Motion-Secondary: RODRICK BRECKLER et al VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON et al

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BUTY A CURLIANOLLP
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OAKLAND CAS4007
590.287.3000

MADELINE L. BUTY [SBN 157186]

mlb@butycurliano.com

GEORGE S. SULLIVAN [SBN 187793]

jsullivan@butycurliano.com ELECTRONICALLY
BUTY & CURLIANO LLP FILED
555 —12 Street, Suite 1280 Superior Court of California,
Oakland, California 94607 County of San Francisco
Tel: 510.267.3000 JUN 24 2011

Fax: 510.267.0117 Clerk of the Court

BY: WILLIAM TRUPEK
Attorneys for Defendant Deputy Clerk

RE. CUDDIE CO.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

RODRICK BRECKLER and JOANN
BRECKLER,

No. CGC-08-274566

Plaintiffs, REPLY BRIEF IN SUPPORT OF
DEFENDANT R.E. CUDDIE CO.’S
MOTION FOR SUMMARY JUDGMENT
OR, ALTERNATIVELY, SUMMARY

ADJUDICATION

vy.
ASBESTOS DEFENDANTS (B¢P); et al.,

Defendants.
Date: June 23, 2011
Time: 9:30 a.m.
Dept: 220

Action filed: March 12, 2008
Trial Date: July 11, 2011

Lo

L INTRODUCTION

Defendant R.E. Cuddie Co. (“R.E. Cuddic”) supported its motion for summary judgment
with affirmative evidence its employees did not expose plaintiff Rodrick Breckler to asbestos at
Varian Associates (“Varian”). R.E. Cuddie’s evidence established by 1982 R.E. Cuddie did not
install or remove asbestos-containing products and Mr. Breckler could not have encountered R.E.

Cuddie’s employees before May 1984. R.E. Cuddie shifted the burden of production to plaintiffs,

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who failed to produce admissible evidence which shows a triable issue of material fact.

Plaintiffs have submitted the declarations of Mr. Breckler and Charles Ay in opposition to
RE, Cuddie’s motion for summary judgment. Although Mr. Breckler recalls observing R.E.
Cuddie employees perform flooring work at Varian during the mid 1970s, his testimony is
inherently improbable because R.E. Cuddie did not exist before 1976 and did not perform any work
at Varian before 1982. Because plaintiffs have not supplied admissible evidence R.E. Cuddie’s
employees exposed Mr. Breckler to asbestos, the Court should and grant R.E. Cuddie’s motion for
summary judgment.

If, however, the Court determines a jury could reasonably conclude R.E. Cuddic’s
employees could have exposed Mr. Breckler to asbestos, the Court should grant R.E. Cuddie’s
motion for summary judgment because Drew Van Orden’s uncontradicted declaration demonstrates
the work performed by R.E. Cuddie was not a substantial factor in causing Mr. Breckler’s
purportedly asbestos-related injuries.

Il. LEGAL ANALYSIS

A. R.E. CUDDIE SHIFTED THE BURDEN OF PRODUCTION.

RE. Cuddie satisfied its burden of production by submitting affirmative evidence which
established there is no evidence its employees exposed Mr. Breckler to asbestos. (McGonnell v.
Kaiser Gypsum Co. (2002) 98 Cal.App.4" 1098, 1103 [“If there has been no exposure, there is no
causation.”], citing Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal. App.4" 650, 655.)
The declarations of Thomas Cuddie and James Allen and testimony by Mr. Cuddie and Mr. Ay
confirm R.E, Cuddie’s employees could not have exposed Mr. Breckler to asbestos. The evidence
submitted by R.E. Cuddie shows:

1) RE. Cuddie did not exist before 1976;!
2) RE. Cuddie stopped removing asbestos-containing materials in roughly 1981 2
3) R.E. stopped installing asbestos-containing materials by 1982;3

1 Declaration of Thomas R. Cuddie, 1:26 [Sullivan Declaration, Ex. E]; Deposition of Thomas R. Cuddie,
11:14-25 [Sullivan Declaration, Ex. G].
? Declaration of Thomas R. Cuddie, 2:6-7.
3 Declaration of Thomas R. Cuddie, 2:8-9; Deposition of Thomas R. Cuddie, 47:17-25.
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4) R.E. Cuddie did not perform work at Varian before 1982;*
5) Floor tiles did not contain asbestos after 1983;° and
6) Mr. Breckler left Varian in 1980 and returned in May 1984.

RE. Cuddie has submitted precisely the type of evidence specified by Code of Civil
Procedure section 437c and the California Supreme Court as evidence that satisfies a moving
defendant’s burden of production. (A¢cGonnell at 1106.) This evidence, together with Mr.
Breckler’s testimony, plaintiffs’ responses to standard interrogatories, and responses R.E. Cuddie’s
“state all facts” discovery, confirms plaintiffs cannot establish causation. (See Undisputed Fact
(UMF”) Nos. 2-15.)

Moreover, even if the Court were to infer R.E. Cuddie’s employees exposed Mr. Breckler to
asbestos, the declaration of Drew Van Orden shifts the burden of production with respect to
substantial factor causation. In asbestos actions, plaintiffs must submit expert testimony which
demonstrates there is a reasonable medical probability the defendant’s actions were a substantial
factor in causing injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4" 953, 982-983;
Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4 1409, 1415-1416.) A factor which
plays only an infinitesimal or theoretical part in bringing about an injury is not a substantial factor.
(Rutherford at 969.) In order to determine whether a factor is substantial, the court should consider
“frequency of exposure, regularity of exposure, and proximity of the asbestos product to plaintiff.”
(Lineaweaver at 1416-1417.) The court should also consider the “type” of asbestos product and the
nature of the work performed. (Jbid.) Should the Court infer R.E Cuddie exposed Mr. Breckler to
asbestos, Mr. Van Orden’s declaration shifts the burden of production on causation because it
establishes R.E. Cuddie’s removal and installation of non-friable floor tiles was not a substantial
factor in causing Mr. Breckler’s purportedly asbestos-related injuries. (Declaration of Drew Van
Orden, 3:9-14 [Sullivan Declaration, Ex. I]; Deposition of Charles Ay, 72:23-25.)

* Declaration of James Allen, 2:1-2 [Sullivan Declaration, Ex. F]; Declaration Thomas R. Cuddie, 2:2-3,
J0-11; Deposition of Thomas R. Cuddie, 55:25-56:15.

5 Deposition of Charles Ay, 73:4-12 [Sullivan Declaration, Ex. H].

° Deposition of Rodrick Breckler (WCAB action), 2:11-12, 24:3-10, 41:13-42:10, Itemized Statement of
Earnings, Pages 3-4 [Sullivan Declaration, Exhibit D].

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REPLY BRIEF IN SUPPORT OF DEFENDANT R.E. CUDDIE CO.’S MOTION FOR SUMMARY
JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION1 B. PLAINTIFFS’ SPECULATIVE EVIDENCE DOES NOT CREATE A TRIABLE ISSUE OF
MATERIAL FACT.
An opposition to a motion for summary judgment must present concrete evidence of
causation. (Saeltzer v. Advanced Group 400 (2001) 25 Cal.4" 763, 767, 775-776.) An opposition

does not create a triable issue of material fact when it is essentially conclusory, argumentative, or

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6 | based on speculation and conjecture. (Wiz Technologies v. Coopers & Lybrand (2003) 106
7 | Cal.App.4" 1, 11.) Mr. Breckler’s and Mr. Ay’s declarations do not demonstrate a triable issue of
8 | material fact because they do not reasonably support the inference R.E. Cuddie’s employees

9 | exposed Mr. Breckler to asbestos.

10 Rodrick Breckler’s declaration in opposition to R.E. Cuddie’s motion for summary

11 | judgment is rooted in his mistaken belief he observed R.E. Cuddie perform work at Varian during
12 | the mid 1970s. Because Mr. Breckler also claims to be able to identify asbestos-containing floor

13 | tiles, plaintiffs maintain the Court may reasonably infer the floor tiles R.E. Cuddie removed and

14 | installed contained asbestos. When an opposition to a motion for summary judgment is based on
15 || inferences, those inferences “must be reasonably deducible from the evidence, and not such as are
16 | derived from speculation, conjecture, imagination, or guesswork.” (Waschek v. Department of

17 | Motor Vehicles (1997) 59 Cal.App.4"" 640, 647.)

18 The evidence submitted by R.E. Cuddie establishes R.E. Cuddie did not perform work at

19 | Varian before 1982, and Armstrong World Industries, Inc.’s Response to Plaintiffs’ Standard

20 | Interrogatories to All Defendants disproves Mr. Breckler’s claimed ability to visually identify

21 asbestos-containing floor tile. (UMF No. 4; Armstrong World Industries, Inc.’s Response to

22 | Plaintiffs’ Standard Interrogatories to All Defendants, 26:12-14 [Benaderet Declaration, Ex. F].)

23 | Therefore, the Court should reject Mr. Breckler’s “inherently improbable” recollection R.E. Cuddie
24 | employees exposed him to asbestos at Varian during the “mid 1970s.” (People v. Barnes (1986) 42
25 | Cal.3d 284, 306; Lane v. Safeway Stores, Inc. (1939) 33 Cal.App.2d 169, 175 [When “the things
26 testified to would not seem possible,” testimony is “unbelievable per se” and should be rejected by
court].)

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JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION

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Even if the Court were to infer R.E. Cuddie performed work at Varian during the 1970s,
Mr. Breckler’s declaration presents nothing but speculation regarding the purported asbestos
content of the tiles installed and removed by R.E. Cuddie’s employees. “Speculation, however, is
not evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4" 826, 864.) Mr. Breckler
speculates the floor tiles removed by R.E. Cuddie Co. during the “Mahogany Row project” were
manufactured by Armstrong, but testified he could not identify the manufacturer:

Q: And other than 1 understand your testimony that you just mentioned about Armstrong, do
you recall in your mind’s eye seeing Armstrong tile being removed on the executive office job or
was that just an example of what you have seen during your career?

A Yeah, it’s an example. I don’t—I can’t remember specifically back to that one job.
(Deposition of Rodrick Breckler (Newly Served), 471:9-15.)

Mr. Breckler also speculates the floor tiles removed by R.E. Cuddie Co. during the
“Mahogany Row project” contained asbestos, but testified (1) he has never spoken with anyone
who stated the floor tiles contained asbestos; (2) he has never seen documents which indicated the
floor tiles contained asbestos; and (3) he is unaware that Varian tested the floor tiles removed by
RE. Cuddic. (Deposition of Rodrick Breckler (Newly Served), 841:19-842:9.)

Notwithstanding Mr. Breckler’s assertion to the contrary, Armstrong World Industries,
Inc.’s Response to Plaintiffs’ Standard Interrogatories to All Defendants state the presence or

absence of asbestos in vinyl composite floor tile cannot be confirmed through visual inspection:

It is not possible to determine solely from appearance which variety
contained asbestos and which did not, since asbestos was not a
distinguishing characteristic of the material.

(Armstrong World Industries, Inc.’s Response to Plaintiffs’ Standard Interrogatories to All
Defendants, 26:12-14 (emphasis added); see also 25:25-26:1 [“[F]looring materials which
contained asbestos might not be distinguishable in color, texture or appearance from those that did
not contain asbestos because the asbestos used was not a distinguishing feature of the material and
was inextricably bound into the matrix that formed the flooring material itself.”].) Consequently,
Mr. Breckler is not qualified to testify he was able to distinguish asbestos-containing floor tile from

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floor tile which did not contain asbestos.

Mr. Breckler’s unsupported claim R.E. Cuddie’s employees exposed him to asbestos is not
admissible evidence of exposure. Plaintiffs’ inability to competently set forth “when, where, and
how” R.E. Cuddie’s employees exposed Mr. Breckler to asbestos is “prima facie evidence the
plaintiffs do not possess, and cannot reasonably obtain, needed evidence to support their claim.”
(Andrews v. Foster Wheeler LLC (2005 138 Cal.App.4" 96, 105-106, quoting Aguilar at 854
(internal punctuation omitted).) Because Mr. Breckler’s declaration is rooted in speculation, Mr.
Ay’s derivative declaration cannot create a triable issue of material fact. (Saelizer, supra, at 777
[“An expert’s speculations do not rise to the status of contradictory evidence, and a court is not
bound by expert opinion that is speculative or conjectural.”].)

Cc. MR. Ay’s DECLARATION DOES Not CREATE A TRIABLE ISSUE OF

MATERIAL FACT.

Because plaintiffs do not possess competent evidence R.E. Cuddie’s employees exposed
Mr. Breckler to asbestos, they attempt to create a triable issue of material fact with the declaration
of Mr. Ay. Mr. Ay’s opinion Mr. Breckler observed R.E. Cuddie’s employee remove and install
asbestos-containing floor tiles is premised on Mr. Breckler’s unsupported assumptions and not
grounded in fact. Mr. Breckler claims he observed R.E, Cuddie’s employees remove and install
Armstrong vinyl composite floor tiles that contained asbestos. But not all vinyl composite floor
tiles manufactured by Armstrong contained asbestos, and the floor tiles which contained asbestos
were not readily distinguishable from asbestos-free tiles. (Armstrong World Industries, Inc.’s
Response to Plaintiffs’ Standard Interrogatories to All Defendants, 25:6-26:2, 26:8-15.) Because
Mr. Breckler could not visually identify asbestos-containing floor tiles and conceded that he had no
other competent evidence the floor tiles removed by R.E. Cuddie contained asbestos, his
declaration does not provide the necessary foundational support for Mr. Ay’s opinions.
Accordingly, Mr. Ay’s opinions regarding Mr. Breckler’s purported exposure to asbestos lack
foundation and cannot create a triable issue of material fact with respect to causation.

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REPLY BRIEF IN SUPPORT OF DEFENDANT R.E. CUDDIE CO.’S MOTION FOR SUMMARY
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1. Mr. Ay’s Opinions Lack Factual Support.

A person who qualifies as an expert may give testimony in the form of an opinion if the
subject matter of the opinion is sufficiently beyond the common experience that the expert’s
opinion would assist the trier of fact. (Evidence Code § 801(a)’; Jennings v. Palomar Pomerado
Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1116.) If a witness qualifies as an expert under
Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Jennings at 1116) because “even an expert witness cannot be permitted just to testify in a
vacuum about things the he might think could have happened” (Hyatt v, Sierra Boat Co. (1978) 79
Cal.App.3d 325, 337). Therefore, when an expert’s opinions are not grounded in fact, the court
should apply Evidence Code section 801(b) and exclude the challenged testimony. (Hyatt at 337;
Geffcken v. D'Andrea (2006) 137 Cal.App.4™ 1298, 1310-1312 [trial judge properly excluded
speculative expert opinion mycotoxins caused plaintiffs’ injuries].) In Jennings, the Court of

Appeal states that expert testimony is inadmissible when:

e The expert’s opinion is based on assumptions of fact without evidentiary support or upon
matters not reasonably relied upon by other experts (Jennings at 1117, citing Pacific Gas &
Elec. Co. v. Zuckerman (1987) 189 Cal.-App.3d 1113, 1135);

© The expert’s opinion is based on speculative or conjectural factors (/d,, citing Lockheed
Martin Corp. v. Superior Ct. (2003) 29 Cal.4" 1096, 1110-1111); or

¢ The expert’s opinion is purely conclusory because it was unaccompanied by a reasoned
explanation connecting the factual predicates to the ultimate conclusion. (/d, citing Kelley
v. Trunk (1998) 66 Cal.App.4" 519, 523-525).

7 The basic foundation requirements for expert testimony are set forth in Evidence Code section 801, which
states:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to

such an opinion as is ...

(b) Based on matter (including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that reasonably may be

relied upon by an expert in forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such matter as a basis for his
opinion.

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Without reviewing Mr. Breckler’s testimony in which Mr. Breckler concedes (1) he has
never spoken with anyone who stated the floor tiles R.E. Cuddie removed contained asbestos; (2)
he has never seen documents which indicated the floor tiles contained asbestos; and (3) he is
unaware that Varian tested the floor tiles removed, Mr. Ay merely parrots Mr. Breckler’s bald
assertion work by R.E. Cuddie’s employces generated friable asbestos which Mr. Breckler
breathed. (Cf. Deposition of Rodrick Breckler (Newly Served), 841:19-842:9, 844:8-13, 845:10-
13, 855:14-18, 858:15-21 with Ay Declaration, 5:1-6:3.) Because Mr. Breckler’s declaration does
not tend to show R.E. Cuddie’s employees exposed him to asbestos, it cannot support Mr. Ay’s
speculative opinions. Accordingly, the Court should disregard Mr. Ay’s declaration and
unsupported opinions.

2. The Court Should Disregard Mr. Ay’s Unsupported Expert Opinions.

California courts regularly exclude speculative opinions like Mr. Ay’s because opinions
based on “guess, surmise, or conjecture necessarily” are inadmissible. (Summers v. A.L. Gilbert
Co. (1999) 69 Cal.App4th 1155, 1168-1169.)

In Andrews, supra, the First District Court of Appeal excluded speculative opinion
testimony by Mr. Ay, counseling an expert opinion which is not supported by reasoned analysis has
no evidentiary value:

An expert’s opinion rendered without a reasoned explanation of why the underlying

facts lead to the ultimate conclusion has no evidentiary value because an expert’s
opinion is worth no more than the reasons and facts on which it is based.

(Andrews at 108, quoting Bushling v. Fremont Medical Center (2004) 117 Cal.App.4" 493, 510.)

Here, Mr. Ay’s opinions are not supported by facts or reasoned analysis. There is no
evidence Mr. Breckler observed R.E. Cuddie’s employees disturb asbestos-containing materials.
Accordingly, there is no factual basis for Mr. Ay’s opinion R.E. Cuddie’s employees exposed Mr.
Breckler to asbestos. Because Mr. Ay’s opinions lack “sufficient factual basis” and offer “virtually
no explanation or reasoning beyond the most general statements about [his] work and research,”
they have “no evidentiary valuc” and must be excluded from evidence. (Andrews at 113, quoting
Bushling at 510.)

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JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATIONBUTY & GURLIANO|

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OAKLAND CA 94807
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An expert should be evaluated in light of his expertise with substantially similar events and
not by his resume, and an expert opinion unsupported by reasoned analysis is inadmissible.
(Stephen v. Ford Motor Co. (2005) 134 Cal.App.4" 1363, 1371, citing Jennings at 1118
[theoretical possibility of causation cannot support an expert’s conclusion that the act in question
was the cause of the injury]; Lockheed Litigation Cases (2004) 115 Cal.App.4" 538, 564 [expert
must provide a reasonably basis for opinions, and opinions based on speculation or conjecture are
admissible]; Pacific Gas & Elec. Co. v. Zuckerman at 1135 [expert cannot base opinions on
assumptions which are not supported by the record or information which is not reasonably relied
upon by other experts].)

Mr. Ay’s testimony confirms he is unfamiliar with the work R.E. Cuddie performed at
Varian:

e Mr. Ay has not spoken with Mr. Breckler or requested a copy of his deposition (Deposition

of Charles Ay, 12:23-25, 70:12-13 [Exhibit 1 to the Declaration of George S. Sullivan in
Support of Reply Brief);

© Mr. Ay spent no more than 40 minutes preparing for his deposition (Ay Deposition, 13:1-4);

© Mr. Ay had not heard of R.E. Cuddie before his deposition (Ay Deposition, 71:6-9); and

¢ Before Mr. Ay was provided with Mr. Breckler’s declaration, the only information he
possessed concerning R.E. Cuddie was plaintiffs’ one sentence allegation in its response to
standard interrogatories that R.E. Cuddie removed and installed asbestos-containing
flooring at Varian (Ay Deposition, 70:14-25, 71:14-20).

Because Mr. Ay’s opinions largely rely on Mr. Breckler’s declaration, Mr. Ay’s declaration
amounts to nothing more than speculation. Mr. Ay is ignorant of the fact Mr. Breckler could not
have observed work by R.E. Cuddie before May 1984, disregards evidence Armstrong
manufactured vinyl composite floor tiles that did not contain asbestos, and is unaware of Mr.
Breckler’s admissions that he has no evidence the floor tiles removed and installed by R.E. Cuddie
contained asbestos. Without providing reasoned analysis, Mr. Ay nonetheless concludes R.E.
Cuddie’s work exposed Mr. Breckler to asbestos. Because Mr. Ay piles inference upon inference

which are too speculative to support his opinions, his declaration has no value and should be

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excluded from evidence. (Andrews at 108; McGonnell at 1106; Stephen at 1371.)

D. Mk. VAN ORDEN’S DECLARATION NEGATES PLAINTIFFS’ CLAIMS.

Even if the Court infers R.E. Cuddie’s employees exposed Mr. Breckler to asbestos, Mr.
Van Orden’s declaration affirmatively negates a necessary element of plaintiffs’ case: exposure to
asbestos which may reasonably attributed to R.E. Cuddie caused Mr. Breckler’s purportedly
asbestos-related injuries. (Van Orden Declaration, 3:9-14.) Because Mr. Van Orden’s declaration
demonstrates “under no hypothesis is there a material issue of fact that requires the process of
trial,” R.E. Cuddie is entitled to summary judgment as a matter of law. (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4"" 317, 334.)

Ill. CONCLUSION

The undisputed facts establish R.E. Cuddie is not liable for Rodrick Breckler’s exposure to
asbestos. R.E. Cuddie has shifted the burden of production to plaintiffs, who attempt to construct a
triable issue of material fact through the speculative declarations of Mr. Breckler and Mr. Ay. Mr.
Breckler’s declaration is not competent evidence R.E. Cuddie’s employees exposed him to
asbestos. Because Mr. Ay’s opinions are “[I]ike a house built on sand ...no better than the facts on
which it is based” (People v. Gardeley (1996) 14 Cal.4 605, 618), the Court should grant R.E.
Cuddie’s motion for summary judgment.

DATED: June 21, 2011 BUTY & CURLIANO LLP

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“GEORGE S. SULLIVAN
Attorpéys for Defendant:
RE. CUDDIE CO,

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