On January 22, 2019 a
Trial Materials
was filed
involving a dispute between
Chulick, Carol,
Hagen, Deborah,
Hagler, Joleen,
and
Anheuser-Busch, Llc,
Anheuserbusch, Llc,
Associated Insulation Of California,
Buttner Corp.,
Columbia Mechanical Contractors, Inc.,
Cooper Brothers, Inc.,
Cosco Fire Protection, Inc.,
Does 1 Through 800, Inclusive, As Required By,
D. Zelinksy & Sons, Inc.,
D. Zelinsky & Sons, Incorporated,
Fdcc California, Inc.,
Frank Bonetti Plumbing, Inc.,
George H. Wilson, Inc.,
George Wilson Company, Inc.,
Grinnell Llc,
Grinnell Llc (Fka Grinnell Corporation, Aka,
Johnson Controls, Inc.,
Kelly-Moore Paint Company, Inc.,
Kellymoore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Metropolitan Life Insurance Company,
Monterey Mechanical Co.,
Riley Power Inc.,
Rosendin Electric, Inc.,
Rudolph And Sletten, Inc.,
Scott Co. Of California,
Texaco Inc.,
W.L. Hickey Sons, Inc.,
Chulick, Carol,
Hagen, Deborah,
Hagler, Joleen,
for ASBESTOS
in the District Court of San Francisco County.
Preview
1 KATHERINE P. GARDINER, State Bar No. 215542
kgardiner@wfbm.com
2 KENDRA E. BRAY, State Bar No. 285743 ELECTRONICALLY
kbray@wfbm.com
3 WFBM, LLP F I L E D
Superior Court of California,
One Sansome Street, Suite 1800 County of San Francisco
4 San Francisco, California 94104
Telephone: (415) 781-7072 12/27/2021
Clerk of the Court
5 Facsimile: (415) 391-6258 BY: YOLANDA TABO-RAMIREZ
Deputy Clerk
6 Attorneys for FDCC California, Inc.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 CAROL CHULICK, as Successor-In-Interest Case No. CGC-19-276757
to and Wrongful Death Heir to JOHN
SAN FRANCISCO, CALIFORNIA 94104-4461
TEL (415) 781-7072 • FAX (415) 391-6258
12 CHULICK, Deceased; and DEBORAH FDCC CALIFORNIA, INC.'S TRIAL
ONE SANSOME STREET, SUITE 1800
HAGEN and JOLEEN HAGLER as Wrongful BRIEF
Walsworth
13 Death Heirs to JOHN CHULICK, ,
Assigned for All Purposes to:
14 Plaintiffs, Hon.: Cynthia Ming-mei Lee
Dept.: 503
15 v.
Action Filed: January 22, 2019
16 RILEY POWER, INC., et al. , Trial Date: December 27, 2021
17 Defendants.
18 Pursuant to San Francisco Superior Court Local Rule 20.3(E), defendant FDCC California,
19 Inc. ("FDCC") provides the following trial brief.
20 I. FACTS
21 Plaintiffs Carol Chulick, Deborah Hagen, and Joleen Hagler (collectively "Plaintiffs") filed
22 the instant wrongful death case alleging that decedent John Chulick ("Decedent") suffered from
23 asbestos-related pleural disease and asbestosis as a result of his exposure to asbestos. As to FDCC,
24 Plaintiffs' claims of liability are Negligence and Loss of Consortium.1
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1 Plaintiffs dismissed their claim for punitive damages against FDCC. Plaintiffs have also dismissed
28 all claims of exposure to asbestos by Dinwiddie after December 5, 1980.
5852500.1
3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF
1 A. Locations at Issue
2 Decedent had an underlying personal injury case in 2001 where he alleged he had been
3 diagnosed with asbestosis and asbestos-related pleural disease. FDCC was not a party to the
4 underlying suit. During the underlying suit he gave extensive testimony, but did not identify
5 Dinwiddie Construction Company (the entity for which FDCC is alleged to hold liability). Decedent
6 was not deposed in the instant suit prior to his death. Plaintiffs in this case rely upon seasoned
7 witnesses, Monte Manwill (deceased) and Robert Cantley, to support their claims against FDCC.
8 Based on these two witnesses' testimony, Plaintiffs contend that Decedent was exposed to asbestos
9 by Dinwiddie employees during his work at Lawrence Livermore Labs and University of California,
10 Berkeley.
11 1. Lawrence Livermore Lab
SAN FRANCISCO, CALIFORNIA 94104-4461
TEL (415) 781-7072 • FAX (415) 391-6258
12 Decedent testified in his prior personal injury case that he worked at Lawrence Livermore
ONE SANSOME STREET, SUITE 1800
Walsworth
13 Labs while employed by Owens Corning both in mid-1967 and in 1971, installing new insulation
14 onto pipes. Decedent did not identify the general contractor for either of the two jobs – to the
15 contrary, he testified that he recalled there being no general contractor at the site.
16 Decedent's co-worker Monte Manwill testified that he worked with Decedent around
17 Dinwiddie employees at Lawrence Livermore Labs in 1967. Manwill confirmed that he and
18 Decedent installed and removed multiple brands of asbestos-containing insulation while at the lab.
19 Manwill recalled that two Dinwiddie laborers were on site, cleaning up debris from these materials
20 with a broom and shovel. He claimed that he also saw Dinwiddie employees installing drywall and
21 joint compound in various areas at the lab, but he did not know the brand name or manufacturer of
22 any of those materials. In all, Manwill testified that Decedent was around Dinwiddie's work with
23 these asbestos-containing materials all day for 4 to 6 weeks. Mr. Manwill's testimony is in stark
24 contrast to Manwill's own personal injury case wherein he had admitted he did not see a general
25 contractor during his time at the lab. Dinwiddie does not have any records to support Plaintiffs'
26 claims, nor have Plaintiffs produced any documents that demonstrate Dinwiddie's presence.
27 2. University of California Berkeley
28 Decedent testified that he worked at UC Berkeley in 1962 and 1963, performing new
5852500.1 -2-
3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF
1 construction of the Zellerbach Auditorium. According to Decedent, his job was to insulate ductwork,
2 heating pipe, cooling pipe, plumbing pipe, pumps and valves. Decedent testified he saw many other
3 trades, but did not know who employed any of those trades.
4 Plaintiffs' witness Robert Cantley testified that he saw Dinwiddie on a job he and Decedent
5 performed in the early 1960's at the University of California Berkeley. Cantley claimed he was
6 personally at the site for only approximately 30 to 32 hours total, but Decedent was there "every
7 time" he was there. Cantley confirmed that both he and Decedent used asbestos-containing
8 insulation while on site. Cantley testified he personally cut insulation at least 50 times within 10 feet
9 of Decedent. Cantley claimed that Dinwiddie was the general contractor at the site, and that
10 Dinwiddie employed carpenters and laborers who swept up multiple times a day, repeatedly around
11 Decedent. Per Cantley, Dinwiddie laborers swept up sawdust, dust from pipe insulation, and
SAN FRANCISCO, CALIFORNIA 94104-4461
TEL (415) 781-7072 • FAX (415) 391-6258
12 Monokote fireproofing debris every day.
ONE SANSOME STREET, SUITE 1800
Walsworth
13 B. Medical and Smoking History
14 Decedent was allegedly diagnosed with asbestosis and asbestos-related pleural disease in
15 April 2001 by plaintiffs' experts. In addition to his claimed asbestos-related diseases, Decedent had
16 co-morbidities that include chronic obstructive pulmonary disease, pleural thickening, emphysema,
17 chronic kidney disease (stage III), hypertension, mitral valve regurgitation, atherosclerosis aorta, a
18 history of skin cancer and depression. According to medical records, Decedent had a fifty (50) pack-
19 year smoking history. Defense experts will testify at trial that Decedent's cause of death was chronic
20 obstructive pulmonary disease (Stage 4) from end-stage emphysema caused by his many years of
21 smoking as well as cardiac issues.
22 II. LEGAL ISSUES
23 FDCC disputes that Decedent ever worked around Dinwiddie's employees or that he was in
24 any way exposed to asbestos through their activities.
25 A. Substantial Factor
26 Plaintiffs have the burden of establishing that Decedent was actually exposed to asbestos
27 from Dinwiddie employees. (Setliff v. E.I. DuPont De Nemours & Company (1988) 32 Cal.App.4th
28 1525, 1533; Lineaweaver v. Plant Insul. Co. (1995) 31 Cal.App.4th 1409, 1416.) To do so, Plaintiffs
5852500.1 -3-
3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF
1 must provide evidence showing FDCC’s "asbestos-related activities occurred with sufficient
2 frequency and regularity in locations from which asbestos fibers could have traveled to plaintiff's
3 work area…." (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1289 [disapproved
4 on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.App.4th 826. 854, fn. 23].) Once
5 exposure is established, Plaintiffs must then prove that the exposure was a "substantial factor in
6 producing [Decedent’s] injuries." (Lineaweaver, supra, 31 Cal.App.4th at 1426-1427.)
7 Plaintiffs cannot establish that FDCC was a substantial factor in increasing Decedent's risk
8 of developing an asbestos-related disease. First, Decedent never identified Dinwiddie during his
9 underlying personal injury suit when required to identify all sources of his asbestos exposure – not
10 even as a contractor present at any of his jobsites. Second, even if one were to credit the testimony
11 of co-workers Manwill and Cantley, at most Decedent could have worked around Dinwiddie
SAN FRANCISCO, CALIFORNIA 94104-4461
TEL (415) 781-7072 • FAX (415) 391-6258
12 laborers for a maximum of 6 weeks of his lifetime – a minute fraction of his nearly 40 years as a
ONE SANSOME STREET, SUITE 1800
Walsworth
13 career insulator. Decedent's co-workers had no concrete information to provide about the amount of
14 time Dinwiddie employees cleaned up around Decedent. Given that, no jury could determine
15 FDCC's alleged contribution to Decedent's exposure was a substantial factor in Decedent's
16 development of an asbestos related disease without relying purely on speculation. Finally, FDCC
17 will submit evidence that will establish that if Decedent was in fact exposed to asbestos, it was either
18 from his own daily and continuous work with thermal insulation materials, and/or from a vast array
19 of products and conduct wholly unrelated to cleanup performed by Dinwiddie laborers.
20 B. Decedent Was a Sophisticated User
21 Moreover, Decedent was an asbestos worker and member of the Heat and Frost Asbestos
22 Worker’s union during the entirety of his career. As such, he arguably was in a better position than
23 Dinwiddie laborers and had more knowledge of the asbestos hazards from the actual products he
24 was installing and the dust he was creating, than laborers who merely swept up debris. It is
25 unreasonable to expect that Dinwiddie laborers would have had to warn Decedent as to the
26 composition of the products they were sweeping up in his presence, particularly the debris that
27 Decedent and his co-workers personally created.
28 ///
5852500.1 -4-
3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF
1 C. Dinwiddie Acted Reasonably in Keeping with Safety Standards, Practices, and
Knowledge at the time of Decedent's Alleged Exposure.
2
3 As a general contractor, Dinwiddie routinely employed laborers who swept up jobsites.
4 Decedent's exposure to asbestos in this case purportedly caused by Dinwiddie resulted from the
5 disturbance of fireproofing, insulation materials and drywall debris – materials which had been
6 manufactured, supplied and installed by Decedent and others. Plaintiffs offer no evidence indicating
7 Dinwiddie knew of the presence of asbestos in the debris. Further, Dinwiddie's alleged work was
8 performed in a manner that was in keeping with safety standards and practices of the years during
9 which the work was performed. The standard in asbestos cases is whether the defendant acted
10 reasonably given the information known or reasonably knowable by the defendant. As there is no
11 evidence Dinwiddie acted unreasonably, it cannot be found liable for Decedent's asbestos-related
SAN FRANCISCO, CALIFORNIA 94104-4461
TEL (415) 781-7072 • FAX (415) 391-6258
12 illness.
ONE SANSOME STREET, SUITE 1800
Walsworth
13 D. Proposition 51 Allows FDCC to Prove Exposure to Other Entities' Products
14 California Civil Code section 1431.2 (“Proposition 51”) allows FDCC to prove exposure to
15 other entities’ products, materials, or activities – including Decedent’s own actions – to reduce its
16 equitable share of fault. Here, there is ample evidence that Decedent was heavily exposed to
17 asbestos-containing insulation products throughout his career. Moreover, Decedent worked with
18 and around other drywall finishing products; fireproofing; friction products; and others. Plaintiff
19 named numerous defendants in his prior personal injury suit and filed bankruptcy claims with
20 additional entities. FDCC is also entitled to claim each of these entities should be assessed fault for
21 Decedent's use of their products, exposure on their premises or exposure through these entities'
22 actions.
23 E. Medical Causation
24 FDCC disputes that Decedent had asbestosis or that his death was caused by an asbestos-
25 related disease. Defense experts will testify at trial that Decedent's cause of death was chronic
26 obstructive pulmonary disease (Stage 4) from end-stage emphysema from his many years of
27 smoking as well as cardiac issues. Finally, FDCC contends that Decedent had multiple co-
28 morbidities, unrelated to any asbestos-exposure, that further reduced his life-expectancy
5852500.1 -5-
3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF
1 F. Economic Damages are Limited
2 FDCC disputes that Plaintiffs are entitled to recover any damages against it on liability
3 grounds. More importantly, FDCC disputes Plaintiffs' claim for lost income from Decedent's
4 business as Mrs. Chulick has admitted that she has assumed all of the interest in the business and
5 there has been no loss of business income since his death.
6 III. CONCLUSION
7 Plaintiffs do not have, and cannot reasonably expect to obtain any evidence that FDCC in
8 any way caused or contributed to Decedent's death. Without this evidence, each of Plaintiffs' claims
9 against FDCC fail as a matter of law, and FDCC should be dismissed from this case, with prejudice,
10 to avoid the time and expense of a trial rendered useless by a directed verdict.
11 Dated: December 27, 2021 WFBM, LLP
SAN FRANCISCO, CALIFORNIA 94104-4461
TEL (415) 781-7072 • FAX (415) 391-6258
12
ONE SANSOME STREET, SUITE 1800
By:
Walsworth
13
14 KATHERINE P. GARDINER
KENDRA E. BRAY
15 Attorneys for FDCC California, Inc.
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5852500.1 -6-
3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Orange, State of California. My business address is 19900 MacArthur
4 Blvd., Suite 1150, Irvine, CA 92612-2445.
5 On December 27, 2021, I served true copies of the following document(s) described as
FDCC CALIFORNIA, INC.'S TRIAL BRIEF on the interested parties in this action as follows:
6
SEE ATTACHED SERVICE LIST
7
BY ELECTRONIC SERVICE: I electronically served the document(s) described above
8 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the
File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
9 establishing the case website and authorizing service of documents.
10 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
11
Executed on December 27, 2021, at Irvine, California.
SAN FRANCISCO, CALIFORNIA 94104-4461
TEL (415) 781-7072 • FAX (415) 391-6258
12
ONE SANSOME STREET, SUITE 1800
Walsworth
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14 Paula Barlow
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5852500.1 -7-
3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF
Preview
1 KATHERINE P. GARDINER, State Bar No. 215542 kgardiner@wfbm.com 2 KENDRA E. BRAY, State Bar No. 285743 ELECTRONICALLY kbray@wfbm.com 3 WFBM, LLP F I L E D Superior Court of California, One Sansome Street, Suite 1800 County of San Francisco 4 San Francisco, California 94104 Telephone: (415) 781-7072 12/27/2021 Clerk of the Court 5 Facsimile: (415) 391-6258 BY: YOLANDA TABO-RAMIREZ Deputy Clerk 6 Attorneys for FDCC California, Inc. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 CAROL CHULICK, as Successor-In-Interest Case No. CGC-19-276757 to and Wrongful Death Heir to JOHN SAN FRANCISCO, CALIFORNIA 94104-4461 TEL (415) 781-7072 • FAX (415) 391-6258 12 CHULICK, Deceased; and DEBORAH FDCC CALIFORNIA, INC.'S TRIAL ONE SANSOME STREET, SUITE 1800 HAGEN and JOLEEN HAGLER as Wrongful BRIEF Walsworth 13 Death Heirs to JOHN CHULICK, , Assigned for All Purposes to: 14 Plaintiffs, Hon.: Cynthia Ming-mei Lee Dept.: 503 15 v. Action Filed: January 22, 2019 16 RILEY POWER, INC., et al. , Trial Date: December 27, 2021 17 Defendants. 18 Pursuant to San Francisco Superior Court Local Rule 20.3(E), defendant FDCC California, 19 Inc. ("FDCC") provides the following trial brief. 20 I. FACTS 21 Plaintiffs Carol Chulick, Deborah Hagen, and Joleen Hagler (collectively "Plaintiffs") filed 22 the instant wrongful death case alleging that decedent John Chulick ("Decedent") suffered from 23 asbestos-related pleural disease and asbestosis as a result of his exposure to asbestos. As to FDCC, 24 Plaintiffs' claims of liability are Negligence and Loss of Consortium.1 25 26 27 1 Plaintiffs dismissed their claim for punitive damages against FDCC. Plaintiffs have also dismissed 28 all claims of exposure to asbestos by Dinwiddie after December 5, 1980. 5852500.1 3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF 1 A. Locations at Issue 2 Decedent had an underlying personal injury case in 2001 where he alleged he had been 3 diagnosed with asbestosis and asbestos-related pleural disease. FDCC was not a party to the 4 underlying suit. During the underlying suit he gave extensive testimony, but did not identify 5 Dinwiddie Construction Company (the entity for which FDCC is alleged to hold liability). Decedent 6 was not deposed in the instant suit prior to his death. Plaintiffs in this case rely upon seasoned 7 witnesses, Monte Manwill (deceased) and Robert Cantley, to support their claims against FDCC. 8 Based on these two witnesses' testimony, Plaintiffs contend that Decedent was exposed to asbestos 9 by Dinwiddie employees during his work at Lawrence Livermore Labs and University of California, 10 Berkeley. 11 1. Lawrence Livermore Lab SAN FRANCISCO, CALIFORNIA 94104-4461 TEL (415) 781-7072 • FAX (415) 391-6258 12 Decedent testified in his prior personal injury case that he worked at Lawrence Livermore ONE SANSOME STREET, SUITE 1800 Walsworth 13 Labs while employed by Owens Corning both in mid-1967 and in 1971, installing new insulation 14 onto pipes. Decedent did not identify the general contractor for either of the two jobs – to the 15 contrary, he testified that he recalled there being no general contractor at the site. 16 Decedent's co-worker Monte Manwill testified that he worked with Decedent around 17 Dinwiddie employees at Lawrence Livermore Labs in 1967. Manwill confirmed that he and 18 Decedent installed and removed multiple brands of asbestos-containing insulation while at the lab. 19 Manwill recalled that two Dinwiddie laborers were on site, cleaning up debris from these materials 20 with a broom and shovel. He claimed that he also saw Dinwiddie employees installing drywall and 21 joint compound in various areas at the lab, but he did not know the brand name or manufacturer of 22 any of those materials. In all, Manwill testified that Decedent was around Dinwiddie's work with 23 these asbestos-containing materials all day for 4 to 6 weeks. Mr. Manwill's testimony is in stark 24 contrast to Manwill's own personal injury case wherein he had admitted he did not see a general 25 contractor during his time at the lab. Dinwiddie does not have any records to support Plaintiffs' 26 claims, nor have Plaintiffs produced any documents that demonstrate Dinwiddie's presence. 27 2. University of California Berkeley 28 Decedent testified that he worked at UC Berkeley in 1962 and 1963, performing new 5852500.1 -2- 3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF 1 construction of the Zellerbach Auditorium. According to Decedent, his job was to insulate ductwork, 2 heating pipe, cooling pipe, plumbing pipe, pumps and valves. Decedent testified he saw many other 3 trades, but did not know who employed any of those trades. 4 Plaintiffs' witness Robert Cantley testified that he saw Dinwiddie on a job he and Decedent 5 performed in the early 1960's at the University of California Berkeley. Cantley claimed he was 6 personally at the site for only approximately 30 to 32 hours total, but Decedent was there "every 7 time" he was there. Cantley confirmed that both he and Decedent used asbestos-containing 8 insulation while on site. Cantley testified he personally cut insulation at least 50 times within 10 feet 9 of Decedent. Cantley claimed that Dinwiddie was the general contractor at the site, and that 10 Dinwiddie employed carpenters and laborers who swept up multiple times a day, repeatedly around 11 Decedent. Per Cantley, Dinwiddie laborers swept up sawdust, dust from pipe insulation, and SAN FRANCISCO, CALIFORNIA 94104-4461 TEL (415) 781-7072 • FAX (415) 391-6258 12 Monokote fireproofing debris every day. ONE SANSOME STREET, SUITE 1800 Walsworth 13 B. Medical and Smoking History 14 Decedent was allegedly diagnosed with asbestosis and asbestos-related pleural disease in 15 April 2001 by plaintiffs' experts. In addition to his claimed asbestos-related diseases, Decedent had 16 co-morbidities that include chronic obstructive pulmonary disease, pleural thickening, emphysema, 17 chronic kidney disease (stage III), hypertension, mitral valve regurgitation, atherosclerosis aorta, a 18 history of skin cancer and depression. According to medical records, Decedent had a fifty (50) pack- 19 year smoking history. Defense experts will testify at trial that Decedent's cause of death was chronic 20 obstructive pulmonary disease (Stage 4) from end-stage emphysema caused by his many years of 21 smoking as well as cardiac issues. 22 II. LEGAL ISSUES 23 FDCC disputes that Decedent ever worked around Dinwiddie's employees or that he was in 24 any way exposed to asbestos through their activities. 25 A. Substantial Factor 26 Plaintiffs have the burden of establishing that Decedent was actually exposed to asbestos 27 from Dinwiddie employees. (Setliff v. E.I. DuPont De Nemours & Company (1988) 32 Cal.App.4th 28 1525, 1533; Lineaweaver v. Plant Insul. Co. (1995) 31 Cal.App.4th 1409, 1416.) To do so, Plaintiffs 5852500.1 -3- 3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF 1 must provide evidence showing FDCC’s "asbestos-related activities occurred with sufficient 2 frequency and regularity in locations from which asbestos fibers could have traveled to plaintiff's 3 work area…." (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1289 [disapproved 4 on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.App.4th 826. 854, fn. 23].) Once 5 exposure is established, Plaintiffs must then prove that the exposure was a "substantial factor in 6 producing [Decedent’s] injuries." (Lineaweaver, supra, 31 Cal.App.4th at 1426-1427.) 7 Plaintiffs cannot establish that FDCC was a substantial factor in increasing Decedent's risk 8 of developing an asbestos-related disease. First, Decedent never identified Dinwiddie during his 9 underlying personal injury suit when required to identify all sources of his asbestos exposure – not 10 even as a contractor present at any of his jobsites. Second, even if one were to credit the testimony 11 of co-workers Manwill and Cantley, at most Decedent could have worked around Dinwiddie SAN FRANCISCO, CALIFORNIA 94104-4461 TEL (415) 781-7072 • FAX (415) 391-6258 12 laborers for a maximum of 6 weeks of his lifetime – a minute fraction of his nearly 40 years as a ONE SANSOME STREET, SUITE 1800 Walsworth 13 career insulator. Decedent's co-workers had no concrete information to provide about the amount of 14 time Dinwiddie employees cleaned up around Decedent. Given that, no jury could determine 15 FDCC's alleged contribution to Decedent's exposure was a substantial factor in Decedent's 16 development of an asbestos related disease without relying purely on speculation. Finally, FDCC 17 will submit evidence that will establish that if Decedent was in fact exposed to asbestos, it was either 18 from his own daily and continuous work with thermal insulation materials, and/or from a vast array 19 of products and conduct wholly unrelated to cleanup performed by Dinwiddie laborers. 20 B. Decedent Was a Sophisticated User 21 Moreover, Decedent was an asbestos worker and member of the Heat and Frost Asbestos 22 Worker’s union during the entirety of his career. As such, he arguably was in a better position than 23 Dinwiddie laborers and had more knowledge of the asbestos hazards from the actual products he 24 was installing and the dust he was creating, than laborers who merely swept up debris. It is 25 unreasonable to expect that Dinwiddie laborers would have had to warn Decedent as to the 26 composition of the products they were sweeping up in his presence, particularly the debris that 27 Decedent and his co-workers personally created. 28 /// 5852500.1 -4- 3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF 1 C. Dinwiddie Acted Reasonably in Keeping with Safety Standards, Practices, and Knowledge at the time of Decedent's Alleged Exposure. 2 3 As a general contractor, Dinwiddie routinely employed laborers who swept up jobsites. 4 Decedent's exposure to asbestos in this case purportedly caused by Dinwiddie resulted from the 5 disturbance of fireproofing, insulation materials and drywall debris – materials which had been 6 manufactured, supplied and installed by Decedent and others. Plaintiffs offer no evidence indicating 7 Dinwiddie knew of the presence of asbestos in the debris. Further, Dinwiddie's alleged work was 8 performed in a manner that was in keeping with safety standards and practices of the years during 9 which the work was performed. The standard in asbestos cases is whether the defendant acted 10 reasonably given the information known or reasonably knowable by the defendant. As there is no 11 evidence Dinwiddie acted unreasonably, it cannot be found liable for Decedent's asbestos-related SAN FRANCISCO, CALIFORNIA 94104-4461 TEL (415) 781-7072 • FAX (415) 391-6258 12 illness. ONE SANSOME STREET, SUITE 1800 Walsworth 13 D. Proposition 51 Allows FDCC to Prove Exposure to Other Entities' Products 14 California Civil Code section 1431.2 (“Proposition 51”) allows FDCC to prove exposure to 15 other entities’ products, materials, or activities – including Decedent’s own actions – to reduce its 16 equitable share of fault. Here, there is ample evidence that Decedent was heavily exposed to 17 asbestos-containing insulation products throughout his career. Moreover, Decedent worked with 18 and around other drywall finishing products; fireproofing; friction products; and others. Plaintiff 19 named numerous defendants in his prior personal injury suit and filed bankruptcy claims with 20 additional entities. FDCC is also entitled to claim each of these entities should be assessed fault for 21 Decedent's use of their products, exposure on their premises or exposure through these entities' 22 actions. 23 E. Medical Causation 24 FDCC disputes that Decedent had asbestosis or that his death was caused by an asbestos- 25 related disease. Defense experts will testify at trial that Decedent's cause of death was chronic 26 obstructive pulmonary disease (Stage 4) from end-stage emphysema from his many years of 27 smoking as well as cardiac issues. Finally, FDCC contends that Decedent had multiple co- 28 morbidities, unrelated to any asbestos-exposure, that further reduced his life-expectancy 5852500.1 -5- 3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF 1 F. Economic Damages are Limited 2 FDCC disputes that Plaintiffs are entitled to recover any damages against it on liability 3 grounds. More importantly, FDCC disputes Plaintiffs' claim for lost income from Decedent's 4 business as Mrs. Chulick has admitted that she has assumed all of the interest in the business and 5 there has been no loss of business income since his death. 6 III. CONCLUSION 7 Plaintiffs do not have, and cannot reasonably expect to obtain any evidence that FDCC in 8 any way caused or contributed to Decedent's death. Without this evidence, each of Plaintiffs' claims 9 against FDCC fail as a matter of law, and FDCC should be dismissed from this case, with prejudice, 10 to avoid the time and expense of a trial rendered useless by a directed verdict. 11 Dated: December 27, 2021 WFBM, LLP SAN FRANCISCO, CALIFORNIA 94104-4461 TEL (415) 781-7072 • FAX (415) 391-6258 12 ONE SANSOME STREET, SUITE 1800 By: Walsworth 13 14 KATHERINE P. GARDINER KENDRA E. BRAY 15 Attorneys for FDCC California, Inc. 16 17 18 19 20 21 22 23 24 25 26 27 28 5852500.1 -6- 3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF ORANGE 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Orange, State of California. My business address is 19900 MacArthur 4 Blvd., Suite 1150, Irvine, CA 92612-2445. 5 On December 27, 2021, I served true copies of the following document(s) described as FDCC CALIFORNIA, INC.'S TRIAL BRIEF on the interested parties in this action as follows: 6 SEE ATTACHED SERVICE LIST 7 BY ELECTRONIC SERVICE: I electronically served the document(s) described above 8 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order 9 establishing the case website and authorizing service of documents. 10 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 11 Executed on December 27, 2021, at Irvine, California. SAN FRANCISCO, CALIFORNIA 94104-4461 TEL (415) 781-7072 • FAX (415) 391-6258 12 ONE SANSOME STREET, SUITE 1800 Walsworth 13 14 Paula Barlow 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5852500.1 -7- 3860-38.128 FDCC CALIFORNIA, INC.'S TRIAL BRIEF