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

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                                BRYDON
HuGo & PARKER
135 Mane Sree
20" FLCOR
San Francisca, CA 94105

Edward R. Hugo [Bar No. 124839]
James C. Parker [Bar No. 106149]

Shelley K. Tinkoff [Bar No. 187498]

BRYDON HUGO & PARKER ELECTRONICALLY

135 Main Street, 20th Floor FILED

San Francisco, CA 94105 Superior Court of California,

Telephone: (415) 808-0300 County of San Francisco

Facsimile: (415) 808-0333 OCT 01 2010

Email: tinkoff@bhplaw.com Clerk of the Court
BY: JUANITA D. MURPHY

Attorneys for Defendant Deputy Clerk

FOSTER WHEELER LLC

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA, (ASBESTOS)

Case No. CGC-~07-274230
Plaintiff,
DEFENDANT FOSTER WHEELER LLC’S
vs. MOTION IN LIMINE TO PRECLUDE
PLAINTIFF'S EXPERT WITNESS FROM
ASBESTOS DEFENDANTS (BP), REVEALING THE OPINIONS OF OTHER
EXPERTS DURING DIRECT

Defendants. EXAMINATION

[20]

I. INTRODUCTION
Defendant FOSTER WHEELER LLC (“Defendant”) anticipates that Plaintiff, during
direct examination of his experts, will attempt to elicit evidence regarding the opinions of
other, out-of-court, experts. Such evidence is inadmissible hearsay and plaintiff must be
precluded from eliciting, or attempting to elicit, those opinions during direct examination.
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DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE PRECLUDE PLAINTIFF'S EXPERT
WITNESS FROM REVEALING THE OPINIONS OF OTHER EXPERTS DURING DIRECT EXAMINATION
(20]aI Dw BR WwW

BRYEDON

HuGo & PARKER
138 Mam Sect
20" FLOUR
Sea Franeisns, CA 94105

I ANEXPERT WITNESS MAY NOT REVEAL THE OPINIONS OF OTHER
EXPERTS ON DIRECT EXAMINATION

The rule which prohibits an expert from revealing the hearsay opinions of another
expert on direct examination dates back to 1904. (People v. Odom (1980) 108 Cal.App. 3d
100; 166 Cal.Rptr. 283.) In Odom, the plaintiff's “expert witnesses had read and relied upon
several ‘adverse reaction’ reports from medical suppliers and related those reports to their
ultimate diagnosis and opinion of (plaintiff’s) mental state at the time of the (crime).” (Id. at
115.) The Odom court held that the trial court properly precluded that plaintiff's experts
from revealing the content of the “adverse reaction” reports during their direct

examination. (Id.)

An expert witness, in support of, in giving the reasons for his
opinion, may testify as to treatises, learned documents, textual
material relied upon by him and may thereafter be fully cross-
examined thereon by opposing counsel. (Evid. Code, & 701,
802.) However, as noted by the Supreme Court in the case of
People v. La Macchia, 41 Cal. 2d 738 (overruled on other grounds),
745-74 [264 P.2d 15] (1953): “The general rule which permits a
witness to state the reasons upon which his opinion is premised

~ may not be used as a vehicle to bring before the jury incompetent
evidence. To so open up the inquiry would create a disastrous
break in the dike which stands against a flood of interminable
investigation.”

The basic rule of People v. La Macchia, supra, 41 Cal. 2d 738,
rohibiting a witness from putting in evidence matters which are
incompetent as substantive evidence for the purpose of fortifying
his opinions, even though they are offered under the guise for
the reasons for his opinions, and even though they might
properly have been admitted on cross-examination to test and
diminish the weight to be given to his opinion, was and is the law
in this state.

In'the early case of Bailey 2. Kreutzmann, 141 Cal. 519, 521, 522 [75
P. 104] (1904), the Supreme Court declared: “It has been held,
without conflict and in an extended line of cases in this state, that
medical works are hearsay and inadmissible in evidence, except
perhaps on cross-examination when a specific work may be
referred to, it seems, to discredit a witness who has based his
testimony upon it. [Citations.]... [If the books themselves are
hearsay ond inadinissible, certainly any recital of their contents
or the substance thereof is none the less hearsay, and should be
excluded for that reason.”

2

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE PRECLUDE PLAINTIFF’S EXPERT
WITNESS FROM REVEALING THE OPINIONS OF OTHER EXPERTS DURING DIRECT EXAMINATION
[20]Brybon
HuGo & PARKER
138. Macy Steer
20" FLOoR
Son Framedson, CA 94108

The trial judge here properly excluded the adverse reports for
these further reasons. The doctors testified they had considered
the adverse reaction reports from the major drag manufacturers
in forming their opinion; it was the psychiatrist’s opinion and his
expertise, not the validity of the adverse reaction reports, that
were at issue. Therefore, the court could properly limit the
admission of detailed evidence from those adverse reports under
its wide discretionary powers under Evidence Code § 352.

(Id. at 115-16 (citations omitted).)

More recently, in Mosesian v. Penwalt (1987) 191 Cal.App. 3d 851, 859-864, the court
reaffirmed that an expert witness may not reveal the content of the hearsay opinions of
other experts. As in the instant case, the Mosesian trial was “in large measure . . . a battle of
experts.” (Id. at 856.) The defense expert testified on direct examination that he had
consulted six other experts, who were not called to testify, and revealed their opinions. The!

court held:

Procedurally, if an expert does rely in part upon the opinions of
others, the expert may be cross-examined as to the context of
those opinions. It is improper, however, to solicit the
information on direct examination if the statements are
inadmissible. (Citation omitted.) The defendants in this action
improperly solicited hearsay statements from Dr. Whaley on
direct examination.

The statements of the six other witnesses are inadmissible
hearsay statements. Whether or not it was counsel’s or Dr.
Whaley’s intent to do so, introduction of the statements were
unnecessary for Dr. Whaley to form an opinion because he used
them merely to confirm an opinion he had already reached. The
outside expert opinions were not admissible for the truth of the
matter asserted.

(Id. at 864-5.)

The holding in Mosesian was based in part on the cases of Whitfield v. Roth; infra, and
People v. Piper, infra:

The opinions of the six outside experts were unquestionably
hearsay opinions. Experts may rely upon hearsay in forming
opinions. They may not relate an out-of-court opinion b:
another expert as independent proof of fact. (Whilfield v. Roth, 10
Cal. 3d 874, 893-896 [112 Cal Rptr, 540; 519 P.2d 588] (1974).) Ttis
proper to solicit the fact that another expert was consulted to
show the foundation of the testifying expert’s opinion, but not to
reveal the content of the hearsay opinion. (People v. Piper, 103
Cal.App. 3d 102, 112 [162 Cal.Rptr. 833] (1980).)

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DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE PRECLUDE PLAINTIFF'S EXPERT
WITNESS FROM REVEALING THE OPINIONS OF OTHER EXPERTS DURING DIRECT EXAMINATION
[20]BRYDON
TIUGO & PARKER
(35 MalN STREET
20" FLOOR
Sen Francisco, CA 94105

(Id. at 860.)

In the seminal case of Whitfield v. Roth, supra, the defendant's radiologist testified,
over the hearsay objection of the plaintiff's attorney, that he showed a series of x-rays to
four other experts who found no abnormalities. (Id. at 893-4.) Similarly, defendant's
neurosurgeon testified over plaintiff's objection that he presented the x-rays at “grand
rounds at Stanford” to about 50 students, residents, staff and faculty doctors, none of
whom could find any abnormality in the films. (/d. at 895.) The California Supreme Court
held that the content of the 54 out-of-court opinions revealed by the experts was
inadmissible hearsay. (Id. at 894.)

The Whitfield court also reviewed the limited exception (“Kelley rule”) to the general
rule, which allows a treating physician to testify to an out-of-court doctor’s opinion which
the treating physician actually used in the diagnosis and treatment of the plaintiff. (id. at
894-5 fn.s 25 and 26.) Under the narrow exception offered by the “Kelley rule” only a
treating physician, and not an individual who is consulted as an expert, can reveal and out-
of-court doctor’s opinion which the treating physician actually used in the diagnosis and

treatment of the plaintiff. (/d.)

In Kelley, the court said: It is argued that the court erred in
receiving into evidence the opinion of Dr. Meyers who was not
called to the witness stand. Defendant's witness, Dr. Fillerup,
after diagnosing a moderate whiplash syndrome in plaintiff, sent
him to Dr. Meyers who made a report to Dr. Fillerup which he
used in his own studies of plaintiff's case; he also consulted with
Dr, Meyers and thereby strengthened his own opinion of
plaintiffs condition. Portions of this report were read to the jury
... There was no error in this. Such a report stands on a parity
with a patient's history of an accident and ensuing injuries given
to his physician. It is admissible not as independent proof of the
facts but as a part of the information upon which the physician
based his diagnosis and treatment, if any.

(Id. at 895, fn. 25.)
The “Kelley rule” does not apply in the instant case for the same reason it did not
apply in Whitfield:

First, the opinions of the out-of-court doctors in this case were
not used by either testifying doctor in the course of treatment or

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DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE PRECLUDE PLAINTIFF'S EXPERT
WITNESS FROM REVEALING THE OPINIONS OF OTHER EXPERTS DURING DIRECT EXAMINATION
[20]BRYDON

Huo & PARKER,
135 MAIN STAMET
21” BLO
San Francisea, CA 94105,

diagnosis of plaintiffs. They were consulted as experts and then
called as experts to offer expert opinion evidence. It is clear that
doctors can testify as to the basis of the opinion, but this is not
intended to be a channel by which testifying doctors can place
the opinion of innumerable out of court doctors before the jury.
Second, it is eminently clear that the testimony concerning the
out-of-court doctors’ opinion on the crucial issue in the case was
offered solely for the improper hearsay purpose, namely as
“independent proof of the facts.” When Mr. Gonick objected to
Dr. Newton’s testifying as to the opinions of the other four
doctors as hearsay, defense counsel Mr. Kraddich quipped: “I
don’t have to calf every doctor in the area.” The record discloses
that the testimony of doctors Newton and Arnstein as to the
views of the 54 doctors they respectively consulted with was
actually offered to establish the opinions of such later doctors
that the 1961 x-ray films showed no abnormality. This testimony
was clearly hearsay.

(Id. at 895 (citations omitted).)
The “Kelley rule” was further clarified in People v. Piper (1980) 103 Cal. App. 3d 102,
162 Cal .Rptr. 833:

A witness giving an opinion may state on direct examination the matter
upon which it is based. A physician witness may further testify as to
content of an opinion of an out-of-court physician upon which the
testifying physician based his diagnosis and treatment of a patient.
Such testimony is admissible not as independent proof of the facts
stated, but as part of the information upon which the doctor based the
diagnosis and treatment. But the Kelley rule is applicable only where a
testifying physician used another physician’s opinion in diagnosis and
treatment and the opinion was on a parity with the history given by the
patient, and not where a witness was consulted as an expert and then
called to offer expert opinion evidence.

(id. at 838 (citations omitted).)
In Piper, the appellate court considered the propriety of two questions that the

prosecutor posed to his criminologist:

By analogy to the provisions of the Evidence Code and to
Whitfield, the prosecutor acted properly when he asked the
criminologist whether he consulted another criminologist before
rendering a final opinion, but the prosecutor sought inadmissible
hearsay testimony when he asked for the content of that second
opinion.

(id. at 838.)
Specifically, the prosecutor asked the criminologist “whether he always obtained the

‘concurrence’ of another criminologist.” (Id.) By expressly holding that such a question
5
DEFENDANT FOSTER WHEELER LLC'S MOTION IN LIMINE PRECLUDE PLAINTIFF'S EXPERT
WITNESS FROM REVEALING THE OPINIONS OF OTHER EXPERTS DURING DIRECT EXAMINATION
120]Do eB YN DB

BRYDON

IlUuGO & PARKER

139 MAIN STREBT
20" FLOR,
San Francisco, CA 84105

“sought inadmissible hearsay testimony” the Piper court made clear that the examiner may
not elicit indirectly, or by inference, the content of another out-of-court expert's opinion
during the direct examination of his own witness.
Whitfield, supra, was further cited for the proposition that an expert may not reveal

the hearsay opinions of another expert in Jamison v, Lindsay (1980) 108 Cal.App. 3d 223, 166
Cal.Rptr. 433. In Jamison, the plaintiff's attorney interviewed an out-of-state expert, Dr.
Scully, approximately two weeks before the trial commenced. (Id. at 233.) Counsel then
asked Dr. Scully to confer by telephone with his other expert, Dr. Loquvam. (Id. at 234.) At
trial, plaintiff’s counsel attempted to question Dr. Loquvam as to statements made by Dr.
Scully in the telephone conversation, arguing that Dr. Loquvam had relied on Dr. Scully’s
statements in forming his own opinions. (Id.) The trial court excluded such testimony
citing Whitfield v. Roth, supra, at pp. 894- 895:

The court properly excluded the proposed testimony of Dr.

Loquvam as to statements made to him by Dr. Scully. Opinions

of out-of-court experts are not admissible to show the basis of a

testifying expert’s opinion if the witness did not use the out-of-

court expert in the course of treatment or diagnosis of the

plaintiff. Dr. Loquvam was consulted only as an expert witness

and was then called to offer expert opinion evidence. Loquvam’s
testimony concerning Scully’s opinion was inadmissible.

(Id. at 234.)
Ill. CONCLUSION

As the aforementioned authorities demonstrate, the law in this area has been settled
for almost 100 years. An expert may not reveal the opinions of other expert witnesses
during direct examination. Accordingly, Defendant respectfully requests the Court for an
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DEFENDANT FOSTER WHEELER LLC'S MOTION IN LIMINE PRECLUDE PLAINTIFF'S EXPERT.
WITNESS FROM REVEALING THE OPINIONS OF OTHER EXPERTS DURING DIRECT EXAMINATION
[20]1 |Jorder admonishing counsel not to elicit, either directly or indirectly, or by inference, the
2 |[opinions of other experts during direct examination of any expert. Moreover, Defendant
3 |/requests the Court to order counsel to admonish his witnesses prior to testifying not to

4 |ivolunteer such evidence at any time.

5 |{Dated: September 30, 2010, BRYDON HUGO & PARKER

7 By:  /s/ Shelley K. Tinkoff
Edward R. Hugo

8 James C. Parker

Shelley K. Tinkoff

9 Attorney for Defendant
FOSTER WHEELER LLC

7
Brypon DEFENDANT FOSTER WHEELER 1.L.C’S MOTION IN LIMINE PRECLUDE PLAINTIFF'S EXPERT
HUGO & PARKER

135 MAIN STREET WITNESS FROM REVEALING THE OPINIONS OF OTHER EXPERTS DURING DIRECT EXAMINATION
20" Fuca [20]

Sin Hennisco, CA IETS