Motion,Ex Parte: HAROLD KOEPKE et al VS. FORD MOTOR COMPANY et al

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                                David R. Ongaro (State Bar No. 154698)
David.Ongaro@tklaw.com

Susan Q. Haines (State Bar No. 224611)
Susan. Haines@tklaw.com

Nevin C, Brownfield (State Bar No. 225175)
Nevin.Brownfield@tklaw.com
THOMPSON & KNIGHT LLP

50 California Street, Suite 3325

San Francisco, CA 94111

Telephone: (415) 433-3900

Facsimile: (415) 433-3950

Attorneys for Defendant

HONEYWELL INTERNATIONAL INC., f/k/a
AlliedSignal Inc., successor-in-interest to

The Bendix Corporation

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAY 12 2014

Clerk of the Court
BY: EDNALEEN JAVIER
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

HAROLD KOEPKE AND NANCY KARDIS-
KOEPKE,

Plaintiffs,
vs.
FORD MOTOR COMPANY, et al.,

Defendants.

Case No. CGC-13-276217

DEFENDANT HONEYWELL
INTERNATIONAL INC.’S INDEX OF
EVIDENCE IN SUPPORT OF MOTION
FOR SUMMARY ADJUDICATION

Date: June 10, 2014

Time: 9:30 a.m.

Dept.: 503

Judge: Hon. Teri L. Jackson

Complaint filed: December 3, 2013
Trial date: June 16, 2014

1

HONEYWELL’S INDEX OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATIONINDEX OF EVIDENCE

Exhibit Description

Declaration of Nevin C. Brownfield in Support of Defendant Honeywell

A International Inc.’s (“Honeywell”) Motion for Summary Adjudication
1 Plaintiffs’ Complaint for Damages filed on December 3, 2013
2 Honeywell’s Answer to Plaintiffs’ Complaint filed in this matter.
3 Honeywell’s First Set of Special Interrogatories to Plaintiff Harold
: Koepke
4 Plaintiff Haold Koepke’s Responses to Honeywell’s First Set of

Interrogtories.

Honeywell’s First Set of Requests For Production of Documents to
5. Plaintiff Harold Koepke

Plaintiff Harold Koepke’s Responses to Honeywell’s First Set of

6. Requests for Production of Documents.
7 Decision in Doris Dukes v. Pneumo Abex Corp. et al., 386 Ill.App.3d
: 425, 900 N.E.2d 1128 (Ill. Ct. App. 2008).
Decision in Honeywell Int'l Inc. v. Stephen Guilder, et al., 23 80.34
8. 867 (3d Dist. Fla. 2009).
Deposition of Joel B. Charm in Webb v. Advocate Mines Limited, Case
9. No. BC436063, Los Angeles County, CA on December 21, 2010.
Deposition of Eugene Rogers in St. Jacques v. Johns-Manville, Case
10. No. C-127 465, Los Angeles County, CA on January 5, 1984.
Dated: May 12, 2014 THOMPSON ( KNIGHT LLP

By: AoC
fevin C. {yo

Attorneys for Defenduint

HONEYWELL INTERNATIONAL INC.
fik/a AlliedSignal Inc., Successor-in-
Interest to The Bendix Corporation

2

HONEYWELL’S INDEX OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATIONEXHIBIT ADavid R. Ongaro (State Bar No. 154698)
David. Ongaro@tklaw.com

Susan Q. Haines (State Bar No. 224611)
Susan.Haines@tklaw.com

Nevin C. Brownfield (State Bar No. 225175)
Nevin.Brownfield@tklaw.com
THOMPSON & KNIGHT LLP

50 California Street, Suite 3325

San Francisco, CA 94111

Telephone: (415) 433-3900

Facsimile: (415) 433-3950

Attorneys for Defendant

HONEYWELL INTERNATIONAL INC.,, f/k/a
AlliedSignal Inc., successor-in-interest to

The Bendix Corporation

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

HAROLD KOEPKE AND NANCY KARDIS-
KOEPKE,

Plaintiffs,
vs.
FORD MOTOR COMPANY, et al.

Defendants.

L Nevin C. Brownfield, declare as follows:

Case No, CGC-13-276217

DECLARATION OF NEVIN C.
BROWNFIELD IN SUPPORT OF
DEFENDANT HONEYWELL
INTERNATIONAL INC.’S MOTION FOR
SUMMARY ADJUDICATION

Date:

Time:
Dept.:
Judge:

June 10, 2014

9:30 a.m.

503

Hon. Teri L. Jackson

Complaint filed: December 3, 2013
Trial date: June 16, 2014

1, fam counsel licensed to practice law in California. I am an attorney with the law

firm of Thompson & Knight LLP, attorneys of record for defendant Honeywell International Inc.

(“Honeywell”) in the above captioned matter. | am one of the attorneys working on the defense of

this matter for Honeywell. The facts set forth herein are of my own personal knowledge and if

called upon to testify, 1 could and would do so competently. | submit this declaration in support of

Honeywell’s Motion for Summary Adjudication (“Motion”).

2, Attached as Exhibit 1 is a true and correct copy of Plaintiffs’ Complaint for

Damages filed on December 3, 2013 in the above-captioned matter.

1

DECLARATION EN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION3. Attached as Exhi
Plaintiffs’ Complaint filed in 1
4, Attached as Exhi
Interrogatories to Plaintiff Haro!
3. Attached as Exhi
Responses to Honeywell’s First

6. Attached as Exhil

it 2 is a true an

¢ above-captioned matter.

bit 3 is a true and

it 4 is a true an
Set of Interrogatories served in t

bit 5 is a true and correct copy o

correct copy of Honeywell’s Answer to

correct copy of Honeywell’s First Set of Special
id Koepke served in the above-captioned matter.

correct copy of Plaintiff Harold Koepke

he above-captioned matter.

Honeywell’s First Set of

Requests for Production of Documents to Plaintiff Harold Koepke served in the above-captioned

matter.

7. Atiached as Exhil
Responses to Honeywell’s First
captioned matter.

8. Attached as Exhil

‘it 6 is a true and correct copy o

Plaintiff Harold Koepke’s

Set of Requests for Production of Documents served in the above-

bit 7 is a true and correct copy 0

the decision in Doris Dukes v.

Pneumo Abex Corp. et al., 386 I_App.3d 425, 900 N.E.2d 1128 (IIL. Ct. App. 2008).

9. Attached as Exhibit 8 is a true and correct copy of the decision in Honeywell Int’!

Inc. vy. Stephen Guilder, et al.,
0. Attached as Ex’

23 So.3d 867 (3d Dist. Fla. 2009).

ibit 9 is a true and correct copy of the relevant portions of the

Deposition of Joel B. Charm in Webb v. Advocate Mines Limited, Case No. BC436063, Los

Angeles County, CA on December 21, 2010.

1. Attached as Ex

ibit 10 is a true and correct copy of the relevant portions of the

Deposition of Eugene Rogers in St. Jacques v. Johns-Manville, Case No. C-127 465, Los Angeles

County,

CA on January 5, 1984.

2. Attached hereto as Exhibit 11 are true and correct copies of the relevant portions of

the Deposition of Harold Koepke, taken on January 27, 2014, and January 28, 2014, in the above

captioned matter.

3. Attached hereto as Exhibit 12 is a true and correct copy of the relevant portions of

the Deposition of Joel Charm in Johney Larimore v. American Honda Motor Co. Inc., Missouri

Circuit Court, 22nd Judicial Circuit, Case No. 1022-CC01768, taken March 29, 2011.

2

DECLARATION EN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION14. Attached hereto as Exhibit 13 is a true and correct copy of 29 C.F.R.
lot 0.93a(g)(2).

15. Attached hereto as Exhibit 14 is a true and correct copy of 29 C.P.R.
1910,1001@)(4).

16. Further, Honeywell anticipates in their opposition, plaintiffs will identify (1) a
purported letter dated September 29, 1966 from N. Hendry to E.A. Martin, and (2) a purported
memo dated October 19, 1966 from E.A. Martin to Harry Stolar.

I declare under the penalty of perjury under the laws of the State of California that the

foregoing is true and correct, and that this declaration was executed on May 12, 2014, in San

Nu Cb

Nevin C. Brownfield

Francisco, California.

3

DECLARATION IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATIONEXHIBIT 1LYONS,
GREENWOOD & 26
Harvey, PLC

Loepon MAREE

bo
se Hannison StREEt,
‘Sun 400 7

‘CROSCHN270638.1

Joseph D, Satterley, Esq. (C.S.B. #286890)

jsatterley@kazanlaw.com oe cot
Carole M. Bosch, Esq. (C.S.B. #239790) Fe De
cbosch@kazanlaw.com es \ Vegas 3
KAZAN, McCLAIN, SATTERLEY, LYONS, Se" ays ot
GREENWOOD & OBERMAN ae og bY oo
A Professional Law Corporation # ee «ees oe
Jack London Market o eg’
55 Harrison Street, Suite 400 ate
Oakland, California 94607 o _
Telephone: (510) 302-1000 : oe
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
“COUNTY OF SAN FRANCISCO
HAROLD KOEPKE and NANCY KARIDIS- No. 24 2 a! a
KOEPKE, CGG=4 3-27 6247
COMPLAINT FOR PERSONAL
Plaintiffs, INJURIES; NEGLIGENCE;
BREACH OF WARRANTIES;
vs. STRICT LIABILITY; FRAUD;
: CONSPIRACY; PREMISES
FORD MOTOR COMPANY; A.B.C, MOBILE LIABILITY; AND LOSS OF

SYSTEMS, individually and as successor in interest, | CONSORTIUM

parent, alter ego, and equitable trustee of “ .
ASSOCIATED BRAKE COMPANY and WESTERN | Code of Civil Procedure §36(d)
STATES BRAKE MANUFACTURING; :

AMERICAN HONDA MOTOR CO. INC.; BELL

INDUSTRIES INC., individually and as successor in
interest, parent, alter ego, and equitable trustee of
ROX AUTOMOTIVE; BELNORTEL
CORPORATION, d.b.a. A.B.C, MOBILE BRAKE
OF SAN FRANCISCO; BORGWARNER MORSE
TEC .INC., individuaily and as successor in interest,
parent, alter ego and equitable trustee of
BORG-WARNER CORPORATION;
BURLINGAME AUTO SUPPLY; CONTINENTAL
AUTOMOTIVE SYSTEMS, INC., individually and
as successor in interest, parent, alter ego and equitable
trustee of CONTINENTAL TEVES, INC.; COOPER,
INDUSTRIES, LLC, individually and as successor in
interest, alter ego and equitable trustee of PNEUMO
ABEX, LLC and ABEX CORPORATION; DON L.
MORRIS, INC.; FMC CORPORATION-JOHN
BEAN AUTOMOTIVE EQUIPMENT SERVICE
DIVISION; FMC TECHNOLOGIES, INC.,
individually and as successor in interest, parent, alter
ego, and equitable trustee of JOHN BEAN
AUTOMOTIVE EQUIPMENT SERVICE DIVISION
of FMC CORPORATION; FOLSOM AUTO
SUPPLY; GENUINE PARTS COMPANY; H.M.

COMPLAINT FOR PERSONAL INJURIESROYAL, INC.; HONEYWELL INTERNATIONAL,
2 | JINC., tka ALLIED SIGNAL, INC., as Successor-In-
Interest to the BENDIX CORPORATION;

‘| KELSEY-HAYES COMPANY; LEAR SIEGLER
DIVERSIFIED HOLDINGS CORP., individually and
4 |/88 Successor in interest, parent, alter ego and equitable
trustee of ROYAL INDUSTRIES, INC.; LES VOGEL
CHEVROLET COMPANY; MORTON
INTERNATIONAL, LLC, formerly known as

6 | MORTON INTERNATIONAL, INC., individually.
and as successor in interest, parent, alter ego and
equitable trustee of THIOKOL CORPORATION;
NATIONAL AUTOMOTIVE PARTS

g | ASSOCIATION; PARKER HANNIFIN
CORPORATION, individually and as successor in

9 interest, parent, alter ego and equitable trustee of EIS
BRAKE PARTS AND INDUSTRIAL &
AUTOMOTIVE ASSOCIATES, INC,, d.b.a. CALI-
BLOCK; PNEUMO ABEX LLC, individually and as

. 1] successor in interest, parent, alter ego and equitable
trustee of ABEX CORPORATION; ROX
AUTOMOTIVE; SHELL OIL COMPANY;
SPECIALTY FOREIGN AUTO PARTS, INC.

B individually and as successor in interest, parent, alter
ego and equitable trustee of SPECIALITY FOREIGN
AUTO PARTS; THE BUDD COMPANY; THE
HERTZ CORPORATION; VOLKSWAGEN GROUP
OF AMERICA, INC.; TOYOTA MOTOR SALES, |.
U.S.A., INC.; W. BERRY HURLEY
CORPORATION, d.b.a. FEDERAL AUTO PARTS,
METROPOLITAN LIFE INSURANCE COMPANY;
FIRST DOE through FOUR HUNDREDTH DOE,
inclusive, .

ua

wv

Defendants.

20 Plaintiff HAROLD KOEPKE alleges:

21 : FIRST CAUSE OF ACTION
- dt. : Negligence
22 : _ [Against All Products Defendants}

23 Lo
24 Plaintiff Harold Koepke brings this action on his own behalf. The masculine form as used

Kazan, Meum, 2 fin this complaint, if applicable as shown by the context hereof, applies to a female person or a

LYONS,
GREENWOOD & .
Harvey,pic 26 | corporation.

Hex LonOn Mar
SS HARRISON STREET,

sue209 27 Ht //

i510) 05-728
Fax(Si0yansaaia 28 “Ht /f

COMPLAINT FOR PERSONAL INJURIES .
c90scH1770698.1 : 224

razan, team, 25
Lyons,
GREENWOOD &
Haney Pic 26

CaRAND, CA $4807
{810) 302-1000.

(610) 465.7728
Fax (5iopess2a13 28

Ca0s0H1270638.1

Il.
Plaintiff does not know the true names and capacities, whether corporate, associate or

individual of defendants sued herein as FIRST DOE through TWO HUNDRED TENTH DOE,

inclusive, and each of them, and for that reason prays leave to insert the true names and capacities

of said defendants when the same are ascertained. Plaintiff is informed and believes and therefore
alleges that each of the defendants designated herein as a DOE is negligently, intentionally and/or
strictly liable or responsible in some manner for the events and happenings herein referred to, and
proximately caused injury and damages to plaintiff thereby as herein alleged.
: mL.
At all times herein mentioned, each of the defendants was the agent and employee of each
of the remaining defendants, and was at all times acting within the purpose and scope of said
agency and employment, and each defendant has ratified and approved the acts of the remaining
defendants.
Iv.
Defendants FORD MOTOR COMPANY; A.B.C. MOBILE SYSTEMS, individually and

as successor in interest, parent, alter ego, and equitable trustee of ASSOCIATED BRAKE
COMPANY and WESTERN STATES BRAKE MANUFACTURING; AMERICAN HONDA
MOTOR CO. INC.; BELL INDUSTRIES INC., individually and as successor in interest, parent,
alter ego, and equitable trustee of ROX AUTOMOTIVE; BELNORTEL CORPORATION, d.ba.
A.B.C. MOBILE BRAKE OF SAN FRANCISCO; BORGWARNER MORSE TEC INC.,
individually and as successor in interest, parent, alter ego and equitable trustee of
BORG-WARNER CORPORATION; BURLINGAME AUTO SUPPLY; CONTINENTAL
AUTOMOTIVE SYSTEMS, INC, individually and as successor in interest, parent, alter ego and
equitable trustee of CONTINENTAL TEVES, INC.; COOPER INDUSTRIES, LLC, individually’
and as successor in interest, alter ego and equitable trustee of PNEUMO ABEX, LLC and ABEX
CORPORATION; DON L. MORRIS, INC.; FMC CORPORATION--JOHN BEAN
AUTOMOTIVE EQUIPMENT SERVICE DIVISION; FMC TECHNOLOGIES, INC.,

individually and as successor in interest, parent, alter ego, and equitable trustee of JOHN BEAN

COMPLAINT FOR PERSONAL INJURIES 324

‘KAZAN, MCCLAIN, 25
LYONS,
Greenwoce &
Maney. PLC| 20

(550) 465.7728
Fax 510)835.4913 28

CBOSCHNZ70638 +

AUTOMOTIVE EQUIPMENT SERVICE DIVISION of FMC CORPORATION; FOLSOM
AUTO SUPPLY; GENUINE PARTS COMPANY; H.M. ROYAL, INC.; HONEY WELL
INTERNATIONAL, INC., fka ALLIED SIGNAL, INC., as Successor-In-Interest to the BENDIX
CORPORATION; KELSEY-HA YES COMPANY; LEAR SIEGLER DIVERSIFIED HOLDINGS
CORP., individually and as successor in interest, parent, alter ego and equitable trustee of ROYAL
INDUSTRIES, INC.; LES VOGEL CHEVROLET COMPANY; MORTON INTERNATIONAL, ,
LLC, formerly known as MORTON INTERNATIONAL, INC., individually and as successor in -
interest, parent, alter ego and equitable trustee of THIOKOL CORPORATION; NATIONAL
AUTOMOTIVE PARTS ASSOCIATION; PARKER HANNIFIN CORPORATION, individually
and as successor in interest, parent, alter ego and equitable trustee of EIS BRAKE PARTS AND
INDUSTRIAL & AUTOMOTIVE ASSOCIATES, INC., d.b.a, CALI-BLOCK; PNEUMO ABEX.
LLC, individually and as successor in interest, parent, alter ego and equitable trustee of ABEX
CORPORATION; ROX AUTOMOTIVE; SHELL OIL COMPANY; SPECIALTY FOREIGN
AUTO PARTS, INC. individually and as successor in interest, parent, alter ego and equitable
trustee of SPECIALITY FOREIGN AUTO PARTS; THE BUDD COMPANY; THE HERTZ,
CORPORATION; VOLKSWAGEN GROUP OF AMERICA, INC.; TOYOTA MOTOR SALES,
U.S.A., INC; W. BERRY. HURLEY CORPORATION, d.ba. FEDERAL AUTO PARTS;
METROPOLITAN LIFE INSURANCE COMPANY; FIRST DOE through FIFTIETH DOE,
inclusive, were at all times herein and still are corporations authorized to and doing business in the

State of California.
Vv.

. Defendants’ products at issue in this complaint consist of asbestos and asbestos-containing
products, or products as to which defendants knew or should have known that reasonably
foreseeable uses of the products would expose persons such as plaintiff who worked with or
around the products to friable asbestos. These products were defective in their design,
manufacture, labeling, marketing and/or warning and are referred to throughout this complaint as

“asbestos” or “asbestos-containing products.”

i

‘COMPLAINT FOR PERSONAL INJURIES : 4BR w&

Vi

At all times herein mentioned defendants, and each of them, were engaged in the business
of mining, manufacturing, assembling, supplying, packaging, installing and labeling asbestos, and
products produced therefrom, for sale to and use by the members of the general public as well as to
other parties for use of the said products to manufacture and supply products therefrom.

vil. :

Atall times herein mentioned, defendants FIFTY-FIRST DOE through TWO HUNDRED
TENTH DOE were Officers and Directors of named defendants herein as FIRST DOE through
FIFTIETH DOE.

, VIL

The defendants, and each of them, acting through their agents, servants and/or employees,
cause and have caused in the past, certain asbestos-containing products and asbestés-related
materials, to be placed in the stream of commerce with the result that said products and materials
came into contact and/or use by plaintiff and his co-workers which caused exposure to plaintiff.

Ix.

Plaintiff Harold Koepke was a worker who, from approximately 1971 until 2002 worked
with and was exposed to asbestos, asbestos products and asbestos-related building materials
mined, manufactured, processed, imported, designed, specified, converted, compounded, sold
and/or installed by the defendants, and each of them. During the course of his career, plaintiff was
exposed to asbestos and asbestos-containing materials at the following employments and sites:

(1) From approximately 197] through 1980, while working at Shell Service Station in

San Francisco, California;

{2} From approximately 1980 through 2002, while working at Harold’s Automotive in

24

kazan, MoCuan, 25
Lyons,

Grgenwoon& 4

turey,pic 26

Oamuano, CA 946:
4810) 302-4000
(510) 465-7728

Fan 619) 635-4013 28

‘CBOSCHIZ70638.1

_ San Mateo, California;
Plaintiff was also exposed to asbestos and asbestos-containing products through repair,
maintenance and servicing of motor vehicles.
a
“

COMPLAINT FOR PERSONAL INJURIES 5Kazan, Meccan, 25
Lyons,
‘Greenwoon &

1 , xX.

2 During the course and scope of his attendance and work, plaintiff was exposed to asbestos
3 products and asbestos-related materials of defendants, which exposure directly and proximately

4 Ilcaused him to develop an illness known and designated as mesothelioma.

5 XI.

6 The illness and disability of plaintiff is the direct and proximate result of the negligence of
7 |\the defendants, and each of them, in that they produced, sold and otherwise put into the stream of
8 commerce, the foregoing materials which the said defendants, and each of them, knew, or in the

9 || exercise of ordinary care should have known, were deleterious, poisonous and highly harmful to

10 plaintiff's body, lungs, respiratory system, skin and health.

i : xi.

12 Plaintiff, exercising reasonable diligence, discovered the aforealleged conduct, misconduct
13 jland-culpability of defendants, and each of them, on or about or after August 10,2013, when

14 |jinformed of his diagnosis by a physician. Plaintiff could not have discovered such condition

15 |{sooner because such condition was brought about without noticeable trauma until it had advanced

16 |Ito such a point that diagnosis could be made. Such a diagnosis required the services of an expert,

17 land since plaintiff did not possess such expertise, he could not know, in the exercise of reasonable
18 |icare, of the cause of his injury until such time as he was diagnosed and advised. Plaintiff could not
19 || know, until such advice, of the culpability of the defendants, and each of them.

20 XIU.

2) Asa direct and proximate result of the conduct of the defendants, and each of them,

22 plaintiff experienced and continues to experience prolonged pain and suffering, the necessity for
23 Ilmedical treatment, injuries including, but not limited to, mesothelioma, severe shock to his
24 nervous system, and other injuries, the exact extent of which are unknown to plaintiff.

XIV.

Haney.PLC 26 By reason of the aforesaid allegations, it has been necessary for plaintiff to engage the

55 HARRISON STREET,

OnxrAnD, CA 84607
(880) 302-1000
(510) 485-7728

Fax (510) 635-4913

ex Lona
‘SUE.

ROSCHZ70638.1

27 [jservices of physicians, surgeons, and hospitals; plaintiff does not know the reasonable value of

28 |

COMPLAINT FOR PERSONAL INJURIES . 624

GreENwoon &
Manuey,PLC | 20

(510) 465-77 28
Fax (510) 935-4813 28

CROSCH1770638.1

said services which were and are still reasonably required and requests leave to amend this
complaint to insert said sum when it is ascertained.
XV.

By reason of the aforesaid allegations, plaintiff has been unable to follow his normal
gainful occupation for certain periods after the date of said events, and plaintiff has been disabled
for an indefinite time; plaintiff does not now know the value of the employment which has been
lost to him, and requests leave to amend this complaint to insert the reasonable value thereof when

such is ascertained.

XVI.

By reason of the aforesaid negligence of defendants, and each of them, plaintiff has been
damaged to his health, strength, and activity in an amount in excess of $50,000.00 in addition to
special damages herein alleged. :

, XV.

The foregoing acts of the defendants, and each of them, were done wantonly, willfully,
oppressively and in conscious disregard of the safety of plaintiff herein, in that the defendants, and |
each of them, prior to and at the time of the sale of the aforementioned products to plaintiff's
employers or to those éntities that installed and/or handled the asbestos products to which plaintiff
was exposed, knew that the foregoing materials released invisible, undetectable respirable asbestos
fibers when installed or handled and that said fibers were extremely dangerous when inhaled. The
defendants, and each of them, either did not wam or insufficiently wamed regarding the dangerous
nature. of said materials, nor placed a sufficient warning on the said material or package thereof
regarding said dangerous nature, nor took any action to protect those persons who foreseeably
would be exposed to said asbestos products, despite knowing that persons who had no knowledge
of the dangerous and hazardous nature thereof, such as plaintiff, would be exposed to and inhale
asbestos fibers, and plaintiff is entitled to punitive damages hereunder.

WHEREFORE, plaintiff prays judgment as is hereinafter set forth.

i

COMPLAINT FOR PERSONAL INJURIES , 124

KAZAN, MCCLAIN, 25
Lyons,

Greenwooo & é

Haney. PLC 20

(510) 455.7728
Fax t510)835-4913 28

Ce0SCHN2706384

SECOND CAUSE OF ACTION
Breach of Implied Warranty
[Against All Products Defendants]

AS AND FOR A SECOND CAUSE OF ACTION, plaintiff complains of defendants, and

each of them, and alleges: , ,
I.

Plaintiff by this reference hereby incorporates and makes a part hereof as though fully set
forth herein at length all and singular the allegations contained in the First Cause of Action herein,
excepting therefrom allegations pertaining to negligence.

: i

‘The defendants sold and/or supplied asbestos and asbestos-related materials to plaintiff or
plaintiff's employers, and each defendant impliedly warranted that the said materials were of good
and merchantable quality and fit for their intended use.

‘i.

The implied warranty made by the defendants, and each of them, that the asbestos and
asbestos-related materials were of good and merchantable quality for the particular intended use
was breached in that certain kammful, poisonous and deleterious matter and particles were. given off
into the atmosphere wherein plaintiff and others in his position carried out their duties as workers
working with such materials and other related materials.

IV.
As a direct and proximate result of the breach of implied warranty of good and

merchantable quality and fitness for the particular intended use, plaintiff developed an illness, to

wit: mesothelioma, which caused great disability, as previously set forth.
¥.
By reason of the aforesaid, plaintiff has been damaged to his health, strength, and activity
in an amount in excess of $50,000.00 in addition to special damages lierein alleged.
WHEREFORE, plaintiff prays judgment as is hereinafter set forth.
“

COMPLAINT FOR PERSONAL INJURIES 8ew Ww

24

Kazan, mecian, 29
LYONS,
GREENWOOD a
Hantey.PLC | 26

{10} 302-1000
G10) 038.7728
ean (p10) as-aa3 28

(CHOSCHI1270628.1

THIRD CAUSE OF ACTION
Strict Product Liability
Manufacturing Defect/Design Defect/Failure ta Warn
[Against All Products Defendants}
AS AND FOR A THIRD CAUSE OF ACTION, plaintiff complains of defendants, and
each of them, and alleges: :
. I
Plaintiff by this reference hereby incorporates and makes a part hereof as though fully set
forth herein at length all and singular the allegations contained in the First Cause of Action herein,
excepting therefrom allegations pertaining to negligence.
IL
At all times herein mentioned, plaintiffs employers or those entities that installed and/or
handled the products to which plaintiff was exposed purchased from defendants, and each of them,
asbestos and asbestos products hereinafter referred to as products that were defective in design,
manufacturing, labeling, marketing and/or warming.
HL
Defendants, and each of them, knew that the aforementioned products would be used
without inspection for design, manufacturing, labeling, marketing and/or warning defects by the
user thereof.
IV.
Atall times mentioned herein, plaintiff reasonably was unaware of the dangerous nature of
the aforementioned products, , ,
y.
Atall times mentioned herein, defendants, and each of them, were aware of the dangerous
and defective nature of the design, manufacturing, labeling and/or marketing of the ,
aforementioned products, when said products were used in the manner for which they were
intended, and were aware that persons who foreseeably would be exposed to the asbestos
containing products were not aware of the dangerous and defective nature of the design,

manufacture, labeling and/or marketing of the products, yet defendants took no action to warn or

COMPLAINT FOR PERSONAL INJURIES . 924

eazan, Mecuan, 25
Gn ‘LYONS,
EEN WOOD &
Haney, PLC 26
JACK LONDON MARET

(610) 465.728
Fax(5i0)e35<913 28

CBOSCHN270638.1

otherwise protect those who foreseeably would be exposed to said defective and improperly
labeled products,
Vi

Defendants manufactured, distributed, and sold asbestos-containing products. The
asbestos-containing products contained a manufacturing defect when they left defendants’
possession, and plaintiff used those asbestos-containing products in a way that was reasonably
foreseeable to defendants.

VIL

The aforementioned products were defective in design because they did not perform as
safely as an ordinary consumer would have expected them to perform. At the time plaintiff used
the asbestos-containing products, they were substantially the same as when they left defendants’
possession; any change made to the asbestos-containing products after they left defendants’ -
possession was reasonably foreseeable to defendants; the asbestos-containing products did not
perform as safely as an ordinary consumer would have expected at the time of use; and plaintiff
used the products in the way that was reasonably foreseeable to defendants.

, VU

The aforementioned products lacked sufficient instructions and warnings of potential
dangers. Defendants manufactured, distributed, and sold asbestos-containing products; those
asbestos-containing products had potential dangers that were known or knowable by the use of
scientific knowledge available at the time of the manufacture, distribution, and sale of the
products; the potential hazards presented a substantial danger to plaintiff, ordinary consumers.
would not have recognized the potential dangers; defendants failed to adequately warn or instruct
of the potential dangers; and these asbestos-containing products were used in a way that, was
reasonably foreseeable to defendants.

/ IX.

The aforementioned products were used by plaintiff in the manner for which they were

intended, or plaintiff foreseeably was exposed to said products when they were used in the manner

for which they were intended.

COMPLAINT FOR PERSONAL INJURIES . 10i k&

2 As a direct and proximate result of the foregoing conduct, plaintiff developed an illness, to
3 || wit: mesothelioma, which caused great disability, as previously set forth.

4 XD

5 As a proximate result of the defective design, manufacturing, labeling, marketing and/or

6 || warning of these aforementioned materials and products, plaintiff was generally damaged as is

7 || more fully set forth herein and in addition has sustained special damages hereinabove alleged.

8 XI.

9 _ The foregoing acts of the defendants, and each of them, were done wantonly, willfully,

10 | oppressively and in conscious disregard of the safety of plaintiff herein, in that the defendants, and
1} leach of them, prior to and at the time of the sale of the aforementioned products to plaintiff's

12 [employers or to those entities that installed and/or handled the asbestos products to which plaintiff
13 || was exposed, knew that the foregoing products and materials released invisible, undetectable

14 | respirable asbestos fibers when installed or handled and that said fibers were extremely dangerous

15 when inhaled. The defendants, and each of them, either did not warn or insufficiently warned

regarding the dangerous nature of said materials, nor placed ‘a sufficient warning on the said
material or package thereof regarding said dangerous nature, nor took any action to protect those

persons who foreseeably would be exposed to said asbestos products, despite knowing that persons

WHEREFORE, plaintiff prays judgment as is hereinafter set forth. ~
’ FOURTH CAUSE OF ACTION

Fraud/Failure to Warn
[Against AH Products Defendants]

AS AND FOR A FOURTH CAUSE OF ACTION, plaintiff complains of defendants, and

| each of them, and alleges:

ielaeeryae
4810) 465-728
sarioieseans 28 //

COMPLAINT FOR PERSONAL INJURIES .
‘CBOSCH/1270538.1 iGREENWOOD &
Hanuey.PLC | 26
otietocn hwo
56 Hanfeson Street,
Sune400 D7
Oaxvann, CA 84807
#510) 502-1000

510) 405.7728
Fax (510; 6354913 28

CBOSCHNZ70638.1

L

Plaintiff by this reference hereby incorporates and makes a part hereof as though fully set
forth herein at length all and singular the allegations contained in the First Cause of Action herein,
excepting therefrom allegations pertaining to negligence.

Ii.

At all times pertinent hereto, the defendants, and each of them, owed plaintiff a duty, as
provided for in Sections 1708 and 1710 of the Civil Code of the State of California, to abstain
from injuring the person, property or rights of the plaintiff. In violation of that duty, the
defendants, and each of them, did do the acts and omissions, when a duty to act was imposed, as
set forth herein, thereby proximately causing injury to the plaintiff as is more fully set forth herein.
Such acts and omissions consisted of acts falling within Section 1710, and more specifically were
suggestions of fact which were not true and which the defendants did not believe to be true,
assertions of fact of that which was not true, which the defendants had no reasonable ground for
believing it to be true, and the suppression of facts when a duty existed to disclose it, all as are
more fully set forth herein, and the violation of which as to any one such item gave rise to a cause
of action for violation of the rights of the plaintiff as provided for in the aforementioned code
sections, : : :

TEL
Since 1924, the defendants, and each of them, have known and have been possessed of the

true facts consisting of medical and scientific data and other knowledge which clearly indicated

_|| that the materials and products referred to herein were and are hazardous to the health and safety

of the plaintiff, and others in plaintiff's position working in close proximity with such materials”
and have known of the dangerous propensities of other of the aforementioned materials and
products prior to that time and with intent to deceive plaintiff, and others in his position and with
intent that he and such others should be and remain ignorant of such facts and with intent to induce
plaintiff and such others to alter their positions to their injury and/or risk and in order to gain
advantages did do the following acts:

uf

COMPLAINT FOR PERSONAL INJURIES yD{540} 302-1000,
{s10)<05-7728
raxcsioje3s4013 28

CBOSCHI1270638.1

Defendants, and each of them, did not label any of the aforementioned asbestos-

containing materials and products as to the hazards of such materials and products
to the health and safety of plaintiff and others in his position working in close
proximity with such materials until 1964, when certain of such materials were
labeled by some, but not all, of the defendants herein, when the knowledge of such
hazards was existing and known to defendants, and each of them, since 1924. By

not labeling such materials as to their said hazards defendants, and each of them,

_ caused to be suggested as a fact to plaintiff and plaintiff's employers that it was safe

for plaintiff to work in close proximity to such materials when in fact it was not
true and defendants did not believe it to be true;

Defendants, and each of them, suppressed information relating to the danger of use
of the aforementioned materials by requesting the suppression of information to
plaintiff and the general public concerning the dangerous nature of the
aforementioned materials to workers by not allowing such information to be
disseminated in a manner which would give general notice to the public and
knowledge of the hazardous nature thereof when defendants were bound to disclose
such information; :
Defendants, and each of them, sold the aforementioned products and materials to
plaintiff's employers and others without advising such employers and others of the
dangers of use of such materials to persons working in close proximity thereto,
when defendants knew of such dangers, as set forth herein, and, as set forth above,
had a duty to disclose such dangers. Thereby, defendants caused to be positively
asserted to plaintiff's employers of that which was not true and which defendants
had no reasonable ground for believing it to be true, in a manner not warranted by
the information possessed by said defendants, and each of them, of that which was
and js not true, to wit, that it was safe for plaintiff to work in close proximity to

such materials;

COMPLAINT FOR PERSONAL INJURIES B24

Kazan, Mociam, 25
Lyons,
GREENWOOD &
Maney.pic| 26:

(590) 302-1000
(590) 465-7728 -
Fax (oroyessanns 28

CBOSCHIZI0638.1

Defendants, and each of them, suppressed from everyone, including plaintiff and
plaintiff's employers, and continue to suppress, medical and scientific data and
knowledge of the accurate results of studies including, but not limited to,
suppressing information contained inthe unpublished Lanza report by participating
in the influencing of A.J. Lanza to change his report, which altered version was :
published in Public Health Reports, Volume 50 at page | in 1935, when they were
bound to disclose it unaltered, and by causing Asbestos Magazine, a widely
disseminated trade journal, to omit any mention of the dangers of inhaling asbestos
dust, thereby lessening the probability of notice of danger to those exposed to
asbestos, and thereby caused plaintiff to be and remain ignorant thereof,
Defendants, and each of them, belonged to, participated in, and financially
supported the Asbestos Textile Institute and other industry organizations which
actively promoted the suppression of information of danger to users of the
aforementioned products and materials for and on behaif of defendants, and each of
them, thereby misleading plaintiff and plaintiff's employers to their prejudice
through the suggestions and deceptions set forth above in this cause of action. The
Dust Control Committee, which changed its name to the Air Hygiene Committee,
of the Asbestos Textile Institute was specifically enjoined to study the subject of
dust control; discussions in such committee were held many times of (i) the dangers
inherent in asbestos and the dangers which arise fromthe lack of control of dust
and (ji) the suppression of such information from 1946 to a date unknown to
plaintiff at this time; :

Commencing in 1930 with the study of mine and mill workers at the Thetford
asbestos mines in Quebec, Canada, and the study of workers at Raybestos-
Manhattan plants in Manheim and Charleston, South Carolina, defendants knew
and possessed medical and scientific information of the connection between
inhalation of asbestos fibers and asbestosis, which information was disseminated

through the Asbestos Textile Institute and other industry organizations to all other

COMPLAINT FOR PERSONAL INJURIES . : 424

tozan, Metin, 25
Lyons,
Greenwoon &
HARLEY, PLC 26

(610) 302-1000
(S10) 465.7728
Fax esioyans-aats 28

CHOSCHI 2768.1

defendants, and each of them, herein. Between 1942 and 1950 the defendants, and
each of them, knew and possessed medical and scientific information of the

connection between inhalation of asbestos fibers and cancer, which information

"was disseminated through the Asbestos Textile Institute and other industry

organizations to al! other defendants herein. Thereby, defendants suggested as a
fact that which is not true and disseminated other facts likely to mislead plaintiff
and plaintiff's employers and which did mislead them for want of communication of

true facts which consisted of the aforedescribed medical and scientific data and

” other knowledge by not giving plaintiff or plaintiff's employers the true facts

concerning such knowledge of danger, when defendants were bound to disclose it;
Failed to warn plaintiff and plaintiff's employers of the nature of the said materials,
to wit: dangerous when breathed, causing pathological effects without noticeable
trauma, when possessed with knowledge that such material was dangerous and a

threat to the health of persons coming into contact therewith and under a duty to

” disclose it;

Failed to provide plaintiff with information concerning adequate protective masks

- and devices for use with and application and installation of the products of the

defendants, and each of them, when they knew that such protective measures were

necessary, when they were under a duty to disclose such information, and if not

_ advised as to use would result in injury to the plaintiff and others applying and

installing such materials;

Concealed from plaintiff the true nature of the industrial exposure of plaintiff, the
fact that they and each of them, knew that plaintiff and anyone similarly situated,
upon inhalation of asbestos would, in time develop irreversible conditions of either
pneumoconiosis, asbestosis or cancer, or all, and such person would immediately be

in not good health, the fact that he had in fact been exposed to harmful materials

‘and the fact that the materials to which he was exposed would cause pathological

effects without noticeable trauma, when under a duty to and bound to disclose it;

COMPLAINT FOR PERSONAL INJURIES 15PB win

Kazan, MeCuan, 25
‘Lyons,
Greennoo® 96
Haney, PLC
CR LORE
55 HARRISON STREET,
‘sume 400)’
CAKLAND, CA 84507
(610)302-1000
(510) 485-7728
Fax (510) 836-4019 28

CROSCHAZ70638.1

j. Failed to provide information to the public at large and buyers, users and physicians
employed by plaintiff and plaintiff's employers for the purpose of conducting
physical examinations of plaintiff and others working in contact with asbestos as to
the true nature of the hazards of asbestos, in order for such physicians to diagnose,
and treat workers coming into contact with asbestos, in that the materials to which
plaintiff had been exposed would cause pathological effects without noticeable
trauma, when under a duty to supply such information and such failure is likely to
mislead for want of communication of such facts; and

k. Defendants, and each of them, affirmatively misrepresented that asbestos
containing products were safe to use and handle, when they knew such statements
were false when made, or made said false statements recklessly and without regard
for whether the statements were true.

Iv.

Each of the foregoing acts, suggestions, assertions and forbearances to act when a duty
existed to act, the said defendants, and each of them, having such knowledge, knowing plaintiff
did not have such knowledge and would breathe such material innocently, was done falsely and
fraudulently and with full intent to induce plaintiff to work in a dangerous environment and to -
cause plaintiff to remain unaware of the true facts, all in'violation of Section 1710 of the Civil
Code of the State of California.

v.

Plaintiff relied upon the said acts, suggestions, assertions and forbearances; had plaintiff

known the true facts, plaintiff would not have continued to work in the said environment. ,
VIL

By reason of the aforesaid premises, plaintiff has been damaged in his health, strength and

activity in addition to special damages hereinabove alleged.
VEL.
Each of the said acts and forbearances to act were caused by false, fraudulent and malicious

motives of the defendants, and each of them, and plaintiff is entitled to exemplary and punitive

COMPLAINT FOR PERSONAL INJURIES . 1622
23
24

Kazan, MicCian, 25
Lyons,
Greenwoor &
Haney, PLC 26

OnnLano, GA 94607
310) 302-1000
[b10} 465.7728

Faxis10)6354913 28

COSTHNZ70638.1

damages. The foregoing conduct of the defendants, and each of them, was done wantonly,
willfully, oppressively and in conscious disregard of the safety of plaintiff herein, in that the
defendants, and each of them, prior to and at the time of the sale of the aforementioned products to.
plaintiff's employers or to those entities that installed and/or handled the asbestos products to
which plaintiff were exposed, knew that the foregoing materials released invisible, undetectable
respirable asbestos fibers when installed or handled and that said fibers were extremely dangerous
when inhaled. In addition to the unlawful conduct described above, the defendants, and each of
them, either did not warn or insufficiently wamed regarding the dangerous nature of said materials,
nor placed a sufficient warning on the said material or package thereof regarding said dangerous
nature, nor took any action to protect those persons who foreseeably would be exposed to said
asbestos products, despite knowing that persons who had no knowledge of the dangerous and
hazardous nature thereof, such plaintiff, would be exposed to and inhale asbestos fibers, and
plaintiff is entitled to punitive damages hereunder.
VIL.

Plaintiff had no knowledge that the foregoing acts were actionable at law when they were
committed, and cannot be charged with knowledge or inquiry thereof.

WHEREFORE, plaintiff prays judgment as is hereinafter set forth.

FIRTH CAUSE OF ACTION
Conspiracy
[Against Metropolitan Life Insurance Company
and Does 211-250, Inclusive]
L

Plaintiff hereby incorporates by reference each and every allegation of the preceding causes

of action herein, :
1
The term “conspirators” as used in this cause of action includes, but is not limited to,

METROPOLITAN LIFE INSURANCE COMPANY (“MET LIFE”), Anthony Lanza, M.D.,

27 || Johns-Manville Corporation (“Manville”), Raybestos-Manhattan Corporation (“Raybestos”) and

the other entities and individuals identified in this cause of action.

COMPLAINT FOR PERSONAL INJURIES wt24

Kazan, McGuam, 25
Lyons,
Gaeeswooe &
Harvey, PLC 26

(S10) 302-4000
(510) 455-7728

+ raxisio}6ss-a013 28

CBOSCHHZ70638.1

In.

Plaintiff does not know the true names and capacities, whether corporate, associate or
individual of defendants sued herein as TWO-HUNDRED AND ELEVENTH DOE through TWO
HUNDRED TWENTY-FIFTH DOE, inclusive, and each of them, and for that reason prays leave
to insert the true names and capacities of said defendants when the same are ascertained. Plaintiff
is informed and believes and therefore alleges that each of the defendants designated herein as a
DOE is negligently, intentionally and/or strictly liable or responsible in some manner for the
events and happenings herein referred to, and proximately caused injury and damages to plaintiff
thereby as herein alleged. Atall times herein mentioned, defendants TWO-HUNDRED AND
TWENTY-SIXTH DOE through TWO HUNDRED FIFTIETH DOE were Officers and Directors
of named defendants herein as TWO-HUNDRED AND ELEVENTH DOE through TWO
HUNDRED TWENTY-FIFTH DOE. At all times herein mentioned, each of the defendants was
the agent and employee of each of the remaining defendants, and was at all times acting within the
purpose and scope of said agency and employment, and each defendant bas ratified and approved
the acts of the remaining defendants. , :

TV.

Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned
defendant METROPOLITAN LIFE INSURANCE COMPANY was and is a corporation organized
and existing under and by virtue of the laws of the State of New York or the laws of some other
state or foreign jurisdiction, and that this defendant was and is authorized to do and/or was and is *
doing business in the State of California, and regularly conducted or conducts business in the
County of Alameda, State of California. At times relevant to this cause of action, MET LIFE was
an insurer of Manville and Raybestos. ‘

Vv.

Decedent was exposed to asbestos-containing dust created by the use of the asbestos
products manufactured, distributed and/or supplied by one or more of the conspirators named
below. The exposure to the asbestos or asbestos-related products supplied by the conspirator(s)

caused decedent’s asbestos-related disease, injuries and/or death.

COMPLAINT FOR PERSONAL INJURIES © 1824

Kazan, Mocuan, 25
Lyons,
Greenwoon &
Hance, PLC 26

ane.
(80) 302-1000
10) 465.7728,

Fan 5i0}005-4913 28

CBOSCHI270538.1

VL.

The conspirators, individually and as agents of one another and as co-conspirators, agreed
and conspired among themselvés, with other asbestos manufacturers and distributors, with certain
individuals including but not limited to Anthony Lanza, M.D. (“Lanza”) and with defendant MET
LIFE to injure decedent in the following fashion (the following is not an exclusive list of the
wrongful acts of the conspirators, but, rather, is a representative list): ,

(a) Beginning in 1929, MET LIFE entered agreements with Manville and others to
fund studies of the effects of asbestos exposure on Canadian asbestos miners. When the data from
these studies proved that Canadian asbestos miners were developing asbestosis, MET LIFE,
Manville and others suppressed its publication; further, Lanza (then a MET LIFE employee)
actively misrepresented the results of the Canadian study for many years thereafter to meetings of
health-care professionals seeking information regarding asbestos exposure. ,

(b) In approximately 1934, conspirators Manville and MET LIFE, through their agents
Vandiver Brown and atlomey J.C. Hobart, and conspirator Raybestos, through its agents Sumner
Simpson and J. Rohrback, suggested to MET LIFE associate director Lanza that Lanza publish a
study on asbestosis in which Lanza would affirmatively misrepresent material facts and
conclusions about asbestos, including but not limited to deseriptions of the seriousness of the
asbestosis disease process. The misrepresentation was accomplished through intentional deletion
of Lanza’s description of asbestosis as “fatal” and through other selective editing that affirmatively
misrepresented asbestosis as a disease process less critical than it was known to be by the
conspirators. As a result, Lanza’s study was published in the medical literature in 1935 with these ”
misleading statements. The conspirators were ‘motivated to effectuate this fraudulent :
misrepresentation and fraudulent non-disclosure in part by the desire to influence proposed
legislation to regulate asbestos exposure, to provide a defense in lawsuits involving Manville,
Raybestos and MET LIFE (as Manville’s and Raybestos’s insurer), and to promote the use of
Maaville’s and Raybestos’s asbestos products.

(c) The above-described conspiracy continued in 1936, when additional co-

conspirators American Brake Block Corporation, Asbestos Manufacturing Company, Gatke

COMPLAINT FOR PERSONAL INJURIES 19(510) 468.7728
Fax (510}035-4913 28

CROSCH1270638.1

Corporation, Manville, Keasbey & Mattison Company (then an alter ego to conspirator Tumer & .
Newall), Raybestos, Russell Manufacturing (whose liabilities have been assumed by H.K. Porter
Company), Union Asbestos and Rubber Company and United States Gypsum Company entered
into an agreement with a leading medical research facility, the Saranac Laboratories. Under the
agreement, the conspirators acquired the power to decide what information Saranac Laboratories
could publish regarding asbestos disease and could also control in what form such publications
were to occur. Their agreement provided these conspirators the power and ability to affirmatively
misrepresent the results of the work at Saranac Laboratories, and also gave these conspirators

power to suppress material facts included in any of the facility’s studies. On numerous occasions

thereafter, the conspirators exercised their power to prevent Saranac scientists from disclosing
material scientific data, resulting in numerous misstatements of fact being made at scientific
meetings concerning the health effects of asbestos exposure.

(d) | The conspiracy was furthered when on November 11, 1948 representatives of the
following conspirators met at Manville headquarters: Manville, American Brake Block Division of
American Brake and Shoe Foundry, Gatke Corporation, Keasbey & Mattison Company (then an
alter ego of conspirator Turner & Newall), Raybestos, Thermoid Company (whose assets and
liabilities were later purchased by H.K. Porter Company), Union Asbestos and Rubber Company,
United States Gypsum Company and MET LIFE. U.S. Gypsum did not send a company employee
to the meeting, but instead authorized Vandiver Brown of Manville to represent its interest at the

meeting and to take action on its behalf.

(e) At the November 11, 1948 meeting, these conspirators and their representativ