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

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HUGO PARKER, LLP]
135 MAIN STREET.
20 FLOOR
San Francisco, CA 94105

Edward R. Hugo [Bar No. 124839]
y |

Amber Lee Ke Bar No. 117006]

Lisa M. Rickenbacher [Bar No. 203291]

HUGO PARKER, LLP

135 Main Street, 20th Floor ELECTRONICALLY

San Francisco, California 94105 FILED

Telephone: (415) 808-0300 Superior Court of California,

Facsimile: (415) 808-0333 Coun Ot San aneee

Email: service@4UGOPARKER.com 08/17/2015
Clerk of the Court

Attorneys for Defendants Bee Bonu ——

SWINERTON BUILDERS,

PERINI CORPORATION,

CAHILL CONSTRUCTION CO., INC.,
CAHILL CONTRACTORS, INC.,
ROUNTREE PLUMBING & HEATING, INC.,
A. TEICHERT & SON, INC.

SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ANTHONY ROMAN , SR. and HILDA (ASBESTOS)
ROMAN Case No. CGC-10-275675

Plaintiffs,
vs.
ASBESTOS CORPORATION LIITED;
Defendants as Reflected on Exhibit 1

attached to the Summary complaint
herein; and DOES 1-8500

RAYMOND BARRAGAN, Case No. CGC-10-275713
Plaintiff,

vs.

THOMAS DEE ENGINEERING

COMPANY; Defendants as Reflected on

Exhibit 1 attached to the Summary
complaint herein; and DOES 1-8500

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

THOMAS DEE ENGINEERING
COMPANY; Defendants as Reflected on

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DEFENDANTS OPPOSTION TO PLAINTIFFS’ MOTION TO CONSOLIDATE FOR TRIAL LIVING
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HUGO PARKER, LLP]
135 MAIN STREET.
20 FLOOR
San Francisco, CA 94105

Exhibit 1 attached to the Summary
complaint herein; and DOES 1-8500.
LARRELL FORTNER and AMY Case No. CGC-11-275935
FORTNER,
Plaintiffs, DEFENDANTS SWINERTON BUILDERS,
PERINI CORPORATION, CAHILL
vs. CONSTRUCTION CO., INC., CAHILL
CONTRACTORS, INC., ROUNTREE
SEQUOIA VENTURES INC.; PLUMBING & HEATING, INC., and A.
Defendants as Reflected on Exhibit 1 TEICHERT & SON, INC OPPOSITION TO
attached to the Summary Complaint PLAINTIFFS’ MOTION TO CONSOLIDATE
herein; and DOES 1-8500. FOR TRIAL LIVING COLON
CANCER/BRAYTON CASES
Filed: December 17, 2010
Trial Date: | August 10, 2015
Dept.: 613
Judge: Hon. Harold E. Kahn

Defendants SWINERTON BUILDERS, PERINI CORPORATION, CAHILL
CONSTRUCTION CO., INC., CAHILL CONTRACTORS, INC., ROUNTREE PLUMBING
& HEATING, INC., and A. TEICHERT & SON, INC (“Defendants”) respectfully submit
this opposition to Plaintiffs’ Motion To Consolidate For Trial Living Colon Cancer /
Brayton Cases (“Motion”). Defendants opposes this Motion generally, and specifically as
to Plaintiffs ROBERT ROSS and JEAN ROSS (“Plaintiffs”).

I. INTRODUCTION

The Court should deny Plaintiffs’ Motion because the cases in the proposed
grouping, particularly Ross, are lacking in commonality such that consolidation under
Code of Civil Procedure Section 1048 (a) would be inappropriate. These cases involve
plaintiffs who were allegedly exposed to asbestos while working at numerous different
worksites over a 50-year period. None of the plaintiffs shared the same occupation and
there was very little overlap in actual jobsites. The various plaintiffs were allegedly
exposed to dozens of different types of asbestos-containing products, most of which
differ fundamentally from each other. Each plaintiff has a distinct medical history that
bears on life expectancy and other issues.

Under these circumstances, consolidation would only make the trial for each

group longer and more confusing because the jury would be required to keep track of a

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HUGO PARKER, LLP]
135 STREET.

San Francisco, CA 94105

vast amount of distinct, not overlapping, evidence. By contrast, separate trials before
separate juries would eliminate these potential sources of confusion and prejudice to
Defendants. Individual trials would also spare a single jury the burden of sitting
through a case that would be substantially longer than any one of the cases here if tried
alone. Moreover, it would be neither fair nor economical for Swinerton Builders, Perini
Corporation, Cahill, Rountree Plumbing and Heating, and A. Teichert and Son, Inc., to
sit through days or weeks of evidence related to the three cases in which these
Defendants are not a party — especially since Mr. Ross’ alleged asbestos exposure
attributable to Defendants is minimal at best in comparison to the breadth of potential
occupation exposures he and the other plaintiffs suffered.

Consolidation is only justified by identifying similarities of the cases. Here, where

the similarities are scant, the potential for confusion and prejudice greatly outweighs

any purported efficiencies. Accordingly, Defendants respectfully request that this Court
deny Plaintiffs’ Motion.

In the event the Court is inclined to order consolidation, Defendants respectfully
requests that the Ross case be severed from the group and tried separately because Mr.
Ross’ work, and potential asbestos exposure, as an insulator at sites where no other
Plaintiff worked was so distinctly different from the other three Plaintiffs. Further, Mr.
Ross as an insulator had superior knowledge re: asbestos hazards and is distinctly
separated from the other Plaintiffs for which consolidation is sought. And, finally, Mr.
Ross’ medical claims are entirely distinct in these cases as he is solely basing his claims
on colon cancer and has dismissed all his claims related to asbestosis and asbestos-
related pleural disease. Therefore, there is no legal basis for consolidating the Ross case
with the other cases in Plaintiffs’ Motion and consolidation would greatly prejudice
Defendants.

Il. LEGAL STANDARD
The purpose of consolidation is to enhance trial court efficiency, but not at the

expense of jeopardizing a defendant's fundamental right to a fair trial. Courts may

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consolidate for trial separate lawsuits pending in the same court where they involve
common questions of law or fact and where consolidation enhances judicial economy.
See C.C.P § 1048(a). But when consolidation creates a danger of making the trial too
confusing or complex for a jury, it should be avoided. See Todd-Stenberg v. Dalkon Shield
Claimants Trust, 48 Cal. App. 4th 976, 978-979 (1996).

In its widely-cited Malcolm opinion, the Second Circuit applied eight criteria for

evaluating consolidation motions in asbestos cases: “(1) common worksite; (2) similar
occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were
living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were
represented by the same counsel; and (8) type of cancer alleged.” Malcolm v. National
Gypsum Co., 995 F.2d 346, 350-51 (2d Cir. 1993) (citation omitted)

Applying these eight factors, the Malcolm court reversed a judgment based upon
the consolidated trial of multiple asbestos-exposed plaintiffs and remanded the case for
anew trial. Malcolm, 995 F.2d at 347. The consolidation at issue in Malcolm was
improper because defendants were prejudiced by, among other things, the lack of
common worksites, occupations, and times of exposure. Id. at 351-52. The court
concluded, “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 of a towering mass litigation.”
Malcolm, 995 F.2d at 350.

The core concern underlying these considerations is whether consolidation is
likely to prejudice a party or confuse the jury, and courts should permit consolidation
only where all parties will receive a fair trial. See, e.g., Malcolm, 995 F.2d at 350; see also
Todd-Stenberg, 48 Cal. App. 4th at 979 (“The issue before us is whether the cases
consolidated here had common issues and whether undue confusion or prejudice was
likely to result from the consolidation.”) (emphasis omitted). “The benefits of efficiency
can never be purchased at the cost of fairness” (Malcolm, 995 F.2d at 350 (emphasis added)),

and courts recognize that asbestos cases should not be consolidated when “specific risks

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20 FLOOR
San Francisco, CA 94105

of prejudice and possible confusion” exist. Cain v. Armstrong World Industries, 785 F.
Supp. 1448, 1455 (S.D. Ala. 1992) (holding that consolidation of the actions was unduly
prejudicial despite precautionary measures taken by the court, including juror
notebooks, cautionary instructions before, during, and after the presentation of
evidence, and special interrogatory forms).

Wl. ANALYSIS

A. The Majority of the Most Important Malcolm Factors Are Not Met Here.

For purposes of this Motion, the critical Malcolni factors at issue are: (1) common
worksite; (2) similar occupation; and (3) similar time of exposure.! It is evident from
Plaintiffs’ work histories that the first three Malcolm factors are not satisfied here, as
Plaintiffs all worked in different trades, at different times, and among different jobsites.
Therefore, the Malcolm are not met here Plaintiffs’ Motion must be denied.

Whether Plaintiffs were engaged in similar occupations “is significant because a
worker’s exposure to asbestos must depend mainly on his occupation.” Malcolm, 995
F.2d at 351 (noting the wide range of occupations, including plumbers, machinists,
carpenters, boilermakers, and sheet-metal workers that made those cases inappropriate
for consolidation).

As in Malcolm, the occupations of the plaintiffs here are wide-ranging. Plaintiff
Ross, the case in which Defendants bringing this opposition parties to, worked as an
insulator (1959-1986), plaintiff Anthony Roman worked as a pipefitter (1956-1991),
plaintiff Raymond Barrigan worked as an electrician (1973-2006), and plaintiff Larell
Fotner worked as a plumber (1956-1991). (See Exhibit A to Declaration of Geoff T.
Sloniker in support of Plaintiffs’ Motion.) Due to their varied occupations, the types of
products to which the plaintiffs were exposed varied. Thus, the evidence that will be
' Courts have explicitly recognized that the status of discovery and whether Plaintiffs are represented by
the same counsel generally must be considered “far less important” than the other factors set forth in
Malcolm. See In re Ethyl Corp., 975 $.W.2d at 616. The jury at trial will spend no time determining who

represents the Plaintiffs, whether these are personal injury or wrongful death cases, and whether
discovery is closed.

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presented to the jury will vary by plaintiff depending on numerous factors. These cases
should not be tried as a group because the combinations of different jobs held by each
plaintiff created distinctly different potentials for asbestos exposure. Independent
evidence of each plaintiff's exposures would have to be addressed individually,
defeating the purpose of “judicial economy” that is the ultimate goal of consolidation.

Moreover, the plaintiffs’ worksites were not sufficiently similar to satisfy this
Malcolm factor. (Sloniker Decl., Exhs. A-E.) Even the types of sites where plaintiffs
worked varied greatly, from refineries, to commercial buildings, to submarines and
naval ships. (Id.) Evidence concerning whether and to what degree a plaintiff was
exposed to asbestos will vary significantly for each distinct worksite because, among
other things, it will involve the differences in working conditions at each worksite,
worksite practices, safety precautions taken, worksite warnings about asbestos exposure,
and other worksite factors.

Lastly, the overall time frame of plaintiffs’ exposures spans a period of more than
50 years. (Sloniker Decl., Exhs. A-E.) The time of exposures for each plaintiff vary even
more than in the Malcolm case: Mr. Ross 1959-1986; Mr. Roman 1956-1991, Mr. Barragan
1973-2006 and Mr. Fortner 1956-1991. (Sloniker Decl., Exh. A.) As the Malcolm court
noted, when time frames spanning decades are involved and some plaintiffs suffered
long periods of exposure while others did not, the benefits of efficiency are undercut and

the likelihood of prejudice is increased. Malcolm, 995 F.2d at 351.

B. Consolidation Here Would Create Jury Confusion, Would Prejudice
Defendants, and Would Fail To Promote Judicial Economy.

Under the circumstances of the cases here, involving Plaintiffs who worked in
dissimilar occupations at different worksites over a 50-year period, consolidation would
not contribute to a fair and efficient trial of these matters. To the contrary, a
consolidated trial would only be longer and more confusing because the jury would be
required to keep track of a vast amount of distinct, not overlapping, evidence concerning

(1) the identification of asbestos-containing products each Plaintiff was allegedly

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exposed to, (2) the manner in which each product was used and how that affects
exposure levels, (3) whether a Plaintiff worked with each product directly or was
exposed to it as a bystander, (4) the time and duration of each exposure, (5) the type of
asbestos each product contained, (6) the connection between each Defendant in the case
and each identified product, (7) whether each Defendant's product carried an adequate
warning, (8) the conditions at the worksite at issue, (9) the practices followed at the
worksite, (10) the safety precautions taken at the worksite, and (11) the extent to which
any product was a substantial factor in causing a Plaintiff’s disease, as shown by expert
and non-expert testimony regarding causation, among other things.

Plaintiffs dedicate much of their Motion to arguing that consolidation is
appropriate here because topics including medical causation and the properties of
asbestos will be presented by plaintiffs’ experts who are substantially the same and
whose testimony will be virtually the same. (Motion at 1:10-23, 6:8-11.) While this may
save plaintiffs (or their counsel) costs, it will not enhance overall judicial economy.

In fact, Plaintiffs’ medical claims in the Ross case are different than those in the
other cases. The Ross plaintiffs are proceeding only as to the disease of colon cancer and
have specifically dismissed all claims based on any diagnosis of asbestosis or asbestos-

related pleural disease. In any event, evidence of plaintiffs’ differing medical histories

would still have to be presented at a minimum as part of plaintiffs’ damages analyses.
Moreover, while plaintiffs’ experts may be able to provide testimony needed in each of
the cases, that does not mean that the testimony provided will be the same as to each
plaintiff, or that his or her testimony will be shorter; given the differences between the

plaintiffs’ issues here. Expert testimony will most likely be much longer if these cases

are consolidated. For example, the distinct and separate smoking history of the
individual plaintiffs is an important issue at trial and is casually related to an increased
risk of developing colon cancer. Plaintiffs smoking histories range from 0 pack year
smokers for Raymond Barragan and Anthony Roman, Sr. to a 9 pack year history for

Plaintiff Larrell Fortner. In contrast, Plaintiff Robert Ross has a 33 pack year history.

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(See Sloniker Decl., Exhibit A.)

Finally, the perils of juror confusion and potential prejudice against Defendants
are significantly increased if the same jury, after hearing evidence applicable to one
plaintiff or one defendant, is then effectively required to “forget” the evidence already
heard and start over again with a new set of parties. See Cain v. Armstrong World Indus.,
785 F. Supp. 1448, 1495 (S.D. Ala. 1992). By contrast, separate trials before separate juries
would eliminate any potential sources of confusion and prejudice and permit
Defendants to exercise their right to a fair and impartial trial. Furthermore, they would
spare a single jury the burden of sitting through a three to four month trial in order to
hear four consolidated cases, as opposed to a 15-20 day trial necessary for a single case.

Cc. If The Court Is Inclined To Grant Consolidation, The Ross Case
Should Be Severed From The Group And Tried Separately.

Mr. Ross was a career insulator that worked at commercial buildings, hospitals,
and refineries. (See Sloniker Decl., Exhibit D) None of the other three plaintiffs were
involved in the insulator trade, nor did they work at similar types of jobsites or with
similar products as Mr. Ross. (See Sloniker Decl., Exhibits A, B-C.) Importantly, because
of Mr. Ross’ occupation as a insulator, his training, his knowledge regarding asbestos
containing products, the type of asbestos-containing products he worked with and
around, his exposure levels, and his length of exposure varies greatly from those of the
other Plaintiffs. Similarly, Mr. Ross has a markedly different smoking history than the
other Plaintiffs with a smoking history of 33 pack years. Most importantly, the only
disease claimed by Mr. Ross is colon cancer which uniquely distinguishes him from the
other plaintiffs’ cases for which consolidation is sought. Considering that Mr. Ross’
exposures do not meet the first three — most crucial — criteria to consolidate his case with
the other three Plaintiffs under Malcolm, this Court should sever the Ross case and try it

separately.

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DEFENDANTS OPPOSTION TO PLAINTIFFS’ MOTION TO CONSOLIDATE FOR TRIAL LIVING
COLON CANCER/BRAYTON CASES1]| IV. CONCLUSION
2 For all of the reasons set forth above, Defendants respectfully request that the
3 || Court deny Plaintiffs’ Motion to Consolidate.
4
5 || Dated: August 13, 2015 HUGO PARKER, LLP
; shim fe ;
7 By: & On flict rx. ,
7 Edward R. Hugo
8 Amber Lee Kelly
Lisa M. Rickenbacher
9 Attorneys for Defendants
SWINERTON BUILDERS, PERINI
9 CORPORATION, CAHILL
CONSTRUCTION CO., INC., CAHILL
1 CONTRACTORS, INC., ROUNTREE
PLUMBING & HEATING, INC., A.
2 TEICHERT & SON, INC.
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San Francisco, CA 94105 DEFENDANTS OPPOSTION TO PLAINTIFFS’ MOTION TO CONSOLIDATE FOR TRIAL LIVING
COLON CANCER/BRAYTON CASESCoe N DAH BF wWwN

MN YN YN NNN See ee Be Be Be Be
eI AA FON fF SO eH NANDA A BwWwNH eK SS

Ross, Robert & Jean
San Francisco County Superior Court Case No, CGC-10-275731
Lexis Xpress Transaction No. 57726424

PROOF OF SERVICE

lama resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20 Floor, San
Francisco, ¢ ‘alifornia 94105. On the date below, I served the following:

DEFENDANTS SWINERTON BUILDERS, PERINI CORPORATION, CAHILL
CONSTRUCTION CO., INC., CAHILL CONTRACTORS, INC., ROUNTREE
PLUMBING & HEATING, INC., and A. TEICHERT & SON, INC OPPOSITION
TO PLAINTIFFS’ MOTION TO CONSOLIDATE FOR TRIAL LIVING COLON
CANCER/BRAYTON CASES

on the following:

BRAYTON PURCELL LLP ALL DEFENSE COUNSEL
222 Rush Landing Road (via Lexis Xpress Service List)
Novato, CA 94945

Fax: (415) 898-1247

X By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

I declare under penalty of perjury that the above is true and correct.
Executed on August 17, 2015, at San Francisco, California.

MLL SL ac

Chris P. Christensen

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PROOF OF SERVICE