59200010

Jun 27 2016
03:56PM

SCOTT L. FROST, ESQ., CA Bar No. 258063

ANDREW SEITZ, ESQ., CA Bar No. 273165
CAITLYN E. SILHAN, ESQ., CA Bar No. 303177
WATERS, KRAUS & PAUL
222 N. Sepulveda Blvd, Suite 1900
El Segundo, California 90245
Tel: (310) 414-8146
Fax: (310) 414-8156

Attorneys for Plaintiff

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

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LAOSD ASBESTOS CASES

JCCP4674

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____________________________________

[Assigned for all purposes to Hon. Steven J.

Kleifield, Dept. 324]

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PETER J. LAMONICA and EXINE

LAMONICA,

Case No. BC 604809

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(Preference Motion Granted)

Plaintiffs,

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vs.

PLAINTIFFS MOTION IN LIMINE TO

EXCLUDE SPECULATIVE OPINIONS
REGARDING PLAINTIFFS GENETICS

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COLGATE-PALMOLIVE COMPANY (sued

individually and as successor-in-interest to
MENNEN COMPANY), et al.

(MIL No. 24)

Defendants.

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Trial Date: July 11, 2016

Time: 9:00 a.m.
Dept.: 324

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Action Filed: December 18, 2015

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Plaintiffs PETER J. LAMONICA and EXINE LAMONICA (Plaintiffs), hereby move this Court

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for an in limine order directing Defendants, their counsel, and expert witnesses, not to refer to, comment

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on, pose questions concerning, or attempt to introduce evidence regarding any speculative genetics of the

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Decedent, specifically whether or not he had the BAP1 gene mutation. Plaintiffs anticipate Defendants

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experts, including but not limited to Dr. Stockman and/or Dr. Feingold, will attempt to introduce opinions

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and argue at trial that Mr. LaMonica had a genetic predisposition that caused his mesothelioma. Such
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MOTION IN LIMINE No. 24

opinion is wholly speculative and therefore, unreliable, irrelevant, and prejudicial. Any reference,

comment, question, or attempt to introduce this scientific opinion must be excluded. This motion is based

on the attached Memorandum of Points and Authorities, the Declaration in support thereof, the pleadings

and records on file in this action, and such further oral and documentary evidence and argument as may be

presented prior to or at the hearing of this motion.

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DATED: June 27, 2016

WATERS, KRAUS & PAUL

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By:_____________________________
ANDREW SEITZ
Attorneys for Plaintiffs

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MOTION IN LIMINE No. 24

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

Expert discovery has not been completed,1 but Plaintiffs anticipate Defendants will attempt to

mislead and confuse the jury by introducing expert opinion suggesting that Plaintiff Peter LaMonica had a

BAP1 genetic mutation, and that it was this genetic predisposition alone that caused him to develop

mesothelioma rather than Defendants asbestos-containing products. Such evidence would be based solely

on speculation and conjecture, as there is zero evidence that (1) Mr. LaMonica had such genetic mutation,

or (2) that the BAP1 mutation can itself cause mesothelioma without exposure to a carcinogen like

asbestos. In fact, Defendants never requested to test Mr. LaMonicas genetics to determine if he actually

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has this mutation. Instead, Defendants have their experts speculate as to whether or not he had it.

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Dr. Stockman, Dr. Feingold, and any similar expert should not be permitted to offer such an

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opinion as it lacks relevance and scientific support, and, particularly in reference to Dr. Stockman and Dr.

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Feingold, neither hold any expertise to offer the opinion. Dr. Stockman and Dr. Feingold specialize in

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pulmonary medicine and, as evidenced by their most recent curriculum vitae, have zero expertise in

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genetics. Accordingly, Defendants should not be allowed to offer expert opinion, testimony, and/or reports

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regarding a BAP1 mutation, and consequently that there was any genetic predisposition to

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Mr. LaMonicas development of mesothelioma.

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II.

RELEVANT FACTS
Mr. LaMonica was diagnosed with mesothelioma on October 6, 2015. (Declaration of Andrew

20 Seitz [Seitz Decl.] at 4.) There is no evidence that he ever underwent any genetic testing. Defendants
21 never requested that he undergo any genetic testing. (Id. at 5.)
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Defense expert Dr. Gail Stockman has testified in past cases that it is entirely possible that [the

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plaintiff] had some genetic predisposition that put him in the unfortunate situation he was in, even

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without any evidence that any testing was done. (Ex. B, Deposition of Gail Stockman, May 17, 2016

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[Stockman Depo.], at pp. 12:21-14:14, 32:05-09.) Dr. Stockman has testified that frequently the

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BAP1 cancer predisposition syndrome patients had family histories of cancer. (Id. at p. 26:12-25, 32:05-

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1 Plaintiffs reserve the right to amend this motion with expert testimony should it become necessary.

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MOTION IN LIMINE No. 24

20.) In a recent paper in the line of research that Defendants' experts rely on, scientists found that only 4

out of 22 individuals who were both diagnosed with mesothelioma and also had family histories of

mesothelioma had the BAP1 mutation. (Ex. C.) Mr. LaMonica does not have a family history of

mesothelioma.

III.

LEGAL DISCUSSION

A. Any Expert Opinion That Mr. LaMonica Had a BAP1 Gene Mutation and Therefore a

Genetic Predisposition to Mesothelioma Is Entirely Speculative and Conjecture and Must

be Excluded.

It is the trial courts gatekeeping responsibility to exclude speculative expert testimony. (Sargon

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Enterprises, Inc. v. Univ. of So. Cal. (2012) 55 Cal.4th 747, 771.) The Court must make certain that an

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expert, whether basing testimony upon professional studies or personal experience, employs in the

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courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant

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field. (Id. at p. 772.)

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Pursuant to Evidence Code section 801, subdivision (b), an experts opinion must be [b]ased on

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matter.perceived by or personally known to the witness or made known to him at or before the hearing,

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whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an

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opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using

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such matter as a basis for his opinion. (Emphasis added.) In exercising its gatekeeping role, a trial courts

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review of an experts factual assumptions is not limited to analysis under Evidence Code section 801;

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rather, pursuant to Evidence Code section 802, a court may review not only the kind of material relied on

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by an expert, but also whether the matter supports the experts opinions. (Evid. Code 802 [providing that

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[t]he court.may require that a witness before testifying in the form of an opinion be first examined

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concerning the matter upon which his opinion is based]; Sargon Enterprises, Inc., supra, 55 Cal.4th at

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pp. 771-72.) Indeed, [t]he court may, and upon objection shall, exclude testimony in the form of an

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opinion that is based in whole or in significant part on matter that is not a proper basis for such an

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opinion. (Evid. Code 803.)

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MOTION IN LIMINE No. 24

The BAP1 mutation was not tested for in this case. Any opinion that Mr. LaMonica had the BAP1

2 mutation and was genetically predisposed to develop mesothelioma is a quantum leap of logic and entirely
3 speculative.
It is well-established that [w]here an expert bases his conclusion upon assumptions which are not

5 supported by the record, upon matters which are not reasonably relied upon other experts, or upon factors
6 which are speculative, remote or conjectural, then his conclusion has no evidentiary value. Pacific Gas &
7 Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-36 [further holding that [i]n those
8 circumstances the experts opinion cannot rise to the dignity of substantial evidence]; In re Lockheed
9 Litigation Cases (2004) 115 Cal.App.4th 558, 563; see also Geffcken v. D'Andrea (2006) 137 Cal.App.4th
10 1298, 1311, as modified (Mar. 28, 2006); Sargon, supra, 55 Cal.4th at p. 770.) The California Law
11 Revision Commission comments to Evidence Code section 801 further explains that under existing law,
12 irrelevant or speculative matters are not a proper basis for an experts opinion. (Cal. Law Revision Com.
13 com., 29B pt. 3A West's Ann. Evid.Code (2009 ed.) foll. 801, p. 25.) Exclusion of expert opinions that
14 rest on guess, surmise or conjecture.is an inherent corollary to the foundational predicate for admission
15 of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?
16 (Sargon, supra, 55 Cal.4th at p. 770.) Thus, under Evidence Code section 801, the trial court acts as a
17 gatekeeper to exclude speculative or irrelevant expert opinion. (Ibid.)
Any expert opinion suggesting that Mr. LaMonica had a BAP1 mutation must be based on actual

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19 evidence. Such opinions cannot be based on assumptions because any such opinions are speculative and
20 inadmissible. Defendants experts fail to note that the BAP1 mutation is extremely rare, even in those
21 cases where it exists alongside mesothelioma. (Ex. C.) In a recent paper, scientists found that only 4 out of
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22 individuals who were both diagnosed with mesothelioma and also had family histories of

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mesothelioma had the BAP1 mutation. (Ibid.) The fact that Mr. LaMonica possibly had a gene mutation

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is not sufficient evidence. Accordingly, any expert opinion, testimony, and/or reports regarding a BAP1

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mutation or any genetic predisposition to mesothelioma should be excluded.

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MOTION IN LIMINE No. 24

B. Any Expert Opinion That A BAP1 Mutation Itself Can Cause Mesothelioma Must Also

Be Excluded.

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Even if this court finds any merit to an argument that Mr. LaMonica may have possessed a BAP1

mutation and therefore holds a genetic predisposition to developing mesothelioma, the opinion that a

BAP1 mutation can itself cause disease lacks any scientific support and should be excluded.

There is no dispute that the decedent, Mr. LaMonica, died from mesothelioma. (Ex. B, Stockman

Depo. at pp. 14:20-15:12.) What is at issue, as is the case in almost all asbestos litigation, is whether

Defendants asbestos-containing products were a substantial factor in bringing about Mr. LaMonicas

mesothelioma. In an effort to refute Plaintiffs causation evidence, Plaintiffs anticipate Defendants

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experts to offer opinions, testimony, and/or medical reports suggesting that Mr. LaMonica had some

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genetic predisposition that led to his development of mesothelioma. (Id. at p. 14:05-14.) Specifically, that

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it was not in fact Defendants asbestos-containing products but a BAP1 mutation that caused his

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mesothelioma. However, the opinion that a BAP1 mutation can itself cause disease lacks any scientific

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support. When specifically asked upon what she bases this opinion, Dr. Stockman stated there were a

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number of papers, specifically identifying four. (Id. at pp. 30:06-31:08.) However, not one of those

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sources she cites concludes from empirical scientific evidence that a BAP1 mutation can alone cause

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disease. More importantly, only one of those sources even mentions in any detail the relation of asbestos

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with mesothelioma and a BAP1 mutation and it is a letter (as opposed to an article) hypothesizing in one

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sentence that the BAP1 mutation alone may be sufficient to cause mesothelioma. However, there is no

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scientific data or article that tests or supports this theory. In fact, Defendants experts even admitted that

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the role of a BAP1 mutation, and its interplay with asbestos exposure, in causing mesothelioma is not yet

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adequately understood, requiring more studying that may reveal answers in the coming years.

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As discussed above, Evidence Code section 803 requires a court to bar expert testimony that is

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based on improper matter. The label of expert does not render an unsupported opinion valid. Therefore,

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because the scientific evidence does not support the opinion that a BAP1 mutation can itself cause

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disease, it must be excluded.

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MOTION IN LIMINE No. 24

C. None of Defendants Experts Have Any Expertise to Opine on BAP1 Causation.

Dr. Stockman and Dr. Feingold have no genetics expertise at all. Both are pulmonologists, which,

3 although a type of biologist, is not a molecular biologist nor a cell biologist. Dr. Stockman is board
4 certified in internal medicine while Dr. Feingold is board certified in internal medicine and
5 pulmonary medicine, neither are board certified in occupational lung disease. Neither Dr. Stockman
6 nor Dr. Feingold have any written any publications that deal with genetics. In sum, the only purported
7 expertise in genetics is that they possess is having recently read some of the articles to state their
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Nevertheless, both experts purport to opine that the BAP1 mutation can itself cause mesothelioma

10 without asbestos exposure. As they are not qualified to testify to genetic mutations, their opinions should
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D. Expert Opinion Regarding the BAP1 Mutation Is Entirely Irrelevant to Any Disputed
Fact That Is of Consequence To the Determination of Plaintiffs Case.
Evidence Code section 350 states that [n]o evidence is admissible except relevant evidence.

15 Evidence Code section 210 defines relevant evidence as evidence having any tendency in reason to
16 prove or disprove any disputed fact that is of consequence to the determination of the action. To be
17 admissible, evidence must be both relevant and material to the dispute. (Cal. Rules of Court, Rule
18 3.1552; see also Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1029, as
19 modified on denial of reh'g (Aug. 27, 2008) [holding that evidence must be relevant to the substantive
20 issue[s] in the case]; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1211 [holding that relevant
21 evidence must have logical tendency to prove disputed matter and create reasonable inference as to
22 existence or nonexistence of fact at issue] [citation omitted].) Indeed, evidence [that] produces only
23 speculative inferences is irrelevant. (People v. Babbitt (1988) 45 Cal.3d 660, 682, as modified on denial
24 of reh'g (Aug. 25, 1988) [citation omitted] [internal quotations omitted] [emphasis in original]; see also
25 People v. Hovarter (2008) 44 Cal.4th 983, 1009 [finding that [s]peculative inferences.cannot be
26 deemed to be relevant under the definition of relevant evidence set forth in Evidence Code section 210,
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which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason

for such purpose] [citation omitted] [internal quotations omitted].)

Here, as outlined above, any expert opinion regarding Mr. LaMonica possibly having a BAP1

mutation and that this BAP1 mutation alone caused his mesothelioma, rather than Defendants asbestos-

containing products is nothing more than rank, irrelevant speculation lacking entirely in foundation and is

therefore inadmissible. Any such opinion has zero tendency in reason to prove or disprove any disputed

fact that is of consequence to the determination of the action. Therefore, it should be excluded.

E. The Probative Value of Expert Opinion Regarding the BAP1 Mutation, If Any, Is

Substantially Outweighed by the Probability that the Admission of Such Opinion or

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Testimony Will Cause an Undue Consumption of Time, Create Substantial Danger Of

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Undue Prejudice, Confuse the Issues, and Mislead the Jury.

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A court, in its discretion, may also exclude evidence if its probative value is substantially

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outweighed by the probability that its admission will necessitate an undue consumption of time and will

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create a substantial danger of unfair prejudice, confusing the issues, and misleading the jury. (Evid. Code

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352.) In balancing the probative value of the evidence against the risks, the trial court must consider the

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relationship between the evidence and the relevant inferences drawn from it; whether the evidence is

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relevant to the main or only a collateral issue; the necessity of the evidence to the proponents case; and

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the exclusionary factors of Evidence Code section 352. (Kessler v. Gray (1978) 77 Cal.App.3d 284, 291.)

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Indeed, evidence may be excluded under Evidence Code section 352 if it is unduly prejudicial, despite its

20 legitimate probative value, because it poses an intolerable risk to the fairness of the proceedings and the
21 reliability of the outcome. (Piscitelli v. Salesian Soc. (2008) 166 Cal.App.4th 1, 11.)
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As set forth in the preceding sections, Dr. Stockman and Dr. Feingolds opinions lack the

23 necessary foundation (i.e., are based on speculative hearsay, unfounded assumptions, and incomplete
24 records), and the speculative nature of their opinions renders those opinions entirely irrelevant to the
25 determination of this action. (Korsak, supra, 2 Cal.App.4th at p. 1523 [courts have the obligation to
26 contain expert testimony within the area of the professed expertise, and to require adequate foundation for
27 the opinion] [emphasis added].) Their testimony therefore has zero probative value in this case, no
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tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of

2 the action, and is therefore properly excluded as irrelevant evidence. This fact alone warrants exclusion of
3 Dr. Stockman and Dr. Feingolds testimony under Evidence Code section 352 as irrelevant testimony would
4 inherently necessitate an undue consumption of time, confuse the issues and mislead the jury, and create a
5 substantial danger of undue prejudice. (Id. at p. 1525 [holding that when the jury is allowed to consider the
6 hearsay evidence presented by the expert in connection with proof of the matter asserted, the hearsay
7 principles are violated and prejudice is apparent]; Hyatt, supra, 79 Cal.App.3d at p. 338 [holding that
8 speculative or conjectural evidence could very well confuse the jury.]
Even if the Court should find that their expert testimony is minimally probative, if at all, any arguable

10 probative value is vastly outweighed by the substantial danger that admitting such baseless and speculative
11 testimony would result in an undue consumption of time, mislead and confuse the jury, and create a
12 substantial danger of undue prejudice. As argued above, Dr. Stockman and Dr. Feingolds testimony rests on
13 speculative, unfounded assumptions. The Court should therefore grant Plaintiffs motion in its entirety by
14 excluding Dr. Stockman, Dr. Feingold, and any related expert opinion, testimony, and/or reports regarding
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F. Alternatively, Plaintiffs Request a 402 Hearing.

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If the Court is not inclined to exclude these unsupported opinions at this time, Plaintiffs request a

18 402 hearing in order to explore the foundation of these opinions.

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IV.

CONCLUSION
Accordingly, for the foregoing reasons, Plaintiffs respectfully request that the Court enter an order

21 granting this motion to exclude Defendants, their counsel, and expert witnesses, refer to, comment on,
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pose questions concerning, or attempt to introduce evidence regarding the BAP1 gene mutation.

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DATED: June 27, 2016

WATERS, KRAUS & PAUL

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By:_____________________________
ANDREW SEITZ
Attorneys for Plaintiffs

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MOTION IN LIMINE No. 24

PROOF OF SERVICE

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STATE OF CALIFORNIA

3 COUNTY OF LOS ANGELES

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)
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I, KIMBERLY MANALANSAN, declare:

I am over eighteen years of age and not a party to the within action; my business address is 222
North Sepulveda Boulevard, Suite 1900, El Segundo, California. I am employed in Los Angeles County,
6 California.
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On June 27, 2016, I served a copy of PLAINTIFFS MOTION IN LIMINE TO EXCLUDE

8 SPECULATIVE OPINIONS REGARDING PLAINTIFFS GENETICS (MIL No. 24) in this action
as follows:
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(By E-Service). I electronically served the documents(s) via File & ServeXpress on the recipients
designated on the Transaction Receipt located on the File & ServeXpress website.
SEE TRANSACTION RECEIPT ON FILE & SERVEXPRESS WEBSITE
(State) I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
Executed on June 27, 2016, at El Segundo, California.

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_______________________________
KIMBERLY MANALANSAN

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PROOF OF SERVICE