Document for ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                BRAYTON*PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNEA 94948-6169

4415) 808-1585

oem NY KD A BY

10

ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., 8.B. #154436
OREN P. NOAH, ESQ., S.B. #136310 ELECTRONICALLY
JAMIE A, NEWBOLD, ESQ., S.B. #207186 F I L E D
BRAYTON*PURCELL LLP

Attorneys at Law

222 Rush Landing Road

Superior Court of California,
County of San Francisco

P.O. Box 6169 APR 25 2013
Novato, California 94948-6169 Clerk of the Court
(415) 898-1555 BY: ALISON AGBAY
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com Deputy Clerk

Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ASBESTOS
No. CGC-10-275731

PLAINTIFFS' RESPONSE TO
DEFENDANT ACCO ENGINEERED
SYSTEMS, INC.’S SEPARATE
STATEMENT OF UNDISPUTED FACTS

ROBERT ROSS and JEAN ROSS,
Plaintiffs,

vs.

C.C. MOORE & CO. ENGINEERS;

Defendants as Reflected on Exhibit |

attached to the Summary Complaint
herein; and DOES 1-8500.

eee

Date: May 9, 2013

Time: 9:30 a.m.

Dept: 503, Hon. Teri L. Jackson
Trial Date: June 10, 2013

Action Filed: December 17, 2010

Plaintiffs hereby submit the following responses to defendant ACCO ENGINEERED
SYSTEMS, INC.’s Separate Statement of Undisputed Facts in Support of Motion for Summary
Judgment or, in the Alternative, Summary Adjudication, with reference to plaintiffs’ supporting
evidence disputing such statements.

UNDISPUTED MATERIAL FACTS IN SUPPORT OF SUMMARY JUDGMENT

UNDISPUTED MATERIAL FACTS AND

ALLEGED SUPPORTING EVIDENCE PLAINTIFFS' RESPONSE/EVIDENCE

1. Plaintiff alleges claims of Strict 1. Undisputed.
Liability, Negligence and Loss of

Consortium against ACCO for exposure to

asbestos he alleges caused colon cancer.

Mh

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PLAINTIFFS’ RESPONSE TO DEFENDANT ACCO ENGINEERED SYSTEMS, INC'S SEPARATE STATEMENT OF UNDISPUTED
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See Plaintiffs’ Complaint for Personal
Injury And Loss of Consortium - Asbestos;
attached as Exhibit A to the Declaration of
Dennis M.

Young.

2. Plaintiffs served Responses to Standard
Asbestos Interrogatories, Set One on
January 14, 2011 in this action, which
allege Mr. Ross was primarily exposed to
asbestos-containing products during his
career as an insulator from 1959 to 1993,
allege that ACCO was present at K MART
in Vallejo, CA.

See Plaintiffs’ Responses to General Order
Standard Asbestos Interrogatories Set One;
attached as Exhibit B to the Declaration of
Dennis M. Young.

3. Plaintiffs served Responses to Standard
Asbestos Interrogatories, Set Two on March
11, 2011 in this action, which also allege
that ACCO was present at K MART in
Vallejo, CA.

See Plaintiffs’ Responses to General Order
Standard Asbestos Interrogatories Set Two;
attached as Exhibit C to the Declaration of
Dennis M. Young.

4, Plaintiffs served Supplemental and
Amended Responses to Standard Asbestos
interrogatories, Sets One and Two on
September 20, 2011 in this action, which
allege that ACCO was present at John Muir
Hospital in Concord, CA in addition to K
MART in Vallejo, CA.

See Plaintiffs’ Supplemental and Amended
Responses to General Order Standard
Asbestos Interrogatories Sets One and Two
dated September 20, 2011; attached as
Exhibit D to the Declaration of Dennis M.
Young.

5. Plaintiffs served Supplemental and
Amended Responses to Standard Asbestos
Interrogatories, Sets One and Two on June
4, 2012 in this action, which allege that
ACCO was present at John Muir Hospital
in Concord, CA in addition to K MART in
Vallejo, CA.

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2. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

3. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

4. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

5. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

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See Plaintiffs’ Supplemental and Amended
Responses to General Order Standard
Asbestos Interrogatories Sets One and Two
dated June 4, 2012; attached as Exhibit E to
the Declaration of Dennis M. Young.

6. Plaintiffs served Supplemental and
Amended Responses to Standard Asbestos
interrogatories, Sets One and Twe on
October 26, 2012 in this action, which
allege that ACCO was present at John Muir
Hospital in Concord, CA in addition to K
MART in Vallejo, CA.

See Plaintiffs’ Supplemental and Amended
esponses to General Order Standard
Asbestos Interrogatories Sets One and Two
dated October 26, 2012; attached as Exhibit
F to the Declaration of Dennis M. Young.

7. ACCO propounded written discovery
that included Form Interrogatories, Special
Interrogatories, Request for Production of
Documents and Request for Admissions to
Plaintiff Robert Ross. The requests asked
Jaintiff to identify each fact in support of
is contention that ACCO is liable to him
as alleged in the Complaint, and to provide
the basis for their contentions, specifically
noting the identity of the product(s)
involved and how the exposure occurred.

See ACCO's Form Interrogatories, Special
Interrogatories, Request for Production of
Documents and Request for Admissions to
Plaintiff Robert Ross; attached as Exhibits
Gi, G2, G3 and G4 respectively and see
ACCO's Special Interrogatories and
Request for Production of Documents to
Plaintiff Jean Ross, attached as Exhibits H1
and H2,, to the Declaration of Dennis M.
Young.

8. Plaintiff was deposed in this current
action from July 12, 2011 to August 11,
2011 for eight days total.

See Deposition Transcripts of plaintiff
Robert Ross dated July 12, July 13, July 14,
July 15, August 8, August 9, August 10,
and August 11, 2011; attached as Exhibit I
to the Declaration of Dennis M, Young.

9. Plaintiff alleges that ACCO employees
disturbed asbestos containing fireproofing

Kainjured b2Aigldss ACCHEA wpa

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6. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

7. Undisputed.

8. Undisputed.

9. Undisputed, except to the extent that
defendant argumentatively characterizes

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in his presence for about 2 to 3 weeks
sometime between. 1967 to 1972 or 1973 at
K Mart in Vallejo, CA.

See Plaintiff's Responses to ACCO's
Special Interrogatories, attached as Exhibits
G2 (for Robert) and H1 (for Jean) to the
Declaration of Dennis M. Young.

10. Plaintiff alleges that the fireproofing
ACCO disturbed contained asbestos due to
it color and texture, and that 80% to 90% of
the fireproofing manufactured, distributed
and supplied at that time contained asbestos

See Plaintiff's Responses to ACCO's Form
Interrogatories, attached as Exhibit G1 at
page 2:4-16 to the Declaration of Dennis M.
Young.

11. In response to ACCO's request for
documents to support plaintiff's claims
against it, plaintiff points to his own
discovery responses, various articles,
ACCO's General Order 129 responses and
the testimony of ACCO's persons most
knowledgeable. He provides no
documentation specific to any work ACCO
may have performed on the job sites at
issue in this case.

See Plaintiff's Responses to ACCO's Form
Interrogatories, attached as Exhibit G3 at
pages 1:20-3:8 to the Declaration of Dennis
M. Young,

12. In order to support his claims that
ACCO disturbed asbestos-containing
fireproofing made by Monokote, plaintiff
cites to Monokote, W.R. GRACE and
several other manufacturers General Order
129 responses, brochures, disclosures to the
EPA amongst others. These materials
allegedly state that prior to the mid 1970s
80- 90% of all fireproofing contained
asbestos. Plaintiff provides no documents
that any asbestos-containing fireproofing
product was present at any site in which
ACCO performed work at issue in this case.

See Plaintiff's Responses to ACCO's Form
interrogatories, attached as Exhibit G1 at
page 1:20-2:11to the Declaration of Dennis
M. Young.

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plaintiffs sworn Interrogatory Responses as
“allegations.”

10, Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiff's sworn Interrogatory Responses as
“allegations,”

1}. Disputed. The evidence cited by
defendant was not a Request for Production
of Documents but an Interrogatory. In
response, plaintiff identified numerous
documents beyond those recited by
defendant. Among the documents
defendant failed to mention are all of the
deposition transcripts taken in this matter.
During his deposition, plaintiff testified that
he worked around ACCO employees at
several different jobsites in the 1970s,
including United California Bank,
Broadway Plaza in Los Angeles and the
Security Pacific Building.

12. Disputed. The evidence cited by
defendant was not a Request for Production
of Documents but an Interrogatory. In
response, plaintiff identified numerous
documents beyond those recited by
defendant. Among the documents
defendant failed to mention are all of the
deposition transcripts taken in this matter.
During his deposition, plaintiff testified that
he saw ACCO employees disturbing
fireproofing in his presence at three of his
jobsites.(Deposition of Robert Ross,
volume 3, taken on July 14, 2011, pp.
361:4-22, 363:2 to 364:16, 366:19 to 367:7,
attached as Exhibit A to the Declaration of
Jamie A. Newbold.) Plaintiff further
testified that ACCO employees scraped the
fireproofing and further disturbed it by
shooting studs. (Deposition of Robert Ross,

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12. [sic] Plaintiff recalls ACCO was at a
Building in SF Mission District during his
first employment period with Consolidated,
1967-1972. He was there off and on for 3
weeks. He was insulating ACCO's duct
work.

See Exhibit | to the Declaration of Dennis
M. Young, 364:4 - 25

13. Plaintiff does not recall using ACCO's
tools or equipment at any jobsite.

See Exhibit 1 to the Declaration of Dennis
M. Young, 361: 23-25; 364:1 —-365: 15;
368:14-21

14. ACCO did not give him any
instructions other than where to start
working or what locations were important
for completion.

See Exhibit I to the Declaration of Dennis
M. Young, 361: 23-25: 364:1 —365: 15:
368:14-21

15. Plaintiff testified that his employer,
Consolidated, was a subcontractor to
ACCO while he worked at the K Mart job
in Vallejo, CA

See, Exhibit I to the Declaration of Dennis
M. Young, 362:1-3; 363:16-18

16. Plaintiff testified that ACCO was

installing Durodyne flex connectors at the
K Mart job.

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TVD, taken on July 12, 2011, 77:21 to
78:12, attached as Exhibit A to the
Declaration of Jamic A. Newbold.)
Additionally, Mr. ROSS continuously
testified throughout his deposition his
ability to tell the difference which
fireproofing contained asbestos and which
fireproofing did not.

(Deposition of Robert Ross, Volume 2,
taken on July 13, 2011, pp. 263:16-19,
264:6 to 265:1, Vol. 3, taken July 14, 2011
pp. 468:3-17,544:22 to 546:13, Vol. 4,
taken on July 15, 2011, pp. 754:24 to
756:11, Vol. 8, taken on August 11, 2011,
pp. 1665:1-13 , attached as Exhibit A to the
Declaration of Jamie A. Newbold.)

12, Undisputed.

13. Undisputed but irrelevant. This fact
has no tendency in reason to prove Mr.
ROSS was not exposed to asbestos from the
negligent conduct of ACCO’s employees.

14. Undisputed but irrelevant. This fact
has no tendency in reason to prove Mr.
ROSS was not exposed to asbestos from the
negligent conduct of ACCO’s employees.

15. Undisputed.

16. Undisputed.

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See Exhibit I to the Declaration of Dennis
M. Young, 369:7-10

17. Plaintiff testified that his employer,
Consolidated, was a subcontractor to
ACCO while he worked for three weeks
sometime from 1967 to 1972 at an
unidentified building in the Mission District
in San Francisco, CA.

See Exhibit ] to the Declaration of Dennis
M. Young, 363:8-364-:23

18. Plaintiff testified that ACCO was
installing duct at the Mission District
building site.

See Exhibit I to the Declaration of Dennis
M. Young, 364:24-365:4

19. Plaintiff testified that ACCO was
disturbing fireproofing at John Muir.

See Exhibit I to the Declaration of Dennis
M. Young, 367:2-7

20. Plaintiff testified that his employer,
Insulation Specialties, was a subcontractor
to ACCO while he worked for two weeks in
1981 at John Muir Hospital in Concord,
CA,

See Exhibit I to the Declaration of Dennis
M. Young, 366:19-368-:3

21. Plaintiff testified that ACCO did their
own sweeping up at each of these sites.

See Exhibit I to the Declaration of Dennis
M. Young, 369:2-8

22. Plaintiff believed the fireproofing
ACCO disturbed was asbestos containing
because old fireproofing looked different
from new fireproofing, and old fireproofing
was always used during that time.

Exhibit I to the Declaration of Dennis M.
Young, 544: 22-546: 13

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17, Undisputed.

18. Undisputed.

19. Undisputed.

20. Undisputed.

21. Undisputed.

22. Undisputed. Additionally, Mr. ROSS
testified throughout his deposition the
ability to tell the difference between
asbestos-containing and non-asbestos
containing fireproofing.

(Deposition of Robert Ross, Volume 2,
taken on July 13, 2011, pp. 263:16-19,
264:6 to 265:1, Vol. 3, taken July 14, 2011
pp. 468:3-17,544:22 to 546:13, Vol. 4,
taken on July 15, 2011, pp. 754:24 to
756:11, Vol. 8, taken on August 11, 2011,
pp. 1665:1-13 , attached as Exhibit A to the
Declaration of Jamie A. Newbold.)

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23. Plaintiff wore a mask throughout his
career

See Exhibit I to the Declaration of Dennis
M. Young, 458: 7- 15

24. Plaintiff joined the Asbestos Workers
Heat & Frost Insulators Union in 1959.

See Exhibit | to the Declaration of Dennis
M. Young.17: 15 23 ; 31:10-25

23, Undisputed but irrelevant. Defendant
has offered no evidence that wearing a
paper mask was effective in preventing
exposure, There is no showing of whether
any mask worn by plaintiff was designed to
be or was protective of airborne asbestos
fibers, that it was worn in such a way as to
prevent exposure to asbestos fibers, that it
‘was worn in conjunction with protective
clothing and wash down procedures
necessary to prevent exposure to asbestos
fibers which would otherwise land on
plaintiff's clothing, skin and hair and cause
exposures when an otherwise effective
mask was removed.

24, Undisputed but irrelevant. This fact
has no tendency in reason to demonstrate
that Mr. ROSS had a sophistication at any
time. It fails to set forth what training, if
any, Mr. ROSS received regarding asbestos
hazards, including what type of “hazards”
of asbestos were known or knowable, what
diseases could result, what levels of
asbestos exposure were dangerous, or how
one was exposed to the same which would
result in an asbestos-related discase.

It is further irrelevant in that even if
there was no duty to warn plaintiff of the
dangers of asbestos, defendant remains
liable for its own negligence in causing
plaintiff's exposure to asbestos.

UNDISPUTED MATERIAL FACTS IN SUPPORT OF SUMMARY ADJUDICATION AS
TO CAUSES OF ACTIONS FOR NEGLIGENCE AND STRICT LIABILITY

25. Plaintiff alleges claims of Strict
Liability, Negligence and Loss of
Consortium against ACCO for exposure to
asbestos he alleges caused colon cancer.

See Plaintiffs’ Complaint for Personal

Injury And Loss of Consortium - Asbestos;
attached as Exhibit A to the Declaration of
Dennis M.

Young.

26. Plaintiffs served Responses to Standard.
Asbestos Interrogatories, Set One on
January 14, 2011 in this action, which
allege Mr. Ross was primarily exposed to
asbestos-containing products during his
career as an insulator from 1959 to 1993,
allege that ACCO was present at K MART

Kainjured b2Aigldss ACCHEA wpa

25. Undisputed.

26. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations,”

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in Vallejo, CA.

Sce Plaintiffs’ Responses to General Order
Standard Asbestos Interrogatories Set One;
attached as Exhibit B to the Declaration of
Dennis M. Young.

27. Plaintiffs served Responses to Standard
Asbestos Interrogatories, Set Two on March
11, 2611 in this action, which also allege
that ACCO was present at K MART in
Vallejo, CA.

See Plaintiffs’ Responses to General Order
Standard Asbestos Interrogatories Set Two;
attached as Exhibit C to the Declaration of
Dennis M. Young.

28. Plaintiffs served Supplemental and
Amended Responses to Standard Asbestos
interrogatories, Sets One and Two on
September 20, 2011 in this action, which
allege that ACCO was present at John Muir
Hospital in Concord, CA in addition to K
MART in Vallejo, CA.

See Plaintiffs’ Supplemental and Amended
Responses to General Order Standard
Asbestos Interrogatories Sets One and Two
dated September 20, 2011; attached as
Exhibit D to the Declaration of Dennis M.
Young.

29. Plaintiffs served Supplemental and
Amended Responses to Standard Asbestos
Interrogatories, Sets One and Two on June
4, 2012 in this action, which allege that
ACCO was present at John Muir Hospital
in Concord, CA in addition to K MART in
Vallejo, CA.

Sce Plaintiffs’ Supplemental and Amended.
Responses to General Order Standard
Asbestos Interrogatories Sets One and Two
dated June 4, 2012; attached as Exhibit E to
the Declaration of Dennis M. Young.

30. Plaintiffs served Supplemental and
Amended Responses to Standard Asbestos
Interrogatories, Sets One and Two on
October 26, 2012 in this action, which
allege that ACCO was present at John Muir
Hospital in Concord, CA in addition to K
MART in Vallejo, CA.

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27. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

28. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

29. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

30. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiffs’ sworn Interrogatory Responses as
“allegations.”

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See Plaintiffs’ Supplemental and Amended
Responses to General Order Standard
Asbestos Interrogatories Sets One and Two
dated October 26, 2012; attached as Exhibit
F to the Declaration of Dennis M. Young.

31. ACCO propounded written discovery
that included Form Interrogatories, Special
Interrogatories, Request for Production of
Documents and Request for Admissions to
Plaintiff Robert Ross. The requests asked
Plaintiff to identify each fact m support of
his contention that ACCO is liable to him
as alleged in the Complaint, and to provide
the basis for their contentions, specifically
noting the identity of the product(s)
involved and how the exposure occurred.

See ACCO's Form Interrogatories, Special
interrogatories, Request for Production of
Documents and Request for Admissions to
Plaintiff Robert Ross; attached as Exhibits
Gi, G2, G3 and G4 respectively and see
ACCO's Special Interrogatories and
Request for Production of Documents to
Plamtiff Jean Ross, attached as Exhibits H1
and H2,, to the Declaration of Dennis M.
Young.

32. Plaintiff was deposed in this current
action from July 12, 2011 to August 11,
2011 for eight days total.

See Deposition Transcripts of plaintiff
Robert Ross dated July 12, July 13, July 14,
July 15, August 8, August 9, August 10,
and August 11, 2011; attached as Exhibit I
to the Declaration of Dennis M. Young.

33. Plaintiff alleges that ACCO employees
disturbed asbestos containing fireproofing

in his presence for about 2 to 3 weeks
sometime between 1967 to 1972 or 1973 at
K Mart in Vallejo, CA.

See Plaintiff's Responses to ACCO's
Special Interrogatories, attached as Exhibits
G2 (for Robert) and H1 (for Jean) to the
Declaration of Dennis M. Young.

34. Plaintiff alleges that the fireproofing
ACCO disturbed contained asbestos due to
it color and texture, and that 80% to 90% of
the fireproofing manufactured, distributed
and supplied at that time contained asbestos

Kainjured b2Aigldss ACCHEA wpa

31. Undisputed.

32. Undisputed.

33, Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiff’s sworn Interrogatory Responses as
“allegations.”

34. Undisputed, except to the extent that
defendant argumentatively characterizes
plaintiff's sworn Interrogatory Responses as
“allegations.”

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See Plaintiff's Responses to ACCO's Form
Interrogatories, attached as Exhibit Gi at

page 2:4-16 to the Declaration of Dennis M.

Young.

35. In response to ACCO's request for
documents to support plaintiff's claims
against it, plaintiff points to his own
discovery responses, various articles,
ACCO's General Order 129 responses and
the testimony of ACCO's persons most
knowledgeable, He provides no
documentation specific to any work ACCO
may have performed on the job sites at
issue in this case.

See Plaintiff's Responses to ACCO's Form
Interrogatories, attached as Exhibit G3 at
pages 1:20-3:8 to the Declaration of Dennis
M. Young,

36. In order to support his claims that
ACCO disturbed asbestos-containing
fireproofing made by Monokote, plaintiff
cites to Monokote, W.R. GRACE and
several other manufacturers General Order
129 responses, brochures, disclosures to the
EPA amongst others. These materials
allegedly state that prior to the mid 1970s
80- 90% of all fireproofing contained
asbestos, Plaintiff provides no documents
that any asbestos-containing fireproofing
product was present at any site in which

ACCO performed work at issue in this case.

See Plaintiff's Responses to ACCO's Form
Interrogatories, attached as Exhibit Gi at
page 1:20-2:1 Ito the Declaration of Dennis
M. Young.

Kainjured b2Aigldss ACCHEA wpa

35. Disputed. The evidence cited by
defendant was not a Request for Production
of Documents but an Interrogatory. In
response, plaintiff identified numerous
documents beyond those recited by
defendant. Among the documents
defendant failed to mention are all of the
deposition transcripts taken in this matter,
During his deposition, plaintiff testified that
he worked around ACCO employees at
several different jobsites in the 1970s,
including United California Bank,
Broadway Plaza in Los Angeles and the
Security Pacific Building.

36. Disputed. The evidence cited by
defendant was not a Request for Production
of Documents but an Interrogatory. In
response, plaintiff identified numerous
documents beyond those recited by
defendant. Among the documents
defendant failed to mention are all of the
deposition transcripts taken in this matter.
During his deposition, plaintiff testified that
he saw ACCO employees disturbing
fireproofing in his presence at three of his
jobsites.(Deposition of Robert Ross,
volume 3, taken on July 14, 2011, pp.
361:4-22, 363:2 to 364:16, 366:19 to 367:7,
attached as Exhibit A to the Declaration of
Jamie A. Newbold.) Plaintiff further
testified that ACCO employees scraped the
fireproofing and further disturbed it by
shooting studs. (Deposition of Robert Ross,
TVD, taken on July 12, 2011, 77:21 to
78:12, attached as Exhibit A to the
Declaration of Jamie A. Newbold.)
Additionally, Mr. ROSS continuously
testified throughout his deposition his
ability to tell the difference which
fireproofing contained asbestos and which
fireproofing did not.

(Deposition of Robert Ross, Volume 2,
taken on July 13, 2011, pp. 263:16-19,
264:6 to 265:1, Vol. 3, taken July 14, 2011
pp. 468:3-17,544:22 to 546:13, Vol. 4,
taken on July 15, 2011, pp. 754:24 to
756:11, Vol. 8, taken on August 11, 2011,

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12. [sic] Plaintiff recalls ACCO was at a
Building in SF Mission District during his
first employment period with Consolidated,
1967-1972. He was there off and on for 3
weeks, He was insulating ACCO's duct
WOrk.

See Exhibit ] to the Declaration of Dennis
M. Young, 364:4 - 25

37. Plaintiff does not recall using ACCO's
tools or equipment at any jobsite.

See Exhibit I to the Declaration of Dennis
M. Young, 361: 23-25; 364:1 —365: 15;
368:14-21

38. ACCO did not give him any
instructions other than where to start
working or what locations were important
for completion.

See Exhibit | to the Declaration of Dennis
M. Young, 361: 23-25; 364:1 —-365: 15:
368:14-21

39. Plaintiff testified that his employer,
Consolidated, was a subcontractor to
ACCO while he worked at the K Mart job
in Vallejo, CA

See, Exhibit I to the Declaration of Dennis
M. Young, 362:1-3; 363:16-18

40. Plaintiff testified that ACCO was
installing Durodyne flex connectors at the
K Mart job.

See Exhibit | to the Declaration of Dennis
M. Young, 369:7-10

41. Plaintiff testified that his employer,
Consolidated, was a subcontractor to
ACCO while he worked for three weeks
sometime from 1967 to 1972 at an
unidentified building in the Mission District
in San Francisco, CA.

See Exhibit | to the Declaration of Dennis
M. Young, 363:8-364-:23

dif

Kainjured b2Aigldss ACCHEA wpa

pp. 1665:1-13 , attached as Exhibit A to the
Declaration of Jamie A. Newbold.)

12, Undisputed.

37. Undisputed but irrelevant. This fact
has no tendency in reason to prove Mr.
ROSS was not exposed to asbestos from the
negligent conduct of ACCO’s employees.

38. Undisputed but irrelevant. This fact
has no tendency in reason to prove Mr.
ROSS was not exposed to asbestos from the
negligent conduct of ACCO’s employees.

39. Undisputed.

40. Undisputed.

41. Undisputed.

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42, Plaintiff testified that ACCO was
installing duct at the Mission District
building site.

See Exhibit ] to the Declaration of Dennis
M. Young, 364:24-365:4

43. Plaintiff testified that ACCO was
disturbing fireproofing at John Muir.

See Exhibit ] to the Declaration of Dennis
M. Young, 367:2-7

44, Plaintiff testified that his employer,
Insulation Specialties, was a subcontractor
to ACCO while he worked for two weeks in
isl at John Muir Hospital in Concord,

See Exhibit | to the Declaration of Dennis
M. Young, 366:19-368-:3

45. Plaintiff testified that ACCO did their
own sweeping up at each of these sites.

See Exhibit | to the Declaration of Dennis
M. Young, 369:2-8

46. Plaintiff believed the fireproofing
ACCO disturbed was asbestos containing
because old fireproofing looked different
from new fireproofing, and old fireproofing
was always used during that time.

Exhibit I to the Declaration of Dennis M.
Young, 544: 22-546: 13

47, Plaintiff wore a mask throughout his
career

See Exhibit I to the Declaration of Dennis
M. Young, 458: 7- 15

Kainjured b2Aigldss ACCHEA wpa

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42. Undisputed.

43. Undisputed.

44. Undisputed.

45. Undisputed.

46. Undisputed. Additionally, Mr. ROSS
testified throughout his deposition the
ability to tell the difference between
asbestos-containing and non-asbestos
containing fireproofing.

(Deposition of Robert Ross, Volume 2,
taken on July 13, 2011, pp. 263:16-19,
264:6 to 265:1, Vol. 3, taken July 14, 2011
pp. 468:3-17,544:22 to 546:13, Vol. 4,
taken on July 15, 2011, pp. 754:24 to
756:11, Vol. 8, taken on August 11, 2011,
pp. 1665:1-13 , attached as Exhibit A to the
Declaration of Jamie A. Newbold.)

47. Undisputed but irrelevant. Defendant
has offered no evidence that wearing a
paper mask was effective in preventing
exposure. There is no showing of whether
any mask worn by plaintiff was designed to
be or was protective of airborne asbestos
fibers, that it was worn in such a way as to
prevent exposure to asbestos fibers, that it
was worn In conjunction with protective
clothing and wash down procedures
necessary fo prevent exposure to asbestos
fibers which would otherwise land on

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48. Plaintiff joined the Asbestos Workers
Heat & Frost Insulators Union in 1959.

See Exhibit I to the Declaration of Dennis
M. Young.17: 15— 23 ; 31:10-25

Dated: 425/13

Kainjured b2Aigldss ACCHEA wpa

plaintiff's clothing, skin and hair and cause
exposures when an otherwise effective
mask was removed.

48. Undisputed but irrelevant. This fact
has no tendency in reason to demonstrate
that Mr. ROSS had a sophistication at any
time. It fails to set forth what training, if
any, Mr. ROSS received regarding asbestos
hazards, including what type of “hazards”
of asbestos were known or knowable, what
diseases could result, what levels of
asbestos exposure were dangerous, or how
one was exposed to the same which would
result in an asbestos-related discase.

It is further irrelevant in that even if
there was no duty to warn plaintiff of the
dangers of asbestos, defendant remains
liable for its own negligence in causing
plaintiff's exposure to asbestos.

BRAYTON*PURCELL LLP

By: /s/ Jamie A. Newbold

Jamie A. Newbold
Attorneys for Plaintiffs

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