Motion-Secondary: NANCY MARIE SCOTT et al VS. AC AND S, INC. et al

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MICHAEL J. ESTRADA (SBN 121439)

CHRISTY L. SHARP (SBN 203794) ELECTRONICALLY
VASQUEZ & ESTRADA, LLP FILED
Courthouse Square S ior Court of Californi
1000 Fourth Street Suite 700 County of San Francisco”
San Rafael, CA 94901
Telephone: (415) 453-0555 APR 02 2007
Facsimile: (415) 453-0549 GORDON PARK-LI, Clerk
BY: JUANITA D. MURPHY
Deputy Clerk

Attorneys for Defendant
HILL BROTHERS CHEMICAL COMPANY

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

NANCY MARIE SCOTT, Individually andas ) CASE NO. CGC-05-443236
Successor-in-Interest to DENZIL SCOTT, )
Decedent; JOANNE MARIE WOLFARTH; ) MEMORANDUM OF POINTS AND
MICHAEL GERALD SCOTT; ROBERT ) AUTHORITIES IN SUPPORT OF HILL
DAVID SCOTT; THOMAS CARY SCOTT; ) BROTHERS CHEMICAL COMPANY’S
MARY DENISE SOBOLIK; and FIRSTDOE ) MOTION FOR SUMMARY JUDGMENT
through TENTH DOE, inclusive, )
a ) Date: June 15, 2007
) Time: 9:30 a.m.
Plaintiffs, ) Dept: 302
) Judge: Honorable Patrick J, Mahoney
VS. )
) Action Filed: July 20, 2005
AC AND §, INC., et al., ) Trial Date: July 16, 2007
)
Defendants. )
)
)
)
)
)

I. INTRODUCTION

This is a wrongful death action brought by Plaintiffs, NANCIE MARIE SCOTT, JOANNE
MARIE WOLFARTH, MICHAEL GERALD SCOTT, ROBERT DAYID SCOTT, THOMAS
CARY SCOTT, and MARY DENISE SOBOLIK (“Plaintiffs”), against numerous defendants,
including defendant Hill Brothers Chemical Company (“Hill Brothers”). Plaintiffs’ complaint was

filed on July 20, 2005, and alleges causes of action for wrongful death, negligence, strict ability,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HILL BROTHERS CHEMICAL COMPANY’S MOTION FOR
SUMMARY JUDGMENT; CASE NO. CGC-05-443236enterprise liability, false representation, a survival action and a claim for punitive damages for
injuries allegedly sustained by decedent, Denzil Scott (“Decedent”). Briefly, Plaintiffs allege that
decedent was cxposcd to a varicty of unspecified asbestos-containing products during the time he
was a member of the U.S. Navy, from September 24, 1940 to April 4, 1960. Plaintiffs do provide a
detailed description of deccdent’s job dutics as well as list of sites, including specifically identified
ships and shipyards. However, Plaintiffs do not sct forth any facts connecting decedent's alleged
exposure to asbestos or asbestos-containing products, with any product manufactured in whole or in
party by Hill Brothers.

In sum, PlaintiffS have not and cannot produce any evidence to support the claim that
decedent was exposed to Hill Brothers blended asbestos or any products manufactured by other
companies that may have contained Hill Brothers asbestos, Rather, Plaintiffs’ claims against Hill
Brothers are based on pure speculation, conjecture and surmise, (See Dumin v. Owens-Corning
Fiberglas Corp. (1994) 28 Cal.App.4th 650). Since Plaintiffs have no evidence to support their
claims, there is no triable issue of fact, and therefore, Hill Brothers is entitled to summary judgment

as a matter of law..
IL STATEMENT OF FACTS.

Plaintiffs’ complaint seeks damages from numerous defendants, including defendant Hill
Brothers, for injuries allegedly sustained by decedent as a result of his alleged exposure to asbestos
or asbestos-containing products. (See Separate Statement of Undisputed Matcrial Fact, (“UMP”)
No.1). However, Plaintiffs’ Responses to Standard Wrongful Death Interrogatories, Sets One and
Two, and each Plaintiffs” Standard Interrogatories Responses to Heirs of Decedent, as well as the
supplemental responses thereto, do not set forth any facts or circumstances that suggest decedent was
exposed to Hill Brothers blended asbestos or any products manufactured by other companies that
may have contained Hill Brothers asbestos. (UMF No. 2), In fact, none of Plaintiffs’ responses to
Defendants’ Standard Discovery, listed above, even mention the name “Hill Brothers” nor do they
reference any product or company often associated with Hill Brothers, much less set forth any facts

regarding how, when or where Hill Brothers caused decedent to be exposed to asbestos at any

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‘MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HILL BROTHERS CIIEMICAL COMPANY'S MOTION FOR
‘SUMMARY JUDGMENT;LASE NO. CGC-05-443236location. (UMF Nos . 3).

In addition, Hill Brothers served Specially Prepared Interrogatoties, Requests for
Admissions, Form Interrogatories, Request for Admissions and Request for Production of
Documents on each Plaintiff to ascertain their allegations and evidence of liability against [Till
Brothers. (UMF. No. 4). In response thereto, Plaintiffs served boiler plate responses, which did not
provide any information or identify any documents containing information specific to Tlill Brothers,
and although they denied Hill Brothers’ Request for Admissions, they did so without any other
information, facts or documents offered to support their denials. (UMF. No. 5). Plaintifis’ responses
to Case-Specific “all facts” Special Interrogatories are completely devoid of any facts, and fail to
identify any fail to identify any documents or witnesses, or any other information to even suggest
that decedent was ever in the same place at the same time that would provide an opportunity for him
to be exposed to any product(s) manufactured in whole or in party by Hill Brothers, including the
other companies often associated with Hill Brothers. (UMF No. 6). In sum, all of Plaintiffs’ written
discovery responses fail to assert any facts, or identify any documents or witnesses potentially
containing facts, or information that could link decedent’s alleged asbestos exposure to Hill
Brothers. (See UMFs, Nos. 3 - 6).

With respect to deposition testimony, Plaintiffs are the heirs and adult children of decedent.
At deposition, most of Plaintiff heirs testified they had never heard of “Hill Brothers.” (UMF Nos.
7,9 & 10). ‘The Plaintiff heirs that “thought” they recognized the name “Hill Brothers” only
associated the name with cofice, and nothing more. (UMF No. 8). During deposition, each Plaintiff
testified that they have not heard of, much less identified, any products, materials or entities oflen
linked to Hill Brothers. (UME No. 9). Furthermore, each Plaintiff testified that they had no
knowledge or information that their father, decedent, ever worked with or around any product
manufactured in whole or in part by Hill Brothers. (UMF No. 10)..

In sum, the undisputed material facts establish that Plaintiffs have no evidence demonstrating
that any of the products that may have contained Hill Brothers’ blended asbestos were ever present at
any of the decedent’s job sites, much less during the same time and place as decedent, Thus, there is

no evidence that decedent was exposed to any product or material containing Hill Brothers blended
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‘MEMORANDUM OF POINTS AND AUTHORETIES IN SUPPORT OF TIILL BROTHERS CHEMICAL COMPANY'S MOTION FOR
SUMMARY JUDGMENT: ASE NO. CGC-08-4432361

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asbestos, and as such, plaintiffs cannot prove causation and Hill Brothers is entitled to summary

judgment as a matter of law.
II, LEGAL ARGUMENT

A. In Light of Plaintiffs Deposition Testimony And Factually-Devoid Discovery
Responses, Hill Brothers Has Shifted The Burden Of Proof To Plaintiffs Te
Affirmatively Demonstrate That Hill Brothers Has Caused Decedent’ Alleged
Asbestos-Related Injury

California Code of Civil Procedure Section 437c provides that summary judgment is proper
when the moving party demonstrates that at least one element of the cause of action cannot be
established. Code Civ. Proc. § 437c(o)(1). As noted above, Plaintiffs are unable to establish the
essential element of causation, because they lack evidence to establish that decedent was ever
exposed to asbestos attributable to a Hill Brothers product.

A defendant moving for summary judgment in an asbestos-related action may rely upon the
absence of evidence that the plaintiff was exposed to a defendant’s asbestos-containing product to
shift the burden of proof to the plaintiff to establish causation. Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 780. Therefore, a defendant moving for summary judgment may meet its
initial burden of production by showing that a plaintiff lacks evidence to establish a necessary
element of a cause of action through the use of factually-devoid discovery responses and deposition
testimony. The burden of proof then shifts to the plaintiff to present evidence showing that it is more
likely than not that a triable issue of material fact exists. Aguilar v. Atlantic Richfield Co. (2001) 25
Cal 4th 826, 853-54; Saclzler, supra, 25 Cal.4th at 780-81.

In this case, none of the six plaintiffs were able to provide any product identification
information regarding Hill Brothers, nor do they possess any information or documents to support
their contention that decedent was ever exposed to any asbestos attributable to Hill Brothers. (UMFs
1-14) The burden has now shifted to plaintiffs to establish that decedent was exposed to asbestos
attributable to Hill Brothers. As has been shown above, plaintiffs have been completely unable to

meet this burden. Therefore, Hill Brothers is entitled to summary judgment as a matter of law.

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‘MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HILL BROTHERS CHEMICAL COMPANY'S MOTION FOR
‘SUMMARY JUDGMENT;4@ASE NO. CGC-05-443236B. _ Plaintiffs Cannot Produce Any Material Facts To Meet Their Burden Of
Affirmatively Showing That Decedent Was Exposed To Any Asbestos-
Containing Product(s) or Material(s) Attributable To Hill Brothers.

Plaintiffs bear the burden of proving that Hill Brothers’ conduct contributed to decedent’
alleged asbestos-related injury. See Rutherford v. Owens-illinois, Inc. (1997) 16 Cal.4th 953, 975-76;
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416, A plaintiff may prove
causation by showing that his exposure to asbestos-containing products attributable to a defendant
‘was a substantial factor in contributing to the aggregate dose of asbestos that the plaintiff inhaled,
and was therefore a contributing factor to the risk of developing asbestos-related disease. Rutherford,
supra, at pp. 976-77. A number of relevant factors are considered when assessing whether a
particular asbestos exposure was a substantial factor in causing the alleged injury. Among those are
the frequency and regularity of exposure due to the activities of a particular defendant and the
proximity of the asbestos-containing products to the injured person. Lineaweaver, supra, at 1416
(citing Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 85, disapproved on other grounds by
Camargo v. Tjaarda Dairy, 25 Cal.4th 1235).

In Smith v. ACandS, Inc., supra, the court held that, at a minimum, if reasonable inferences
cannot be drawn to support the conclusion that plaintiff was exposed to defendant’s asbestos-
containing material, then there is no proof of causation. Id. at 89. “[E]ven under the most lenient
causation standards, there must be proof that the defendants asbestos products or activities were
present at plaintiffs work site.” Jd. In the instant action, there is no frequency of contact, no
regularity of contact, and no proximity to any asbestos manufactured or supplied by Hill Brothers
because there is no evidence that decedent ever worked with or around a Hill Brothers product.

A plaintiff must also “prove exposure to asbestos products of a type supplied by defendants.” Dumin
v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 658. In Dumin, plaintiff claimed
exposure to the Owens-Corning Fiberglas (“OCF”) product “Kaylo” while working aboard two
ships. Dumin could not identify Kaylo as one of the asbestos products to which he was exposed and

instead relied upon circumstantial evidence to establish the exposure. Specifically, Dumin relied on

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MEMORANOUM OF POINTS AND AUTHORITIES IN SUPPORT OF HILL BROTHERS CHEMICAL COMPANY'S MOTION FOR
SUMMARY JUDGMENT;EASE NO. CGC-05-443236evidence establishing that Kaylo was customarily used at the shipyards where repairs were made on
the two ships on which he served, OCF provided evidence which established that Kaylo was only
one of many insulation products used at Dumin’s place of work. A partial directed verdict was
entered in favor of OCF based on Dumin’s failure to prove exposure to the defendant's product. The
Court of Appeal affirmed, noting that “a conclusion that Durnin was exposed to OCF Kaylo while
aboard the {ship] POCONO in 1953 and 1954 would require a stream of conjecture and surmise.”
Dumin, supra, 28 Cal.App Ath at 656.

Similarly in the present case, plaintiffs have been unable to produce any direct evidence, of
any type, supporting their contention that decedent was exposed to asbestos-containing products or
materials manufactured or supplied by Hill Brothers. They do not even allege any specific material
that decedent was allegedly exposed to and they have not provided one document or witness
(including plaintiff3 themselves) able to directly support that contention has been identified. (UMFs
1-14).

Cc Hill Brothers Has Shown That A Necessary Element Of Each Of Plaintiffs”
Causes Of Action Cannot Be Established.

In this case, plaintiffs are unable to establish causation because they possess no evidence
whatsoever that decedent was ever exposed to any Hill Brothers’ asbestos, California Code of Civil
Procedure section 437¢ provides that summary judgment is proper when the moving party
establishes that at least one element of the cause of action cannot be established. Cal. Code Civ.
Proc. § 437c, subds, (n)(1). (“a cause of action has not merit if. .. one ot more of the elements of the
cause of action cannot be separately established.”), Here, Plaintiffs action has no merit because they
are unable to establish any causal nexus between plaintiff's alleged injuries and Fill Brothers since
there is no factual evidence to support plaintiffs general allegations that he was exposed to asbestos-
containing products linked to Hill Brothers.

Hill Brothers pursued discovery on the issue of causation. Hill Brothers propounded standard
General Order interrogatories, special interrogatories and extensively deposed plaintiffs. Hill
Brothers’ questions at plaintiffs’ depositions were aimed specifically at each’s ability to place Hill

Brothers” products at any occupational site, ship or shipyard. The evidence demonstrates that
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HILL BROTHERS CHEMICAL COMPANY'S MOTION FOR
SUMMARY JUDGMENT; GASE NO. CGC-05-443236plaintiff's cannot.

The evidence presented in this motion establishes plaintiff's inability to prove that Hill
Brothers caused injury to his person. Defendant is able to rely on plaintiff's factually devoid
responses to discovery in moving for summary judgment. Hunter v, Pacific Mechanical Corp.,
supra, 37 Cal.App Ath at p. 12885 Leslie G. v. Perry & Assoc., (1996) 43 Cal.App.4th 472, 482:
Union Bank y. Superior Court, (1995) 31 Cal-App.4th 573, 589-590. ‘Therefore, the burden shifts to
plaintiff to show that a triable issue of material fact exists. Cal. Code Civ. Proc. § 437c, subds. (0)(2);
Hunter v. Pacific Mechanical Corp, supra, 37 Cal.App-Ath at p. 1286.
IV. CONCLUSION

Plaintiffs have not and can not produce any evidence that could reasonably support the

conclusion that a product containing Hill Brothers’ asbestos caused decedent's asbestos related
disease. The absence of evidence of exposure to any Hill Brothers product mandates the entry of
judgment for movant. Cal. Code Civ. Proc. § 4376.

Based upon the foregoing, Hill Brothers respectfully requests that the motion for summary

judgment be granted in its entirety and that judgment be entered in favor of this defendant.

Dated: March 29, 2007 VASQUEZ & ESTRADA.

RISTY LSA
‘Attomeys for SS
HILL BROTHERS CHEMICAL COMPANY

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"MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HILL BROTHERS CHEMICAL COMPANY'S MOTION FOR
‘SUMMARY JUDGMENT; EASE NO. CGC.05-443236