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

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MARY ELLEN GAMBINO (State Bar No. 111521)
TANYA XIOMARA 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 County of San Francisco
Telephone: (415) 433-0990 SEP 15 2010

Facsimile: (415) 434-1370 Clerk of the Court

BY: WILLIAM TRUPEK
Attorneys for Defendant Deputy Clerk

ASBESTOS CORPORATION, LTD

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CHARLES TOBEY, Case No. CGC-07-274226

Plaintiff, DEFENDANT ASBESTOS
CORPORATION, LTD’S MOTION IN
LIMINE TO PRECLUDE TESTIMONY OR
EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE
THE RISK OF MESOTHELIOMA OR
OTHER ASBESTOS DISEASE

v.

ASBESTOS DEFENDANTS (B*P),
Defendants.

Trial: September 21, 2010

Time: 2:30 a.m.

Dept.: 505
Judge: Hon. John K. Stewart

ee Ne ee ee

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that defendant ASBESTOS CORPORATION LTD. (“ACL”)
prior to trial and before the selection of a jury, hereby moves this Court, in limine, for an Order
excluding any purported expert testimony or other evidence claiming that a “single fiber” of
asbestos can cause, or increase the risk of, mesothelioma, lung cancer, or other asbestos-related
disease. This motion is made on the grounds that (1) it is irrelevant to plaintiff's claims which is
based entirely on the alleged “cumulative effect” of all asbestos exposures, not on the effect of a
single fiber; (2) plaintiff will present no evidence that a single fiber from any particular source

caused or contributed to plaintiff's alleged development of an asbestos-related disease; (3) such

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ACL’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

sasiiatevidence is speculative and lacks any scientific or factual basis; (4) the introduction of such
evidence asks the jury to speculate, in the absence of any evidence, that a single fiber from a
particular defendant’s product might have caused the plaintiff's alleged asbestos-related disease;
and (5) the potential prejudice from such evidence far outweighs any possible probative value.
I. STATEMENT OF FACTS

Plaintiff claims that he developed an asbestos-related disease as a result of various
exposures to asbestos-containing products. Plaintiff alleges he was exposed to asbestos fiber and/or
asbestos-containing products supplied by various defendants. Plaintiff does not allege, and will
introduce no evidence, that-an asbestos fiber or fibers from a particular defendant's product caused
plaintiff's disease. Rather, plaintiff seeks to hold a wide array of defendants liable by claiming that
exposure to each of their products contributed to the “aggregate dose” of asbestos to which plaintiff
was exposed, and that it was the cumulative effect of that aggregate dose that caused his illness.

Despite plaintiff's express reliance on the “aggregate dose” of asbestos as the cause of an
asbestos-related disease, Defendants anticipate that plaintiff will attempt to introduce expert
testimony or other evidence that even a “single fiber” of asbestos can cause the disease and,
therefore, increases the risk of mesothelioma, lung cancer or other asbestos-related disease.
Because such evidence is entirely inconsistent with plaintiff's attempt to hold all defendants liable
based on the alleged cumulative effect of many exposures, and asks the jury to speculate about the
actual effect of each single fiber inhaled by the plaintiff during his lifetime, such evidence should be

excluded fiom trial.

i ARGUMENT

A. PLAINTIFF IS ATTEMPTING TO HAVE IMPROPER EVIDENCE
ADMITTED AT TRIAL.

In cases related to ‘the development of disease from asbestos exposure, California law has
recognized that it is virtually impossible to prove that any single fibcr of asbestos caused or

contributed to plaintiff's disease. Accordingly, the California Supreme Court has established a

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ACL'S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

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standard of causation in asbestos cases based on total: exposure, rather than evidence as to the actual

effect of any particular fiber or product. In this respect, the Court has stated:

“Plaintiff cannot be expected to prove the scientifically unknown
details of carcinogenesis, or to trace the unknowable path ofa given
asbestos fiber... Instead, we can bridge this gap in the humanly
knowable by holding that plaintiff may prove causation in asbestos-
related cancer cases by demonstrating that the plaintiffs 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, and
hence to the risk of developing asbestos-related cancer, without the
need to demonstrate that fibers from the defendant’s particular
product were the ones, or among the ones, thal actually produced the
malignant growth.”
Rutherford v. Owens-Hlinvis, Inc. (1997) 16 Cal.4" 953, 976-77.
Under this standard, the plaintiff mast prove an actual exposure to asbestos from a
defendant’s product, as the mere possibility of exposure does not satisfy this. standard or create an

issue of fact. McGonnell v. Kaiser Gypsum Co, (2002) 98 Cal.App.4th 1098, 1105.

In addition, although the degree of exposure necessary to satisfy the substantial factor test is
ultimately a jury question, an exposure that is “infinitesimal,” “negligible,” or “theoretical” cannot
satisfy the substantial factor test. Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71, 79. Thus, in
order to meet his already relaxed standard of causation, the plaintiff must, at a minimum, establish
an exposure to asbestos from a particular defendant’s product of sufficient length, frequency,
proximity, and intensity that, under the circumstances of the case, supports a reasonable conclusion
that such exposure was a substantial factor in the aggregate dose to which he was exposed and a
substantial factor in the his risk of developing asbestos-related disease.

“Many factors are relevant in assessing the medical probability that an exposure contributed
to plaintiff's asbestos disease. Frequency of exposure, regularity of exposure, and proximity of the
asbestos product to plaintiff are certainly relevant, although these considerations should not be
determinative in every case.” Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4" 1409,
1416. Furthermore, “additional factors may also be significant in individual cases, such as the type

of asbestos product to which plaintiff was exposed, the type of injury suffered by plaintiff, and

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ACLS MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

sasniotother possible sources of plaintiff's injury.” Jd. at 1417; see also Rutherford, supra, 16 Cal.4™ at
975-76 (noting that causation question “tak[es| into account the length, frequency, proximity and
intensity of exposure” as well as other factors).

By seeking to introduce evidence that even a “single fiber” of asbestos can cause
mesothelioma, lung cancer or other asbestos-related diseases, plaintiff is trying to circumvent
established law on the issue of causation and asbestos disease. In this respect, plaintiff seeks to
have the jury speculate that even a negligible contact with a particular defendant’s product might
have caused or increased his risk of injury through the theoretical effect of a single fiber. if plaintiff
was permitted to assert this “single fiber” theory, plaintiff could seek a finding of causation without
introducing proof of either (1) actual causation from any such single fiber; or (2) a total exposure to
the product sufficient to constitute a substantial factor in increasing plaintiff's risk of developing
disease. This would be contrary to California law requiring more than negligible exposure to
asbestos, and in this manner, plaintiffs could be relieved of proving any form of causation.

The entire basis of the causation standard adopted in Rutherford is that it is impossible for a
plaintiff to prove that particular fiber or fibers caused or contributed to the plaintiff's asbestos
related illness. Having been relieved of that burden, plaintiff should not be allowed to introduce
evidence inviting the jury to speculate about what the effect of a single fiber theoretically might
have been.

Moreover, any such testimony or evidence is itself speculative and lacking in scientific
basis. As noted, the biological mechanisms by which asbestos leads to mesothelioma or jung,
cancer is unknown and the subject of scientific debate. Rutherford, supra, 16 Cal.4" at 974-75.
The theory that a single fiber can cause asbestos-related disease is merely a theory. Therefore, it is
equally likely, if not more likely, that disease results from the cumulative effect of millions of fibers
to which the contribution of any single fiber would be infinitesimal and theoretical, not a substantial
factor. Id.

Overall, because plaintiff will be pursuing claims against all of the defendants based on their

alleged contribution to the “aggregate dose” of asbestos to which plaintiff has been exposed, and

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ACL’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

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since the effect of any single fiber is unknown and unknowable, plaintiff should not be allowed to
speculate to the jury about the possible effect of a single fiber. The danger of jury speculation from
such evidence is substantial and would undermine the substantial factor test. Because the effect of
any single fiber is not at issue in this case, the prejudicial effect of such evidence would far
outweigh any probative value and it should be excluded for that redson as well.
B. ANY PROFFERED TESTIMONY OR EVIDENCE REGARDING THE
SINGLE FIBER THEORY MUST BE PRECLUDED AS A MATTER OF
LAW BECAUSE AN EXPERT CANNOT RELY ON IMPROPER MATTERS
AS THE BASIS FOR EXPERT OPINION.

Any testimony regarding the “single fiber” theory would constitute improper and
inadmissible expert evidence. Evidence Code § 803 allows the court to exclude expert testimony
“that is based in whole or in part on matter that is not a proper basis for such an opinion.”
Therefore, all proper evidence must meet all the requirements set forth in California law. To begin
with, the Califomia Evidence Code limits admissible evidence to that which is “relevant.” See Cal.
Byid. Code §§ 350, 351. “Relevant” evidence is that which has a tendency “in reason” to prove or
disprove a disputed fact. The pretrial determination of relevance is, of course, a matter wholly
within the discretion of the trial courl. See Cal. Evid. Code § 402 (court may determine “question
of admissibility of evidence outside the presence or hearing of the jury”). Similarly, Evidence Code
§ 801(a) limits expert testimony to matters that are sufficiently beyond common experience such
that opinion testimony must “assist the trier of fact,” i. opinion testimony that is relevant.
Furthermore, Evidence Code § 801(b) limits expert opinions to those based on materials upon
which an expert would “reasonably rely.”

Further guidance for policing the reliability and relevance of expert testimony is found in
numerous California cases recognizing that “the value of opinion evidence rests not in the
conclusion reached, but in the reasoning employed.” Pacific Gas & Electric Co. v. Zuckerman
(1997) 189 Cal. App. 3d 1113, 1135-36. For instance, it is well-settled that California courts will
not accept “an expert's ultimate conclusion without critical consideration of his reasoning,” and if it

appears that an expert's conclusion was based on “improper or unwarranted matters,” then his or her

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ACLS MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

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opinion should be rejected as a matter of law. In re Marriage of Micalizio (1988) 199 Cal.App.3d
662, 673; see also City of San Diego v. Sobke (1998) 65 Cal.App.4™ 379 (expert's evaluation
methodology inadequate to measure the existence and loss of goodwill); Cavers v. Cushman Motors
Sales, Inc. (1979) 95 Cal.App.3d 338 (mechanical engineer could not speculate on golf cart's
propensity for tipping on sharp turns where expert lacked sufficient foundation to support this
opinion).

In Jennings v. Palomar Pomerado Health Systems, Inc. (2004) 114 Cal.App.4 1108, for
example, the court reviewed a motion to strike an expert's causation opinion on Jack of foundation
grounds because the assumptions made by the expert lacked evidentiary support. Jn affirming the
trial court's decision to grant the motion, the appellate court highlighted the trial court's authority
(consistent with Evidence Code Section 801(b)) to exclude oxpert testimony that lacked adequate
foundation, or that rested on guess, surmise or speculation. dd. at 1117.

Similarly, in Hyatt v. Sierra Boat Company (1978) 79 Cal.App.3d 325, 330, the plaintiff
was involved in an automobile accident when his car struck a boat trailer and crashed into a
telephone pole. No person witnessed the accident and plaintiff, due to alleged amnesia, forgot all
details about the accident. 7d. Defendant attermpted to introduce expert testimony that the plaintiff
was traveling over 20 miles per hour above the speed limit. Jd. at 337. The appellate court upheid
the decision to exclude the testimony because there were no facts in evidence to support any
opinion regarding plaintiff's speed before the first impact with the boat trailer, and any expert
opinion regarding the same would be pure speculation. id. at 339.

In Aguilar vy, Atlantic Richfield Co. (2001) 25 Cal.4" 826, the Califomia Supreme Court
rejected expert testimony concerning an allegedly unlawful antitrust conspiracy because the expert
could do no more than speculate on whether the defendants had engaged in collusive action. The
court granted defendants’ summary judgment motion because the expert's opinion that the
defendants acted collusively could not be substituted for direct evidence establishing an unlawful

conspiracy. Id. at 855; see also Cottle v. Superior Court (1992) 3 Cal App.4" 1367 (pretrial hearing

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ACL’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

SAgTIOTresulted in exclusion of testimony regarding alleged medical injuries from toxic exposure because
expert testimony was insufficient to support causal link).

In Lockheed Litigation Cases (2005) 126 Cal.App.4" 271, 279, the Second Appellate
District again recognized that “the basis of an expert opinion is a preliminary fact that the court may
rule on prior to an expert testifying before the jury.” In Lockheed (which was also a Coordination.
Proceeding), the court excluded plaintiff's causation evidence, finding that the expert's reliance on
epidemiological studies involving chemicals other than those to which plaintiffs were exposed
rendered his opinion unreliable. Jd. at 278-81. The Second Appellate District affirmed the
Coordination Judge's ruling, noting that under Evidence Code §801(b), the court “must examine the
matter that the expert relied on in forming his or her opinion.” fd. at 285. The appellate court
conducted a classic Daubert analysis, carefully examining the epidemiological studies, animal
studies, case reports and toxicology studies upon which the expert relied. id. at 294-96. After its
in-depth review of the expert's materials, the appellate court expressed its agreement with the
Coordination Judge's opinion that “an expert opinion has no value if its basis is unsound.” fd. at
284. (quoting People v. Lawly (2002) 27 Cal.4" 102, 132.

The Lockheed court distinguished Roberti v. Andy's Termite d& Pest Control, Inc. (2003)
113 Cal.App.4™ $93, in which plaintiff argued restricted a court's ability to scrutinize the materials
relied upon by experts. The Lockheed court noted that Roberti did not address the requirements of
Evidence Code Section 801(b); the Roberti court simply concluded that plaintiffs expert testimony

“had the tendency in reason to prove causation, and was based on studies and protocol of a type that

reasonably may be relied upon.” Lockheed, supra, 126 Cal.App.4" at 286 (quoting Roberti, ibid,

113 Cal. App. 4th at 906). In other words, the Roberti court did not preclude trial courts from
reviewing the foundation upon which an expert’s opinion is based; it simply found that the
foundation provided in the case before it was sufficiently reliable.

Any expert’s use of the single fiber theory in order to improperly manufacture evidence that
very limited exposure to asbestos can cause, or increase the risk, of asbestos-related disease would

be improper because the methodology used in forming the theory is neither reliable nor generally

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ACL’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

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accepted by any recognized body of independent, objective evaluators. Furthermore, this theory is
not of a type reasonably relied upon by experts in industrial hygiene and/or occupational health in
forming opinions regarding the causes of asbestos-related disease. To allow plaintiff to attempt to
prove causation based upon a speculative theory that does not meet the Kelly criteria is contrary to
law and must therefore be precluded. The single fiber theory clearly has not gained general
acceptance in the scientific community. At a minimum, plaintiffs should be required to prove, prior
to trial that the single fiber theory does in fact comport with the standards for admissibility

articulated by Kelly and is generally accepted.

I. CONCLUSION
Based on the foregoing, Defendant’s motion in limine for an order excluding any testimony
or evidence that a single fiber can cause or increase the risk of asbestos-related diseases should be
granted. In the alternative, Defendant respectfully requests that plaintiff be required to prove, prior
to the time of trial, that the “single fiber” theory is admissible scientific testimony in accordance

with People v. Kelly (1976) 17 Cal.3d 24.

DateaSyahthy |, 2010 WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP

By:

Wary afbino ?

Tanya Xiomara Johnson

Attomeys for Defendant
ASBESTOS CORPORATION LTD.

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ACL’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR EVIDENCE THAT A SINGLE FIBER OF
ASBESTOS CAN CAUSE OR INCREASE THE RISK OF MESOTHELIOMA OR OTHER ASBESTOS
DISEASE

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