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

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SUITE 1450
Son Frencisea, CA 94t04

Edward R. Hugo [Bar No. iavoeel
prcgory,S. Rosse [Bar No. 157965
Ken L. Hoang [Bar No. 207645]
BRYDON HUGO & PARKER

135 Main Street, 20% Ploor

San Francisco, CA 94105
Telephone: (415) 808-0300
Facsimile: (415) 808-0333

Attorneys for Defendant
NIBCO INC.

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUN 22 2010

Clerk of the Court
BY: RAYMOND K. WONG
Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

LOUIS CASTAGNA,

Plaintiff(s),
v8.

ASBESTOS DEFENDANTS (B*P), ET AL.,

Defendants.

(ASBESTOS)
Case No, CGC-07-274230

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT NIBCO INC/S MOTION
FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION

[Filed concurrently with Notice of Motion,
yparate Statement of Undisputed Material
Facts, and Declaration of Ken L. Hoang.)

Date: September 8, 2010
Time: 9:30 a.m.

Dept.: 220

Judge: Harold E. Kahn

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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC/S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION1 TABLE OF CONTENTS
2
3 L SUMMARY OF FACTS AND ARGUMENT. wsscssscssssesssseecsescssnsessansecsunmmseeevernensene 1
4 Th SUMMARY JUDGMENT AND ADJUCIATION STANDARDS joo vanstccoeneeunee 1
Hl. SUMMARY JUDGMENT IS PROPER BECAUSE PLAINTIFF CANNOT
5 ESTABLISH CAUSATION wossscsnsecssccessennmennscnsesneenserencurernessaeesniscunnreaseneanevgnieconatessesesise 2
6 A. PLAINTIFF'S COMPLAINT, DISCOVERY RESPONSES AND
DEPOSITION TESTIMONY ARE DEVOID OF ADMISSIBLE
7 EVIDENCE TO ESTABLISH CAUSATION...
8 1. Plaintiff's Complaint... ecessessesonseiee
9 2. NIBCO’s Written Discovery viescecssssussscsssesenenssssseeeesensusnsseeeesirgessenssaens 3
10 3. Standard Asbestos Written DiscoVeLy .....csssocescseeuesssssetenuanscseeseneaneneee 4
i 4. Plaintiff's Deposition Testimony. .s.ussusseceenssssseeesununssnsssesnenierstnnctet 4
12 5. Work with Packing on NIBCO Valves....scccsssssssscssnesssseesessctnmsssetnceene 4
13 6. Work with Gaskets on NIBCO Valves....ssccssssessensscnsssesessemnnnsseeennanncter 5
14 7, Product Identification Witnesses issn sinstisssiseeneatssencte 6
15 B. NIBCO CANNOT BE HELD LIABLE FOR DEFECTIVE
COMPONENT PARTS, OR EVEN PORESEEABLE REPLACMENT
16 PARTS, MADE BY THIRD PARTIES. ...cessesccseecnenceceeeseteeresssesersnensenscceresesanens 7
17 1. NIBCO Did Not Have a Duty to Warn Plaintiff...ccssssconeessesssneessees 9
18 2. No Design Defect Exists Attributable to NIBCO...-..senvssssesesssserensse 10
19 3. Plaintiffs’ Negligence Theories Also Fail as a Matter of Law ..
| 20 Cc. IN THE ALTERNATIVE, SUMMARY ADJUDICATION I5 PROPER
BECAUSE PLAINTIFF CANNOT ESTABLISH THE EXISTENCE OF
21 A TRIABLE ISSUE OF MATERIAL FACT FOR EACH OF HIS
» CAUSES OF ACTION AGAINST NIBCO\..csssscssecssnneessnereetsenernennieenenniress 1
1. Plaintiff's Causes of Action for Negligence (First) and Strict
23 Liability (Second) Fail Since Plaintiff Cannot Prove Causation. .........12
24 2. Plaintiff's Third Cause of Action for False Representation Is
28 Without Merit, .cccscsssessucsssecssessensnseesrrenseeessnseeeesaneeceserccensneneaversvinssasecsersrenes 12
, 3. Plaintiff's Claim for Punitive Damages Is Without Merit As
26 Plaintiff Has No “Clear And Convincing” Evidence That NIBCO
4 Acted With Oppression, Fratid or Malice... essssecseerssseesssereensseersenenest i4
28 TV. — CONCLUSION... eecsccsssecssesesersessseesnseareenseennesnrsetneanseasoesseaneneccessenssossuanesereantevsessnsnvneanentnes 16
i
BRYDON :
ast GRoue MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC.’S
ane MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
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BRyYDON

Huo & PARKER,
135 Bian STARET
20" Fook,

Sta Francisno, CA 94105

TABLE OF AUTHORITIES

Cases
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal 4th 826, B49 cc cscsccscssesseenecmnesscsessssssersssetunenrerrecsensscsevasestsessseerseesessuvensersensanee 1

Andrews v. Foster Wheeler
(2006) 138 Cal App.4th 96, 106-07 oo. ceecscessesestesteesetsessssscssescsscoeseameastsersssssssseasecsssresspesseess 6,13

Basich v. Allstate Ins. Co.
(2001) 87 Cal. App Ath 1112, 1118-20.

Cadlo v. Owens-Corning, Inc.
(2004) 125 Cal. App.4th 513, 523-24...

Chaknova v. Wilbur-Ellis

(1999) 69 Cal. App.4th 962, 974-77 ...ssssescssssseesseeseesearscsnsnieessverssssuneascsvvsssaaencesnatssesnancsnsanerestss 3
City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

(1998) 80 Cal App.4th 445, 461 csssussecssueresssseessesnsssssnmesssnssnssassateucenssnnrersnavcanssssessesneniseste 12
Daly v. General Metors Corp.

(1978) 20 Cal. 3 725, 733 o..cssseeessessssssensercsessssnssereecestnsesesessssnseonsersnuneenserssenseesseensnmenoreenetnes 7
Dumin v. Owens-Corning Fiberglas

(1994) 28 Cal. App.4th 650, 657-58... ccsseseenseeceuteees asreenecatoneeessnssssuseaavesensesennesanarroneesnetont 12
Hauter v. Zogarts

(1975) 14 Cal. 3d 104, TED cece esssccsneneecseresnosnserecaeacenssanesscegnennacercesanennasesccnrenusrecerosennnnness 12

Hunter v. Pacific Mechanical Corp.
(1995) 37 Cal. App 4th 1282, 1287-90 ...ccccssssssecsssssesssssssecssssscecsnneseesneessssnessnaneresnenreeeiannseeennnersss 3

Jiminez v. Superior Court
(2002) 29 Cal. 4th 473, 480...

Kasel v. Remington Arms Company, Ine.
(1972) 24 Cal App.3d 711, 725

La Jolla Village Homeowner's Assoc. Inc. 0. Superior Court

(1989) 212 Cal App.3d 1131, 115 Ls ccscccccssseecceesesseeeeeeeerssnensnnnnanrreceecersresnennsansserenssreneaeesssces 14
Lineaweaver v. Plant Insulation Co.,

31 Cal App.th at 1415 oo sessescreneenensensesesecessensenanscseerensenenerssenneetserenneensesessaseesennnees 2,7, 12
Lovejoy v. ATST Corp. |

(201) 92 Cal App.4th 85, 95 caccsscccseseneseseecnnunnesesniesnisstenssenestasssinnsersinnsenssesatet 14
McGonnell v. Kaiser Gypsum Co.

(2002) 98 Cal App.4th 1098 ....eccssesssesessscccsecsesstenenetamanierencsassapesniscsrevesssesnesseseesssereserss 2,3, 14
Mock v. Michigan Millers Mutual Ins. Co.

(1992) 4 Cal App At 306, 334 ...csecssesseceseseseeseererteuseeeersesnnnaanseerrienensessersnsantanenntnnnannneees 15

ii

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBRYDON
Huao & PARKER
TeManeSrReEr

20")

San Francigao, CA 98109

Rutherford v. Owens-Illinois, Inc.

(1997) 16 Cal 4th 953 oo cssscsersesernvesesnsendecrsretecieesseesnsnearesninverenncoureuneaneenersercearenaaenvetse 2,7, 12
Shin v. Kong .
(2000) 80 Cal. App Ath 498, 509... esseccsssennneresssnescsssnesssnreneseussnvernesarrssssnwsressnaressennenersts 14

Taylor v. Elliott Turbomachinery Co.
(2009) 171 Cal. App.4th 564... ccccssscscssreccssnneeeennsniecnsunessssssnsuseesssneneenenesenieecnaserses 7,9, 10, 14

Vandermark v. Ford Motor, supra,
61 Cal.2d at p. 262 wcrc sosessvesenzenenesseovereeansusceseansceneseanennverennerenneenvecsreresaanenscentenin 7

Walton v. William Powell Co.
(2010) 183 Cal App.4th 1470, 108 Cal. Rptr.3d 412.

Weber v. John Crane, Ine.
(2006) 143 Cal.App.4" 1433

Wilkins v. NBC, Inc.

(1999) 71 Cal App.th 1066 ...seccsessusssieacnisssinsesonsssesscesnssesussenssstenarereseanacenertntnine 14
Statutes
Civil Code 83294... ccccsseescnssessssessnsssarescnnesnssreqancnuntertenieorsceutessusesoetenarenersesnasasaeescreanseserecenenannesenten 15

Code Chy, Proc., § 43 70(C) cceccssecsssesssesersseesssersnnsatsareneressuseenansorsssesarssesrossneranatensecannenseseenvarstanerss gies 1
Code Civ. Proc., § 43 76(D)( LD) .crecccsressteenesterscetreereseneree veel
Other Authorities

RST2d Torts, 4028 ccccnesssscsrsssseeesscecounnnnsnessccessnnenestesctennectsccsassnsnneesaswasseneeesssuaceneeetanenvennsis 13
Rest.3d Torts, Products Liability, § 5, com. Ay J. 131. cccsseccssessesssecesseenssnersssnscernnnmesiannngss 10

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC.S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONDW oe YW DR HR BR BW Nm

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BRYDON
Law Group
2S CALPORNIA STREET

susre 400
San Frastciseo, CA 20104

L SUMMARY OF FACTS AND ARGUMENT
This is an asbestos personal injury action in which Plaintiff LOUIS CASTAGNA,

(Plaintif?’) seeks compensatory and punitive damages for injuries sustained as the result of
alleged exposure to asbestos-containing products against various defendants including NIBCO.
INC. (NIBCO”), a valve manufacturer.

Some NIBCO valves contained asbestos-containing components such as gaskets and
packing, but the gaskets and packing material were manufactured by third parties. NIBCO is
therefore only potentially Hable for exposure to gaskets or packing it sold or supplied.

Nonetheless, Plaintiff has failed to provide any admissible evidence through written
discovery responses or deposition testimony that he was actually exposed to any asbestos-
containing products for which NIBCO would be liable. Given the current lack of evidence,
summary judgment is therefore warranted.

In addition, Plaintiff's claim for false representation is without merit, as Plaintiff has no
evidence to support that claim, and there is no “clear and convincing evidence” of conduct on the
part of NIBCO which would be sufficient to support or justify Plaintiff's claim for punitive
damages.

IL SUMMARY JUDGMENT AND ADJUCIATION STANDARDS

Summary judgment must 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.” (Code Civ. Proc., § 437c(c).) Summary adjudication, alternatively, is granted if one or more
causes of action have no merit, (Code Civ. Proc., § 4370(f)(1).) A cause of action has “no merit”
if any element of the cause of action cannot be established, or there is a complete defense to the
cause of action. (Ibid.)

To prevail here, NIBCO only has to establish that Plaintiff does not possess, and cannot
reasonably obtain, evidence necessary to raise a genuine triable issue of fact concerning “one or
more” of the elements of each cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th

826, 849.) For summary adjudication, all that must be shown is that one or all of Plaintiff's causes

1

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOo em NM DR HR BR YW RD

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28

BRYDON

Huo & PARKER
15 MAIN STASET
20" FLOOR
‘San Francisca, CA 94105

of action have “no merit,” in that at least one of the elements of each claim cannot be factually

supported.

TH. SUMMARY GMENT IS PROPER BECAUSE PLAINTIFF CANNOT
ESTABLISH CAUSATION

‘The “threshold issue in asbestos litigation is exposure to the defendant's product. Plaintiffs
bear the burden of proof on this issue.” (See McGonnell v. Kaiser Gypsum Co. (2002) 98
Cal.App.4th 1098, 1103; Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal 4th 953, 982;
Lineaweaver v. Plant Insulation Co., 31 Cal.App.4th at 1415-16.) This requires a showing that (1)
Plaintiff was exposed an asbestos-containing product attributable to NIBCO, and (2) that :
biological processes from this exposure resulted in his disease. (Lineaweaver, 31 Cal.App.4th at
1415-16.) Plaintiff must establish with reasonable medical probability that a particular exposure
or series of exposures was a “legal cause” of Plaintiff's injury, i.¢., a substaritial factor in bringing
about the injury. (Rutherford v. Owens-Illinois, Ine. (1997) 16 Cal. 4th 953, 982.) “If there has
been no exposure, there is no causation.” (McGonnell v. Kaiser Gypsum Co. (2002) 98
Cal.App.4th 1098, 1103; Cadlo v. Owens-Corning, inc. (2004) 125 Cal.App.4th 513, 523-524.)

As set forth in Weber v. John Crane, Ine, (2006) 143 Cal.App.4" 1433, at 1438, an

asbestos plaintiff:

cannot prevail against a defendant without evidence that the plaintiff was exposed to asbestos-
containing materials manufactured or furnished by the defendant with enough frequency and
regularity as to show a reasonable medical probability that this exposure was a factor in causing
the plaintifi's injuries.

This proof is fundamental to each of Plaintiff's claims set forth in the Complaint, :
particularly his causes of action for Negligence (First Cause of Action) and Products Liability

(Second Cause of Action).

2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO ENC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONeo Ce MD HR ON

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28

BRYDON

RUGO & PARKER:
335 MAR STREET
 F00R

San Francisco, CA 94108

A. PLAINTIFF’S COMPLAINT, DISCOVERY RESPONSES AND
DEPOSITION TESTIMONY ARE DEVOID OF ADMISSIBLE
EVIDENCE TO ESTABLISH CAUSATION

To fulfill its burden on summary judgment, a defendant may rely on plaintiffs factually
devoid discovery responses or deposition testimony to prove that the plaintiff lacks evidence on an
essential element of the cause of action. (Saelzler, supra, 25 Cal.4th at 774; Hunter v. Pacific
Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287-90; Chaknova v. Wilbur-Ellis (1999) 69
Cal. App Ath 962, 974-77; MeGonnell v. Kaiser Gypsum Co. (2002) 98 Cal. App.4th 1098, 1103-
05.) :

Here, Plaintiff's Complaint, deposition testimony, and discovery responses fail to establish
that he was exposed to any asbestos or asbestos-containing products for which NIBCO would be
liable.

1. Plaintiff's Complaint

Plaintiff's complaint alleges that various defendants caused him to be exposed to asbestos-
containing products and thereby develop an asbestos-related disease. [Undisputed Material Fact
(“UME”) No.'1.] The Complaint does not, however, contain any specific allegations showing
Plaintiff was exposed to asbestos products manufactured, sold or supplied by NIBCO. [UMF No.
2]

2. NIBCO’s Written Discovery

In order to determine the factual basis for Plaintiff's claims against it, NIBCO served
written discovery on Mr. Castagna. 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. [UMF No. 3.] 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.
[UMF No. 4]

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. [UME No. 5]
Plaintiff did not provide any responsive documents to NIBCO’s request. [UMF No. 6.]

3

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC/S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

|
|San Francizgo, CA 94105

3. Standard Asbestos Written Discovery
On February 9, 2010 Plaintiff served supplemental/amended responses to Standard

Asbestos Interrogatories Set One, No. 26 and Set Two Nos. 1 through 3. {UME No. 7.] 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. [UMF No. 8.]

4, Plaintiff's Deposition Testimony

Mr. Castagna was deposed in this matter, his deposition concluded on February 19, 2010.
{UMF No. 9.] 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. | through 3, Plaintiff did not testify to working with NIBCO valves in the Fast Flux Test
Area at AEC Hanford in Richland, Washington. [UMF No, 10.]

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, at General Motors in
Freemont, Tosco and Chevron. [UMF No. 11.] Yet his February 9, 2010 supplemental/amended
responses to Standard Asbestos Interrogatories Set One, No. 26 and Set Two Nos. 1 through 3 do
not identify or describe Plaintiff's work with NIBCO valves at these jobs. [UMF No. 12.] As
shown above, Plaintiff's responses to written discovery and deposition testimony are riddled with
inconsistencies and contradictions.

5. Work with Packing on NIBCO Valves
Plaintiff testified that he did not know the maintenance history to the majority of NIBCO

valves he repacked. [UMF No. 13.] However, Mr. Castagna believes he installed NIBCO valves
in 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. [UMF No. 14,] Plaintiff
believes he was the first person to work on the NIBCO 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. [UMF No. 15.] Upon further questioning, Plaintiff acknowledged he had
no documents, facts, or other information to support his belief that no one had worked on or
repacked these NIBCO valves before his return. [UMF No. 16.] Mr. Castagna’s belief that he

4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOC fe NU DR Ww B&B WN

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BRYDON
Huco & PARKER
135 Mat Sranet
20" FLOOR

Sas Franciseo, CA 94105

repacked new NIBCO valves was solely based on his perception that the NIBCO valves appeared
to not have been tampered with or disturbed. [UMF No. 17.]

Plaintiff also believes he worked with, as well as around others who worked with original
packing materials in old NIBCO valves. [UMF No. 18.] 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.
[UMF No. 19.]

Plaintiff's testimony regarding his alleged work with and around original packing material
from new NIBCO valves and from old NIBCO valves is clearly based on guesswork, speculation,
and amounts to inadmissible hearsay. Plaintiff admitted he did not know the maintenance history
of most of the NIBCO valves he ericountered. As to the valves he installed and came back to work
on again, he did not know if anyone had worked on those valves during the 1 to 1 % year interim.
Additionally, Plaintiffs observations that a frozen packing gland or packing material in poor
condition is also not admissible evidence in proving the valves were never worked on before.
Plaintiff has no admissible evidence such as documents, facts or information to support his belief
that the new and old NIBCO valves he and others encountered had. never been worked on before or
that they contained originally supplied packing material. 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. [UMF No. 20.]

Mr. Castagna also testified that he worked with packing materials supplied by NIBCO.
[UME No. 21.] 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. [UMF
No. 22.) Plaintiff later strayed away from his unsupported assumption that he worked with
packing supplied by NIBCO. [UMF No. 23.] Plaintiffs belief again was merely based on
speculation and inadmissible hearsay.

6 Work with Gaskets on NIBCO Valves
Plaintiff replaced flange gaskets on NIBCO valves but further testified that he did not

know whether any of the gaskets were supplied by NIBCO. [UMF No. 24]
5

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7. Product Identification Witnesses

NIBCO’s Special Interrogatory No. 4 requested Plaintiff to identify all persons who can
corroborate any facts in support of Plaintiff contention that he was exposed to asbestos-containing
NIBCO products. [UMF No. 25.] Plaintiff response identified himself and NIBCO’s Person Most
Knowledgeable/Custodian of Records, Contrary to Plaintiff's contention, NIBCO’s Person Most
Knowledgeable/Custodian of Records were not present with Mr. Castagna when he worked on
NIBCO valves and have no corroborative information regarding his alleged exposure. [UMF No.
.] [UMP No. .] [UMF No. J

‘The California First Appellate District recently affirmed that a defendant meets it burden of
proof on summary judgment by submitting a plaintiff’s factually devoid discovery responses.
(Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96, 106-07.) In response to interrogatories
seeking identification of witnesses and documents supporting plaintiff's claims, plaintiff provided

a list of co-workers and supervisors. With respect to these discovery responses, the court stated:

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. (/d. at
106-07.)

Mr, Castagna’s response to NIBCO’s all document inquiry amounts to nothing more than a
laundry list of non responsive documents. [UMF Nos. 5 and 6.] None of the documents identified
established a nexus between Plaintiff and NIBCO (.e., documents showing that NIBCO sold or
supplied the asbestos-containing component parts to which Plaintiff was exposed). As to
witnesses, NIBCO’s Person Most Knowledgeable/Custodian of Records were not present when
Mr. Castagna worked on NIBCO valves and have no corroborative information regarding his
alleged exposure to asbestos from NIBCO products. Finally, as provided above, Plaintiff has no
admissible evidence to support his claims that he was exposed to asbestos for which NIBCO is

6

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo we NM DN RH RB YW NY

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Bryon
HUGO & PARKER,
‘133 MAIN STREET
2 Foo
San Francisco, CA 9410S

Hable. Plaintiff's deposition testimony is riddled with inconsistencies, speculation and
inadmissible hearsay with regards to his alleged exposure to packing and gaskets supplied by
NIBCO.

After weeding through all of the inadmissible allegations and contensions, Plaintiff is left
with no facts or evidence in support of his claims against NIBCO. Pursuant to Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal 4th 953, 982, and Lineaweaver v. Plant Insulation Co., 31
Cal.App.4th at 1415-16, there is no competent evidence that Plaintiff was ever exposed to any
asbestos-containing product attributable to NIBCO. Consequently, “there is no causation,” and

summary judgment for NIBCO must be entered here,

B. NIBCO CANNOT BE HELD LIABLE FOR DEFECTIVE
COMPONENT PARTS, OR EVEN FORESEEABLE REPLACMENT
PARTS, MADE BY THIRD PARTIES.

Strict liability is premised on the notion that those involved in the marketing
enterprise, who reap profits by placing a defective product in the stream of commerce,
should beat the costs of injuries caused by that product.) (Vandermark v. Ford Motor,
supra, 61 Cal.2d at p. 262.) “[Sjtrict liability has never been, and is not now, absolute
liability.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733.) California courts have
explicitly recognized that a defendant must participate and profit in the marketing
enterprise before strict liability would be imposed. (Kasel v. Remington Arms Company,
Inc. (1972) 24 Cal.App.3d 711, 725 [the defendant's participation for “personal profit or
other benefit, with the injury-producing product” is what justifies the “imposition of
strict liability.”].) Thus, manufacturers and distributors are not strictly liable under
California law for defective products which they did not place into the stream of
cornmerce and over which they exercised no control.

In Taylor v. Elliott Turbomachinery Co. (2009) 171 Cal. App.4th 564, the First District
Court of Appeal held that product manufacturers are not liable in either strict lability or

‘Thus, California courts have observed that a product is defective only when “it leaves the seller's hands,
in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”
(Canifax, supra, 237 Cal, App.2d at 53.) Likewise, courts have held that the products must be defective
“when they leave the factory.” (Jimenez v. Superior Court (2002) 29 Cal 4th 473, 480.)

7

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28

BRYDON

HuGo & PARKER
138 Mas Stxeer
20" FLOOR
‘San Frencises, CA 94505,

negligence to warn of defects or hazards of component parts made by others, nor are
they liable for defective replacement parts —even if the need for such replacements has
been foreseeable. (Id. at 593, 596.) This ruling was recently re-iterated and expanded
upon in Walton v. William Powell Co. (2010) 183 Cal.App.4th 1470, 108 Cal.Rptr.3d 412, in
which the Court of Appeals held that holding in Taylor applied to both warning and
design defect strict liability and negligence claims.

In Taylor, the decedent was allegedly exposed to asbestos while aboard a Navy
ship in the 1960s. The defendants manufactured equipment used in the propulsion.
system of the ship. The plaintiffs alleged that decedent was exposed to pipe flange
gaskets, as well as to asbestos-containing internal gaskets and packing, all manufactured
and supplied by third parties. Decedent admitted that he could not prove that he ever
removed original asbestos-containing gaskets or other components. Nevertheless,
plaintiffs sought to impose liability on the manufacturers of the products aboard the
Navy ship on which decedent served that allegedly incorporated those gaskets and other
asbestos-containing component parts. The defendants moved successfully for summary
judgment, which the Court of Appeal affirmed unanimously.

In affirming the trial court's ruling granting summary judgment to defendant-
manufacturers, the Taylor Court noted that under California law: (1) a duty to warn was
restricted to those entities in the "chain of distribution” of the allegedly defective product;
(2) a manufacturer had no duty to warn of defects in a third party's component part,
unless the manufacturer's product itself caused or created the risk of harm; and (3) a
manufacturer or supplier of a non-defective component part had no liability when it built
a product to a customer's specifications but otherwise did not substantially participate in
the integration of that component into the final product. (Id. at 575.) Based on these
principles, the Taylor Court held that no duty arose as to the manufacturers of the pumps,
valves and feed tanks, and that the manufacturers accordingly had no duty to warn

plaintiff under either a strict liability or negligence theory. (Id. at 593, 596.)

8

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOo ff SD KR UR BR BN

NOM MRM BM NM RM NM Rm mem et
3S A A FR G&G BP SF DD we YN DH eB YH BD HK So

28

BRYDON

Huco & PARKER
‘135 MAIN STREET
20 FLOOR
‘San Fransisco, CA 94405

The recent decision in Walton adopted the ruling in Taylor, finding plaintiffs’ claims
for strict liability and negligence, both as to failure to warn and design defect, fail because
defendant's valves were not defective and caused no injury to plaintiff. ({d. at 424.)

1. NIBCO Did Not Have a Duty to Warn Plaintiff

Pursuant to the analysis in Taylor and Walton, Plaintiff's failure to warn claims are
not legally sustainable for three reasons: (1) NIBCO was not part of the chain of
distribution of the injury-causing products, as Plaintiff has provided no admissible
evidence that he was exposed to any asbestos-containing products supplied by NIBCO;
(2) NIBCO had no duty to warn of asbestos hazards from products made or supplied by

other matiufacturers and used in conjunction with NIBCO’s equipment; and (3) the

component parts doctrine shields NIBCO from liability as there is no evidence that

NIBCO's valves were themselves defective. (Walton, supra, 108 Cal.Rptr.3d at 419; citing
Taylor, supra, 171 Cal.App.4th at 577-585.)

As articulated in Taylor and Walton, under the well-established principles of the
component parts doctrine, the employment of a non-defective component in an injury-
causing shipboard propulsion or heating system is not, by itself, sufficient to trigger the
duty to warn; “plaintiff must show that the component manufacturer ‘particpated in the
integration of the component into the design of the system." (Walton, supra, 108
Cal. Rptr.3d at 420-421; citing Taylor, supra, 171 Cal.App.4th at 585.) The Plaintiff in this
case has made no such showing. ‘

There is simply no evidence that NIBCO was part of the chain of distribution of
the asbestos-containing products to which Plaintiff was exposed. NIBCO had no legal
duty to warn of potential hazards from products manufactured by other manufacturers
and used in conjunction with NIBCO’s valves, Moreover, as NIBCO's valves were _
simply a component part of larger systems (i.e. refinery systems), of which NIBCO had
no part in designing, it is shielded by the component parts doctrine. As such, there is no

legal duty to warn and NIBCO cannot be held liable under such a theory.

9

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONwo eo ND tH BR OH De

BR BNR tat
NR RE 8 & 2 Sb eB UA GEG SB SS

28

Brypon

HUGO & PARKER
BS Maw ‘SmReer

San Frarciseo, CA 94105

2. No Design Defect Exists Attributable to NIBCO
As the court in Walton held, “the theory that valves suffered from a design defect

fails under the component parts doctrine," (Id. at 421.) As explained in the Restatement
Third of Torts, Products Liability, the doctrine encompasses items such as valves, which
have no functional capabilities unless integrated into other products. (Rest.3d Torts,
Products Liability, § 5, com. A, pp. 130-131.) The doctrine encompasses such items,
provided they are non-defective themselves, because "[i}mposing liability would require
the component seller to scrutinize another's product which the component seller has no
role in developing. This would require the component seller to develop sufficient
sophistication to review the decisions of the business entity that is already charged with
responsibility for the integrated product." (Rest.3d Torts, Products Liability, § 5, com. A,
p. 131.)

NIBCO's valves fall squarely within this rationale for the component parts
doctrine. Even when joined with packing, gaskets, and insulation, NIBCO's valves have
no functional valiié until integrated into broader systems, such as refineries, containing
other components. As there is no evidence that NIBCO played a role in developing the
refinery systems in which its valves were places, NIBCO as a component parts
manufacturer, cannot be held Hable for the defective design of these various systems.
(Walton, supra, 108 Cal. Rptr.3d 412 at 422.)

Moreover, the decisions of Taylor and Walton make patently clear that
"foreseeability alone does not warrant imposition of strict liability when, as here, the
upshot of the imposition would be to require the component part manufacturer to retain
‘an expert in every finished product manufacturer's line of business and second-guess the
finished product manufacturer whenever any of its employees receive any information
about any potential problems." (Id. at 423; citing Taylor, supra, 171 Cal.App.4th at 585-
585.) This would in essence require NIBCO to acquire "sufficient sophistication to review

the decisions of the...entitfies] directly responsible for the products in question; a duty

16

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONee 8 ND HB BW NM

No NRooN teeth th tte
SRP RRR SB RS BS BARE SEES

28

BRYDON

Hugo & Parker
135 MAIN STREET
20” FLOOR

San Francisco, CA 94105

that courts have declined to impose. (Id. at 422.) In sum, Plaintiffs’ strict liability claims
fail as a matter of law.
3. Plaintiffs’ Negligence Theories Also Fail as a Matter of Law

The court in Taylor found no imposition of liability under a negligence theory
because there was no duty. (Taylor, supra, 171 Cal. App.4th at 593-596.) In relying on this
holding in reaching the same conclusion in Walton, the court placed special emphasis on
the defendant's lack of responsibility for injury under a theory of strict liability. As
NIBCO is not strictly Hable for Plaintiff's injuries, which arose from exposure to asbestos
products from sources other than NIBCO, NIBCO had no duty of care towards Plaintiff
for purposes of a negligence claim. (Walion, supra, 108 Cal Rptr.3d 412 at 424.) Plaintiff
therefore cannot state a claim for negligence in this case.

The foregoing decisions lead to one conclusion: A manufacturer is strictly liable
only for “injury-producing” products that it designs, manufactures or distributes. Mr.
Castagna cannot show that he was exposed to asbestos from products such as gaskets
and packing that NIBCO designed, manufactured, sold or distributed. [UMF Nos. 1-26.]
Accordingly, NIBCO cannot be held liable for any injuries that Plaintiff might have

suffered from those component products, and summary judgment must be entered here.

Cc IN THE ALTERNATIVE, SUMMARY ADJUDICATION IS
PROPER BECAUSE PLAINTIFF CANNOT ESTABLISH THE
EXISTENCE OF A TRIABLE ISSUE OF MATERIAL FACT FOR
EACH OF HIS CAUSES OF ACTION AGAINST NIBCO

If the Court is inclined to deny NIBCO’s motion for summary judgment, NIBCO
requests summary adjudication of each of the causes of action against NIBCO in
Plaintiff's complaint.

Mf
lil

11

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION‘Son Francisen, CA 9405

1. Plaintiff's Causes of Action for Negligence (First) and Strict Liability
(Second) Fail Since Plaintiff Cannot Prove Causation.

Causation is an essential element of Plaintiff's causes of action for negligence and
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.)

Accordingly, NIBCO requests the Court grant summary adjudication as to
Plaintiff's First and Second Causes of Action for Negligence and Strict Liability.

2. Plaintiffs Third Cause of Action for False Representation Is Without
Merit.

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 of a
misrepresentation made by NIBCO that Plaintiff relied on to his detriment, nor
intentional conduct on NIBCO’s part.

False Representation or Misrepresentation requires proof of a misrepresentation of
material fact upon which plaintiff relied, causing damages. (Cf Mauter v. Zogarts (1975)
14 Cal.3d 104, 111 [elements of false representation] with City of Atascadero v. Merrill
Lynch, Pierce, Fenner & Smith, Inc. (1998) 80 Cal.App.4" 445, 481 [elements of deceit].}

Plaintiff's claim of false representation relies on section 402B of the Restatement
Second of Torts, which states: ,

One engaged in the business of selling chattels who, by advertising, labels, or

otherwise, makes to the public a misrepresentation of a material fact

concerning the character or quality of a chattel sold by him is subject to

liability for physical harm to a consumer of the chattel caused by justifiable
reliance upon the misrepresentation .....

12

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC/S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrypon
Huco & PARKER
135 MAIN STREET
20" FLa0K
‘San Fransisco, CA HE05

(RST 2d Torts, §402B (emphasis added).)

NIBCO’s Special Interrogatory No. 28 requested Plaintiff to state all facts in
support of his false representation claim against NIBCO. [UMF No. 27,] 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. [UMF No. 28.] However as discussed above,
Mr. Castagna never identified working with NIBCO valves at this facility during his
deposition and has not provided any admissible evidence of working with any gaskets
and packing supplied or distributed by NIBCO throughout his career. [UMF Nos. 1-26.]

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 regarding the safety of asbestos-containing
NIBCO products. [UME No. 29.] 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. [UMF No. 30.] 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.
[UME No. 31.] The docurnents 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 v. Foster Wheeler (2006) 138 Cal.App.4th 96, 106-07. Significantly,
what is missing is the identification of any documents establishing a misrepresentation by
NIBCO to Plaintiff. [UMF No. 32.]

Plaintiff cannot prove that NIBCO made any representations to him, much less
that any false representations. Moreover, there is no evidence that Plaintiff ever relied on

such representations, because there is no admissible proof that he ever was exposed to
13

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONBrypon

Huo & PARKER
V8 Mane ‘STREET

San Francisca, CA 94105

asbestos from any asbestos containing product manufactured, sold or supplied by
NIBCO. Plaintiff cannot establish that he was “a consumer of the chattel” as required by
the Restatement. Accordingly, “[ijf there has been no exposure, there is no causation.”
(McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103; Cadlo . Owens-Corning,
Inc. (2004) 125 Cal.App.4th 513, 523-24 [demurrer to fraud cause of action sustained when.
facts showed asbestos plaintiff was not exposed to moving defendant's product].)

Nor can Plaintiffs proceed on the theory that NIBCO failed to disclose material
information about the dangers of asbestos. Among other things, Plaintiff must prove that
NIBCO was under a duty to disclose a material fact. (Lovejoy v. AT&T Corp. (2001) 92
Cal.App.4th 85, 95.) But a duty to disclose generally exists only if there is a “special
relationship” between the parties. (Shin v. Kong (2000) 80 Cal.App.4th 498, 509; Wilkins v.
NBC, Inc. (1999) 71 Cal App.Ath 1066.) Put another way, a failure to disclose “is not
actionable fraud unless there is a fiduciary or confidential relationship giving rise to a
duty to disclose.” (La Jolla Village Homeowner's Assoc. Inc. v. Superior Court (1989) 212
Cal App.3d 1131, 1151.)

Based on the following, NIBCO requests that the court grant summary

adjudication as to Plaintiff's cause of action for false representation.

3. Plaintiff's Claim for Punitive Damages Is Without Merit As Plaintiff
s No “Clear And Convincing” Evidence That NIBCO Acted With
Oppression, Fraud or Malice.

Plaintiff's claim for punitive damages fails as a matter of law because has
produced absolutely no admissible evidence that he was actually exposed to an asbestos-
containing product which NIBCO manufactured, sold, or supplied. Moreover, Plaintiff
has no evidence of intentional conduct on NIBCO’s part, or that NIBCO acted with
oppression, fraud or malice such as to warrant the imposition of punitive damages.
NIBCO’s Special Interrogatory No. 31 requested Mr. Castagna to identify all facts in
support of his claim for punitive damages. [UMF No. 33.] 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
i4

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONom YD A RB BW NH

mM NHN NN M&M NH YOR tm oe peepee tem Ia
8 ® BF SERS SEA FAE BE =A S

28

BRYDON

Huco & PARKER
135 Mare STREET
20" FLOOR

Son Franciszo, C4 94105

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. [UMF No. 34.] These responses do not cure
Plaintiff's failure to provide evidence of actual causation and also fail to provide evidence
in support to his claim for punitive damages. [UMF Nos. 1-26]

Since the 1987 amendments to Civil Code §3294, oppression, fraud, or malice must
be proven by “clear and convincing” evidence. (Mock v. Michigan Millers Mutual Ins. Co.
(1992) 4 Cal App.4® 306, 331.) Where the Plaintiff's ultimate burden of proof will be by
clear and convincing evidence, the higher standard of proof must be taken into account
in ruling on a motion for summary judgment or summary adjudication, since if a
plaintiffs is to prevail on a claim for punitive damages, it will be necessary that the
evidence presented meet the higher evidentiary standard. (Basich v. Allstate Ins. Co. (2001)
87 Cal. App.4th 1112, 1118-20.) ,

There is insufficient evidence of intentional conduct to warrant the imposition of
punitive damages under California law. Civil Code Section 3294{a) defines the standard
for recovering punitive damages: In an action for the breach of an obligation not arising
from a contract, where it is proven by clear and convincing evidence that the defendant
has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual
damages, may recover damages for the sake of example and by way of punishing the
defendant, The lack of evidence of any oppression, fraud, malice or any intentional
conduct, on the part of NIBCO would therefore preclude the imposition of punitive
damages in this case, —

Plaintiff's alleged claim of intentional conduct is unsupported by any evidence
whatsoever, let alone clear and convincing evidence, that NIBCO acted towards Plaintiff Louis
Castagna with the requisite degree of oppression, malice or fraud. Plaintiff's written

discovery responses are completely devoid of any facts offered in support of Plaintiff's
15

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONOo eo SN A mH RB YW YD me

BOB Ree
SRRRSRRBSE BDRERESH AS

28

BRYDON
Hoc & PARKER,
135 Mast Smueer
28" POOR
San Frunsisen, CA 94105

punitive damages clair. [UMF Nos. 33-34] Accordingly, NIBCO requests that the Court
grant summary adjudication as to Plaintiff’s-claim for punitive damages.

IV. CONCLUSION

Plaintiff has no competent evidence that he was exposed to asbestos for which NIBCO
would be Hable. The evidence to date, if produced at trial, would not be sufficient to make out a
prima facie case against NIBCO. Furthermore, Plaintiff cannot reasonably be expected to produce
any additional evidence by the time of trial to substantiate his case. Accordingly, NIBCO

respectfully requests that the Court grant its motion for summary judgment.

Dated: June 22, 2010 BRYDON HUGO & PARKER

By: /s{ Ken L. Hoang
Edward R. Hugo
Gregory S. Rosse
Ken L. Hoang
Attorneys for NIBCO INC.

16

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT NIBCO INC'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION