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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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                                JAMES N. SINUNU, SBN 62802
SINUNU BRUNI LLP

333 Pine Street, Suite 400

San Francisco, CA 94104-3311
Telephone: 415.362.9700
Facsimile: 415.362.9707
jsinunu@sinunubruni.com
hhartman@sinunubruni.com

Attorneys for Defendant
MCCLURE ELECTRIC, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO-UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS,

Plaintiffs,

Vs.

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C.C. MOORE & CO. ENGINEERS; )
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint
herein; and DOES 1-8500.
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)

Defendants.

Defendant MCCLURE ELECTRIC, INC. (hereinafter “McClure”) hereby submits

this trial brief in Compliance with the Asbestos Trial Management Order of May 7, 2014.

I. INTRODUCTION

Plaintiffs Robert Ross and Jean Ross (hereinafter “Plaintiff” and/or “Plaintffs”) filed
a Complaint for personal injury for Robert Ross’s asbestos-related disease on December 17,
2010, and a Second Amended Complaint on May 16, 2011. McClure filed an answer to
Plaintiffs’ Second Amended Complaint on December 28, 2011. Plaintiff was a career
insulator who regularly mixed, handled, and installed asbestos insulation. Prior to his work

as an insulator, Plaintiff claims that he was exposed to asbestos as a result of his work as a

ELECTRONICALLY

FILED

Superior Court of Caltfornia,
County of San Francisco}

08/12/2015
Clerk of the Cour
BY-:DAVID YUEN

Deputy

Case No.: CGC-10-275731

DEFENDANT MCCLURE ELECTRIC,
INC.’S TRIAL BRIEF

Dept.: 613
Judge: Hon. Harold Kahn

Complaint Filed: December 17, 2010
Trial Date: August 10, 2015

1
DEFENDANT MCCLURE ELECTRIC, INC.’S TRIAL BRIEFwarehouseman at a warehouse where he unloaded boxcars of asbestos-containing products;
he also swept floors and delivered asbestos-containing materials to job sites. Plaintiffs sued
McClure and numerous other defendants, after Plaintiff developed colon cancer. Prior to the
present action based on Plaintiff's colon cancer, Plaintiffs filed an action based on Plaintiff's
asbestosis and pleural disease, to which McClure was not a party (SFSC Case No. CGC-07-
274099).

IL. PLAINTIFFS’ CLAIMS AGAINST MCCLURE

As against McClure, Plaintiffs assert the following causes of action: Negligence,
Loss of Consortium, and Premises Owner / Contractor Liability. Generally, Plaintiff claims
that he was exposed to asbestos as a result of his work as an insulator from 1959 until 1993,
at numerous commercial and industrial locations, primarily in Northern California. As to
McClure, Plaintiffs originally claimed that Robert Ross was exposed to asbestos as a result of
activities by McClure at only one job location: The Mills Building in San Francisco,
California. Specifically, Plaintiffs claimed that McClure electricians exposed Plaintiff to
asbestos by disturbing previously sprayed asbestos-containing overhead fireproofing while
setting their pipe and conduit at The Mills Building between 1967 and 1972. Plaintiff does
not know when the fireproofing that he claims McClure disturbed was installed. Plaintiff
does not know the brand or manufacturer of any fireproofing type material that he claims
McClure disturbed. And Plaintiff testified that he does not recall any job other than The
Mills Building where he saw McClure at the job with him. Several months after Plaintiff's
deposition concluded, in response to an interrogatory request for all witnesses in support of
his claims against McClure, Plaintiffs identified only Robert and Jean Ross.

In its motion for summary judgment, McClure produced reliable evidence that there
is not, and never has been, any asbestos containing or spray-on fireproofing used anywhere in
The Mills Building. Plaintiffs’ opposition did nothing to counter the very specific, verifiable
facts offered by McClure regarding the state of the ceilings at The Mills Building. No expert

declaration was filed. No co-worker identified a product. Plaintiffs’ non-opposition on this

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DEFENDANT MCCLURE ELECTRIC, INC.’S TRIAL BRIEFmatter was therefore, an admission that McClure’s evidence regarding fireproofing at The
Mills Building is proven as true. Rather, in a bizarre counter, Plaintiff filed his own
declaration with nothing but conjecture. In an effort to raise a triable issue of material fact,
Plaintiff stated that it must not have been The Mills Building after all, but some other high-
tise building downtown where he saw McClure electricians disturbing asbestos-containing
fireproofing. However, Plaintiff stated no alternative date, place, employer, or job in his
declaration to support this allegation.

To date, Plaintiffs have produced no admissible evidence linking McClure to
Plaintiff’s alleged asbestos exposures.

Il. | MCCLURE’S DEFENSES

McClure will show that Plaintiffs cannot establish that a) Plaintiff Robert Ross was
exposed to asbestos by an act or omission of McClure, b) any exposure allegedly attributable
to McClure was a substantial factor in causing Plaintiffs colon cancer, c) asbestos exposure
caused Plaintiffs colon cancer, or that d) McClure owed a duty to a sophisticated user.

a. There Is No Evidence that McClure Exposed Plaintiff to Asbestos.

An asbestos plaintiff bears the burden of proving that he was “exposed to dangerous
[asbestos] fibers from a product produced, distributed, or installed by a particular defendant.”
(Rutherford v. Owens-Illinois, Inc.(1997) 16 Cal.4th 953, 975; McGonnell v. Kaiser Gypsum
(2002) 98 Cal.App.4th 1098, 1103.) If there is no evidence of exposure, there is no
causation. Merely observing McClure employees perform work, without being able to
identify the brand, manufacturer, or date of installation, of any alleged spray-on fireproofing
that McClure allegedly handled is not enough to establish exposure. Plaintiffs will claim that
McClure handled asbestos-containing fireproofing in Plaintiff Robert Ross’ presence over the
course of ten days, either at The Mills Building, or at some unidentified high-rise in San
Francisco between 1967 and 1972. However, Plaintiffs have provided no admissible
evidence to support this contention. McClure cleanly demonstrated that there was no
asbestos-containing fireproofing at The Mills Building, nor indeed spray-on fireproofing of

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DEFENDANT MCCLURE ELECTRIC, INC.’S TRIAL BRIEFany kind. Plaintiffs’ response that perhaps McClure exposed Plaintiff to asbestos at another
unidentified building in downtown San Francisco is baseless and without any evidentiary
support. Plaintiff's deposition testimony and responses to written discovery do not identify
facts or documents supporting his claim that he was exposed to asbestos as a result of any
activity by McClure. Because Plaintiffs cannot establish the necessary nexus between
Plaintiff Robert Ross’s worksites and asbestos-containing materials associated with McClure,

Plaintiffs cannot prove causation for Plaintiff's alleged asbestos-related disease.

b. Plaintiffs Will Be Unable to Prove McClure’s Activities Were a
Substantial Factor in the Development of Plaintiff’s Colon Cancer.

Plaintiffs must prove that exposure to asbestos due to products handled by McClure
was a substantial factor in causing Plaintiff Robert Ross’s colon cancer. Liberally construing
Plaintiffs’ evidence, even ‘accepting Robert Ross’s declaration as admissible (which McClure
vigorously will oppose at trial), the most that can be concluded is that asbestos may have
been found in some buildings that Plaintiff worked in, in downtown San Francisco. Even
assuming that Plaintiff accurately recollects that he worked around McClure employees, the
most that can be alleged is that McClure employees disturbed fireproofing in Plaintiffs
presence over the course of ten days, split between three different projects, spanning the
years of 1967 to 1972. Contrast this with Plaintiff's career as an insulator, where he worked
with or around asbestos-containing insulating materials on a daily basis. Such evidence is
simply not “of sufficient weight to support a reasonable inference of causation.” (Whitmire

v. Ingersoll-Rand Company (2010) 184 Cal.App.4th 1078, 1093.)

c. The Epidemiological Evidence Fails to Support Plaintiffs’ Argument
That Asbestos Exposure Caused His Colon Cancer.

It is anticipated that Plaintiffs’ experts will claim that exposure to asbestos was a
substantial contributing factor to Plaintiff's colon cancer. However, any alleged association
between asbestos exposure and colon cancer is not generally accepted within the
scientific/medical community. Expert testimony deducted from novel scientific principles

may be admissible if the proponent of the evidence makes a preliminary showing of general
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DEFENDANT MCCLURE ELECTRIC, INC.’S TRIAL BRIEFacceptance of the principles in the relevant scientific community. People v. Kelly (1976) 17
Cal.3d 24, 30-31; see also Sargon Enterprises v. Univ. of Southern Cal. (2012) 55 Cal.4th
747, 772, fn. 6.) The evidence in support of the hypothesis that asbestos causes colon cancer
is considered by the medical community to be insufficient to demonstrate a causal
connection. Even certain plaintiffs’ experts admit that the evidence is insufficient to
establish a causal connection. At trial, McClure will demonstrate that the epidemiological
evidence fails to support Plaintiff's argument that asbestos exposure caused his colon cancer.
Hence, any such testimony to the contrary from Plaintiffs’ experts would be based on reasons
unsupported by the material on which an expert may reasonably rely and would be

speculative.

d. Plaintiffs Will Be Unable to Prove McClure Owed a Duty to a
Sophisticated User.

McClure owed no duty of care to Plaintiff, an insulator, who was a sophisticated user
of asbestos products. As a member of the Asbestos Workers Union, Local 16, Plaintiff knew
of the hazards of asbestos, and was educated by his union regarding those hazards. Plaintiffs
have provided no evidence that McClure possessed any knowledge concerning the hazards
associated with asbestos exposure when Plaintiff allegedly worked around McClure
employees between 1967 and 1972.

Iv. CONCLUSION

Plaintiffs will not be able to prove either actual causation to asbestos from McClure,

nor medical causation between any asbestos exposure and his colon cancer condition.

Respectfully submitted,
SINUNU BRUNI LLP
Dated: August _// , 2015 7 ” ~
BY
MCCLURE ELECTRIC, INC.

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DEFENDANT MCCLURE ELECTRIC, INC.’S TRIAL BRIEFPROOF OF SERVICE

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

I am over the age of eighteen years and not a party to the above-captioned matter.
My business address is 333 Pine Street, Suite 400, San Francisco, California 94104-3311,
where the service described below took place on the date set forth below.

Person(s) Served and Manner of Service:

Electronic Service: On the date executed below, I electronically served the
document(s) via File & ServeXpress described below on recipients designated on

x the Transaction Receipt located on the File & ServeXpress website.

Document(s) Served:
DEFENDANT MCCLURE ELECTRIC, INC.’S TRIAL BRIEF
I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

>
Dated: August 11, 2015 ¢ —
Elizabeth Geronimo

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PROOF OF SERVICE