Motion-Secondary: JIM BATTS JR VS. ASBESTOS DEFENDANTS B/P AS REFLECTED ON EXHIBITS et al

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                                DOUGLAS G. WAH, State Bar No. 64692
J. SCOTT WOO?), Stale Bar No. 136306
JASON! R BURDICK, SBN: ee oo a ELECTRONICALLY

I

bh

nn "Oakland adway, 10" Hloor co ne ee a County of San Francisco.

| Telephore: (610) 590- 9500 Tn

Facsimile: — (510) 590-9595 JUL 12 2007

GORDON PARK-LI, Clerk
BY: JUDITH NUNEZ

| Attorneys for Defendant Deputy Clerk
fe THORPE INSULATION COMPANY

la. re

a Plaintiffs,

VS.

] OK s SUPPORT Or
DEF ENDANT THORPE [VSULATION
ASBESTOS DEFENDANTS (BP), etal, | COMPANY'S MOTION IN LIMINE TO
LIMIT TESTIMONY OF CHARLES AY

4 PROPTSSIONAT. CORPORATION

} 590-9500" Facsinaile (510) 390-9895
_
ts

1111 Broadway, 10"! , Oakland, Cel

TOLEY & MANSFIELD

Defendants. Trial Date: September 10, 2007

Tel. No.
2

21093
‘ - of Ln

: ], Jason KR. Burdick declare:
21 : 1, 1 am an attorney licensed to practice law in the State af California and an

22 | associate with Foley & Mansfield, counsel of record for defendant Thorpe Insulation Company

23 : in the above-captioned matter, T have personal knowledge of the facts below and if called upon
24 | could competently testify thereto.
23 2. Attached hereto as Exhibit A are true and correct copies of excerpts from Charles

26) Ay’s trial testimony of February 16, 2006 in the matter of Charlion and Kay Clemmer v. Jolin

27 Crane, Inc. and Thorpe insulation, SPSC Case No, 434434,

-1-
DECLARATION OF JASON R BURDIC K IN SUPPORT OF DEFENDANT THORPE INSULATION COMPANY Ss.
KLOTION IN LIMINE TO LIMIT TESTIMORY OF CHARLES AYFOLEY & MANSFIELD

w

ao

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

foregoing is true and correct.

Respectfully Submitted,
FOLEY & MANSFIELD

Be
Dated: July 1% 2007 By. dite
jouglas G. Wah, Fi
J. Seatt Wood, Es
Jason R. Burdick, Esq.
Aitorneys far Defendant,
THORPE INSULATION COMPANY

a

DECLARATION OF JASON R, BURDICK IN SUPPORT OF DEFENDANT THORPE INSULATION COMPANY'S
MOTION IN LIMINE TO LIMIT TESTIMONY OF CHARLES AY4
y

EXHIBIT Aeanyanw ken

10

‘Transcript of Charles Ay Am of 021606
449

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
BEFORE THE HONORABLE’ KEVIN M. MCCARTHY, JUDGE

_ DEPARTMENT 306

=--000--+

CHARLTON AND KAY CLOMMER,
PLALNTIEFS,,
-VS- No, 434434

JOHN CRANE, TNC.» AND
FTWORPE INSULATION,

DEFENDANTS.

REPORTER'S TRANSCRIPT OF PROCEEDTNGS
HELD GY FEBRUARY 16, 2006
MORNING SESSION

APPEARANCES:

FOR THE PLAINTIFFS? BRAYTON PURCELL, LLP
BY: GILBERT L. PURCELL, ESQ.
GARY L. SRAYTON, ESQ.
P.0. BOX 6109
NOVATO, CA 94948
415.898.1555

FOR THE DEFENDANTS: HASSARD_BONNINGTON
BY: PHILEP S. WARD, ESQ.
JOHN P. KATERNDAHL, ESQ.
TWO EMBARCAPEREO CENTER, SUITE 1800
SAN FRANCISCO, CA” 94131
415.288.9800

BISHOP: BARRY HOWL TIANEY & RYDER
BY; STUART A. MCINTOSH, ESQ.
2000 POWELL STREET, SUITE 1425,
EMERYVILLE, CA 94608

510, 596.0388

REPORTED BY: MITCH L. LYON, C.S.R-
CERTIFICATE NO, 6846

450
page 1Boa ane une

‘Transcript of charles ay aM of 021606

INDEX OF WITNESSES

VorR
WITNESSES DIRECT CROSS REDIRECT RECROSS OTRE
PLAINTIFF'S:

CHARLES AY 451

451

page 2

sms

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iTranscript of, Charles ay AM of 021606
Q. BY MR. BRAYTON: WERE YOU FAMILIAR WITH WHO EMPLOYED THE

PEOPLE THAT WERE WORKING ALONGSIDE YOU ~~
AL ves.

Q. =~ ON THESE VARTOUS 08S?

A. I'M SORRY. YES

Q. HOW WAS IT THAT YOU WERE FAMILIAR WITH THAT?

ALT MORED WITH THEA. NEW NO THER EMPLOYERS WERE, AND
THERE WERE THO PRIMARY EHPLOVERS WHILE T WORKED ABOARD SHEP. A
COUPLE OF TIKES —~ SOME EXCEPTIONS -— PRIMARY EMPLOVERS WERE THE
CIVIL SERVICE COWRSSION, OFPARTHENT OF OEFENSE, THAT'S HE, AND
‘HE UNETED STATES NAVY EMPLOYEES, T.F., SATLORS. SO YOU HAD.
SATLORS aMD CIVIL SERVICE SHIPYARD PERSONNE, WORKING THC THE SAE
SPACE AT THE SANE STINE COLLECTIVELY DOING INDEVIDUAL. WORK AND
OVERLAPPING WORK.

498

FROM TIME TO TEME OUTSEDE CONTRACTORS WOUID RF AWARDED
CONTRACTS TO CUME IN AND MORK -NITH US. AND ZF :HEY KAD A
CONTRACT, IT WOULD BE TO PAINT THE JURY BOX. AND MY JOB WAS TO,
IF YOU WILL, PAINT THE WETNESS STAND. SO I WOULDN’T GO INTO THE
JURY BOX, AND THEY WOULDN'T GO INTO THE WITNESS STAND, BUT WE'RE
IN THE SAME ROOM.

JUST LIKE INSULATORS, SOMETIMES WE'D CONTRACT OUT INSULATION
WORK, AND THEY WOULD HAVE CERTAIN PIPES. THEY MAY 00 THE HAIN
STEAM, SO 7 WOULDN'T TOUCH THAI, GUT T WOULD DO THE AXILLARY
STEAM OR THE CONDENSATE STEAM, OR, YOU KNOW, SOMETHING LIKE
THAT,

80, YOU WORK SIDE BY SIDE WITH THESE CONTRACTORS 50 YOU KNOW
WHO THEY ARE. YOU KNOW WHO THE CMPLOYERS ARE.

Q. ARE YOU FAMILIAR WITH THE TERM “SHTP'S COMPANY?"
AL SURE
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Transcript of charles ay AM of 021606
Q. WHAT IS THAT?

A. THAT'S THE SATLORS.

Q. AND SO, THE SATLORS WHO ARE ASSIGNED TO A PARTICULAR SHIP
COMPRISE THE SHIP'S COMPANY?

A, THAT IS CORRECT, YES.

Q. AND THOSE INDIVIDUALS IN VARIOUS TRADES AS SAILORS WITH THE
NAVY WORKED ALONGSIDE YOU?

As QF COURSE. :

Q. THAT INCLUDE TNDEVEDUALS WORKING AS MACHINIST MATES?

AL YEs.

Q. FROM YOUR WORK AT, LONG BEACH NAVAL SHAPVARD. WERE YOU

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FAMILIAR WITH A COMPANY CALLED THORPE INSULATION COMPANY?
AL YES, TWAS. *

499

@. WHAT WAS YOUR FAMELIARLIY WITH THORPE INSULATION Company?
A. WELL, YOU KNEW THEM AS AN INSULAILON CONTRACTOR AND SUPPLIER
AT LONG BEACH, THEY SUPPLIED, MATERIAL ON A REGULAR AND
CONTINUING BASIS DURING MY EMPLOYMENT THERE.

Q. WHEN YOU SAY, A CONTRACTOR, WHAT KEND OF WORK DO THEY 00 AS
A CONTRACTOR?

A, THEY ALSO PROVIDED LABOR. T WORKED FOR THEM WHEN I WAS
WORKING IN THE CONSTRUCTION INOUSTRY AND IN THE MARINE INOUSTRY.
WORKED FOR THCRPE INSULATION. THEY WERE MY EMPLOYER. AND SO,
THEY WOULD SEND ME 10 A 303 AND SAY, GO PUT THE INSULATZON ON,
AND THEN THEY WOULD SEND ME THE MATERTAI.

AT LONG SEACH SREPYARD, WE HAD THE CIVIL SERVICE EMPLOYEES,
T.F., ME. BUT THEY MOULD SUPPLY THE INSULATION. THEY NERF ONE
(Or THE SUPPLIERS OF THE INSULATION NATERIALS THAT WE LNSTALLED.
Q. WHAT: SORTS, OF INSULATION MATERIALS DID THORPE INSULATION
COMPANY SUPPLY?

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Transcript of charles Ay AM of 021606
A. THE MAJOR PRODUCTS THAT THEY SUPPLIED WERE ASBESTOS CLOTH,

PIPE COVERING, TNSULATING CEMENTS, AND BLOCK INSULATION, AND
AGAIN, THAT'S DURING THAT TIME PERIOD YOU ARE TALKING ABOUT, THE
"60S AND VERY EARLY '70S.
Q. WERE THEY PRESENT AT THE -- IN THIS CAPACETY AS A MAJOR
SUPPLIER IN -- WHEN YOU STARTED IN THE EARLY 1960S?

YR. MCINTOSH: EXCUSE ME. LACKS FOUNDATTON. CALLS FOR
SPECULATION IN TERMS OF THE CHARACTERIZATION OF MAJOR SUPPLIER.

THE COURT: OVERRULED, GO AHEAD.

THE WITNES!

YFS, THEY WERE,
. BY MR. BRAYTON: AND OTD THEY CONTINUE IN THAT SAME.CAPACITY
‘THROUGH THE MIDDLE ‘60S?

500

AL ALL THROUGH

1 "60S AND '70S UNTIL I LEFT IN 1980. THE
DIFFERENCE 1S AFTER AGOUT ‘73, WITH SOME EXCEPTIONS, THEY DIDN'T
SUPPLY ASBESTOS MATERIALS. IT MAS ALL NONASBESIOS. THAT'S (HE
ONLY REASON I DREW THE UESTINCTION.

Q. E'D LIKE TO TAKE YOU THROUGH A NUMBER OF DIFFERENT
ACTIVITIES THAT MR. CLEMMER-HAS TESTIFIED ABOUT PERFORMING OR
WELL BE TESTIFYING ABOUT PERFORMING IX TESTIMONY THAT HAS KOT
YET BEEN HEARD BY THE JURY AND ASK YOU TO TELL US WHAT THE
POTENTIAL FOR EXPOSURE TO ASBESTOS FROM THERMAL INSULATION
PRODUCTS WOULD BE IN THOSE SORTS OF ACTIVITIES?

A, SURE.

Q. THE FIRST TS SEMPLY ARE YOU FAMELTAR WITIL THE TERM “S!ANUING
MATCH?"

A. YES.

Q. AND IN PARTYCULAR, STANDING WATCH IN A FIRE ROOM OR AN
ENGINE ROOM?

AL YES.

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do that, but you could be -- you could have four er five

whore they

everyone for that day er for that week was

soot blower pipiag. Okay.

‘Qhat's two anda half by one and < half, That's an

pall size. You've got to min on soot blower piping, and

to supply. There is no way Lust he is qoing te have thet

cases. So it's + phone call. Blok, you could
three ships wheve they are doing boiler work, ané a lot
people are taking out block. You go there, and you're

block.
Ften gone to supply whea they dicin’t have a stick of

insulation ia it. They may have some. When I sey "not 3

etick," they would have maybe sone tuo by two and 2 half

diatomaceous earth product. We never used it. It would

sitting ia the cozner, You would say, gel it now, and

would start coming in, and we would undead.

Q. Sir, did-you ever work in the supply department

‘Yyourse!i?

B. No, sir.2h
their
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aleng
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ol
1
2
te
3
a
5
é
with
7
8
9
10
Fiberboard
a
a2
13
dropper,
4
gecentt
4s

only

S0 they had @ lot of people or a lot of time, and
trucks would coms down, and they would stack the saterial
the road where the steam tunnele were.

at pipeline from the steam planz?

Q. "Row Long was

A. Oh, that vas probably a mile.

9. To the best oF your know edge, did aii of these

contzacters/suppliazs supply thermel insulation preducts

Long Beach?

A. Yes. Taey ail had some supply. Yes, sir.

Q. ALL right.

Ace there any pazticuler brands that you associate

anyone, for instence, with Thorpe Insvlation?
A. Yes, Thorpe was primarily = JM distributor.
Metzlelad was primarily a Fiberboard distributor.

FENOO was Kaylo, AC & $ distributed Xaylo, and

and Jif, but not vary much.
tT wean, their presence xag, you kuow, like Tf you're

drinking a gallue of water, and they cave yor an oye
they ceve you water but sure wasn't much. They jast

there -- you dida't see them, You didn't see FEICO. The

éhed

know,

yonor,

weys

and say,

seoing

standing

wut on

ones you saw were ~~ you had seen Metaiclad weekly. You

1} seep Thorpe almust daily. So those were the two mejor
18 suppliers

19 _Q. And you base that on seeing theiz trucks?

26 A, Oh, in seeing their trucks, in being in suppiy, you
21 talking to the drivers. vust -~

mR.

Move to strike based on hearsay, Your

talking

vars part.

ras ¢

Welly he ds listing = nimber of aitferent

that he avquized the infortialion, so which do not involve
hearsay. So I can't strike it.
MR, McINTOSH:

other

othe than == than 1 think

said being in susply?

A. Yes, being there when they are making a phone call

1°11 cali Thorpe and thea calling them. Other than

vhoxpe.trucks core up to the loadiag doce white F

there and the Thorpe drive: unload it. Other thes being

Sullivan Avenue when the dzavar goos ty hecause 7 worked

Thozge before went to the snipyerd, and so I inew theSe the

where you

orssice,

ehere,

box

at.

from

supplier,

drivers. I don"t zenenber theix names now, but they were

nicknames. And, hey, how you going, Sill? Hey, Charlie,

is it going here? what type of thing. Se you see their

trucks, and Thozpe didn't supply labor to the shipyard.

only xeascn they were there was to supply material.

Q, When GSA supplied mater:

stb tho shipyard, fron
weze working on eny of the ships, could you see those box

come in?

A. You're inside that ship. You can‘> see anything

Q. wher, you'ze cust in the vicinity ef the ship fron

rould you ses the hox cars?

A. No, sir, Yes cannot. Yoo have to see -- I mean, the
cars came in the back side. You know, the rails were all.
the back side x:ght close to gate three. Couldn't see

Q. -ALL right.

Se do you hav

any idea how many ox cars came in

AL No. Eohave no idea, sir.
Q. ALL eight.

80 when you say Thorpe ws whal. you cell a major

tHuddle, (phonetic spelling) here is your material, and

we would siga for it, and he would cff-load

Sy and we

be on our way, and we would bring it inside and set it

Q. Was it ever part of your job to handle any accounting

work al. Long Beach?

Be Wo, sir.

Wow, the syston at Long Beach, however flawed it

been £

malcrial supplies, and correct me if I've got

wrong, GSA or some’ other provider wouls bring in th

and ther it would go into the warehouse or one of the

facilities, and frou there, they would go out for use on

particalas ship, is that correct?
A. that Is correet.
Q. ALL right.

it_into the warehouse, uaa

way Zor you to tell who suprlied thea to Long Bezch?

A. No, sir, Not that I'm aware of.

23
the guy

24
would

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up.

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peper

2

28
538

L
weight have

a

3
raterial,

4
storage

5
a

6

7

8

°
tnare any

10

1

12

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®. Qlods in the affiomative.} okey.

GSA delivered materials to Long Beach by what seans?2B
building on.

u
Bike

a5
back to

1s

7
overhauled,

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beck,
i as
set of

20
the jobs

2a

22
jeb.

23

24
needed on

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26
you

27
they

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street
328

t

parts.

was the boss, and these people worked within that

some floor, And their job was to send people out

sea,

to ‘Japan and pick up the YORKTOWN and rice the YORKTOWN

Long Beach, and during that time, they did tests on

pieces of equipment to determine what needed to be

and then they would take that information, and they: got
and over 2 period of a couple months, «rite out = vork

job ordeze, and say when this ship comes in, these are

we are qoing to do, Let's order the material.

Sc then reguler order process, and that was their

‘they were up there for presckeduted in advance work-

‘he shop planner was thera for onythiag that you

a daily basis, isxediate response. So it's like you take

into the garage, and they have all the parts because

told them you were coming in, and you needed @ new motor.

have all the part

but che guy who wes driving down the

and threw @ cod and pulled in, they dida't have thethen. So

to need

Beach,

suterials

kasw?
Ls
chon
as
woald
wv
16

Somebody got on the order desk right avay and ordered

that Would be the to distinctions, if you will.
Q. On those job orders, they would ge out te the ship,

sonetines far away, test it gud see whet work was going
to be done on the next overhaul when that visited Long

1a that correct?
A. Phat is correct, sic.
@. ALL right.

Aa then, based on those vests, they would order

to be 4

stalled during that overhaul?

A. That {5 cor:

GQ. ALL rignt

ho would th

order these materisls from,

A, The mstevial -- the orders would go to supply, and

supply would, i:

me wes parmitting, they would -- they

ge to GSA.
Q. What is Gsn7.

A, That's General Services Adwinistr2tion, and GSA had a

2L
22
central
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neaded.

that's how

epesitery in Rough and Ready, Stoc!

ny one of the’—

Pitusbury, Pennsylvania, and @ couple othera arosnd the

Country, and these were large, what yon call CD's,

Distribution Centera that material would come inte from

manufactuces, he varehoused aad then sent out when

They woald put :t on a truck and drive it there. So26 that worked.

27g. ALL right.

cp Gvas part of the Fedora] Govecmant, Ss that
309
W188, sits tes:
Q, Rad T think you Juet mentioned tey auld got hots

3 malesiale Gixect ftom the manafactureze?

4a, Mas ds coeeect, six.

3g. mL doh

6 na for —— for these overhauls, were they for the
ost past

7 wogulusly schedsled for naval ships?

4B. Yon, Ovathals were soheduled a year in advance.
chats

9 why there is documents out that says

39 many skips are going to coms

for

31 regular overhaul, so Long Beach could schedule like,
okay, I

12 need this many people, T need upgrade or doungrace,
spending.”

33 ‘Thal was the intent of how it was to work.

And tor those everhanis schodwied a year in advance,

5 would the testers go cut to the ship te see what
welerials were

46 going to be needed for Lnat overhaul? low far is advance

would

27° thal Happen as a rule?

&
8