67219260

Jan 07 2022
02:51PM

1 MAUNE.RAICHLE.HARTLEY.FRENCH & MUDD, LLC

David L. Amell, Esq. (State Bar No. 227207)
2 David L. Rancilio, Esq. (State Bar No. 281129)
Seth Santini, Esq. (State Bar No. 335402)
3 Sarah E. Gilson, Esq. (State Bar No. 260263)
1900 Powell Street, Suite 200
4 Emeryville, CA 94608
Telephone: (800) 358-5922
5 Facsimile: (314) 241-4838
damell@mrhfmlaw.com
6 drancilio@mrhfmlaw.com
ssantini@mrhfmlaw.com
7 sgilson@mrhfmlaw.com

8 Attorneys for Plaintiffs

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF ALAMEDA – COURT OF UNLIMITED JURISDICTION

11 JOHN C. LOHMANN and SUZANNE L. Case No.: RG21098862

LOHMANN,
12 ASSIGNED FOR ALL PURPOSES TO
Plaintiffs, JUDGE JO-LYNNE LEE, DEPT. 18
13
vs. DECLARATION OF SARAH E. GILSON
14 IN SUPPORT OF PLAINTIFFS’
AAON, INC., et al. MOTION FOR PROTECTIVE ORDER
15 CONCERNING THE USE OF
Defendants. PLAINTIFF’S PATHOLOGY
16 MATERIALS
_____________________________________
17
Date: February 18, 2022
18 Time: 10:00 a.m.
Dept: 18, Hon. Jo-Lynne Lee
19 Reservation No.: 566978402894

20 Complaint Filed: May 12, 2021

Trial Date: March 28, 2022.
21

22 I, Sarah E. Gilson, declare as follows:

23 1. I am an attorney duly admitted to practice law before all the courts of the State of

24 California and am an associate with Maune, Raichle, Hartley, French & Mudd, LLC. The

25 matters stated herein are true to my own personal knowledge. If called upon as a witness to

26 testify, I could and would testify to the following facts.

27 ///

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DECLARATION OF SARAH E. GILSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROTECTIVE
ORDER CONCERNING THE USE OF PLAINTIFF’S PATHOLOGY MATERIALS
 1 2. Designated Defense Counsel (hereinafter “DDC”) will request, via email to

2 Plaintiffs’ counsel, the production of pathology slides and block in their possession. Plaintiffs’

3 counsel will notify DDC whether they possess such material, and then will mail same to the

4 custody of DDC, with DDC promising to return it by a date certain. That agreement has long

5 included additional terms, namely, that neither DDC nor Defendants will perform any genetic

6 testing on this material absent the express permission of Plaintiffs and their counsel.

7 3. As the Court is well aware, over the past year there has developed a significant

8 disagreement regarding the misuse of plaintiff pathology materials between DDC, Defendants

9 and Plaintiffs’ Counsel, ranging across all Plaintiffs’ Counsel’s cases pending in Alameda

10 County.

11 4. As a result, Plaintiffs have developed and required, prior to producing any

12 pathology, a signed stipulation by DDC which would control the use of such materials by

13 Defendants and their experts.

14 5. Attached as Exhibit A to the Index of Exhibits is a true and correct copy of the

15 Exemplar Proposed Stipulation.

16 6. This agreement has been, in all but one instance, rejected by DDC and Defendants

17 in every case in which the issue has arisen to date.

18 7. As a result of this dispute, DDC filed a Motion to Compel Plaintiffs this matter to

19 produce pathology materials absent such terms, in response to their informal request.

20 8. This Motion was denied, and the Court held an Informal Discovery Conference in

21 which she briefed the parties on her positions regarding the dispute.

22 9. In the Court’s Motion for Preference Order, she then directed Plaintiffs to produce

23 the pathology materials in their possession (which Plaintiffs had agreed to do), but stated that

24 parties and experts in possession of such materials are precluded from using this material for

25 purposes other than in this litigation, pending a ruling on a Motion for a Protective Order.

26 10. Attached as Exhibit B to the Index of Exhibits is a true and correct copy of the

27 Lohmann Order Granting Preference, issued December 10, 2021.

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DECLARATION OF SARAH E. GILSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROTECTIVE
ORDER CONCERNING THE USE OF PLAINTIFF’S PATHOLOGY MATERIALS
 1 11. The pathology materials in Plaintiffs’ possession have been produced as a result.

2 12. Defendants additionally served formal discovery seeking Plaintiff’s pathology

3 materials on December 22, 2021, including both a Request for Production and subpoenas to Mr.

4 Lohmann’s treaters, which triggered Plaintiffs’ ability to file to present Motion.

5 13. A series of events in mid-2021 led Plaintiffs’ counsel to the conclusion that the

6 informal agreements in place with DDC were inadequate to protect the privacy rights of their

7 clients. First, upon the return of pathology slides to Plaintiffs in a Los Angeles case from

8 defendant Honeywell’s expert Dr. Lucien Chirieac, it was evident slides and testing had been

9 performed for BAP-1 genetic mutation in violation of the terms precluding such testing.

10 Plaintiffs immediately notified Honeywell of their objection.

11 14. Then, a few months later, upon the return of pathology materials from DDC in an

12 Alameda case, it was evident that again, Dr. Chirieac had performed genetic testing, again

13 without Plaintiffs’ permission and therefore in violation of the informal agreement with DDC.

14 Plaintiffs again objected, but found themselves without any legal recourse for this violation,

15 because the agreements with DDC had always been informal in nature and had never involved

16 the Court

17 15. Attached as Exhibit C to the Index of Exhibits is a true and correct copy of

18 Article, by Dr. Victor Roggli, entitled Malignant Peritoneal Mesothelioma Arising in Young

19 Adults With Long-standing Indwelling Intra-abdominal Shunt Catheters, published 2020.

20 16. Upon reviewing that publication, Plaintiffs’ counsel realized that one of the

21 individuals described by Dr. Roggli was clearly an individual who had been represented by

22 Plaintiffs’ counsel. Details of her complex medical history, exposure history, age and genetic

23 information were made public in the article.

24 17. Dr. Roggli had been retained by the defendants in her case and testified that her

25 mesothelioma was not caused by his client’s products.

26 ///

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DECLARATION OF SARAH E. GILSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROTECTIVE
ORDER CONCERNING THE USE OF PLAINTIFF’S PATHOLOGY MATERIALS
 1 18. Attached as Exhibit D to the Index of Exhibits is a true and correct copy of

2 Abstract, attached as Exhibit 7 to the Deposition of Dr. Roggli, taken March 31, 2020 in Wagner

3 v. American Art Clay Co., Inc., et al., Los Angeles Superior Court Case No. BC645588.

4 19. Attached as Exhibit E to the Index of Exhibits is a true and correct copy of the

5 relevant excerpts to the Deposition of Dr. Roggli, taken March 31, 2020 in Wagner v. American

6 Art Clay Co., Inc., et al., Los Angeles Superior Court Case No. BC645588.

7 20. It is unclear what consent those individuals, as patients undergoing treatment,

8 gave for the broad use of their medical information, but at no point was that plaintiff, her family,

9 or Plaintiffs’ Counsel notified that Dr. Roggli intended to use her medical information in his

10 research, nor was her consent or the consent of her family sought for the publication of her

11 information in his study.

12 21. Dr. Roggli had never requested, nor been granted, permission to publish regarding

13 that individual, nor had he ever been granted access to her medical data for any purpose other

14 than offering opinions to support the defendants in her case.

15 22. Upon learning of the above, Plaintiffs’ Counsel reached out to DDC and informed

16 them that they could not authorize the production of further medical data and materials in any of

17 their outstanding cases absent certain protections, which would have to be formalized in writing

18 as an Order signed by the Court as Defendants were violating the informal agreements with no

19 repercussions.

20 23. Attached as Exhibit F to the Index of Exhibits is a true and correct copy of Meet

21 and Confer Chain.

22 24. Attached as Exhibit G to the Index of Exhibits is a true and correct copy of the

23 Declaration of Victor Roggli (without exhibits) in Support of DDC’s Motion to Compel in this

24 instant matter.

25 25. Unlike medical records, pathology block or tissue, along with slides, are unique

26 medical material. During the course of expert discovery it is passed from facility to facility and,

27 if an expert deems it necessary, additional “cuts” or slides, are created by removing samples

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DECLARATION OF SARAH E. GILSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROTECTIVE
ORDER CONCERNING THE USE OF PLAINTIFF’S PATHOLOGY MATERIALS
 1 from the block of tissue to test for various markers. Thus this original and irreplaceable evidence

2 will often, prior to trial, be transported across the country, altered and diminished.

3 26. For this reason, a chain of custody is essential to preserve the authenticity of the

4 material. Several recent cases within asbestos litigation had had critical evidence excluded for a

5 failure to maintain chain of custody.

6 27. Additionally, in the instance of the unauthorized BAP-1 testing by a defendant

7 who had received the materials from DDC, DDC initially refused to provide the identity of that

8 defendant or its expert. Generally speaking DDC refuses to disclose the identity of even the

9 defendant who has made a request for medical materials. Once materials are handed over to

10 DDC, the handling of them, what manipulations or cuts were made and by whom, have been

11 shrouded by DDC’s self-asserted work product privilege and Plaintiffs are unable to verify the

12 safe keeping and authenticity of the materials upon return.

13 28. For context, in the overwhelming majority of mesothelioma cases handled by

14 Plaintiffs’ counsel in Alameda County, there is no dispute regarding diagnosis.

15 29. Attached as Exhibit H to the Index of Exhibits is a true and correct copy of the

16 relevant excerpts to the Testimony of Khalil Sheibani, M.D. taken on January 27, 2020 in Brazil

17 v. Alta Building Materials, et al., Alameda County Superior Court Case No. RG17884898.

18 30. Attached as Exhibit I to the Index of Exhibits is a true and correct copy of

19 Sheibani Report, in Brazil v. Alta Building Materials, et al., Alameda County Superior Court

20 Case No. RG17884898.

21 31. A similar institutional policy reflecting the Federal Policy for Protection for

22 Human Research Subjects exists at Massachusetts General Hospital, the facility where Dr.

23 Lucian Chirieac is employed as a researcher.

24 32. Attached as Exhibit J to the Index of Exhibits is a true and correct copy of the

25 Federal Policy for Protection for Human Research Subjects, 45 CFR 46.

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DECLARATION OF SARAH E. GILSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROTECTIVE
ORDER CONCERNING THE USE OF PLAINTIFF’S PATHOLOGY MATERIALS
 1 33. Trial Courts have recently excluded evidence analyzed by experts in asbestos

2 litigation, where there was no chain of custody for the materials at issue (See, e.g. Alfaro v.

3 Imerys Talc America, 2017 WL 3668610 and Weirick v. Brenntag LASC Case No. BC656425,

4 both cases in which the analysis of talc by plaintiff’s expert was excluded for lack of chain of

5 custody)

6 I declare under penalty of perjury under the laws of California that foregoing is true and

7 correct.

8 Executed on January 7, 2022, in Emeryville, California.

9 _______________________________
Sarah E. Gilson
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DECLARATION OF SARAH E. GILSON IN SUPPORT OF PLAINTIFFS’ MOTION FOR PROTECTIVE
ORDER CONCERNING THE USE OF PLAINTIFF’S PATHOLOGY MATERIALS