Motion-Secondary: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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MARY ELLEN GAMBINO, ESQ, (State Bar No. 111521)
TANYA X. JOHNSON (State Bar No. 189811)

WILSON, ELSER, MOSKOWITZ, ELECTRONICALLY
EDELMAN & DICKER LLP FILED
525 Market Street, 17" Floor Superior Court of California,
San Francisco, California 94105-2725 County of San Francisco
Telephone: (415) 433-0990
Facsimile: (415) 434-1370 SEP 20 2010
BY: JUDITH NUNEZ
Attorneys for Defendant Deputy Clerk
ASBESTOS CORPORATION LTD.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
CHARLES TOBEY, ) Case No.: CGC 07-274226
)
Plaintiffs, ) DEFENDAN'E’S OPPOSITION TO
) PLAINTIFF(SY MOTION IN LIMINE TO
v. ) PRECLUDE EXAMINATION OF EXPERT
) WITNESSES REGARDING PROXIMATE
ASBESTOS DEFENDANTS (BP) )} CAUSE
ee : ) .
Defendants. )
) Trial Date: September 21, 2010
)} Time: 2:30 p.m.
) Dept.: 505
) Judge: Hon. John K. Stewart
)
)

Defendant ASBESTOS CORPORATION LTD. (“ACL”) hereby submits the following
opposition to plaintiffs’ motion in limine seeking to exclude evidence of other parties’ conduct as a

superseding or proximate cause.

L INTRODUCTION
In tort cases, Plaintiffs) bear the burden of establishing that the defendants’ conduct is a cause in fact or|
actual cause of Plaintiff(s)s claimed injuries and damages. In seeking to unduly limit defense counsel’s
questioning at trial, Plaintifi{s)’ motion in limine attempts to define “actual cause” in such a way as to
entirely eliminate Plaintifi(s)’ burden of establishing that each defendant’s conduct was a “substantial factor”

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DEFENDANT’S OPPOSITION TO PLAINTIFF(S)’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF
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584546.1or to water down that concept to such a degree as to permit their experts to argue that every exposure to every toxic
or carcinogenic element is a “cause” of the Plaintifits)’ cancer in an effort to secure indirectly what the
Califomia courts have expressly denied them —- burden shifting on the element of causation.

Plaintif(s)’ motion in. limine should be denied for at least the following four reasons:

1. Plaintiffs)’ motion mischaracterizes California. case law on cause-in-fact. The
primary case cited by Plaintifi(s); Mitchell v. Gonzalez (1991) 54 Cal.3d 1041, only rejected the standard
jury instruction for “proximate cause.” It did not otherwise alter the proof requirements for cause-in-fact,
which are now subsumed under the phrase “substantial factor.” The “but for” test is simply another way of
determining whether an alleged factor played a causally sufficient role in the disease. “But for” is the
threshold of “cause-in-fact,” and nothing in Mitchell or its progeny changes this principle. Moreover, in
contrast to the Plaintifi(s)’ mischaracterization, case law specifically permits inquiry into whether the disease
resulted from one particular cause as opposed to or in conjunction with other possible causes. This analysis is
bolstered by the case of Viner v. Sweet (2003) 30 Cal 4th 1232, which clarifies that the “but for” test plays an
essential role in the analysis of “substantial factor.” .

2. The Plaintifi(s)’ “remedy” is to ask their own questions and make their own case. The
Plaintifi(s) are perfectly free to conduct direct or cross-examinations designed to promote their theory as to
why each defendant’s product was a substantial factor in causing the Plaintiff{sy disease. The jury then decides
whether the evidence connecting a particular product to an alleged disease is “substantial.” This is the way
litigation works.

3. Defendants should be permitted to inquire about the relative contribution, if any, of their
particular product under the comparative fault principles set forth in Proposition 51 (California Civil Code
§1431.2).

4, The Plaintiffs) motion is premature inasmuch as it attempts, in extremely broad and
general terms, to foreclose questions on an in limine basis, when no evidentiary context yet exists for
determining the propriety of the specific questions. ‘The Court may determine whether certain types of
questions are acceptable at trial, but rulings on specific questions or types of questions should be made at trial,

not in limine.

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DEFENDANT'S OPPOSITION TO PLAINTIFF(S)’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF
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TL. ANALYSIS
A. Case Law Permits Defendants to Inquire Concerning Whether a Particular Exposure,
Alone or in Conjunction with Other Exposures, Caused or Contributed to the Risk of
Disease.

Plaintiff(s)’ motion asserts that the California Supreme Court “expressly rejected” the “but for”
test in Mitchell. No language is cited for this proposition because Mitchell says no such thing.
Cases after Mitchell clarify that the “but for” notion is contained within the substantial factor test.

The Mitchell case concerned the propriety of using certain BAJI jury instructions for cause-in-
fact. One of these instructions, BAJI 3.75, included the term “proximate cause.” Contrary to
plaintiffs’ assertions, the Mitchell court only rejected the “proximate cause” instruction because the
word” ‘proximate’ improperly imputes a spatial or temporal connotation.” Mitchell, supra, 34 Cal 3d)
at 1050. Thus, the court’s criticism focused on the “proximate cause” language, not the “but for”
language contained in BAJI3.75.

In finding the “proximate cause” language misleading, the Mifchell court cited
psycholinguistic studies and a Jong line of legal criticism dating back to Justice Traynor, who predicted
in 1945 that “[iJn all probability the general expectation is the reasonable one that in time the courts
will dispel the mists that have settled on the doctrine of proximate cause in the field of negligence.”
Id. (quoting Mosley v. Arden Farms Co. (1.945) 26 Cal.2d 213, 222). The court favored the
“substantial factor” test because it includes a wider range of causes than those captured by the
“proximate cause” instruction. The court recognized that if a factor is not at least a “but for”

cause, it is not a substantial factor:

[T]he ‘substantial factor’ test subsumes the ‘but for’ test. “If the conduct which is claimed to

have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a

factor, let alone a substantial factor, in the production of the injuries.’ Mitchell, supra, 54 Cal.3d at

1052 (quoting Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 861) (emphasis added).
Yet, Plaintiff(s) argue that defendants should somehow be prevented from asking questions about

whether a particular exposure by itself had anything at all to do with the alleged disease. It is clear from the

Mitchell cowt’s treatment of the “substantial factor” test that cause-in-fact retains a “but for” element.

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Logically, it must retain that element, because “but for” only concerns whether something enters into the
causal chain at all—it is the base minimum of “factual causation.” The former “proximate cause”
instruction of BAJI 3.75 was faulty because it obfuscated. what the “substantial factor” test now makes clear:
that actual cause includes more than (but not less than) what constitutes a necessary link in the total causal
chain.

None of the cases that recite the Supreme Court’s discussion in Mitchell state that the “but for” test
has been replaced as a necessary conceptual ingredient in cause-in-fact. Indeed, the cases are very careful to
point out that “substantial factor” subsumes “but for.” For example, the case of Brookhouser v. California
(1992) 10 Cal.App.4th 1665, puts this point beyond doubt:

‘There are two widely recognized tests for determining whether a defendant’s conduct has in fact caused
the plaintiff's injury: Whether the injury would not have occurred but for the defendant’s conduct, and
whether the defendant’s conduct was a substantial factor in bringing about the injury. [Citation.] The
Supreme Court’s recent {decision in Gonzalez. .. does not appear to alter these two tests for cause in fact.
Jd. at 1677 (emphasis added)}. -

The Broolchouser court went on to explain the interrelationship of? these two concepts:

It is apparent that, given the other elements of a claim for negligence, a defendant will be liable only if the|
injury would not have occurred but for his or her conduct. But even if the defendant’s conduct meets the
“but for” test of causation, he or she may not be liable if there is more than one “but for” cause of the injury
and the defendant’s conduct (although strictly speaking a cause) was not a substantial factor in bringing
about the injury. Jd. (emphasis added). Similarly, in Rutherford v. Owens-Illinois, Inc (1997) 16 Cal Ath]
953, the Supreme Court reiterated the point it made in Mitchell:

‘The substantial factor standard, however, has been embraced as a clearer rule of causation — one
which subsumes the “but for” while reaching beyond it to satisfactorily address other situations, such as those,
involving independent or concurrent causes in fact. id at 969 (emphasis added).

In Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, the court drew out the
implications of these principles in the asbestos context. The plaintiff(s)’ threshold burden is to prove “exposure
toa defendant’s product.” The plaintifi{s) must show that “exposure is a possible factor in causing the disease,”

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DEFENDANT'S OPPOSITION TO PLAINTIFE(S)’ MOTION IN LIMINE TO PRECLUDE EXAMINATION OF
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5845461and the ultimate evaluation is “whether the exposure was a substantial factor.” Jd at 1416. In proving that
an exposure was a subsiantial factor in causing asbestos disease, the Plaintifi(s) must put on evidence that there
is “a reasonable medical probability based upon competent expert testimony that defendant’s conduct
contributed to plaintiff's injury.” Jd. ‘The Lineaweaver court goes on to state that the proof requirements for
causation in an asbestos case are the same as in negligence:

In evaluating whether exposure was a substantial factor in causing asbestos disease, the standard should
be the same as used in other negligence cases: is there a reasonable medical probability based upon competent
expert testimony that the defendants conduct contributed to plaintiff's injury. [Citations.] While there are
many possible causes of any injury, ‘[a] possible cause only becomes “probable” when, in the absence of}
other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.
This is the outer limit of inference upon which an issue may be submitted to the jury.” Jd (quoting Brornme v.
Pavitt (1992) 5 Cal.App.4th 1487, 1498) (emphasis added).

The questions criticized in the Plaintiffs)’ motion are designed to do nothing more than explore other
causal explanations, in accord with Lineaweaver. The court illustrated this point by citing various types of
evidence that may be brought to bear on whether a factor is “substantial”: frequency of exposure, regularity
of exposure, proximity of the asbestos product to the plaintiff, type of asbestos product, type of injury, “and
other possible sources of plaintiff's injury,” Za. at 1416-1417.

Importantly, Plaintifi{s)’ motion in Lineaweaver court specifically cited to the testimony of the
plaintiffs’ retained expert in that case, Dr. Richard Cohen. Dr. Cohen is one of the Plaintifi(s)’ experts in this
instant case. The court noted that in the Lineaweaver trial, Dr. Cohen “even opined that it is more likely than not
that Lmeaweaver would have developed asbestos-related disease from the exposure to Pabco products alone.”
Id. at 1420. ‘This is precisely the type of testimony to which the Plaintiff(s) now object; yet, it is essential in
determining liability, if any, to know the extent to which a particular exposure caused or contributed to
disease.

‘Thus, if an expert opines that a plaintifi’s alleged asbestos exposure does not even rise to the level ofa

“but for” cause, it follows that the exposure cannot be a substantial factor —-a point that is stated explicitly in

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584546.1the quoted language from Mitchell and Lineaweaver above. If something is not a cause at all, it certainly
is not a substantial factor.

Moreover, “substantial factor” is a conclusion to be drawn by the jury in accord with standard jury
instructions. Jis meaning is not precise. For exannple, the Lineawecrver court stated that “[t]he term
‘substantial factor’ is not subject to any useful definition; it may only be contrasted with something that is ‘a
slight, trivial, negligible, or theoretical factor in producing a particular result.” Lineaweaver, supra, 31
Cal.App.4th at 1423-1424 [quoting BAJI No. 3.76 (1992 rev.)|. ‘The questions to which Plaintifi{s) object
are designed to permit the jury to place a specific exposure on a continuum that runs from factors that are
“slight, trivial, negligible, or theoretical” —-those which, in themselves, have little or no causative
relationship to the disease —-to factors that more clearly cause the disease.

B. Viner Holds that the “But For” Test Remains the Law in California.

The case of Viner v. Sweet (2003) 30 Cal 4th, 1232, further demonstrates the falsity of the Plaintifi(s)’
argument concerning the “but for” test for causation under California law. Viner expressly held that the “but}
for? test was not eliminated in. Mitchell, as the Plaintiff{s) wrongfully and repeatedly assert in their motion,!
As pointed out in this opposition, Mitchell itself stated that the “but for” test is “subsumed” — not eliminated
——in the “substantial factor” test. Viner confirmed this point beyond dispute.

In Viner, a transactional legal malpractice case, the court noted that appellants — like the Plaintififs) in
this asbestos cases — argued that in Mitchell the “court repudiated the ‘but for’ test of causation in tort
cases alleging negligence.” ‘The court’s rejection of this argument was terse and direct: “Not so.” Viner,
30 Cal 4th 1232, 1239 (2003) (emphasis added), The court underscored what is argued in this opposition:
“Mitchell recognized that ‘the “substantial factor’ test subszanes the ‘but for’ test.” Id. (quoting Mitchell,
supra, 54 Cal 3d at 1052) (emphasis in original).

The Viner court explained how the “substantial factor” test subsumes the “but for” test. The court
cited to the Restatement (Second) of Torts, § 432, which consists of two parts. Subsection (1) provides that

) Plaintifi(s) routinely file this motion in liming in an effort to narrow the scope of questions that defendants may
ask experts concerning causation. The purpose of the motion is clear: to prevent a defendant from eliciting
testimony showing that exposures to other asbestos-containing products were sufficient to have raised the risk of the
illness from which a plaintiff allegedly suffers.

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“except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about
barm to another if the harm would have been sustained even if the actor had not been negligent.” Most, if not
all, of the questions that the Plaintififs) seek to exclude through their motion are permissible under
Subsection.(1). Jd at 1240.

Subsection (2) provides that if “two forces are actively operating. ...and each of itself is sufficient to
bring about ham to another, the actor’s negligence may be found to be a substantial factor in bringing it
about.” Jd. (emphasis added),

Subsection (1) is the classic “but for” test. It remains the law after Mitchell. Subsection (2) is an
exception to that test for so-called “concurrent independent causes,” which Viner defined as “multiple
forces operating at the same time and independently, each of which would have been sufficient by itself to
bring about the harm.” Jd. That is, a plaintiff must carry the burden to “establish causation by showing
either: (1) but for the negligence, the harm would not have occurred, or (2) the negligence was a concurrent
independent cause of the harm,” /d. at 1241 (emphasis in original).

Thus, under either prong of the Section 432 test, the kinds of questions set forth in the Plaintiff(s’ motion...

are permissible. If the disease would have occurred even. without exposure to a particular defendant’s
product, a jury can conclude that it is not a substantial factor. And whether a particular exposure constitutes
an independent concurrent cause —~ i.2., was among many exposures that could have independently caused
the disease -—~ is the very question at issue.

C. The Plaintiff(sy’ Remedy Is to Ask Their Own Questions.

‘The expert testimony that the Plaintififs) wish to exclude would simply address whether exposure to a
particular defendant’s product was suflicient to cause or to increase the risk of asbestos-related disease. That
is precisely how expert testimony is supposed to function in these cases, as shown in the quote from Rutherford
above. If exposure to a defendant’s product is not sufficient to cause disease, it certainly is not a substantial
factor. The model questions in the Plaintiffs)’ motion are intended to show that the exposure was a trivial or
negligible factor in the disease.

Of course, the Plaintiff(s), in their own case, or on cross-examination, may ask questions that

promote their theory of the case. In these asbestos cases, the Plaintiff(s) argue that every exposure counts

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toward the overall risk. From this, they argue that every exposure above “background” increases the risk of
disease, and then urge the jury to therefore extrapolate and therefore conclude that all exposures, almost by
definition, are substantial factors. This is the Plaintifi(s)’ theory. It is without a logical or scientific basis,
and it certainly does - and should not - excuse them irom showing that each defendant’s product was a
substantial factor. Nor should it prevent any defendant from proving, through expert testimony or otherwise,
that a particular product was not a substantial factor.

Defendants are entitled to present their perspective on. causation, in part by questioning expert
‘witnesses. Questions may be asked about the disease-causing potential of various exposures along a
continuum that ranges from an exposure that would play no role to an exposure that would cause disease.

Piaintiff(s) have the opportunity to present their own expert testimony conceming whether the
exposure to asbestos from various sources is sufficient to cause disease. If defense experts state that the
exposure to one defendants product was not sufficient to cause disease, and the Plaintiffs) disagree, then the
Plaintifi{s)’ solution is to cross-examine that expert conceming the extent of the alleged exposure from that
product. The solution is of to deprive defendants of the opportunity to elicit expert testimony that the level of... .
exposure to their product could not have caused the particular disease.

D. The Plaintifi(s) Confuse the Permissible Methods of Proving Causation with the Standard of
Proof Enunciated in BAJI 3.78.

Defendants must be able to ask questions about the sufficiency of certain exposures to cause
disease because this is a disputed scientific point. Rutherford notes that there is a scientific controversy
as to the biological mechanism underlying causation in asbestos-related cancers, and that “the
answer to this biological question would be legally relevant”. Rutherford, supra, 16 Cal.4th at
974. The controversy is essentially between the “cumulative” and “singular or episodic” views of
causation. Id. at 974-975.

The Plaintiff(s)’ motion is designed to prevent defendants from developing evidence in
support of the latter theory, and thus blatantly assumes the very scientific question at issue, namely,
whether exposure to a particular asbestos product was a substantial factor in increasing an

individual’s risk of developing cancer. The Rutherford court noted that “a plaintiff must, in

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accordance with traditional tort principles, demonstrate to a reasonable medical probability that a
product or products supplied by the defendant, to which he became exposed, were a substantial
factor in causing his disease or risk of injuries.” Jd. at 958. In so doing, the plaintiffis “free to
further establish that his particular asbestos disease is cumulative in nature, with many separate
exposures each having constituted a ‘substantial factor’ (BAJL 3.76) that contributed to his risk of
injury.” Id Reciprocally, defendants should be entitled to demonstrate that, taken separately, an
exposure was of such insignificance that it cannot be a substantial factor.

For example, the Rutherford court noted that whether an exposure is a “substantial factor”
depends on myriad facts, such as “length, ‘frequency, proximity and intensity of exposure, the
peculiar properties of the individual product, any other potential causes to which the disease could
be attributed (e.g, other asbestos products, cigarette smoking) and perhaps other factors affecting the
assessment of comparative risk.” Jd. at 975 (emphasis added).

The Mitchell court made it clear that its rejection of “proximate cause” in favor of the
“substantial factor” test was not designed as a limitation on evidence. Rather, Mitchell, like...
Ruthetford, took issue with a jury instruction. The terminology of “proximate cause” was
potentially confusing to a jury according to Mitchell. Plaintiff(s) still have the burden of proving “by
a preponderance of the evidence that in reasonable medical probability [an exposure to defendant’s product]
was a substantial factor contributing to the plaintiff s risk of developing” a disease. BAJT 3.78 (based on
Rutherford). That language is the standard of proof— the test that the jury uses to evaluate the evidence that
the parties have adduced in determining whether a plaintiffs has met his or her burden, Butit is nota.
limitation on the methods that a party can use to meet or defeat that standard of proof. “The requirement that
the plaintiff prove causation should not be confused with the method or means of doing so.” Viner, supra, 30
Cal 4h at 1240, footnote 4.

Defendants should be entitled to argue that some exposures are not substantial factors because other
exposures provide complete explanations for the occurrence of the disease. Defendants do this by eliciting
testimony that the exposure to a particular product was slight or trivial (see Comment to BAI 3.76
(“substantial factor” is not one that is “slight, trivial, negligible, or theoretical”). And defendants should be

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able to ask hypothetically whether other exposures were sufficient to cause the disease or increase the risk of the
disease. If other factors were sufficient, that, together with other evidence, can be used by a jury to determine
that the exposure in question was trivial or slight and therefore not a substantial factor.

Viner recognized the hypothetical aspect of the argument conceming causation at trial, “Determining
causation always requires evaluation of hypothetical situations concerning what might have happened, but
did not.... This is so because the very idea of causation necessarily involves comparing historical events to a
hypothetical alternative.” Jd at 1242. If defendants are prevented from asking whether other exposures are
sufficient to have caused the disease, then the result comes close to directing a verdict on causation in the
Plaintiffs) favor. This cannot be overemphasized: Plaintifi(s) do not want defendants to ask about the
relative causal roles of different exposures in the development of the risk of disease because they want to
promote their theory, which can be summarized starkly in the following extended syllogism:

e Plaintiff was exposed to many products with asbestos, including those of Defendant A.
e All exposures are sufficient in themselves or in combination to contribute to the risk of
_..developing disease... .. ~ eee
© BAJI3.78 defines substantial factor in terms of an exposure that contributes to the risk of
developing the disease.
e Therefore, exposure to Defendant A’s product is necessarily a-substantial factor with
respect to the individual plaintiff's disease.

When a plaintiff has an alleged asbestos-related disease (e.g., mesothelioma), the plaintiff
typically puts an even more tenuous leap from this simplistic logical argument. It is argued that
“