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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oN DF oO F WN So Edward R. Hugo [Bar No. 124839] yl Amber Lee Kelly [Bar No. 117006] Lisa M. Rickenbacher [Bar No. 203291] HUGO PARKER, LLP 135 Main Street, 20 Floor ELECTRONICALLY San Francisco, CA 94105 FILED Telephone: (415) 808-0300 Superior Court of California, Facsimile: (415) 808-0333 County of San Francisco Email: service@HUGOPARKER.com 08/10/2015 ee Court Attorneys for Defendant 7 ee PERINICORPORATION oe SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, (ASBESTOS) Case No. CGC-10-275731 Plaintiffs, DEFENDANT PERINI CORPORATION'S vs. GENERAL TRIAL BRIEF C.C. MOORE & CO. ENGINEERS, et al., Action Filed: December 17, 2010 Defendants. Trial Date: August 10, 2015 INTRODUCTION This is a personal injury action filed by Plaintiffs ROBERT ROSS and JEAN ROSS (‘Plaintiffs’) against numerous defendants including PERINI CORPORATION (“Perini”) wherein ROBERT ROSS (“Plaintiff”) alleges he has an asbestos related colon cancer. However, Plaintiffs cancer appears to be in complete remission and more importantly, is not attributable to asbestos exposure. Plaintiffs allege causes of action against Perini for Negligence I (First Cause of Action), and Negligence II — Contractor's / Premise Liability (Third Cause of Action). FACTS AND EXPOSURE INFORMATION 1. General Information re Perini Corporation Perini Corporation is a General Contractor in the San Francisco Bay Area. 2. Work History and Allegations Against Perini Plaintiff Robert Ross (DOB 09/09/1935) claims occupational asbestos exposure 1 DEFENDANT PERINI CORPORATION'S GENERAL TRIAL BRIEFoN DF oO F WN So 15 16 28 HUGO PARKER, LL! 135 MAIN S¥REET, 20” FLOC San Francisco, CA 94105 through his work, first as a warehouseman unloading boxcars of asbestos-containing insulation products, including Philips Carey, Johns Mansville, Owens Corning, Kaylo, Unibestos, Eagle Picher and Celoltex insulation products in 1959 and 1960, and then as a career insulator on a variety of commercial sites, residential sites and aboard naval ships and at various shipyards in the San Francisco Bay Area from 1960 to the mid-1990s. Plaintiff also claims non-occupational exposure from performing personal friction work from 1952 to 1965 on several personal vehicles. In addition, also Plaintiff performed sheetrock work on his home while undertaking a remodel project in the 1970s and 1980s. Plaintiff joined the Asbestos Workers’ Union, Local 16, in 1960 as an apprentice insulator. After completing his apprenticeship program with the union he turned out as a journeyman insulator. As an apprentice, Plaintiff unloaded insulation and delivered insulation materials to the journeyman, assisted with the cutting of pipe insulation, mixing insulation cements, and applying these materials. As a journeyman insulator, Plaintiff cut and installed asbestos containing pipe insulation and mixed and applied asbestos containing cements on a daily basis. Plaintiff's insulation work was mainly at large commercial jobsites, and aboard naval ships and at shipyards. Plaintiff admits to constant, direct exposure to asbestos containing insulation, muds and cements applied by himself and fellow insulators on his jobsites. He also admits to decades of bystander exposure from other trades (drywallers, electricians, fireproofers, plumbers and others) on these jobsites that caused him to be exposed to asbestos containing fireproofing, sheetrock, drywall materials and other insulation products. Plaintiff alleges that he worked in the vicinity of Perini employees, for short periods of time, at Golden Gateway Apartments (1960 to 1962, and 1965-1966), Ghirardelli Square, San Francisco, CA, (1967 to 1972), Golden Gate University, San Francisco, CA, (1978 to 1979), SFO International Airport, (1965 to 1966). Plaintiffs allege that the asbestos exposure was caused by Perini laborers sweeping in his vicinity, but admitted at deposition that he did not know what type of debris or materials were swept 2 DEFENDANT PERINI CORPORATION'S GENERAL TRIAL BRIEFoN DF oO F WN So 15 16 28 HUGO PARKER, LL! 135 MAIN S¥REET, 20” FLOC San Francisco, CA 94105 up and further stated that Perini performed its cleanup work in a similar and consistent manner to all other contractors. A review of records and building permits do NOT confirm Plaintiffs’ allegations that Perini served as the general contractor at San Francisco International Airport, Ghirardelli Square, or Golden Gate University, during the purported time periods of Mr. Ross’s work. LEGAL ISSUES 1. The “Sophisticated User” Doctrine Applies To Relieve Perini Of Any Duty To Warn Under the California Supreme Court's decision in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, when a potentially hazardous product is sold to “sophisticated users,” the law does not impose a duty to warn of the hazards of the products, because sophisticated users already know, or should know, of those potential hazards, and issuing warnings would only result in a general undermining of the value of warnings. (Johnson, supra, 43 Cal.4th at 70.) Plaintiff was a member of the Asbestos Workers’ Union, which was at the forefront of knowledge of the hazards of asbestos. Plaintiff attended union meetings and received union publications, both of which discussed the potential hazards of asbestos and appropriate precautions. Plaintiff was employed by various insulation contractors who also had direct and sophisticated knowledge of the potential hazards of working with and around asbestos containing thermal insulation products. They received information and warnings directly from the manufacturers of the various insulation materials and from the union. As a construction contractor, Perini had little information regarding the specific products at issue here than either the manufacturers or the Asbestos Workers’ Union. Plaintiff, Plaintiff's union, and Plaintiff’s employers were knowledgeable and sophisticated users, and they were in a better position to warn Plaintiff of the risks associated with using products containing asbestos and, assuming a warning was required, it was the failure of those entities to give such a warning that was the proximate and superseding cause of Plaintiffs damages. 3 DEFENDANT PERINI CORPORATION'S GENERAL TRIAL BRIEFoN DF oO F WN So 15 16 28 HUGO PARKER, LL! 135 MAIN S¥REET, 20” FLOC San Francisco, CA 94105 2. Lack of Causation/No Substantial Factor Plaintiff was a career insulator and worked directly with asbestos-containing products such as thermal insulation, cement and muds for decades. Plaintiff also claims exposure as a bystander to non-specific debris that Perini laborers were allegedly sweeping up. If Plaintiff was actually exposed to any asbestos as a result of this activity (which Perini denies), it was not a substantial factor in causing his colon cancer. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953; CACTI 435.) MEDICAL AND DAMAGES Plaintiff's claimed diagnosis of an asbestos related colon cancer is disputed. There is no accepted medical evidence that asbestos causes colon cancer. Further, Plaintiff's colon cancer was surgically removed and there is no evidence of disease. The surgical cure rate for colon cancer is over 90% and Plaintiff in this case is in full remission. Further, Plaintiff has a 33 pack-year history of smoking cigarettes which is causally related to colon cancer. Plaintiff is currently being treated for hypertension, benign prostatic hypertrophy, degenerative joint disease, liver cysts, alcohol abuse, obesity, chronic bronchitis and COPD. Finally, no medical doctor in this case has found any evidence of any asbestos-related lung disease. According to Plaintiffs’ expert, economic damages are $444,726. Perini will move the Court to limit the amount of medical damages to those actually paid pursuant to Howell v. Hamilton Meats (2011) 52 Cal.4th 541. EXPERTS Perini intends to call the following expert witnesses: 1 Joel Cohen - CIH 2. Gerald Meyers, M.D. - Pulmonologist Dr. Robert W. Morgan — Epidemiologist PY Norman Moscow, M.D. - Radiologist Khalil Sheibani, M.D. — Pathologist 6. Samuel Spivack, M.D. — Oncologist 4 DEFENDANT PERINI CORPORATION'S GENERAL TRIAL BRIEF1 SETTLEMENT EFFORTS 2 Perini has requested a dismissal in exchange for a mutual waiver of costs. 3 41) Dated: August 10, 2015 HUGO PARKER, LLP 5 6 By: /s/ Amber Lee Kelly 7 Edward R. Hugo Amber Lee Kelly 8 Lisa M. Rickenbacher Attorneys for Defendant 9 PERINI CORPORATION 0 1 2 3 4 15 16 7 8 9 20 21 22 23 24 25 26 27 28 HUGO PARKER, LL! 135 MAIN Sree, 20" FLoc San Francisco, CA 94105 5 DEFENDANT PERINI CORPORATION’S GENERAL TRIAL BRIEFCm rnd awn PF WN Ww MY NY NY NY HNN BB Bee ee ew eB Be eI 8A & BON FSF OwH IN AHA BWH HKD Ross, Robert & Jean San Francisco County Superior Court Case No. CGC-10-275731 LexisNexis Transaction No.: 57686760 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, California 94105. On the date below, I served the following: DEFENDANT PERINI CORPORATION’S GENERAL TRIAL BRIEF on the following: BRAYTON “ PURCELL LLP Lexis Nexis Service List 222 Rush Landing Road 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 pe jury that the above is true and correct. Executed on August 10, 2015, at San Francisco, California. Pee ‘a 7 CLL ELLA ~ Chris P. Christensen PROOF OF SERVICE