Document X7jDEqXLEyqyLrw8jKe1Ze4aG

SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO BEFORE THE HONORABLE TOMAR MASON, JUDGE PRESIDING DEPARTMENT NUMBER 606 ----oOo----- PAUL EDGAR GORDON, JR. and MARGARET GORDON, Plaintiffs, Vs. FORD MOTOR COMPANY, et al., Defendants. ) ) ) ) Case No. 274076 ) Jury Trial ) Volume 3 ) ) ) ) ) Reporter's Transcript of Proceedings Friday, September 5, 2008 Afternoon Session APPEARANCES OF COUNSEL: For Plaintiffs: Baron & Budd, PC, 3102 Oak Lawn, Suite 1100 Dallas, Texas 75219 By: JOHN LANGDOC, ESQ. DENYSE F. CLANCY, ESQ. For Defendant General Motors: Filice, Brown, Eassa & McLeod Lake Merritt Plaza 1999 Harrison Street, 18th Floor Oakland, CA 94612-3541 By: EUGENE BROWN, ESQ. AMEE A. MIKACICH, ESQ. For Defendants Chrysler, LLC and Ford Motor Company: Thelen, Reid, Brown, Raysman & Steiner 101 Second Street, Suite 1800 San Francisco, CA 94105 By: JAMES OSTERTAG, ESQ. LAUREN M. MICHALS, ESQ. Reported by: Patty Lee Hubble, CSR #3058 14b97b25-0a58-468b-af64-f9b7e13ad271 1 AFTERNOON SESSION Page 1299 1:40 p.m. 2 (The following proceedings were had in open court, out of 3 the presence of the jury.) 4 THE COURT: Calling back into session the matter of Gordon 5 v. Ford, Chrysler, and GM. 6 The Court notes the presence of all previously appearing 7 counsel. 8 As a reminder, I was going to turn to Ms. Mikacich to see if 9 she joins entirely in the position taken by Mr. Ostertag and/or 10 whether she wishes to supplement. 11 MS. MIKACICH: Yes, Your Honor. General Motors joins in the 12 motion as articulated by Mr. Ostertag and pursuant to our motion 13 in limine Number 19 on the same subject. Thank you. 14 THE COURT: Thank you very much. 15 And now, as I announced previously, I will turn to the 16 plaintiffs to address several of the issues about which the 17 Court had the most concern. 18 MS. CLANCY: Yes. First of all, Your Honor, it is necessary 19 to correct misimpressions about what Dr. Castleman is going to 20 testify about. He's not going to testify about fraud. He is 21 not going to testify about conspiracy. He's simply going to 22 testify about the state of the art, as he has always been 23 represented as testifying in this court by these plaintiffs. 24 This is in brief, the nutshell, the state of the art for 25 brake literature and the exposure of mechanics to asbestos. 26 Dr. Castleman was on the forefront of that exploration in the 27 early 1970s. And I'm giving you a tiny bit of a historical 28 perspective so it will make sense to you coming forward. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1301 1 literature, and by OSHA and by the EPA, that exposure to 2 asbestos from brakes causes mesothelioma. And the literature 3 was also full of references in epidemiological studies as to 4 exposure to chrysotile asbestos causes mesothelioma and exposure 5 to other types of asbestos causes mesothelioma. 6 Since the year 2000 there has been a documented effort by 7 General Motors, Ford and Chrysler to do exactly what 8 Mr. Ostertag said. They have hired different consultants such 9 as Dr. Paustenbach, Dr. Hessel and Dr. Teta, to do what is 10 called a metaanalysis; they have taken all the literature to 11 date and reanalyzed it and said that it is our opinion that when 12 we reanalyze the data, this shows that, in fact, there is not a 13 harm from exposure to asbestos. 14 The money that has been spent by these companies is - 15 ranges from 30 to $35 million. 16 THE COURT: You claim this is in an effort to demonstrate 17 that there's no hazard from asbestos? 18 MS. CLANCY: Well, they have -- in brakes, in just brake 19 mechanics. 20 This has been well documented in not only the peer-reviewed 21 published literature, which I will give a couple of brief 22 examples, but also Dr. Castleman was invited by the U.S. Senate 23 to testify to them on this very subject. 24 I point these matters out just to show that the most basic 25 element -- this is, in essence, a Frye hearing to determine the 26 admissibility of evidence. 27 And what we are talking about is material that is generally 28 accepted in the scientific literature; that is, material that 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1302 1 Dr. Castleman has worked on and relied upon outside of the field 2 of litigation, and thus he is just coming to this Court to say, 3 in terms of state of the art, here is what is happening in the 4 brake literature. 5 We had a sea change as of the year 2000, where these 6 companies devoted a lot of resources to having their 7 consultants, scientists hired by them, reanalyze the data, to 8 question whether or not there was a risk. And then these 9 scientists hired by the companies, which Mr. Ostertag admitted, 10 published articles claiming -- stating their findings were that 11 there was indeed not a risk. 12 So, for example, the International Journal of Occupational 13 Environmental Health - 14 THE COURT: One of the consultants is Dr. Teta? 15 MS. CLANCY: One of the consultants is Dr. Teta, that they 16 have paid. And I believe she came out with another article this 17 spring. 18 THE COURT: I'm not sure -- can I read this on my screen? 19 MS. CLANCY: Let me give you a clear copy. I just wanted to 20 show you the journal it is coming from, a July/September 2007 21 publication from the International Journal of Occupational and 22 Environmental Health. 23 I have a copy that may be clearer. 24 The title of the article is "Asbestos Exposure Causes 25 Mesothelioma, But Not This Asbestos Exposure," by Laura Welch. 26 And, again, this is referring to the Chrysler, General Motors 27 and Ford, their experts' publication, saying that even though we 28 know asbestos exposure causes mesothelioma, our analysis of the 14b97b25-0a58-468b-af64-f9b7e13ad271 1 data shows brake mechanics are not at risk. Page 1303 2 THE COURT: Is this a tabbed exhibit in your binder? 3 MS. CLANCY: This is not, but I can supplement it. 4 THE COURT: Do you have a copy of the article? 5 MS. CLANCY: Yes. 6 THE COURT: Do you have a courtesy copy for the Court? 7 MS. CLANCY: Yes, if I may approach. 8 THE COURT: You may. 9 MS. CLANCY: There are a couple of additional points about 10 the article. This is part of plaintiffs' offer of proof to show 11 that this is state of the art that is generally accepted in the 12 peer-reviewed literature. 13 If you look at the last page of the article, where I have 14 highlighted, Page 323, the middle paragraph: 15 "Since 2000, Ford, General Motors and Chrysler 16 have paid over $30 million to hire consultants for 17 the purpose of generating the very papers they rely 18 on, and for testifying regarding these papers in 19 court." 20 Of great importance in this article, what we're looking at 21 is a Frye standard, whether or not this is a theory that has 22 been generally accepted. And if you look at who has signed on 23 to this article, which are the signatories at the back, you can 24 see Dr. Castleman, Barry Castleman, Kensington, Maryland, is 25 right there on the right-hand side. But, in addition, you've 26 got many, many preeminent experts in the field of health, 27 epidemiology, and science who have signed on to this article, 28 and thus showing that, the extent of support it has received in 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1305 1 Line 8. 2 THE COURT: The exhibit? 3 MS. CLANCY:It's Exhibit 4. 4 THE COURT: Got it. 5 MS. CLANCY: Okay, 59, Line 8, Dr. Paustenbach is asked: 6 "Well, why don't you just tell me how much money 7 you and your staff have made from these motor 8 companies since they first hired you to help them in 9 their asbestos -- in their quest for the asbestos 10 science." 11 It was previously established that Dr. Paustenbach started 12 working with them shortly after the year 2000. 13 He moves on, he's ordered by the Court to answer. And the 14 answer is at Line 22: 15 "Well, I think what's been said before, it's been 16 at least 35 million in research over dozens and 17 dozens, I suppose several, I believe hundreds of 18 cases between the two firms over the last 70 years. 19 "Q. 35 million bucks? 20 "A. That's what's been reported." 21 That is just -- plaintiff had put that in there to show that 22 although the number 30 million may, in fact, be a conservative 23 estimate, when Dr. Paustenbach has testified himself that he 24 believes it's reported to be 35 million since the year 2001, 25 because that was seven years before 2008. 26 THE COURT: This is part of the deposition. And the Court 27 of Common Pleas, First Judicial District of Pennsylvania, Civil 28 Trial Division, jury trial, in which this was live testimony 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1309 1 it has been discussed by their experts and also published in 2 articles, where experts have reviewed the bills of Exponent, as 3 well as interrogatories propounded by these defendants, talking 4 about the amount of money that they spent on developing this 5 science since the year 2000. 6 Dr. Castleman himself was invited to testify to the Senate 7 on this very issue. And I have his testimony that he gave to 8 the Senate, behind Tab 14. The importance of this testimony is 9 that outside the field of litigation, Dr. Castleman was asked to 10 provide his expert opinion to the Senate on the issue of what is 11 happening with the state of the art in brake literature and how 12 have the car companies developed that literature according to 13 his expert opinion. 14 This goes to the issue of: Is this an area that is in his 15 field of expertise, that he is practicing, experienced and 16 trained on and, in fact, viewed by our government to be a 17 national expert in? And he is not only viewed by our government 18 to be a national expert in this issue, but he's invited to speak 19 on this issue before the United States Senate. 20 THE COURT: Let me ask you this question: Is Dr. Castleman 21 going to offer an opinion that Ford, GM and Chrysler engaged in 22 a conspiracy to perpetrate a fraud on the medical community, the 23 public, the courts, theplaintiff and everyone? 24 MS. CLANCY: No, he is not. He'sgoing to simply say: Here 25 is what happened. Here was the state of the art up to 2001. 26 Here is the money that has been spent. Here are the articles 27 that have been published as a result of that money. The 28 conclusions to be drawn will be within the province of the jury, 14b97b25-0a58-468b-af64-f9b7e13ad271 1 Court that it's absolutely critical that one of the - Page 1312 2 (Pause in the proceedings.) 3 MS. CLANCY: I'm sorry. 4 Those studies were about juries. I'm using it as an example 5 of how the United States Supreme Court says that, necessarily, 6 any inquiry into the validity and the weight to be accorded to a 7 series of studies or scientific evidence is who is funding the 8 studies at issue. 9 And the Ninth Circuit here in California has also stressed 10 the same point. 11 THE COURT: Counsel, I understand now that Dr. Castleman 12 will not offer an opinion that the defendants here have 13 conspired, acted in concert to perpetrate a fraud. 14 Is that right? 15 MS. CLANCY: That is absolutely right. 16 THE COURT: So if the Court were to grant that motion as 17 articulated, it would be moot in any case. 18 ms. CLANCY: That's right. 19 THE COURT: But you do indicate to the Court you will be 20 offering Dr. Castleman's testimony on historical review of not 21 only what the defendants in the industry did, which I indicateed 22 I would permit, but you're also going to ask to present his 23 evidence -- or you intend to present his testimony concerning 24 his review of the literature of the development of brake - 25 asbestos-containing brake literature based on the various things 26 that you described. 27 MS. CLANCY: Right. Exactly. 28 THE COURT: I will rule, right now: Motion to exclude 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1313 1 testimony by or an opinion by Dr. Castleman on fraud and 2 conspiracy is granted, but is moot because those opinions will 3 not be offered. 4 I have heard your offer on what he will testify about, and I 5 think I understand, it's very similar to your offer on his 6 review of research and documents concerning what the industry 7 was doing at certain times; and you also wish to offer his 8 review and -- his review of the literature of how the literature 9 has developed and the sources of the development of that 10 literature. 11 MS. CLANCY: Exactly, which is actually consistent with what 12 we were saying before: It's the scientific, medical, and 13 corporate literature as it's been in the past and as it's 14 developed to present day. 15 The offer stands the same. Defendants' twist on it that 16 we're adding some sort of fraud or conspiracy, as the Court has 17 recognized, is not what we're saying. It's a continual review 18 of the present time to the development of the literature, which 19 the Senate has, in fact, called on Dr. Castleman to testify to 20 them about this very issue. 21 And I'm sorry if I'm redundant about that. I think it's 22 important to point out that not anybody can just testify before 23 the Senate. And the Senate has to issue a formal invitation and 24 say, "We are calling on you as an expert because we request your 25 expertise in this area." 26 So this is something that has been Dr. Castleman's field of 27 study as well as interest -- professional, outside of 28 litigation, as you can see from the article stemming from 1975, 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1314 1 to his testimony before the Senate in 2007, is clearly something 2 he has expertise in and clearly something that is highly 3 relevant to the very issues at the heart of the case. 4 THE COURT: Just so that I can narrow this down to the 5 likely next level of arguments, should we get to a punitive 6 damages stage of this case, which the Court has not yet 7 determined, you would at that point probably at least be 8 indicating to the Court that the plaintiff wishes to argue that 9 this is a fraud or conspiracy, or not? 10 You're not even doing that? So it's not allegation; it's 11 not opinions; it's not even argument, not even if we get to 12 punitive damages? 13 MS. CLANCY: Correct. 14 THE COURT: Got it. 15 And there's one other question I have. 16 Oh, yes, defendants contend the $30 million is a figure just 17 drawn from the air and it must represent general costs of 18 defense. That's what I understood they contended. 19 Is that what you contend? 20 MR. OSTERTAG: I didn't say it was drawn from the air. I 21 think it may have been stated in the General Motors 22 interrogatory response, but it's -- Dr. Paustenbach doesn't say 23 this. 24 It is fees paid for, yes, defense of the litigation. People 25 coming in here to testify to give opinions, just like he would. 26 And they have all said -- and if we get to this, if this comes 27 in, we will want to call all these witnesses to rebut all these 28 allegations. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1315 1 THE COURT: Don't worry, Mr. Ostertag, I will make sure you 2 have plenty of time for that. 3 MR. OSTERTAG: Judge, this is a huge thing. But anyway, 4 they have all said no, we got paid a couple hundred thousand 5 dollars total to do these articles. 6 The rest of the money went to - 7 THE COURT: Okay. Mr. Ostertag, I had understood previously 8 that you contended that -- and were concerned that the 9 plaintiffs intended to introduce evidence that $30 million was 10 spent on consulting fees of some kind. And you don't actually 11 controvert that because, of course, there's costs of defense; so 12 far, am I right? 13 MR. OSTERTAG: That's right. 14 THE COURT: All right. But -- actually, now I think I 15 understand that since the consulting fees related to expert 16 witnesses and the development of expert witnesses' opinions, it 17 doesn't sound like, right now, that you're contending -- that 18 must have contributed to the literature in some way; correct? 19 MR. OSTERTAG: Well, there are three or four articles that 20 did, yes. 21 THE COURT: So at least the three or four articles are a 22 subset of those defense costs? 23 MR. OSTERTAG: Very small subset, yes. 24 THE COURT: The $30 million, if that is a correct figure, 25 also covers other defense costs? 26 MR. OSTERTAG: Absolutely. 27 THE COURT: Okay. So I'm just going to clarify this with 28 Ms. Clancy. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1316 1 Ms. Clancy, is it the plaintiffs' intention specifically to 2 offer evidence of $30 million being to develop literature, or is 3 that an intention of yours at all? 4 MS. CLANCY: I'm sorry, he was talking. I lost you on the 5 last clause, contention of what? 6 THE COURT: Do you intend to introduce the figure of 7 $30 million or $35 million? 8 MS. CLANCY: We intend to introduce the figure of 9 $30 million because that's what is accepted in the 10 peer-reviewed, published literature. We intend to offer it for 11 this proposition, since the year 2001, that amount of money has 12 been spent by these car companies, both to develop a science 13 with respect to, as he said, at least three or four papers, 14 three or four papers, extraordinarily important to the defense 15 of their case, as well as to pay for consulting costs to their 16 experts, as well as to pay for these firms to -- you know, 17 invoices that show -- write articles to government agencies on 18 behalf of these brake companies. 19 THE COURT: So you intend to offer evidence that defendants 20 in this case have spent $30 million on approximately four 21 articles and on other costs of defense since 19 -- since 2001. 22 Correct? 23 MS. CLANCY: Correct. 24 But not their attorney defense, not the cost of the 25 attorneys, but with respect to their paid consultants, which is 26 clearly something that if -- you know, is a matter that the jury 27 has -- should be allowed to hear. And if he wants to take it on 28 cross, disputing which goes to the articles and which goes to 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1317 1 just the paid consultants' salaries, that is certainly a purview 2 he can take on cross. 3 But we absolutely intend to offer that $30 million has been 4 spent by the car companies since 2001. 5 THE COURT: How is this discerned? I see it in the paper, 6 the last exhibit you offered, which we will get around to 7 numbering soon, I guess it will be 18? 8 MS. CLANCY: 18. 9 THE COURT: 18 of the tabbed exhibits. Which, again, I will 10 go back to a proper marking of this exhibit later. 11 But on Page 323, which you referenced, there is a statement 12 that since 2004, General Motors and Chrysler have paid over 13 $30 million to hire consultants for the purpose of generating 14 the papers they rely upon. 15 MS. CLANCY: Yes. 16 THE COURT: Is there some admission out there by Ford, 17 General Motors and Chrysler? 18 MS. CLANCY: Yes, if you look at the footnote, for 19 example - 20 THE COURT: Which footnote? 21 MS. CLANCY: The footnote to the statement, there's a little 22 cross. 23 THE COURT: I have admitted -- off the record. 24 We will take a break while this is copied for the defense. 25 (Discussion off the record.) 26 THE COURT: Back on the record. 27 Counselor for the defense have been provided with the tabbed 28 exhibits 1 through 17, but not the tabbed Exhibit 18, which is 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1318 1 being utilized by the Court now, which will be added to this 2 notebook. 3 We will take a brief recess for a copy to be made. 4 I understand counsel for the defense are willing to share it 5 for the purposes of completing these arguments. 6 With that, we're taking a brief recess. 7 (Recess was taken at 2:14 P.M.) 8 THE COURT: Back on the record on Gordon v. Ford, Chrysler, 9 General Motors. 10 The Court notes the appearance of previously appearing 11 counsel, and goes back to the argument concerning the 30 million 12 and the answer to the Court's question about whether there is an 13 admission by General Motors, Ford, and Chrysler, and the 14 response by plaintiff that it can be found or is referenced 15 on -- which page of Plaintiffs' 18? 16 MS. CLANCY: Page 323 of Exhibit 18, the footnote with a 17 cross, just a singular cross referencing Ford, General Motors 18 and Chrysler have admitted in litigation that since 2000, they 19 have paid over $30 million to these experts. See Ford and 20 General Motors answers to interrogatories, U-N-D-E-N, v. General 21 Motors, Case Number 056311, Circuit Court for Hillsborough 22 County, Florida, and Chrysler IRS Form 1099s produced in 23 litigation. 24 THE COURT: Thank you,Counsel. 25 We had taken a recess so a copy could be provided to 26 defense, and that has been done; correct? 27 MR. OSTERTAG: Yes. 28 MS. MICHAL: We received one copy, Your Honor. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1319 1 THE COURT: I appreciate your sharing that copy, and we will 2 make sure you get copies for all counsel at the conclusion of 3 this hearing. 4 That was the Court's last question. 5 Was there an admission? 6 MS. CLANCY: And I guessimportant, because if you look at 7 Exhibit 14, which is Dr. Castleman's testimony to the Senate, 8 his sworn testimony. 9 THE COURT: That's the Barry Castleman statement to the 10 Senate Health, Education, Labor, and Pensions Committee, 11 March 2007? 12 MS. CLANCY: Right. 13 On Page 5 of that testimony, the first full paragraph, it 14 says: General Motors, Ford, Daimler Chrysler have spent 15 23 million between 2001 and the spring of 2006. 16 Again, that's a shorter period being analyzed here, from 17 2001 to the start of 2006, and we can see that, therefore, the 18 number is smaller, 23 million. 19 And what Dr. Castleman did in order to derive that number 20 for purposes of his sworn testimony to the Senate, he examined 21 the Exponent and Chemrisk bills, the two scientific consulting 22 firms at issue, and their bills to Ford, General Motors, and 23 Chrysler. 24 THE COURT: What is plaintiffs' offer as to what the 25 business of Chemrisk and Exponent is? 26 MS. CLANCY: The business of Chemrisk and Exponent, as it 27 relates to these companies, is to generate scientific papers, to 28 do scientific research, and to provide testimony in litigation, 14b97b25-0a58-468b-af64-f9b7e13ad271 1 both in litigation and outside of litigation. Page 1320 2 THE COURT: You have now answered additional questions of 3 the Court. The Court has already ruled, granting the motion to 4 exclude opinions and allegations of conspiracy and fraud, which 5 is moot because you will not offer it. 6 The Court is now considering the purpose for which you offer 7 Dr. Castleman's testimony, which is a review of the development 8 of the literature, including defense costs in development of 9 this literature. 10 MS. CLANCY: Exactly. 11 And, Your Honor, it is -- it actually boils down to a very 12 simple issue. It's an expert who has devoted his life's work to 13 this issue, who has been called upon by our Congress to testify 14 about it, who has published about it in his own textbook, as 15 well as in his sworn testimony, who is relying on peer-reviewed 16 and published articles of other medical authorities in the 17 field. 18 And the issue is very simple: How did the medical and 19 scientific literature evolve with respect to the area of brake 20 mechanics? 21 And as the Court put it quite well, and what was the source 22 of some of the funding of that as it evolved? It is a 23 fact-based inquiry. It does not include inflammatory language, 24 as defense counsel would suggest. 25 One final point raised by Mr. Ostertag, he said he was not 26 designated to testify about this issue. I point out we offered 27 Dr. Castleman for deposition, but defendants did not take us up 28 on the offer and did not want to depose him. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1321 1 Clearly in our -- we are required, obviously, under 2034 to 2 provide a general statement about what he will testify about. 3 The defendants attached that statement to the briefing, so they 4 already have a copy, but I would like to read into the record 5 that plaintiffs clearly designated Dr. Castleman to testify 6 about this very area: 7 "Dr. Castleman may testify regarding the 8 development of scientific knowledge concerning the 9 hazards of asbestos. He may testify about the 10 published literature and how it was available, 11 disseminated, and circulated to medical, private, 12 scientific, academic, and industrial concerns." 13 THE COURT: What have you quoted from? 14 MS. CLANCY: Plaintiffs' 2034 designation of Dr. Castleman. 15 That I can attach as Exhibit 19 to the record. It was also in 16 defendants' briefing to the record. If I may approach. 17 THE COURT: Defendants' 19 is marked -- Court now marks and 18 is considering plaintiffs' Exhibits 1 through 19; correct? 19 MS. CLANCY: Yes. 20 THE COURT: 1 through 19, these will be designated 21 Plaintiffs' Exhibits to oral argument regarding Dr. Castleman, 22 and they are so marked and considered by the Court during this 23 hearing. 24 I don't believe admission is necessary for this hearing. 25 Would you all agree to that? 26 MR. OSTERTAG: I would agree. 27 I frankly object to the materials dropped on us for the 28 first time today, but that's our objection. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1322 1 MS. MIKACICH: And I join in that objection. 2 THE COURT: If you have not had sufficient time to respond 3 on these things, I will give you time. But I'm only ruling on 4 the motions before the Court right now. 5 These are not admitted. No one else is going to consider 6 them. So I hope you can reach a conclusion that you will have 7 enough time to respond today, but if you don't, I will certainly 8 give defendants more time. 9 So the Court now examines Plaintiffs' 19 tabbed exhibits to 10 the oral argument exhibit plaintiff has just described. You 11 were quoting from what page? 12 MS. CLANCY: It's marked with a red tab with pen and yellow 13 highlight. 14 THE COURT: Dr. Castleman has agreed to testify -- this is 15 in this case? 16 MS. CLANCY: Yes. The designation, that's actually the copy 17 attached to defendants' briefing in this case. 18 the COURT: (Reading.) 19 "Testifying regarding development of scientific 20 knowledge concerning the hazards of asbestos, about 21 published literature and how it wasavailable, 22 disseminated, and circulated to medical, private, 23 scientific, academic and industrial concerns, and 24 will testify regarding asbestos hazards available to 25 and reflected by corporate documents and depositions 26 to have been known by defendants in this action." 27 And it goes on. 28 The Court is not changing or altering any of its previous 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1323 1 rulings, but understands this further describes the offer and 2 previous revelation that Dr. Castleman will testify on these 3 issues; correct? 4 MS. CLANCY: Yes, Your Honor. 5 And, finally, just to put a bow on that issue, 2034 requires 6 us to make a general statement, not overly legalistic. I 7 attached numerous cases to this notebook with respect to that 8 very fact. If you can give a general broad statement that 9 encompasses it, that should be sufficient. 10 So we have clearly here, in an attempt to define what is 11 state of the art, we put in several sentences saying that it is 12 the development of the literature. It is who it is disseminated 13 to and how, and the means by which it is, all of which clearly 14 encompasses what I guess has now gotten redundant, he will talk 15 about state of the art, development of the medical, scientific, 16 and corporate literature from the 1800s up to present day. 17 So we're not -- nothing we are saying here is any different 18 than he has ever been offered to testify about in 19 Plaintiffs' 2034 designation. And there is not this 20 inflammatory language; we have agreed not to use the word 21 "fraud" or "conspiracy" in his testimony. 22 And it is, as a matter of a Frye issue, quite simple, that 23 Dr. Castleman has devoted his life's work to it. He has a 24 doctorate in public health. He has published five editions of a 25 textbook on this issue, a full chapter which is devoted solely 26 to the brake literature. He has testified before Congress on 27 this issue. He has reviewed the underlying bills related to how 28 some of the literature was developed. And he is also relying on 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1324 1 peer-reviewed literature, generally accepted, in this case, the 2 Laura Welch article, over 51 preeminent scientists in the field 3 of public health. 4 So the matter is actually one that, when viewed with what is 5 going to happen, is quite simple in terms of the Frye analysis. 6 THE COURT: I want to hear from the defendants because I 7 understand what is offered by the plaintiffs. 8 MR. OSTERTAG: I don't think it's a Frye issue, but it's 9 neither here nor there. 10 This whole thing started with counsel for the plaintiffs, in 11 opening statement, got up with three books, started waving them 12 around about we're going to show that the defendants promulgated 13 a fraud. You may not have used the word "fraud," but similar to 14 what happened in the tobacco litigation, about how phony science 15 was being generated. 16 And that is where all this started. And that set a thing 17 off in my head about: Wait a minute, if he's not disclosed on 18 that -- I have taken his deposition in the past. And there's a 19 Supreme Court case, Your Honor, on point here that says, in the 20 materials they submitted, Bonds v. Roy, 20 Cal.4th 140 - 21 THE COURT: Excuse me, is that a tabbed exhibit in 22 plaintiffs'? 23 MS. CLANCY: Yes, Your Honor, Tab 8. 24 THE COURT: Thank you. 25 MR. OSTERTAG: This case says even if there's a designation 26 on a witness, if it doesn't tell you the areas he's going to 27 testify on, then it can be insufficient, and the Supreme Court 28 sustained the trial court's exclusion of a witness on a 14b97b25-0a58-468b-af64-f9b7e13ad271 1 particular issue. Page 1325 2 I have taken Dr. Castleman's deposition. I know what he's 3 going to say on state of the art and things like that. I didn't 4 take his deposition in this case because there wasn't any 5 indication that he would be talking about: We are going to show 6 what your clients did in the brake literature is analogous to 7 what happened in the tobacco litigation. 8 THE COURT: I haven't heard that offer from plaintiffs. 9 MR. OSTERTAG: That's what the opening statement was. 10 THE COURT: We're now on this motion. 11 MR. OSTERTAG: I know. 12 THE COURT: I granted the first portion of your motion. I 13 required that plaintiffs describe with detail what extra issue 14 Castleman's testimony would cover. And we're talking about the 15 historical development of the literature, not just about your 16 client, a historical development of all of the literature. And 17 that is what I'm now hearing you object to. 18 MR. OSTERTAG: I haven't heard them say, "We're sorry," in 19 opening statement, "We were mentioning tobacco, we're not going 20 to get into that." 21 Judge, I have to be careful because I've had to stand up and 22 object more times in this trial already than I had to in 23 probably five trials combined, because we get rulings on things; 24 or if we don't get rulings on things, I have to object. So the 25 first question is - 26 THE COURT: I understand that. But, really, I'm not 27 anticipating apology from the other side as part of this 28 hearing. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1326 1 MR. OSTERTAG: No, no. The representation in opening 2 statement was, "You're going to hear how this is analogous to 3 the tobacco litigation." This is how it started it off. And we 4 still have not had a representation now, "No, no, that will not 5 be the representation of Dr. Castleman, we will not talk about 6 phony science in the tobacco litigation." 7 THE COURT: I just listened to a long recitation of the 8 proffer of what Dr. Castleman will testify about regarding the 9 literature. And there was not one word about a comparison to 10 the tobacco industry. 11 MR. OSTERTAG: If Your Honor is satisfied that is, by 12 failure to say that, that is out of the case, I'mhappy to move 13 on to the next issue. But I want to be careful on this. 14 THE COURT: Clarifying: Ms. Clancy, do you intend 15 Dr. Castleman to offer an opinion or view comparing the 16 development of this literature to the development of the phony 17 science in the tobacco industry? 18 ms. CLANCY: No, Your Honor. 19 MR. OSTERTAG: Okay. 20 THE COURT: All right. The motion is granted but is moot. 21 That opinion and testimony, not to be offered. 22 MR. OSTERTAG: All right, then, moving on. 23 I still don't think the designation is sufficient. What it 24 says is he may testify regarding the development of scientific 25 knowledge concerning the hazards of asbestos. That doesn't talk 26 about this issue of, "I'm going to give expert opinion on the 27 millions of dollars you spent to develop science." 28 "May testify about the published literature and how it was 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1327 1 available, disseminated, circulated to medical, private, 2 scientific, academic, and industrial concerns." Nothing in 3 there, again, about those issues, about this so-called 4 $30 million and about how you've pumped it into these 5 consultants to develop this science. 6 As an aside, Your Honor -- well, I will get to that in a 7 moment. 8 THE COURT: So you further object to this line of testimony 9 by Dr. Castleman on the grounds that it is not a plausible 10 portion of the designation? 11 MR. OSTERTAG: Right. 12 It's not in the 2034 deposition. I have taken his 13 deposition, he knows that, and I deposed him on all the issues 14 from Merewether up to the current. And if I had known there 15 would be some testimony by him on this issue, and if I could 16 have gleaned that from this expert witness designation, I would 17 have taken it. And, you know, this Bonds case, on page -- I 18 guess page 146, headnote two -- give you a second to get there. 19 THE COURT: Let me see if I can get to that. 20 MR. OSTERTAG: Tab 8, Page 5, if youlook at the upper right 21 hand - 22 THE COURT: Bonds v. Roy; correct? 23 MR. OSTERTAG: That's correct. 24 THE COURT: Thank you. Tab 8 of the exhibits to plaintiffs' 25 oral argument which has been marked and is being considered by 26 the Court. 27 What line? 28 MR. OSTERTAG: It's headnote two. 14b97b25-0a58-468b-af64-f9b7e13ad271 1 THE COURT: Yes. Page 1328 2 MR. OSTERTAG: It says: 3 "Indeed, the very purpose of the expert witness 4 discovery statute is to give fair notice of what an 5 expert will say at trial. This allows the parties to 6 assess whether to take the expert's deposition." 7 So the fact we didn't take his deposition is not relevant on 8 whether there is a 2034 -- aproper 2034designation. I didn't 9 take it because I know what he will say on the general issues. 10 I didn't see anything - 11 THE COURT: Mr. Ostertag, so far the only thing I'm hearing 12 you say you are taken by surprise about is the $30 million 13 figure. 14 MR. OSTERTAG: No. No. The $30 million figure, whatever 15 work he has done on that, whatever he has reviewed on that, and 16 whatever opinions he's going to say about what these papers are, 17 published by the consultants, what he has done to investigate 18 them, what opinions he's got about them, all those kinds of 19 things. 20 It's not here. And I didn't take his deposition, so I think 21 this is pretty clear in this case,Roy v.Bonds says in a 22 similar situation, they excluded anexpert witness from giving 23 an opinion, not all opinions, but an opinion that wasn't 24 properly disclosed in the designation. So that's point 25 Number 1. 26 THE COURT: You have a point related to his 27 qualifications - 28 MR. OSTERTAG: Yeah, I don't. 14b97b25-0a58-468b-af64-f9b7e13ad271 1 THE COURT: -- or designation? Page 1329 2 MR. OSTERTAG: The other issue is -- I'm sorry, Your Honor. 3 THE COURT: I just want to know if we're moving to an 4 entirely different complaint, because as I said, I think it's 5 sometimes handy for the Court to rule on a subsection of 6 issues - 7 MR. OSTERTAG: I think there's no 2034 proper designation. 8 I would have taken the man's deposition if I had seen it. 9 And let me say this, I have seen designations much more 10 detailed, where they give you a description about what the 11 witness is going to say with regard to my clients. And this one 12 doesn't say it. It's a generic designation that they submitted 13 in re complex asbestos litigation, to cover all defendants and 14 all cases. 15 THE COURT: You know, looking at Plaintiffs' 18, by Laura 16 Welch, GM's counsel present has conceded that defendants are 17 aware of, wouldn't you think that this expert would testify 18 about an article that he signed on to? Wouldn't that be 19 plausibly within the 2034? 20 MR. OSTERTAG: If so, they should have put it in there. I 21 don't think so. 22 THE COURT: They should put in Tabs 1 through 18 - 23 MR. OSTERTAG: No, something that saysthiswitness will 24 testify about the monies paid by consultants for these 25 defendants, what that meant, how that has affected the science, 26 all the issues that he will give opinions on or purports to want 27 to give opinions on. 28 THE COURT: Thank you. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1330 1 On that issue I will now turn to GM's counsel to ask whether 2 you are submitting or wish to supplement the issue. 3 MS. MIKACICH: We join. 4 So the record is perfectly clear, we object to any offer of 5 the Laura Welch article for various reasons, which Mr. Ostertag 6 is probably going to articulate for the Court, so I will hold 7 off on that. 8 THE COURT: I'm not ruling now on the admissibility of these 9 documents. I'm not being asked to. I understand the position 10 of GM. The Court is prepared to rule. 11 This portion of the objection by defendants to the testimony 12 of Castleman is denied. I have granted the motion to exclude 13 Castleman's comparison of this literature development to the 14 tobacco industry or to tobacco industry's phony science finding; 15 it would be moot and not offered. 16 The objection on the grounds that the 2034 designation, 17 Plaintiffs' 19 tothese argument exhibits, the objection that it 18 is not plausibly within this designation, the Court rejects. 19 The objection is overruled on that ground. 20 Now, I think you have another argument. 21 MR. OSTERTAG: I do, and I agree it's better to move step by 22 step like this. 23 THE COURT: Thank you. 24 MR. OSTERTAG: I do object to him being, or really anyone 25 being an expert who can get up on the witness stand and say 26 these defendants spent $30 million doing this, for some of the 27 reasons we mentioned this morning, about if those facts are 28 true, and they're facts. They're not alleged to come in to show 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1331 1 notice or something like that. They are supposedly very - 2 according to them -- very important facts that this jury should 3 hear. Then they need to prove those up through admissible 4 evidence. 5 THE COURT: I asked about this earlier, Mr. Ostertag, and my 6 then understanding was defendants concede that $30 million or 7 perhaps more has been spent -- has been spent in defending 8 these -- these types of issues. You conceded that just a little 9 while ago now. You're saying he can't testify about it, but you 10 agree that -- I mean, I'm not sure if you're going to ask me to 11 let the jury hear about all of the different expenses and all of 12 the different claims and so on. But so far, you have told this 13 Court that you agree that there's been $30 million of defense 14 costs related to issues like these. And, you know, it's 15 legitimate for the defendants to develop costs to defend their 16 clients. 17 MR. OSTERTAG: What I'm saying, that can come through our 18 witnesses. They know the facts. If somebody from Exponent, 19 Dr. Teta gets up there and testifies she knows the facts about 20 that, she can say that. 21 But Dr. Castleman, these are facts that he knows from 22 hearsay methods. 23 And I would point out that this Welch article, this Laura 24 Welch article, I guess Exhibit 18, this was a legal brief filed 25 in a Michigan case that was then published in a journal which is 26 a plaintiffs' advocacy journal. It's a legal brief. And this 27 footnote that counsel pointed you to, the text of the article 28 says: 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1332 1 "Since 2004, Ford, General Motors and Chrysler 2 have paid over 30 million to hire consultants for the 3 purposes of generating the very papers they rely 4 upon." 5 That's the text. This is an advocacy piece. And the 6 footnote says: 7 "They have admitted in litigation they paid 8 $30 million to these experts." 9 They paid 30 million. If that's the admission, they paid 10 30 million in defense costs and in retaining consultants, not 11 $30 million to generate science, to develop science. That's 12 what we're talking about. There's no factual basis for that. 13 THE COURT: The statement in Plaintiffs' 18 is not about 14 generating phony literature. The testimony is: 15 "Since 2000, Ford, General Motors and Chrysler 16 have paid over $30 million to hire consultants for 17 the purpose of generating the very papers they rely 18 upon and for testifying regarding those papers in 19 court. Ford, General Motors and Chrysler have 20 admitted in litigation that since 2000, they have 21 paid over $30 million to these experts." 22 MR. OSTERTAG: Here is the other problem. 23 THE COURT: I think you are not correctly articulating the 24 way this piece of information is going to be utilized or is 25 intended by the plaintiff. 26 MR. OSTERTAG: Here is the other 352 issue. 27 THE COURT: Okay. 28 MR. OSTERTAG: The claim is you spent $30 million to develop 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1333 1 these papers; and to develop what counsel said here, we stood up 2 and said we developed a defense. We never said that. We never 3 said that we have come in and developed some kind of scientific 4 defense. The literature has always been out there, for 20, 30 5 years. But the 352 issue is - 6 THE COURT: You can't do a meta-analysis until there are a 7 lot of studies out there to do a meta-analysis upon. 8 MR. OSTERTAG: Counsel started the argument by saying by the 9 year 2000, it was universally accepted that brakes cause 10 mesothelioma. 11 If we want to take five minutes, I have a half a dozen 12 peer-reviewed literature epidemiological studies before the year 13 2000 that say, "We don't see a risk in developing mesothelioma 14 among car mechanics." So that statement is flat-out wrong. 15 But here is the 352 issue: He comes in and is allowed to 16 give this testimony, then I have to bring Dr. Paustenbach, 17 Dr. Hessel, Dr. Garabrant, all these folks whose reputations 18 have been impugned and who have been told -- the jury has been 19 told these have all been paid $30 million by these companies to 20 write these papers and come to these conclusions, it's all 21 bought-and-paid-for science. That's what the whole point of 22 this presentation is. 23 And I don't have an objection to cross-examining witnesses 24 and saying, "You were paid a lot of money," and Mr. Langdoc to 25 get up in closing argument and for him to argue, "Ladies and 26 gentlemen, this is bought-and-paid-for science." 27 I have an objection to that. That's fair game. 28 THE COURT: It's basically to the amount of the costs. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1334 1 MR. OSTERTAG: No, it's having it come through this witness 2 who will -- it's because now -- if you put a witness on to say: 3 These are the facts, they spend 30 million, it was for all these 4 papers, this is phony science, that will be the implication. 5 Even if they don't use the words "conspiracy" and "fraud," that 6 will be the implication. 7 I should get the opportunity to call the folks who wrote the 8 papers to say it's untrue. First of all, the companies didn't 9 pay us to write these. We came up with the ideas, and then we 10 went out and sought funding in the same ways that researchers 11 from government go out and find funding. Private researchers 12 do, too. They will say: We never once showed our articles to 13 these clients before they were published. They had no input on 14 them. 15 THE COURT: So I asked you whether your objection under 352 16 relates to the amount of the costs, the $30 million figure. And 17 you said no. 18 MR. OSTERTAG: No. 19 THE COURT: What you're saying -- I now understand 20 defendants object under 352 to Dr. Castleman testifying that his 21 view of the literature demonstrated that there were costs of 22 consultants in literature that was paid for by the defendants. 23 How does he avoid saying that? 24 MR. OSTERTAG: It's not the purview of an expert witness, 25 first of all. 26 THE COURT: So long as Dr. Castleman talks about the 27 development of the literature -- which I already ruled is 28 permissible -- but doesn't say who paid for it, but only says 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1335 1 that it was -- who generated it, that solves your 352 objection. 2 MR. OSTERTAG: It might. 3 I want to say this, too. I don't have an objection to 4 people getting on the witness stand and saying these studies are 5 wrong. Of course I don't have an objection to that. That's 6 fair game. They can put a witness on the witness stand and say 7 the meta-analysis that was done by Exponent, here is the 8 problems with it, here is why that is not good science. We're 9 not objecting to that. 10 What I'm objecting to is to put, under the guise of an 11 expert witness, all these sorts of facts: Well, here is the 12 $30 million they spent, they funded these articles, all of a 13 sudden these articles are printed, you know. And either the 14 conclusion or the implication is, it's just all phony 15 bought-and-paid-for science. 16 THE COURT: If there's only four studies and $30 million 17 representing the literature developed by the three defendants in 18 this case, doesn't that imply a huge amount of literature was 19 developed by somebody else? 20 MR. OSTERTAG: No. The 30 million, it was costs paid for, 21 all the defense costs in all the cases they had expert witnesses 22 working on, not -- those articles, it turns out it's a few 23 hundred thousand dollars funded for the three or four articles, 24 something in that ballpark. I don't have the exact numbers, but 25 something in that ballpark. 26 And the rest of the money was spent, you know, as retained 27 experts in the tens of thousands of cases -- I don't know how 28 many Exponent and Chemrisk has been retained on, but these auto 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1336 1 companies have tens of thousands of cases nationwide. 2 THE COURT: Okay. So $30 million represents the costs of 3 defense, but not attorneys' fees, as I understand it - 4 MR. OSTERTAG: That's correct. 5 THE COURT: -- in defense casepreparation, defendingcases 6 throughout the United States. But only a fraction of that, 7 maybe 100- to $300,000, represents the costs of the -- costs 8 paid by defendants to the experts who wrote the four studies 9 that you're arguing about? 10 MR. OSTERTAG: Maybe four, five hundred grand. I don't know 11 the number, it's low. But the point is -- yes, that's true. 12 And these witnesses would say, you know, we came up with the 13 ideas, we came up with the protocol. We went to find funding. 14 They gave us the money. Everyone did it. We never showed them 15 the articles until it was said and done, and we printed it and 16 published it. They had no input on it. 17 THE COURT: Who is the "they"? 18 MR. OSTERTAG: The authors, the researchers that wrote the 19 papers. They will say the auto companies had zero input, we 20 wouldn't allow it. That's the scientific method. We're not 21 going to allow the auto companies to have input on this. That 22 would be bogus science, they wouldn't allow it. 23 And if the witness gets up on the witness stand and makes 24 those implications, I will call these folks to say, did you - 25 were you a tool or a pawn for the auto companies? Did you just 26 write what they wanted you to write? You're not an independent 27 scientist who did legitimate scientific research published in a 28 peer-reviewed literature? 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1337 1 And that's what this will lead to. This is my 352 argument. 2 We're not even through the plaintiffs' examination, and we're 3 already in the third week in this trial, and it will create a 4 whole trial within a trial. 5 THE COURT: I think I understand this part of your objection 6 under 352, to the statement of the costs and the fact that costs 7 were incurred by defendants being testified to by Dr. Castleman. 8 GM's position? 9 MS. MIKACICH: Your Honor, I join in Mr. Ostertag's remarks, 10 and I would urge the Court to look at the support for that 11 number, in the Welch article footnote, very clearly says that 12 that number derives from a set of interrogatory responses from a 13 case called Unden v. General Motors in Hillsborough County, 14 Florida. You know, those interrogatory responses are not before 15 this Court -- and I suspect that Dr. Castleman might even 16 testify that he's never seen them. This article is an editorial 17 piece, it's not the sort of thing that an expert can rely on, 18 and it's an improper basis for the opinion. 19 THE COURT: All right. The Court reaches a tentative 20 conclusion that this portion of the objection should be 21 sustained under 352. 22 And I am explaining this, so if you have anything further to 23 add, you can add it. But the Court would make this ruling that 24 the probative value of Dr. Castleman's testimony as to the 25 $30 million, whether it is costs of all development or whether 26 there is a lesser cost for these studies, that the probative 27 value of that and the probative value of Dr. Castleman's 28 testimony that defendants paid for some of the literature 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1338 1 studies developed, the probative value is outweighed by the 2 misleading issues, confusion, and time consumption. 3 And the Court would limit its ruling to just what the Court 4 said. In other words, Dr. Castleman will still be permitted to 5 testify about his review of the literature and the development 6 of the literature; and that would include his sources of the 7 development of all the literature, but not the costs associated 8 therewith, which I do think would be quite confusing and hard 9 for a jury to evaluate. 10 MR. LANGDOC: We're both taking an opportunity to respond to 11 this. 12 First, this is not a new motion. The Court had ruled on the 13 subsets of the three things that were laid out, and now we have 14 come back, and the Court has been asked to undo part of it. 15 The only way by which we can prove what has been shown in 16 both the 9th Circuit and U.S. Supreme Court is a highly relevant 17 issue, how much money has been spent and by whom, on different 18 individual studies, is through Dr. Castleman. 19 We can't just put the interrogatories on the screen. We 20 can't say we're the ones who did the research. Dr. Castleman 21 has done the research, and has testified at Congress about the 22 research on the things that -- via the things that Ms. Clancy 23 has described in the generally accepted scientific literature. 24 Second, because Dr. Castleman was the only person who can 25 lay that foundation for how we know how much money has been 26 spent, it goes directly to the bias and not to -- and let me 27 tell you - 28 THE COURT: Whose bias? 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1339 1 MR. LANGDOC: The bias of Exponent and Chemrisk and the 2 scientists, to say, "I was only paid $10,000 for this article, 3 and granted, I made the other 29 million from the same people, 4 just the $10,000 is all it took for this article," is 5 disingenuous. 6 It's the same issue we dealt with with Dr. Robb, our first 7 expert: 8 "Have you made over a million dollars testifying 9 for plaintiffs? 10 "Yes." 11 It goes to bias and credibility, and it goes to bias and 12 credibility of the organizations, of the individuals within the 13 organizations, and of the published papers. There have been 14 $30 million that has been paid by someone to push this science. 15 Now, whether or not X thousand is for this and X thousand is for 16 that is a different issue. 17 This is why the very same paper and the same numbers have 18 been admitted in the last two trials I have been in, in San 19 Francisco, in non-automobile cases, what has the asbestos 20 industry spent to spend this literature. 21 THE COURT: You know, it opens up a real can of worms, 22 because then why isn't it fair, then, for the defendants to 23 attempt to introduce evidence of how much plaintiffs have gained 24 by the literature they have promulgated or by the cases they 25 have pursued? 26 MR. LANGDOC: I think they're allowed to do that. Here is 27 an example. 28 THE COURT: You mean you would not object to the 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1340 1 introduction of evidence, if it could be adduced, to the amount 2 of plaintiffs' judgments that have been acquired, based on the 3 $30 million costs or the cases brought involving GM, Ford and 4 Chrysler? 5 MR. LANGDOC: No. Clearly I misunderstood the Court. 6 Take, for example, the MAS studies. It is important and 7 relevant to the jury who paid for them. Did a plaintiffs' law 8 firm involved in asbestos litigation pay X thousand dollars for 9 it? Mr. Hatfield, Dr. Longo -- we all agreed we can 10 cross-examine the witnesses on it. 11 The only problem is when the answer is, "I don't know, all I 12 know is what I have been paid," the one person who has 13 testified -- and maybe we need an offer of proof from 14 Dr. Castleman. 15 THE COURT: All right. Dr. Castleman, would you come up 16 here and raise your right hand to be sworn. 17 Dr. Barry Castleman is being called as part of a 402 hearing 18 by the Court in this case. 19 BARRY CASTLEMAN, 20 called as a witness for the Plaintiffs, having been duly sworn, 21 testified as follows: 22 THE CLERK: State and spell your name for the record. 23 THE WITNESS: My name is Barry Castleman, C-A-S-T-L-E-M-A-N. 24 EXAMINATION 25 THE COURT: Q. Dr. Castleman, the Court has ruled that you 26 may testify about a variety of issues, including your research 27 and review of the historical development of the literature 28 concerning asbestos dangers in brakes. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1341 1 In the course of that review and research, can you estimate 2 the number of documents or studies on which you have relied? 3 A. I tried -- as to brakes only or asbestos more generally? 4 Q. I think that your area of expertise here is limited, yes, to 5 analysis of public health issues regarding asbestos. Yes, I'm 6 sorry, so it would be a more generalized offer of expertise on 7 the general asbestos issues. 8 So, okay. So how many articles have you reviewed on 9 asbestos issues, articles or studies? 10 A. I really -- it's a little hard to say. 11 I have tried to examine everything I could find that was 12 published in the world medical literature, in trade magazines, 13 engineering publications, popular magazines and newspapers, 14 insurance industry literature, safety publication, anything you 15 can name that might have talked about the hazards of asbestos 16 that appeared in the public domain, law journals included, 17 before around 1965. I tried to find just about everything I 18 could. And I looked at over, probably over a thousand 19 publications, maybe 2,000, I really don't know, a lot of things 20 in which asbestos gets named, at least peripherally. 21 Q. In the entire area of asbestos research that you have done? 22 A. That's just up to 1965. 23 I want to briefly try to bring that up to date. Since that 24 time, I started to get involved in the arena of regulation in 25 1970 and 1971, when I wrote my master's thesis about the health 26 effects of asbestos. And since that time I have been 27 continuously involved in rule-making, examining EPA, OSHA, the 28 Food and Drug Administration; I testified at Congressional 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1342 1 hearings, starting in 1973, about community exposure to 2 asbestos. 3 Q. Now, you're talking about your testimony and your activism 4 and your additional work, but I'm asking you about your review 5 of the literature. Did you stop reviewing the literature in 6 1965? I assume the answer is no. 7 A. Not at all. 8 Q. Do you believe that your review of the literature to today's 9 date has been, as far as you know, every existing study and 10 piece of literature on asbestos in general? 11 A. No, it's impossible. At this point, there's too much of it. 12 And, besides, I don't need, from a public health point of view, 13 I don't need to know about some of the fine details that 14 pathologists might be arguing about as to the different stains 15 that are used to identify different types of tumors. From a 16 public health point of view, it's not important for me to 17 acquaint myself with that kind of information. 18 Q. Of the literature that you have reviewed, what percentage of 19 that literature is literature which you have identified the 20 source of the production, like the government? A defendant in 21 an asbestos action? A plaintiff, a plaintiffs' firm, et cetera? 22 What percentage of the literature reviewed by you have you 23 been able to identify as being promulgated or produced or paid 24 for by some entity? 25 A. I'm not sure I understand your question, but I will try. 26 Q. Don't you know, basically a hundred percent of the 27 literature you reviewed, wouldn't you say it's fair that you 28 pretty much know who created it, each of the sources? 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1343 1 A. At the time I get the literature, I know who I got it from 2 or where I saw it. And usually, but not always, I know or have 3 some idea of whether it was paid for by some financially 4 interested party, although the disclosure of these things in 5 published articles is a relatively recent development. This 6 wasn't something that was typically done in publication of 7 scientific articles more than 10 or 15 years ago. 8 Q. When you say that you have become aware of whether studies 9 or other things you researched were paid for by financially 10 interested parties, do you mean by that to say you know how much 11 was paid for, or just that it waspaid for byfinancially 12 interested parties? 13 A. It varies, it depends on the specific case. In some cases, 14 we actually have fairly detailed information that has emerged in 15 legal discovery, which is about the only way you find out things 16 like how much people got paid. 17 Q. Sometimes you know what was paid, and sometimes you only 18 know that it was paid for? 19 A. That's right. 20 Typically in the articles published by Exponent authors, 21 they would not always, but usually, disclose they had received 22 contributions for the research from General Motors, Ford, and 23 Chrysler, but there would never be any disclosure beyond that in 24 terms of quantitative description of what they received and how 25 much they were paid. 26 Q. If you were to characterize the principal producers or - 27 the principal requesters of the types of studies of research you 28 have done, about how many categories would that be? 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1344 1 A. Requesters? 2 Q. Like, for example, would government be one of the requesters 3 of studies of information and things you have reviewed? 4 A. Right. Basically I think what you're asking for, how do 5 these things get initiated? 6 Q. No, I'm asking how many categories are there, like 7 governments ask for this; right? 8 A. Well, governments do the studies, usually, or they 9 commission the studies. Sometimes they will give a grant to 10 somebody to do a study. 11 Q. But you haven't relied on -- you haven't relied solely on 12 government-requested or paid-for research; correct? 13 A. No. 14 Q. Okay. What is another source of literature that you have 15 relied on in terms of a category? 16 A. Studies published by independent scientists of all kinds. 17 Might be a pathologist publishing a report of a case. It might 18 be somebody that got a grant of some kind to do an epidemiology 19 study. Usually they require a lot of money, so you have to get 20 funding from somebody, and they're often government grants. 21 Q. What is another category of the source of these studies? I 22 mean, you contend some are produced by defendants in the 23 industry, such as the defendants in this case; correct? 24 A. Right. Not so many. 25 Q. Some? 26 A. But some. 27 Q. What is another category of the source of these studies? 28 A. I guess you could say plaintiffs' lawyers also, because of 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1345 1 their need for information, plaintiffs' lawyers have even 2 commissioned whole epidemiology studies to identify things like 3 neighborhood lead poisoning from a smelter. Or studies like 4 Hatfield has done, simple studies where you are doing some 5 simulation of exposure, and you have a laboratory that is hired 6 to measure what kinds of exposure you get from different 7 products, about which there is nothing published or almost 8 nothing published in terms of asbestos exposure one gets from 9 the ordinary use of a product. That's another type. 10 Q. Is there any other major category you can think of? It 11 seems to me that would pretty much cover the range. 12 A. That's pretty much. Independent scientists obviously cover 13 an enormously broad range of people, but I'm using the term to 14 mean people who are not hired by anybody to do it, people who, 15 because of their own interests in the subject and expertise, 16 take it upon themselves to try to add to the body of scientific 17 information; people who weren't approached by anybody or hired 18 by anybody to do the work. 19 Q. Independent scientists, by that do you mean those not hired 20 by anyone but also some who have received grant funding for the 21 work? 22 A. If it's government money, that's usually pretty clean. If 23 they get grant funding from other sources, you might ask a few 24 more questions. 25 Q. What is the significance you place on amounts paid in 26 grants, or by any producers of this evidence or research? 27 A. Well, sounds like an awful lot of money to me, to basically 28 do reanalyses of stuff that other people have published. But 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1346 1 it's also just the idea that this was something that was 2 initiated -- I mean, the scientists have testified about -- the 3 Exponent people have testified that this was something they were 4 approached to do by lawyers involved with the defendant 5 companies. 6 Q. That's the $30 million of studies that you claim were 7 produced by defendants in the industry; correct? 8 A. Right. And I don't have any knowledge, in terms of 9 quantitative knowledge, about how much of the $30 million was 10 paid for the studies. But I know without the studies, these 11 people were worthless as experts because most of them hadn't 12 published anything about asbestos before they started doing 13 this. 14 Q. How much has the government spent on this type of research? 15 A. I don't know what the government -- the government hasn't 16 really spent much of anything on this. I mean, the government 17 got some information back in 1975 from Dr. Selikoff about the 18 high levels of exposure you can get from grinding asbestos 19 brakes and beveling and blowout of the brakes. 20 Q. You said a major category -- excuse me, Doctor, but you said 21 a major category of the funders or requesters for this 22 information were governments, and that sometimes they produced 23 grants to fund scientists and research. 24 A. For science, generally. 25 Q. So now you seem to be indicating that government doesn't 26 spend money on this type of research, and is that true? 27 Are you saying that they don't usually request it 28 independently, but they might create grants that would fund 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1347 1 independent scientists? 2 A. We're going back and forth about what kind of science we're 3 talking about. Science in general, the government supports a 4 lot of, but science on brake hazards, the government hasn't 5 supported. 6 Q. So far we have only been talking about asbestos in general. 7 A. Oh, okay. 8 Q. You asked me if you wanted me to discuss this in general, 9 and I said yes. I'm trying to get a comparison between the 10 major categories, whether you think there's a huge percentage - 11 how you would compare the funding spent by these various 12 sources: plaintiffs' counsel, defendants' counsel, independent 13 scientists, and government. 14 And that is in asbestos in general there. 15 Then I'm going to ask you the same question as it relates to 16 asbestos-containing -- asbestos brake materials. And I think - 17 so that is what I want you to compare. 18 A. Okay. 19 Q. Do you need a few moments to talk about it? We can take a 20 little break. 21 A. No, let's go ahead, now that I understand what you were 22 asking me about. I wasn't clear. 23 Q. Asbestos, in general, how much do you think the government 24 has spent on that research? 25 A. I don't really know, quantitatively. But most of the money 26 was spent back in the days when Selikoff was active in his 27 earlier years, probably in the 1970s, and 1980s to a lesser 28 extent, I would think. Selikoff and his laboratory did a great 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1348 1 deal of research on asbestos, and it would probably be in those 2 years, say, from 19 -- the early '70s to the late '80s. 3 Q. Do you will think it was more or less than $30 million? 4 A. Over that entire period of time? 5 Q. Yes. 6 A. Probably less, but maybe, maybe approaching that sum. 7 Q. Do you think it was more or less than $500,000? 8 A. It was more than $500,000. 9 Q. In terms of the amount spent to acquire independent 10 scientists, whether grant-supported or not hired by anyone, what 11 do you believe is the costs associated with the production of 12 all of the research of that nature in the asbestos literature? 13 A. I don't know. I really feel like I couldn't give you 14 anything of value in trying to answer that. 15 Q. Would you say it's more or less than $30 million? 16 A. I'm sorry, can I hear the question again? 17 Q. Do you think it's more or less than $30 million? 18 A. I mean the question before that. 19 Q. How much costs do you associate with independent scientists 20 in research? 21 A. On asbestos? 22 Q. We're talking about all asbestos. 23 A. Since the beginning, since, say, 1970? 24 Q. That's what we're talking about, yes. 25 A. I just don't know. I mean it's -- you know, people pop up 26 with different things. 27 Q. I asked you, the second question was, do you think it's more 28 or less than $30 million? 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1349 1 A. Probably less. But again, I published a lot of things, it 2 hasn't cost anybody millions of dollars. It hasn't cost anybody 3 thousands of dollars. I did it of my own initiative, at my own 4 expense, and that's the way scientists often do it. 5 Q. Don't you associate costs with that? You had expenses? 6 A. Yeah, but they weren't real big expenses, and I just bore 7 them myself. 8 Q. In terms of the independent scientists that I have 9 described, do you believe that costs associated with their work 10 was more or less than $500,000? 11 A. It was probably more than that. If you're going over, say, 12 the last 30 or more years of independent publications on 13 asbestos and disease, but you're probably talking about over a 14 thousand publication. 15 Q. Now I'm talking about defendants in the industry; this is 16 overall in the asbestos industry. What costs do you associate 17 with the development of research by defendants in the overall 18 industry, not just this? 19 A. It's really hard to say. I mean, Johns Manville was 20 spending a lot of money to publish studies in the '70s in 21 relation to -- in relation to legislation -- I'm sorry, to 22 regulation, OSHA regulations. And so asbestos companies were 23 supporting research that - 24 Q. Was it more or less than $30 million? 25 A. I'm sure it was less. But again, that was in the '70s, and 26 a million dollars meant a lot more then. 27 Q. Was it more or less than $500,000? 28 A. It was probably more than 500,000. 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1350 1 Q. How much are you aware of that plaintiffs' counsel or 2 plaintiffs' firms have spent on production of research, overall, 3 in the asbestos industry? 4 A. I really don't have any figures at all on that. 5 Q. Do you think that's more than 30 million or less? 6 A. Less. 7 Q. Think it's more or less than $500,000? 8 A. If you go through the entire history of asbestos litigation, 9 for the last -- what's it been -- 30 years or more, plaintiffs' 10 lawyers may have spent 500,000. I don't know, I doubt it. But 11 they may have spent that much hiring people like Hatfield to do 12 simulated exposure studies and things like that. They do 13 smaller bits, I think. They might add up to that. Again, I've 14 never seen the billing on these things. 15 Q. Just for the friction industry, what we're talking about in 16 this case, asbestos-containing brakes and clutches and gaskets, 17 the friction industry, that's a subset of what you have been 18 talking about; correct? 19 A. Okay. I understand you. 20 Q. And as a subset of the larger research costs by government, 21 do you have an idea of what has been spent by government on 22 research related to brakes? 23 A. I have an idea, but mostly would probably be the studies 24 published by the Selikoff Group in 1976 and 1977, possibly 25 including the data they firstdisclosed withNIOSH in1975, when 26 NIOSH put out a current intelligencebulletin. Probably there 27 was some federal money supporting that. Wouldn't have been a 28 whole lot of money, probably $50,000, $100,000 would have been 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1351 1 all they got for that work. I don't know. 2 Again, I don't write grant proposals, I don't usually deal 3 with these things, but it wouldn't have been a whole lot of 4 money, I don't think. We're only talking about three or four 5 studies. 6 Q. Independent scientists, related to asbestos brakes and the 7 issue that is relevant here, do you have an idea of the costs of 8 that research? 9 A. No, not really. I mean, it's very spotty because, you know, 10 the studies that -- and nobody has really looked at what happens 11 to brake mechanics as a population, to look at -- to find a 12 thousand people, like the people that worked at the dealerships 13 of all these companies, that would be a great study group. But 14 nobody has ever gone to the trouble to get that information and 15 follow up people who did regular brake servicing, starting 30 16 years ago, and find out -- looked at a thousand people like that 17 and looked at their mortality experience. Those kinds of 18 studies haven't been done. 19 Q. You're still talking about independent science; right? 20 A. Independent scientists can't get those kinds of records 21 without some assistance and financing. 22 Q. In terms of plaintiffs' counsel or plaintiffs' firms related 23 to asbestos brakes, funding research related to that portion of 24 the industry, do you have a view of how much has been spent? 25 You don't have a view on that on the overall, did you? 26 A. No. I mean, with respect to brakes, it would be -- as far 27 as I could tell, it would be simulated tests. But I don't think 28 they do that, because with very rare exceptions -- you know, 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1352 1 there was one case in California where I think they wanted to 2 analyze an automatic transmission band to prove it had a certain 3 type of asbestos in it, in an old Chrysler vehicle. 4 But mostly, in the case of brakes, the data is out there. 5 There's a lot of stuff that been published on the exposures you 6 can get from grinding and beveling and doing the things that 7 people do with brake linings. So plaintiffs' lawyers would have 8 less of a reason to hire somebody to do additional laboratory 9 simulations. It wouldn't add anything of significance to 10 anything that is already available in the case of brake linings. 11 So I wouldn't think plaintiffs' lawyers would have spent a lot 12 ofmoney. Plaintiffs' lawyers, as I know, don't hire people to 13 write articles that get published in scientific journal. 14 Q. It is your view 30 million has been spent by the defendants 15 in this action, GM, Chrysler, and Ford, but you don't know how 16 much of that was actually the development of the studies; you 17 don't have a view on the comparison between the costs of the 18 studies and the overall costs of defense, but you have a view 19 they spent $30 million? 20 a. Right. 21 THE COURT: I'm taking a ten-minute break, and then we will 22 continue this hearing. 23 (Recess was taken at 3:29 P.M.) 24 (The proceedings resumed at 3:49 P.M.) 25 THE COURT: Back on the record in the matter of Gordon, 26 Ford, GM and Chrysler. 27 The Court has reached a tentative conclusion on this motion. 28 Dr. Castleman is on the stand on a 402, and ordinarily I would 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1353 1 allow counsel to inquire, but I do not think there are any 2 answers that might be adduced of Dr. Castleman that would change 3 the Court's tentative conclusion. 4 I had already announced a tentative conclusion, a tentative 5 ruling to disallow Dr. Castleman's testimony under 352 regarding 6 the costs of the production of these studies, the 30 million 7 dollars or subset, and Dr. Castleman's testimony that defendants 8 paid for the studies. 9 I already tentatively concluded and ruled that his testimony 10 regarding the historical development of the literature and who 11 developed each portion of it would be permitted. 12 Following that, plaintiffs wanted to offer further points, 13 and during the course of that, Mr. Langdoc suggested that 14 Dr. Castleman be offered. The Court accepted that and has taken 15 his testimony. 16 Now, I know you all can come up with additional things to 17 point out to the Court all afternoon, but the Court -- the Court 18 is prepared now to affirm its tentative ruling on this issue. 19 Dr. Castleman has demonstrated to the Court that although he 20 knows that $30 million was spent by the three defendants in this 21 case on the studies that have been described in Plaintiffs' 18, 22 he's unclear on how much of that $30 million was the cost of the 23 studies versus the overall costs or development of evidence in 24 defense of various cases. 25 He has affirmed that he does not know and cannot compare 26 conclusively the costs associated with the funding of studies 27 and research by -- in the overall asbestos industry by 28 governments, by independent scientists, whether funding 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1354 1 themselves or by grant funding, by defendants overall in the 2 industry, or by plaintiffs overall in the industry. 3 As to the subset of asbestos brake studies, he can estimate 4 that governments primarily on the Selikoff studies might have 5 spent as much as 50- to $100,000 on the Selikoff studies. He 6 has no view on independent scientists -- he has a view, I 7 already articulated on the three defendants in this case. He 8 has no view on the plaintiffs' -- he has some sort of round 9 estimates. 10 Under 352 of the Evidence Code the Court finds that 11 Dr. Castleman's testimony regarding the costs of these defense 12 studies or this defense effort has probative value that is 13 greatly outweighed by confusion, prejudice, and misleading 14 nature of the testimony and especially by time consumption. 15 Enormous amounts of time have been consumed here for Castleman 16 to testify merely on the costs that defense has incurred in 17 producing the studies that have been described in 18 Plaintiffs' 18. This would open up the door to an enormous 19 amount of testimony regarding the costs of other funded research 20 in the overall asbestos industry and in the specific area of 21 asbestos brakes. That time consumption is not merited. 22 Also, the value of this evidence to the jurors is very 23 small. Dr. Castleman may testify as to his research and 24 conclusions about who funded which kinds of studies. He's going 25 to be permitted to refer to studies that's he relied on. He's 26 going to be able to talk about the historical development of the 27 literature in the asbestos field and in the brake industry. He 28 will be permitted to testify that different types of developed 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1355 1 literature were paid for by different sources, and this will be 2 subject to cross-examination. 3 The Court will not permit him to testify on the $30 million 4 issue, it being ruled impermissible under 352. 5 All right. I would like to conclude this hearing. 6 MR. OSTERTAG: Submitted. 7 THE COURT: Submitted? 8 MR. LANGDOC: Yes, Your Honor. And we do very much 9 appreciate the Court's time and consideration on this. 10 One clarification - 11 THE COURT: Very interesting issue. Thank you. 12 MR. LANGDOC: -- one clarification. I think we had all 13 agreed that these issues could be addressed in cross-examination 14 of the witnesses who are involved somehow in this, and is-- the 15 Court is not precluding plaintiffs' counsel via this ruling from 16 being able to cross-examine those individuals, you know, that 17 are involved on this or relying on the defense side in the 18 cross-examination of: Isn't it true that this amount of money 19 has been spent on this? 20 Is my understanding correct on this? 21 MR. OSTERTAG: I have no - 22 the COURT: Just a moment. 23 The motion was only to Castleman testimony, but I have to 24 tell you that I placed some weight on the objection and 25 observation made by Ms. Mikacich that Page 323 of Plaintiffs' 18 26 contains a footnoted reference to admissions by Ford, General 27 Motors and Chrysler which has questionable value to the Court 28 and to the jury in this case. The fact that these three defense 14b97b25-0a58-468b-af64-f9b7e13ad271 Page 1356 1 admitted in litigation and made these admissions in Hillsborough 2 County, Florida, and apparently nowhere else, causes the Court 3 to be concerned also under 352 analysis about that testimony. 4 But right now I only ruled about Castleman's testimony about 5 this. 6 Now, I suppose, Mr. Ostertag, you are going to tell me you 7 want to adduce this evidence, then I will hear a whole other 8 round. Why don't we wait until you reach that conclusion. Why 9 don't we wait until we get past the plaintiffs' case? 10 MR. OSTERTAG: I think we're done on what we made the motion 11 on today, Your Honor. 12 THE COURT: The Court affirms the ruling just articulated. 13 And Dr. Castleman, thank you very much for making yourself 14 available during this hearing. I appreciated the fact that you 15 have been here, and I appreciate the importance of your 16 research. 17 THE WITNESS: Thank you, Your Honor. 18 (Witness excused.) 19 THE COURT: I think there's nothing else for us to take up 20 until Monday. 21 MR. OSTERTAG: I think you're right, Judge. 22 THE COURT: We're in recess. 23 (Whereupon, proceedings adjourned at 3:56 P.M.) 24 25 26 27 28 14b97b25-0a58-468b-af64-f9b7e13ad271 1 2 PLAINTIFFS' WITNESSES 3 INDEX 4 CASTLEMAN, BARRY (402 HEARING) 5 Examination by The Court 6 7 oOo 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAGE VOLUME 1340 3 14b97b25-0a58-468b-af64-f9b7e13ad271 1 CERTIFICATE OF REPORTERS 2 State of California 3 County San Francisco 4 ) ) ) 5 We, Denise L. Doucette and Patty Lee Hubble, Official 6 Reporters for the Superior Court of the State of California, 7 City and County of San Francisco, do hereby certify: 8 That we were present at the time of the above proceedings; 9 That we took down in machine shorthand notes all 10 proceedings had and testimony given; 11 That we thereafter transcribed said shorthand notes with 12 the aid of a computer; 13 That the above and foregoing is a full, true, and correct 14 transcription of said shorthand notes, and a full, true and 15 correct transcript of all proceedings had and testimony taken; 16 That we are not parties to the action or related to a party 17 or counsel; 18 That we have no financial or other interest in the outcome 19 of the action. 20 21 22 Dated: September 5, 2008 23 24 25 26 Denise Doucette, CSR No. 5963 27 28 Patty Lee Hubble, CSR No. 3058 14b97b25-0a58-468b-af64-f9b7e13ad271