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

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Joanne Rosendin, Esq., SBN: 121025
Christopher J. Dyas, Esq., SBN; 104384
SACK ROSENDIN, LLP

One Kaiser Plaza, Suite 340

Oakland, California 94612

Telephone: (510) 286-2200

Attorneys for Defendant
CHICAGO BRIDGE & IRON COMPANY,
an Illinois corporation

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUN 22 2010

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

LOUIS CASTAGNA,
Plaintiff,
v.
ASBESTOS DEFENDANTS (BP), et al.,

Defendants.

NO, CGC-07-274230

DEFENDANT CHICAGO BRIDGE &
IRON COMPANY'S MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR SUMMARY
JUDGMENT

Date: September 9, 2010
Time: 9:30 a.m.
Dept: 220

Action Filed: June 6, 2007
Trial Date: October 12, 2010

CHICAGO BRIDGE & IRON COMPANY’S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTTABLE OF CONTENTS

Table of Contents ...........5 peveeereees Deen eee teen eee este rete ee eee eee treeee i
Table of Authorities ...... eee een cece eee e ete e ere ens eee reste eee tear veveee Ti
L INTRODUCTION ........00. cece cece eee eens bene eeresecnneegere secre 1
Ii, PROCEDURAL HISTORY AND FACTUAL BACKGROUND .......--++0005- 1
I. ARGUMENT ..... beet eeeeeereeee phew e eer enneee ees cceeeen nec eeseerees 4

Iv.

A Summary Judgment Is Proper Because No Triable Issue Exists
As To Any Material Fact, and Therefore, CBI Is Entitled To
Judgment As A Matter of Law ..... te eeeeeneneneneee teaaeesssenneses 4

B. Plaintiff Is Unable to Prove Causation, An Essential Element of
His Claims Against CBI.........+.e0eeee dence enn eeeees beeereeeeees 4

Cc The Burden of Proof Must Shift To Plaintiff, As His
Discovery Responses Are Devoid Of Any Evidence of

Exposure as a Result of Any Act or Omission By CBE. ....-....-.-0.000 6
D. The Undisputed Facts Of This Case Demonstrate
That Plaintiff Cannot Meet The Exposure Burden ..........2-e0eeeeeee 7
CONCLUSION ...... een ee rere eee eee mentee eaten tee EEE Dee E Ee eS +9
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CHICAGO BRIDGE & IRON COMPANY'S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTTABLE OF AUTHORITIES

Cases
Aguilar v, Atlantic Richfield (2001) 25 Cal.4th 826... 0.6.0: seven eee eee ee entrees 4,6
Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 «26.6... cee e ence eee 4
Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650 . 22.6... e eee eee ee 5,7
Leasman v. Beech Aircraft Corp. (1975) 48 Cal. App.3d 376 0.0... c cee eee eee erence ee 6
Lineaweaver v. Plant Insulation Co. (1993) 31 Cal.App.4th 1409.20... eee eee eee 5,7
Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495.00... cece reece tern e eens 5
Mitchell v. Gonzales (1991) 54 Cab.3d 1041 0.0... ccc cee cette eee terete ee 5
Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83. ....6 66. c cee eee 6
Sinai Mem. Chapel v. Dudler (1991) 231 Cal.App.3d 190 0.0.0... cece eee nee eee 4
Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 2.0... 6.6 ccc ce eens 4
Smith v, ACandS, Inc. (1994) 31 Cal App4th 77 oc. c cece cece eter ere ener enters 7
Soule v. General Motors Corp, (1994) 8 Cal.4th 548 0... cre ence neers 5
Statutes

Code of Civil Procedure § 4370 00... ccc cece ee etree tenet enter ene 4

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CHICAGO BRIDGE & IRON COMPANY’S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTI. INTRODUCTION

In this personal injury case, plaintiff Louis Castagna alleges that he has developed
asbestosis and asbestos-related pleural disease as a result of exposure to asbestos caused by the
yarious defendants named in this action, including defendant Chicago Bridge & Iron Company
(“CBI”). As to CBI, plaintiff alleges that CBI is liable to him under theories of negligence, strict
products liability, and false representation with respect to exposing him to asbestos-containing
products for which CBI was responsible, and, in addition, that CBI is liable to him under a
negligence theory because CB] employees exposed him to asbestos by their conduct.

But, with respect to plaintiffs product liability allegations, nowhere in plaintiff's responses
to both General Order discovery and CBI’s own specially-prepared interrogatories does plaintiff
identify any product or products for which CBI was allegedly somewhere in the chain of
distribution. With respect to his allegations that he was exposed to asbestos by the conduct of CBI
employees, notwithstanding his responses to CBI’s specially-prepared interrogatories, in which he
alleges the CBI employees exposed him to asbestos at four San Francisco Bay Area oil refineries
over a twenty-year period --- Shell Oil, Martinez; Standard Oil, Richmond; Tosco, Avon; and
Union Oil, Rodeo — plaintiff admitted, during his deposition, that he recalled encountering CBI
employees at only two sites — Shell Oil and Tosco — during times when he was not employed by
CBI. He also admitted that, at Shell Oil, he docs not recall the CBI employees, who were fifty feet
away at the closest, using any asbestos-containing materials and that, at Tosco, he does not even
know what the CBI employees were doing.

Because the record is devoid of evidence in support of plaintiff's allegations that CBI
caused or contributed to his personal injuries by exposing him to asbestos, the burden of proof must
shift to him to come forward with admissible evidence sufficient to raise a triable issue of material
fact to defeat this motion.

Il, PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Plaintiff filed his Complaint for Personal Injury — Asbestos on June 6, 2007. He alleges

that he suffers from asbestosis and asbestos-related pleural disease as a result of being exposed to

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CHICAGO BRIDGE & IRON COMPANY'S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT“

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asbestos-containing products by the defendants, Undisputed Fact No. 1, Separate Statement of
Undisputed Material Facts in Support of Chicago Bridge & Iron Company 's Motion for Summary
Judgment (“Fact No. 1.”) Plaintiff alleges four causes of action against CBI: negligence (First
Cause of Action); strict products liability (Second Case of Action); false representation under
Rest.2d Torts, § 420B (Third Cause of Action); and “Premises Owner/Contractor Liability” (Fifth
Cause of Action). The Fifth Cause of Action sounds in negligence. Fact No. 2

In plaintiff’s Answers to Interrogatories (Standard Asbestos Case Interrogatories), Set One,
plaintiff states that he saw CBI employees while working for Parsons Constructors, Inc. at Shell
Oil, Martinez, for a two-week period during 1982. In addition, he also states that he was employed
by CBI at Shell Oil, Martinez, California, for about six weeks in 1981 and five weeks in 1982.
Fact No. 3. Nowhere in these answers does plaintiff allege that he was exposed to asbestos by the
conduct of any employee or employees of CBI. Fact No. 4. Moreover, nowhere does he allege
that he was exposed to any asbestos-containing product for which CBI was in the chain of
distribution. Fact No. 5.

In plaintiff's Answers to Interrogatories (Standard Asbestos Case Interrogatories), Set Two,
plaintiff states that he saw CBI employees while working for Parsons Constructors, Inc. at Shell
Oil, Martinez, for a two-week period during 1982. In addition, he also states that he was employed
by CBI at Shell Oil, Martinez, California, for about six weeks in 1981 and five weeks in 1982,
Plaintiff also identifies CBI in the exhibits to these answers as one of the contractors present at
plaintiff's jobsites either before or during his presence at those jobsites. Fact No. 6.

Nowhere in these answers does plaintiff allege that he was exposed to asbestos by the conduct of
any employee or employees of CBI. Fact No. 7. In addition, nowhere in these answers does
plaintiff allege that he was exposed to any asbestos-containing product for which CBI was in the
chain of distribution. Fact No. 8.

In Plaintiff's Supplemental/Amended Responses to Interrogatories (Standard Asbestos Case
Interrogatories), Sets One and Two, plaintiff states that he saw CBI employees while working for

Parsons Constructors, Inc, at Shell Oil, Martinez, for a two-week period during 1982. In addition,

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CHICAGO BRIDGE & IRON COMPANY'S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENThe also states that he was employed by CBI at Shell Oil, Martinez, California, for about six weeks
in 1981 and five weeks in 1982. Fact No, 9. Nowhere in these answers does plaintiff allege that
he was exposed to asbestos by the conduct of any employee or employees of CBI. Fact No. 10, In
addition, nowhere does plaintiff allege that he was exposed to any asbestos-containing product for
which CBI was in the chain of distribution. Fact No. 11.

In Plaintiff Louis Castagna’s Response to Defendant Chicago Bridge & Tron Company’s
Special Interrogatories, Set One, plaintiff alleges that he was exposed to asbestos through the
conduct of CBI’s employees at the following locations during the following years: (1) Shell Oil,
Martinez, California: 1975, 1977, 1982, 1984, 1986, 1989, and 1996; (2) Standard Oil, Richmond,
California: 1975, 1976, and 1982; (3) Tosco Oil, Avon, California: 1983, 1986, 1987, 1989, 1991,
1998, and 1999; and (4) Union Oil, Rodeo, California: 1977, 1985, and 1986. Fact No. 12.
Nowhere in these answers does plaintiff allege that he was exposed to any asbestos-containing
product for which CBI was in the chain of distribution. Fact No. 13.

During his deposition, plaintiff testified that he recalls seeing CBI employees working at
Tosco, in Avon, California, and at Shell Oil, in Martinez, California, while he was present at those
locations, during periods during which he was not employed by CBI. He further testified that he
believes that he saw them at other locations, but cannot recall which locations. Fact No. 14, He
admitted that he does not know what CBI’s employees were doing when he saw them working at
Tosco. Fact No. 15. With respect to Shell Oil, plaintiff testified that he worked for Parsons
Constructors, Inc. on the flexicoker project at Shell Oil, in Martinez, California, which was all new
construction. While he worked for Parsons Constructors, Inc., all of his work was off-plot from the
flexicoker. Fact No. 16.

Plaintiff further testified that he does not recall seeing any CBI employees going off-plot
from the flexicoker when he was working for Parsons Constructors, Inc.. The closest any CBI
employees were to plaintiff while he was working for Parsons Constructors, Inc. was 50 to 100
feet. Fact No. 17. He also admitted that the work he saw CBI employees doing while he was

worked for Parsons Constructors, Inc. consisted on welding and rigging within the flexicoker, and

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CHICAGO BRIDGE & IRON COMPANY’S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTthat he does not recall seeing any CB] employees using anything that was asbestos-containing. Fact
No. 18.
Finally, plaintiff testified that he saw CBI employees working at another location, other than|
Shell Oil, in Martinez, at one other occasion, but that he does not recall where. Fact No. 19.
JIL ARGUMENT
A. Summary Judgment Is Proper Because No
Triable Issue Exists As To Any Material Fact,
and Therefore, CBI Is Entitled To
Judgment As A Matter of Law
Under Code of Civil Procedure §437c, a motion for summary judgment must be granted if
there is no triable issue as to any material fact and the moving party is entitled to judgment as a
matter of law. Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 843. A triable issue of
material fact can be created only by a conflict of evidence, not by "'speculation, conjecture,
imagination or guess work," “‘cryptic, broadly phrased, and conclusory assertions,” or “mere
possibilities.” Sinai Mem. Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196 (citations omitted).
A defendant moving for summary judgment is not required to conclusively negate an
element of the plaintiff's cause of action. All that a defendant need do is to show that one or more
elements of plaintiff's cause of action cannot be established. Aguilar v. Atlantic Richfield, supra,
25 Cal.4th at 853-855. This burden may be met by showing that plaintiff does not possess, and
cannot reasonably obtain, needed evidence in support of plaintiff's claims. Ibid, at 855.

B. Plaintiff is Unable to Prove Causation, An
Essential Element of His Claims Against CBI

Actionable negligence requires a showing that the defendant owed the plaintiff a legal duty
of care, that the defendant breached that duty, and that the breach caused the plaintiff injury. Ann M
y. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673. Here, the issue is the lack of
evidence of the element of causation (i.e. exposure to asbestos), and in particular, the lack of
evidence of the cause-in-fact causation component of that element.

Causation, as an element of negligence, includes both cause-in-fact and proximate-legal
causation: “the former reflects the necessity of a sufficient factual nexus between the negligent

conduct and the injury while the latter represents the legal determination encompassing all the ill-

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CHICAGO BRIDGE & IRON COMPANY’S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENToO ND HW BF WN

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defined considerations of policy which go to limit once cause in fact has been established.” Lopez
v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 515, fn. 17, The “substantial factor” standard
is used for cause-in-fact determinations. Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1044, fin. 2.
Under that standard, a cause-in-fact is something that is a substantial factor in bringing about the
injury. Jd., at 1052-1055,

The burden is on the plaintiff to establish causation. Sindell v. Abbott Laboratories (1980)
26 Cal.3d 588, 597, In the context of the asbestos litigation, a plaintiff must demonstrate exposure
to a defendant’s product and the “biological processes from the exposure which result in disease,”
ive., a reasonable medical probability that the defendant’s conduct contributed to the plaintiff's
injury. Lineaweaver y. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415-1416. Factors
relevant in assessing the “reasonable medical probability” that an exposure contributed to a
plaintiff's asbestos-related injury include the frequency and regularity of exposure, proximity to the
asbestos-containing product, the type of asbestos product, the type of injury suffered by plaintiff,
and other possible sources of plaintiff's injury. /d., at 1416-1417. See, also, Dumin v. Owens-
Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 657.

Here, plaintiff's responses to both General Order interrogatories and CBI’s specially-
prepared interrogatories are devoid of any facts tending to show that CBI was in the chain of
distribution of either asbestos or any asbestos-containing product. In addition, notwithstanding
plaintiff's allegations in his responses to CBI’s specially-prepared interrogatories that he was
exposed to asbestos through the conduct of CBI employees on multiple occasions at four different
oil refineries, he effectively retracted those allegations during his deposition. There, he testified
that he encountered CBI employees at only Tosco and Shell Oil, that he does not know what the CB
employees were doing at Tosco, and that, at Shell Oil, the CBI employees were between 50 and
100 feet away, at the closest, and he does not recall seeing them use any asbestos-containing

products while they were that close to him.

"This analysis of causation is equally applicable to plaintiff's causes of action for negligence, strict
products liability, and false representation. A manufacturer or supplier of an allegedly defective product is liable
only if'a defect in its product was a legal cause of plaintiff's injury. Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 572.

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CHICAGO BRIDGE & IRON COMPANY’S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT—

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Thus, the plaintiff’s discovery responses, including his deposition testimony, are completely
devoid of facts tending to show that CBI caused or contributed to the injuries he has allegedly
sustained as a result of his alleged asbestos exposure.

Cc, The Burden of Proof Must Shift To Plaintiff, as His

Discovery Responses Are Devoid of Any Evidence of
Exposure as a Result of Any Act or Omission By CBI

In Aguilar v. Atlantic Richfield, supra, the Supreme Court held that a defendant moving for
summary judgment may present evidence that a plaintiff does not possess and cannot reasonably
obtain, needed evidence in support of plaintiff's claims, “as through admissions by the plaintiff
following extensive discovery to the effect that he has discovered nothing.” 25 Cal.4th at 855. In
this context, it is not necessary for the plaintiff to expressly state that he or she has no evidence,
only that plaintiff fail to provide the necessary facts in response to discovery requests. For
example, in Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, the Court of Appeal
repeatedly referred to plaintiff's failure to mention physical injuries, in response to an interrogatory
asking her to list and describe “all of the injuries and complaints” that she claimed to have suffered
in an accident, as an admission that she had not suffered physical injuries. Jd., at 380-384,”

Here, there is we evidence that plaintiff was ever exposed to asbestos-containing materials
as a result of any act or omission of CBI. With the trial date quickly approaching in this matter, it is
clear that plaintiff cannot produce any evidence that he was ever exposed to asbestos by CBI CBI
has demonstrated a complete absence of evidence as to an essential element of plaintiff's case: his
exposure to asbestos caused by CBI. Therefore, not only must the burden of proof in this matter
shift to plaintiff in accordance with Aguilar, it is also apparent that plaintiff cannot meet his burden
and summary judgment should be granted.

D The Undisputed Facts Of This Case Demonstrate
That Plaintiff Cannot Meet The Exposure Burden.
"A plaintiff rightly bears the burden of proving exposure to a particular defendant's

product." Lineaweaver vy. Plant Insulation Co., supra, 31 Cal.App.4th at 1416; see, also, Dumin

2Phis approach is consistent with the appellate opinions in which the Courts have held that a
defendant may rely on a factually devoid answer to an “all facts” interrogatory to shift the burden of proof to
plaintiffs on motions for summary judgment. See, e.g., Scheiding v. Dinwiddie Construction Co. (1999) 69
Cal. App.4th 64, 83. Such an answer is equivalent to an admission that there is no more information.

CHICAGO BRIDGE & IRON COMPANY’S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTOo ON DA HU B&B WH =

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v. Owens-Corning Fiberglas Corp., supra, 28 Cal,App.4th at 657 ("[P]laintiff must prove
exposure to asbestos products of a type supplied by defendants.") In asbestos personal injury and
wrongful death actions, without proof of exposure, there can be no proof of causation. Smith v.
ACandS, Inc. (1994) 31 Cal.App.4th 77, 89.

Smith v. ACandS addresses the plaintiff's burden of proof in an asbestos-related action such
as this, 31 Cal.App.4th at 87-89. In Smith, the plaintiff alleged exposure to ACandS-installed
insulation materials based only on circumstantial evidence that the plaintiff and ACandS worked at
the same job site during 1959 and 1964. Although a comparison of plaintiff's union dispatch slips
and ACandS contract logs in Smith showed that both the plaintiff and ACandS worked at the same
"mammoth" site around the same months in 1959 and 1964, the court nevertheless found insufficier
evidence of exposure. Id., at 87.

The court in Smith stated that, even assuming that both the plaintiff and ACandS were at the
same refinery at the same time, "nothing within reason could lead to the conclusion that [plaintiff]
was anywhere near ACandS when it installed asbestos materials [at the mammoth site]." Id., at. 88.
‘The court went on to conclude that "only rank speculation, not reasonable inferences, could support
a conclusion that [plaintiff] was exposed to ACandS-installed asbestos materials." Jd., at 89.

Dumin v. Owens-Corning Fiberglas, supra, also addresses the plaintiff's burden of proof
in an asbestos action. Under Dumin, it is not enough for the plaintiff to present evidence that a
given asbestos-containing product was used at a job site, and to infer therefore that he must have
been exposed to that product while working there. Although Dumin addressed supplier liability for
asbestos-containing products allegedly supplied to a shipyard at which plaintiff worked, the
principtes apply equally to cases involving contractors (such as CBI) and subcontractors. In
considering the evidence, the Court of Appeal stated:

In its best light, the evidence establishes: (1) Dumin was aboard the
Pocono in 1953 and 1954, and his duties included making any
necessary boiler repairs with insulation materials; (2) the Pocono
was home ported at the Norfolk Naval Shipyard; (3) OCF Kaylo was
used at the Norfolk Naval Shipyard as one of the many insulation
products at some time around the early 1950s; and (4) the Pocono's
repair supplies were probably received from the Norfolk Naval
Shipyard. 28 Cal.App.4th at 654-655.

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CHICAGO BRIDGE & IRON COMPANY'S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

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The Court found the plaintiff's evidence to be insufficient to mect his burden of proof and
held:

In short, a conclusion that Dumin was exposed to OCF Kaylo while
aboard the Pocono in 1953 and 1954 would require a stream of
conjecture and surmise. Dumin misdirects his energy in denouncing
the trial court's ruling as a rejection of circumstantial evidence and
an unwarranted demand for direct evidence of causation. The trial
court simply required -- as we do -- that the circumstantial evidence
be of sufficient weight to support a reasonable inference of
causation, The evidence fails to meet that requirement. /d., at 656,

For the foregoing reasons, the present case is exactly like Dumin and Smith in that it would
require "a stream of conjecture and surmise" to conclude that plaintiff had been exposed to asbestos
or asbestos-containing products for which CBI was responsible. In fact, the grounds for summary
judgment in this matter are far more compelling than in Dumin and Smith in so far as there is no
evidence that CBI is an insulation contractor like ACandS, or a manufacturer or distributor of
asbestos products like OCF.

Plaintiff has not provided any evidence in support of his allegation that CBI exposed him to
asbestos. There is 2a evidence that CBI ever worked with or disturbed asbestos at any location
while plaintiff was present and in close proximity. There is therefore no evidence of the
proximity, duration, or frequency of plaintiff's alleged exposure to CBI's alleged activities as
required as a matter of law. Therefore, CBI’s motion must be granted.

TV. CONCLUSION
For the reasons set forth above, defendant Chicago Bridge & Iron Company hereby

respectfully requests that this court grant its motion for summary judgment.

Dated: June 22, 2010 SACK ROSENDIN, LLP

By:

an Illinois corporation

GAASBICASTAGNA, Lovis - CANMSApld - MSI - P&A- CBLwpd

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CHICAGO BRIDGE & IRON COMPANY’S POINTS & AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT