Motion-Secondary: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                HOWARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

REDWOOD CITY, CA 94061-3436

TELEPHONE (650) 365-715

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SHAWN M. RIDLEY, ESQ. SBN [144311]
CHRISTINA M. HELWIG, ESQ. SBN [240490]
HOWARD ROME MARTIN & RIDLEY LLP
1775 Woodside Road, Suite 200

Redwood City, CA 94061-3436

Telephone: (650) 365-7715

Attorneys for Defendant
EATON ELECTRICAL INC.

LOUIS CASTAGNA,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BP),
Defendants.

1

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUN 23 2010

Clerk of the Court
BY: CHRISTLE ARRIOLA
Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

Case No: CGC-07-274230

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF EATON
ELECTRICAL INC,’S MOTION FOR
SUMMARY JUDGMENT, OR
ALTERNATIVELY, SUMMARY
ADJUDICATION

Date: September 9, 2010
Time: 9:30 a.m,

Dept.: 220

Trial Date: October 12, 2010

JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF BATON ELECTRICAL INC.’S MOTION FOR SUMMARYHowarRD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

REDWOOD CITY, CA 94061-3436

‘TELEPHONE (650) 365-7715

TABLE OF CONTENTS

1. INTRODUCTION
Il. STATEMENT OF FACTS
Ti. ARGUMENT

A. EEI Has Made A Clear Showing Sufficient To Shift The
Burden To Plaintiff To Raise A Triable Issue Of Fact

B. No Triable Issue of Material Fact Exists Against EEI and EE!
Is Entitled to Judgment As A Matter Of Law

C. Plaintiff Cannot Meet His Burden Of Proving Exposure
To Asbestos From Any EEI Product

D. EEI Is Not Liable For Affixed Or Replacement Parts Of Third Party
Manufacturers. There Is No Duty To Warn Under Theories Of
Negligence Or Strict Liability For Affixed Or Replacement Parts

E, EEL Is Not Liable For Defective Products Under Any Strict Liability

Theory (Manufacturing, Design Defect Or Failure To Warn) For
Affixed Or Replacement Parts They Did Not Supply

F. There Is No Evidence Of Fraudulent Conduct, Malice Or
Oppression By EEI

G. There is No Evidence to Support Plaintiffs’ Claim for Punitive Damages

H. There Is No Clear And Convincing Evidence Of Malice, Fraud Or
Oppression By EEI

IV. CONCLUSION

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowarb ROME MARTIN & RIDLEY LLP

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TABLE OF AUTHORITIES

Cases Page

Aguilar y. Atlantic Richfield Company (2001) 25 Cal. 4th 826, 55 .cccssssssseererrssneteecnnesnceey

American Airlines, Inc. v. ” Sheppard, Mullin, Richter & Hampton (2002) 9 96 Cal. al. Appt 4th 1017,

6,9

1049... tee veel
Andrews v. Foster Wheeler LLC (2006) 1 138 Cal.App. Ath 96, 104... wT, 8
Cadio v. Owens-Illinois, Inc. (2004) 125 Cal.App.4" 513......ccccceceeeeeestestrsreereeeees 11, 14
Chaknova v, Wilbur-Ellis Company (1999) 69 Cal. App.4th 962, 975 cscssssesssessssssneesseeesnneeeteennee LO

Daly v. General Motors Corp, (1978) 20 Cal.3d 725

Dumin v. Owens Corning Fiberglass Corp. (1994) 28 Cal.App.4th 650, 653-654 oven 8, 9
Hoch v. Allied-Signal (1994) 24 Cal.App.4th 48 at 61 ccna 16, 17, 18
Holdgrafer v. Unocal Corp. (2008) 160 Cal App.4th 907, 933 uc cccsesseeseeneeseseseeereesneenen 16
Hunter v. Pacific Mechanical Corp., (1995) 37 Cal. App.4th 1282, 1289 sss
Jimenez v. Superior Court (2002) 29 Cal4th 473........:ccceceeesertnererteettineeneneeeeeenesereereeeees 12

Johns-Manville Sales = Corp. Private Carriage v. v. Workers "s Compensation. Appeals Bd. (1979) 96

Cal. App.3d 923 ..
Jones v. Ortho Pharmaceutical 1 Corp, (1985) 163 Cal. App. 3d. 396, 403-404 ..
Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.........:: sc reeeee 16
Lackner v, North (2006) 135 Cal-App.4th 1188, 1210........::cccssssseeeeeteeeeeeeeeeesnerreeneers 15, 16
Lineaweaver v, Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416.....csssseessseseeseesiee 8, 10
MeGonnell v, Kaiser Gypsum Co., (2002) 98 Cal. App. 4th 1098, 1103 ....sessesseescsesneeenrerseessets 6
Peterson v. Superior Court (1995) 10 Cal. A LLBS .cececseceseeees eee ceteeceeneesteenneee leeeeeentens lt

Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 364
Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th

BAT, BOL... cece eee e ener E EEE ee Eee AEE EEE EEE EEE EEE EEE EEOC te 15, 16

Sinai Memorial Chapel y, Dudler (1991) 231 Cal. App.3d 190, 196 .....sscscsescnersseressveesnrenneeesnssniss

Smith v, ACandS, Inc. (1994) 31 Cal.App.4th 77, 89 occ

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MEMORANDUM OF POINTS AND AUTHORITIES [N SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

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Stewart v. Truck Ins, Exchange (1993) 17 Cal.App.4th 486, 483 fin. 29........cceeeeeeee eect eset eee ee 16
Taylor v. Elliot Turbomachinery Co. (2009) 171 Cal.App.4" 564, 575, 571-573,
575-580, 58h. cccccececcreeecceeescnaeeeeese eee ee beter at et eee r ene n Eee E ee ee Denna eE ears ee ees

Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256....
Union Bank v. Sup. Ct (1995) 31 Cal.App.4th 573, 590... eee

Zambrana v. Standard oil Co. (1972) 26 Cal.App.3d 209.........ccccceetseertiereeceee tee an seen nee 14

Federal Court Cases
Celotex Corp. v. Catrett (1986) 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 oreescrecsececseeenseeneersee

Walton v. Wm. Powell Co. (2010 Cal. App.LEXTS 545) (2" District 2010)......0eecceeeneee
Washington Cases

Braaten v. Saberhagen Holdings (Wa, 2008) 198 P.3d 493......:.:cccsrsreereeeerrir errr ees riees 15
Statutes

California Civil Code § 3294

California Civil Code § 3294 (b).......cecseeeeeeeee Deen ene eee ne eee eNS EA NRO E EDA EE EAE EG A EOE ERLE UED EA OE ES 16
California Civil Code § 3294 )(1)...ccceece cs ceee terre ernie re eeterseteentaeerieeraercrresages 15
California Civil Code § 3294(C)(2)....cscscceceneceeeete eset neta eeeean eset reer eee be eeu n tea ete renee tere 15
California Civil Code § 3294(0)(3).....ccecssesecceeceeeeee ener eee etree ee reese eH REET ner 15
California Code of Civil Procedure § 437C..sus:sm:naucnsnnuniannnenenneennnnimnnnennns®

California Code of Civil Procedure § 437¢(0)(2)

California Code of Civil Procedure § 437¢, sub d.........ceccccceeeeeee renee eres tee eee ientenn ese neree 10

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’§ MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowarD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

REDWOOD CITY, CA 94061-3436

TELEPHONE (650) 365-7715

I INTRODUCTION

Defendant EATON ELECTRICAL INC, (hereinafter “EEI”) brings this Motion for
Summary Judgment or alternatively Summary Adjudication because Plaintiff has failed to present
any evidence establishing that EET is liable for plaintiff Louis Castagna’s alleged exposure to
asbestos. Plaintiff's claims against EEI lack merit. Plaintiff has failed to produce any evidence that
he was exposed to asbestos-containing products manufactured, sold, supplied or marketed by EEI.
As such, Plaintiff is unable to establish the requisite element of causation necessary to maintain any
of its causes of action against EE]. Thus, EEI is entitled to Summary Judgment on each cause of
action as a matter of law. In the alternative, EEI requests Summary Adjudication of Plaintifi’s
claims for negligence, strict liability, false representation and punitive damages.

I, STATEMENT OF FACTS

Plaintiff filed his personal injury law suit against EE] on June 26, 2007 claiming
negligence, strict liability, false representation and punitive damages. (Separate Statement of
Undisputed Material Facts, hereinafter “UMF, 1”), Plaintiffs deposition took place over the course
of 18 sessions. His deposition has concluded. (UMF, 2). Plaintiff identified Cutler-Hammer in
Volumes IV, V, VIII and XVI of his deposition. (UMF, 3).

Plaintiff worked on several ships over the course of his career. He worked on the DALTON
and the GOVERNOR MILLER from 1967 to 1968. (UMF, 4), On the DALTON, Plaintiff held a
flashlight while others worked on one Cutler-Hammer electrical panel housed in a metal box.
(UME, 5). Plaintiff did not personally perform work on the Cutler-Hammer panel on the
DALTON, (UME, 6). Plaintiff did not “know exactly what the workers did” to the Cutler-Hammer
panel or the function of the panel on the DALTON. (UMF, 7). When asked what work he saw
others perform on the Cutler-Hammer panel on the DALTON, Plaintiff testified that he was “not
sure what they did.” (UMF, 8). Plaintiff could not say whether or not the work on the Cutler-
Hammer panel on the DALTON involved nonmetal components. (UMF, 9). On the DALTON,

Plaintiff was present when the engineers cut some material that he believed to be “Bakelite,” in a

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200
REDWOOD CITY, CA 94061-3436

‘TELEPHONE (650} 365-7715

machine shop on the ship. (UMP, 10). There were no writings or logos on the Bakelite that Plaintiff
observed being cut on the DALTON. (UMF, 11). Plaintiff did not know the brand name,
manufacturer or supplier of the Bakelite on the DALTON. (UMF, 12). Plaintiff observed engineers
use a power hacksaw, grinder and drill motor on the Bakelite material. (UMF, 13).

While on the GOVERNOR MILLER, Plaintiff assisted others replacing insulators in a
Cutler-Hammer control panel. (UMF, 14). Plaintiff did not know the age of the Cutler-Hammer
panel on the GOVERNOR MILLER. (UMF, 15). Plaintiff removed two insulators and helped
replace three to four insulators on the panel on the GOVERNOR MILLER. (UMF, 16). Plaintiff
did not know if the two insulators he removed were original to the Cutler-Hammer panel on the
GOVERNOR MILLER. (UMF, 17). Plaintiff removed the two insulators using screwdrivers,
wrenches, channel locks and vice grips. The plaintiff also detached electrical wires and copper
studs. (UMF, 18). Plaintiff helped fabricate new components that went onto the three to four
insulators they built. (UMF, 19). Plaintiff fabricated the new insulators out of a sheet product he
believed to be Bakelite. (UMF, 20). The material had numbers on it but no writings or logos.
(UME, 21). Plaintiff did not remember what numbers were on the material. (UMF, 22). Plaintiff cut
the sheet material to size and drilled holes to attach it to the insulators. (UMF, 23). Plaintiff then
assembled the insulators with studs and installed them into the Cutler-Hammer equipment on the
GOVERNOR MILLER. (UMF, 24).

Plaintiff replaced wire in the panel on the GOVERNOR MILLER with new wire. He
stripped some of the insulation on the new wire prior to installation. (UME, 25). Plaintiff did not
know the brand name, manufacturer or supplier of the new wire he installed. (UMF, 26). Plaintiff
did not know whether any of the wire he removed was original to the Cutler-Hammer panel,
because the GOVERNOR MILLER was an old vessel. Plaintiff believed that it was built in the
1920s. (UMF, 27).

There is no evidence that the “Bakelite” sheet material that plaintiff used on the DALTON
or GOVERNOR MILLER was manufactured, distributed or supplied by Cutler-Hammer. (UMF,

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200,
REDWOOD CITY, CA 94061-3436

TELEPHONE (650) 365-7715

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28), There is no evidence that any of the alleged “Bakelite” sheet material plaintiff used on the
DALTON or GOVERNOR MILLER contained asbestos. (UMF, 29). There is no evidence that any
of the wire that Plaintiff removed or installed on the GOVERNOR MILLER was manufactured,
distributed or supplied by Cutler-Hammer. (UMF, 30). There is no evidence that any of the wire
plaintiff used on the GOVERNOR MILLER contained asbestos. (UMF, 31).

Dr. Sheldon Rabinovitz reviewed all of Plaintiffs deposition testimony in Volumes IV, V,
VIII and XVI concerning Cutler-Hammer, EEI’s Special Interrogatories to Plaintiff and Plaintiff's
responses to EE!’s Special Interrogatorics. (UMF, 32). Based upon case specific information, the
deposition testimony of Plaintiff LOUIS CASTAGNA, Dr. Rabinovitz’s education, training and
years of experience in industrial hygiene and toxicology, the potential for airborne asbestos fiber
emissions from the types of actions done on the possible asbestos-containing products associated
with the Cutler-Hammer equipment at issue in this case, and the current scientific literature, it is
Dr. Rabinovitz’s opinion, that there is no factual basis upon which to conclude that Plaintiff
performed any work on Cutler-Hammer electrical equipment, or was present when others
performed work on Cutler-Hammer electrical equipment, that would have caused any asbestos
fibers to be released into the air. (UMF, 33).

When asbestos is encapsulated in phenolic electrical insulation (commonly and generically
referred to as “bakelite”) or in other similar non-friable hard resin bound materials which may be
found in some manufacturers’ equipment, it is Dr. Rabinovitz’s professional opinion that even
when the material is abraded by scratching, scraping, cutting, sanding, and drilling in any
foreseeable manner for use in electrical equipment, little, if any, measurable levels of airborne
asbestos would be created. (UME, 34). Dr. Rabinovitz’s opinion is consistent with published

scientific literature [see Mowat, F., et al., Occupational Exposure to Airborne Asbestos from

Phenolic Molding Materials (Bakelite) During Sanding, Drilling, and Related Activities, J. Occ. &
Env. Hyg. 2:497-507, 2005}. (UMF, 35).

In Dr. Sheldon Rabinovitz’s opinion, plaintiff's use of various types of pliers and

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADIUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

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bP wi oN

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screwdrivers to remove the existing electrical insulators in the Cutler-Hammer panel box on the
GOVERNOR MILLER would not have degraded the insulators when they were removed from the
panel by plaintiff. (UMF, 36). In Dr. Sheldon Rabinovitz’s review and analysis of this case there is
no evidence of any factor’s or conditions necessary for any possible exposure to asbestos from
CUTLER-HAMMER products in relation to Plaintiff LOUIS CASTAGNA. (UMF, 37). Per Dr.
Sheldon Rabinovitz, there is no evidence that any of the Cutler-Hammer materials that plaintiff
worked with contained asbestos and even if they did, plaintiff's work with those products as
described would have exposed plaintiff to a lower dose of asbestos then what he or others would
experience just from breathing background ambient air. (UMF, 38). Dr. Rabinovitz’s opinion is
consistent with the scientific literature that demonstrates that little, if any, asbestos is emitted from
degrading operations done on asbestos-containing Bakelite when working with electrical
components and equipment. (UMF, 39).

On March 1, 2010, EEI served Special Interrogatories on Plaintiff seeking all facts and
witnesses regarding liability on its part. (UME, 40). Plaintiff served responses to EEI’s Special
Interrogatories on April 16, 2010. (UMF, 41). Plaintiff's responses dated April 16, 2010, claim that
plaintiff worked with Cutler-Hammer “electrical panels.” (UMF, 42). Plaintiff verified his
responses to EEI’s Special Discovery on April 23, 2010, (UMF, 43). Plaintiffs responses to EEI’s
Special Interrogatories only list Plaintiff and EEI’s personal most knowledgeable, Fred Boness, as
product identification witnesses against Cutler-Hammer. (UMF, 44).

EFI’s Special Interrogatories requested Plaintiff to state all legal theories upon which he is
pursuing EEI. (UME, 45). EEI’s Special Interrogatories requested Plaintiff to state all facts upon
which he based his claims of liability against EET. (UMP, 46). Nowhere in Plaintiff's responses to
EE!’s Special Interrogatories did Plaintiff provide any facts showing that EEI made any false
representations, deceived or actively concealed information from Plaintiff. (UMF, 47).

EEI’s Special Interrogatories requested Plaintiff to “state all facts” on which he contends

that he is entitled to punitive damages from EEI. (UMF, 48). Plaintiff did not provide any facts to

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowarD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

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TELEPHONE (650} 365-7715

a AW

support his claim for punitive damages against EEI. (UMF, 49). EEI’s Special Interrogatories
requested Plaintiff to identify every person with knowledge of any fact which supports his claim
for punitive damages and to explain in precise detail how the individuals’ knowledge supports that
claim. (UMF, 50). Plaintiff did not identify any witnesses to support his claim for punitive
damages. (UMF, 51), EEI’s Special Interrogatories requested Plaintiff to identify any documents
which support his claim for punitive damages. (UMF, 52). Plaintiff failed to answer this
interrogatory and did not identify or provide any documents that support his claim for punitive
damages, (UMF, 53).

Il. ARGUMENT

A defendant moving for summary judgment is not required to conclusively negate an
clement of the Plaintiff's cause of action. Aguilar y. Atlantic Richfield Company (2001) 25 Cal. 4th
826, The moving defendant needs only show that one or more elements of the Plaintiff's cause of
action cannot be established. California Code of Civil Procedure § 437c(o)(2); Aguilar, supra, 25
Cal. 4th at 855. In other words, a defendant need only show that the Plaintiff cannot establish one
element of the cause of action - for example, the Plaintiff cannot prove element "X", However, a
defendant need not conclusively negate an element, that is, a defendant is not required to prove
"not X",

The threshold issue in asbestos litigation is exposure to asbestos from a defendant's product;
if there has been no exposure, there is no causation. Of course, a Plaintiff bears the burden of proof
on this issue, McGonnell y. Kaiser Gypsum Co. (2002) 98 Cal. App. 4th 1098, 1103. A Plaintiff
may prove causation in an asbestos case by demonstrating that his exposure to a defendant's
asbestos-containing product, in reasonable medical probability, was a substantial factor in
contributing to the aggregate dose of asbestos that Plaintiff inhaled or ingested, and hence to the
risk of developing an asbestos-related illness. Id.

Moreover, a Plaintiff cannot defeat a motion for summary judgment based on a possibility

that exposure to asbestos occurred. Rather, as the Court in Jones v. Ortho Pharmaceutical Corp.,

6

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowarRD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200
REDWOOD CITY, CA 94061-3436

TELEPHONE (650) 365-7715,

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(1985) 163 Cal. App. 3d. 396, 403-404 pointed out, in product liability actions; mere possibility
alone is insufficient to establish causation. In asbestos litigation there are many possible "causes"
and often times, an infinite number of circumstances in which products can cause an injury or
disease.

A. KEI Has Made A Clear Showing Sufficient To Shift The Burden To Plaintiff To Raise
A Triable Issue Of Fact.

Factually devoid discovery responses are sufficient to shift the burden to Plaintiff to show a
triable issue of fact, Andrews v. Foster Wheeler LLC (2006) 138 Cal-App.4th 96, 104, Union Bank
v, Sup. Ct (1995) 31 Cal.App.4th 573. In Andrews, the Plaintiff testified that he had no knowledge
of working with the defendant’s products. The defendant also submitted the Plaintiff's
nonresponsive answers to “state all facts” interrogatories designed to elicit information about the
Plaintiff's exposure to the defendant's products. In response, the Plaintiff failed to provide any
information, and, effectively admitted they had no further information. The court held that "If
Plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate
answers that restate their allegations, or simply provide laundry lists of people and / or documents,
the burden of production will almost certainly be shifted to them once defendants move for
summary judgment and properly present Plaintiffs’ factually devoid discovery responses. In short,
[the defendant' s] discovery was sufficiently comprehensive, and Plaintiffs’ responses so devoid of
facts, as to lead to the inference that Plaintiffs could not prove causation upon a stringent review of
the direct, circumstantial and inferential evidence contained in their interrogatory answers and
deposition testimony.” Andrews at p. 107. When “state all facts” interrogatories are served and
plaintiffs have had the opportunity to respond, factually devoid responses may show that one or
more elements of their claim cannot be established. Union Bank v. Sup Ct. (1995) 31 Cal.App.4th
573, 590.

Here, EEI propounded “state all facts” interrogatories requesting all facts that support
Plaintiff's claims against it and the names of all individuals with knowledge of those facts.

Plaintiff's responses consisted of general boilerplate allegations without any factual basis for his

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

REDWOOD CITY, CA 94061-3436

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statements. (UMF, 46-53). Plaintiff failed to provide any facts to substantiate his claims that he
worked with any asbestos-containing Cutler-Hammer products. He also failed to provide any
evidence that the products he worked with were original Cutler-Hammer component parts. (UMF,
11-12, 20-22, 26-31), Plaintiff failed to provide any evidence that the Cutler-Hammer panels he
worked with ever contained asbestos. (UMF, 1-53). Plaintiff merely makes allegations that he was
“more likely than not” exposed to asbestos without any factual evidence to prove his allegations.
Plaintiff supplied no facts to support his claims for false representation or any factors necessary to
prove the elements required for an award of punitive damages. (UMF, 46-53). Plaintiff's factually
devoid, boilerplate responses not only infer, but clearly indicate that he cannot prove a claim
against EEL. Plaintiffs factually devoid discovery responses are sufficient to shift the burden to
Plaintiff under Andrews.

B. No Triable Issue Of Material Fact Exists Against EET And EEI Is Entitled To
Judgment As A Matter Of Law.

California Code of Civil Procedure § 437c provides that a “motion for summary judgment
shall be granted if all the papers submitted show that there is no triable issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” An issue of fact is only
created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess
work,’ Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196. Further, a "complete
failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex Corp. v. Catrett (1986) 477 U.S, 317, 323, 106 S.Ct. 2548,
2552. It is indisputable that proof of exposure to asbestos is an essential element to Plaintiff's case.
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416.; Dumin v. Owens Corning
Fiberglass Corp. (1994) 28 Cal.App.4th 650, 657. Here, Plaintiff has not produced any admissible
evidence to prove that plaintiff worked with any Cutler-Hammer product that contained asbestos.
Plaintiff has also failed to prove that the materials he worked with or around were original Cutler-
Hammer component parts. Without any evidence of his working with or around an asbestos-

containing Cutler-Hammer product, there can be no evidence that plaintiff's work caused asbestos
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200
REDWOOD CITY, CA 94061-3436

TELEPHONE (650} 365-7715

fibers to be released from any Cutler-Hammer product and that he was subsequently exposed to
those fibers.

Furthermore, Plaintiff has not provided any facts to show that any alleged exposure to an
asbestos-containing Cutler-Hammer product was a substantial factor in the development of
plaintiff's alleged asbestos-related injury. To create a triable issue of material fact in an asbestos
case, a Plaintiff must show that asbestos-related activities occurred with sufficient frequency and
regularity, in locations from which asbestos fibers are present, so that there is a reasonable medical
probability that an alleged exposure to the asbestos-related activities was a substantial factor in
causing a Plaintiff's injuries. See Hunter v. Pacific Mechanical Corp., (1995) 37 Cal. App.4th 1282,
1289, overruled on other grounds by Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826,
854, fn, 20, Without evidence of time, location, and actual circumstances of exposure to asbestos
releasing activities, a Plaintiff only offers speculation and conjecture of insufficient weight to
support a reasonable inference of causation. See Id. at 1289 - 1290; see also Dumin v. Owens-
Corning Fiberglass Corp., (1994) 28 Cal.App.4th 650, 653 -654. .

Here, we have nothing but far fetched speculation and conjecture on the part of Plaintiff.
There is no evidence that plaintiff ever was in the vicinity of a Cutler-Hammer product that
contained asbestos or that his exposure to that product was a substantial factor in the development
of his alleged asbestos-related injury. The mental leaps required are too great and too many to raise
a triable issue of material fact or support a “reasonable inference of causation”. Indeed it is Dr.
Rabinovitz’s opinion that, even assuming the component parts that plaintiff worked with, number
one, contained asbestos and number two, were made by Cutler-Hammer, that plaintiff was not
exposed to any measurable level of asbestos above background ambient air. (UMF, 32-39). Dr.
Rabinowitz offers this opinion after jumping over the two mental leaps that plaintiff has failed to
prove. There is no evidence that Cutler-Hammer made the components that plaintiff worked with
or that those components contained asbestos in any form. Therefore, any alleged exposure to

asbestos that plaintiff claims from his work with or around Cutler-Hammer panels was not a

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC."S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

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‘TELEPHONE (650) 365-7715

substantial factor in the development of his asbestos-related. disease. Furthermore, on the
DALTON, plaintiff only held a flashlight and had no idea what the workers did to the Cutler-
Hammer panel or if they even worked with any nonmetal parts. (UME, 5-9),

The above cases make it clear that the proper inquiry centers on whether a Plaintiff can
show they were exposed to asbestos through asbestos-releasing activities and that those activities
were a substantial factor in causing their disease. In the present case, there is not a scintilla of
admissible evidence that plaintiff ever worked with or around any Cutler-Hammer product that
contained asbestos. Plaintiff offers only speculation, conjecture, and guesses without any
admissible evidence, EEI’s Motion for Summary Judgment should be granted.

Cc. Plaintiff Cannot Meet His Burden Of Proving Exposure To Asbestos From Any EET
Product.

“A Plaintiff rightly bears the burden of proving exposure to a particular defendant’s
product.” Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416. Itis
unquestionable that in asbestos personal injury actions, without proof of exposure, there can be no
proof of causation. Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 89. (Overruled in part as to
the issue of whether an employee of an independent contractor should not be permitted to bring a
negligent hiring action against the hirer of the contractor). A defendant can effectively show that
the element of causation ‘cannot be established’ by pointing to an absence of evidence to support
this element. Cal. Code of Civ. Pro. §437c, sub d. (0)(2); see also Chaknova vy. Wilbur-Ellis
Company (1999) 69 Cal.App.4th 962, 975. As the Court in Lineaweaver pointed out, a Plaintiff
must demonstrate exposure to a defendant's product and biological processes from the exposure
which results in disease. The question is whether the Plaintiff has proven exposure to a defendant's
product such that the exposure is a possible factor in causing the disease and then to evaluate
whether the exposure was a substantial factor. /d. at 1416.

Plaintiff has offered no evidence that he worked with any EEI product that contained

asbestos. No facts in this case offer evidence that plaintiff was exposed to airborne levels of

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

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asbestos resulting from work with or around EET products. Accordingly, Plaintiff cannot meet his
burden on causation that plaintiff's alleged work with or around any EEI product was a substantial
contributing factor to the development of his alleged asbestos-related disease.

D. EEL Is Not Liable for Affixed or Replacement Parts of Third-Party Manufacturers.
There Is No Duty to Warn Under Theories of Negligence or Strict Liability for Affixed
or Replacement Parts.

Taylor v. Elliot Turbomachinery Co. (2009) 171 Cal. App. 4th 564, held that manufacturers

of equipment are not liable on a failure to warn cause of action because:

1. the duty to warn extends only io those entities in the chain of distribution of
a defective product;
2. there is no duty to warn of defects in products supplied by others and used in

conjunction with the manufacturers’ product unless the manufacturers’
product itself causes or creates the risk of harm, and

3. manufacturers of non-defective products have no liability when they simply
build a product to-a customer’s specifications but do not substantially
participate in the integration of their components into the final product. (Jd.
at 575.)

Mr, Taylor served aboard the USS HORNET, in the mid 1960°s, approximately 20 years
after the ship’s commissioning in 1943. Id. At 571-572. Taylor opposed defendants’ motions for
summary judgment, arguing that the foreseeable uses of the defendants’ products included any
foreseeable changes to those products, even when that hazard arose from the addition of a product
manufactured by a third party, where such product was used in the normal operation of defendants’
products. Jd. at 572-73.

The Court of Appeals held that the defendants were not strictly liable to plaintiff based
upon a failure to warn theory because they were not part of the “chain of distribution” of the
replacement products. The Court of Appeals cited with approval Pererson v. Superior Court
(1995) 10 Cal, 4th 1185 and Cadlo v. Owens-Illinois, inc. (2004) 125 Cal. App. 4th 513, for the
proposition that defendants who are not part of the “chain of distribution” of the allegedly defective
products that Taylor encountered, were under no duty to warn of the alleged hazards of those

products. (Taylor at 578-80.)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC,’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

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Second, the Court of Appeals held that California law imposes no duty to warn of defects in
products manufactured by others. Citing with approval Powell v. Standard Brands Paint Co.
(1985) 166 Cal. App. 3d 357, 364, the Court held that unless a manufacturer’s own product creates
arisk of harm, “the risks of the manufacturer’s own product are the only risks the manufacturer is
required to know.” (Taylor at 581.)

Third, Taylor held that the component parts doctrine shields a product manufacturer from
liability for injuries caused by component parts supplied by others. The Court of Appeals went on
to analyze the liability of the parties at issue, specifically whether 1) the component itself was
defective when it left the component manufacturers’ factory, and 2) whether these defects caused in
the injury. Jimenez v, Superior Court (2002) 29 Cal 4th 473, 480.) In Taylor, the Court held that
the second factor was not present because decedent’s exposures came from component parts, not
from pumps manufactured by defendants, Taylor, 584-85.

Plaintiff believed that the GOVERNOR MILLER was built in the 1920s. (UMF, 27). Mr.
Castagna testified that he did not know whether any of the insulators or the wire he removed from
the Cutler-Hammer panel on the GOVERNOR MILLER were original. (UMF, 17, 27). He did not
know the age of the Cutler-Hammer panel, but testified that he believed it was old because of when
the ship was built. (UMF, 15, 27). Plaintiff did not work onboard the GOVERNOR MILLER until
1967 or 1968, more than 40 years after he believed the ship was built. (UMF, 4). In the instant
matter, just as in Taylor, EEI’s equipment is not the cause of Mr, Castagna’s asbestos-related
illness. Instead, third-party manufacturers of replacement insulators, “Bakelite” sheet material and
wire must shoulder that liability. There is no evidence that any of the insulators, wire or “Bakelite”
sheet material that plaintiff saw cut on the DALTON or worked with on the GOVERNOR
MILLER was manufactured, distributed or supplied by Cutler-Hammer. (UMF, 10-13, 17, 20-22,
26-28, 30).There is no evidence that any of the components inside the Cutler-Hammer electrical
panel on the GOVERNOR MILLER were original to that panel. (UMF, 17, 16-18, 22-27).

Lastly plaintiff was only saw numbers on the “Bakelite” sheet material he cut on the

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowarD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

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GOVERNOR MILLER. He could not remember these numbers. (UMF, 20-22, 28). Plaintiff also
did not know who manufactured, distributed or supplied the replacement wire that he installed into
the Cutler-Hammer panel on the GOVERNOR MILLER. (UMF, 26, 30). Without evidence to
connect these replacement parts to Cutler-Hammer, any claims by plaintiff that he was exposed to
asbestos from these products fails to attach liability to Cutler-Hammer. Cutler-Hammer simply is
not responsible for replacement parts that it did not put into the stream of commerce.

This is the very fact situation contemplated by the Taylor decision, and the Court should
decline to hold EEI liable for the products of other manufacturers which were affixed to or used as
replacement parts on Cutler-Hammer panels. Finally, it should be noted that in the recently
decided case of Walton v. Wm. Powell Co. (2010 Cal. App. LEXIS 545) (2nd District 2010), the
Second Appellate district remanded an award of damages against a Navy valve manufacturer to the
trial court, upholding the reasoning in aylor.

“[S]trict liability has never been, and is not now, absolute liability.” Daly v. General
Motors Corp, (1978) 20 Cal.3d 725, 733. The policy behind strict liability is predicated on the
ability of manufacturers and retailers to spread the risk of injury among the wider community of
purchasers as a cost of doing business. It is premised on the notion that those involved in the
marketing enterprise and who reap profits by placing a defective product in the stream of
commerce, should bear the costs of injuries caused by that product. Vandermark v. Ford Motor
Co. (1964) 61 Cal.2d 256, 262. Here, there is no evidence of defective products placed into the
stream of commerce by EEL.

E. EE1 is Not Liable For Defective Products Under Any Strict Liability Theory
(Manufacturing, Design Defect Or Failure-To-Warn) For Affixed Or Replacement
Parts They Did Not Supply.

There is no evidence that REI manufactured or otherwise supplied any of the insulators,
wire ot “Bakelite” sheet material on the DALTON or the GOVERNOR MILLER. (UMF, 10-13,
17, 20-22, 26-28, 30). Without evidence that Cutler-Hammer manufactured, distributed or supplied

these component parts, Cutler-Hammer is not liable for any harm they might have caused plaintiff.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowarpD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

REDWOOD CITY, CA 94061-3436

‘TELEPHONE (650) 365-7715.

Like flange gaskets applied to pumps, the insulators, “Bakelite” sheet material and wire are
independent replacement parts “affixed” to the panel. /

This factual situation was presented in Zambrana v. Standard Oil Co, (1972) 26 Cal.App.3d
209. In Zambrana, plaintiff was injured after her car Jost control from a sudden loss of tire
pressure. The tires of plaintiff's car originally came equipped with rubber valve stems and metal
extensions. Firestone later replaced the rubber valve stems with brass stems. The Firestone dealer
not only recommended the brass stems, but also installed them in plaintiff's tires and reinstalled the
original metal extensions. Plaintiff alleged that the combination of brass stems (purchased from
Firestone) and metal extensions (original equipment), together created a “defective
instrumentality” that caused the tire to blow out. /d. at 212-214.

Plaintiff sued Firestone under a theory of strict liability and obtained a jury verdict. In
affirming the grant of a judgment notwithstanding the verdict in favor of Firestone, the Court of
Appeals held that:

[Flirestone was neither a “designer” nor “manufacturer” of the combination of parts
which is staid to be defective. ... The owner . . . has the opportunity to choose
whether or not he or she prefers a brass valve stem, which may be more subject to
breaking than rubber if struck by a particular kind of blow. . . . The parts are sold
separately and the owner’s preference prevails. This situation is not at all
comparable to the case where a whole vehicle or a whole assembly is sold as a unit,
the buyer accepting the product as designed by the maker, ©

Zambrana v. Standard Oil Co., supra, 26 Cal.App.3d at 217-18.

Thus, the Court of Appeals rejected plaintiff's strict liability claim because the tire
manufacturer did not design or sell the valve stem combination, even though it was aware that the
products were being used together. Similarly, there has been no admissible showing by plaintiff
that EE] was a “designer” or “manufacturer” of any of the replacement insulators, Bakelite sheet
material or wire that plaintiff used or removed from Cutler-Hammmer panels on the DALTON or the
GOVERNOR MILLER. /d.; see e.g. Cadlo, supra, 125 Cal.App. 4th at $24.

The courts make no distinction between affixed products and replacement parts supplied by

third parties, Courts have consistently held that manufacturers are not strictly liable for defective

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200

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replacement component parts supplied by others, even if the originally supplied parts may have
been defective. Again, the focus is on whether the defendant played any role in the marketing
enterprise or otherwise profited from the defective replacement part. Taylor, supra, Accord,
Walton, supra, see also Braaten v. Saberhagen Holdings (Wa. 2008) 198 P.3d 493, 502 (holding
that there is no duty of defendants to warn of dangers associated with replacement parts, where the
manufacturer did not design or make the replacement parts, and even if the replacement part is
virtually the same as the original item). See also Cadlo, supra, 125 Cal.App, 4th at 524 (holding
that a manufacturer of insulation could not be liable for a plaintiffs asbestos-related illness where
there was no evidence that the product which exposed the plaintiff to asbestos was designed by the
named defendant and where there was no evidence that the named defendant was the designer of an
integral clement of the product at issue). Applying these precedents, there is no legal basis to hold
FEI liable for any alleged asbestos-containing replacement products such as insulators, “Bakelite”
sheet material or wire, where there is no evidence that EE] designed, manufactured, or supplied the
replacement parts.

F. There is No Evidence of Fraudulent Conduct, Malice or Oppression by EET.

California Civil Code § 3294 requires a showing by clear and convincing evidence that the
conduct at issue was malicious, fraudulent or oppressive. Malice is defined as “conduct that is
intended to cause injury to the plaintiff or despicable conduct which is carried on by the defendant
with a willful and conscious disregard of the rights or safety of others.” Cal. Civ, Code § 3294 (c)
(1). Oppression is despicable conduct that subjects a person to a cruel and unjust hardship in
conscious disregard of that person’s rights. Cal. Civ. Code § 3294 (c) (2). Fraud is an intentional
misrepresentation, deceit or concealment of a material fact known to the defendant with intent on
the part of the defendant thereby depriving a person of property or legal rights or otherwise causing
injury. Cal. Civ. Code § 3294 (c) (3). Despicable conduct has generally been interpreted to mean

“base”, “vile”, “contemptible”, “wretched” or “loathsome.” See, e.g. Lackner v. North (2006) 135

Cal. App.4th 1188, 1210; Shade Foods, inc. v. Innovative Products Sales & Marketing, Inc. (2000)

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MEMORANDUM OF POINTS AND AUTHORITIES JN SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

1775 WOODSIDE ROAD, SUITE 200
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78 Cal.App.4th 847, 891; and Stewart v. Truck Ins. Exchange (1993) 17 Cal.App.4th 486, 483 fin.
29.

Here, Plaintiff has failed to provide any evidence that EE] ever made any false
representations, deceived or actively concealed information from plaintiff. EEI served
comprehensive discovery requests on Plaintiff seeking any information regarding these issues and
plaintiff supplied no facts or witnesses to support his claims. (UMF, 40-47). Plaintiff has supplied
no evidence of an intentional act on the part of EEI to misrepresent, deceive or actively conceal
information from plaintiff and his claim for false representation should be dismissed.

G. There is No Evidence to Support Plaintiff’s Claim for Punitive Damages.

Punitive damages are not awarded for mere negligence or even gross negligence, but rather
are appropriate only where the conduct rises to levels of extreme indifference to the plaintiff's
rights (a level which decent citizens should not have to tolerate) or with intent to vex, annoy or
injure. Lackner, supra, Johns-Manvilie Sales Corp. Private Carriage v. Workers Compensation
Appeals Bd. (1979) 96 Cal.App.3d 923 [comparing willful misconduct as defined for Workers
Compensation purposes with Cal. Civ. Code § 3294], Kendall Yacht Corp. v. United California
Bank (1975) 50 Cal.App.3d 949, 958.

Further, in order to hold a corporation liable for punitive damages, plaintiff must show, by
clear and convincing evidence, that “an officer, director or managing agent had advanced
knowledge of . . . or authorized or ratified the wrongful conduct for which the damages are
awarded. Cal. Civ. Code § 3294 (b); Holdgrafer v. Unocal Corp..(2008) 160 Cal.App.4th 907, 933
(no evidence that Unocal mislead the government or public in responding to inquiries about an oil
tank spill at Avila Beach, California, as the person responding to queries, Ron James was a second
level supervisor at the location, with no evidence that he was an officer, director or managing agent
or that the company authorized or ratified his conduct in responding). No such showing has been
made here.

In Hoch y, Allied-Signal (1994) 24 Cal.App.4th 48 at 61, the court wrote that “to establish

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL-INC.’S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHOWARD ROME MARTIN & RIDLEY LLP

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conscious disregard, the plaintiff must show that defendant was aware of the probable
consequences of his conduct and that he willfully and deliberately failed to avoid those
consequences.” There is no evidence that any of the conduct alleged in this case, was done with a
conscious disregard, that EE] was aware of the probable consequences of its conduct and willfully
and deliberately failed to avoid those consequences, There is no evidence that the conduct alleged
was despicable, vile or done with the intent to vex, annoy or injure.

H. There Is No Clear and Convincing Evidence of Malice, Fraud or Oppression By EEL.

In ruling on a motion for Summary Adjudication, the judge must view the evidence
presented through the prison of the substantive clear and convincing evidentiary burden and does
not denigrate the purview of the jury. Although the clear and convincing standard is a stringent
one, it does not impose on plaintiff the obligation to prove a case for punitive damages at summary
adjudication, It does, however, require that where the plaintiff's ultimate burden is a clear and
convincing standard, the higher standard of proof must be taken into account in ruling on the
summary adjudication motion, since if a plaintiff is to prevail on such a claim for punitive
damages, it will be necessary that the evidence presented meet the higher evidentiary standard.
American Airlines, Ine. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017,
1049.

Hach y. Allied-Signal, supra 24 Cal.App.4th at 61, is instructive in looking at the clear and
convincing evidence standard. In Hoch, the plaintiff represented the decedent and decedent’s
estate, The decedent died when her seatbelt failed and she was thrown from her Ford Bronco.
Plaintiff sued Ford and a number of entities involved in developing the car including Allied-Signal.
Allied-Signal designed the seatbelt which was alleged to have had a defect because the latch was
susceptible to inertial unlatching. The jury found in favor of plaintiffs, but a nonsuit was granted
on the issue of punitive damages. The conduct plaintiff alleged showed malice, oppression or
fraud included; testimony that the buckle was susceptible to inertial unlatching, that the Ford

Taurus had a different non-susceptible buckle, a 1965 paper promising to modify the buckles so

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EATON ELECTRICAL INC.'S MOTION FOR SUMMARY
JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATIONHowarbD ROME MARTIN & RIDLEY LLP

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they would not unlatch inertially, testimony that Allied-Signal had not done any testing prior to an
expert reliability engineer doing so and that an Allied-Signal engineer thought it highly unlikely a
buckle could open inertially in an accident in the environment of a vehicle. The court stated that
even as taken as a whole and given its full credit, this evidence could not reasonably be considered
clear and convincing proof of malice, Hoch, supra 24 Cal.App.4th at 61.

Here, Plaintiff has failed to produce any evidence that rises to the level of clear and
convincing evidence (or even of conduct that is fraudulent, malicious or oppressive) in support of
his claims for punitive damages. Plaintiff's allegations are not supported by any evidence
whatsoever and do not show any malice, fraud or oppression on the part of EEI. Plaintiff's
allegations in no way satisfy the “clear and convincing standard” required to prove punitive
damages.

Iv. CONCLUSION

Plaintiff's responses to EEI’s Special Interrogatories are factually devoid and full of general
statements and boilerplate allegations. Because Plaintiff is unable to meet his burden of proof that
he was exposed to asbestos as a result of work with or around EEI products, he cannot show
causation ~ a crucial element for establishing negligence - and is precluded from recovery in this
action. Accordingly, EEI’s Motion for Summary Judgment should be granted as a matter of law, or
in the alternative, EEI requests that this court grant Summary Adjudication on Plaintiff's
allegations / claims for negligence, strict liabi