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

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                                BRYDON

Huco & PARKER
135 Mean Sin
20" Kaen
San Frankivco, CA 94108

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, 20 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 EXCLUDE “NO
SAFE DOSE” AND “SINGLE FIBER”
ASBESTOS DEFENDANTS (B#P), ARGUMENT AND EVIDENCE
Defendants. [31]

I. INTRODUCTION

Defendant FOSTER WHEELER LLC (“Defendant”) hereby requests that an order
in limine is necessary to prevent Plaintiff from presenting an argument, likely beginning
in counsel's opening statement, that states the burden of proof backwards and is totally
contrary to governing Supreme Court authority. Absent this Court's order, Plaintiff's
counsel will argue that "there is no safe dose of asbestos," or its corollary, that a "single
fiber" is enough to catse disease, and that the jury must therefore find Defendant liable if
it finds that Plaintiff had any exposure at all to Defendant’s products. This argument is
flatly incorrect as a matter of law.

First, the "no safe dose" theory impermissibly flips the burden of proof to

defendant to prove that its products did not cause injury. Such a "prove the negative”

1

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND
“SINGLE FIBER” ARGUMENT AND EVIDENCE [31]' that is contrary to any plaintiffs standard burden to prove that the defendant caused
plaintiff s injury.
3 Second, the California Supreme Court has recognized that some exposure to
‘ asbestos may be "negligible," and therefore not a “substantial factor" in causing disease.
5 Because only “substantial” factors impose liability, "negligible" exposures do not result in
6 liability. That Plaintiff can identify a product does not mean that that product was a
7 “substantial factor” in causing injury. The question is not "has science determined a safe
8 dose,” but whether this particular plaintiffs exposure to this particular defendant's
° product was a "substantial factor." A percentage of exposure does not translate to
0 percentage of liability, when that exposure is negligible or insubstantial.
u Third, Plaintiff does not claim and can present no evidence that a "single fiber"
0 caused him to contract an asbestos-related disease. Instead, his claims are premised on
B the "cumulative effect" of a lifetime of exposure to many fibers from many products. The
4 United States Supreme Court has rejected a "no safe dose" argument, even under
8 administrative rulemaking standards that are far more lax than those required to impose
6 civil liability. (industrial Union Dept., AFL-CIO v. Am. Petroleum Inst. (1980) 448 U.S. 607.)
"7 In that case, the Court rejected an argument substantially identical to the "single fiber"
8 variant of the "no safe dose" argument. This Court should follow the Supreme Court's
" lead, and exclude arguments of "no safe dose" or "single fiber" without proof that a
*0 “single fiber" is a “substantial” factor in causing asbestos-related disease.
a1 ‘IL ARGUMENT
2 This Court should preclude Plaintiff from arguing, or characterizing the evidence
23 as saying, that "there is no safe level of exposure to asbestos," or that "a single fiber can
“4 cause disease" (sometimes hereafter referred. to jointly as the “no safe dose” argument).
2 The argument is inadmissible because it misstates the law, misstates the facts, and is
*6 based on twisting statements that are not themselves admissible.
27
28
BRYDON 2
Hugo & Pangea DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND
can eH oe “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]1 A. The "No Safe Dose" Argument Misstates The Applicable Burden
Of Proof.

? "[{A] party has the burden of proof as to each fact the existence . .. of which is

3 essential to the claim for relief.. . [that party] is asserting." (Evid. Code, § 500.) Whether

‘ Foster Wheeler products injured Decedent is "essential to the claim for relief... [Plaintiffs

5 are] asserting.” Therefore, it is Plaintiff’s burden to prove that his exposure to each

6 defendant's product was harmful and caused his sickness. (Evid. Code, § 521 [a "party

r claiming that a person did not exercise a requisite degree of care [e.g., was negligent] has

8 the burden of proof on that issue"].)

? The "no safe dose” argument impermissibly reverses this burden of proof. If there
0 is "no safe dose,” then it would be up to Defendant to prove that its particular exposure
" was not harmful. But it is not any defendant's burden to prove that Plaintiff's exposure
B was not harmful; it is Plaintiff's burden to prove that the exposure was harmful. (Evid.

8 Code, § 500,) Defendant need not prove the negative.
4 Courts from other jurisdictions have rejected "no safe dose" arguments on the
" rationale that such arguments get the burden of proof backwards. "Scientific knowledge
16 of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was
y exposed to such quantities, are minimal facts necessary to sustain the plaintiffs burden in
8 a toxic tort case.” (Alien v. Penn. Eng’g. Corp. (5th Cir. 1996) 102 F.3d 194, 198; see also
9 Nat’! Bank of Commerce v. Assoc. Milk Producers (N.D. Ark. 1998) 22 F.Supp.2d 942, 961
0 [excluding plaintiffs expert testimony because it did not set forth the minimum level
al required for danger].} This Court should do the same.
” B. The Court Should Exclude The "No Safe Dose" Argument Because
23 It Is Contrary To The Proof Of Causation Required In Asbestos
Cases By The California Supreme Court.
“4 "Strict liability ... was never intended to make the manufacturer or distributor of a
2s product its insurer.” (Anderson 0. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 994;
*6 accord Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733; Barker v. Lull Engineering Co.
2 (1978) 20 Cal.3d 413, 432.) Because "manufacturers are not insurers of their products[,]
28
BRYDON 3
HUGO & PARKER DEFENDANT FOSTER WHEELER LLC'S MOTION IN LIMINE TO EXCLUDE “NO SAKE DOSK” AND
seat 20 TR gs “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]they are liable in tort only when ‘defects’ in their products cause injury.” (Soule 0. General

° Motors Corp. (1994) 8 Cal.4th 548, 568 fn.5.) Thus, even "strict liability cannot be equated

3 with absolute liability,” because “[cjausation is a necessary element in strict liability just as
4 it is in negligent liability." (Thomas v. Lusk (1994) 27 Cal. App.4th 1709, 1716 n.3, emphasis
° added.) In asbestos cases, governing California Supreme Court authority holds that

6 asbestos cases require that asbestos plaintiffs show both exposure and that the exposure
7 was a "substantial factor” in causing their injuries. ( Rutherford v, Owens-Hlinois, Inc. (1997)
§ 16 Cal.4th 953, 982.)

9

But Plaintiff's "no safe dose" argument assumes the all-important element of
causation out of the equation. It says that any exposure is unsafe and therefore a cause of
injury. Not only is this wrong (if it were true, then everyone ever exposed to any amount
12 || of asbestos would develop asbestos-related disease), it is contrary to principles of tort
13 || causation generally (¢.g., Barker, supra, and Thomas, supra) and theit application to
14 |) asbestos cases specifically (Rutherford, supra).

15 “Argument is improper when it is neither based on the evidence nor related to a
16 || matter of commen knowledge.” (People v. Pitts (1990) 223 Cal.App.3d 606, 702, citations

omitted.) The effect of and liability for asbestos exposure, not "a matter of common,

17

18 knowledge," has been declared by the California Supreme Court to be one thing, by

19 Plaintiff's "no safe dose" argument another. Plaintiffs argument is therefore improper
and should be excluded.

20

1 A plaintiff must prove both (1) that he was exposed to a defendant's
21 products and (2) that such exposure was a "substantial factor” in causing
his injury

2 The California Supreme Court has set forth a two-part test for causation to be
3 applied in all actions for asbestos-related personal injury:
24 the plaintiff must first establish some threshold exposure to the
25 defendant's defective asbestos-containing products, and must
% further establish in reasonable medical probability that a
particular exposure or series of exposures was a ‘legal cause’
27 of his injury, ie. a substantial factor in bringing about the
28 injury.
BRYDON 4
Hugo & PARKER DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMUNE TO EXCLUDE “NO SAFE DOSE” AND
20" FLGOR “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]

See Francisca, CA 8410820

BRYDON

Huco & PARKER,
(55 Marty S7RECT
20" FLOOR
San Francisca, CA 94105

(Rutherford v. Owens-Minois, Inc. (1997) 16 Cal.4th 953, 982 [emphasis partially in
original].) "[T]he proper analysis is to ask whether the plaintiff has proven exposure to a
defendant's product... and then to evaluate whether the exposure was a substantial
factor.” (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416.)

To be substantial, the exposure's effect must be more than "negligible or
theoretical.” (Rutherford, supra, 16 Cal.4th at p. 978.) A "substantial factor" necessary to
prove causation must be truly substantial, not just "minor ... negligible, theoretical, or
infinitesimal,” or a "mere possibility." (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71,
79.) It must be more than negligible because "the substantial factor test subsumes the but
for test" of causation, under which an “actor's negligent conduct is not a substantial factor
in bringing about harm to another if the harm would have been sustained even if the actor had
not been negligent.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1239; Mitchell v. Gonzales (1991)
43 Cal.3d 1041, 1052 ; Rest. Torts (2d), § 388.) If Plaintiff was exposed to vast amounts of
asbestos in other pursuits in life, but only a tiny amount (if any) of asbestos from any
exposure to Defendant’s products, then it is entirely likely that even if Defendant were
negligent, that conduct is not a substantial factor in bringing about the harm because “the
harm would have been sustained even if [Defendant] had not been negligent.” (Viner, 30 Cal.4™
at p. 1239.)

The burden to prove causation is on the plaintiff. (Rutherford, supra, 16 Cal.4th at p.
975; Evid. Code, § 500.) Hence, Plaintiffs must.both (a) establish a "threshold exposure"
for which Defendant is responsible, and (b) prove that such exposure was a "substantial
factor" in causing Plaintiff's injury.

2. Plaintiffs’ "no safe dose” argument ignores the second prong of the

Rutherford test and ignores that some exposures may be too “negligible”
to be a "substantial factor.”

Plaintiff's counsel may attempt to argue that “there is no safe level of exposure to
asbestos.” This "no safe dose” argument asserts that any exposure to any amount of
asbestos, regardless of frequency, intensity or duration, causes disease. Under this

theory, any release of asbestos from a defendant's product anywhere near Plaintiff

5
DEFENDANT FOSTER WITEFELER LLCS MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND
“SINGLE FIBER” ARGUMENT AND EVIDENCE [31]thereby "caused" Plaintiffs disease. Under this argument, no exposure is too “negligible
or theoretical” to escape liability.

But California's highest court held the opposite, and specifically recognized that
4]! "negligible or theoretical" exposure to a defendant's product is not a "substantial factor in
5 ]) bringing about the injury." (Rutherford, supra, at p. 982.) Rutherford holds that substantial
6 || factor causation in the asbestos context requires a two-step process ~ exposure plus
7 || "substantial factor." (Ibid.) Proving exposure to a particular defendant's product satisfies
g || only the first step, and does not by itself establish substantial factor causation.

If Plaintiffs argument is right, then all a plaintiff would have to prove would be

. step one, “exposure to a defendant's [asbestos-containing] product.” But the Supreme

hn Court requires a second step: “evaluating whether the exposure was a substantial factor,”
more than negligible or theoretical, in causing the plaintiffs disease.” (Rutherford, supra,

R 16 Cal 4th at p. 982, citing Lineaweaver, supra, 31 Cal.App.4th at p. 1416.) Arguing that any

B exposure is unsafe would ignore this second step, and would impose liability even where

\4 exposure was not a “substantial factor."

15 C. The Arguments Are Irrelevant And Prejudicial Because They Are

16 Not What Plaintiff Claims Or Will Present Evidence Supporting.

7 The “no safe dose" and especially "single fiber" arguments are irrelevant to

18 || Plaintiff's claims, which are based on the cumulative effect of lifetime exposures and not

19 any single fiber or exposure. Plaintiff will present no evidence that any single fiber

20 || caused him to contract any asbestos-related disease. The California Supreme Court has

2i recognized that the biological mechanisms of asbestos-related disease causation are

22 |) unknown. ( Rutherford, supra, 16 Cal.4th at pp. 974-975.) Thus, the arguments invite the

23 jury to speculate that some single fiber might have caused disease. But that is not the

24 |! issue for the jury to decide: Plaintiff is not claiming that any single fiber caused his injury,

25 || but that the cumulative effect of his lifetime of exposure caused his injury. The "no single

26 |! fiber" argument therefore confuses or misleads the jury as to the proper determination it

27

is to make, thereby unduly prejudices the jury against Defendant and other defendants,
28 || and should be excluded. (Evid. Code, § 352.)

BRYDON 6
HUGO & PARKER DEFENDANT FOSTER WHEELER J.LC’S MOTTON IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND

135 MAN STREET

20" FLOOR “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]

San Francisuo, CA 941051 D. The "No Safe Dose" Argument Is Factually Unreliable, And Is Not
Susceptible To Proof By Testing.

That there is "no known safe level of exposure to asbestos" says less than what

3 Plaintiff may make it out to sound, It does not say that there is no safe dose, only that the

‘ level at which lack of harm can be guaranteed is not known. Courts in other jurisdictions

> have rejected a "no-threshold theory of causation” that benzene in water caused

§ leukemia, holding the theory unreliable because "it cannot be falsified, nor can it be

; validated." (Sutera v. The Perrier. Group of Am. (D. Mass. 1997) 986 F.Supp. 655, 667; see

8 also Mo. Pac. RR Co. v. Navarro (Tex. App. 2002) 90 S.W.Sd 747, 757 [expert testimony

? must state minimum harmful exposure or it is unreliable and should not be admitted
"0 into evidence] [diesel exhaust].) There are obvious ethical problems in experimenting on
un humans to determine what a "safe" dose might be: who would ever volunteer for such a
2 study? Further, there is no real reason to conduct such an ethically questionable study,
8 given that asbestos in many forms is being phased out of use. To argue that no one has
4 ever figured out what amount of asbestos it takes to cause disease is one thing. To say
15 "no safe dose" - that any dose, even a single fiber, is unsafe - is quite another.
16

E. The Court Should Exclude "No Safe Dose" Evidence, Because It Is
17 Hearsay, An End-Run Around The Expert Witness Statutes, And
Addressed To A Different Standard Of Proof And Applicable Law.

8 Plaintiff will likely attempt to support the "no safe dose” argument with
9 statements by public health agencies, like OSHA and EPA. Yet these statements are
*° themselves inadmissible and inapt for a variety of reasons.
al Hearsay is evidence of statements "made other than by a witness while testifying .
7 .. offered for the truth of the matter stated” (Evid. Code, § 1200, subd. (a)) Hearsay, is
2 inadmissible. (Id., subd. (b).) OSHA and EPA reports satisfy both components of the
4 statutory test for hearsay. First, they are statements "made other than by a witness while
* testifying." Second, they are "offered for the truth of the matter stated" in the reports.
%6 They are therefore inadmissible as hearsay. They fall under no recognized exception to
a7 the hearsay rule. If Plaintiff wants to introduce these statements, Plaintiff should call the
28
BRYDON 7
Mico & PARKER DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND

Oooo “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]

San Francisco, CA 94105BRYDON

Huco & PARKER
138 Maine STREET:
20 Foon
San Francisco, CA 84108

authors to testify.

Excluding OSHA and EPA reports comports not only with the language, but with
the purposes of the hearsay rule. "The chief reasons for this general rule of inadmissibility
are that the statements are not made under oath, the adverse party has no opportunity to
cross-examine the declarant, and the jury cannot observe the declarant's demeanor while
making the statements.” (People v. Duarte (2000) 24 Cal,4th 603, 703.) Instead, witnesses
are supposed to testify only about their own personal knowledge. (Evid. Code, § 702.)
OSHA and EPA reports are not made under oath, and the person making the statement
(the report's authors) cannot be cross-examined to determine their demeanor or the
meaning, as well as the reliability and credibility, of statements contained in the reports.

The effects of asbestos are matters outside common experience and therefore a
proper subject of expert testimony. (Evid. Code, § 801.) To render such opinions, a
proposed expert witness must demonstrate qualifications; the substance of the witness's
testimony must be disclosed in advance; and the expert must be made available for
deposition, at which all opinions the witness is to render at trial may be fully explored.
(Code Civ. Proc., §§ 2034.210 et seq.)

Expert opinion is not to be automatically accepted, but critically examined, by the
Court as well as the jury. Expert opinions "are worth no more than the reasons and
factual data on which they are based.” (Griffith v. County of Los Angeles (1968) 267
Cal. App.2d 837, 847; see also CACT 221.) Accordingly, "[a]n expert opinion has no value
if its basis is unsound." (Lockheed Litigation Cases (2004) 115 Cal.App.4® 558, 564.) The
court should examine the expert's reasoning and whether the expert relied on matter
appropriate for an expert in the area. (Ibid.) A conclusory opinion not adequately
supported may not be the basis of a verdict and should be excluded from evidence.
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1117.)

None of these everyday protections against unreliable opinion are available to test
Plaintiff's "opinion" that there is "no safe dose.” The reasons, reasoning, and other bases

8

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND
“SINGLE FIBER” ARGUMENT AND EVIDENCE [31]L |) of the reports are not subject to inquiry by Defendant or the Court. Plaintiff should not be
allowed to use the simple expedient of quoting from a study to end-run these

3 || requirements of qualified experts to give sound, supportable opinion.

Tf Plaintiff was allowed to introduce these reports into evidence, then there would

be no need for live expert witnesses in any case; counsel could just read from texts. But

an nA &

the law is just the opposite: even expert witnesses cannot read from even indisputably

7 {| learned texts on direct examination. As the California Supreme Court explained:

8 Tt has been held, without conflict and in an extended line of
cases in this state, that medical works are hearsay and
9 inadmissible in evidence, except perhaps on cross-
10 examination when a specific work may be referred to ... to
HW discredit a witness who has based his testimony upon it.... If
the books themselves are hearsay and inadmissible, certainly
B any recital of their contents or the substance thereof is none
13 the less hearsay, and should be excluded for that reason.
14 (Baity v. Kreutzmann (1904) 141 Cal. 519, 522; accord Jamison v. Lindsay (1980) 108

15 || Cal. App.3d 388, 415; Brown v. Colnt (1974) 11 Cal.3d 639, 690 n.4.)

16 Also, OSHA statements are also not a substitute for expert testimony because the
17 || standard of proof in a civil lawsuit is different and higher than the standard for decision
18 |) making by an administrative agency.

19 Both the United States Supreme Court and OSHA recognize this. "OSHA is not
20 || required to support its finding that a significant risk exists with anything approaching
21 || scientific certainty.” (Industrial Union Dept, AFL-CIO v. Amt. Petroleum Inst. (1980) 448 U.S.
22 || 607, 655, 656 [” American Petroleum’”], quoted in the 1986 preamble to OSHA's asbestos
23 || regulations.) This is because a regulatory agency, unlike a court, "is free to ... risk[] error
24 |) on the side of overprotection rather than underprotection.” ({bid.)

25 A court, by contrast, is to neither overprotect nor under protect but to reach ‘a just
26 || result on the facts of the case, requiring in toxic tort cases expert testimony that does

27 || “approach scientific certainty." A plaintiff “must... establish in reasonable medical

28 || probability that a particular exposure or series of exposures was ... @ substantial factor in

BRYDON 9
Huo & PARKER DEFENDANT FOSTER WIEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND

LIS MAIN STREET

20" FLOOR “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]

San Franeiszo, CA 941051 || bringing about the injury." (Rutherford v. Owens-Minois, Inc. (1997) 16 Cal 4th 953, 982
2 || [emphasis added].) "[I]t may be appropriate for the EPA to protect people from chemical
3 || exposure on weak evidence that it would cause any harm, but that does not make it
4 || equally appropriate to impose a judgment of several million dollars on weak evidence
5 || that a defendant caused any harm." (Exxon Corp. v. Malofski (Tex. App. 2003) 116 S.W.Sd
6 || 176, 187-88 [overturning verdict because no reliable scientific evidence that benzene
7 || causes plaintiffs leukemia].) Courts should not “rush to impose liability when
8 || scientifically reliable evidence is unavailable." (116 $.W.3d 176,197.) Because OSHA and
9 || EPA reports and actions are directed to a different goal than civil suits and because . the
10 |] contents of those reports are not subject to the same level of scientific scrutiny and
LL || certainty as evidence in a civil case, the reports should not be admitted as evidence.
12 The Fifth Circuit, distinguishing OSHA regulations from causation in a tort case,
13 || noted that a regulator's purpose is to "suggest or make prophylactic rules governing
14 |} human exposure ... from the preventive perspective that agencies adopt in order to
15 || reduce public exposure to harmful substances.” (Alien v. Pennsylvania Eng ‘g. Corp. (5th
16 || Cir. 1996) 102 F.3d 194, 198.) The "agencies" threshold of proof is reasonably lower than
17 || that in tort law, which ‘traditionally make[s] more particularized inquiries into cause and
18 || effect’ and requires a plaintiff to prove that it is more likely than not that another
19 |} individual has caused him or her harm. (Id. [quoting Wright v. Willamette Indus., Inc. (8th
20 || Cir.1996) 91 F.3d 1105, 1107].)
2 Administrative agencies have different goals and different standards of proof than
22 |) courts. General administrative rulemaking should not guide'court adjudication of
23 || particular disputes. This Court should reject the proffered, unsubstantiated assertions of
24 || administrative agencies as evidence in this case.
25 While Plaintiff may attempt to persuade the court that various branches or
_ 26 || departments of the government have opined that there is "no safe dose" of exposure to
27 |) asbestos, in fact, the position of the Government on this issue has been anything but

28 || consistent. As of at least 1967, the well established law of the land for providing a safe

BRYDON 10
HUGO & PARKER DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND

135. Mans STHFRT.

20 FLoaR “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]

San Fransisco, CA 105aI nw

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Brypon

Huco & PARKER
138 Man StL
20" FLOOR
San Francison, CA 94105

workplace for workers performing under contract with the U.S. government was found
in the Walsh Healy Public Contracts Act (41 U.S.C. 35).

That no part of such contract will be performed... under working conditions which
are unsanitary or hazardous or dangerous to the heath and safety of employees engaged
in the performance of said contract. Compliance with the safety, sanitary, and factory
inspection laws of the State in which the work o part thereof is to be performed shall be
prima-facie evidence of compliance with this subsection.

In 1959, Secretary of Labor James Mitchell proposed regulations to be enacted
under the authority of the Walsh Healy Public Contracts Act. The goal of the Secretary was
to promulgate regulations for employers that were to be "reasonably necessary to protect
the life, health, and safety of such employees, and to render safe such employment and
places of employment, and to prevent injury to his employees.” (Fed. Reg., July 17, 1959,
pg. 5743, emphasis added). The Secretary did in fact promulgate such regulations, which
mandated the use of certain personnel protective equipment and the application of
certain "Threshold Limit Values" for exposure to asbestos dust, the implementation of
which would in fact "render safe" working with asbestos containing materials (Title 41,
Code of Federal Regulations, Part 50 -204, at Section 50-204.7 and Section50-204.50).
These same regulations remained in force and effect until at least 1971. Thus, according to
the Secretary of Labor, adhering to these regulations, which allowed exposures up to
certain "Threshold Limit Values" would nevertheless "render.safe" such employment
activities.

The United States Supreme Court has rejected a "no safe dose" argument even
under the laxer administrative standard.

The United States Supreme Court has rejected the "no safe dose" argument in a
case under the less restrictive administrative standard. The Court invalidated an OSHA
regulation > that was premised on the theory that there is "no safe dose" of benzene.
(American Petroleum, supra, 448 U.S. 607.) This language echoing the issues in the present

case, the Court explained:

1

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND
“SINGLE FIBER” ARGUMENT AND EVIDENCE [31}1 [T]he critical issue becomes how to define and allocate
2 the burden of proving the significance of the risk in a case
such as this, where scientific knowledge is imperfect and
3 the precise quantification of risks is therefore impossible.
4 The Agency's position is that there is substantial evidence
5 in the record to support its conclusion that there is no
absolutely safe level for a carcinogen and that, therefore,
6 the burden is properly on industry to prove, apparently
7 beyond a shadow of a doubt, that there is a safe level for
8 benzene exposure...
*653 We disagree.... the burden was on the Agency to
° show, on the basis of substantial evidence, that it is at
10 least more likely than not that long-term exposure [at
i specified level] benzene presents a significant risk of
material health impairment.
@ (448 U.S. at pp. 652-653.) Here, too, where “precise quantification” of risks may be
8 impossible, the burden is nevertheless on Plaintiff to show "that it is at least more likely
4 than not that... exposure" at a given level "presents a significant risk" (or, as otherwise
8 phrased, "is a substantial factor in increasing risk.")
‘6 The rationale advanced by OSHA and rejected by the Supreme Court sounds like
" that advanced by Plaintiff here, substituting "benzene" for "asbestos":
18 Tn the end, OSHA's rationale for lowering the permissible
19 exposure limit to 1 ppm was based, not on any finding that
20 leukemia has ever been caused by exposure to 10 ppm of
benzene and that it will not be caused by exposure to 1 ppm,
a1 but rather on a series of assumptions indicating that some
22 leukemias might result from exposure to 10 ppm and that the
nm number of cases might be reduced by reducing the exposure
level to 1 ppm. In reaching that result, the Agency
24 ..concluded that industry had failed to prove that there is a
25 safe threshold level of exposure to benzene below which no
6 excess leukemia cases would occur. In reaching this conclusion
OSHA rejected industry contentions that certain
27 epidemiological studies indicating no excess risk of leukemia
28 among workers exposed at levels below 10 ppm were
BRYDON 12
Hugo & Pakkne DEFENDANT FOSTER WHEELER LLC'S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND
Sen Fe cs “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]sufficient to establish that the threshold level of safe exposure

2 was at or above “635 10 ppm. It also rejected an industry

3 witness’ testimony that a dose-response curve could be
constructed on the basis of the reported . epidemiological

4 studies and that this curve indicated that reducing the

5 permissible exposure limit from 10 to 1 ppm would prevent at

6 " most one leukemia and one other cancer death every six
years...

7 [T]he Agency [concluded] that, in the absence of definitive

8 *636 proof of a safe level, it must be assumed that any level

9 above zero presents some increased risk of cancer... there are [sic]

a number of scientists and public health specialists who

10 subscribe to this view, theorizing that a susceptible person
1 may contract cancer from the absorption of even ene molecule
2 of a carcinogen like benzene.
B (Id. at pp. 634-636, emphasis added.) The Court rejected the “even one molecule”
14 argument, which is the benzene equivalent of Plaintiffs' "single fiber" asbestos argument,
15 where there was no proof that that amount was toxic. If the United States Supreme Court
16 has held that "no safe dose" assumptions without proof of a minimum level of toxicity do
7 not pass muster under the more relaxed administrative standards, then much less does
18 Plaintiff's "no safe dose" argument pass muster under standards applicable to civil
19 litigation.

In this case ... [OSHA] relied squarely on a special policy for
20

carcinogens that imposed the burden on industry of proving the
21 existence of a safe level of exposure, thereby avoiding [OSHA's]
threshold responsibility of establishing the need for more

22
stringent standards.... These assumptions are not a proper
23 substitute for the findings of a significant risk of harm.
24
25 (Id. at p. 662, emphasis added.) Similarly, this Court should not impose the burden on
% Defendant of proving the existence of a safe level of and toxicity. Plaintiff's
7 unsupportable, unverifiable "no safe dese" and "single fiber" arguments “are not a proper
28 substitute for [evidence] of a significant risk of harm."
BRYDON 13
HUGO & PARKER DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO EXCLUDE “NO SATE DOSE” AND

135 Mam STREET

20" Toor “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]

San Francisca, CA 941051 F. The Court Should Address This Issue In Limine Rather Than
Trying To "Unring The Bell" At Trial.

3 This motion in limine is necessary because otherwise Plaintiff's counsel may

‘4 || present this argument as early as opening statement, as counsel has done in a recent case.

5 || The purpose of a motion in limine is to avoid "the obviously futile attempt to unring the

6 || bell" later, after the jury has already been poisoned with the prejudicial argument or

7 || evidence. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.) The "no safe dose”

argument will prejudice and mislead the jury into believing that exposure equals liability.
9 || To prevent such prejudice and improper argument, and to eliminate the need for

10 || objection during opening statement, this Court should prohibit Plaintiff from arguing,

11 |) and exclude evidence regarding, the "no safe dose" or" single fiber" theory that any

12 || exposure to asbestos automatically results in liability!

13 An in limine motion is also a proper way to exclude hearsay evidence, such as the

14 || EP Aand OSHA reports. (Kelly 0. New West Federal Savings (1996) 49 Cal.App.4th 659, 670

15 || [excluding parry’s testimony about what party heard from someone else].)

16 The Court should grant this motion, shield the jury from prejudicial and

17 |] inaccurate presentations, and steer the trial toward the relevant issues.

18 Il. CONCLUSION

19 The California Supreme Court has recognized that some exposures to asbestos are

20 || too negligible to be considered a legal cause of injury. Plaintiff's "no safe dose" and

21 || "single fiber" arguments are directly contrary to this authority. Counsel's argument is

22 || based on hearsay accounts utilizing a different standard of analysis. This motion should

23 || be granted, and those arguments prohibited and that evidence excluded.

24 |; Dated: September 30, 2010 BRYDON HUGO & PARKER
25
By:  /s/ Shelley K. Tinkoff
26 Edward R. Hugo
James C. Parker
27 Shelley K. Tinkoff
Attorneys for Defendant
28 FOSTER WHEELER LLC
BryDon 14
Huco & PARKIR DEFENDANT FOSTER WHEELER LLC'S MOTION IN LIMINE TO EXCLUDE “NO SAFE DOSE” AND

ene “SINGLE FIBER” ARGUMENT AND EVIDENCE [31]

San Trancisce, CA 94105