Motion-Secondary: CHARLES TOBEY VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS et al

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GLYNN & FINLEY, LLP

ANDREW T. MORTL, Bar No. 177876
RUTA PASKEVICIUS, Bar No. 127784
One Walnut Creek Center

100 Pringle Avenue, Suite 500

Walnut Creek, CA 94596

Telephone: (925) 210-2800

Facsimile: (925) 945-1975

Attorneys for Defendant
E. I. du Pont de Nemours and Company

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 26 2010

Clerk of the Court
BY: LUCIA RAMOS
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

CHARLES TOBEY,
Plaintiff,
VS.
ASBESTOS DEFENDANTS (B4P),

Defendant.

Case No. CGC-07-274226

DEFENDANT E, I. DU PONT DE
NEMOURS AND COMPANY’S REPLY
BRIEF IN SUPPORT OF ITS MOTION
FOR SUMMARY JUDGMENT

Date: April 1, 2010
Time: 9:30 a.m.
Dept.: 220

Trial Date; May 10, 2010

Accompanying Documents;

1) DuPont's Evidentiary Objections

2) DuPont’s Reply to Plaintiff’s Response
to DuPont’s Undisputed Facts

3) DuPont’s Response to Plaintiff’s
Separate Statement of Disputed Facts

4) Supplemental Declaration of
Ruta Paskevicius

5) Proposed Order re Evidentiary
Objections

E.I. DuPont de Nemours and Company (“DuPont”) submits the following reply brief in

support of ifs motion for summary judgment.

1. INTRODUCTION

Plaintiff Charles Tobey’s (“Plaintiff”) opposition to DuPont’s motion for summary

judgment seeks to create the appearance of triable issucs of fact by contradicting his own

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DuPont’s Reply Brief in Support of Motion for Summary Judgmentdeposition testimony and prior three years of discovery responses. Now, almost three years after
the Complaint was filed; after numerous discovery responses; after days of deposition testimony;
after the opportunity to correct that deposition testimony in writing; after three sets of amended
discovery responses subsequent to Plaintiff's deposition; one month before trial and only in
response to DuPont’s summary judgment motion, Plaintiff has completely rejected his repeated
verified assertions that he worked at the DuPont Antioch plant as an employee with one co-
worker and has created a new source of alleged asbestos exposure.

IL. ARGUMENT

A. Plaintiff's opposition does not demonstrate a prima facie case, as he has not
created a triable issue.

Tt is well-setiled that Plaintiff may not create a triable issue by contradicting his own
testimony or discovery responses. See, ¢.g., D'Amico v. Board of Medicare Examiners (1974) 11
Cal.3™ 1, 21-22.

Plaintiff's declaration is inadmissible as it contradicts previous discovery responses and
his own deposition testimony. Plaintiff has constructed a shaky structure of misleading and
evasive statements that fails to support a prima facie showing of the existence of a triable issue
of material fact.

Mr. Tobcy did not recall the brand name, manufacturer, or supplier of any product,
material, or equipment that he worked with or around. UF No. 21. He testified that he did not
recall any other contractor or contracting firm being present at the Antioch site. UF No. 22.

He testified that he did not recall anyone he worked with at the Antioch site. UF No. 23. In
short, there was no evidence that Plaintiff was exposed to asbestos at the DuPont Antioch site,

Plaintiff has now put into issue the disputed facts that he was not a DuPont employee as
he had testified, and that there were DuPont laborers around him sweeping up insulating debris.
(Plaintiffs Disputed Facts 7, 15.) Plaintiff further offers up the unfounded, stock declaration of
Charles Ay, who concluded after reading Mr. Tobey’s declaration that the unidentified insulation
Plaintiff worked with and the insulating debris swept up around him “more likely than not “

contained asbestos. Ay decl., par. 18, Exh. C to Jhans decl.

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DuPont's Reply Brief in Support of Motion for Summary JudgmentPlaintiff claims that, if only he had been asked the right question at his deposition, he
would have provided detailed memories of the DuPont laborers sweeping insulating debris two
to cight feet away from him. Plaintiff's Disputed Facts 14, 15. However, Plaintiff already
answered that question through verified discovery responses and at his deposition, and can not
now create a triable issue by contradicting himself.

Plaintiff knows that he responded to General Order 129 standard interrogatories on
numerous occasions. The G.O. interrogatories require Plaintiff to provide information regarding
all of his claimed exposure to asbestos, including whether he alleges exposure from asbestos-
containing materials other than those he personally installed, removed, disturbed, or handled.
(No. 11; Exh, C to Suppl. Paskevicius Decl.) He also was to provide all information regarding
his co-workers. /d. In his original response and subsequent responses, Mr. Tobey responded that
he was employed by DuPont and worked with only one other co-worker, Morris Chase. Suppl.
Paskevicius decl., par. 2; Exh. A, D, E, F.

Given that Plaintiff testified at his deposition that he was a DuPont employee and that he
had only one co-worker consistent with his interrogatory responses, there would be no reason to
ask if other DuPont employees were working around him. Those individuals would be DuPont
co-workers, since they would work at the same company as Plaintiff was claiming to work for.
Plaintiff now claims otherwise.

It is noteworthy no corrections to Plaintiff's testimony regarding his work at DuPont were
ever received. Suppl. Paskevicius decl., par. 3. Additionally, the Supplemental/Amended
Responses to Standard Interrogatories, Sets One and Two, received subsequent to Mr. Tobey’s
deposition listed Plaintiff's employer as DuPont, and stated that he had only one co-worker.
There is no mention of other DuPont personnel working around him, or any alleged asbestos
exposure from any other source. Exh. D, E, F, Suppl. Paskevicius decl. /

Plaintiff argues that DuPont “failed to exhaust all discovery procedures before relying on
the absence of information as evidence to support its motion.” Plaintiffs P&A 6:22-23. Plaintiff
claims that DuPont can not shift its burden without showing that it has engaged in “meaningful

it

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DuPont’s Reply Brief in Support of Motion for Summary Judgmentwow

defendant-specific discovery” (Plaintiff's P&A 6:24) such as, presumably, an “all-facts”
interrogatory. (Plaintiff's P&A 5:28, citing Scheiding v. Dinwiddie (1999) 69 Cal.App.4" 64.

As Plaintiffs well know, on or about July 31, 2007, DuPont served special interrogatories.
Exh. G, Suppl. Paskevicius Decl. The first interrogatory asked Plaintiff to “State all facts that
support YOUR claim that YOU worked with or around asbestos containing products at a
DUPONT facility.” Plaintiffs verified amended responses stated: “While employed by
DUPONT, plaintiff worked at the DUPONT facility in Antioch...” Exh. H, Suppl. Paskevicius
Decl. The remainder of the response was stock verbiage. There was no mention of DuPont
laborers in DuPont hardhats and safety slogans sweeping insulating debris within two to eight
feet of Plainuff.

DuPont not only propounded an “all-facts” interrogatory, it asked specific questions of
Plaintiff during his deposition with the assumption he was telling the truth consistent with
numerous discovery responses regarding his DuPont cmployment and presence of only one co-
worker. Plaintiff knows that DuPont served specific discovery pertaining 1o DuPont on Plaintiff,
and that Plaintiff responded. To assert that DuPont has “made no showing” while knowing the
actual circumstances is both incorrect and misleading. Plaintiffs deposition testimony better
demonstrated that Plaintiff’s claims against DuPont have no merit and that he could not establish
liability on DuPont’s part than the usual evasive and stock responses to DuPont’s special
interrogatorics.

B. The declaration of Charles Ay is inadmissible.

The declaration by Plaintiff's “expert,” Charles Ay, stating that material Plaintiff worked
with or around “more likely than not” contained asbestos is inadmissible on various grounds.

Expert witness testimony is restricted to opinions based on “matter...perceived by or
personally known to the witness” when that matter is of a type that may reasonably relied upon
by an expert in forming an opinion... [A]n expert opinion based on speculation or conjecture is
inadmissible. Evid, Code sec. 801(b), also see Mitchell v. United Nat'l Ins. Co. (2005) 127
Cal.App.4" 457, 478. The declaration must include facts showing the matters relied upon by the

expert in forming the opinion; facts showing the declarant’s opinion rests on matters of a type

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DuPont’s Reply Brief in Support of Motion for Summary Judgmentreasonably relied upon by experts; and the factual basis for the opinion. See Kelley v. Trunk
(1998) 66 Cal.App.4 $19, 524, An expert’s declaration that failed to disclose the matters relied
on in forming the opinion and failed to support the conclusion by reasons or explanation was
insufficient to sustain summary judgment, /d. at 523.-524. If the declaration is speculative and
lacks sufficient foundation for the opinion expressed, it is insufficient. Ochoa v. PG&E (1998)
61 Cal-App.4" 1480, 1487.

In his declaration, Mr. Ay conclusory states that it is more likely that not that the mud and
insulation Mr. Tobey used while at DuPont contained asbestos. However, Mr. Ay’s declaration
does not contain the requisite foundation for this blanket conclusion. For example, Mr. Ay
declares that he personally worked with asbestos-containing “thermal insulating pipe covering
materials” and “muds” during his carrier as a “pipccoverer and insulator.” Ay decl., §8. But,
nowhere in his declaration does he even attempt to establish that the asbestos-containing
materials he worked with were the same as the nondescript “white-colored halfround insulation
and mud” that Mr. Tobey claims to have used at DuPont. Notably, Mr. Ay’s declaration
contains nothing regarding whether “white-colored half-round insulation” is a telltale sign of
asbestos.

Likewise, Mr. Ay’s declaration states that he has studied and tested insulation over the
years ( Ay decl., 4), but nowhere does he state the results or conclusion of his tests or the
“hundred reports” he has studied or how those unstated results lead him to his naked conclusion
in this matter.

Furthermore, Mr. Ay states that he has “come to the conclusion that asbestos containing
insulation was used to insulate pipes carrying high temperature and pressurized liquids and gases
until the early to mid-1970s.” (Ay decl., 48) Notably, he does not declare how often “asbestos-
containing insulation” was used (e.g., always, 40% of the time, etc.). Nor is there anything in the
record establishing that plaintiff (Mr. Tobey) worked on “high temperature and pressurizing
liquids and gas” pipes while at DuPont. In fact, plaintiff did not know what type of facility the
Antioch plant was, other than some type of factory (UF 3) and didn’t recall where on the DuPont

plant he worked (UF 6). Mr. Ay’s declaration lacks the necessary foundation to reach the bold

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DuPont’s Reply Brief in Support of Motion for Summary Judgmentconclusory statement that Mr. Tobey “more likely than not” exposed to asbestos-containing
material, and is inadmissible,

To establish a triable issue of material fact, the party opposing the motion must produce
substantial responsive evidence, Sangster v. Paetkan (1998) 68 Cal. App.4" 151, 166. If the
evidence gives rise to no more than mere speculation, it is insufficient to establish a triable issue
of fact. fd, at 163. The proof must show a triable question of fact; equivocal evidence will not
suffice. Ahrens v. Sup. Ct. (1988) 197 Cal.App.3d 1134, 1152. Plaintiff can not controvert
undisputed facts by evidence “based on speculation, imagination, guesswork, or mere
possibilities.” Doe v. Salesian Soc, (2008) 159 Cal.App.4" 474,481, Mr. Ay’s declaration fits
that description.

C. Plaintiff's declarations were presented in bad faith and expenses should be
awarded.

If a court finds that a declaration was “presented in bad faith,” it can order the offending
party to pay the other party’s expenses. CCP sec. 437¢(j); Winick Corp. v. County Sanitation
Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1181. Such an order may be imposed where a party’s
declarations conflict with his earlier deposition or other sworn statements, or declarations that
attempt to mislead the court by omitting crucial facts adverse to the declarant’s position. Judges
Weil and Brown, Civil Procedure Before Trial, sec, 10:336.2. Plaintiff’s declaration conflicts
with his deposition and with numerous discovery responses. Plaintiff also asserted in his
declaration that be did not know why he testified the way he did in his deposition regarding
employment at DuPont other than being asked a direct question and saying “‘yes.” Charles Tobey
decl., par. 8, Exh. A to Jhans decl. However, Mr. Tobey omitted including the crucial fact that
the questioner was following his written responses to discovery, and that Mr. Tobey continued to
take that position subsequent to that deposition.
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DuPont's Reply Brief in Support of Motion for Summary JudgmentWi. CONCLUSION

Plaintiff must establish that hc was cxposed to asbestos while at DuPont’s facility.

Hunter v. Pacific Mechanical Corp. (1985) 37 Cal.App.4th 1282, 1288, 44 Cal.Rptr.2d 335, 338.

Mere speculation regarding asbestos exposure is not sufficient. Bockrath v. Aldrich Chemical
Co., inc. (1999) 21 Cal.4th 71, 81. Plaintiff has provided only inadmissible evidence, and has
not met his burden.

Dated: March Ub, 2010
GLYNN & FINLEY, LLP
ANDREW T. MORTL.
RUTA PASKEVICIUS
One Walnut Creek Center
100 Pringle Avenuc, Suite 500
Walnut Creek, CA 94596

By Wats, Poste cies

Attomeys for Defendant
E. L. du Pont de Nemours and Company

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DuPont’s Reply Brief in Support of Motion for Summary Judgment