Request,Application: JAMES RODAMER VS. A.W. CHESTERTON COMPANY et al

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JEFFREY A. KAISER, ESQ, [SBN 160594]

MARTHA A. H. BERMAN, ESQ. [SBN 122212 | ELECTRONICALLY

LEVIN SIMES KAISER & GORNICK LLP FILED
44 Montgomery Street, 36" Floor Super ior Court of California,
. ‘ ounty OF oan Francisco
San Francisco, CA 94104
Telephone: (415) 646-7160 APR 06 2007
Fax: (415) 981-1270 GORDON PARK-LI, Clerk
BY: LUCIA RAMOS

Deputy Cletk
Attorneys for PLAINTIFFS eputy Cle

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)

JAMES RODAMER AND NANCY Case No. CGC-06--456569
RODAMER,
PLAINTIFFS’ OPPOSITION MEMORANDUM
OF POINTS AND AUTHORITIES TO
DEFENDANT GARDNER DENVER, INC.’S
MOTION FOR SUMMARY JUDGMENT AND
REQUEST FOR CONTINUANCE PURSUANT
TO CCP § 437e(h)

Plaintiffs,

YS.

Defendants Date: April 13, 2007

Time: = 9:30a.m.
Dept: 301
Judge: Hon. Peter J. Busch

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A.W. CHESTERTON CO., et al. }
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Trial Date: April 30, 2007

GARDNER DENVE®’S MOTIOG FOR SUMMARY

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Opp P&Awi thoutdepocitesriNaL.docI. PELIMINARY STATEMENT
Defendant's motion should be denied because:
Defendant failed to meet its burden; PlaintiZi’s own deposition is insufficient to shift the burden in
this case; and
2. Triable issues of fact exist. Plaintiff removed gaskets on compressors manufactured and
distributed by Gardner Denver on its Gardner Denver and Joy compressors when he was a
maintenance mechanic at Raychem for 14 years,
3. Defendant has withheld discovery. It has not agreed to produce a person most knowledgeable or a
custodian of records and has not responded to interrogatories, requests for production, and requests for
admissions. If this motion is not denied outright, the hearing should be continued pursuant to CCP
section 437¢(h) until aficr Defendant has produced its PMK/COR for depositions, The parties are
mecting and conferring about the production of a witness at this time.
ib

TEMENT OF FACTS

Plaintiff Jim Rodamer worked at Raychem Corporation as a maintenance mechanic from 1959
into 1973, See Plaintifls’ Separate Statement of Undisputed Material Fact No 1. (Plaintiffs’ Fact 1)

While Plaintiff worked at the Raychem Corporation, compressed air was used extensively.

Both Gardner Denver and Joy compressors were present at the Raychem facility and Plaintiff recalls
working on both. (Plaintifis’ Fact 2)

Plaintifis are including information about Joy compressors because Gardner Denver's 10-K
statement filed for the Securities and Exchange Commission indicates that Gardner Denver has
assumed the assets and liabilities of the Gardner Denver Industrial Machinery Division which
contained the Joy industrial compressor product line. Additionally, Gardner Denver sells Joy
compressors. Gardner Denver has not included this information in its General Order 129 responses, so

| Plaintiffs have propounded discovery on Gardner Denver regarding this. The parties are currently

meeting and conferring about this. (Plaintiffs* Fact 3) See Declaration of Martha A. H. Berman.

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qienver WEIThe Gardner Denver and Joy compressors al Raychem were used (o supply compressed air.
Compressed air was present at all of the processing equipment. It was also used in the manufacture of
some products, and it was used for cleaning up, (Plaintiffs’ Fact 4)

Plaintiff recalls removing gaskets on the Gardner Denver and the Joy compressors. (Plaintifi’s’
| Fact $) He used a putty knife and serapper and wire brush every time he removed gaskets off the
| compressors (Plaintiffs’ Fact 6) There were loose pieces flying around and it was dusty when he used
| the scraper and wire brush. He did not wear a mask when doing this work. (Plaintiffs? Fact 7)

! Mr. Rodamer knows that Gardner Denver air compressors were at Raychem because they

bought Gardner Denver parts for the compressor, (Plaintifis’ Fact 8) Gaskets were required, so Mr.

: Rodamer bolicves that Gardner Denver gaskets were purchased to make the repairs (Plaintilfs' Fact 9)
Aco-worker, Frank Guticrrez also remembers Gardner Denver and Joy compressors al
Raychem (Plaintiffs’ Fact 10). He recalls sccing Plaintiff work on the Joy compressors in Building 3.
(Plaintiffs Fact 11) He thinks thet the valves were being changed and the gaskets would have been

removed. (Plaintiffs? Pact 11)

Gardner Denv

s counsel asked as many, or morc, questions about the Joy compressors as
he/she did about the Gardner Denver compressors. Plaintifis have propounded discovery about this
They have also noticed the depositions of Gardner Denver's person most knowledgeable and custodian
of records, Gardner Denver has objected to these depositions. The parties are meeting and conferring
about the production of a person most knowledgeable. See Decl. of Martha A. H. Berman, (Plaintiffs?
Fact 3)

Plaintiff's work on Gardner Denver compressors was a substantial factor in increasing his risk
of getting an asbestos caused cancer. See Declaration of Barry Horn, M.D. (Plaintiffs’ Fact 3)

“

MULLON FOR SUIOARY

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Opp PaseithousdepocitesFINAL doe GARDR2R DENVER’
aueReNTIl. LEGAL ARGUMENT
A. Defendant Has Failed To Meet Its Burden Of Proof

Defendant’s Motion for Summary Judgment should be denied because defendant has not met
its initial burden of proof. In ruling on a motion for summary judgment the trial court must first
identify and consider only those issues framed by the party moving for summary judgment.
Zuckerman v. Pacific Savings Bank (1986) 187 Cal. App.3rd 1394, 1400; see also Brantley v. Pisaro
(1996) 42 Cal. App.4th 1591 at 1602. The court must next determine whether or not the moving
party’s showing has satisfied his or her specific burden of proof under CCP §437e(0)(2) suticient to
justify a judgment in the moving parties favor. Finally, when and only when a summary judgment
motion prima facie justifies a judgment in favor of the moving party, the court may then look to the
opposition for the demonstration of the existence of a triable issue of material fact. fa.

California Code of Civil Procedure Section 437¢(n) and (0) describe a moving party’s
evidentiary burden,

Pursuant to this language, a defendant moving for summary judgment has two distinct means
by which to shift the burden of proof to the plaintiff under CCP §437e(0)(2) and force the plaintiff to
come forward with some evidence creating a triable issue of fact. “The defendant may rely upon
factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an
essential element of the canse of action sued upon (citation omitted). Alternatively, the defendant may
utilize the tried and truc technique of negating (“disproving”) an essential element of the plaintiff’s
cause of action (citation omitted)”. Brantley v, Pisaro, supra 42 Cal.App.4th at 1598 (emphasis
added).

Here, Defendant's Motion for Summary Judgment has failed on all accounts because of its
failure to bear its initial burden of proof, Defendant does not claim that the gaskets in its compressors
did not contain asbestos. Defendant did not claim that it did not have a relationship with Joy
compressors, Moreover, Defendant did not respond to the information about Defendant it Plaintiff’?

responses to discovery propounded by Defendant.

4. (S055 Rodancr Wot lous WETVGACGNEYESAVE? WSTWNGI- 3” ~”BERENTFF’S OFPOSTTIOW To SARIMIAA
Opp Paani thourdepocltesFINa,.doc GARDN2R DEWER'S MOTION FOR SumtaLy
onesieInstead, Defendant selectively looks at the testimony and cherry picks statements out of context
for its position, It does not and cannot state that Gardner Denver and/or Joy compressors were not at
Mr. Rodamer’s work site or that he did not remove asbestos-containing gaskets.

Summary judgment law in California requires Defendant to present evidence, and not simply
point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence,
john Crane (2006) 143 Cal.App.4

particularly once Defendant's product is identified. Weber
1433.

Defendant ignores these facts and filed this misleading motion which does not address the
requirement --- which is that the Plaintiff does not possess, and cannot reasonably obtain, needed

evidence, particularly since Defendant's product is identified.

Since Defendant’s evidence docs not establish an affirmative defense or show that one or more,
tof the elements of the causes of action cannot be established, as is required in order to prevail on a

}motion for summary judgment, Defendant has failed to meet ils burden,

B. Even Assuming, For Argument’s Sake, A Shifting of the Burden of Proof, Plaintiff

i
i das Established Triable (ssues Of Fact
U IF itis assumed, for argument’s sake, that the burden has shifted, Plaintiffs have

{demonstrated that triable issues of fact exist, and on that basis, Defendant's motion should be denicd.

Asis pertinent to this case, Plaintiff Jim Rodamer worked at Raychem Corporation as a
maintenance mechanic from 1959 into 1973. (Plaintiffs’ Fact 1)

While Plaintiff worked at the Raychem Corporation, compressed air was used extensively.
Both Gardner Denver and Joy compressors were present at the Raychem facility and Plaintiff recalls
working on both. (Plaintiffs’ Fact 2)

‘These Gardner Denver and Joy compressors were used to supply air. Compressed air was
present at all of the processing equipment; it was also used in the manufacture of some products, and it
was used for cleaning up. (Plaintiffs* Fact 4) Plaintiff recalls removing gaskets on the Gardner Denver
and the Joy compressors. (Plaintiffs’ Fact 5) He used a putty knife and scraper and wire brush every
time he removed gaskets off the compressors. (Plaintiffs’ Fact 6)

There were loose pieces flying around and it was dusty when he used the serapper and wire

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Opp PanwithoardspecitesriNAL. doe GARDNER DENVER’ S HOTION FOR SIMEARY
sungeae

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ilbrush. He did not wear a mask when doing this work, (Plaintiffs Fact 7)

Mr. Rodamer knows that Gardner Denver compressors were at Raychem because they bought
parts for a Gardner Denver compressor. Gaskets were required, so Mr. Rodamer believes that Gardner
Denver gaskets were purchased to make the repairs (Plaintiffs Fact 8).

A co-worker, Frank Gutierrez also remembers Gardner Denver and Joy compressors at
Raychem (Plaintiffs Fact 10.) He recalls seeing Plaintiff work on the Joy compressors in Building 3.
(Plaintiffs’ Fact 11) ‘The valves were being changed and the gaskets would have been removed.
(Plaintiffs’ Fact 11)

Gardner Denver’s counsel asked as many, or more, questions about the Joy compressors as

he/she did about the Gardner Denver compressors. Plaintiffs have propounded discovery about this.

j| Additionally, Plaintifis have noticed the depositions of Gardner Denver's person most knowledgeable

and custodian of records. Gardner Denver has objected to these depositions. ‘The parties are meeting
and conferring about these depositions. See Declaration of Martha A. H. Berman, (“Berman Deel.”)
(Plaintiffs* Fact 3) Defendant has limited its motion to the existence of work on Gardner Denver
compressors. At a minimum, a question of fact exists for the jury to decide, More issues have not
beon addressed by Defendant about Joy compressors. It concedes the presence of asbestos.

Based on all of the above, af a minimum, there is an inference that Plaintilf manipulated
asbestos-containing products on Gardner Denver compressors on at least some occasions. In
evaluating whether to grant or deny this summary judgment, Plaintiff is entitled to have the inference
construed in his favor.

‘There is no known threshold of exposure to asbestos below which one is not at risk for the
development of mesothelioma, Each exposure to asbestos increases one’s risk for the development of
mesothelioma. One cannot exclude any one exposure to asbestos as being non-causative of
mesothelioma. Mr. Rodamer’s exposure to the removal of gaskets on Gardner Denver compressors
while working at Raychem cannot be excluded. It is to a reasonable medical probability that working
on Gardner Denver compressors contributed to increasing Jim Rodamer’s risk of getting an asbestos-

related can

Sce Declaration of Barry Horn, M.D., Exhibit E to Berman Decl.

Tr G0Sd Hedawer wot ionc\siss\Garanerbenver
Opp Paawithouldepoci tesFIMnn. doe GARDNER DENVER’ S MOTION FOR SUMARY
SUDOKENT‘Therefore, even if the Court should Jind that defendant has shifted the burden of proof to
plaintiff, a triable issue of fact has been raised, On that basis Defendant’s motion should be denied.

C. California Policy Favors Denying Motions for Summary Judgment

' California’s courts have repeatedly underscored the onerous burden of the moving party on
summary judgment,

“Summary judgment is a drastic measure that deprives the losing party of a trial on the merits
.»it should therefore be used with caution so that it does not become a substitute for trial ...the
| affidavits of the moving party should be strictly construed and those of the opponent liberally
construed ...any doubt as to the propriety of granting a motion should be resolved in favor of the party

Hopposing the motion, Daniels v. DeSimone (1993) 13 Cal App.4th 600. Sce also Capanano v,

‘ifornia Medical Center (1995) 38 Cal.App.4th 1322, Kulesa y. Kastleberry (1996) 47 Cal.App.4th

103.

The trial court should accept as undisputed facts “only those portions of the moving party's
evidence that are not contradicted by the opposing party's evidence.” Waisbren v. Peppercorn
Products, Ine, (1995) 41 Cal.App.4th 246, 251 (citation omitted). “[T]he facts alleged in the
declarations of the parly opposing summary judgment must be accepted as true (citations omitted)” id
at 252.

In this case, Mr. Rodamer was exposed to asbestos from the gaskets on the Gardner Denver
compressors, Therefore, Gardner Denver's motion must be denied.

D. Plaintiffs Request A Continuance Pursuant to The Provisions Of Code of Civil

Procedure Section 437e(h)
In the event that this Court is not convinced that defendant Gardner Denver's motion should be

denied outright, Plaintiffs respectfully request that this Court grant a continuance under the provisions

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| Opp Daswtensntccpocicsenias toe GnsonEE DEER’ s'HOTTOW FOR Sen
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| Gardner Denver’s Custodian of Records and the Person(s) Most Knowledgeable and to receive

j of Code of Civil Procedure Section 437c(h) to allow Plaintiffs sufficient time to take the deposition of

‘responses from Gardner Denver's outstanding discovery.

Plaintiffs served Notices of Taking Depositions of Custodian of Records and Person Most
Knowledgeable on Defendant in March, Defendant filed a litany of “boiler” plate objections. Counsel
‘has been discussing the issue of producing someone for deposition and continuing this motion until
after the deposition, If this matter can not be resolved through the meet and confer process, Plaintifi’s
have notified defendants that they will be moving on April 11, 2007 to compel the depositions. See
Declaration of Martha A. H. Berman.

The deposition notices seek production of records and information relating to the Gardner
Denver's relationship to Joy compressors sinee Gardner Denver ‘s Securities and Exchange 10-K
statement admits that Gardner Denver Inc. has assumed the assets and liabilities of the Gardner
Denver Industrial Machinery Division which contained the Joy industrial compressor product line, The
notice also seeks information about the content, use and specification of materials in these products,
Defendant's knowledge, its supply of these produets to Raychem, its products, distribution of its
products, knowledge, the testing that Defendant performed on these products regarding fiber release,
witness information, when its products ceased containing asbestos, substitutions for asbestos, and
other relevant information, The notices are attached to the Berman Declaration as Exhibit C.

Objection to these notices are attached to the Berman Declaration as Exhibit D.

Plaintiffs also served Defendant with written discovery. This includes interrogatories, form

interrogatories, requests for production, and requests for admission. To date, Defendant has not

answered any of the writien discovery, nor produced any of the requested records.

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Opp Pakei thousdepocitesFINAL.doc GARDNA SeNvEt!S NOSTON FOR SUMMARY
SUDCHENTi
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California Code of Civil Procedure § 437c(h) states that:
“If it appears from the affidavit submitted in opposition to a motion for
summary judgment or summary adjudication or both that facts essential to
justify opposition may exist but cannot, for reasons stated then be presented,
the court shall deny the motion, or order a continuance to permit affidavits to

be obtained or discovery be had or make any other order as may be just.”

In Nazar v, Rodeffer (1986) 184 Cal. App.3rd 546, 556, the Court held that CCP §437e(h)
“mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that a
continuance is needed to obtain facts essential lo justify opposition to a motion.” (Fisher v. Larson
(1982) 138 Cal, App.3rd 627, 648 [188 Cal Rptr.216], cert.denied (1983) 464 U.S.959 [78 LE.D.2nd
335, 104 S.CL390). In Navar, the Court concluded that the trial court ered in granting summary

judgment and should have granted a reasonable continuance to enable the plaintiff to conduct other

discovery. Nazar at $36.

Plaintiffs are in compliance with San Krancisco Local Rules regarding continuances. First, a
request for continuance is being filed at the time Plaintiffs’ Opposition is duc and the attached
declaration in support of the request establishes the following: (1) the facts establishing a likelihood
that controverting evidence may exist; (2) the specific reasons why such evidence cannot be presented
at the present time; (3) an estimate of the time necessary to obtain such evidence; and (4) the
procedures whereby Plaintiffs intend to obtain such evidence.

Therefore, Plaintiffs requests that this Court grant an appropriate continuance under Code of

Civil Procedure § 437c(h) to allow Plaintiffs sufficient time to obtain and review these documents. It

would be inequitable to require Plaintiffs to respond to this motion for summary judgment without the

benefit of the information solely in Defendant’s possession.

i

Ty (2055. Rodanay Wot Tose NGI) GarGneyDEaver HGUWIES: "> g —  PLAINFEFE"S OPRGSITION 10 Devshdain’

[OP Yahi thoatdepocitesFIL. dec GARDNER DERVER’S MOTION FOR SUMMARYTn the event that this Court is not inclined to grant such a continuance, Plaintiffs respectfully
submit that Defendant’s motion for summary judgment should be denied. Defendant has not met its
initial burden of proof and since numerous triable issues of fact exist.

V. CONCLUSION

Defendant has not met its burden and triable issues of fact exist, Therefore, Plaintiffs
respectfully request that this Court issue an order denying Defendant's motion for summary judgment.

In the event that Defendant's motion is not denied outright, Plaintiffs request that this matter be

continued until after Defendant produces its person most knowledgeable.

DATED: April 6, 2007 LEVIN SIMES KAISER & GORNICK LLP
Gy
By:
Martha A.H. Ber

Attomey for Plaintiff

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Opp PaswithousdepocitesriNaL.doo