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Duty v. TRZ Realty, LLC

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Aug 14, 2017
A142167 (Cal. Ct. App. Aug. 14, 2017)

Opinion

A142167 A143260

08-14-2017

DOLORES DUTY et al., Plaintiffs and Appellants, v. TRZ REALTY, LLC, Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. CGC-08-274845)

Plaintiffs Dolores Duty and her three children appeal a judgment entered in favor of TRZ Realty, LLC (TRZ) on consolidated complaints for personal injury and wrongful death arising out of the death of their husband and father, William Duty, from colon cancer. They contend the trial court erred in excluding the testimony of their expert witness that William's cancer was caused by his occupational exposure to asbestos. We agree and therefore shall reverse the judgment entered following the adverse evidentiary ruling.

In a consolidated appeal (A143260), TRZ challenges an order striking expert witness fees TRZ claimed as costs pursuant to Code of Civil Procedure section 998. In light of the reversal of the judgment, we dismiss TRZ's appeal as moot.

Factual and Procedural Background

On September 30, 2008, William and Dolores Duty filed a complaint for personal injury and loss of consortium against defendant TRZ and a number of other defendants. The complaint, as subsequently amended, alleged that William was exposed to asbestos over the course of his 40-plus year career as a drywall taper. Following William's death in December 2010, Dolores, as his successor in interest, on behalf of herself and his son and two daughters then filed a complaint for wrongful death. The personal injury survival action and the wrongful death action were consolidated for all purposes.

All other defendants have settled.

Prior to trial, set for March 2014, TRZ moved in limine to preclude plaintiffs' designated medical expert, Dr. Revels Cayton, from testifying, commenting, or suggesting a causal connection between colorectal cancer and exposure to asbestos. In the alternative, TRZ sought to have the court conduct an Evidence Code section 402 hearing to determine the witness's qualification to opine that the colon cancer was caused by asbestos exposure. The court deferred ruling on the motions in limine and granted a TRZ's request for hearing.

All statutory references are to the Evidence Code.

At the hearing, Dr. Cayton testified that he is medical doctor with specialties in internal medicine, pulmonary disease, gastroenterology, occupational medicine, oncology, toxicology, cause of death and cancer causation. Since 1984 or 1985 he has studied "asbestos-related disease" including "asbestosis, mesothelioma, asbestos-related lung cancer or at least an assertion of an asbestos-related lung cancer, laryngeal cancer and colon cancer." In the course of his practice, he has reviewed between 25 and 100 asbestos-related colon cancer cases.

With respect to general causation, Dr. Cayton discussed the existence of multiple epidemiologic studies which he claimed have shown asbestos to cause colon cancer. He acknowledged that there are other studies that reach an opposite conclusion, including a recent meta-analysis which looked at a large number of studies and concluded the evidence of asbestos causation was "suggestive" but insufficient to infer a causative relationship between asbestos and colon cancer. Dr. Cayton emphasized that the negative studies could be explained in part because they were industry studies that focused on subjects who had not had a long exposure to asbestos. For example, "They would take a cohort of people who had ten years of exposure and they would say: Well, we didn't find an increased incidence of colon cancer, lung cancer or mesothelioma. The problem was that they were looking at people who had not yet had time to develop those pathologies." Another reason offered for the negative studies was that "the study may not be statistically powerful enough." Dr. Cayton explained that epidemiologists are measuring increased risk in their studies. Specifically, "if you look at standard mortality rate as standard risk rate what you do is you take your observed [mortality rate], you divide that by your expected [mortality rate] and that gives you a ratio. And so if your expected is 10 and you have 20, your [standard mortality rate] is going to be two. [¶] . . . [¶] And if your expected rate is 10 and you have 10, your [standard mortality rate] is one. So [a] standard mortality rate of one is no increased risk." He testified that "some people . . . in the epidemiologic community say . . . you have to always have a standard mortality rate that's at least two, and there are certain studies of asbestos and colon cancer that exceed two. But there are others that are less than two. And so some people think . . . [y]ou need two. There's no clear reason why . . . , but some people want to set the bar there." In contrast, Dr. Cayton testified that he liked "to see things moving towards 1.4, 1.5 and I want them in a context that makes sense." He explained, "you can't just look at this literature in a vacuum, because you have to look at it in the context of what else is going on. Was this a study that had people . . . with 30 years of latency, etc.?"

"Epidemiology is the branch of medical science that studies the distribution of diseases in populations and the factors influencing the occurrence of disease by time, place, and persons." (2 O'Reilly, Toxic Torts Practice Guide (2017) § 16:5, p. 26.)

With respect to the causation of William's cancer, Dr. Cayton testified that "simply because somebody has colon cancer and reports a history of exposure to asbestos,. . . that alone doesn't mean that the asbestos caused the colon cancer." Rather, before a conclusion about causation could be reached, alternative causes should be ruled out. "After you exclude the confounding factors, if you can, you look to see if there's any evidence of clear asbestos-related injury" and the quality of the exposure. Dr. Cayton explained that the bilateral pleural plaques on William's radiological study are a significant marker of a substantial industrial exposure to asbestos. Dr. Cayton reviewed the confounding factors for causing colon cancer, including "obesity, physical activity, cigarette smoking, certain hereditary conditions such as familial polyposis, certain colonic inflammatory conditions of the bowel like ulcerative colitis and Crohn's disease," and found them inapplicable in William's case. Dr. Cayton explained that William was not inactive, he was not obese and did not have a particularly high-fat diet. While William was a smoker, Dr. Cayton considered this less a risk factor for colon cancer than other types of cancer. Dr. Cayton did not believe it had been "well shown" that "heavy consumption of alcohol is a confounding factor that has been shown to increase the risk of colon cancer." Nor did he believe that "heavy consumption of red or processed meat is also a confounding factor or a risk factor that's known to increase the incidence of colon cancer."

At the conclusion of the hearing, the court found that Dr. Cayton was not qualified to testify regarding general or specific causation in this case. Plaintiffs stipulated that because Dr. Cayton was their only witness on causation and discovery had closed they had insufficient evidence to prevail at trial. Plaintiffs stipulated to a procedure to present the issue for appellate review under which they made an offer of proof on other issues, and TRZ then moved for nonsuit, which was granted. Following entry of judgment, plaintiffs timely filed a notice of appeal.

Discussion

Plaintiffs contend the trial court erred in finding that Dr. Cayton was not qualified to offer an opinion on general or specific causation. TRZ defends the trial court's conclusion and argues alternatively that even if qualified, Dr. Cayton's proffered testimony was too speculative and unreliable to be admitted.

A. Dr. Cayton was qualified to render an opinion on causation.

Before expert opinion testimony may be offered, the expert must be shown to have "special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (§ 720, subd. (a).) "Whether a person qualifies as an expert in a particular case . . . depends upon the facts of the case and the witness's qualifications." (People v. Bloyd (1987) 43 Cal.3d 333, 357.) " '[T]he determinative issue in each case must be whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth.' " (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969.) "The essential questions which must be favorably answered to qualify a witness as an expert are two: Does the witness have the background to absorb and evaluate information on the subject? Does he have access to reliable sources of information about the subject? Two aspects of the witness's history are thus involved: the first, a subjective aspect, the capacity of the witness to understand and report: the second, an objective aspect, the witness's access and exposure to relevant data on the subject matter on which his opinion is sought." (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658.)

Here, the court concluded that the proffered expert, as a pulmonologist and internist, lacked the background necessary to evaluate the "contradictory opinions" found in the epidemiological studies cited to the court regarding the causal relationship between asbestos exposure and colon cancer. The court explained, "[T]he most recent [study], flatly says, 'Overall currently available epidemiological data do not enable a causal relationship to be established between occupational exposure to asbestos and the onset of colorectal cancer.' . . . [¶] And . . . the graphs that they use show that they observed 24 cases of colorectal cancer [but] the expected rate would have been 26.48. So less than what they would have expected. [¶] Now, Dr. Cayton said that there are some epidemiologists who claim there has to be a ratio of times two to establish a causal relationship between what's observed and what's expected. He said he's comfortable with a 1.4 to 1.5. [¶] So what this all points out is what is the standard? And what does the epidemiology say?"

The California Supreme court long ago recognized the "unmistakable general trend . . . toward liberalizing the rules relating to the testimonial qualifications of medical experts." (Brown v. Colm (1974) 11 Cal.3d 639, 645.) The court explained that while "[s]ome early cases were unbending in requiring expertise as to the precise injury involved in the litigation, as, e.g., not permitting an autopsy surgeon to testify on urology [citation] . . . [o]ther authorities, however, have permitted variations, as, e.g., a pathologist was qualified to testify as to causes of aseptic necrosis [citation]; an expert in otolaryngology to testify regarding plastic surgery [citation]; a homeopathic physician and surgeon to testify on the degree of care required of a physician educated in the allopathic school of medicine [citation]; a pathologist and professor of pathology to testify on the subject of gynecology [citation]." (Id. at p. 646.)

The record before us provides no reasonable basis for the court's conclusion that an epidemiologist was required to explain and resolve the conflicting conclusions in the relevant studies. (See Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 437 [rejecting argument that testimony of doctors "must be disregarded on the question of causation because neither man was a qualified epidemiologist."]; Wagoner v. Exxon Mobil Corp. (E.D. La. 2011) 813 F.Supp.2d 771, 800 [Expert witness physicians were qualified to opine on general causation even though they were not epidemiologists because they had relevant experience in the field.]; In re "Agent Orange" Prod. Liab. Litig. (E.D.N.Y. 1985) 611 F.Supp. 1223, 1242 ["The court makes the determination based on the witness' actual qualifications and knowledge of the subject matter and not his title. [Citation.] Thus, it is not determinative that [the expert] is not an epidemiologist."].)

Dr. Cayton testified to his approximately 30 years of experience reviewing epidemiological studies on asbestos-related disease. He provided a reasonable explanation for his evaluation of the relevant studies. Although TRZ disagreed with Dr. Cayton's conclusions, it did not demonstrate that he did not have the skills or the knowledge to examine epidemiological studies meaningfully.

The only purported deficiency in Dr. Cayton's knowledge and experience specifically identified by the court involved his asserted inability to understand and explain epidemiologic studies. Although the court seemed to suggest that the fact that he is not a gastroenterologist was also relevant, the court did not explain why his other medical credentials were not sufficient. The court stated, "if the evidence was contradictory about pulmonary diseases, he as a pulmonologist might be able to testify about it. But when he's not a colorectal expert and he's not an epidemiologist I just don't think he is the person to resolve what epidemiologists consider to be a contradiction." --------

Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, cited by TRZ, is not to the contrary. In that product liability/medical malpractice action, the witness, who was an expert in the "fabrication and use" of a catheter, was precluded from answering whether there was a defect in the catheter that caused it to "kink" because that was outside his area of expertise. (Id. at p. 1080.) The court explained that there was "a dearth of evidence indicating that he was, by force of special knowledge, experience or education, an expert on the subject of the tubing's chemical composition, its tensile strength, or its material construction. His only experience in this regard consisted of a visual and tactile examination." (Id. at p. 1081.) Unlike the witness in that case, Dr. Cayton testified to his extensive knowledge and experience regarding the interpretation and application of statistical significance in epidemiological studies. The trial court abused its discretion in finding that Dr. Cayton was not qualified to offer an opinion on causation in this case.

B. The record does not establish that Dr. Cayton's opinions were speculative or unsupported.

"Under California law, trial courts have a substantial 'gatekeeping' responsibility" when it comes to expert testimony. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769.) "Under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative. (Sargon Enterprises, Inc., supra, at pp. 771-772.) " ' "[E]ven when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise. [Citation.] For example, an expert's opinion based on assumptions of fact without evidentiary support . . . or on speculative or conjectural factors . . . has no evidentiary value . . . and may be excluded from evidence." ' " (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 577.) Nonetheless, "courts must also be cautious in excluding expert testimony. The trial court's gatekeeping role does not involve choosing between competing expert opinions. The . . . gatekeeper's focus 'must be solely on principles and methodology, not on the conclusions that they generate.' [Citation.] . . . [T]he trial court's task is not to choose the most reliable of the offered opinions and exclude the others: 'When a trial court . . . rules that an expert's testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. . . . [¶] The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a 'circumscribed inquiry' to 'determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid.' [Citation.] The goal of trial court gatekeeping is simply to exclude 'clearly invalid and unreliable' expert opinion. [Citation.] In short, the gatekeeper's role 'is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.' " (Sargon Enterprises, Inc., supra, 55 Cal.4th at p. 772.)

Acknowledging that the court did not expressly reach this issue, TRZ contends the judgment may be affirmed nonetheless because Dr. Cayton's opinions were unsupported and speculative. (E. L. White, Inc. v. Huntington Beach (1978) 21 Cal.3d 497, 511 [An appealed judgment or order should be affirmed if "correct on any theory," whether or not the theory was relied on by the trial court.].) Before addressing TRZ's specific arguments, we note that the section 402 hearing on this matter was relatively short. Indeed, the court was focused on Dr. Cayton's qualifications and cut the hearing short before receiving any significant testimony regarding the merits of the underlying studies.

TRZ argues that "the studies Dr. Cayton used to justify his opinion that asbestos causes colon cancer do not in fact establish any such thing." According to TRZ, Dr. Cayton "attempted to extrapolate from studies about different types of cancer altogether, studies that expressly said both that they were inadequate to establish causation and which distinguished those cancers from colon cancer." At the hearing, TRZ cross-examined Dr. Cayton briefly about his reliance on a 2005 study in which researchers found a "borderline significantly elevated risk of stomach cancer" in subjects who had ingested asbestos in their water. TRZ emphasized that the study further stated that the "results for colon cancer risk in this present cohort were less consistent than those for stomach cancer risk, although no conclusion should be drawn for colon cancer." Dr. Cayton explained why he found the study persuasive: The study divided the subjects into two groups, those with less than 20 years asbestos exposure and those with 20-plus years of exposure. "Now, in the ones with the less than 20 years asbestos exposure they observed one colon cancer, and 2.1 were expected. When you go to the individuals with 20-plus years of exposure they observed 22 cases of colon cancer, and they expected 13.4 cases of colon cancer. [¶] That is exactly what I said in my report, it was an increased incidence of colon cancer." TRZ's criticism of the study does not show that Dr. Cayton's reliance on it, or his opinions generally, to be entirely without evidentiary support.

Cooper v. Takeda Pharmaceuticals America, Inc., supra, 239 Cal.App.4th 555 is instructive. In that case, the trial court attempted to determine the scientific validity of each study relied on by the expert and found that each had a significant flaw. The Court of Appeal concluded that the analysis undertaken by the trial court exceeded the proper gatekeeping function of the court. (Id. at pp. 587-588.) The appellate court explained that plaintiff had provided the court with "detailed information refuting the criticisms of the epidemiological studies leveled by [defendant] and later by the trial court" (id. at p. 588) and that this "material demonstrates that the trial court's rejection of these studies was too simplistic, because it did not take into account the varied scientific principles involved in determining the validity of the studies" (ibid.). The court emphasized "that the validity of these studies, and both their strengths and their weaknesses, are subject to considerable scientific interpretation and debate" (id. at p. 589) and explained that the trial court "abused its discretion by essentially stepping in and resolving the debate over the validity of the studies. . . . All studies have limitations and flaws, and it is entirely valid to interpret each study's results by taking into account these limitations and flaws. However, it is essential that the results of other studies conducted by other scientists on the same subject, that aim to correct for the limitations and flaws in prior studies, be taken into account, and the body of studies be considered as a whole" (ibid.). Accordingly, TRZ's critique of one underlying study does not provide an alternative basis on which to uphold the trial court's ruling.

TRZ also argues that Dr. Cayton's conclusion that William's cancer was caused by asbestos exposure was based on Dr. Cayton's unsupported, conclusory rejection of confounding risk factors identified by the Surgeon General. We disagree. At the hearing, Dr. Cayton testified that he disagreed with the "representation" by TRZ's counsel that the Surgeon General has determined that heavy consumption of alcohol and red meat are risk factors for colon cancer. As noted above, Dr. Cayton questioned whether the epidemiologic studies had shown that to be true. Any disagreement as to the identification and application of the confounding risk factors in this case goes to the weight of Dr. Cayton's opinion but does not render the opinion speculative and inadmissible. (See Cooper v. Takeda Pharm. Am., Inc., supra, 239 Cal.App.4th at pp. 580, 584-585 [The trial court erred in finding expert's testimony unreliable and inadmissible because the expert had not adequately considered and definitively ruled out potential causes of the plaintiff's bladder cancer other than defendant's pharmaceutical.].)

The trial court's exclusion of Dr. Cayton's testimony was error, so that the nonsuit and judgment based on the erroneous ruling must be reversed.

Disposition

The judgment is reversed and the matter remanded for further proceedings. Plaintiffs are to recover their costs on appeal.

Pollak, J. We concur: McGuiness, P.J.
Jenkins, J.


Summaries of

Duty v. TRZ Realty, LLC

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Aug 14, 2017
A142167 (Cal. Ct. App. Aug. 14, 2017)
Case details for

Duty v. TRZ Realty, LLC

Case Details

Full title:DOLORES DUTY et al., Plaintiffs and Appellants, v. TRZ REALTY, LLC…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Aug 14, 2017

Citations

A142167 (Cal. Ct. App. Aug. 14, 2017)