Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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BARBARA R. ADAMS, SBN 99231
GEORGES A. HADDAD, SBN 241785
ADAMS | NYE|BECHT LLP

222 Kearny Street, Seventh Floor

San Francisco, California 94108-4521 ELECTRONICALLY
Telephone: (415) 982-8955 FILED
Facsimile: (415) 982-2042 Superior Court of California,
E-mail: badams@adamsnye.com County of San Francisco
ghaddad@adamsnye.com 08/17/2015

Clerk of the Court
BY:RONNIE OTERO.

Attorneys for Defendant

PRIBUSS ENGINEERING, INC. a
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, ASBESTOS
No. CGC-10-275731
Plaintiffs,
DEFENDANT PRIBUSS
vs. ENGINEERING, INC.’S OPPOSITION
TO PLAINTIFFS’ MOTION TO
C.C. MOORE & CO. ENGINEERS; Defendants | CONSOLIDATE FOR TRIAL LIVING
as Reflected on Exhibit | attached to the COLON CANCER/BRAYTON CASES

Summary Complaint herein; and DOES 1-8500,
2nd Amended Complaint Filed: 5/16/11
Defendants. 3°” Amended Complaint filed ; 5/11/12

Defendant Pribuss Engineering, Inc. (“Pribuss”) hereby opposes the proposed consolidation
for trial of cases on the grounds that the cases do not meet the pertinent criteria of Malcolm v.
National Gypsum Co. (2nd Cir. 1993) 95 F.2d 346, as it does not establish admissible or persuasive
evidence favoring consolidation. Plaintiffs’ request should be rejected.

I, INTRODUCTION

On August 11, 2015, Plaintiffs filed and served their Motion to Consolidate for Trial Living
Colon Cancer/Brayton Cases, including Anthony Roman, Sr., et al. v. Asbestos Corporation Limited,
et al, (CGC-10-275675), Raymond Barragan v. Thomas Dee Engineering, et al., (CGC-10-275713),
Robert Ross, et al. v, C.C. Moore & Co. Engineers, et al. (CGC-10-275731), and Larrell Fortner, et
al. v. Thomas Dee Engineering, et al. (CGC-11-275935). Pribuss is a party only to the Robert Ross
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DEFENDANT PRIBUSS ENGINEERING, INC."S OPPOSITION TO PLAINTIFFS” MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASESmatter. (See Declaration of Barbara Adams). As discussed below, consolidation should be denied
when cases such as these involve some common issues but individual issues predominate.

I. ARGUMENT
A. CONSOLIDATION IS NOT A MATTER OF RIGHT AND DETERMINATION
SHOULD BE MADE IN THE SOUND DISCRETION OF THE TRIAL JUDGE

California Code of Civil Procedure section 1048 states:
*“(a) When actions involving a common question of law or fact are pending before the
court, it may order a joint hearing or trial of any or all the matters in issue in the

actions; it may order all the actions consolidated and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

Cal. Civ. Pro. § 1048(a.).

Consolidation is not a matter of right, but a determination made through the sound discretion
of the trial judge. (See Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 248 P.2d 466). A
motion to consolidate is predicated on a showing that two or more actions involve a common question
of law or fact. See Cal. Civ. Code § 1048. “Therefore it is possible that actions may be thoroughly
‘related’ in the sense of having common questions of law or fact, and still not be ‘consolidated,’ if the
trial court, in the sound exercise of its discretion, chooses not to do so.” (Askew v. Askew (1994) 22
Cal.App.4th 942, 964, 28 Cal.Rptr.2d 284).

Section 1048 is virtually identical to Federal Rule of Procedure 42(a), which was considered in
Malcolm v. National Gypsum Co. (2d Cir. 1993) 995 F.2d 346, where the Second Circuit articulated
the criteria commonly used by federal courts for evaluating whether the trial court had abused its
discretion in consolidating asbestos cases: (1) common worksite, (2) similar occupation, (3) similar
time of exposure, (4) type of disease, (5) whether injured workers are living or deceased, (6) status of
discovery in each case, (7) whether all plaintiffs are represented by the same counsel, and (8) type of
cancer alleged. (/d. at 350-51). Given the virtual identity of California’s statute and the federal rule,
and the familiarity of courts and counsel in California with these criteria, common practice through
many jurisdictions has been to follow the Malcolm criteria. (See Hypertouch, Inc. v. Superior Court
(2005) 128 Cal. App. 4th 1527, 1544).
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DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES.m

B. THE PROPOSED TRIAL GROUP DOES NOT MEET THE PERTINENT CRITERIA.
OF MALCOLM V. NATIONAL GYPSUM CO, AND THEREFORE THE COURT SHOULD
NOT CONSOLIDATE

While no published California cases have set out specific guidelines for application of the
Malcolm criteria, it is instructive to look at Malcolm and its federal progeny for guidance. In Malcolm
y. National Gypsum Co., supra, 995 F.2d 346, the Court of Appeals reversed a district court’s decision
to consolidate 48 cases where the plaintiffs had been exposed to asbestos in one or more of over 40
power-generating stations. The Court, concerned that the defendants would be unable to get a fair
trial if the cases were consolidated, noted that “[t]he benefits of efficiency can never be purchased at
the cost of fairness.” (/d. at 350). The Court further opined that the distinctions among the cases were
likely to confuse the jury. The fact that “there was no primary worksite” but only an “alleged primary
type of worksite,” was particularly troublesome for the Court. (/d. at 353). Additionally, the Court
noted that the plaintiffs’ work history evidence showed that over 250 work sites were involved. As
such, the Court denied consolidation, cautioning that “it is possible to go too far in the interest of
expediency and to sacrifice basic fairness in the process.” (Id. at 354).

Consistent with Malcolm, courts have observed that although consolidation may enhance
judicial efficiency, “[t]he systemic urge to aggregate litigation must not be allowed to trump [our
judicial system's] dedication to individual justice, and [courts] must take care that each individual
plaintiff's—and defendant's—cause not be lost in the shadow of a towering mass litigation.” (In re
Repetitive Stress Injury Litig. (2d Cir. 1994) 11 F.3d 368, 373-74 on reh'g, 35 F.3d 637, citing In re
Brooklyn Navy Yard Asbestos Litig. (2d Cir.1992) 971 F.2d 831, 853), Furthermore, consolidation is
not justified or required simply because the actions include a common question of fact or law.
(Hasman y. G.D. Searle & Co, (E.D.Mich.1985) 106 F.R.D. 459, 461, citing Prudential Insurance Co.
of America v. Marine National Exchange Bank (E.D.Wis.1972) 55 ¥.R.D. 436, 437). “When cases
involve some common issues but individual issues predominate, consolidation should be denied.”

(Hasman, supra, 106 F.R.D. at 462 (emphasis added)).
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DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS” MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES:b

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Hence, courts must examine the “specific underlying facts” with “close attention” before
ordering consolidation. (in re Repetitive Stress Injury Litig., supra, 11 F.3d at 373-74). In the
asbestos context, this means weighing the following pertinent Malcolm factors:

1. Common Worksite

The value of consolidating cases involving a common worksite is obvious: testimony
regarding the worksite need only to be provided once. However, within the 200-plus pages of
worksite history produced by the Plaintiffs at issue in these matters, there exists only one common
worksite among them.

The Malcolm court reviewed a number of cases that had been consolidated because the
Plaintiffs had all worked at a “power plant.” The court further determined this was a category of
worksite and not an individual location. The importance of this distinction led the court to lean away
from consolidation. The court stated, “Thus, not only was there no common worksite in this case, but
any contention that there was a common type of worksite must be viewed with a skeptical eye.” (Id.
at 351). As outlined in Malcolm, common sense suggests that where two or more cases share just one
common worksite among hundreds of worksites there is no justification for consolidation because
there will be no judicial economy in providing specific testimony for different locations.

The Plaintiffs in these four cases allege exposures to asbestos from various trades and job
locations throughout the United States, without any overlap or common worksites apart from a single
worksite in which they performed unrelated job duties at different timeframes. Mr. Roman, Sr.
worked as a pipefitter primarily in Martinez, California; Mr. Barragan worked as an electrician
primarily in Napa County and Vallejo, California; Mr. Ross worked as an insulator primarily in
Northern California; and Mr. Fortner worked as a plumber primarily in Central and Southern
California. Indeed, Mr. Ross, a career insulator, shares no commonality in this regard with any of the
other Plaintiffs other than the single common worksite referenced above. Therefore, this factor

weighs against consolidation.

DEFENDANT PRIBUSS ENGINEERING, INC.°S OPPOSITION TO PLAINTIFFS’ MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES,Cwm rn a

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2. Similar Occupations

The value of consolidation of cases where the Plaintiffs share a similar occupation again is
obvious, and as the Malcolm court stated, “This inquiry is significant because a worker's exposure to
asbestos must depend mainly on his occupation.” (/d.)

None of the four Plaintiffs at issue in this motion share similar occupations. Indeed, Plaintiffs
cannot and do not dispute this fact. (See generally Plaintiffs’ Motion to Consolidate), Mr. Ross did
no pipefitting, electrical, or plumbing work whatsoever, Again, Mr. Ross was a career insulator; Mr.
Roman, Sr. was a pipefitter; Mr. Barragan was an electrician; and Mr. Fortner was a plumber. It is
clear that each of these other three Plaintiffs all had very separate and distinct forms of employment
and clearly worked in different trades than Mr. Ross, which is a clear indicator that consolidation of
these matters is improper. The differences in trades, job duties and products that each Plaintiff
worked with and around defeats the central purpose of consolidation due to similar occupations.

Moreover, none of the Plaintiffs at issue in this matter have been exposed to exactly the same
products in the same manner. For example, Mr. Ross is the only Plaintiff in the proposed group who
is alleged to have been exposed to asbestos-containing products or materials through his work in
proximity to, or in the vicinity of, Pribuss Engineering employees. It is not alleged that any of the
other three Plaintiffs herein ever worked in proximity to, or in the vicinity of, Pribuss Engineering
employees. Indeed, the various products that are alleged in each individual case have either different
asbestos-fiber make up or different methods of exposure, which will affect the expert analysis in these
matters. Due to the different fiber and/or exposure type analysis, the jury will be forced to hear
testimony from several experts to get a grasp on the science behind the litigation. The need for
additional experts cuts against the focus of consolidation.

Extreme prejudice exists for cach Defendant if all four cases are consolidated for trial, The
jury will hear testimony regarding a number of different asbestos containing products and suppliers

that will not be relevant to each case. Evidence that is not relevant is not admissible. (See Cal. Evid.

DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS” MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASESCo Om ID

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Code § 350), Admitting evidence that is not relevant will lead to juror confusion when making a
determination for an individual case, thereby upsetting the judicial process that consolidation was
meant to establish. Where prejudice exists, the court should weigh against consolidation.

3. Times of Exposure

The periods of asbestos exposure for each Plaintiff is different. As explained by the Malcolm
court, this undercuts the benefit of efficiency and increases the likelihood of prejudice. (Malcoim v.
National Gypsum Co., supra at 351). Because frequency, duration, proximity of asbestos exposure
will be a central issue to this litigation, the defendants will be prejudiced by the overarching evidence
presented in cases with long exposure histories versus cases with very little exposure history.

In addition to the disparities between occupations, the relevant exposure years in the Ross
matter are 1959-1986, while in the Barragan matter, the relevant exposure years are 1973-1994. In
the Roman, Sr. matter, the relevant exposure years are 1946-1986, while in the Forimer matter, the
relevant exposure years are 1965-1989. Additionally, just one of the three Plaintiffs (Mr. Fortner) has
alleged para-occupational exposure. The types of exposure and the time frame for the exposure for
the purported para-occupational exposure (as alleged in the Fortner matter from 1946-1963) are
entirely different from the other three Plaintiffs not making that claim. This will create jury confusion
and not accomplish the intend goals of consolidation.

4, Disease Type

Plaintiff Ross filed a case alleging non-malignant asbestos-related disease in March of 2007.
When this case was filed, three and one-half years later, defendants moved to dismiss the non-
malignant disease claims as time barred. Plaintiff provided dismissals of such claims. (See the
Declaration of Barbara Adams, filed herewith.) Although all four Plaintiffs at issue in this litigation
allege asbestosis, asbestos-related pleural disease, and colon cancer, Plaintiff Ross is precluded from
asserting any claims arising from asbestosis and asbestos-related pleural disease. Thus, all that

remains in the Ross matter is an allegation of colon cancer, which further distinguishes the Ross action

DEFENDANT PRIBUSS ENGINEERING, INC."S OPPOSITION TO PLAINTIFFS” MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASESfrom the other three in terms of disease type.

Moreover, significant differences exist in each Plaintiff's medical history and other
contributing factors, such as smoking history (i.¢., Mr. Ross alleges a 33 pack year history while
Messrs. Roman, Sr. and Barragan allege a zero pack year history). It is also possible that Defendants
will dispute the diagnosis in some, if not all of these four matters. Plaintiffs’ counsel has failed to
provide any documentation about the medical conditions of each of the four Plaintiffs in their
proposed consolidation. The medical documentation is a key material fact in determining whether any
of these cases are medically similar and in turn whether consolidation is proper. Additionally,
different experts will be called to testify regarding their review of a particular matter and the need for
additional experts cuts against the focus of consolidation. Thus, consolidation is not warranted.

The potential for juror confusion is also manifest in circumstances where the jury is asked to
assess loss of consortium damages along with compensatory and punitive damages for multiple
different plaintiffs. (Cain v. Armstrong World Industries (S.D. Ohio 1996) 785 F’. Supp. 1448, 1456).
Here, in three of the four cases, the Plaintiffs’ spouses are named as additional plaintiffs for their
alleged loss of consortium, thus raising the potential for skewed damages if these matters are
consolidated. As such, the request for consolidation must be denied.

5. Discovery Status

Plaintiffs’ counsel has advised that all four cases that are subject to this motion have
completed discovery and are trial ready. Contrary to Plaintiffs’ counsel’s contention, these four cases
were not grouped together for discovery. The fact that Plaintiffs’ experts are substantially the same,
as stated in Plaintiffs’ Motion, creates the greatest concern for consolidation of these cases.

Pribuss is unaware of the case specific experts that will be necessary in the other three matters,
in which it is not involved. Therefore, Pribuss will be prejudiced from any case specific expert
evidence presented to the jury in the other three matters as such is neither relevant nor necessary to

prove a case against Pribuss.

DEFENDANT PRIBUSS ENGINEERING, INC.*S OPPOSITION TO PLAINTIFFS’ MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASESoe ND

Unless all of Plaintiffs’ experts are identical and provide generic non-case specific testimony,
the purpose of consolidation will be thwarted. The jury will hear non relevant evidence and opinion
testimony that will only aid the Plaintiffs at the expense of the Defendants. Such information is so
prejudicial it will outweigh any probative value of the consolidation.

Moreover, in the relevant case of Jn re Repetitive Stress Injury Litig. (2d Cir. 1994) 11 F.3d
368, 373-74 on reh'g, 35 F.3d 637, the Second Circuit stressed that the first four Malcolm factors (i.e.,
common worksite, similar occupation, similar time of exposure, and type of disease) are far more
important than the latter two (i.e., identity of counsel and progress of discovery). “‘[F]actors 1-4 go
to the central issue of commonality, while factors 6-7 go solely to convenience, and here the
convenience of only one side.” (/d., citing Malcolm v. National Gypsum Co., supra, 995 F.2d at
353). Thus, even when the majority of the plaintiffs are represented by the same counsel and
discovery has not yet begun in any of the cases, the absence of the first four Malcolm factors strongly
militates against consolidation. (/d.; Malcolm y. National Gypsum Co., supra, 995 F.2d at 353).

Cc THERE IS NO COMMON ISSUE OF LAW OR FACT AND THEREFORE
CONSOLIDATION IS NOT APPROPRIATE.

Plaintiffs have failed to show that there is a common issue of law or fact between these eleven
cases. As outlined above, the factual difference in these cases is evident. Such factual disparities will
create extreme confusion of issues when the jury is attempting to resolve an individual case.

Plaintiffs’ only attempt at showing there is a common issue of law is by stating, rather
inaccurately, that all four actions “involve a malignant asbestos-related disease — colon cancer,” and
that “[aJll plaintiffs are living.” (See Plaintiffs’ Motion to Consolidate, pp. 3, lines 25-26). As with
all lawsuits, the law must correspond with the facts to make it common. It is unlikely that a court
would consolidate a negligence car accident case with a negligence dog bite case merely because both
alleged a cause of action for negligence. The same is true in this instance. The court should not

consolidate a negligence claim for a pipefitter who was exposed to asbestos almost exclusively from

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DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS” MOTION
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASESCe ND

his work at an oil refinery (Roman, Sr.) with an insulator who was allegedly exposed to asbestos
through commercial and residential construction sites (Ross) merely because both allege a cause of
action for negligence. The factual situations relating to the two causes of the negligence is
significantly different. The difference will create the need for additional testimony to fully explain the
negligence between the two factually different allegations, The additional testimony needed to prove
each negligent act is exactly what consolidation is trying to avoid.

Therefore, although the same allegations have been made by the Plaintiffs at issue in this
motion, due to the factual difference of the alleged exposure, there is not a common law being applied.
Essentially, there are four negligence claims that have been made and to prove each, different facts
and experts will be required. Without commonality, there should be no consolidation.

D. PLAINTIFFS BEAR THE BURDEN OF SHOWING COMMONALITY OF FACTS
AND LAW, AND MUST DEMONSTRATE THERE WILL BE NO UNNECESSARY DELAY
OR CONFUSION IN CONSOLIDATING THE PROPOSED MATTERS FOR TRIAL.

It is axiomatic that the burden rests with the party moving for consolidation to not only show
the commonality of facts and law, (Sidari v. Oleans County (W.D.N.Y.1996) 174 F.R.D. 275, 281),
but to convince the court that there would not be any unnecessary delays or confusion, (Kelly v. Kelly
(N.D.N.Y. 1996) 911 F.Supp. 66, 69 [finding that consolidation may burden the parties, the court, and
the jury “with an over complication of issues and necessary instructions.”]. In light of this heavy
burden, many federal courts have held that product liability cases are generally inappropriate for
soultiplaintiff joinder because such cases involve highly individualized facts. (See In re Prempro
Prods. Liab, Litig. (E.D.Atk.2006) 417 F.Supp.2d 1058, 1059-60; In re Silica Prods. Liab. Litig.
(S.D.Tex.2005) 398 F.Supp.2d 563, 651-54; Jones v. Nastech Pharm. (S.D.Miss.2004) 319 F.Supp.2d
720, 728; Inre Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig.
(E.D.Pa.2003) 294 F.Supp.2d 667, 679).

Plaintiffs’ unfounded claims of common facts and questions of law should not predominate

when balanced against the disparate material facts and questions of law that impact these four

DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS” MOTION:
TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES.oD Ww ND

individual asbestos matters. Even if there is anticipated overlapping testimony of many of the same
expert witnesses as Plaintiffs allege, each case herein will undoubtedly turn on its own case-specific

witnesses, a fact that mitigates against consolidation.

Ill. CONCLUSION
In conclusion Plaintiffs have not established admissible or persuasive evidence favoring
consolidation. Thus, Plaintiffs’ request should be rejected.

DATED: August 17, 2015 ADAMS | NYE | BECHT LLP

» HYLA

ABARBARA R, ADAMS

“GEORGES A. HADDAD
Attorneys for Defendant
PRIBUSS ENGINEERING, INC.

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DEFENDANT PRIBUSS ENGINEERING, INC.°S OPPOSITION TO PLAINTIFFS’ MOTION

TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASESPROOF OF SERVICE

I am over the age of eighteen years, not a party to the above-captioned matter, and employed

by Adams | Nye | Becht LLP at 222 Kearny Street, Seventh Floor, San Francisco, California, where
the service described below took place on the date set forth below.

Person(s) Served:

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Electronic service (San Francisco asbestos cases); I caused a copy of each Document Served to
be electronically served via LexisNexis File & Serve pursuant to San Francisco Superior Court
Amended Asbestos General Order 158 (Order Mandating Electronic Filing and Service of
Asbestos Pleadings, dated July 14, 2006) on the recipients designated on the Transaction
Receipt located on the LexisNexis File & Serve website.

Document Served:

DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION

TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES

Manner of Service:

[1

Mail: I am readily familiar with my employer's practice for the collection and processing of
correspondence for mailing with the United States Postal Service: such correspondence is
deposited with the United States Postal Service on the same day in the ordinary course of
business in the county where I work. On the date set forth below, at my place of business,
following ordinary business practices, I placed for collection and mailing by deposit in the
United States Postal Service a copy of each Document Served, enclosed in a sealed envelope,
with the postage thereon fully prepaid, each envelope being addressed to one of the Person(s)
Served, in accordance with Code of Civil Procedure 1013(a).

Facsimile: I transmitted by facsimile a copy of each Document Served mentioned above to each
Person Served mentioned above pursuant to Code of Civil Procedure 1013(e).

Personal service: I caused a copy of each Document Served to be hand delivered to each
Person Served pursuant to Code of Civil Procedure 1011. If required, the actual server’s
original proof of personal service will be filed with the court.

Express Mail (U.S. Post Office): 1 deposited in a post office, mailbox, or other like facility
regularly maintained by the United States Postal Service for receipt of Express Mail a copy of
each Document Served in a sealed envelope with Express Mail postage paid, each envelope
being addressed to each Person Served as mentioned above in accordance with Code of Civil
Procedure 1013(c).

Express Mail (other express service carrier): I deposited in a box or other like facility
regularly maintained by an express service carrier, or delivered to an authorized courier or
driver authorized by the express service carrier to receive documents, a copy of each Document
Served in an envelope or package designated by the express service carrier with delivery fees
paid or provided for, each envelope being addressed to cach Person Served in accordance with
Code of Civil Procedure 1013 (c).

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DEFENDANT PRIBUSS ENGINEERING, INC.°S OPPOSITION TO PLAINTIFFS’ MOTION
‘TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES13
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and

correct.

Dated:

j Dm
August 17, 2015 (eee FM eaten

Christine Thomas

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DEFENDANT PRIBUSS ENGINEERING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION:
‘TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES