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RUSH LANDING ROAD
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BRAYTON@PURCELL LLP
ATTORNEYS AT LAW
ALAN R, BRAYTON, ESQ,, S.B. #73685
DAVID R. DONADIO, ESO, S.B. #154436
UMUK. TAFISI, ESQ., S.B. #269862 ELECTRONICALLY
BRAYTON®PURCELL LLP
Attorneys at Law FILED
222 Rush | Landing Road Superior Court of California,
P.O. Box 6169 County of San Francisco
Novato, California 94948-6169 AUG 25 2010
Tentative Ruling Contest Email: contestasbestos TR @braytontaw.conPy neon eae urt
Deputy Clerk
Attorneys for Plaintiff ™“
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
LOUIS CASTAGNA, } ASBESTOS
a ) No. CGC-07-274230
Plaintiff, ) :
j PLAINTIFF'S RESPONSE TO
Se SPR ASBAE
ASBESTOS DEFENDANTS (BP) 3 DISPUTED FACTS
Date: September 8, 2010
Time: 9:30 a.m.
Dept: 220, Hon. Harold E. Kahn
Trial Date: October 12, 2010
Action Filed: June 6, 2007
Plaintiff hereby submits the following responses to defendant NIBCQ INC.’s Separate
Statement of Undisputed Facts in Support of Motion for Summary Judgment or, in the
Alternative, Summary Adjudication, with reference to plaintiff's supporting evidence disputing
such statements.
UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE/EVIDENCE
1. Plaintiff's complaint alleges that various 1. Undisputed for purposes of this motion
defendants caused him to be exposed to only.
asbestos-containing products and thereby
develop an asbestos-related disease.
Plaintiff Louis Castagna’s Complaint for
Personal Injury— Asbestos, attached as
Exhibit A to the Declaration of Ken L,
Hoang (“Hoang Decl.”) at pp. 1:17-3:8.
K.Alnjored\02299iplayseeNIBCO.wpd 1 UKT
PLAINTIFF'S RESPONSE TO DEPENDANT NIBCO INC,’S SEPARATE STATEMENT OF UNDISPUTED FACTS:SOO NO ot
1)
2. The Complaint does not, however,
contain any specific allegations showing
Plaintiff was exposed to asbestos products
manufactured, sold or supplied by NIBCO.
Plaintiffs’ Complaint for Personal Injury -
Asbestos, attached as Exhibit A to the
Hoang Decl. at pp. 3:1 ~ 13:27.
3. NIBCO’s Special Interrogatory No. 3
asked Plaintiff to state all facts in support of
his contention that he was exposed to
asbestos-containing products manufactured
by NIBCO.
Defendant NIBCO INC.’s Special
Interrogatories to Plaintiff Louis Castagna,
Set one, attached as Exhibit B to the Hoang
Decl. at p. 2:15-18.
4. In response, Plaintiff referred NIBCO to
his response to Special Interrogatory No. 2
in which Plaintiff specifically alleges he
installed NIBCO valves on pipelines in the
Fast Flux Test area at AEC Hanford in
Richland, Washington from 1977 to 1979,
Plaintiff's Responses to Defendant NIBCO
Inc.’s Special Interragatories, Set One,
attached as Exhibit C to the Hoang Decl. at
pp. 2:24-3:3 and pp. 1:23-2:12.
5. NIBCO’s Request for Production No. 1
asked Mr. Castagna to produce all writing
that support his contention that he was
exposed to asbestos-containing NIBCO
products,
Defendant NIBCO INC.’s Request for
Production of Documents to Plaintiff Louis
Castagna, Set one, attached as Exhibit D to
the Hoang Decl. at p. 3:9-11.
6. Plaintiff did not provide any responsive
documents to NIBCO’s request.
Plaintiff's Response to Defendant NIBCO
INC.’s Request for Production of
Documents, Set one, attached as Exhibit E
to the Hoang Decl. at pp. 1:22-2:18.
KAlgjuresh 02298 pid NIBCO.wpd,
2. : Undisputed for Purposes of this motion
only.
3. Undisputed for purposes of this motion
only.
4. Disputed. Incomplete recitation of the
facts. Misleading.
In response to Special Interrogatory No. 3,
plaintiff referred NIBCO to his response to
Special Interrogatory No. 2 in which he also
leges that throughout his career he used
and worked with NIBCO valves.
Plaintiff's Responses to Defendant NIBCO
Inc.’s Special Interrogatories, Set One,
dated July 1, 2008, attached as Exhibit E to
the Declaration of Umn Tafisi, at pp.
2:24-3:3 and pp. 1:23-2:12.
5. Undisputed for purposes of this motion
only.
6. Disputed. Incomplete recitation of the
facts.
In Plaintiff's Response to Defendant’s
Request For Production of Documents, Set
One, Response to Request No. 1, plaintiff
stated the following: .
“Plaintiff further identifies numerous
articles and studies relating to health
UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC."S SEPARATE STATEMENT OF UNDISPUTED FACTSom QRH Bw Hw
10
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTS
hazards associated with exposure to
asbestos which have appeared in the
medical and scientific literatures since the
tum of the century, and have also been
summarized in various publications. Two
texts that contain summaries and/or
bibliographies of this literature are:
Asbestos: Medical and Legal
Aspects, Barry I. Castleman
Prentice-Hall Law and Business,
1990.
Source book on Asbestos
Disease, Medical. Legal, and
Engineering Aspects, George
_A. Peters and Barbara J.
Peters, Garland STPM: Press
Vol. 1, 1980, Vol. 2, 1986.
Plaintiff is in possession of these texts and
will make them available for defendant's
review. Due to copyright laws, plaintiff
cannot provide copies of these texts to
defendant. Plaintiff also identifies General
Industry Safety Orders promulgated under
the California Department of Industrial
Relations, Division of Industrial Safety,
Title &, Article 81, including but not limited
to Sections 4104 through 4107, and
Appendix A, Table 1, in effect during the
years 1948 to 1972. Plaintiff identifies the
NESHAP for asbestos, which are found in
the Code of Federal Regulations, Title 40,
Chapter 1, Subchapter C, Part 61, Subpart
M, published under the Federal Clean Air
Act of 1970; 42 ULS.C.A. Section
7412(b\ 1A): 42 U.S.C.A. Section
7412(b)(1\(B). Plaintiff also identifies all
applicable OSHA and CAL-OSHA
regulations pertaining to asbestos exposure.
Plaintiff further identifies Worker’s
Compensation Law since the 1930's, under
which asbestos has been a compensable
disease. Plaintiff identifies his deposition,
and all exhibits attached thereto available
through Aiken & Welch, Inc., One Kaiser
Plaza, Suite 505, Oakland, California 94612
(510) 451-1580, Plaintiff refers to and
further identifies his responses to Standard
: Asbestos Case Interrogatories and all
exhibits and any supplemental responses
served in connection therewith, as a
summary of plaintiff's asbestos lawsuit.
Plaintiff further identifies his medical and
social security records previously supplied
OKTOo e& A A A RF Ww he
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7. On February 9, 2010 Plaintiff served
supplemental/amended responses to
Standard Asbestos Interrogatories Set:One,
No. 26 and Set ‘Two Nos.1through 3, «-.
Plaintiff's Supplemental/Amended
Responses to interrogatories, Set Nos. One
and Two, attached as Exhibit F to the
Hoang Decl. :
8. Plaintiff's supplemental/amended
responses again state that he installed
NIBCO valves on pipelines in the Fast Flux
Test area at AEC Hanford in Richland,
Washington,
Plaintiff's Supplemental/Amended
Responses to Interrogatories, Set Nos. One
and Two, attached as Exhibit F to the
Hoang Decl. at p. 13:22-28.
9. Mr. Castagna was deposed in this
matter, his deposition concluded on
February 19, 2010. .
Excerpts from the Deposition of Louis ~
Castagna, volumes 10, 17 and 18 taken on
April 7, 2009, January 29, 2010, and
February 19, 2010, respectively, attached to
the Hoang Decl. as Exhibit G.
10. Contrary to his response to NIBCO’s
Special Interrogatory No. 2 and
supplemental/amended responses to
Standard Asbestos Interrogatories Set One,
No. 26 and Set Two Nos. 1 through 3,
Plaintiff did not testify to working with
NIBCO valves in the Fast Flux Test Area at
AEC Hanford in Richland, Washington,
KAinjured 07298 russ NICD pd
to defendant. Plaintiff further identifies his ©
Complaint, as well as all previous pleadings
supplied in this action. Plaintiff's
investigation and discovery is continuing.
Plaintiff expressly reserves the right to
amend his Response pending the outcome
of plaintiff's investigation.”
Plaintiti?s Response to Defendant NIBCO
INC.’s Request for Production of
Documents, Set One, dated July 1, 2008,
attached as Exhibit F to the Declaration of
Umu Tafisi, at pp. 1:22-2:18.
7. Undisputed for purposes of this motion
only. bebe
8. Disputed. Incomplete recitation of the
facts. Misleading.
Plaintiff’s supplemental/amended responses
also state that throughout his career,
plaintiff used and worked with original
packing on NIBCO valves.
Plaintiff's Supplemental/Amended
Responses to Interrogatories, Set Nos. One
and Two, attached as Exhibit G to the
Declaration of Umu Tafisi at pp. 32:26-
33:16.
9. Undisputed for purposes of this motion .
only.
10. Undisputed for purposes of this motion
only.
UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS.SC ew YN Dh eR Ww NY
RON NN DR REN Re meme
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Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April 7,
2009, attached to the Hoang Decl. as
Exhibit G at p. 1022:18-24,
11. During his deposition session on April
7, 2009, Mr. Castagna testified that he
worked with NIBCO valves at Standard Oil,
Shell, Tosco, Glass Container in Antioch,
General Motors in Freemont, Tosco and
Chevron.
Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April 7,
2009, attached to the Hoang Decl. as
Exhibit G at p. 1022-18-24 and p.
1025:20-25.
12. Yet his February 9, 2010,
supplemental/amended responses to
Standard Asbestos interrogatories Set One, -
No. 26 and Set Two Nos. | through 3 do .
not identify or describe Plaintiff's work
with NIBCO valves at these jobs.
Plaintiff's Supplemental/Amended
Responses to Interrogatories, Set Nos. One
and Two, attached as Exhibit F to the
Hoang Decl. at pp.1:21-32:26.
13, Plaintiff testified that he did not know
the maintenance history to the majority of
NIBCO valves he repacked.
Excerpts from the Deposition of Louis
Castagna, volume-10 taken on April 7,
2009, attached to the Hoang Decl. as
Exhibit G at p. 1025:11-17.
14. However, Mr. Castagna believes he
installed NIBCO valves m the alky plant at
Tosco and the Dewax and RLOP units at
Chevron, and returned to work on them
again on shutdowns before anyone ever
worked on these valves.
Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April 7,
2009, attached to the Hoang Decl. as
Exhibit G at p. 1025:11-25.
dit
K:uinjurad 02 zoipless NIBCO sept
UL Undisputed for purposes of this motion
only.
Dede te toy ae .
12. Disputed. Incomplete recitation of the
facts. Misleading. .
Plaintiff's supplemental/amended
responses, dated February 9, 2010, state that
throughout his career, plaintiff used and
worked with original packing on NIBCO
valves.
Plaintiff's Supplemental/Amended
Responses to Interrogatories, Set Nos. One
and Two, attached as Exhibit G to the
Declaration of Un Tafisi at pp. 32:26-
6 Undisputed for purposes of this motion
only.
14. Undisputed for purposes of this motion
only.
UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC."S SEPARATE STATEMENT OF UNDISPUTED FACTS- 8 © RBH A BF BW NL
10
15. Plaintiff believes he was the first
person to work on the valves which he
installed one to one-and-a-half years prior
in the alky plant at Tosco and the Dewax
and RLOP units at Chevron based on the
way they were leaking.
Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April 7,
2009, attached to the Hoang Decl. as
Exhibit G at p. 1025:17-21.
16. Upon further questioning, Plaintiff
acknowledged he had no documents, facts,
or other tnformation to support his belief
that no one had worked on or repacked
‘these NIBCO valves-before his return.
Excerpts from the Deposition. of Louis
~Castagna, volume 10 taken on April 7,
2009, attached to the Hoang Decl. as
Exhibit G at p. 1026:2-15.
17. Mr. Castagna’s belief that he repacked
new NIBCO valves was solely based on his
perception that the NIBCO valves appeared
to not have been tampered with or
disturbed.
Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April 7,
2009, attached to the Hoang Decl. as
Exhibit G at pp. 1027:13-1029:4.
18. Plaintiff also believes he worked with,
as well as around others who worked with
original packing materials in old NIBCO
valves.
Excerpts from the Deposition of Louis
Castagna, Volume 18 taken on February 19,
2010, attached to Hoang Decl. as Exhibit G
at p. 1600:7-21 and p: 1603:1-5
19. Mr. Castagna’s belief that he and
others removed original packing from old
NIBCO valves was based on the lack of
markings on the packing nut, how the
packing gland frozen up, and the poor
condition of the packing material.
Excerpts from the Deposition of Louis
Castagna, Volume 18 taken on February 19,
2010, attached to Hoang Decl. as Exhibit G
at pp. 1600:7-1601:9 and p. 1063:9-25.
AlnjurechS62208\pbdins: NIBCO.wpd
15. Undisputed for purposes of this motion
only.
16. Undisputed for purposes of this motion
only.
17. Undisputed for purposes of this motion
only.
18. Undisputed for purposes of this motion
only. .
19. Undisputed for purposes of this motion
only.
UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIRCO INC,’S SEPARATE STATEMENT OF UNDISPUTED FACTS:Qo wn DH A PB BW wD
20. In fact, John Fening, a gasket and
packing expert commonly retained by the
Plaintiff's counsel, has testified that it is
possible to remove a packing nut or open a
valve bonnet without leaving wrench
marks.
Excerpt from the Deposition of John Fening
taken on November 20, 2009 in the matter
of David Prince v. Aqua Chem, Inc., et al.
LASC No. BC389759, attached as Exhibit
H to the Hoang Decl. at p. 55:12-18.
21. Plaintiff also testified that he worked
with packing materials supplied by NIBCO.
Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April’7,,
2009, February 19, 2010, attached to the
Hoang Decl. as Exhibit G at p. 1032:10 -
3:6. i .
22. He believed he worked with NIBCO
supplied packing materials based on the fact
that the packing material came in a manila
envelope with the name NIBCO stenciled
on it.
Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April 7,
2009, February 19, 2010, attached to the
Hoang Decl. as Exhibit G at p. 1033:7-20;
23. Plaintiff later strayed away from his
unsupported assumption that he worked.
with packing supplied by NIBCO.
Excerpts from the Deposition of Louis
Castagna, Volume 17 taken on January 29,
2010, attached to the Hoang Decl. as
Exhibit G at pp. 1539:21 - 1541:18.
24. Plaintiff replaced flange gaskets on -
NIBCO valves but further testified that he
did not know whether any of the gaskets
were supplied by NIBCO,
Excerpts from the Deposition of Louis
Castagna, volume 10 taken on April 7,
2009, February 19, 2010, attached to the
Hoang Decl. as Exhibit G at 8
1029:25-1030:9 and pp. 1030:24-1031:3.
25. NIBCO’s Special Interragatory No. 4
requested Plaintiff to identify all persons
whe can corroborate any facts in support of
SAnjuroditO220FNbss NIBCO.pe
20. Undisputed for purposes of this motion
only.
2 M Undisputed. for purposes of this motion
only.
22. Undisputed for purposes of this motion
only.
23. Undisputed for purposes of this motion
- only.
24. Undisputed for purposes of this motion
only.
25. Undisputed for purposes of this motion
only.
UKT
7
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCD we ND hh BRB BW ON
Plaintiff contention that he was exposed to
asbestos-containing NIBCO products.
Defendant NIBCO INC.’s Special
Interrogatories to Plaintiff Louis Castagna,
Set one, attached as Exhibit B to the Hoang
Decl. at p. 2:19-25.
26. Plaintiff response identified himself
and NIBCO’s Person Most
Knowledgeable/Custodian of Records.
Plaintiff's Responses to Defendant NIBCO
Inc.’s Special interrogatories, Set One,
attached as Exhibit C'to the Hoang Decl. at
p. 3:4-13. .
27. NIBCO’s Special Interrogatory No. 28
requested Plaintiff to state all facts in -
support of his false representation claim
against NIBCO.
Defendant NIBCO INC.’s Special
Interrogatories to Plaintiff Louis Castagna,
Set one, attached as Exhibit B to the Hoang
Decl. at p. 7:8-10.
28. In response Plaintiff referred NIBCO to
his response to Special Interrogatory No. 2
which states he installed: NIBCO valves on
pipelines in the Fast Flux Test area at AEC
Hanford in Richland, Washington from
1977 to 1979.
Plaintiff's Responses to Defendant NIBCO
Inc.’s Special Interrogatories, Set One,
attached as Exhibit C to the Hoang Decl. at
p. 9:1-3 and pp. 1:23-2:24.
29. NIBCO’s Request for Production No.
17 requested Plaintiff to provide all writings
evidencing, relating to or concerning his
contention that NIBCO made false
representations to plaintiff or his employers
KAinjureds p07 29¢\pldes NBEO wed
8
26. Disputed. Incomplete recitation of the
facts. Misleading.
Plaintiff also identified past and present
employees of NIBCO INC. Plaintiff also
referred defendant to his Response to
interrogatery No. 2, which lists his co-
workers: Mike Hernandez (current business
agent), address currently unknown; James.
Saathoff, c/o Brayton¢:Purcell LLP; Doyle
Williams, address currently unknown; Ed
Wetison, deceased; Ed Russell, address
currently unknown; and Larry. Blevins,
Concord, California.
Plaintiff's Responses to Defendant NIBCO
Inc.’s Special Interrogatories, Set One,
dated July 1, 2008, attached as Exhibit E to
the Declaration of Umu Tafisi, at p. 3:4-13
and pp. 1:23-2:12.
27. Plaintiff has dismissed his Cause of
Action for False Representation, with
mutual waiver of costs.
28. Plaintiff has dismissed his Cause of
Action for False Representation, with
mutua] waiver of costs,
29, Plaintiff has dismissed his Cause of
Action for False Representation, with
mutual waiver of costs.
VET
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC,’S SEPARATE STATEMENT OF UNDISPUTED FACTSregarding the safety of asbestos-containing
NIBCO products.
Defendant NIBCO INC.’s Request for
Production of Documents to Plaintiff Louis
Castagna, Set one, attached as Exhibit D to
the Hoang Dect. at pp. 5:26-6:3.
30. NIBCO’s Request for Production No.
18 requested Plaintiff to produce all
writings evidencing, relating to or
concerning his contention that NIBCO
actively concealed facts from him or his
employers regarding the safety of
asbestos-containing NIBCO products.
Defendant NIBCO.INC.’s-Request for
Production of Documents to Plaintiff Louis
Castagna, Set one,:attached as Exhibit:D to.
the Hoang Decl. at p. 6:4-8. “ Lo
31. In response to these Request for
Production Nos. 17 and 18, Plaintiff
identified his Complaint, responses to
Defendants Standard Interrogatories,
responses to Standard Requests for
Production and Identification of
Documents, books regarding asbestos and
various safety regulations.
Plaintiff's Response to Defendant NIBCO
INC.’s Request for Production of
Documents, Set one, attached as Exhibit E
to the Hoang Decl. at pp. 15:21-17:19.
32. The documents identified are the same
boilerplate documents Plaintiff’s counsel
identifies in other cases. They do not
evidence any representations made by
NIBCO to Plaintiff or his employers and.»
amounts to nothing more than a laundry list
as described by Andrews y. Foster Wheeler
g0oe) 138 Cal.App.4th 96, 106-07.
ignificantly, what is missing is the
identification of any documents establishing
a misrepresentation by NIBCO to Plaintiff.
Plaintiff's Response to. Defendant NIBCO
INC.’s Request for Production of
Documents, Set one, attached as Exhibit E
to the Hoang Decl. at pp. 15:21-17:19.
33. NIBCO’s Special Interrogatory No. 31
requested Mr, Castagna to identify all facts
in support of his claim for punitive
damages.
KMnlucedh L022 98iph hese NIBCO.wpd
30. Plaintiff has dismissed his Cause of
Action for False Representation, with
toutual waiver of costs.
31. Plaintiff has dismissed his Cause of
Action for False Representation, with
mutual waiver of costs.
32. Plaintiff has dismissed his Cause of
Action for False Representation, with
mutual waiver of casts.
33. Plaintiff has dismissed his claim for
punitive damages, with mutual waiver of
costs.
UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC."S SEPARATE STATEMENT OF UNDISPUTED FACTSou MW YR A BR WD
Defendant NIBCO INC. ’s Special
Interrogatories to Plaintiff Louis Castagna,
Set one, attached as Exhibit B to the Hoang
Decl. at p. 7:17-18.
34. In response to NIBCO’s Special
Interrogatory No. 31, Plaintiff referred
NIBCO to his response to Special
Interrogatory Nos, 2 and 19 where he states
that NIBCO knew or’should have known of
the health hazards associated with exposure
to asbestos and asbestos-containing
products prior to distribution, sale, and
supply and failed to take available safety
precautions. Further, defendant failed to
warn plaintiff as a consumer of the dangers
inherent in these products and that
NIBCO’s conduct was willful, malicious
and done with wanton disregard for
plaintiff's safety.
Plaintiff's Responses to Defendant NIBCO
Inc.’s Special Interrogatories, Set One,
attached as Exhibit C to the Hoang Decl. at
p. 9:9-11; pp. 1:23-2:24; pp. 7:26-8:6.
AD,
ICATION ISSUE NO. 1
34. Plaintiff has dismissed his claim for
punitive damages, with mutual waiver of
costs.
Causation is an essential element of Plaintiffs causes of action for negligence. As
discussed above, Plaintiff has produced absolutely no admissible evidence that he was actually
exposed to an asbestos-containing product which NIBCO manufactured, sold, or supplied. Thus
Plaintiff has failed to raise a triable issue of fact as to causation and each of these causes of action]
fails. (See Rutherford, supra, at 982; Lineaweaver, supra, at 1415-16; Dumin v. Owens-Coming
Fibergias (1994) 28 Cal. App 4th 656, 657-58.)
1. NIBCO incorporates herein the
above-stated Undisputed Material Facts
Nos. 1 to 34, inclusive, as though restated
in full. -
NIBCO incorporates herein the evidence
supporting the above-stated Undisputed
Material Facts Nos. 1 to 34, inclusive, as
though restated in full.
K AMniureu 102299 pld'rse YBCO. sep
1. Disputed. Incomplete recitation of the
facts. Misleading.
Plaintiff incorporates herein the above-
stated Responses Nos. 1 to 34, and further
incorporates the following responses and
evidence:
Plaintiff LOUIS CASTAGNA was
employed as a steamfitter and worked with
NIBCO INC. manufactured valves
throughout his career, including at Tosco
and Chevron.
(Declaration of Louis Castagna, { No. 2,
attached as Exhibit A to the Declaration of
Unnu Tafisi. Deposition Testimony of
Louis Castagna, Vol. 10, Page 1022, Line
12 - Line 24, attached as Exhibit B to the
UKT
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PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS:Cm YN DH BW HY |
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Declaration of Umu Tafisi)
On several occasions throughout his career
as a steamfitter, during the 1970's through
the mid-1980's, plaintiff performed work on
NIBCO INC, manufactured valves at
locations including Tosco in Avon,
California; Chevron, in Richmond,
California; and Fast Flux Test Area (FFTF)
at AEC Hanford in Richland, Washington.
(Declaration of Louis Castagna, 4 No. 3,
attached as Exhibit A to the Declaration of
Umnu Tafisi.)
.. Throughout his career from 1967 to 1995,
» plaintiff packed between .150-to 200
+. NIBCO INC. manufactured valves at...
« -various locations. Plaintiff also repacked
50 new NIBCO valves throughout his
career.
(Declaration of Louis Castagna, 4] No. 4,
attached as Exhibit A to the Declaration of
Umu Tafisi. Deposition Testimony of
Louis Castagna, Vol. 10, Page 1025, Line |
~ Line 13, attached as Exhibit B to the
Declaration of Uni Tafisi).
Plaintiff identified NIBCO INC.
manufactured valves that he worked with
based on the name, “NIBCO,” on the
valves.
(Declaration of Louis Castagna, {| No. 5,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
Plaintiff installed NIBCO INC.
manufactured valves during new
construction at Tosco, in Avon California,
and Chevron, in Richmond, California.
(Declaration of Louis Castagna, {| No. 6,
attached as Exhibit A to the Declaration of
Umu Tafisi. Deposition Testimony of
Louis Castagna, Vol. 10, Page 1025, Line
10 - Line 25, attached as Exhibit B to the
Declaration of Umn Tafisi).
Plaintiff handled and distributed, or
installed, new NIBCO INC. manufactured
valves at Tosco, in Avon, California,
Chevron, in Richmond, California, Fast
Flux Test Area (FF TF) in Richland,
Washington, and General Motors in
Snore 0229Rip tose NICO wpa i UK
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS:oO YN DW RF WwW wD
°
K:njareulh102208 peas NIBCO wp
Fremont, California, during the 1970's to
the mid-1980's, Furthermore, plaintiff
handled and distributed, or installed, new
NIBCO valves at several other jobsites in
the 1970's to the mid-1980's, but is unable
to identify the specific locations.
(Declaration of Louis Castagna, § No. 7,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
When plaintiff received new NIBCO INC.
manufactured valves to install or distribute
during his employment at several different
jobsites during the 1970's to the mid-1980's,
including Tosco, in Avon California,
Chevron, in Richmond, California, FFTF in
Richland, Washington, and General Motors,
in Fremont, California, several of these
valves had been jostled and disassembled
during the shipment process. Thus,
throughout the 1970's to the mid-1980's,
before he installed or distributed several
new NIBCO INC. manufactured valves, he
had to push down on the packing inside the
disassembled parts. [He used a flat head
screwdriver to push down on the packing.
He then re-assembled the packing glands to
get the packing in place.
(Declaration of Louis Castagna, | No. 8,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
The packing in these new, but
disassembled, NIBCO INC. manufactured
valves was origina] because the valves were
new when Plaintiff obtained them during
new construction at several different
jobsites during the 1970's to the mid-1980's,
including Tosco, in Avon California;
Chevron, in Richmond, California; FFTF in
Richland, Washington; and General Motors
in Fremont, California.
(Declaration of Louis Castagna, No. 9,
attached as Exhibit 4 to the Declaration of
Umu Tafisi.)
Plaintiff saw dust and debris from the
frayed parts of the packing, when he pushed
down on the packing inside the
disassembled valve parts. Plaintiffused a
flat head screwdriver to push.down on this
packing. He then re-assembled the packing
glands to get the packing in place. This
12 UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTSSo Oo WY DA A BF WwW ON
id
Edin hoo riers NBOOWeS
13
occurred before he installed or distributed
these valves during new construction at
several different locations during the 1970's
to the mid-1980's, including Tosco, in Avon
California; Chevron, in Richmond,
California; and FFTF in Richland,
Washington, and General Motors in
Fremont, California. He was not wearing a
task or any form of breathing protection
when he saw this dust. The dust got on his
hands. He breathed in this dust.
(Declaration of Louis Castagna, § No. 10,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
Defendant NIBCO INC. acknowledges in
its Responses to San Francisco General — -
Order No. 129, dated May 31, 2007, that it
began manufacturing valves in the 1930's,
and certain of the valves had enclosed
within their metal structure an asbestos-
containing stem packing. Defendant
NIBCO INC. acknowledged that it stopped
using asbestos in its valves during 1985 to
Responses to San Francisco General Order
No, 129, dated May 31, 2007 (Response to
Interrogatory No. 30, Page 24, Line 18 -
Line 25); (Response to Interrogatory No.
31, Subsection C, Page 26, Line 21 - Line
27, attached herein as Exhibit C to the
Declaration of Umu Tafisi).
NIBCO acknowledges that the starting date
for use of asbestos-containing valve
packing materials manufactured by other
companies is not known, but is believed by
NIBCO to be some time in the 1960's.
Responses to San Francisco General Order
No. 129, dated October 7, 2004 (Response
to Interrogatory No. 31, Page 25, Line 10 -
Line 13, attached herein as Exhibit C to the
Declaration of Umu Tafisi).
The NIBCO INC. manufactured valves
described and packed by Plaintiff LOUIS
CASTAGNA more likely than not
contained asbestos in their packing given
the description of the product and the time
period it was used.
{Declaration of Charles Ay, § No. 22,
attached as Exhibit D to the Declaration of
UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO JNC.'S SEPARATE STATEMENT OF UNDISPUTED FACTSWN YR YON NW RM me SB eR Rm ee
ew THA BF YH |= SB Owe IQA HH BF YW eR Be DoD we NI DUH FF WN
ADJUDICATION ISSUE-NO. 2: - mo :
Umu Tafisi).
The pushing down of the packing inside the
disassembled parts of new NIBCO INC.
manufactured valves more likely than net
released respirable asbestos fiber into the
surrounding air exposing Plaintiff LOUIS
CASTAGNA. This is especially so given
that Plaintiff LOUIS CASTAGNA directly
pushed down, with a flat head screwdriver,
on the packing inside the new NIBCO INC.
manufactured valves before he installed
em.
(Declaration of Charles Ay, 4 No. 23,
attached as Exhibit D to the Declaration of
Umu Tafisi). : :
Causation is an essential clement of Plaintiff's causes of action for strict liability. As
discussed above, Plaintiff has produced absolutely no admissible evidence that he was actually
exposed to an asbestos-containing product which NIBCO manufactured, sold, or supplied. Thus
Plaintiff has failed to raise a triable issue of fact as to causation and each of these causes of action
fails. (See Rutherford, supra, at 982; Lineaweaver, supra, at 1415-16; Dumin v, Owens-Corning
Fiberglas (1994) 28 Cal.App-4th 650, 657-58.)
NIBCO incorporates herein the
above-stated Undisputed Material Facts
Nos. | to 34, inclusive, as though restated
in full.
NIBCO incorporates herein the evidence
supporting the above-stated Undisputed
Material Facts Nos. | to 34, inclusive, as
though restated in full. 1.
Kine Oz9MpKerseNIECO woe
1. Disputed. Incomplete recitation of the
facts. Misleading.
Plaintiff incorporates herein the above-
stated Responses Nos. | to 34, and further
incorporates the following responses and
evidence:
Plaintiff LOUIS CASTAGNA was
employed as a steamfitter and worked with
NIBCO INC. manufactured valves
throughout his career, including at Tosco
and Chevron. ot
(Declaration of Louis Castagna, 4 No. 2,
attached as Exhibit A to the Declaration of
Umu Tafisi. Deposition Testimony of
Louis Castagna, Vol. 10, Page 1022, Line
12 — Line 24, attached as Exhibit B to the
Declaration of Umu Tafisi)
On several occasions throughout Plaintiff's
career as a steamfitter, during the 1970's
through the mid-1980's, plaintiff performed
work on NIBCO INC. manufactured valves
at locations including Tosco in Avon,
California; Chevron, in Richmond,
California; and Fast Flux Test Area (FFTF)
at AEC Hanford in Richland, Washington.
14
UKT
PLAINTIFFS RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTS.KMinivred 102298 pluegs: NICO wp
(Declaration of Louis Castagna, { No. 3,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
Throughout Plaintiffs career from 1967 to
1995, he packed between 150 to 200
NIBCO INC. manufactured valves at
various locations. Plaintiff also repacked 50
new NIBCO valves throughout his career.
(Declaration of Louis Castagna, { No. 4,
attached as Exhibit A to the Declaration of
Umu Tafisi. Deposition Testimony of
Louis Castagna, Vol. 10, Page 1025, Line 1
- Line 13, attached as Exhibit B to the
Declaration of Umu Tafisi).
.Plaintiff identified NIBCO INC.
‘manufactured valves that he worked with
based on the name, “NIBCO,” on the
valves. . :
(Declaration of Louis Castagna, § No. 5,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
Plaintiff installed NIBCO INC.
manufactured valves during new
construction at Tosco, in Avon California,
and Chevron, in Richmond, California.
(Declaration of Louis Castagna, § No. 6,
attached as Exhibit A to the Declaration of
Umu Tafisi. Deposition Testimony of
Louis Castagna, Vol. 10, Page 1025, Line
10 - Line 25, attached as Exhibit B to the
Declaration of Umu Tafisi).
Plaintiff handled and distributed, or
installed, new NIBCO INC. manufactured
valves at Tosco, in Avon, California,
Chevron, in Richmond, California, Fast
Flux Test Area (FFTF) in Richland,
Washington, and General Motors in
Fremont, California, during the 1970's to
the mid-1980's. Furthermore, plaintiff
handled and distributed, or installed, new
NIBCO valves at several other jobsites in
the 1970's to the mid-1980's, but is unable
to identify the specific locations.
(Declaration of Louis Castagna, { No. 7,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
When plaintiff received new NIBCO INC.
15 UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS:Cwm na aA mW eB wD
manufactured valves to install or distribute
during his employment at several different
jobsites during the 1970's to the mid-1980's,
including Tosco, in Avon California,
Chevron, in Richmond, California, FFTF in
Richland, Washington, and General Motors,
in Fremont, California, several of these
valves had been jostled and disassembled -
during the shipment process. Thus,
throughout the 1970's to the mid-1980's,
before he installed or distributed several
new NIBCO INC. manufactured valves, he
had to push down on the packing inside the
disassembled parts. He used a flat head
screwdriver to push down on the packing.
He then re-assembled the packing glands to
get the packing in place. .
Foon . (Declaration of Louis Castagna, 9 No. 8, :
- attached as Exhibit A to the Declaration of
Umu Tafisi.) :
The packing in these new, but ‘
disassembled, NIBCO INC. manufactured
valves was original because the valves were
new when Plaintiff obtained them during
new construction at several different
jobsites during the 1970's to the mid-1980's,
inchiding Tosco, in Avon California;
Chevron, in Richmond, California; FFTF in
Richland, Washington; and General Motors
in Fremont, California.
(Declaration of Louis Castagna, 4 No. 9,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
Plaintiff saw dust and debris from the
frayed parts of the packing, when he pushed
down on the packing inside the
disassembled valve parts. Plaintiff used a
flat head screwdriver to push down on this
packing. He then re-assembled the packing
glands to get the packing in place. This
occurred before he installed or distributed
these valves during new construction at
several different locations during the 1970's
to the mid-1980's, including Tosco, in Avon
California; Chevron, in Richmond,
California; and FFTF in Richland,
Washington, and General Motors in
Fremont, California, He was not wearing a
mask or any form of breathing protection
when he saw this dust. The dust got on his
bands. He breathed in this dust.
K Alnus) 229 ohne NIBCO weet 16 UKT
PLAINTIFF'S RESPONSE 10 DEFENDANT NIBCO INC,’S SEPARATE STATEMENT OF UNDISPUTED PACTS3S © wow 1a AW eB ww
(Weclaration of Louis Castagna, {| No. 10,
attached as Exhibit A to the Declaration of
Umu Tafisi.)
Defendant NIBCO INC. acknowledges in
its Responses to San Francisco General
Order No. 129, dated May 31, 2007, that it
began manufacturing valves in the 1930's,
and certain of the valves had enclosed
within their metal structure an asbestos-
containing stem packing. Defendant
‘NIBCO INC. acknowledged that it stopped
using asbestos in its valves during 1985 to
1988.
- Responses to San Francisco General Order
Bee ba 4 No.,129, dated May 31, 2007 (Response to
. . Interrogatory. No. 30, Page 24, Line 18 -
: ee tae 1 . oath. +» Line 25); (Response to Interrogatory No.
. . 31, Subsection C, Page 26, Line 21 - Line
27, attached herein as Exhibit C to the
Declaration of Umu Tafisi).
NIBCO acknowledges that the starting date
for use of asbestos-containing valve
packing materials manufactured by other
companies is not known, but is believed by
NIBCO to be some time in the 1960's.
Responses to San Francisco General Order
No. 129, dated October 7, 2004 (Response
to Interrogatory No. 31, Page 25, Line 10 -
Line 13, attached herein as Exhibit C to the
Declaration of Umu Tafisi).
The NIBCO INC. manufactured valves
described and packed by Plaintiff LOUIS
CASTAGNA more likely than not
contained asbestos in their packing given
the description of the product and the time
period it was used.
(Declaration of Charles Ay, {| No. 22,
attached as Exhibit D to the Declaration of
Umu Tafisi).
The pushing down of the packing inside the
disassembled parts of new NIBCO INC.
manufacturcd valves more likely than not
released respirable asbestos fiber into the
surrounding air exposing Plaintiff LOUIS
CASTAGNA. This is especially so given
that Plaintiff LOUIS CASTAGNA directly
pushed down, with a flat head screwdriver,
on the packing inside the new NIBCO INC.
‘KAtnjurod 102298 pins NIBCO wad 12 URE
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTSoD MW HH RB OW HY
——
manufactured valves before he installed
them.
(Declaration of Charles Ay, | No. 23,
attached as Exhibit D to the Declaration of
Umu Tafisi).
ADJUDICATION ISSUE NO. 3
The same lack of evidence cited above is also fatal to Plaintiff's Cause of Action for
False Representation under Restatement Second Torts section 402-B. Plaintiff's cause of action
for false representation is without merit because there is no evidence that NIBCO caused
Plaintiff's asbestos-related injuries or that he was exposed to any asbestos-containing products
manufactured, supplied, sold by NIBCO; or that Plaintiff relied on any misrepresentations by
1. NIBCO incorporates herein the. 1, Plainuff has dismissed his Cause-of |;
above-stated Undisputed Material ‘Facts ° - - : Action for False Representation, with, ...,
Nos. I to 34, inclusive, as though-restated + mutual waiver of costs... : wy
in full. . -
NIBCO incorporates herein the evidence
supporting the above-stated Undisputed
Material Facts Nos. 1 to 34, inclusive, as
though restated in full.
ADJUDICATION ISSUE NO. 4
Plaintiffs claim for punitive damages has no merit, because there is no evidence that
NIBCO caused Plaintiff’s asbestos-related injuries or that he was exposed to any products
attributable to NIBCO, or that there is any “clear and convincing evidence” that any of the
conduct at issue concerning NIBCO herein constitutes “malice,” “oppression,” or “fraud,” or
“despicable conduct,” which is necessary to support such a claim.
1, NIBCO incorporates herein the 1. Plaintiff has dismissed his claim for
above-stated Undisputed Material Facts punitive damages, with mutual waiver of
Nos. 1 to 34, inclusive, as though restated costs. ,
in full.
NIBCO incorporates herein the evidence
supporting the above-stated Undisputed
Material Facts Nos. | to 34, inclusive, as
though restated in full.
Dated: g G O BRAYTON®PURCELL LLP
By:
“Unia K Tay”
Attorneys for'Plaintiff
| pjarec\to220Mpldves NIBCO. wad 18 UKT
PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTS.
Preview
0 6 YD WwW Bw KH ee Nom Oo RUSH LANDING ROAD 2 BRAYTON@PURCELL LLP ATTORNEYS AT LAW ALAN R, BRAYTON, ESQ,, S.B. #73685 DAVID R. DONADIO, ESO, S.B. #154436 UMUK. TAFISI, ESQ., S.B. #269862 ELECTRONICALLY BRAYTON®PURCELL LLP Attorneys at Law FILED 222 Rush | Landing Road Superior Court of California, P.O. Box 6169 County of San Francisco Novato, California 94948-6169 AUG 25 2010 Tentative Ruling Contest Email: contestasbestos TR @braytontaw.conPy neon eae urt Deputy Clerk Attorneys for Plaintiff ™“ SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO LOUIS CASTAGNA, } ASBESTOS a ) No. CGC-07-274230 Plaintiff, ) : j PLAINTIFF'S RESPONSE TO Se SPR ASBAE ASBESTOS DEFENDANTS (BP) 3 DISPUTED FACTS Date: September 8, 2010 Time: 9:30 a.m. Dept: 220, Hon. Harold E. Kahn Trial Date: October 12, 2010 Action Filed: June 6, 2007 Plaintiff hereby submits the following responses to defendant NIBCQ INC.’s Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication, with reference to plaintiff's supporting evidence disputing such statements. UNDISPUTED MATERIAL FACTS AND ALLEGED SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE/EVIDENCE 1. Plaintiff's complaint alleges that various 1. Undisputed for purposes of this motion defendants caused him to be exposed to only. asbestos-containing products and thereby develop an asbestos-related disease. Plaintiff Louis Castagna’s Complaint for Personal Injury— Asbestos, attached as Exhibit A to the Declaration of Ken L, Hoang (“Hoang Decl.”) at pp. 1:17-3:8. K.Alnjored\02299iplayseeNIBCO.wpd 1 UKT PLAINTIFF'S RESPONSE TO DEPENDANT NIBCO INC,’S SEPARATE STATEMENT OF UNDISPUTED FACTS:SOO NO ot 1) 2. The Complaint does not, however, contain any specific allegations showing Plaintiff was exposed to asbestos products manufactured, sold or supplied by NIBCO. Plaintiffs’ Complaint for Personal Injury - Asbestos, attached as Exhibit A to the Hoang Decl. at pp. 3:1 ~ 13:27. 3. NIBCO’s Special Interrogatory No. 3 asked Plaintiff to state all facts in support of his contention that he was exposed to asbestos-containing products manufactured by NIBCO. Defendant NIBCO INC.’s Special Interrogatories to Plaintiff Louis Castagna, Set one, attached as Exhibit B to the Hoang Decl. at p. 2:15-18. 4. In response, Plaintiff referred NIBCO to his response to Special Interrogatory No. 2 in which Plaintiff specifically alleges he installed NIBCO valves on pipelines in the Fast Flux Test area at AEC Hanford in Richland, Washington from 1977 to 1979, Plaintiff's Responses to Defendant NIBCO Inc.’s Special Interragatories, Set One, attached as Exhibit C to the Hoang Decl. at pp. 2:24-3:3 and pp. 1:23-2:12. 5. NIBCO’s Request for Production No. 1 asked Mr. Castagna to produce all writing that support his contention that he was exposed to asbestos-containing NIBCO products, Defendant NIBCO INC.’s Request for Production of Documents to Plaintiff Louis Castagna, Set one, attached as Exhibit D to the Hoang Decl. at p. 3:9-11. 6. Plaintiff did not provide any responsive documents to NIBCO’s request. Plaintiff's Response to Defendant NIBCO INC.’s Request for Production of Documents, Set one, attached as Exhibit E to the Hoang Decl. at pp. 1:22-2:18. KAlgjuresh 02298 pid NIBCO.wpd, 2. : Undisputed for Purposes of this motion only. 3. Undisputed for purposes of this motion only. 4. Disputed. Incomplete recitation of the facts. Misleading. In response to Special Interrogatory No. 3, plaintiff referred NIBCO to his response to Special Interrogatory No. 2 in which he also leges that throughout his career he used and worked with NIBCO valves. Plaintiff's Responses to Defendant NIBCO Inc.’s Special Interrogatories, Set One, dated July 1, 2008, attached as Exhibit E to the Declaration of Umn Tafisi, at pp. 2:24-3:3 and pp. 1:23-2:12. 5. Undisputed for purposes of this motion only. 6. Disputed. Incomplete recitation of the facts. In Plaintiff's Response to Defendant’s Request For Production of Documents, Set One, Response to Request No. 1, plaintiff stated the following: . “Plaintiff further identifies numerous articles and studies relating to health UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC."S SEPARATE STATEMENT OF UNDISPUTED FACTSom QRH Bw Hw 10 PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTS hazards associated with exposure to asbestos which have appeared in the medical and scientific literatures since the tum of the century, and have also been summarized in various publications. Two texts that contain summaries and/or bibliographies of this literature are: Asbestos: Medical and Legal Aspects, Barry I. Castleman Prentice-Hall Law and Business, 1990. Source book on Asbestos Disease, Medical. Legal, and Engineering Aspects, George _A. Peters and Barbara J. Peters, Garland STPM: Press Vol. 1, 1980, Vol. 2, 1986. Plaintiff is in possession of these texts and will make them available for defendant's review. Due to copyright laws, plaintiff cannot provide copies of these texts to defendant. Plaintiff also identifies General Industry Safety Orders promulgated under the California Department of Industrial Relations, Division of Industrial Safety, Title &, Article 81, including but not limited to Sections 4104 through 4107, and Appendix A, Table 1, in effect during the years 1948 to 1972. Plaintiff identifies the NESHAP for asbestos, which are found in the Code of Federal Regulations, Title 40, Chapter 1, Subchapter C, Part 61, Subpart M, published under the Federal Clean Air Act of 1970; 42 ULS.C.A. Section 7412(b\ 1A): 42 U.S.C.A. Section 7412(b)(1\(B). Plaintiff also identifies all applicable OSHA and CAL-OSHA regulations pertaining to asbestos exposure. Plaintiff further identifies Worker’s Compensation Law since the 1930's, under which asbestos has been a compensable disease. Plaintiff identifies his deposition, and all exhibits attached thereto available through Aiken & Welch, Inc., One Kaiser Plaza, Suite 505, Oakland, California 94612 (510) 451-1580, Plaintiff refers to and further identifies his responses to Standard : Asbestos Case Interrogatories and all exhibits and any supplemental responses served in connection therewith, as a summary of plaintiff's asbestos lawsuit. Plaintiff further identifies his medical and social security records previously supplied OKTOo e& A A A RF Ww he RoR RYN BN BM DR eR SR mee od A hm BF MW SB me SO we HW DA mA BR Be BH AS 7. On February 9, 2010 Plaintiff served supplemental/amended responses to Standard Asbestos Interrogatories Set:One, No. 26 and Set ‘Two Nos.1through 3, «-. Plaintiff's Supplemental/Amended Responses to interrogatories, Set Nos. One and Two, attached as Exhibit F to the Hoang Decl. : 8. Plaintiff's supplemental/amended responses again state that he installed NIBCO valves on pipelines in the Fast Flux Test area at AEC Hanford in Richland, Washington, Plaintiff's Supplemental/Amended Responses to Interrogatories, Set Nos. One and Two, attached as Exhibit F to the Hoang Decl. at p. 13:22-28. 9. Mr. Castagna was deposed in this matter, his deposition concluded on February 19, 2010. . Excerpts from the Deposition of Louis ~ Castagna, volumes 10, 17 and 18 taken on April 7, 2009, January 29, 2010, and February 19, 2010, respectively, attached to the Hoang Decl. as Exhibit G. 10. Contrary to his response to NIBCO’s Special Interrogatory No. 2 and supplemental/amended responses to Standard Asbestos Interrogatories Set One, No. 26 and Set Two Nos. 1 through 3, Plaintiff did not testify to working with NIBCO valves in the Fast Flux Test Area at AEC Hanford in Richland, Washington, KAinjured 07298 russ NICD pd to defendant. Plaintiff further identifies his © Complaint, as well as all previous pleadings supplied in this action. Plaintiff's investigation and discovery is continuing. Plaintiff expressly reserves the right to amend his Response pending the outcome of plaintiff's investigation.” Plaintiti?s Response to Defendant NIBCO INC.’s Request for Production of Documents, Set One, dated July 1, 2008, attached as Exhibit F to the Declaration of Umu Tafisi, at pp. 1:22-2:18. 7. Undisputed for purposes of this motion only. bebe 8. Disputed. Incomplete recitation of the facts. Misleading. Plaintiff’s supplemental/amended responses also state that throughout his career, plaintiff used and worked with original packing on NIBCO valves. Plaintiff's Supplemental/Amended Responses to Interrogatories, Set Nos. One and Two, attached as Exhibit G to the Declaration of Umu Tafisi at pp. 32:26- 33:16. 9. Undisputed for purposes of this motion . only. 10. Undisputed for purposes of this motion only. UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS.SC ew YN Dh eR Ww NY RON NN DR REN Re meme QO ~~ A wA &F BH —- DO & YB DH HR B YW NY KS OS Excerpts from the Deposition of Louis Castagna, volume 10 taken on April 7, 2009, attached to the Hoang Decl. as Exhibit G at p. 1022:18-24, 11. During his deposition session on April 7, 2009, Mr. Castagna testified that he worked with NIBCO valves at Standard Oil, Shell, Tosco, Glass Container in Antioch, General Motors in Freemont, Tosco and Chevron. Excerpts from the Deposition of Louis Castagna, volume 10 taken on April 7, 2009, attached to the Hoang Decl. as Exhibit G at p. 1022-18-24 and p. 1025:20-25. 12. Yet his February 9, 2010, supplemental/amended responses to Standard Asbestos interrogatories Set One, - No. 26 and Set Two Nos. | through 3 do . not identify or describe Plaintiff's work with NIBCO valves at these jobs. Plaintiff's Supplemental/Amended Responses to Interrogatories, Set Nos. One and Two, attached as Exhibit F to the Hoang Decl. at pp.1:21-32:26. 13, Plaintiff testified that he did not know the maintenance history to the majority of NIBCO valves he repacked. Excerpts from the Deposition of Louis Castagna, volume-10 taken on April 7, 2009, attached to the Hoang Decl. as Exhibit G at p. 1025:11-17. 14. However, Mr. Castagna believes he installed NIBCO valves m the alky plant at Tosco and the Dewax and RLOP units at Chevron, and returned to work on them again on shutdowns before anyone ever worked on these valves. Excerpts from the Deposition of Louis Castagna, volume 10 taken on April 7, 2009, attached to the Hoang Decl. as Exhibit G at p. 1025:11-25. dit K:uinjurad 02 zoipless NIBCO sept UL Undisputed for purposes of this motion only. Dede te toy ae . 12. Disputed. Incomplete recitation of the facts. Misleading. . Plaintiff's supplemental/amended responses, dated February 9, 2010, state that throughout his career, plaintiff used and worked with original packing on NIBCO valves. Plaintiff's Supplemental/Amended Responses to Interrogatories, Set Nos. One and Two, attached as Exhibit G to the Declaration of Un Tafisi at pp. 32:26- 6 Undisputed for purposes of this motion only. 14. Undisputed for purposes of this motion only. UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC."S SEPARATE STATEMENT OF UNDISPUTED FACTS- 8 © RBH A BF BW NL 10 15. Plaintiff believes he was the first person to work on the valves which he installed one to one-and-a-half years prior in the alky plant at Tosco and the Dewax and RLOP units at Chevron based on the way they were leaking. Excerpts from the Deposition of Louis Castagna, volume 10 taken on April 7, 2009, attached to the Hoang Decl. as Exhibit G at p. 1025:17-21. 16. Upon further questioning, Plaintiff acknowledged he had no documents, facts, or other tnformation to support his belief that no one had worked on or repacked ‘these NIBCO valves-before his return. Excerpts from the Deposition. of Louis ~Castagna, volume 10 taken on April 7, 2009, attached to the Hoang Decl. as Exhibit G at p. 1026:2-15. 17. Mr. Castagna’s belief that he repacked new NIBCO valves was solely based on his perception that the NIBCO valves appeared to not have been tampered with or disturbed. Excerpts from the Deposition of Louis Castagna, volume 10 taken on April 7, 2009, attached to the Hoang Decl. as Exhibit G at pp. 1027:13-1029:4. 18. Plaintiff also believes he worked with, as well as around others who worked with original packing materials in old NIBCO valves. Excerpts from the Deposition of Louis Castagna, Volume 18 taken on February 19, 2010, attached to Hoang Decl. as Exhibit G at p. 1600:7-21 and p: 1603:1-5 19. Mr. Castagna’s belief that he and others removed original packing from old NIBCO valves was based on the lack of markings on the packing nut, how the packing gland frozen up, and the poor condition of the packing material. Excerpts from the Deposition of Louis Castagna, Volume 18 taken on February 19, 2010, attached to Hoang Decl. as Exhibit G at pp. 1600:7-1601:9 and p. 1063:9-25. AlnjurechS62208\pbdins: NIBCO.wpd 15. Undisputed for purposes of this motion only. 16. Undisputed for purposes of this motion only. 17. Undisputed for purposes of this motion only. 18. Undisputed for purposes of this motion only. . 19. Undisputed for purposes of this motion only. UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIRCO INC,’S SEPARATE STATEMENT OF UNDISPUTED FACTS:Qo wn DH A PB BW wD 20. In fact, John Fening, a gasket and packing expert commonly retained by the Plaintiff's counsel, has testified that it is possible to remove a packing nut or open a valve bonnet without leaving wrench marks. Excerpt from the Deposition of John Fening taken on November 20, 2009 in the matter of David Prince v. Aqua Chem, Inc., et al. LASC No. BC389759, attached as Exhibit H to the Hoang Decl. at p. 55:12-18. 21. Plaintiff also testified that he worked with packing materials supplied by NIBCO. Excerpts from the Deposition of Louis Castagna, volume 10 taken on April’7,, 2009, February 19, 2010, attached to the Hoang Decl. as Exhibit G at p. 1032:10 - 3:6. i . 22. He believed he worked with NIBCO supplied packing materials based on the fact that the packing material came in a manila envelope with the name NIBCO stenciled on it. Excerpts from the Deposition of Louis Castagna, volume 10 taken on April 7, 2009, February 19, 2010, attached to the Hoang Decl. as Exhibit G at p. 1033:7-20; 23. Plaintiff later strayed away from his unsupported assumption that he worked. with packing supplied by NIBCO. Excerpts from the Deposition of Louis Castagna, Volume 17 taken on January 29, 2010, attached to the Hoang Decl. as Exhibit G at pp. 1539:21 - 1541:18. 24. Plaintiff replaced flange gaskets on - NIBCO valves but further testified that he did not know whether any of the gaskets were supplied by NIBCO, Excerpts from the Deposition of Louis Castagna, volume 10 taken on April 7, 2009, February 19, 2010, attached to the Hoang Decl. as Exhibit G at 8 1029:25-1030:9 and pp. 1030:24-1031:3. 25. NIBCO’s Special Interragatory No. 4 requested Plaintiff to identify all persons whe can corroborate any facts in support of SAnjuroditO220FNbss NIBCO.pe 20. Undisputed for purposes of this motion only. 2 M Undisputed. for purposes of this motion only. 22. Undisputed for purposes of this motion only. 23. Undisputed for purposes of this motion - only. 24. Undisputed for purposes of this motion only. 25. Undisputed for purposes of this motion only. UKT 7 PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCD we ND hh BRB BW ON Plaintiff contention that he was exposed to asbestos-containing NIBCO products. Defendant NIBCO INC.’s Special Interrogatories to Plaintiff Louis Castagna, Set one, attached as Exhibit B to the Hoang Decl. at p. 2:19-25. 26. Plaintiff response identified himself and NIBCO’s Person Most Knowledgeable/Custodian of Records. Plaintiff's Responses to Defendant NIBCO Inc.’s Special interrogatories, Set One, attached as Exhibit C'to the Hoang Decl. at p. 3:4-13. . 27. NIBCO’s Special Interrogatory No. 28 requested Plaintiff to state all facts in - support of his false representation claim against NIBCO. Defendant NIBCO INC.’s Special Interrogatories to Plaintiff Louis Castagna, Set one, attached as Exhibit B to the Hoang Decl. at p. 7:8-10. 28. In response Plaintiff referred NIBCO to his response to Special Interrogatory No. 2 which states he installed: NIBCO valves on pipelines in the Fast Flux Test area at AEC Hanford in Richland, Washington from 1977 to 1979. Plaintiff's Responses to Defendant NIBCO Inc.’s Special Interrogatories, Set One, attached as Exhibit C to the Hoang Decl. at p. 9:1-3 and pp. 1:23-2:24. 29. NIBCO’s Request for Production No. 17 requested Plaintiff to provide all writings evidencing, relating to or concerning his contention that NIBCO made false representations to plaintiff or his employers KAinjureds p07 29¢\pldes NBEO wed 8 26. Disputed. Incomplete recitation of the facts. Misleading. Plaintiff also identified past and present employees of NIBCO INC. Plaintiff also referred defendant to his Response to interrogatery No. 2, which lists his co- workers: Mike Hernandez (current business agent), address currently unknown; James. Saathoff, c/o Brayton¢:Purcell LLP; Doyle Williams, address currently unknown; Ed Wetison, deceased; Ed Russell, address currently unknown; and Larry. Blevins, Concord, California. Plaintiff's Responses to Defendant NIBCO Inc.’s Special Interrogatories, Set One, dated July 1, 2008, attached as Exhibit E to the Declaration of Umu Tafisi, at p. 3:4-13 and pp. 1:23-2:12. 27. Plaintiff has dismissed his Cause of Action for False Representation, with mutual waiver of costs. 28. Plaintiff has dismissed his Cause of Action for False Representation, with mutua] waiver of costs, 29, Plaintiff has dismissed his Cause of Action for False Representation, with mutual waiver of costs. VET PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC,’S SEPARATE STATEMENT OF UNDISPUTED FACTSregarding the safety of asbestos-containing NIBCO products. Defendant NIBCO INC.’s Request for Production of Documents to Plaintiff Louis Castagna, Set one, attached as Exhibit D to the Hoang Dect. at pp. 5:26-6:3. 30. NIBCO’s Request for Production No. 18 requested Plaintiff to produce all writings evidencing, relating to or concerning his contention that NIBCO actively concealed facts from him or his employers regarding the safety of asbestos-containing NIBCO products. Defendant NIBCO.INC.’s-Request for Production of Documents to Plaintiff Louis Castagna, Set one,:attached as Exhibit:D to. the Hoang Decl. at p. 6:4-8. “ Lo 31. In response to these Request for Production Nos. 17 and 18, Plaintiff identified his Complaint, responses to Defendants Standard Interrogatories, responses to Standard Requests for Production and Identification of Documents, books regarding asbestos and various safety regulations. Plaintiff's Response to Defendant NIBCO INC.’s Request for Production of Documents, Set one, attached as Exhibit E to the Hoang Decl. at pp. 15:21-17:19. 32. The documents identified are the same boilerplate documents Plaintiff’s counsel identifies in other cases. They do not evidence any representations made by NIBCO to Plaintiff or his employers and.» amounts to nothing more than a laundry list as described by Andrews y. Foster Wheeler g0oe) 138 Cal.App.4th 96, 106-07. ignificantly, what is missing is the identification of any documents establishing a misrepresentation by NIBCO to Plaintiff. Plaintiff's Response to. Defendant NIBCO INC.’s Request for Production of Documents, Set one, attached as Exhibit E to the Hoang Decl. at pp. 15:21-17:19. 33. NIBCO’s Special Interrogatory No. 31 requested Mr, Castagna to identify all facts in support of his claim for punitive damages. KMnlucedh L022 98iph hese NIBCO.wpd 30. Plaintiff has dismissed his Cause of Action for False Representation, with toutual waiver of costs. 31. Plaintiff has dismissed his Cause of Action for False Representation, with mutual waiver of costs. 32. Plaintiff has dismissed his Cause of Action for False Representation, with mutual waiver of casts. 33. Plaintiff has dismissed his claim for punitive damages, with mutual waiver of costs. UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC."S SEPARATE STATEMENT OF UNDISPUTED FACTSou MW YR A BR WD Defendant NIBCO INC. ’s Special Interrogatories to Plaintiff Louis Castagna, Set one, attached as Exhibit B to the Hoang Decl. at p. 7:17-18. 34. In response to NIBCO’s Special Interrogatory No. 31, Plaintiff referred NIBCO to his response to Special Interrogatory Nos, 2 and 19 where he states that NIBCO knew or’should have known of the health hazards associated with exposure to asbestos and asbestos-containing products prior to distribution, sale, and supply and failed to take available safety precautions. Further, defendant failed to warn plaintiff as a consumer of the dangers inherent in these products and that NIBCO’s conduct was willful, malicious and done with wanton disregard for plaintiff's safety. Plaintiff's Responses to Defendant NIBCO Inc.’s Special Interrogatories, Set One, attached as Exhibit C to the Hoang Decl. at p. 9:9-11; pp. 1:23-2:24; pp. 7:26-8:6. AD, ICATION ISSUE NO. 1 34. Plaintiff has dismissed his claim for punitive damages, with mutual waiver of costs. Causation is an essential element of Plaintiffs causes of action for negligence. As discussed above, Plaintiff has produced absolutely no admissible evidence that he was actually exposed to an asbestos-containing product which NIBCO manufactured, sold, or supplied. Thus Plaintiff has failed to raise a triable issue of fact as to causation and each of these causes of action] fails. (See Rutherford, supra, at 982; Lineaweaver, supra, at 1415-16; Dumin v. Owens-Coming Fibergias (1994) 28 Cal. App 4th 656, 657-58.) 1. NIBCO incorporates herein the above-stated Undisputed Material Facts Nos. 1 to 34, inclusive, as though restated in full. - NIBCO incorporates herein the evidence supporting the above-stated Undisputed Material Facts Nos. 1 to 34, inclusive, as though restated in full. K AMniureu 102299 pld'rse YBCO. sep 1. Disputed. Incomplete recitation of the facts. Misleading. Plaintiff incorporates herein the above- stated Responses Nos. 1 to 34, and further incorporates the following responses and evidence: Plaintiff LOUIS CASTAGNA was employed as a steamfitter and worked with NIBCO INC. manufactured valves throughout his career, including at Tosco and Chevron. (Declaration of Louis Castagna, { No. 2, attached as Exhibit A to the Declaration of Unnu Tafisi. Deposition Testimony of Louis Castagna, Vol. 10, Page 1022, Line 12 - Line 24, attached as Exhibit B to the UKT ‘Kibluiuredtrozzegiply PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS:Cm YN DH BW HY | Sea a nA RW HR = ee NN we MY Ye eR YR NY Se ee aa AA BY KH & Soe A Declaration of Umu Tafisi) On several occasions throughout his career as a steamfitter, during the 1970's through the mid-1980's, plaintiff performed work on NIBCO INC, manufactured valves at locations including Tosco in Avon, California; Chevron, in Richmond, California; and Fast Flux Test Area (FFTF) at AEC Hanford in Richland, Washington. (Declaration of Louis Castagna, 4 No. 3, attached as Exhibit A to the Declaration of Umnu Tafisi.) .. Throughout his career from 1967 to 1995, » plaintiff packed between .150-to 200 +. NIBCO INC. manufactured valves at... « -various locations. Plaintiff also repacked 50 new NIBCO valves throughout his career. (Declaration of Louis Castagna, 4] No. 4, attached as Exhibit A to the Declaration of Umu Tafisi. Deposition Testimony of Louis Castagna, Vol. 10, Page 1025, Line | ~ Line 13, attached as Exhibit B to the Declaration of Uni Tafisi). Plaintiff identified NIBCO INC. manufactured valves that he worked with based on the name, “NIBCO,” on the valves. (Declaration of Louis Castagna, {| No. 5, attached as Exhibit A to the Declaration of Umu Tafisi.) Plaintiff installed NIBCO INC. manufactured valves during new construction at Tosco, in Avon California, and Chevron, in Richmond, California. (Declaration of Louis Castagna, {| No. 6, attached as Exhibit A to the Declaration of Umu Tafisi. Deposition Testimony of Louis Castagna, Vol. 10, Page 1025, Line 10 - Line 25, attached as Exhibit B to the Declaration of Umn Tafisi). Plaintiff handled and distributed, or installed, new NIBCO INC. manufactured valves at Tosco, in Avon, California, Chevron, in Richmond, California, Fast Flux Test Area (FF TF) in Richland, Washington, and General Motors in Snore 0229Rip tose NICO wpa i UK PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS:oO YN DW RF WwW wD ° K:njareulh102208 peas NIBCO wp Fremont, California, during the 1970's to the mid-1980's, Furthermore, plaintiff handled and distributed, or installed, new NIBCO valves at several other jobsites in the 1970's to the mid-1980's, but is unable to identify the specific locations. (Declaration of Louis Castagna, § No. 7, attached as Exhibit A to the Declaration of Umu Tafisi.) When plaintiff received new NIBCO INC. manufactured valves to install or distribute during his employment at several different jobsites during the 1970's to the mid-1980's, including Tosco, in Avon California, Chevron, in Richmond, California, FFTF in Richland, Washington, and General Motors, in Fremont, California, several of these valves had been jostled and disassembled during the shipment process. Thus, throughout the 1970's to the mid-1980's, before he installed or distributed several new NIBCO INC. manufactured valves, he had to push down on the packing inside the disassembled parts. [He used a flat head screwdriver to push down on the packing. He then re-assembled the packing glands to get the packing in place. (Declaration of Louis Castagna, | No. 8, attached as Exhibit A to the Declaration of Umu Tafisi.) The packing in these new, but disassembled, NIBCO INC. manufactured valves was origina] because the valves were new when Plaintiff obtained them during new construction at several different jobsites during the 1970's to the mid-1980's, including Tosco, in Avon California; Chevron, in Richmond, California; FFTF in Richland, Washington; and General Motors in Fremont, California. (Declaration of Louis Castagna, No. 9, attached as Exhibit 4 to the Declaration of Umu Tafisi.) Plaintiff saw dust and debris from the frayed parts of the packing, when he pushed down on the packing inside the disassembled valve parts. Plaintiffused a flat head screwdriver to push.down on this packing. He then re-assembled the packing glands to get the packing in place. This 12 UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTSSo Oo WY DA A BF WwW ON id Edin hoo riers NBOOWeS 13 occurred before he installed or distributed these valves during new construction at several different locations during the 1970's to the mid-1980's, including Tosco, in Avon California; Chevron, in Richmond, California; and FFTF in Richland, Washington, and General Motors in Fremont, California. He was not wearing a task or any form of breathing protection when he saw this dust. The dust got on his hands. He breathed in this dust. (Declaration of Louis Castagna, § No. 10, attached as Exhibit A to the Declaration of Umu Tafisi.) Defendant NIBCO INC. acknowledges in its Responses to San Francisco General — - Order No. 129, dated May 31, 2007, that it began manufacturing valves in the 1930's, and certain of the valves had enclosed within their metal structure an asbestos- containing stem packing. Defendant NIBCO INC. acknowledged that it stopped using asbestos in its valves during 1985 to Responses to San Francisco General Order No, 129, dated May 31, 2007 (Response to Interrogatory No. 30, Page 24, Line 18 - Line 25); (Response to Interrogatory No. 31, Subsection C, Page 26, Line 21 - Line 27, attached herein as Exhibit C to the Declaration of Umu Tafisi). NIBCO acknowledges that the starting date for use of asbestos-containing valve packing materials manufactured by other companies is not known, but is believed by NIBCO to be some time in the 1960's. Responses to San Francisco General Order No. 129, dated October 7, 2004 (Response to Interrogatory No. 31, Page 25, Line 10 - Line 13, attached herein as Exhibit C to the Declaration of Umu Tafisi). The NIBCO INC. manufactured valves described and packed by Plaintiff LOUIS CASTAGNA more likely than not contained asbestos in their packing given the description of the product and the time period it was used. {Declaration of Charles Ay, § No. 22, attached as Exhibit D to the Declaration of UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO JNC.'S SEPARATE STATEMENT OF UNDISPUTED FACTSWN YR YON NW RM me SB eR Rm ee ew THA BF YH |= SB Owe IQA HH BF YW eR Be DoD we NI DUH FF WN ADJUDICATION ISSUE-NO. 2: - mo : Umu Tafisi). The pushing down of the packing inside the disassembled parts of new NIBCO INC. manufactured valves more likely than net released respirable asbestos fiber into the surrounding air exposing Plaintiff LOUIS CASTAGNA. This is especially so given that Plaintiff LOUIS CASTAGNA directly pushed down, with a flat head screwdriver, on the packing inside the new NIBCO INC. manufactured valves before he installed em. (Declaration of Charles Ay, 4 No. 23, attached as Exhibit D to the Declaration of Umu Tafisi). : : Causation is an essential clement of Plaintiff's causes of action for strict liability. As discussed above, Plaintiff has produced absolutely no admissible evidence that he was actually exposed to an asbestos-containing product which NIBCO manufactured, sold, or supplied. Thus Plaintiff has failed to raise a triable issue of fact as to causation and each of these causes of action fails. (See Rutherford, supra, at 982; Lineaweaver, supra, at 1415-16; Dumin v, Owens-Corning Fiberglas (1994) 28 Cal.App-4th 650, 657-58.) NIBCO incorporates herein the above-stated Undisputed Material Facts Nos. | to 34, inclusive, as though restated in full. NIBCO incorporates herein the evidence supporting the above-stated Undisputed Material Facts Nos. | to 34, inclusive, as though restated in full. 1. Kine Oz9MpKerseNIECO woe 1. Disputed. Incomplete recitation of the facts. Misleading. Plaintiff incorporates herein the above- stated Responses Nos. | to 34, and further incorporates the following responses and evidence: Plaintiff LOUIS CASTAGNA was employed as a steamfitter and worked with NIBCO INC. manufactured valves throughout his career, including at Tosco and Chevron. ot (Declaration of Louis Castagna, 4 No. 2, attached as Exhibit A to the Declaration of Umu Tafisi. Deposition Testimony of Louis Castagna, Vol. 10, Page 1022, Line 12 — Line 24, attached as Exhibit B to the Declaration of Umu Tafisi) On several occasions throughout Plaintiff's career as a steamfitter, during the 1970's through the mid-1980's, plaintiff performed work on NIBCO INC. manufactured valves at locations including Tosco in Avon, California; Chevron, in Richmond, California; and Fast Flux Test Area (FFTF) at AEC Hanford in Richland, Washington. 14 UKT PLAINTIFFS RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTS.KMinivred 102298 pluegs: NICO wp (Declaration of Louis Castagna, { No. 3, attached as Exhibit A to the Declaration of Umu Tafisi.) Throughout Plaintiffs career from 1967 to 1995, he packed between 150 to 200 NIBCO INC. manufactured valves at various locations. Plaintiff also repacked 50 new NIBCO valves throughout his career. (Declaration of Louis Castagna, { No. 4, attached as Exhibit A to the Declaration of Umu Tafisi. Deposition Testimony of Louis Castagna, Vol. 10, Page 1025, Line 1 - Line 13, attached as Exhibit B to the Declaration of Umu Tafisi). .Plaintiff identified NIBCO INC. ‘manufactured valves that he worked with based on the name, “NIBCO,” on the valves. . : (Declaration of Louis Castagna, § No. 5, attached as Exhibit A to the Declaration of Umu Tafisi.) Plaintiff installed NIBCO INC. manufactured valves during new construction at Tosco, in Avon California, and Chevron, in Richmond, California. (Declaration of Louis Castagna, § No. 6, attached as Exhibit A to the Declaration of Umu Tafisi. Deposition Testimony of Louis Castagna, Vol. 10, Page 1025, Line 10 - Line 25, attached as Exhibit B to the Declaration of Umu Tafisi). Plaintiff handled and distributed, or installed, new NIBCO INC. manufactured valves at Tosco, in Avon, California, Chevron, in Richmond, California, Fast Flux Test Area (FFTF) in Richland, Washington, and General Motors in Fremont, California, during the 1970's to the mid-1980's. Furthermore, plaintiff handled and distributed, or installed, new NIBCO valves at several other jobsites in the 1970's to the mid-1980's, but is unable to identify the specific locations. (Declaration of Louis Castagna, { No. 7, attached as Exhibit A to the Declaration of Umu Tafisi.) When plaintiff received new NIBCO INC. 15 UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS:Cwm na aA mW eB wD manufactured valves to install or distribute during his employment at several different jobsites during the 1970's to the mid-1980's, including Tosco, in Avon California, Chevron, in Richmond, California, FFTF in Richland, Washington, and General Motors, in Fremont, California, several of these valves had been jostled and disassembled - during the shipment process. Thus, throughout the 1970's to the mid-1980's, before he installed or distributed several new NIBCO INC. manufactured valves, he had to push down on the packing inside the disassembled parts. He used a flat head screwdriver to push down on the packing. He then re-assembled the packing glands to get the packing in place. . Foon . (Declaration of Louis Castagna, 9 No. 8, : - attached as Exhibit A to the Declaration of Umu Tafisi.) : The packing in these new, but ‘ disassembled, NIBCO INC. manufactured valves was original because the valves were new when Plaintiff obtained them during new construction at several different jobsites during the 1970's to the mid-1980's, inchiding Tosco, in Avon California; Chevron, in Richmond, California; FFTF in Richland, Washington; and General Motors in Fremont, California. (Declaration of Louis Castagna, 4 No. 9, attached as Exhibit A to the Declaration of Umu Tafisi.) Plaintiff saw dust and debris from the frayed parts of the packing, when he pushed down on the packing inside the disassembled valve parts. Plaintiff used a flat head screwdriver to push down on this packing. He then re-assembled the packing glands to get the packing in place. This occurred before he installed or distributed these valves during new construction at several different locations during the 1970's to the mid-1980's, including Tosco, in Avon California; Chevron, in Richmond, California; and FFTF in Richland, Washington, and General Motors in Fremont, California, He was not wearing a mask or any form of breathing protection when he saw this dust. The dust got on his bands. He breathed in this dust. K Alnus) 229 ohne NIBCO weet 16 UKT PLAINTIFF'S RESPONSE 10 DEFENDANT NIBCO INC,’S SEPARATE STATEMENT OF UNDISPUTED PACTS3S © wow 1a AW eB ww (Weclaration of Louis Castagna, {| No. 10, attached as Exhibit A to the Declaration of Umu Tafisi.) Defendant NIBCO INC. acknowledges in its Responses to San Francisco General Order No. 129, dated May 31, 2007, that it began manufacturing valves in the 1930's, and certain of the valves had enclosed within their metal structure an asbestos- containing stem packing. Defendant ‘NIBCO INC. acknowledged that it stopped using asbestos in its valves during 1985 to 1988. - Responses to San Francisco General Order Bee ba 4 No.,129, dated May 31, 2007 (Response to . . Interrogatory. No. 30, Page 24, Line 18 - : ee tae 1 . oath. +» Line 25); (Response to Interrogatory No. . . 31, Subsection C, Page 26, Line 21 - Line 27, attached herein as Exhibit C to the Declaration of Umu Tafisi). NIBCO acknowledges that the starting date for use of asbestos-containing valve packing materials manufactured by other companies is not known, but is believed by NIBCO to be some time in the 1960's. Responses to San Francisco General Order No. 129, dated October 7, 2004 (Response to Interrogatory No. 31, Page 25, Line 10 - Line 13, attached herein as Exhibit C to the Declaration of Umu Tafisi). The NIBCO INC. manufactured valves described and packed by Plaintiff LOUIS CASTAGNA more likely than not contained asbestos in their packing given the description of the product and the time period it was used. (Declaration of Charles Ay, {| No. 22, attached as Exhibit D to the Declaration of Umu Tafisi). The pushing down of the packing inside the disassembled parts of new NIBCO INC. manufacturcd valves more likely than not released respirable asbestos fiber into the surrounding air exposing Plaintiff LOUIS CASTAGNA. This is especially so given that Plaintiff LOUIS CASTAGNA directly pushed down, with a flat head screwdriver, on the packing inside the new NIBCO INC. ‘KAtnjurod 102298 pins NIBCO wad 12 URE PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTSoD MW HH RB OW HY —— manufactured valves before he installed them. (Declaration of Charles Ay, | No. 23, attached as Exhibit D to the Declaration of Umu Tafisi). ADJUDICATION ISSUE NO. 3 The same lack of evidence cited above is also fatal to Plaintiff's Cause of Action for False Representation under Restatement Second Torts section 402-B. Plaintiff's cause of action for false representation is without merit because there is no evidence that NIBCO caused Plaintiff's asbestos-related injuries or that he was exposed to any asbestos-containing products manufactured, supplied, sold by NIBCO; or that Plaintiff relied on any misrepresentations by 1. NIBCO incorporates herein the. 1, Plainuff has dismissed his Cause-of |; above-stated Undisputed Material ‘Facts ° - - : Action for False Representation, with, ..., Nos. I to 34, inclusive, as though-restated + mutual waiver of costs... : wy in full. . - NIBCO incorporates herein the evidence supporting the above-stated Undisputed Material Facts Nos. 1 to 34, inclusive, as though restated in full. ADJUDICATION ISSUE NO. 4 Plaintiffs claim for punitive damages has no merit, because there is no evidence that NIBCO caused Plaintiff’s asbestos-related injuries or that he was exposed to any products attributable to NIBCO, or that there is any “clear and convincing evidence” that any of the conduct at issue concerning NIBCO herein constitutes “malice,” “oppression,” or “fraud,” or “despicable conduct,” which is necessary to support such a claim. 1, NIBCO incorporates herein the 1. Plaintiff has dismissed his claim for above-stated Undisputed Material Facts punitive damages, with mutual waiver of Nos. 1 to 34, inclusive, as though restated costs. , in full. NIBCO incorporates herein the evidence supporting the above-stated Undisputed Material Facts Nos. | to 34, inclusive, as though restated in full. Dated: g G O BRAYTON®PURCELL LLP By: “Unia K Tay” Attorneys for'Plaintiff | pjarec\to220Mpldves NIBCO. wad 18 UKT PLAINTIFF'S RESPONSE TO DEFENDANT NIBCO INC.'S SEPARATE STATEMENT OF UNDISPUTED FACTS.