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

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                                BRAYTON*PURCELL LLP
ATTORNEYS ATLAW
222 RUSH LANDING ROAD.

PO BOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 808-1555

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
ASHLEY J, BENSON, ESQ., S.B. #276326

BRAYTON¢PURCELL LLP FILED.
Superior Court of California,

Attorneys at Law County of San Francisco

222 Rush Landing Road

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

ROBERT ROSS and JEAN ROSS,

Plaintiffs,
PLAINTIFFS' RESPONSE TO
DEFENDANT A. TEICHERT & SON,
INC.’S SEPARATE STATEMENT OF
UNDISPUTED FACTS

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 A. TEICHERT & SON,
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.

SEPARATE STATEMENT IN SUPPORT OF TEICHERT’S
MOTION FOR SUMMARY JUDGMENT.

Teichert did not owe a duty to plaintiff Robert Ross based upon the sophisticated user
defense, pursuant to Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.

UNDISPUTED MATERIAL FACTS AND

ALLEGED SUPPORTING EVIDENCE PLAINTIFFS' RESPONSE/EVIDENCE

1, Plaintiffs allege that Robert Ross was 1. Undisputed.
exposed to asbestos at the Sacramento

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PLAINTIFFS’ RESPONSE TO DEFENDANT A. TEICHERT & SON, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCo em YW KD hw BR YY

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Convention Center in 1972-1973 when
laborers employed by Teichert swept up
asbestos-contaiming insulation that plaintiff
and other insulators installed in the boiler
room.

Teichert’s Special Interrogatories to
Plaintiffs (Set One), attached to the
Declaration of Josette D. Johnson in
Support of Motion for Summary
Adjudication (“Johnson Decl.”) as Exhibit
C at 3:2-10.

Plaintiffs’ Response to Teichert’s Special
Interrogatories, Set One, attached to the
Johnson Decl. as Exhibit D at 1:21-4:18.

2. Plaintiff Robert Ross testified that he
worked around laborers hired by Teichert at
the Sacramento Convention Center who
swept up asbestos block insulation and mud
that plaintiff and his crew cut and installed
in the boiler room.

Pertinent portions of the transcript of
deposition of plaintiff Robert Ross taken in
this action, attached to the Johnson Decl. as
Exhibit F at 56:2-7, 58:8-20.

3. Robert Ross joined the Asbestos
Workers, local 16 in San Francisco, in
March 1959.

Pertinent portions of the transcript of
deposition of plaintiff Robert Ross taken the
matter of Robert Ross v. Asbestos
Defendants, San Francisco County Superior
Court, case number 274099, attached to the
Johnson Decl. as Exhibit E at 571:18-22.

4, Robert Ross received both class room
and field traming in Asbestos Workers”
apprenticeship program.

Johnson Decl., Exhibit E at 572:8-11.

5. Robert Ross’ class-room instructor was
Richard Holmes.

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2. Undisputed.

3. Undisputed, but irrelevant. This fact has
no tendency in reason to demonstrate that
Mr. Ross had a sophistication at any time.
Defendant has produced no evidence that
joining the Local 16 provided specific
knowledge and training with respect to the
hazards of asbestos nor that Mr. Ross was
required to pass any exams exhibiting his
knowledge regarding the same.

4. Undisputed, but irrelevant. This fact has
no tendency in reason to demonstrate that
Mr. Ross had a sophistication at any time.
Defendant has produced no evidence that
receiving class room and field training from
the Asbestos Workers’ apprenticeship
program provided specific knowledge and
training with respect to the hazards of
asbestos nor that Mr. Ross was required to
pass any exams exhibiting his knowledge
regarding the same.

5. Undisputed, but irrelevant. This fact has

no tendency in reason to demonstrate that
Mr. Ross had a sophistication at any time.

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PLAINTIFFS' RESPONSE TO DEFENDANT A. TEICHERT & SON, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCO OW YN DR A BY De

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Johnson Decl., Exhibit F at 2364:15-
2365713.

Johnson Decl., Exhibit G at 95:4-15.

6. Robert Ross completed his
apprenticeship program in approximately
1962 or 1963.

Johnson Decl, Exhibit F at 2365:6-10.

7. Mr. Ross attended union meetings at least
once per year, and sometimes more often.

Johnson Decl., Exhibit E at 573:1-7.

8. Mr. Ross received the Asbestos Worker
Journal, although he denied reading it.

Johnson Decl., Exhibit F at 2365:22-2366:6.

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Defendant has produced no evidence that
receiving class room and field training from
the Asbestos Workers’ apprenticeship
program provided specific knowledge and
training with respect to the hazards of
asbestos nor that Mr. Ross was required to
pass any exams exhibiting his knowledge
regarding the same.

Additionally, the name of the instructor who
taught these classes is irrelevant. Defendant
has made no showing that this instructor, or
any other for that matter, taught Mr. Ross
anything about asbestos.

6. Undisputed, but irrelevant. This fact has
no tendency in reason to demonstrate that
Mr. Ross had a sophistication at any time.
Defendant has produced no evidence that
receiving class room and field training from
the Asbestos Workers’ apprenticeship
program provided specific knowledge and
training with respect to the hazards of
asbestos nor that Mr. Ross was required to
pass any exams exhibiting his knowledge
regarding the same.

7. Undisputed, but irrelevant. This fact has
no tendency in reason to demonstrate that
Mr. Ross had a sophistication at any time.
Defendant has produced no evidence that
regularly attending union meetings provided
specific knowledge and training with respect]
to the hazards of asbestos. Defendant fails
to produce any evidence with regard to the
content of the meetings, particularly with
regard to what, if any, training Mr. Ross
received with respect to asbestos hazards
during those meetings.

8. Undisputed but irrelevant. This fact has
no tendency in reason to demonstrate that
Mr. Ross had a sophistication at any time.
Defendant has produced no evidence that
receiving the Asbestos Worker Journal
provided specific knowledge and training
with respect to the hazards of asbestos.
Defendant even admits Mr. Ross stated he
did not read this journal. Defendant also
fails to produce any evidence with regard to
the content of the Asbestos Worker Journals
particularly with regard to what, if any,
training and information Mr. Ross received
from them with respect to asbestos hazards.

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9, Mr. Ross wore a mask throughout his

career as an insulator.

Johnson Decl., Exhibit E at 300:16-24.

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Additionally, this alleged “fact” does not

dispute the fact that p'

laintiff was exposed to

asbestos for which defendant is liable. Nor

does not equate to the

level of knowledge in

taking of required EPA certified exams

regarding and/or readi
the plaintiff had in Jol

ing MSDS sheets as
nson vy. American

Standard. Here there is no requirement,
Federal or otherwise, that Mr. Ross was
required to read any journal or publication o1

document regarding tl

e hazards of working

with or around asbestos.

Additionally, it is irre!

evant in that there is

no showing that the defendant knew at the

time of exposure that
of an asbestos union al
fact.

laintiff was a member
nd/or relied on that

Finally, it is irrelevant in that even. if there

was no duty to warn p

laintiff of the dangers

of asbestos, defendant remains liable for its
own negligence in causing decedent’s

exposure to asbestos.

9. Disputed as misleading. Additionally,
this fact has no tendency in reason to
demonstrate that Mr. Ross had a
sophistication at any time. Defendant has
failed to produce any evidence Mr. Ross
wore said mask because he had a

sophistication and the

time and was afraid of

the hazards of asbestos.

Further, Mr. Ross testified he did not wear a
mask in the beginning of his career.

Deposition of Robert Ross (SFSC No.
274099), 176:12-17 [Declaration of Ashley

J. Benson (“Benson D.

ecl.”), Exhibit 1.

Additionally, Mr. Ross further testified he
wore a mask because “asbestos and

fiberglass made [him]

cough”.

Deposition of Robert Ross (SFSC No.
274099), 301:15-17 [Declaration of Ashley

J. Benson (“Benson D

ecl.”), Exhibit 1].

Further, there is no showing of whether any
mask worn by plaintiff was designed to be ox
was protective of airborne asbestos fibers,
that tt 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

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PLAINTIFFS' RESPONSE TO DEFENDANT A. TEICHERT & SON, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCo em YW KD hw BR YY

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10. The Asbestos Workers Union, in
particular Local No. 16, was aware of the
hazards of asbestos by 1957.

Declaration of Howard Spielman “Spielman
Decl.” at 413 and Exhibits 1-9 thereto, filed
in Eugene Millard v. Associated Insulation
of California, Superior Court of the County
of San Francisco, case No, CGC-09-275091,
attached to the Johnson Deel. as Exhibit H;

Johnson Decl. as Exhibit I, at 142:7-143:10.

il. The April, 1957 issue of The Asbestos
Worker reported that, "The problems of
Asbestosis and Silicosis were discussed at
large [at the regular annual meeting of the
Western States Conference on February 9,
1957], stemming from the report of Local
No. 16, in which it was revealed that eleven
members passed away last year. A large
number of the men had definite symptoms of
the aforementioned hazards of our trade."

Spielman Deel., Exhibit 1 at pp. 19-22,
thereto;

Johnson Decl, Exhibit 1 at 142:7-143:10.

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exposure to asbestos fibers which would
otherwise land on plaintiffs clothing, skin
and hair and cause exposures when an
otherwise effective mask was removed.

10. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross"’s
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does
it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ross.

Additionally, there is no evidence as to what
hazards, diseases, dosages to cause said
diseases, how one gets exposed, or how one
protects themselves so as to prevent those
diseases were allegedly discussed or
addressed.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure fo asbestos and subsequent
asbestos-related injuries.

11. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross'’s
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does
it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ross. Defendant even admits Mr.
Ross stated he did not read this journal. [See
Defendant’s Separate Statement of
Undisputed Facts No. 8 above]

Additionally, there is no evidence as to what
“problems”, were allegedly discussed or
addressed.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers

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12. The October, 1957 issue of The
Asbestos Worker advised: "Health Hazards:
Being well aware of the health hazards in the
Asbestos industry, President Sickles
requested authority for the General
Executive Board to make a study of the
health hazards ...."

Spielman Decl., Exhibit 2 at pp. 19-22,
thereto;

13. The April, 1958 issue of The Asbestos
Worker noted: "The health hazards of the
trade were discussed and Local No. 16
presented its case relative to the vital
‘capacity test' given through its health and
welfare program .... The results are very
startling and should be the concern of each
member of our trade."

Spielman Decl., Exhibit 3 at pp. 20, 22,
thereto;

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of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure to asbestos and subsequent
asbestos-related injuries.

12. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross"’s
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does
it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ross. Defendant even admits Mr.
Ross stated he did not read this journal. [See
Defendant’s Separate Statement of
Undisputed Facts No. 8 above]

Further, even if taken at “face value,” Mr.
Sickles could not have been “well aware of
the health hazards” if he felt the need to
spend union. funds to study the “health
hazards.” Further, there is no evidence of
what “health hazards” Mr. Sickles was “well
aware of” and what “health hazards” were to
be the subject of the study.

Moreover, there is no evidence that
defendant knew or had any reason to know
that Mr. Ross had or should have had any
knowledge of the “health hazards” (by any
definition) of asbestos when its employees
exposed him to asbestos.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure fo asbestos and subsequent
asbestos-related injuries.

13. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr, Ross'’s
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does
it show what the purported “knowledge” of

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PLAINTIFFS' RESPONSE TO DEFENDANT A. TEICHERT & SON, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCO OW YN DR A BY De

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14. The May, 1959 issue of the Asbestos
Worker reported that, "Health Hazards
relating to our trade were discussed and
various types of respirators were presented
and the good points of each were brought
out."

Spielman Decl., Exhibit 4 at pp. 20-22; see
alsa Spielman Decl., Exhibit 5 at second to
last page thereof.

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the Union was attributed or transmitted to
the Mr. Ress. Defendant even admits Mr.
Ross stated he did not read this journal. [See
Defendant’s Separate Statement of
Undisputed Facts No. 8 above]

Additionally, there is no evidence as to what
“health hazards”, were allegedly discussed
or addressed. There is no evidence as to
what hazards, diseases, dosages to cause
said diseases, how one gets exposed, or how
one protects themselves so as to prevent
those diseases were allegedly discussed or
addressed.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr, Ross’s
exposure to asbestos and subsequent
asbestos-related injuries.

14. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross’’s
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does
it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ress. Defendant even admits Mr.
Ross stated he did not read this journal. [See
Defendant’s Separate Statement of
Undisputed Facts No. 8 above]

Additionally, there is no evidence as to what
“health hazards”, were allegedly discussed
or addressed. There is no evidence as to
what hazards, diseases, dosages to cause
said diseases, how one gets exposed, or how
one protects themselves so as to prevent
those diseases were allegedly discussed or
addressed.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure to asbestos and subsequent
asbestos-related injuries.

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PLAINTIFFS' RESPONSE TO DEFENDANT A. TEICHERT & SON, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCO OW YN DR A BY De

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15, The February, 1963 issue of the
Asbestos Worker included a three-page
article entitled "Progress Report on Health
Hazards,” which described the efforts
undertaken for a survey of lung diseases
among insulation workers in the Union and
emphasizing that "everyone has to be
examined - no one can be lefi out.”

Spielman Decl., Exhibit 6 at pp. 25-27;

16. The February, 1964 issue of the
Asbestos Worker included a one-page article
entitled "Insulation Workers' Lung Problems
Discussed at Meeting of American Medical
Association" which stated, 'Two years ago
our International undertook to stimulate
interest into research into health problems in
the insulation trade, which our men have
long known to exist.” It also noted that "the
American Medical Association requested
that a report of the studies so far completed
be made to its members.”

Spielman Decl., Exhibit 7 at p. 1.

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15. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross'’s
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does
it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ross. Defendant even admits Mr.
Ross stated he did not read this journal. [See
Defendant’s Separate Statement of
Undisputed Facts No. 8 above]

Additionally, there is no evidence as to what
“health hazards”, were allegedly discussed
or addressed. There is no evidence as to
what dosages to cause said diseases, how
one gets exposed, or how one protects
themselves so as to prevent those diseases
were allegedly discussed or addressed.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure to asbestos and subsequent
asbestos-related injuries.

16. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross's
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way docs
it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ross. Defendant even admits Mr.
Ross stated he did not read this journal. [See
Defendant’s Separate Statement of
Undisputed Facts No. 8 above]

Additionally, there is no evidence as to what
“research” or what “health problems”, were
allegedly discussed or addressed, There is no
evidence as to what hazards, diseases,
dosages to cause said diseases, how one gets
exposed, or how one protects themselves so

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17. The November, 1964 issue of The
Asbestos Worker provided a report from
Irving Silikoff, M_D., entitled "Asbestos
Exposure and Neoplasia," on the high rate of
jung cancer among asbestos workers,
concluding that "[industrial exposure to
asbestos by insulation workers, as studied
here, results in a marked increase in the
incidence of cancer of the lung.”

Spielman Decl., Exhibit 8 at p. 5-9; see also
Spielman Decl., Exhibit 9 at pp. 22, 26
[referencing report on “heath hazard
research program” given at Western States
Conference of Asbestos Workers.}.

18. Plaintiffs’ expert, Richard Cohen, MD,
has expressed the following opinions: (1)
“the medical and scientific literature makes
it clear that, at least as early as 1931, it was
known in the medical and scientific
community that breathing asbestos dust was
harmful and dangerous to human health" (2)
"jt was clear by 1952 that, regardless of the
setting, a person exposed to airborne
asbestos was at an increased risk of
developing cancer"; (3) in 1950s, "there was
a cancer concern not only for the asbestos
factory workers, but for other trades exposed
to asbestos working with asbestos containing
products,” including asbestos insulation
workers; (4) "Information was readily
available in the late 1950s and 1960s
concerning the health hazards of asbestos
exposure and the associated risk of
developing an asbestos-related disease”; and
(5) in 1964 Dr. Iriving Selikoff’s study
finding that a high proportions of asbestos

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as to prevent those diseases were allegedly
discussed or addressed.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure to asbestos and subsequent
asbestos-related injuries.

17. Disputed. The evidence offered is
inadmissible. See plaintiffs’ evidentiary
objections filed concurrently herewith.
Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross’’s
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does
it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ross. Defendant even admits Mr.
Ross stated he did not read this journal. [See
Defendant’s Separate Statement of
Undisputed Facts No. 8 above]

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure to asbestos and subsequent
asbestos-related injuries.

18. Undisputed.

This fact shows that defendant should have
known that exposing people to airborne
asbestos fibers would increase their risk of
disease. It would be up to the trier of fact to
determine whether this fact would support a
verdict with regard to the relative
contributory fault of plaintiff, if any. It does
not support any finding that the knowledge
of the dangers of asbestos was exclusive to
the union or to plaintiff, such that defendant
would have had no knowledge or reason to
know that it was creating a danger to others.

Additionally, this alleged “fact” does not
dispute the fact that Mr. Ross was exposed
to asbestos for which defendant is liable.
Nor does it have any bearing on Mr. Ross's
own knowledge of the hazards of asbestos or|
of asbestos content of materials to which he
was exposed by defendant. In no way does

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insulators had died from cancer compared to
the general population was “widely
circulatated in the mainstream medial
(newpapers).”

Declaration of Richard Cohen filed by
plaintiff in Betty Peterson, et al., v.
Associated Insulation of California,
Superier Court of the County of San
Francisco, case No. CGC-10-275498, at 4
7, 8h}, and 10, attached to the Johnson
Dect. as Exhibit J.

Declaration of Richard Cohen filed by
plaintiffs in John Casey et al., v. Asbestos
Defendants, Superior Court of the County of
San Francisco, case No. CGC-10-275517, at
| 20, 23, 27, and 29 attached to the Johnson
Deel. as Exhibit K.

19. Plaintiffs’ responses to Teichert’s
interrogatories requriring plaintiffs to state
all facts which support their claims against
Teichert state: “The hazards associated with
exposure to asbestos and the effect of
asbestos exposure on humans have been
well documented throughout this century.
As early as the 1930s there existed a wealth
of information available for defendant which
evidences that exposure to asbestos and
asbestos-containing products was a health
hazard.”

Johnson Deel., Exhibit D at 3:7-10;
Johnson Decl, Exhibit E at 8:10+15.

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it show what the purported “knowledge” of
the Union was attributed or transmitted to
the Mr. Ross.

Finally, it is irrelevant in that even if there
was no duty to warn Mr. Ross of the dangers
of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure to asbestos and subsequent
asbestos-related injuries.

19. Undisputed.

This fact shows that defendant should have
known that exposing people to airborne
asbestos fibers would increase their risk of
disease. It would be up to the trier of fact to
determine whether this fact would support a
verdict with regard to the relative
contributory fault of plaintiff, if any. It does
not support any finding that the knowledge
of the dangers of asbestos was exclusive to
the union or to plaintiff, such that defendant
would have had no knowledge or reason to
know that it was creating a danger to others.

Additionally, this fact has no tendency in
reason to demonstrate that Mr. Ross had
any sophistication at any time. Nor has
defendant produced any evidence with
respect to the same. This alleged “fact” does
not dispute the fact that Mr. Ross was
exposed to asbestos for which defendant is
liable. Nor does it have any bearing on

Mr. Ross's own knowledge of the hazards of
asbestos or of asbestos content of materials
to which he was exposed by defendant.

Further, there is no evidence as to what
“health hazard”, was allegedly discussed or
addressed. There is no evidence as to what
particular hazard(s), diseases, dosages to
cause said diseases, how one gets exposed,
or how one protects themselves so as to
prevent those diseases were allegedly
discussed or addressed.

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SEPARATE STATEMENT IN SUPPORT OF TEICHERT’S

MOTION FOR SUMMARY JUDGMENT

There is insufficient evidence to create a triable issue of material fact whether Plaintiff
was exposed to any asbestos-containing product for which defendant Teichert is responsible and
no triable issue of material fact as to causation in this asbestos-related personal injury action.

Teichert incorporates herein the above-
stated Undisputed Material Facts No. 1-2 as
though restated in full.

Teichert incorporates herein the evidence
supporting the above-stated Undisputed
Material Facts ]-2 as though restated in

full.

20. In response to Teichert’s special
interrogatory requiring plaintiff to identify
all individuals with information to support
his claims against Teichert, plaintiff
identified himself and “defendant’s Person
Most Knowledgeable,” but plaintiffs did not
identify any co-workers at the job site.

Johnson Deel., Exhibit C at 4:11-17;
Johnson Decl. Exhibit D at 5:26-6:11.

21. In response to Teichert’s special
interrogatory requiring plaintiff to identify
all documents that support his claims
against Teichert, plaintiff identified his own
deposition transcript, his own discovery
responses, and “all agreements and
contracts between defendant Teichert and
any general contractor, sub-contractor and
supplier who was present at any job sites
which plaintiff worked,” and other broad
categories of documents allegedly in the
custody of Teichert, such as “papers,
photographs, films, recordings, and
memoranda;” plaintiff produced no
documents showing Teichert employees
present at any job site with plaintiff,

Johnson Decl., Exhibit C at 4:18-26;
Johanson Decl. Exhibit D at 5:26-6:11.

22. Certified copies of construction records
related to the construction of the

KoAnjurod. £9340 phn ATEICH rsp sp

i

Plaintiffs incorporate herein the above-
responses to Teichert’s Undisputed Material
Facts No, 1-2 as though restated in full.

20. Undisputed, but irrelevant. Plaintiff
himself saw and identified Teichert laborers
sweeping up asbestos-containing materials
on at least one jobsite in the 1960s and
1970s, the Sacramento Convention Center.
[See Defendant’s Separate Statement of
Undisputed Facts Nos. | and 2 above.]

Further, plaintiff's testimony that Teichert
employees swept up asbestos-containing
materials in his presence is alone sufficient
to create a triable issue of fact for the jury to
decide, Plaintiff need only produce
coworkers when his testimony is not
sufficient as to create a triable issue of fact.

21. Undisputed, that plaintiffs so
responded, but disputed as to the
characterization of “broad categories of
documents” as improper argument.

Also, irrelevant. Plaintiff testified that he
saw and identified Teichert laborers
sweeping up asbestos-containing materials
on at least one jobsite in the 1960s and.
1970s, the Sacramento Convention Center.
(See Defendant’s Separate Statement of
Undisputed Facts Nos. | and 2 above.]

Further, plaintiff's testimony that Teichert
employees swept up asbestos-containin,
materials in his presence is alone sufficient
to create a triable issue of fact for the jury to
decide.

22. Disputed. This fact is not supported by
admissible evidence. These documents are

AIR

PLAINTIFFS' RESPONSE TO DEFENDANT A. TEICHERT & SON, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTSCo em YW KD hw BR YY

10

Sacramento Civic Center during the period unauthenticated as defendant submitted an

1965 to 1975 show that Teichert was not unsigned declaration. See plaintiffs’
the general contractor or subcontractor on evidentiary objections.
the job.

Even if this document were admissible, the
Johnson Decl., Exhibit M. fact assert does nothing more than create a
triable issue of fact as Mr. Ross testified
that he saw Teichert laborers sweeping up
asbestos-containing materials on at least
one jobsite in the 1960s and 1970s, the
Sacramento Convention Center. [See
Defendant’s Separate Statement of
Undisputed Facts Nos. 1 and 2 above.]

SEPARATE STATEMENT IN SUPPORT OF TEICHERT’S
MOTION FOR SUMMARY ADJUDICATION

_ . Adjudication Issue No. | — Plaintiffs’ Second cause of action for products liability has no
merit because there is no evidence that Plaintiff was exposed to asbestos from a product sold by,
or put into the stream of commerce by Teichert.

Teichert incorporates herein the above- This issue is moot as plaintiffs have
stated Undisputed Material Facts No. 1-2, dismissed the products liability cause of
and 20-22, as though restated in full. action against A. Teichert.

Teichert incorporates herein the evidence
supporting the above-stated Undisputed
Material Facts No. 1-2, and 20-22 as
though restated in full.

23. In response to Teichert’s special 23. This issue is moot as plaintiffs have
interrogatory requiring plaintiff to state all dismissed the products liability cause of
facts, witnesses and documents which action against A. Teichert.

support his strict products liability cause of
action, plaintiff objected only and failed to
state any facts.

Johnson Decl., Exhibit C at 10:16-11:7;
Johnson Decl., Exhibit D at 24:9-22.

Dated: _ April 25, 2013 BRAY TON*#PURCELL LLP

By: /s/ Ashley J. Benson.

‘Ashley J” Benson
Attomeys for Plaintiff

Keo onangitoe ATEICH app 2 ain
PLAINTIFFS’ RESPONSE TO DEFENDANT A. TEICHERT & SON, INC.’S SEPARATE STATEMENT OF UNDISPUTED FACTS