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

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Douglas G. Wah, Esq. SBN 64692

Robert V. Betette, Esq. SBN 136337

Robert M. Menchini, Esq. | SBN 133734 ELECTRONICALLY
FOLEY & MANSFIELD, PLLP FILED
300 Lakeside Drive, Suite 1900 Superior Court of Califomia,
Oakland, California 94612 County of San Francisco
Telephone No: (510) 590-9500 08/17/2015
Facsimile No: (510) 590-9595 Clerk of the Court
Email: rmenchini@foleymansfield.com BY-ALISON AGBAY

Deputy Clerk

Attorneys for Defendant
Raymond Interior Systems - North

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731

Plaintiffs, “Asbestos-Related Case’
DEFENDANT RAYMOND INTERIOR

vs. SYSTEMS-—NORTH’S OPPOSITION TO
PLAINTIFFS MOTION TO CONSOLIDATE
C.C. MOORE & CO. ENGINEERS, et al., FOR TRIAL

Date: August 19, 2015
Time: 9:00 a.m.
Dept: 613

Defendants.

Trial Date: August 10, 2015

Defendant RAYMOND INTERIOR SYSTEMS - NORTH [“Raymond” or “Defendant”], which
is a defendant in the Robert Ross case only, opposes Plaintiffs’ efforts to consolidate these four “living
colon cancer” cases for trial: Anthony Roman, &r., et al. v. Asbestos Corp. Ltd, et al'.; Raymond
Barragan v. Thomas Dee Engineering Co., et al*; Robert Ross, et al v. C.C. Moore Engineers, et al;
Larrell Fortner, et al. v. Thomas Dee Engineering Co., et al.° on the grounds there is no requirement for
consolidation, there is no good cause for consolidation and consolidation would invariably be unduly

prejudicial to Raymond for, amongst other reasons, the issue in each of these cases is whether colon

: Anthony Roman, &., and Hilda Roman v. Asbestos Corp. Ltd,, et al., CGC-10-275675
° Raymond Barragan v. Thomas Dee Engineering Co., et al., CGC 10-275713.
 Larrell Fortner v. Thomas Dee Engineering Co, et al., CGC-11-275935.

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cancer was caused by any alleged exposure to asbestos by these plaintiffs. Trying these cases together
will cause Raymond severe and undue prejudice because the jury will likely be convinced of the
purported causative connection between asbestos and colon cancer, which connection does not exist,
because four plaintiffs seek recovery from over 45 different defendants for the same disease allegedly
caused by their exposure to asbestos.

I. INTRODUCTION AND STATEMENT OF FACTS

The Robert Ross case has thirty-three (33) defendants. There are approximately forty-five (45)
defendants, in total, spread across these four cases. Extreme and undue prejudice to Defendant will
unavoidably occur if the Court consolidates these cases for trial because with so many defendants and
defense counsel, the jurors will feel sympathy towards these plaintiffs against these defendants. Similar
to David battling Goliath, the jurors will feel sympathy towards these plaintiffs and unfairly tip the
scales of justice in favor of plaintiffs. The large number of defendants and defense counsel is, in of
itself, unduly prejudicial to defendants

Moreover, the disease at issue is colon cancer. Although asbestos exposure is not a generally
accepted risk factor for such a disease’, the jurors — confronted with four plaintiffs claiming asbestos
caused their colon cancer — will likely think there is something to the claims of these plaintiffs to the
extreme and undue prejudice to Raymond and the other defendants. Where there are copious amounts
of smoke, there is likely to be fire. With four plaintiffs claiming the same disease against this many
defendants, the jurors will feel there must be something to the claims of these plaintiffs and unfairly
assist plaintiffs by giving into sympathy to the detriment of Raymond and the other defendants.

These four unrelated cases involve significantly different legal and factual issues. The cases in
this proposed group involve different plaintiffs with dissimilar exposure theories, and dissimilar
defendants. Essentially, the only commonality amongst these plaintiffs is each allege to have contracted
colon cancer as a result of exposure to asbestos and plaintiffs are represented by the same counsel.

Common issues of fact and law, however, do not predominate these cases. The facts of each

case vary with respect to plaintiffs’ occupations, work sites, years of exposure, product or contractor

‘Two hearings, pursuant to Evidence Code section 402, are scheduled with this Court to demonstrate the lack of a medically
accepted link between exposure to asbestos and an increased risk of contracting colon cancer.

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identification, product or contractor witnesses, defendants, and the nature of each plaintiff's alleged
exposure.

No Common Defendant:.

Raymond is a defendant in the Robert Ross case only. Indeed, there are almost no common
defendants in each of the four cases. The 33 defendants in Ross comprise mostly contractors. The
defendants in Barragan and Fortner are manufacturers and some contractors. With the exception of one
defendant, Collins Electric, there are no defendants common in more than one of these lawsuits.

Trying these cases together would create a parade of defense counsel representing wholly
different defendants representing different industries.

No Common Trades

Robert Ross was an insulator. Plaintiff Raymond Barragan was an electrician. Plaintiff Larell
Fortner was a plumber. Plaintiff Anthony Roman, Sr. was a pipefitter.

Trying these four cases together would create a dizzying set of exposure theories and allegations
about products and services, unique to each case, which are alleged to be the source of asbestos
exposure to these plaintiffs. Additionally, since each plaintiff worked in a different trade, the jury will
be presented with a parade of defense counsel representing wholly different defendants from different
companies, contractors and premises.

No Common Worksites, No Common Years:

Each of the four plaintiffs had almost exclusively different work sites from the other plaintiffs.
In a few instances where the plaintiffs worked at one or more of the same refineries, the plaintiffs
worked in different areas of these vast sites, doing different work, during different years, being allegedly
exposed to asbestos from different products, materials or services.

Numerous Different Worksites:

Robert Ross alone claims to have worked as an insulator at in excess of 300 different worksites.
Larell Fortner claims over 60 different jobsites where he worked, as well as para-occupational exposure
to many more jobsites where his father worked. Raymond Barragan claims over 70 worksites.
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Dissimilar Medical and Smoking Histories:

Although the generally accepted risk factors for colon cancer do not include asbestos, they do
include: dict high in red meat and processed meat, smoking, physical inactivity, age, prior history of
polyps or family history of polyps, alcohol consumption, obesity. Because Raymond is a defendant only
in Ross, it is only familiar with Mr. Ross’s medical history. Mr. Ross is known have had a diet rich in
red meat, has a 33 pack year smoking history, is almost 80 years old, medical records suggestive of high
alcohol intake and obesity. Although Raymond does not know the medical history of the plaintiffs in
Roman, Barragan or Fortner, it is understood that each have varying degrees of the other generally
accepted risk factors for development of colon cancer.

If the Court consolidates these cases for trial, the risk factors of each plaintiff will need to be
weighted. Additionally, if the Court denies defendants’ motion in limine for an Evidence Code section
402 hearing on the issue of asbestos as a cause of colon cancer, each plaintiff's claimed exposures to
asbestos will need to be additionally weighed as a potential risk factor for the development of colon
cancer.

Any perceived “efficiency” in handling these four lawsuits in a consolidated trial should not be
had at the expense of Raymond’s right to a fair trial.

I. LEGAL ARGUMENT & ANALYSIS
A. Established Legal Standards That Govern Consolidation of Cases Under California
Code of Civil Procedure Section 1048(A) Do Not Support Such an Order Here.

Consolidation is a procedure for uniting separate lawsuits for trial, where they involve common
questions of law or fact, are pending in the same court, and their consolidation would be judicially
economical. (See Code of Civ. Proc. Section 1048(a); see also Sanchez v. Superior Court (1988) 203
Cal.App.3d 1391, 1395.) Consolidation, however, is not a matter of right. (Fisher v. Nash Bldg. Co.
(1952) 113 Cal.App.2d 397, 402.) The rationale must involve evidence demonstrating that “a common
question of law or fact” exists, and that judicial economy would be served by the consolidation. (Code
Civ. Proc. Section 1048; Sanchez v. Superior Court, supra. 203 Cal.Ap.d3d at 1395; Askew v. Askew

(1994) 22 Cal. App.4" 942, 964.)° These are questions of fact on which plaintiffs bear the burden of

* While it has been recognized that a California court may, on its own motion, order cases consolidated, commentators
unanimously agree that such motions are “commonly used” when consolidations are_a matter of stipulation or otherwise

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proof as the party secking consolidation. (Evid. Code section 500 (burden of proof is on the party seeing
relief).) Whether consolidated based on a party’s requests or the Court’s own motion, the Court must
determine that judicial economy will be served by the consolidation based on the existence of common
questions of law or fact. (Code of Civ. Proc. Section 1048(a).)

As discussed above, the facts in each case demonstrate that significant variations exists with
respect to plaintiffs’ alleged manner of exposure to asbestos, plaintiffs’ work histories, type of
defendants, allegations against defendants in each case, and plaintiffs’ medical histories. Such
differences will not aid judicial economy. Rather, they will cause delay and confusion. The jury will
have to sort out which of the many defendants are in which case, which product, material or service is
involved in which case and what role asbestos plays, if any, in each scenario. The risk, and prejudice, of
not keeping these issues straight falls primarily on defendants.

Moreover, the extreme prejudice of trying four cases with questionable medical causation and
over forty-five defendants falls solely on defendants. A cookie-cutter approach will blur the distinctions
with the jury, overload the “box of evidence” in all four cases and try their patience for keeping the
information straight and applying it fairly to the law.

B. The Limits Exist On The Trial Court’s Discretion In Consolidating Cases Under
California Code of Civil Procedure section 1048(a) and Require Restraint In
Consolidating These Four Cases.

The decision whether to consolidate cases is a matter committed to the sound discretion of the

judge. (Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 402.) However in deciding a
consolidation motion, a court must exercise appropriate judicial discretion, acting in a manner which
would “do justice according to law or to the analogies of the law, as near as may be ... [Discretion must
be exercised... to promote substantial justice in the case.” (Sack v. Murray (1959) 173 Cal.App.2d 558,
562-563.) Appropriate judicial discretion is difficult to define, but California courts have long
recognized that:

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acquiesced to by the parties. (Weil & Brown, Civil Practice Guide: Civil Procedure Before Trial [Rutter Group 2012” parag.
12:355; 4 Witkin, Cal. Procedure (4"" ed. 1997) Pleadings, section 308, pp. 401-402; McClure v. Donovan (1949) 33 Cal.2d
717; Stanton v. Superior Court (1927) 202 Cal. 478.)

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“(T]he discretion intended... is not a capricious or arbitrary discretion, but an impartial
discretion, guided and controlled in its exercise by fixed legal principles. It is not a
mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in
conformity with the spirit of the law and in a manner to subserve and not to impede or
defeat the ends of substantial justice...”

(Slack, supra., at 562, quoting, Baily v. Taafe (1866) 29 Cal. 422, 424.)

The purpose of consolidation is to enhance trial court efficiency, but not at the expense of a
defendant’s fundamental right to a fair trial. Where potential consolidation creates a substantial danger
of inconsistent adjudications or making the trial too confusing or complex for a jury, it must be avoided.
(Code Civ. Proc. Section 1048(a); Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal. Ap.4"
976, 978-979; Felner v. Senbaum (1955) 132 Cal.App.2d 509, 511; Jud Whitehead Heater Co. v. Obler
(1952) 111 Cal.App.2d 861, 867; Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (The
Rutter Group 2012) Parag. 12:362.)

Courts have determined that where “case-common” issues do not predominate over the
individual issues, or where the risks of prejudice to a party can outweigh the reduction in time and
expense that would result, consolidation should not occur, and an order of consolidation under these
circumstances is an abuse of judicial discretion. (Todd-Stenberg v. Dalkon Shield Claimants Trust
(1996) 48 Cal. App.4" 976, 978-979; see also General Motors Corp v. Superior Court (1966) 65 Cal.2d
88, 92 [trial court must consider “all possibilities of prejudice” when contemplating case consolidation];
Felner v. Seinbaum (1955) 132 Cal.App.2d 509, 511 [no substantial rights of defendant should be
“trenched upon”].)

Courts from other jurisdictions have recognized the “specific risks of prejudice and possible
confusion...” that can be associated with asbestos cases and evaluated the factors to be considered in
tuling on such consolidation motions.” (Cain v. Armstrong World Industries (S.D Ala. 1992) 785
F.Supp. 1448, 1454-1455, citing Hendrix v. Raybestos-Manhattan (11'" Cir. 1985) 776 F.2™ 1492, 1495
(overturning jury verdicts in ten consolidated asbestos cases due to prejudice caused by jury’s failure to
consider each case separately).) Other courts have recognized that “[c]onsiderations of convenience and
economy must yield to a paramount concern for a fair and impartial trial.” (Malcom v. National
Gyspsum Co. (2™ Cir. 1993) 995 F.2d 346, 350.)

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Here, there is no question that profound risks of prejudice and juror confusion exist, especially
where, as here, the large number of defendants, and lack of medical causation with plaintiffs in each of
the four cases claiming asbestos as a cause of their colon cancer. These cases involve complex medical
and legal theories based on considerably different factual backgrounds, The Court should not disregard
these risks when lumping these cases together as a matter of judicial efficiency.

C. The Exceptional Risk of Prejudice in Consolidation of These Asbestos Cases Requires

Consideration of The Malcolm Factors.

When evaluating whether asbestos cases have been properly consolidated for trial, appellate
courts have focused on several factors, including not only the similarity of the disease involved, but also
whether the plaintiffs were living or deceased. In Malcolm v. National Gypsum Co. (2d. Cir. 1993) 995
F.2d 346, the Court construed Federal Rule of Civil Procedure 42(a)° which has language virtually
identical to Code of Civil Procedure section 1048(a), and reversed a judgment based on the consolidated
trial of multiple asbestos-cxposed plaintiffs.

The Malcolm Court, in deciding that consolidation in that case was improper, noted that
opportunities for prejudice to the defendants existed, due in large part to the disparity in diseases. (Id. at
351.) The Court also noted that other prejudicial factors were in play as well, including the fact that the
potential plaintiffs had no common work sites and occupations, and no similar times of exposure. (Id at
350-351; see also Johnson v. Celotex Corp. (2 Cir. 1990) 899 F.2™ 1281, 1285 [common job sites and
time periods]; Hendrix v. Raybestos-Manhattan (11'" Cir. 1985) 776 F.2d 1492, 1495-1496 [common
job sites, time periods, and products].) The Malcolm Court recognized that whether the plaintiffs were
living or deceased also needed to be taken into consideration. (Malcom, supra. 995 F.2d 346, 350-351.)

In sum, the Malcolm Court provides that the following factors must be considered by a court

when consolidating asbestos cases:

Did the plaintiffs or decedents have a common worksite;

Did they have similar occupations;

Did they have similar times of exposure;

What types of disease are involved;

Are the injured workers living or deceased;

What is the status of discovery in each case;

Are the plaintiffs or decedents represented by the same counsel; and

NOMA

° Federal Rule of Civil Procedure 42(a) provide, in pertinent part, “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 of the matters at issue in the action...”

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8. What type of cancer is alleged regarding each plaintiff or decedent.
(Malcolm, supra, 995 F.2d 346 at 350-351.)

The Malcolm Court also specifically distinguished itself from In re E.&S. Dists. Asbestos Litg.
(Brooklyn Navy Yard) (E.&S.D.NY. 1991) 772 F.Supp. 1380. In Brooklyn Yard, the Court consolidated
numerous cases for trial finding that all cases involved exposure at one job site, the Brooklyn Navy
Yard, and one premises owner, the United States Government. Because of the nature of the job site and

employer, the court further stated:

“(U]niformity is a way of life with the military, the commonality of the 64 Phase I cases
cannot be overstated. Presumably, asbestos-containing products were purchased by
government contract from the same manufacturers and distributors. Determining the
identifies of those parties at a particular time was a relatively simple endeavor. Thus the
goal of efficiency was attained. Because the yard was used exclusively to build naval
warships, and because such ships were regularly produced pursuant to uniform practices,
the overlap in testimony relevant to the cases was obvious. Additionally workers
performing similar occupations on different ships during similar timeframes were likely
to experience exposure in similar ways.”

(Malcolm, supra. 995 F.2d 346 at 353.)

Unlike in Brooklyn Yard, the Court in Malcolm found that although there was one primary type

of worksite at issue, powerhouses, consolidation was not appropriate stating:

“There is no showing that the powerhouses that served as the focal point for
consolidation provided anything like the uniformity of at the Brooklyn Navy Yard. There
was no finding of common ownership, common suppliers or common practices. It should
also be noted that at least of the powerhouses, Indian Point, is a nuclear facility, and,
surely, the construction of such facilities must differ dramatically from that of
conventional power-generating stations.”

(Malcolm, supra. 995 F.2d 346 at 353 (italic added).)

Here, unlike in Brooklyn Yard, there is no commonality of one single type of premises (i.e. a
navy yard) let alone one single job site at issue between the decedents. In Ross, there are over 300
jobsites where Mr. Ross claims exposure to asbestos. There is no commonality of exposure. As such,
there is no showing of common ownership of any job site, common supplier, or common type of
construction of facility. Moreover, there is no commonality of defendants as there are almost 45
different defendants spread between the four cases sought to be consolidated. The medical histories of
these four plaintiffs are also different.

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The only similarity in these four cases is the same plaintiffs’ counsel, plaintiffs are living, and
the same disease is alleged. No other common factors exist between these four cases.

These cases here present the situation where, if consolidated, the jury will clearly be faced with
the enormous task of wading through vast amounts of evidence — some relevant and some not — to
process widely disparate exposure issues. The additional issue of having in excess of 45 different
defendants in four cases with questionable medical causation creates an exceedingly prejudicial scenario
that only Raymond and the other defendants will shoulder. This is not what consolidation was meant to
accomplish, the undue prejudice to defendants in relation to a dubiously streamlined trial.

Ill. CONCLUSION

Raymond has shown the glaring dissimilarities in the claimed exposures between these four

cases as well as the undue prejudice to defendants necessitating they be tried separately. As the

Malcolm Court stated:

“The benefits of efficiency can never be purchased at the cost of fairness. [W]e are
mindful of the dangers of a streamline trial process in which testimony must be curtailed
and jurors must assimilate vast amounts of information. The systemic urge to aggregate
litigation must not be allowed to trump our dedication to individual justice, and we must
take care that each individual plaintiff's — and defendant’s — cause not be lost in the
shadow in a towering mass litigation.”

(Malcolm, supra. 995 F.2d 346 at 350.)

Raymond respectfully requests this Court take into consideration not only the criterion described
in Malcolm, as well as the undue prejudice to be shouldered by defendants should these case be tried
together. These cases must be tried separately so that no juror confusion results and to allow Raymond

and the other defendants a fair trial.

Dated: August 17, 2015 FOLEY & MANSFIELD, PLLP

« .
ae
ue
uglas G. Wah
Robert V. Betette
Robert M. Menchini
Attorneys for Defendant
RAYMOND INTERIOR SYSTEMS - NORTH

By:

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DEFENDANT RAYMOND INTERIOR SYSTEMS - NORTH’S OPPOSITION TO MOTION TO CONSOLIDATE CASES FOR TRIALPROOF OF SERVICE BY ELECTRONIC TRANSMISSION

Robert Ross and Jean Ross v. C.C. Moore & Co., et al.
San Francisco Superior Court Case No. CGC-10-275731

I, the undersigned, declare as follows:

I am employed in the County of Alameda, California, and I am over the age of 18 years and not a
party to the within action. My business address is 300 Lakeside Drive, 19" Floor, Oakland, CA 94612.

On the date executed below, I electronically served the document(s) via File & ServeXpress
described as:

DEFENDANT RAYMOND INTERIOR SYSTEMS—NORTH’S OPPOSITION TO

PLAINTIFFS’ MOTION TO CONSOLIDATE FOR TRIAL

on the recipients designated on the Transaction Receipt located on the File & Serve Xpress website.

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct and that this declaration was executed on August 17, 2015 at Oakland, California.

Michelle C. Arslanian

PROOF OF SERVICE