposure would be:
Q: And what is that?
' See, Defendant Honeywell international Inc.’s Motion in Limine to Exclude Plaintiffs’
Expert Causation Testimony and Request for Evidentiary Hearing, MIL No. 5.
5
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 1A: The equivalent of one month of working in a shipyard.
Q: And do you know what the cumulative level of exposure or dose would be
from the one month of exposure from working in a shipyard.
A: No.
Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4,
2012, p.61:1-7.
Thus, Dr. Schwartz has no rational, proper or reliable basis for any opinion that
Decedents’ lung cancers were caused by asbestos.
3.
Dr. Schwartz Cannot Cite Any Reliable Source for His Opinion That Every
Exposure Above Background Increases The Risk of Disease
Though it appears Dr. Schwartz subscribes to the “every exposure” theory, he can cite no
medical or scientific—and specifically no epidemiologic or toxicological--literature for this
proposition:
Q: Is that factor your general opinion: that any individual’s exposure to asbestos
from any product—any fiber type—in excess of their purported background
exposure necessarily increases the risk of disease?
A: Yes,
Q: And what is that based on?
A: it’s based on the literature that’s available related to lung cancer: asbestosis,
asbestos-induced pleural disease, and mesothelioma; it’s based on consensus
opinion of EPA, the NIOSH, OSHA, the National Toxicology Program, the
International Agency for Research on Cancer. It’s based on the consensus opinion
of all those agencies.
Q: To your knowledge, do any of those—strike that. Do you know the difference
between regulatory or public health policy pronouncements and medical causation
in fact conclusions?
A: I’m not sure what you're asking.
Q: Okay. To your knowledge—you’ ve cited the quote, unquote, consensus
opinions of a variety of health bodies. Do you know if any of those health bodies
have cited any epidemiologic or experimental toxicological literature which
6
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 1demonstrates that in fact any exposure to asbestos in excess of background
actually increases the risk of disease in humans?
A: I would have to look at the public policy statements.
Q: But just sitting here right now, you’re not aware of any particular
epidemiologic study or experimental toxicology study or any publication beyond
what is expressed in these health body statements about that subject; is that
correct?
A: Yes, that’s correct.
Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4,
2012, 21:12-22:23.
4, Dr. Schwartz is Not Familiar With The Epidemiology Concerning
Automotive Mechanics’ Exposure to Chrysotile Asbestos in Brakes
Dr. Schwartz is not familiar with the body of epidemiologic studies related specifically to
brake mechanics and the absence of an increased occurrence of lung cancer (or any asbestos-
related disease) from exposure to chrysotile asbestos fibers in brakes. Exhibit A to Sentlinger
Decl., Schwartz Deposition (“Schwartz depo.”) taken in Guthery v. Thomas Dee Engineering on
June 4, 2012, 23:11-24. Indeed, when specifically asked about the brake mechanic epidemiology,
Dr. Schwartz testified:
Q: With regard to the work that you’ve done either in the Guthery case or in the
asbestos litigation generally, have you familiarized yourself with the
epidemiologic data that has been published from various investigators around the
world on the issue auto mechanics have been found to have an increased
occurrence of lung cancer from exposure to chrysotile asbestos in brakes?
A: Lwould have to re-review the literature to—to answer that question.
Q: In preparing for this deposition today, I take it you have not done that, is that
correct?
A: That’s correct.
Q: So if ] were to ask you specific questions about the epidemiologic studies that
have been published on that subject, you would not today be prepared to discuss
those; is that right?
A: That’s correct, yes.
7
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 1Exhibit A, Schwartz Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, 23:11-
24:6.
And with regard to whether there is any epidemiology specific to asbestosis and exposure
to chrysotile asbestos in brakes, he testified:
Q: Is there, to your knowledge, any epidemiologic study that has been published
in the world’s literature since 1980 which has shown that automotive mechanics
are at an increased risk of or have an increased occurrence of asbestosis from
exposure to chrysotile asbestos fibers in brakes?
A: I don’t know.
Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4,
2012, 47:8-14,
Further, while he admits that meta-analyses are valuable tools in evaluating large bodies
of epidemiologic data, he is unfamiliar with the various meta-analyses published on the
epidemiological data concerning automobile mechanics and exposure to asbestos in brakes.
Exhibit A to Sentlinger Decl., Schwartz Depo. taken in Gutherv v. Thomas Dee Engineering on
June 4, 2012, 68:20-49:4,
IL CONCLUSION
Based on the foregoing, Dr. Schwartz’s speculative testimony should be barred in its
entirety as predicated entirely on inadmissible hearsay and inadequate or non-existent foundation.
Accordingly, Honeywell respectfully requests that the Court grant this Motion in Limine and
enter an order precluding any testimony or opinions by Dr. Schwartz at trial.
DATED: April 30, 2013 PERKINS COIE Lip
By: _/s/ Eric D. Sentlinger
Eric D. Sentlinger
Attorneys for Defendant
HONEY WELL INTERNATIONAL, INC.
fik/a AlliedSignal, Inc., Successor-In-Interest
to The Bendix Corporation
8
MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D.
59872-0003, 2073/LEGAL 23947008. 1
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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 COTE 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 Facsimile: (213) 622-2690 Attorneys for Defendant HONEYWELL INTERNATIONAL INC., frk/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, Vv. DANA COMPANIES, LLC, et. al., Defendants. Case No. CGC-08-274659 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. MOTION IN LIMINE NO. 10 Trial Date: April 29, 2013 Time: 9:00 a.m. Dept.: 613 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 398 12-0003,2073/LEGAL2394 7008.L iL. TABLE OF CONTENTS A. Expert Witnesses May Not Simply Parrot Inadmissible Hearsay... B. Dr. Schwartz Lacks A Proper Or Reliable Foundation To Provide An Admissible Expert Causation Opinion... sie sceseseseercseseeneereereseeneerse 1. Dr. Schwartz’s Causation Opinion D Does Not ot Satisty 7 The Requirements of Rutherford... sectetteneneeneeres 2. Dr. Schwartz’s Opinion Regarding What Must Be Shown In Order To Ascribe Causation of Lung Cancer to Asbestos Exposure Cannot Be Substantiated 0.0.0... esses nestesaesetseeneeseeseeneenesneeeeeee 3. Dr. Schwartz Cannot Cite Any Reliable Source for His Opinion That Every Exposure Above Background Increases The Risk of Disease 4, Dr. Schwartz is Not Familiar With The Epidemiology Concerning Automotive Mechanics’ Exposure to Chrysotile Asbestos in Brakes CONCLUSION ooo cee erssesesinseesssecsieentsessecaetantesseameassecsissnsensensensensenseseeses i MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 3983 2-0003.2073/LEGAL23947008.1TABLE OF AUTHORITIES PAGE CASES Continental Airlines. Inc. v. McDonnell Douglas Corp., 216 Cal App.3d 388 (1989) ....cceecececsscneessessersnteseeseesessitesrssssessessssussesesetssessersnesseasecsee by 2 Frampton v. Hartzell, 179 Cab App.2d 771 (1960)... cence nests cs nensenensscsienssnensscscssetsesenscseetensenscsentanee 2 Lockheed Litigation Cases, 115 Cal. App.4" 558 (2004)... Mosesian v. Pennwatt Corp., LOT Cal App.3d 851 (1987). cece scenic cseeeenescsesticssessssienssnenssnsnenssnensacsnenanes 2 People v. Ashmus, 54 Cal.3d 932 (1991) eee es essesecascsesseesnsesssesseessessnesuesiessvssessnsacsuesseseensensennesse 4 People v. Coleman, 38 Cal.3d 69 (1985) ooo cece ceeicerededieceneseeieese recedes ireeeeeeede 1 Rutherford v. Owens-Illinois, Inc. 16 Cal.4" 953 (1977). Sargon Enterprises, Inc. v. University of Southern Cal., 55 Cal. Ath 747 (2012) vescseesssecsssecsnsssssessneessssssseensseeessesssvecsssssssesssnerssesssseensassssseesnersissenesse 3 Smith v. ACandS, Inc., 1 Cal. App. 4th 77 7am). overruled in part, Camargo y, Maarda Daity, 25 Cal. 4th 1235 (2001)... seeteesseneeeee seteeeseeseeee see oe seeessescsrsanesecsssassensees $ STATUTES Cal. Evid. Code § 801 oc cceescesneesesscsesssnsneenenssssnsneenensssensnesnesssssnsnsensnsecsesnsavensessesnsavensesseenens 3,5 Cal. Evid. Code § 801(D) .cccccscsssessecssssissessesusseresseesersennensersssiesseseeneessassasssanesicersanesesersassensees D Cal. Evid. Code § 802 0. cei r eens oy Ay 5 Cal. Evid. Code § 803 occ eeceesesssseseseeesssssesesncassssnenesncassnsneneansassnsnaneansassnsearenssnsenaarenssasecneaenseets 4 Cal. Evid. Code § 1200 ...cccceccccessssescsesessescesesesescnssssesesesenssesesesesensseseseresenaresansneseearensesneaeeeeaaeene 2 it MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 398 12-0003,2073/LEGAL2394 7008.Defendant Honeywell International Inc., formerly known as AlliedSignal, Inc., suceessor- in-interest to The Bendix Corporation (hereinafter “Defendant”), respectfully moves this Court in limine for an order to preclude any testimony and opinions from Plaintiffs’ occupational medicine expert, Dr. David Schwartz. Dr. Schwartz’s proffered testimony is nothing more than the improper regurgitation of the contents of other Plaintiff experts’ inadmissible hearsay causation reports and opinions. Indeed, Dr. Schwartz, who has not examined a single treating medical record, x-ray, CT scan, or any pathology, has no reasonable or proper foundation to state an admissible opinion concerning medical causation with respect to asbestos generally, or Bendix brakes specifically. Therefore, he should be precluded from testifying at trial. I ARGUMENT A. Expert Witnesses May Not Simply Parrot Inadmissible Hearsay it is well-settled that an expert may not recite the contents of inadmissible hearsay documents on direct examination through the guise of “expert” testimony. See, e.g., People v. Coleman 38 Cal.3d 69, 92 (1985); Continental Airlines. Inc. v. McDonnell Douglas Corp. 216 Cal. App.3d 388, 414-16 (1989). In Coleman, the Supreme Court explained this rule: 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. (Citations omitted.) 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. Coleman, supra, 38 Cal. 3d at 92 (emphasis added). in Continental Airlines, supra, the Court of Appeal affirmed an order that precluded an expert from testifying on direct examination about the details of a report that was prepared by others. The plaintiff airline brought an action for fraud and breach of contract after an aircraft purchased from the defendant manufacturer ignited during a crash. Before trial, defendant’s expert instructed two members of his staff to estimate the cost of the damage, assuming there had been no fire as a result of the alleged fraud, At trial, defendant’s expert stated his opinion 1 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 1regarding damages and attempted to support his opinion by testifying to the contents of the document prepared by his associates. The trial court held that since the expert’s associates were not present in court to testify, the report was hearsay and the expert was precluded from testifying about any details of the report. In affirming, the court of appeal discussed the relevant case law that supported the preclusion of the expert’s testimony: in Frampton, the court held the testimony of an expert witness psychiatrist as to the opinion of the medical staff at the hospital where he was a supervisor- psychiatrist, was inadmissible hearsay. The rationale for the holding was that the party to whom the testimony is adverse is denied the right of cross-examination. fd. at 415 citing Frampton v. Hartzell, 179 Cal.App.2d 771, 773 (1960). As the Court noted, “[e]xperts may rely upon hearsay in forming opinions. They may not relate an out-of-court opinion by another expert as independent proof of fact. It is proper to solicit the fact that another expert was consulted to show the foundation of the testifving expert's opinion, but not to reveal the contents of the hearsay opinion.” Id. at 415-416 citing Mosesian v. Pennwalt Corp., 191 Cal.App.3d 851, 860 (1987) (emphasis added). Here, in violation of Cal. Evid. Code §1200, Plaintiffs intend to offer precisely such inadmissible hearsay opinion testimony from Dr, Schwartz to support their contention that Decedent’s lung cancer was caused by exposure to chrysotile asbestos in brakes. At bottom, Dr, Schwartz simply restates or paraphrases the contents of various Plaintiffs’ expert reports which he reviewed and used solely to form the basis of his causation opinion. However, as Dr. Schwartz concedes he has no direct knowledge of any of the information contained in those other experts’ reports, his recitation of their contents in the guise of giving his opinion is improper and inadmissible. Notably, Dr. Schwartz has not read, and is unaware of, the deposition testimony of any of Plaintiffs’ other experts, and has no interest in reading them. Exhibit “B”, Sentlinger Decl., Depo. taken in Pique v. Dana Companies on November 14, 2011, p. 9:9-10:8. Dr. Schwartz did not review any medical records or reports from Decedent’s actual treating physicians, nor did he speak with any of them. Exhibit “B”, Sentlinger 2 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 1Decl., Depo. taken in Pigue v. Dana Companies on November 14, 2011, p. 8:3-7. He did not speak with any other of Plaintiffs’ experts, and did not review any radiography (i.e., chest x-rays and computerized tomography scans) or pathology of actual lung tissue himself. Exhibit “B”, Sentlinger Decl., Depo. taken in Pique v. Dana Companies on. November 14, 2011. p. 10:9-18. The only thing that Dr. Schwartz could do, and which Plaintiffs seek to have him do at trial, is regurgitate the contents of other experts’ reports, many of whom will nor be testifying at trial (e.g., Dr. Carolyn Ray, who is deceased; Dr. Herman Bruch; and Dr. William Salyer), and based solely upon such inadmissible hearsay, provide a blanket causation opinion that Decedent’s lung cancer was caused by exposure to asbestos. As discussed above, this is wholly improper. On this basis alone, he should be precluded from testifying at trial. B. Dr. Schwartz Lacks A Proper Or Reliable Foundation To Provide An Admissible Expert Causation Opinion As held in the California Supreme Court’s decision in Sargon Enterprises, Inc. v. University of Southern Cal., 55 Cal.4th 747, 769 (2012) (Sargon), under Evidence Code sections 801 and 802, trial courts must exercise a “substantial ‘gatekeeping’ responsibility” with respect to expert testimony in civil cases, 55 Cal 4th at 769, The Supreme Court explained that a trial court’s inquiry is not limited to simply confirming that the pe of material upon which the expert relies provides a proper foundation for the expert’s opinion. The court must dig further and determine whether the opinion is actually supported by the substance of the material upon which the expert relies, /d. at 771-772. Further, as explained in Sargon, Evidence Code § 802 requires the trial court to determine whether an expert’s opinion is based on reasons supported by the material upon which the expert relies, ie., whether that material actually supports the expert's reasoning, before the expert may testify in front of the jury. Moreover, the trial court must also exclude expert testimony that is contrary to decisional law or is speculative. Jd. Under Evidence Code section 801(b), an expert’s opinion must be “[b]ased on matter. . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the 3 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 1subject to which is testimony relates.” And, under Evidence Code section 802, an expert must rest his or her opinion on reliable matter that “provides a reasonable basis for [that] opinion.” Lockheed Litigation Cases 115 Cal.App.4" 558, 564 (2004). Otherwise, the opinion must be excluded. Jd. at 564-65; Cal. Evid. Code §803 (“The 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”). “Of course, the party offering the evidence has the burden of proving its admissibility.” People v. Ashmus, 54 Cal.3d 932, 970 (1991). In Smith v. ACandS, Inc., 1 Cal. App. 4th 77 (1994), overruled in part, Camargo v. Tjaarda Dairy, 25 Cal. 4th 1235 (2001), the trial court allowed plaintiffs’ industrial hygienist, Kenneth Cohen, to extrapolate asbestos concentrations at a work site from photographs. Mr. Cohen opined that the pictures depicted asbestos levels between five and 25 fibers per cubic centimeter. The court of appeal found this opinion testimony without foundation and unreliable: Conjecture and speculation provide no proper basis for an expert’s opinion. Reliance on old black-and-white photographs to deduce specific concentration levels of asbestos in the air is highly suspect. As Cohen himself testified, the scientific standard for measuring asbestos levels is to filter air through a membrane and use an electron microscope to magnify the membrane to count the retained asbestos fibers. Even that technique permits only an estimate of asbestos levels and a great deal of variability attends the results. We are unpersuaded that one can extrapolate accurate asbestos concentration levels from the messy appearance of asbestos materials at a work site. Certainly, no foundation was laid that industrial hygienists reasonably rely upon photographs to assess asbestos levels. dd, at 93 (citations omitted), Furthermore, the California Supreme Court, in Rutherford v. Owens-Illinois, Inc. 16 Cal.4* 953 (1977), set forth the requirement that plaintiffs in asbestos/cancer cases must establish the “length, frequency, proximity and intensity of exposure” to asbestos fibers, from each defendant’s product, in efforts to prove which produci(s), if any, contributed “substantially enough” to be considered a legal cause of decedents’ respective diseases. /d at 977. 4 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 11. Dr. Schwartz’s Causation Opinion Does Not Satisfy The Requirements of Rutherford Dr. Schwartz’s opinions do not satisfy any of the requirements of Evidence Code sections 801 and 802 for proper expert testimony, and he should be precluded from testifying at trial because that testimony is speculative and irrelevant. Dr. Schwartz glibly opines initially (as discussed below, this opinion later changed) that “every exposure above background” contributes to the development” of lung cancer.! Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, p. 13:8-14:17. Nonetheless, Dr. Schwartz has no opinion as to the duration, intensity, or concentration of Decedents’ purported exposures to chrysotile asbestos fibers from brakes (or any product), at any location at any time. Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, p. 18:21-19:11. These essential factors are mandated by Rutherford. Based on this alone, Dr. Schwartz should be precluded from providing an expert opinion as to causation. 2. Dr. Schwartz’s Opinion Regarding What Must Be Shown In Order To Ascribe Causation of Lung Cancer to Asbestos Exposure Cannot Be Substantiated Dr. Schwartz believes the minimum level of mixed asbestos exposure (i.¢., exposures to both amphiboles and chrysotile) that a person must have before that individual is at an increased risk of lung cancer is 25 fiber per cc/years—consistent with the so-called “Helsinki criteria” published in 1997, Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, p.49:17-50:10. He also believes, citing a study by Selikoff, that there is a minimum level of exposure or dose above background which inereases the risk of an asbestos-induced lung cancer in humans—equivalent to one month of working in a shipyard. Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, p.60:21-25. He does not know, however, what that level of exposure would be: Q: And what is that? ' See, Defendant Honeywell international Inc.’s Motion in Limine to Exclude Plaintiffs’ Expert Causation Testimony and Request for Evidentiary Hearing, MIL No. 5. 5 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 1A: The equivalent of one month of working in a shipyard. Q: And do you know what the cumulative level of exposure or dose would be from the one month of exposure from working in a shipyard. A: No. Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, p.61:1-7. Thus, Dr. Schwartz has no rational, proper or reliable basis for any opinion that Decedents’ lung cancers were caused by asbestos. 3. Dr. Schwartz Cannot Cite Any Reliable Source for His Opinion That Every Exposure Above Background Increases The Risk of Disease Though it appears Dr. Schwartz subscribes to the “every exposure” theory, he can cite no medical or scientific—and specifically no epidemiologic or toxicological--literature for this proposition: Q: Is that factor your general opinion: that any individual’s exposure to asbestos from any product—any fiber type—in excess of their purported background exposure necessarily increases the risk of disease? A: Yes, Q: And what is that based on? A: it’s based on the literature that’s available related to lung cancer: asbestosis, asbestos-induced pleural disease, and mesothelioma; it’s based on consensus opinion of EPA, the NIOSH, OSHA, the National Toxicology Program, the International Agency for Research on Cancer. It’s based on the consensus opinion of all those agencies. Q: To your knowledge, do any of those—strike that. Do you know the difference between regulatory or public health policy pronouncements and medical causation in fact conclusions? A: I’m not sure what you're asking. Q: Okay. To your knowledge—you’ ve cited the quote, unquote, consensus opinions of a variety of health bodies. Do you know if any of those health bodies have cited any epidemiologic or experimental toxicological literature which 6 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 1demonstrates that in fact any exposure to asbestos in excess of background actually increases the risk of disease in humans? A: I would have to look at the public policy statements. Q: But just sitting here right now, you’re not aware of any particular epidemiologic study or experimental toxicology study or any publication beyond what is expressed in these health body statements about that subject; is that correct? A: Yes, that’s correct. Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, 21:12-22:23. 4, Dr. Schwartz is Not Familiar With The Epidemiology Concerning Automotive Mechanics’ Exposure to Chrysotile Asbestos in Brakes Dr. Schwartz is not familiar with the body of epidemiologic studies related specifically to brake mechanics and the absence of an increased occurrence of lung cancer (or any asbestos- related disease) from exposure to chrysotile asbestos fibers in brakes. Exhibit A to Sentlinger Decl., Schwartz Deposition (“Schwartz depo.”) taken in Guthery v. Thomas Dee Engineering on June 4, 2012, 23:11-24. Indeed, when specifically asked about the brake mechanic epidemiology, Dr. Schwartz testified: Q: With regard to the work that you’ve done either in the Guthery case or in the asbestos litigation generally, have you familiarized yourself with the epidemiologic data that has been published from various investigators around the world on the issue auto mechanics have been found to have an increased occurrence of lung cancer from exposure to chrysotile asbestos in brakes? A: Lwould have to re-review the literature to—to answer that question. Q: In preparing for this deposition today, I take it you have not done that, is that correct? A: That’s correct. Q: So if ] were to ask you specific questions about the epidemiologic studies that have been published on that subject, you would not today be prepared to discuss those; is that right? A: That’s correct, yes. 7 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 1Exhibit A, Schwartz Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, 23:11- 24:6. And with regard to whether there is any epidemiology specific to asbestosis and exposure to chrysotile asbestos in brakes, he testified: Q: Is there, to your knowledge, any epidemiologic study that has been published in the world’s literature since 1980 which has shown that automotive mechanics are at an increased risk of or have an increased occurrence of asbestosis from exposure to chrysotile asbestos fibers in brakes? A: I don’t know. Exhibit “A”, Sentlinger Decl., Depo. taken in Guthery v. Thomas Dee Engineering on June 4, 2012, 47:8-14, Further, while he admits that meta-analyses are valuable tools in evaluating large bodies of epidemiologic data, he is unfamiliar with the various meta-analyses published on the epidemiological data concerning automobile mechanics and exposure to asbestos in brakes. Exhibit A to Sentlinger Decl., Schwartz Depo. taken in Gutherv v. Thomas Dee Engineering on June 4, 2012, 68:20-49:4, IL CONCLUSION Based on the foregoing, Dr. Schwartz’s speculative testimony should be barred in its entirety as predicated entirely on inadmissible hearsay and inadequate or non-existent foundation. Accordingly, Honeywell respectfully requests that the Court grant this Motion in Limine and enter an order precluding any testimony or opinions by Dr. Schwartz at trial. DATED: April 30, 2013 PERKINS COIE Lip By: _/s/ Eric D. Sentlinger Eric D. Sentlinger Attorneys for Defendant HONEY WELL INTERNATIONAL, INC. fik/a AlliedSignal, Inc., Successor-In-Interest to The Bendix Corporation 8 MOTION IN LIMINE TO EXCLUDE TESTIMONY OF PLAINTIFFS’ EXPERT DAVID SCHWARTZ, M.D. 59872-0003, 2073/LEGAL 23947008. 1