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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1 | LISA L. OBERG (SBN 120139) loberg@mckennalong.com 2 || CHRISTOPHER W. WOOD (SBN 113291) ELECTRONICALLY cwood@mckennalong.com 3 || ARLENE C. BARTON (SBN 188445) ot et arlene.barton@dentons.com ‘County pf sun Prancieco 4 || KATHY M. HUYNH (SBN 233314) kathy.huynh@dentons.com 08/10/2015 5 || DENTONS US LLP BY:ALISON AGBAY One Market Plaza Deputy Clerk 6 || Spear Tower, 24" Floor San Francisco, California 94105 7\| Telephone: (415) 267-4000 Facsimile: (415) 267-4198 Attorneys for Defendant 9 || J.T. THORPE & SON, INC. 10 SuPERIOR CouRT OF THE STATE OF CALIFORNIA 11 County OF SAN FRANCISCO 12 13 || ROBERT ROSS, et al., Case No, CGC-10-275731 14 Plaintiffs, DEFENDANT J.T. THORPE & SON, INC.’S TRIAL BRIEF 15 v. JupGeE: TBD 16 || C. C. MOORE & CO. ENGINEERS et al., Dert.: TBD 17 Defendants. TRIALDATE: August 10, 2015 18] 19 20 Defendant J.T. TuorPe & Son, INC. (“Defendant” or “JTTSI”) respectfully submits the 21 || following trial brief. 22 I 3 INTRODUCTION AND STATEMENT OF FACTS 24 |) A. BACKGROUND 25 This is personal injury action brought by Robert Ross and Jean Ross ("Plaintiffs") against 26 || various defendants claiming that Mr. Ross developed asbestosis and colon cancer as a result of 27 || exposure to asbestos. Mr. Ross is a 79-year old retired career insulator. He was diagnosed with 28 || asbestosis in May 2006 and colon cancer in October 2010. MCKENNA LONG & ALDRIDGELLP | ee a | DEFENDANT J.T. THORPE & SON, INC."S TRIAL BRIEF1 Mr. Ross served as an infantryman in the Army from 1954 to 1956, worked as a welder and warehouseman from 1958 to 1960, and was an insulator from 1959 to 1993. Robert Ross married Jean Ross in December 1973. B. PLAINTIFF’S MEDICAL CONDITION Plaintiffs’ experts confirm Mr. Ross' diagnosis of asbestosis and also opined that his colon cancer was caused in part by his exposure to asbestos. Defense medical experts agree with the NI DAW Fw wv diagnosis of colon cancer, however, they do not believe he has asbestosis or attribute his colon 8 || cancer to asbestos exposure. 9c, PLAINTIFF’S WoRK HISTORY 10 Mr. Ross served in the Army from 1954 to 1956. During this time, he served as an 11 || infantryman at Fort Ord in Monterey, CA. From 1958 to 1959, Mr. Ross worked as a welder at 12 || San Mateo Junior College. From 1959 to 1960, he worked as a warehouseman for Philip Carey. 13 || Mr. Ross began his insulating career in 1959. He worked at various industrial and commercial 14 || sites in the San Francisco Bay area. 15} D. History OF J.T. THORPE & Son, INC, 16 From the early 1900s through the present day, ITTSI has performed work as a refractory 17 || contractor. During the years that Mr. Ross was an insulator (1959 to 1993), JTTSI employed 18 || union brickmasons and hodcarriers who removed and installed refractory materials in boilers, 19 || furnaces and other high temperature units at industrial plants and onboard ships. Occasionally, on 20 || specific projects and until 1963, JTTSI employed union insulators who removed and installed 21 |[insulation on the boilers and furnaces, JTTS did not manufacture or supply any asbestos- 22||containing products. It installed and removed asbestos products as part of the services it 23 || performed it performed. Some, but not all, of the materials JITSI’s workers removed and 24 || installed contained asbestos. 25 || E. CLAIMs AGAINST JTTSI 26 In his complaint, Mr. Ross alleges causes of action for Negligence, Strict Liability, False 27 || Representation, Loss of Consortium, Contractor Liability and Punitive Damages against JTTS. 28 || During his 34-year career as an insulator, Mr. Ross was exposed to asbestos form work with and MCKENNA LONG & ALDRIDGE LLP SAN Francisco 2SoD me IN DW RB HY wD FON = 28 MCKENNA LONG & Avpringe LLP SAN FRANCISCO around various types of asbestos-containing products. Thus, even if Mr. Ross can meet his burden of proof, any alleged exposure to asbestos from JTTS’s activities were a de minimis factor in causing his disease. On the other hand, Mr. Ross was exposed to asbestos from his work with and around asbestos-containing products unrelated to JTTS while he served in the Army and while he worked as an insulator. These exposures were sufficient to have caused his disease. Il. CASE ANALYSIS A. LEGAL STANDARD California courts require that an asbestos plaintiff prove exposure to a_ particular defendant’s product or activity and that the exposure is the legal cause of his injury, ie., a substantial factor in bringing about the injury. CACI 430!; McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103; Rutherford vy. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982; Lineaweaver v. Plant Insulation Company (1995) 31 Cal.App.4th 1409, 1415-1416. B. JTTS’s ASSERTED DEFENSES 1. ANY Exposure From JTTS Was Nor A SUBSTANTIAL FACTOR IN CAUSING Mk. Ross' ALLEGED ASBESTOS-RELATED ILLNESS Plaintiffs cannot establish that Mr. Ross' minimal exposure from JTTS’s activities was a substantial factor in causing his alleged asbestos-related illness. At most, Mr. Ross worked around JTTS only inconsequentially and there is no evidence that Mr. Ross was exposed to asbestos during any of those times, and even if he was, there is no evidence, expert or otherwise, that it was in a sufficient quantity to satisfy the CACI 430 standard. (See also McGonnell v. Kaiser Gypsum Co., supra, 98 Cal.App.4th at 1103; Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at 982.) Plaintiffs will argue the incorrect causation standard in determining whether JTTS’s activities were a substantial factor in causing Mr. Ross! disease. That is, that all exposures, : CACI 430-CAUSATION: SUBSTANTIAL FACTOR: A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.] 3SAN FR. LP nN oS Mm NINH Bw Rms a S 0 wm YW DA WwW FF Bw YH = 21 McKenna Lona & ALDRIDGE without producing any evidence of a distinction between each, contribute to the risk of causing the asbestos-related disease. (See CACI 435.) This position is not supported by law. The appropriate standard as applied to JTTS is whether its alleged exposure, by itself, was a substantial factor in causing Plaintifi’s disease. And not whether it was a substantial factor in contributing to the risk of developing disease. CACI 435° is reserved solely for asbestos-related cancer claims against asbestos product manufacturers and is thus irrelevant here. Plaintiffs' experts lack the necessary factors for calculating “dose” and, thus, cannot properly proffer an opinion as to whether any alleged exposure from JTTS constitutes a substantial factor in causing Mr. Ross’ alleged illness. 2. Stricr LIABILITY Is NOT APPLICABLE Strict products liability cannot be asserted against defendants who are in the business of providing a service (such as JTTS) and not in the business of manufacturing or selling the product. (See Monte Vista Development Corp. v. Superior Court (1991) 226 Cal.App.3d 1681; see also Hyland Therapeutics v. Superior Court (1985) 175 Cal.App.3d 509, 513.) Plaintiffs have produced no evidence that JTTS was a seller or distributor of asbestos-containing products. 3. JTTS Dip Not Owe Mr. Ross A DuTY OF CARE Plaintiff's have not produced any evidence that JTTSI exposed Mr. Ross to any asbestos at any time during his career. They have produced not testimony or documents that place JTTSI in Mr. Ross' presence and that proves dust was generated containing asbestos that would be deemed a substantial factor. Moreover, throughout his years of employment in California, Mr. Ross’ employers were subject to various federal and state occupational health and safety standards, including the California Industrial Safety Orders, federal OSHA and Cal-OSHA. These standards mandated that Mr. Ross' employers provide Mr. Ross with a safe work environment by limiting the amount 7 CACI 435 “CAUSATION FOR ASBESTOS-RELATED CANCER CLAIMS” states: “A ; substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It does not have to be the only cause of the harm.[Name of plaintiff] may prove that exposure to asbestos from [name of defendant|’s product was a substantial factor causing [his/her/[name of decedent]’s] illness by showing, through expert testimony, that there is a reasonable medical probability that the exposure was a substantial factor contributing to [his/her] tisk of developing cancer.McKenna LONG ALbRInGE LLP. SAN FRANCISCO 28 & of airborne asbestos he was exposed to on the job and provide him with protective equipment as needed to prevent exposures to significant levels of airborne asbestos fiber. JTTS contends that all exposures to excessive levels of asbestos were the responsibility of his employers as required by the OSHA Regulations and Safety Orders, Furthermore, the premises owners were under a duty to inform JITS employees and Mr. Ross’ employer of the risks of asbestos harm on the premises. (See, Kinsman v. Unocal (2005) 37 Cal.App.4th 659; see also SeaBright Ins. Co. v. U.S. Airways, Ine. (2011) 52 Cal.4th 590.) Yi. Ir Mr. Ross HAS AN ASBESTOS-RELATED ILLNESS, JTTSI Dip NoT CAUSE IT Mr. Ross’ claims at against JTTSI will fail as he cannot show either that he was exposed to asbestos by the activities of JTTSI’s employees or, even if he could, that such activities were more than de minimis compared to his other exposures for which JTTSI is not responsible. Dated: AuGusT 10, 2015 McKENNA LONG & ALDRIDGE LLP ry J YY VAA— i Lisa L, OBERG ! CHRISTOPHER WOOD ARLENE C. BARTON Kathy M, Huynu By: Attorneys for Defendant J.T. THORPE & SON, INC. USW 805243128.1 5 DEFENDANT J.T. THORPE & SON, INC,’S TRIAL BRIEF28 DENTONS USLLP SAN FRANCISCO PROOF OF SERVICE Robert Ross, et al. v. C.C. Moore & Co. Engineers. et al. San Francisco Superior Court Case No. CGC-10-275731 At the time of service, I was over 18 years of age and not a party to this action. | am employed in the County of San Francisco, State of California. My business address is One Market Plaza, Spear Tower, 24th Floor, San Francisco, CA 94105, United States. On August 10, 2015, I served true copies of the following document(s) described as DEFENDANT J.T. THORPE & SON, INC.’S TRIAL BRIEF on the interested parties in this action as follows: BY ELECTRONIC SERVICE: I electronically served the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (www.{ileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 10, 2015, at San Francisco, California. 7 Sf. PROOF OF SERVICE