Judge Curtis A. Kin, Case Number: 23STCP02353, Date: 2024-05-31 Tentative Ruling

Petitioner Leticia Rousseve, surviving spouse of James Rousseve, petitions for a writ of mandate directing respondent Los Angeles City Fire and Police Pension System to set aside its decision denying her request for service-connected survivor benefits.

Officer James Rousseve joined the Los Angeles Police Department (“LAPD”) on December 12, 2005, and served for over twelve years, during which time he was exposed to vehicle exhaust, illegal drug-related substances, and gunpowder residue. (AR 15-19, 53.) Rousseve’s partner, Officer Brent Hirunpugdi, testified that they were heavily exposed to vehicle exhaust during their assignment patrolling the Southwest Division and while working in the Office of the Operations Crime Reduction Enforcement of Warrants Task Force, located in an underground parking lot. (AR 13 [HT 12:8-19], 15 [HT 14:16-22], 19 [HT 18:2-11, 18:16-23], 21 [HT 20:7-18]; see also AR 475 [noting that Rousseve was stationed at former plant reputed to have toxic residue].) He testified that they were exposed to narcotics residue because the pair were involved in several narcotics arrests and were not provided with specialized equipment. (AR 17 [HT 16:2-7] [Hirunpugdi provided latex gloves for PCP], 24 [HT 23:19-23] [Rousseve got liquid PCP on his gloves].) Finally, he testified that they were exposed to “gunpowder residue and lead” when they handled their weapons. (AR 18 [HT 17:3-21].)

In late 2014, Rousseve went on disability leave. (AR 97.) He was cleared to return to work on June 13, 2017, in a light duty capacity with special accommodations. (AR 128.)

Rousseve’s symptoms began with right groin pain, fever, and nausea in December 2013, which were associated with a hernia. (AR 124.) The hernia was repaired on February 4, 2014, at which time possible intestinal adhesions were observed. (AR 184.) A CT scan on August 23, 2014 confirmed there was a tumor measuring 10 cm in the right abdomen. (AR 253.) A biopsy on November 5, 2014 revealed that it was a high-grade malignant tumor, later diagnosed as desmoplastic small round cell tumors (“DSRCT”). (AR 58, 120, 253, 647.) DSRCT is a rare sarcoma,[1] characterized by small, round cancer cells that are surrounded by a scar. (AR 58, 129.)

To treat the DSRCT, Rousseve underwent a pre-surgery course of chemotherapy that required fourteen cycles of treatment (AR 409), two surgeries (AR 120-21, 561, 647-48), post-surgery courses of heated intraperitoneal chemotherapy that “bathed” his entire abdomen (AR 120-21, 565, 459-60), an immunotherapy treatment (AR 121), and palliative radiation treatment. (AR 128.) Rousseve succumbed to his cancer and passed away on November 9, 2019. (AR 88.) His death certificate listed both “desmoplastic small round cell tumors” and “myelodysplasia”[2] as the cause. (AR 88.)

Rousseve’s medical records indicated a significant family history of cancer. On February 2, 2015, Duveen Sturgeon M.S.N. saw Rousseve for a genetic consultation. Sturgeon noted the following with respect to Rousseve’s family history: his brother was diagnosed with lymphoma at 26; his mother was diagnosed with breast cancer at 70; his father was diagnosed with prostate cancer at 60; his maternal grandmother was diagnosed with thyroid cancer at 46 and pancreatic cancer at 77; his maternal great uncle was diagnosed with colon cancer at 40; another maternal great uncle was diagnosed with colon cancer at 70; another maternal great uncle was diagnosed with bladder cancer in his 80s; his maternal great aunt was diagnosed with breast cancer in her 60s; his maternal grandfather was diagnosed with brain cancer at 51; his paternal grandmother was diagnosed with pancreatic cancer at 82; his paternal grandmother was diagnosed with leukemia at 50; and his paternal uncle was diagnosed with leukemia in his 30s. (AR 0259-60.) The high incidence of cancer in his family was “suggestive of an inherited susceptibility to cancer.” (AR 260.)

Given this family history, Sturgeon provided genetic counseling and coordinated a 25 gene panel test to determine if there was a deleterious mutation in the 25 genes associated with hereditary cancer.[3] (AR 260.) The panel results did not show a mutation in the 25 genes linked to hereditary cancer, but such results were limited by “current knowledge and technology.” (AR 91, 258.) The results noted that “[o]ther genes not analyzed with this test may also be associated with cancer.” (AR 92.) According to Sturgeon, the results did “not explain his diagnosis of sarcoma[,] however several important hereditary syndromes [were] excluded.” (AR 258.)

Rousseve also engaged in cytogenetic testing to determine if he had abnormality in his EWSR1 gene, which is associated with Ewings sarcoma. (AR 28 [HT 27:15-25], 126.)

benefits. (AR 53.) On December 19, 2019, respondent Los Angeles City Fire and Police Pension (“LAFPP”) awarded petitioner a nonservice-connected pension benefit, which provides lower benefits than a service-connected pension. (AR 53; see LAAC § 4.2008(a)(2).) In response, petitioner applied for a service-connected pension. (AR 84-85.) The Board conducted a hearing on her application on January 19, 2023. (AR 2-48.)

Pursuant to LAAC § 4.2008(h), two doctors qualified in oncology—Drs. Michael Van Scoy-Mosher, M.D., and Susan E. Lawrence, M.D.—reviewed Rousseve’s records[4] and provided written reports. (AR 119-31.) Petitioner obtained a third medical review from Dr. Charles Wiseman M.D., F.A.C.P., who also testified at the hearing about the report he had prepared following his medical review. (AR 25-38, 102-17.)

On March 1, 2022, Dr. Michael Van Scoy-Mosher, M.D., performed an Independent Records Review to determine if Rousseve’s death from DSRCT and myelodysplasia was related to performance of his LAPD duties. (AR 119.) Dr. Van Scoy-Mosher is board-certified in oncology and hematology. (AR 119.) He discussed how Rousseve was “exposed presumably to the ordinary exposures such a person in his profession would be exposed to” while working as a police officer from December 12, 2005, to November 9, 2019. (AR 120.) Importantly, he noted there was no claim of any “special occupational exposures.” (AR 120.) Dr. Van Scoy-Mosher opined that the “etiology of soft tissue sarcomas such as [DSRCT] is entirely unknown.” (AR 121.) He noted that there is no medical research to support a finding that Rousseve’s sarcoma was related to the occupational hazards he encountered as a police officer and concluded that “his death was totally unrelated to his occupational exposure and experience as a police officer III.” (AR 121.)

On March 10, 2022, Dr. Susan Lawrence, M.D., performed an Independent Records Review to determine if Rousseve’s death from DSRCT and myelodysplasia was related to performance of his LAPD duties. (AR 123.) Dr. Lawrence is a board-certified oncologist. (AR 123.) Noting Rousseve’s form of cancer was extremely rare, she stated that “[n]o studies have demonstrated a connection between [the] police force and soft tissue sarcomas.” (AR 129-30.) She further noted that “some environmental factors have been associated” with soft tissue sarcoma.

[E]xternal radiation therapy, chemotherapy, Thorotrast, arsenical pesticide and medications, Phenoxy herbicides, vinyl chloride, immunosuppressive drugs, alkylating agents, androgen-anabolic steroids, human immunodeficiency virus, human herpesvirus type 8 (in Kaposi’s sarcoma) and [Epstein Bar Virus]….

(AR 129.) Based on Rousseve’s employment records and occupational exposure history, Dr. Lawrence determined that he “did not have a documented history of exposure to any of these environmental factors.” (AR 129.) She also addressed the possibility that edema and irritation near Rousseve’s abdomen where his equipment belt was usually worn was a causal factor for DSRCT. (AR 130; see AR 266 [Rousseve noted that he developed tumor in abdomen where equipment belt rested].) She noted a reported association between chronic irritation and soft tissue sarcomas but dismissed this reported association as insufficient to support causation because “more studies are necessary to determine [its] validity.” (AR 130.) Dr. Lawrence concluded that “Rousseve’s employment in LAPD was not a predominant cause of his diagnosis of [DSRCT] and subsequent death.” (AR 130.)

Dr. Charles Wiseman M.D., F.A.C.P., a licensed physician in the State of California, who is board-certified in internal medicine and oncology, was called by petitioner to serve as a rebuttal witness. (AR 102.) He has practiced medicine for 45 years and conducted research in tumor immunology. (AR 102.) Following his review of Rousseve’s medical records, medical reports from Drs. Van Scoy-Mosher, Lawrence, and Jeffrey Caren, Dr. Wiseman prepared a report for petitioner on September 23, 2022. (AR 101-17.) He dismissed Rousseve’s significant family history of cancer as a factor in his illness, relying on the genetic testing to validate this point but qualified that “it was not a total genomic survey.” (AR 103.)

Dr. Wiseman noted that Rousseve had a “sarcoma,” caused by desmoplastic small round cell cancer,” a rare cancer for which there are few “epidemiological studies.” (AR 103.) Further, he noted that “there are no chemicals which directly establish a link to development of sarcoma.” (AR 103.) Dr. Wiseman opined “[t]here is no evidence in Officer Rousseve’s personal history of any obvious significant exposures that would be a cause of his cancer,” (AR 104) but he was “exposed to various carcinogenic agents, including but not limited to hydrocarbons, diesel fumes, gasoline fumes, benzene, lead and variety of unknown illegal drug related substances from attendance at meth lab fires.” (AR 102-03.) Dr. Wiseman pointed to identified genetic mutations in Rousseve’s cancer suppressor gene, TP53, and theorized that exposure to these various agents could have led this deleterious genetic mutation, though “medical science has not developed tools to directly identify what caused any of the aberrations identified for Officer Rousseve.” (AR 104.) Dr. Wiseman’s report concluded that exposure to these various agents “could therefore be the plausible predominant cause of Officer Rousseve’s cancer.” (AR 104.) In his testimony on January 19, 2023, Dr. Wiseman provided a notably more definitive opinion, stating, “[b]ased on my training, experience, research, I believe the predominant cause of Officer Rousseve’s cancer was mutagenesis from environmental agents.” (AR 33 [HT 32:5-8.)

Regarding Rousseve’s second cause of death, “myelodysplasia,” or abnormal bone marrow, Dr. Wiseman opined that it could have been caused by his aggressive chemotherapy treatments. (AR 103.) He offered an alternative theory in his report and testimony that it could have been caused by benzene exposure. (AR 29 [HT 28:10-15]; AR 103.)

Dr. Jeffrey Caren, M.D., evaluated Rousseve several times for his workers’ compensation case. These exams took place on October 14, 2015, January 19, 2017, and May 23, 2018. (AR 474, 960, 1119.) Dr. Caren was “unable to determine if the cancer was or was not caused by the claimed toxic exposure.” (AR 480-81, 981.) Dr. Caren noted that Rousseve’s cancer is presumed to be an industrial injury pursuant to Labor Code § 3212. (AR 481.)

Prior to petitioner’s hearing, LAFPP staff prepared a report recommending that the Board deny her application for a service-connected survivorship pension. (AR 54, 57.) On January 19, 2023, the Board heard petitioner’s application. (AR 2.) Petitioner put on three witnesses: (1) herself, testifying to Rousseve’s lifestyle and health (AR 8-12); (2) Officer Brent Hirunpugdi, Rousseve’s LAPD partner, testifying to their assignments and environmental exposures (AR 12-25); and (3) Dr. Wiseman, testifying to his theory linking environmental exposures to cancer-causing genetic mutations (AR 25-38). In his closing, petitioner’s counsel argued for service-connection, pointing to Dr. Wiseman’s medical opinion that environmental factors caused Rousseve’s TP53 gene to mutate, malfunction, and develop cancer. (AR 38-42.)

While Board members empathized with petitioner and expressed sympathy, they explained that their fiduciary duty to follow the LAAC did not permit them to consider any emotional connection to Petitioner’s case in their deliberations. (AR 45-46 [HT 44:14-23, 45:13-19].) Commissioners Garrett Zimmon and William Chun both expressly stated they did not see clear and convincing evidence of service-connection. (Ibid.) After considering petitioner’s evidence and closing statement and deliberating, the Board unanimously voted to adopt staff’s recommendation to deny petitioner’s application. (AR 46-47.)

On July 6, 2023, petitioner filed a verified Petition for Peremptory Writ of Mandate. On August 14, 2023, respondent filed an Answer. On December 5, 2023, petitioner filed a reply to the Answer.

On March 15, 2024, petitioner filed an opening brief. On April 15, 2024, respondent filed an opposition. On April 30, 2024, petitioner filed a reply. The Court has received hard copies of the administrative record and joint appendix.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

A disability pension benefit is a fundamental vested right. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 45 [service-connected death benefits to widow of police officer found to be fundamental vested right].) Accordingly, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2§009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

As a preliminary matter, respondent’s request to take judicial notice of Los Angeles Charter Code §§ 1102 and 1106 and Los Angeles Administrative Code (“LAAC”) §§ 4.2006 and 4.2008 is GRANTED, pursuant to Evidence Code § 452(b).

Petitioner seeks a writ of mandate directing respondent Los Angeles City Fire and Police Pension System to set aside its Board’s decision to deny her request for service-connected survivor benefits and to grant service-connected survivor benefits. (Pet. Prayer ¶ 1.)

Section 1102 of the Los Angeles City Charter created the Board of Fire and Police Pension Commissioners to manage and control the pension system for police officers. (RJN Ex. 1.) Under section 1106(a)(1) of the City Charter, the Board has “sole and exclusive responsibility to administer its system . . . to provide benefits to system participants and their beneficiaries and to assure prompt delivery of those benefits and related services.” (RJN Ex. 2.)

Spouses of Tier 5 plan members, like Rousseve, are entitled to a monthly pension for life. (RJN Ex. 4 at LAAC § 4.2008(a)(2).) The amount of the pension is greater if the plan member’s death is “service-connected.” (Cf. RJN Ex. 4 at LAAC § 4.2008(a)(1), (a)(2) [30-40% of final average salary for nonservice-connected death, 75% of final average salary for service-connected death].) The Board has the power to hear and determine whether the plan member’s death was service-connected or nonservice-connected. (RJN Ex. 3 at LAAC § 4.2008(g)(1), citing LAAC § 4.2006(c).)

With respect to finding whether the death of a plan member was service-connected, LAAC § 4.2008(a) states: “[A] Plan Member has died by reason of injuries received or sickness caused by the discharge of his or her duties if there is clear and convincing evidence that the discharge of the Plan Member’s duties were the predominant cause of his or her death.” (RJN Ex. 4 at LAAC § 4.2008(a)(1).) “Clear and convincing” evidence requires “a finding of high probability,” with evidence “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re Angelia P. (1981) 28 Cal.3d 908, 919, internal quotations omitted.)

The parties do not dispute that decedent James Rousseve was exposed to vehicle exhaust and diesel fumes, as well as narcotics and gunpowder residue while working as a police officer. (See AR 15-18 [HT 14:14-17:23], 21 [HT 20:7-25], 24 [HT 23:14-25].) The question presented here is whether exposure to these agents caused Rousseve’s death.

During the hearing on petitioner’s application for service-connected survivor benefits, Dr. Wiseman, petitioner’s expert, testified that Rousseve’s exposure to carcinogenic agents caused a mutation in his TP53 gene, rendering his body incapable of regulating cell growth and causing the sarcoma that led to his death. (AR 26-27 [HT 24:18-25:18], 29-31 [HT 28:16-30:5].) Dr. Wiseman noted that Rousseve’s death certificate designated that he had myelodysplastic syndrome, which is caused by exposure to benzene commonly found in diesel exhaust. (AR 29 [HT 28:1-15].)

As compared to his hearing testimony, Dr. Wiseman was more equivocal in his prior written report. After having noted that Rousseve had a mutation in his TP53 gene, Dr. Wiseman stated: “To develop one explanatory scenario, Officer Rousseve could have developed [desmoplastic small round cell cancer] from exposure to environmental chemicals producing mutations, that is genetic aberrations, and these mutations led to the development of his malignancy.” (AR 103.) After having noted that studies have not linked desmoplastic small round cell cancer, the type of cancer Rousseve had, to exposure to air pollutants because the cancer is particularly rare, Dr. Wiseman concluded his report by stating:

Given any list of mutations, medical science has not developed tools to directly identify what caused any of the aberrations identified for Officer Rousseve. The rate of mutations from environmental exposures is offered as an explanatory sequence. Such exposures could therefore be the plausible predominant cause of Officer Rousseve’s cancer.

(AR 103-04, emphasis added.) By using the word “could” in the paragraph quoted above, Dr. Wiseman’s report describes environmental exposures as a possible cause of Rousseve’s cancer. Dr. Wiseman’s conclusion is qualified, however, by the admission that medical science currently cannot directly identify what caused the mutations identified for Rousseve.

Dr. Wiseman’s recognition of the limits of medical science is consistent with the findings of respondent’s experts, Dr. Scoy-Mosher and Dr. Lawrence.[5] In finding that Rousseve’s sarcoma was unrelated to occupational exposure, Dr. Scoy-Mosher explained:

[The] entiology of soft tissue sarcomas such as desmoplastic sarcoma is essentially entirely unknown. There has been no connection to the kinds of exposures of a work that would be encountered in an ordinary police career and there is no scientific evidence to lead one to believe that his unfortunate development of this sarcoma and his death from the sarcoma were in any way related to this occupational employment as a police officer.

Dr. Lawrence listed risk factors of soft tissue sarcoma, including external radiation therapy, chemotherapy, Thorotrast, arsenical pesticide and medications, Phenoxy herbicides, vinyl chloride, immunosuppressive drugs, alkylating agents, androgen-anabolic steroids, human immunodeficiency virus, human herpesvirus type 8, and Epstein-Barr virus. (AR 129.) Other risk factors identified by Dr. Lawrence include certain inherited syndromes such as retinoblastoma, Li-Fraumeni syndrome, Gardner’s syndrome, Werner’s syndrome, nevoid basal cell carcinoma syndrome, neurofibromatosis type 1, and some immunodeficiency syndromes. (AR 129-30.) Dr. Lawrence also identified chronic edema and chronic irritation as risk factors, but she noted that more studies are needed to determine the association between edema and irritation and soft tissue sarcomas. (AR 130.) Dr. Lawrence also identified working varying shifts as a potential risk factor, but she noted that studies have yielded conflicting results. (AR 130.)

Dr. Lawrence stated that Rousseve had no history of the risk factors that she listed. (AR 130.) Dr. Lawrence did not list vehicle exhaust, narcotics residue, or gunpower residue as potential risk factors for soft tissue sarcomas. In any event, Dr. Lawrence noted that the risk factors account for a small minority of soft tissue sarcoma cases. (AR 130.) Due to the rarity of soft tissue sarcoma (1% of all cancers diagnosed in the United States), and the subcategory of desmoplastic small round cell tumors, Dr. Lawrence stated that studies have been unable to determine the causation of soft cell sarcomas. (AR 130.) Dr. Lawrence concluded that Rousseve’s employment in the LAPD was not a predominant cause of his cancer diagnosis and death. (AR 130.)

Petitioner faults respondent’s experts for having failed to consider Rousseve’s job duties and industrial environmental exposures. Even assuming the truth of Dr. Scoy-Mosher’s assumption that Rousseve’s exposure to carcinogenic agents was ordinary, petitioner and respondent’s experts agree that soft tissue sarcomas are rare and medical studies have not definitively identified causes of soft tissue sarcomas. (See, e.g. AR 104 [Wiseman states that “[t]here are 50 different kinds of [soft tissue sarcomas], [desmoplastic small round cell cancer] is particularly rare, so it is not surprising the paper did not describe the specific mutation relating to Officer Rousseve’s cancer].)

Considering the evidence in its totality, the Court finds that petitioner has not shown by clear and convincing evidence that Rousseve’s environmental exposures while working as a police officer caused his cancer, as is required under LAAC § 4.2008(a). Dr. Wiseman’s more affirmative stance during the hearing does not change the fact that, notwithstanding the plausibility of his conclusion regarding causation, there appears to be no consensus regarding the role that environmental or occupational exposures have in the development of soft tissue sarcomas. While the lack of definitive studies may be the unfortunate byproduct of the rarity of Rousseve’s type of cancer, such lack ultimately leaves this Court unable to find with a high probability, or with evidence so strong as to leave no substantial doubt, that Rousseve ultimately died because of his job responsibilities. (See Angelia P., 28 Cal.3d at 919.)

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent shall prepare, serve, and ultimately file a proposed judgment.

[1] Sarcoma is a broad term for cancers that start in soft tissues and can develop anywhere in the body but are found mostly in the arms, legs, chest and abdomen. (AR 59.)

[2] Myelodysplasia is a blanket phrase that means abnormal bone marrow. (AR 103.)

[3] Myriad Genetics Laboratories tested for the following genes: “APC, ATM, BARD1, BMPR1A, BRCA1, BRCA2, BRIP1, CDH1, CDK4, CDKN2A (p14ARF and p16INK4a), CHEK2, EPCAM (large rearrangement only), MLH1, MSH2, MSH6, MUTYH, NBN, PALB2, PMS2, PTEN, RAD51C, RAD51D, SMAD4, STK11, TP53.” (AR 258.)

[4] The records included: Essential Functions of Police Officer; petitioner’s application; and Rousseve’s death certificate, employment records, and personal medical records. (AR 119, 123.)

[5] Dr. Caren’s opinion arising from Rousseve’s workers compensation case is not probative because the presumption of industrial injury under Labor Code § 3212 presumption is not incorporated into the Los Angeles Administrative Code. A different standard applies in determining whether Rousseve’s death was service-connected.