Trial Materials: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                William M. Hake, Esq. (SBN 110956)
Bill. Hake@wilsonelser.com

John E, Rosenthal, Esq. (SBN 233591)
John.Rosenthal@wilsonesler.com

B, Gardiner McKleroy, Esq. (SBN 239367)

Gardiner.Mckleroy@wilsonelser.com FILED.

WILSON, a TERE paeectlesen hse
EDELMAN & DI superior Cour

525 Market Street, 17th Floor County of San Francisco

San Francisco, California 94105 os 1171: 2015

Telephone: (415) 433-0990 lerk of the Cou

Facsimile: (415) 434-1370 peg eer

Attorneys for Defendants

ADVANCE MECHANICAL CONTRACTORS, INC,
ANDERSON, ROWE & BUCKLEY, INC.

BELL PRODUCTS, INC,

COLLINS ELECTRICAL COMPANY, INC.

EMIL J. WEBER ELECTRICAL COMPANY, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO,

ROBERT ROSS AND JEAN ROSS, Case No.: CGC-10-275731

Plaintiffs,
TRIAL BRIEF REGARDING JOINT
vs. DEFENSE OPPOSITION

TO PLAINTIFF’S MOTION TO

C.C. MOORE & CO., ENGINEERS, et al., CONSOLIDATE FOR TRIAL LIVING
COLON CANCER/BRAYTON CASES

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

Defendants.

TRIAL BRIEF REGARDING JOINT DEFENSE OPPOSITION
TO PLAINTIFF'S MOTION TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES
1426163v.1I. INTRODUCTION

In their Motion to Consolidate for Trial Colon Cancer/Brayton Cases, Plaintiffs seek to
consolidate the following four (4) cases for trial: 1) Anthony Roman et al v. Asbestos Corporation|
Limited et al (Case No. 275675); 2) Raymond Barragan v. Thomas Dee Engineering Company et al
(Case No. 275713); 3) Robert Ross et al v. C.C. Moore & Co. Engineers et al (Case No. 275731);
and 4) Larrell Fortner et al v. Thomas Dee Engineering Company et al (Case No. 275935),
Defendants hereby jointly oppose this motion. Plaintiffs’ attempt to consolidate these four (4)|
separate asbestos actions for trial is in direct conflict with the Code of Civil Procedure § 1048(a)
and does not satisfy the criteria articulated in Malcolm v. National Gypsum, (2d Cir. 1993) 995 F.2
346. Only one (1) of the thirty-one (31) remaining defendants in Ross case are also involved in one}
of the other three (3) cases. In fact, there is no common defendant across all four (4) cases. Of the|
387 total worksites alleged in Plaintiffs’ motion, over 98% of the worksites are not common to the|
other cases. Further, Plaintiffs do not make the same disease allegations in all four (4) cases. These}
cases have Plaintiffs with very distinct years, locations, and sources of alleged exposure. Therefore,
each Defendant will face great prejudice if Plaintiffs’ motion is granted as they will be required to]
participate in an unnecessarily lengthy and expensive trial involving cases to which they are not a
party.

Additionally, it appears that Plaintiffs never in fact filed their Motion to Consolidate for
Trial Living Colon Cancer/Brayton Cases in the Ross case. In the Ross matter, Plaintiffs only served|
their motion and accompanying declaration, but did not file it. (See Declaration of Gardine
McKleory [hereinafter “McKleroy Decl.”] at 3-5.) A review of the Court’s docket for the three (3)
other cases proposed to be consolidated indicates that Plaintiffs only filed their motion in the
Roman case. (McKleroy Decl. § 4.) Accordingly, Plaintiffs’ motion does not comply wit
California law, is procedurally defective, and should be denied.

Il. STATEMENT OF FACTS

As an initial matter, based on our review of Lexis/Nexis, and the Court’s own docket, it}
appears that Plaintiffs did not file their motion in this case. (McKleroy Decl. at 3-5.)

The four (4) separate alleged colon cancer actions have almost no similarities relevant for]

consolidation. As provided in Plaintiffs’ purported evidence in support of their motion, these cases|

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TRIAL BRIEF REGARDING JOINT DEFENSE OPPOSITION
TO PLAINTIFF’S MOTION TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES
1426163v.1involve Plaintiffs who had dissimilar occupations (electrician, plumber, insulator, and|
pipefitter/rigger); worked with dissimilar products manufactured by different companies; worked at|
different jobsites to each other 98% of the time; and had dissimilar sources of alleged exposure}
(commercial construction, residential construction, military, maritime, automotive, and para-|

occupational). The fact that discovery is closed, all Plaintiffs are living, and that Brayton Purcell]

represents all of the Plaintiffs is where the commonalities for these cases end. As summarized in the|

table below:

“Barragan __ Roman Ross

62 69 79
0 pack years 9 pack year 0 pack years 33 pack year
(**disputed*)
Electrician Plumber Pipefitter / Rigger Insulator
1973 - 2006 1956 - 1991 1956 - 1991 1959 - 1986
None Para-Occupational | Automotive Exposure | Automotive Exposure
Lo Exposure Maritime Exposure Maritime Exposure
ee Colon Cancer Colon Cancer Colon Cancer Colon Cancer
Asbestosis/Pleural | Asbestosis/Pleural | Asbestosis/Pleural

S . 7 :
ee Disease Disease Disease
Es None 1 (Ross) None 1 (Fortner)
Eo
a

As mentioned above, there are no common active defendants across all four (4) of these}
cases. Each of the Plaintiffs in these cases had a different occupation from each other. Additionally,}
each Plaintiff worked with different products that were allegedly manufactured by different}
companies. These Plaintiffs also worked at different times and have different dates of exposure. For
example, Plaintiff Robert Ross was an insulator whose first claimed exposure was in 1959. This is|
fourteen (14) years before the date of first claimed exposure by Plaintiff Raymond Barragan,
Similarly, Plaintiffs each allege different sources of exposure. Ross alleges exposures from|
maritime or automotive work, but none from para-occupational exposure. Most importantly, of the
approximate 387 total jobsites alleged among the four (4) cases, over 98% of them are not|
common with Ross’s alleged jobsites. Ross only shares three (3) (0.77% of the total alleged|
worksites) common worksites where he and another plaintiff allegedly worked at the same|
time. Thus, the common worksites between Ross and the other plaintiffs are de minimis.

Finally, while Plaintiffs claim that the disease in each case is the same, it is not. Brayton]

Purcell dismissed the claims arising from the diagnosis of asbestosis and asbestos-related pleural
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1426163v.1disease in the Ross case. Thus, the only disease claimed in the Ross case is colon cancer. Given that}
smoking is a risk factor for colon cancer, each Plaintiffs’ smoking histories are relevant. However,
each Plaintiff has a drastically different smoking history, which will only create juror confusion. As|
such, consolidating cases with wildly dissimilar facts and an insignificant percentage of common]|
worksites will invariably lead to juror confusion and prejudice to all defendants involved.
Il]. LEGAL ARGUMENT
A. Standard for Consolidation

Pursuant to California Code of Civil Procedure § 1048(a), this Court has discretion to|
consolidate actions that involve common questions or law or fact to enhance trial efficiency,
However, Courts do not have unfettered discretion to consolidate cases for trial. Johnson v. Celotex|
Corp. (2d Cir. 1990) 988 F.2d 1281, 1285. In particular, Courts may not weigh considerations o:
“convenience and economy” above any party’s rights to “a fair and impartial trial.” (/bid.; see also}
4 Witkin, Cal. Proc. (Sth ed. 2008) Pleadings §§ 342, 376-377 (noting California’s consolidation|
statute is modeled after the corresponding federal rule), Denying consolidation is proper where|
parties and issues are different. Muller v. Robinson (1959) 174 Cal.App.2d 511, 515.

The decision whether to consolidate cases pursuant to section 1048 (a) lies with the trial]
court’s discretion. Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4" 976,
978-979. However, the court’s discretion is limited and must be exercised with consideration of the|
legal principles governing the subject of its action, and will be subject to reversal where no|
reasonable basis for the action is shown. Westside Community for Independent Living, Inc. v.
Obledo (1983) 33 Cal.3d 348, 355.

There are no reported California cases approving consolidation of asbestos claims for trial |
Cases surveyed that upheld the court’s exercise of discretion to deny consolidation had much|
greater similarity than the four (4) cases that Plaintiffs seek to consolidate here. For example:

The court did not err in refusing to consolidate personal injury actions arising out of the
same accident. Hill v. Peres (1934) 136 Cal.App. 132. Similarly, the court did not err in refusing to}
consolidate two (2) actions against different defendants arising out of the same automobile|

collision. Muench vy. Gerske (1034) 139 Cal.App. 438.

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1426163v,1n

B. Plaintiffs’ Proposed Consolidation Fails to Satisfy the Factors Outlined in Malcolm v.
National Gypsum Co,

California courts regularly utilize the Second Circuit Court of Appeal’s reasoning in
Malcolm v. National Gypsum, supra, 995 F.2d 346 to determine if consolidation is appropriate.
This requires the examination of eight (8) factors in asbestos cases: (1) common worksites; (2)
similar occupations; (3) similar dates of exposure; (4) types of disease; (5) whether plaintiffs are
living or deceased; (6) status of discovery; (7) whether plaintiffs are represented by the same

counsel; and (8) the type of cancer alleged. Malcolm v. National Gypsum Co., supra, 995 F.2d at

350-352.) It may be appropriate for this Court to apply the Malcolm criteria, as the federal rule and
section 1048(a) are so similar. See, Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4"
1527, 1544.

Contrary to Plaintiffs’ arguments that down play the importance of Plaintiffs’ worksites in
these cases, the Malcolm court weighed the worksite and occupation factors more heavily than the

other six factors. Malcolm v. National Gypsum Co., supra, 995 F.2d at 353, The Court of Appeal in|

Malcolm, comparing that case to the In re E. & S. Districts Asbestos Litigation (Brooklyn Navy
Yard) (1991) 772 F. Supp. 1380 case explained that

the crucial difference between the Brooklyn Navy Yard case and [this case] is
that here there simply was vo primary worksite. Rather there was an alleged
primary type of worksite: powerhouses. Thus, instead of one locus where each
plaintiff had worked for most of his career, consolidation was premised on the fact
that each plaintiff had spent some part of his career at one or more powerhouses.
There was no showing that the powerhouses that served as the focal point for
consolidation provided anything like the uniformity at the Brooklyn Navy Yard.
There was no finding of common ownerships, common suppliers or common
practices. It should also be noted that at least one 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.

Id at 353 (emphasis added.)
In reaching its decision, the Malcolm Court “applauded” Judge Weinstein, who consolidated
numerous cases together at the trial level of the Brooklyn Navy Yard case. Id. at 353. Judge
Weinstein consolidated the cases into phases based on percentage of plaintiffs’ exposure that]
occurred at the Brooklyn Navy Yard. In discussing the consolidation in Brooklyn Navy Yard, the]

Malcolm Court noted that “64 cases where over 90% of asbestos exposure had occurred in al

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1426163v.1Ro wo N

common worksite — subject to uniformity in procurement and practice typical of the Navy-
could be tried without confusing or distracting the jury.” Jd. at 353 (emphasis added.)
The Malcolm Court found that the plaintiffs must share a common primary worksite, and if]

plaintiffs instead share a primary type of worksite, then there should be some commonality between|

the primary types of worksites. Thus, the first four factors set forth in Malcolm, are given more
weight when determining whether consolidation is appropriate, as they go to the issue of
commonality of the cases rather than mere convenience, which the remaining factors address. Jn Re|
Repetitive Stress Injury Litigation (2d Cir. 1993) 11 F.3d 368, 374.

In the moving papers, Plaintiffs completely overlook these first four (4) Malcolm factors and!
provide generalities when arguing that the four (4) cases before this Court meet the majority of the|
criteria. Specifically, Plaintiffs argue these four (4) cases involve the same disease, are personal
injury cases involving a living injured party, have a similar status of discovery, that all plaintiffs are|
represented by Brayton Purcell, and if tried together the cases will involve similar time periods off
exposure, types of exposures, and asbestos-containing products. However, there is no uniformity off
worksites, ownership, suppliers, or products among these cases as required by Malcolm.

1. The Alleged Common Worksites are De Minimis

Plaintiffs’ statements that Plaintiffs share similar locations of exposure and similar]
occupations are conclusory and Plaintiffs fail to explain in their motion the commonality in each
Plaintiffs’ worksites. In fact, Plaintiffs’ alleged “evidence” in support of their motion are simply,
unverified work histories created by Brayton Purcell. These work histories allege approximatel:
387 distinct worksites of alleged asbestos exposure between all four Plaintiffs. These worksites|
include residential, commercial, military, maritime, and industrial worksites as well as some
automotive-based exposure allegations. Out of the approximate 387 alleged worksites, over 98%
of those are not common to at least one other Plaintiff. Only one (1) single worksite out off
approximately 387 is common to all Plaintiffs (0.77% of the total.) Similarly, the Plaintiffs have
put forth absolutely no evidence regarding the alleged percentage of exposure that any one Plaintiff]
experienced at any of the alleged worksites. Thus, Plaintiffs cannot show that any of them received
90% of their alleged exposure that any common worksite as noted in Malcolm. The high volume of

not common worksites only highlights the fact that these Plaintiffs have dissimilar work histories,

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TRIAL BRIEF REGARDING JOINT DEFENSE OPPOSITION
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1426163v.1dissimilar exposure allegations, and no uniformity of alleged products, manufacturers, or suppliers,
The Plaintiffs’ alleged exposures at these common jobsites are de minimis and fail to satisfy the|
Malcolm factors.

2. The Plaintiffs Do Not Have a Similar Occupations

In addition to the significant difference in worksites, there is also a stark contrast in each off
the Plaintiffs’ occupations and job duties. Mr. Barragan was an electrician, Mr. Roman was a rigger|
at an oil refinery (Plaintiffs do not provide a description of this work), Mr. Ross was an insulator,
and Mr. Fortner was a plumber and worked with gaskets. Again, taking Plaintiffs’ purported|
evidence at its face value, each Plaintiff had drastically different job duties and used completely|
different products. Similarly, given that 98% of the worksites are dissimilar, the Plaintiffs’ different]
work histories and their different occupations does not favor consolidation.

3. Alleged Times of Exposure for Plaintiffs Are Not Similar

Plaintiffs’ statement in Exhibit A that Mr. Fortner’s alleged exposure was from 1956 to
1991 is completely misleading. Upon closer examination of Mr. Fortner’s work history, his first
alleged direct exposure to asbestos was not until 1965. Mr. Barragan’s first year of alleged exposure}
is 1973, which is eight (8) to seventeen (17) years after the other Plaintiffs first claimed exposure to
asbestos. Additionally, the Plaintiffs allege ranges of exposure from twenty-six (26) to thirty-five
(35) years of exposure to asbestos. In Malcolm, “where some plaintiffs suffered asbestos exposure
over periods of up to 30 years, others had much shorter periods of explore,” the disparity in time
“undercu[t] the benefit of efficiency, and increas[ed] the likelihood of prejudice, particularly
concerning ‘state-of-the-art’ evidence.” Malcolm at 351. Similar to the Malcolm case, the
timeframes here do not support a finding of commonality.

C. Plaintiffs’ Motion is Procedurally Defective in that No Record Exists that the Motion

was Ever Filed with the Court

Plaintiffs’ motion fails because it is procedurally defective and does not comply with
California law. California Rule of Court 3.350 requires that a motion to consolidate be filed in each
of the cases sought to be consolidated. (California Rule of Court 3.350(a) (emphasis added).)

Here, Plaintiffs appear to have only filed the motion in the Roman case. In the instant matter,

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Plaintiffs merely served the motion and accompanying declaration on Lexis Nexis file & serve, (See
McKleroy Decl. 4 3.) An examination of the Court’s docket in all other cases show that Plaintiffs
failed to comply with California Rule of Court 3.350. Therefore, their motion is procedurally
defective and should be denied.

D. Consolidating Cases with Dissimilar Facts Violates Fundamental Notions of Due|
Process, Equal Protection, and Fairness

Brayton Purcell represents each Plaintiff involved in all four (4) lawsuits subject to the|
Motion to Consolidate. In comparison, only one (1) defendant is in two (2) of the four (4) cases and
no Defendants are common to all four (4) of these cases. Therefore none are in possession of all off
Plaintiffs’ expert reports, medical records, or deposition testimony provided in the separate actions!
that Plaintiffs are attempting to consolidate. To support their motion, Plaintiffs provide general case|
descriptions that are self-serving and aimed at highlighting the ostensible similarities of the cases to}
promote consolidation. However, upon closer examination of the limited information provided in|
support of their motion, it is readily apparent that the lawsuits subject to Plaintiffs’ motion lac!
commonalities of law and fact. As a result, Defendants would be severely disadvantaged if the]
Court consolidates these cases.

As part of its defense, each Defendant must be prepared to distinguish the claims made in its|
own case from those claims made against the defendants in other three (3) cases to prevent the jury!
from making improper inferences. However, in order to do so, each Defendant must first become}
familiar with Plaintiffs’ allegations and expert opinions in the separate actions. This can only be|
accomplished through expending considerable time, effort, and cost to purchase and revie'
deposition transcripts, medical records, and other documents. In addition, a Defendant may need to}
retain additional experts to refute the opinions of Plaintiffs’ experts that may testify in a|
consolidated trial but may not be necessary in the cases that it was originally a defendant in. As
result, the preparation required for a consolidated trial can only be completed at an exceptional cost}
to each Defendant while Plaintiffs would only be advantaged by consolidation.

E. Consolidating Dissimilar Cases Promotes Juror Confusion Which Prejudices
Defendants

Consolidation is designed to promote trial court efficiency and avoid the danger of

inconsistent adjudications. Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal. App.4th|

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TRIAL BRIEF REGARDING JOINT DEFENSE OPPOSITION
TO PLAINTIFF'S MOTION TO CONSOLIDATE FOR TRIAL LIVING COLON CANCER/BRAYTON CASES
1426163v.1976, 978-979, When making its determination whether consolidation is appropriate, the Court must|
consider whether consolidation would make trial too confusing or complex for a jury or would

adversely affect the rights of any party. See, State Farm Ins, Co. v. Superior Court (1956) 47 Cal. 2d

428, 431-432.. Here, there is no question that each Defendant would face irreparable harm and|
prejudice if this Court consolidates these cases that share no material similarities.

Product identification is a pivotal issue in asbestos cases as each plaintiff must prove that his|
exposure to a defendant’s product in reasonable medical probability was a substantial factor in

causing his asbestos-related disease. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 976-

977. If separate cases are consolidated, the voluminous product identification testimony in one case|
would likely spill over in the jury’s mind to other cases, undermining the weight of relevant case-
specific evidence and facts. In the moving papers, Plaintiffs suggest that to avoid confusion caused]
by a consolidated trial, jurors could utilize a notebook with dividers for each case, photographs
each injured party, and photographs of experts or a separate easel pad for each injured party. These
suggested methods will do little to assist jurors in sorting through evidence that is too voluminous!
and complex to apportion between multiple plaintiffs, defendants, products, worksites, trades, time|
periods, geographical locations, and exposures. As a result, a juror may mistakenly and accidently|
apply evidence applicable to one plaintiff to another or evidence of one defendant's liability may be|
falsely applied to co-defendants.

Further confusion will be created by requiring a jury to expend considerable time hearing|
testimony and learning about various trades or products involved in a consolidated trial which may|
not be relevant in each of the separate actions. Hearing this additional information makes it
extremely difficult for even the most sophisticated juror to distinguish between alleged exposure}
testimony pertaining to a trade or product not involved in every case and impermissibly applying it.
Therefore, consolidating case involving different trades, defendants, products, occupations, and|
worksites will create an environment that fosters juror confusion and will result in irreparable]
prejudice to Defendants. As such, Plaintiffs’ motion should be denied.

F. Consolidation Does Not Necessarily Promote Efficiency
Plaintiffs’ attempt to argue that a consolidation will somehow streamline the cases

completely fails. For example, the product identification witnesses that plaintiffs identified in these

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cases are different. Furthermore, because Plaintiffs’ worksites, type of worksites, and alleged
asbestos-containing products are so dissimilar, the testimony of each product identification and/or
co-worker witness will also be different, have no relevance to the other case, and will cause
unnecessary delay in time. If this were a situation where Plaintiffs shared more than a single
common jobsite, then potential co-worker witnesses may be the same and the testimony may be
very relevant to each case; however, those facts do not exist.

Notwithstanding the simple fact that evaluating expert testimony is completely premature at
this time and is subject to motions in limine (or §402 hearings), Plaintiffs further argue that
Plaintiffs’ experts such as Arnold Brody, Ph.D., Richard Cohen, M.D. and Charles Ay will provide
testimony common to each of these cases. This simply cannot be true. Plaintiffs state that Dr. Cohen|
may testify as to the release of asbestos fibers from products, industry awareness, state of the art
relating to the hazards of asbestos and industrial hygiene-related issues. However, taking into
consideration the different types of asbestos-containing products that allegedly caused each
Plaintiffs’ alleged diseases, Dr. Cohen’s testimony regarding fiber release for dissimilar products
would be different. For example, Dr. Cohen’s testimony regarding the potential release of asbestos
from gaskets at an indoor construction jobsite (as alleged in Fortner) will not be the same as his
testimony relating to release of asbestos from insulation onboard a Navy ship (as alleged in Ross).
Similarly, the state-of- the-art issues will not be the same given the disparity in the exposure time,
and industrial hygiene-related issues will also differ from one type of jobsite in one case to another.

Moreover, Plaintiffs’ alleged expert Charles Ay does not possess the requisite skill or
qualifications necessary to offer any opinions about every single alleged worksite, facility, or
product relevant to the claims against these Defendants. Mr. Ay’s opinions in this case will be
based upon pure speculation and conjecture. Thus, his testimony should be limited to testimony
concerning occupations and locations where he qualifies as an expert, ie. as a Navy shipyard
insulator. In Barragan and Fortner, Plaintiffs never worked aboard a ship.

Additionally, there is only one defendant that is a party to two of the four cases. By
consolidating the cases, the number of defendants significantly increases to 41. Clearly, there is no

efficiency in having a case with more defendants.

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TRIAL BRIEF REGARDING JOINT DEFENSE OPPOSITION
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1426163v.1Given there will be no overlap in investigation and testimony by percipient witnesses or by|
experts in these cases, there are no grounds to warrant consolidation under C.C.P. §1048 since al
consolidation would only create further unnecessary delay and costs.

IV. CONCLUSION

Consolidation of these four alleged colon cancer cases is procedurally deficient and would]
infringe on Defendants’ due process rights. The factual differences between the cases alone create al
situation that is ripe for juror confusion which will result in immeasurable prejudice to these]
Defendants. Further, the cases Plaintiffs seek to consolidate do not meet the Malcolm factors,
Importantly, over 98% of the alleged worksites are not common to the Plaintiffs. This in turn means}
that their alleged exposures and work histories are not common. Further, consolidation would allo
Plaintiffs to bootstrap improper testimony and apply it to other, unrelated, and dissimilar cases. Due|
to the irreparable prejudice to Defendants and impending juror confusion, Defendants request that!

this Court deny Plaintiffs’ Motion to Consolidate.

Dated: August 17, 2015 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER
LLP

By:_/s/ Gardiner McKleroy
William M. Hake, Esq.
B. Gardiner McKleroy, Esq.
Attorneys for Defendant
ADVANCE MECHANICAL CONTRACTORS, INC.
ANDERSON, ROWE & BUCKLEY, INC.
BELL PRODUCTS, INC.
COLLINS ELECTRICAL COMPANY, INC.
EMIL J. WEBER ELECTRICAL COMPANY, INC.

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