On December 17, 2010 a Trial Materials was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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Cem ND 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 William M. Hake, Esq. (SBN 110956) Bill. Hake@wilsonelser.com Rockford Hearn, Esq. (SBN 269074) Rockford. Hearn@wilsonelser.com ELECTRONICALLY WILSON, ELSER, MOSKOWITZ, FILED EDELMAN & DICKER LLP Superior Court of Califomia, 525 Market Street, 17th Floor County of San Francisco San Francisco, California 94105 08/11 £: 2015 Telephone: (415) 433-0990 nl Facsimile: (415) 434-1370 Pt eegaey Che Attorneys for Defendant BELL PRODUCTS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, Case No.: CGC-10-275731 Plaintiffs, DEFENDANT BELL PRODUCTS, INC.’S Vv. TRIAL BRIEF C.C. MOORE & CO. ENGINEERS, et al. Complaint: | December 17, 2010 Trial Date: August 10, 2015 Defendants. PLEASE TAKE NOTICE that Defendant Bell Products, Inc. hereby submits the following trial brief. I. INTRODUCTION AND RELEVANT FACTS This is a personal injury claim brought by Plaintiffs Robert and Jean Ross (“Plaintiffs”). Plaintiffs allege that Robert Ross developed colon cancer as a result of occupational exposure to asbestos throughout his career as an insulator from approximately 1959 until 1993, at which time he took regular retirement. Mr. Ross was diagnosed with colon cancer in October 2010. Plaintiffs allege causes of action against Bell Products, Inc. (“Bell”) for negligence, premises owner/contractor liability, and loss of consortium (as to Plaintiff Jean Ross). Bell is a mechanical contractor that operated in the San Francisco Bay Area during relevant periods. DEFENDANT BELL PRODUCTS, INC.’S TRIAL BRIEFMr. Ross filed a prior claim for asbestos-related injury on March 5, 2007 (Robert Ross v. Asbestos Defendants, San Francisco Superior Court Case No. CGC-07-274099) in which he sought damages for alleged asbestosis and asbestos-related pleural disease sustained as a result of occupational exposure to asbestos. This second, current claim relates to colon cancer allegedly attributable to the identical asbestos exposures alleged in his prior claim. Il. LEGAL DEFENSES A. Client Identification Mr. Ross has alleged potential exposure to asbestos at an excess of one hundred jobsites throughout a career as an insulator that spanned approximately thirty five years. Only seven jobites are alleged against Bell, and of those only two are identified with any specificity. There are no records or percipient witnesses that corroborate Plaintiffs’ identification of Bell at any of the jobsites alleged, and therefore all jobsites are disputed. Further, any exposures at the jobsites alleged against Bell, even if established, could not be a significant contributing factor to Mr. Ross’ overall lifetime exposure. B. Substantial Factor Any asbestos exposure attributable to Bell was not a substantial factor in causing and/or increasing Mr. Ross’ risk of developing an asbestos-related disease. At trial Plaintiffs will bear the burden of proving that Mr. Ross was exposed to dangerous asbestos fibers attributable to Bell. “A threshold issue in asbestos litigation is exposure to the defendant’s product. The plaintiff bears the burden of proof on this issue.” (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103.) If there is no evidence of exposure, there is no causation. (/d.) The court in Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1417 promulgated a two prong test for the plaintiff to meet when trying to prove causation in an asbestos-related case. First, the plaintiff must demonstrate that he was actually exposed to the defendant’s asbestos-containing product or activity. (/d. at 1415-6.) Second, the plaintiff must establish that this exposure was a substantial factor in causing his asbestos-related illness. (/d.; Rutherford vy. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982-83.) Exposures that play only an “infinitesimal,” “negligible,” or 2 DEFENDANT BELL PRODUCTS, INC.’S TRIAL BRIEFaI DW BF WN “theoretical” part in causing the alleged injury are insufficient. (/d. at 969, 978.) Assuming, arguendo, that Plaintiffs establish that Mr. Ross worked in proximity to Bell employees at the jobsites alleged, Plaintiffs have no evidence that the products with which Bell employees worked or disturbed contained asbestos. Without this evidence Plaintiffs cannot establish that Bell’s activities were a substantial factor in contributing to Mr. Ross’ risk of developing an asbestos-related disease. Further, Mr. Ross was a career insulator who worked directly with asbestos-containing products including thermal insukation and asbestos-containing fireproofing for over three decades. If Mr. Ross was actually exposed as a bystander to any asbestos as a result of the activities of Bell, which Bell denies, it was not a substantial factor in causing his alleged injury. Cc. Sophisticated User Bell did not owe a duty to Mr. Ross for the risks associated with asbestos by virtue of his status as a sophisticated user of asbestos-containing insulation and materials. At trial the evidence will show that Mr. Ross, a member of the Asbestos Workers’ Union, was a sophisticated user of asbestos-containing products, was aware of the dangers associated with his work as an insulator, and took precautions to prevent harmful exposures. Plaintiffs’ causes of action against Bell are defeated by the application of the “sophisticated user” defense articulated by the California Supreme Court in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, as Bell had no duty to warn Mr. Ross about the dangers of asbestos generally known to the insulator trade at the time he allegedly worked around Bell employees. D. Medical Defense Plaintiffs claim that Mr. Ross developed colon cancer as a result of his occupational exposure to asbestos. However, medical evidence will establish that Mr. Ross does not suffer from an asbestos-related disease. Defendants will show that there is no causal link between asbestos exposure and colon cancer, and that Mr. Ross’ colon cancer was caused by a pre-existing benign polyp and other factors unrelated to asbestos exposure including his 33-pack year history of smoking. More importantly, defendants will present evidence showing that Mr. Ross’ colon cancer has remained asymptomatic and in remission since the surgical removal of the cancerous tumor 3 DEFENDANT BELL PRODUCTS, INC.’S TRIAL BRIEFfrom his colon in November 2010, and thus that Mr. Ross is at this point essential cured of this condition. E. Damages Pursuant to Howell vy, Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555 and its progeny, Bell will seek to limit the amount of medical damages to those actually paid for Mr. Ross’ medical care. Mil. EXPERTS Bell intends to call the following expert witnesses: 1. Dr. Khalil Sheibani - Pathologist 2. Dr. Norman P. Moscow - Radiologist 3 David Ross - Construction management/Sequencing 4. Kyle B. Dotson - Industrial Hygienist 5. Dr. Robert Morgan - Epidemiology 6. Dr. Gerald Meyers - Pulmonologist 7. Dr. Samuel Spivack - Oncology IV. TRIAL ESTIMATE Bell estimates that trial will take between eight (8) and ten (10) weeks, depending upon the number of defendants remaining in the case at the commencement of trial. Vv. CONCLUSION For the foregoing reasons there is insufficient evidence to support the imposition of liability against Bell. Defendant Bell Products thanks the Court for its time and consideration Dated: August 11, 2015 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By:__/s/ Rockforn Hearn William M. Hake, Esq. Rockford M. Hearn, Esq. Attorneys for Defendant BELL PRODUCTS, INC. 4 DEFENDANT BELL PRODUCTS, INC.’S TRIAL BRIEFPROOF OF SERVICE I, Liza H. Cachero, declare as follows: I am employed in the County of San Francisco, State of California. My business address is Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 525 Market Street, 17°F loor, San Francisco, CA 94105. I am over eighteen years old and not a party to this action. On the date set forth below, I served the following document(s) described as: DEFENDANT BELL PRODUCTS, INC.’S TRIAL BRIEF BY U.S. MAIL: I am readily familiar with this office’s practices and procedures for collecting, processing, and depositing correspondence and other mail via the United States Postal Service. In the ordinary course of business, the foregoing documents were placed in a sealed envelope, postage pre-paid, and deposited with the United States Postal Service in the City and County of San Francisco, State of California, for delivery to the following address: BY FEDERAL EXPRESS: | am readily familiar with this office’s practices and procedures for collecting, processing, and depositing correspondence and other mail via Federal Express. In the ordinary course of business, the foregoing documents were placed in a sealed envelope, postage pre-paid, and deposited with Federal Express in the City and County of San Francisco, State of California, for overnight delivery to the following address: BY FAX: [ am readily familiar with this office’s practices and procedures for transmitting documents via facsimile. In the ordinary course of business, the foregoing documents were sent via facsimile to the following address: BY PERSONAL SERVICE: I am readily familiar with this office’s practices and procedures for transmitting documents via personal service. In the ordinary course of business, the foregoing documents were placed in a sealed envelope and provided to First Legal Messenger Service for immediate personal delivery to the following address: x BY ELECTRONIC SERVICE: In the ordinary course of business, the foregoing documents were served to all parties and counsel registered with File & ServeXpress, as designated on the Transaction Receipt available on the File & ServeXpress website. I declare under penalty of perjury/under the laws of the State of California that the foregoing is true and correct. Executed ust 1, I at San oo oy za ! Cachero 5 DEFENDANT BELL PRODUCTS, INC.’S TRIAL BRIEF