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

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                                BRAYTON*PURCELL LLP

Co em NY KD A BY

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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

ROBERT ROSS and JEAN ROSS,

Plaintiffs,
PLAINTIFFS' RESPONSE TO
DEFENDANT COMMAIR MECHANICAL
SERVICES’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 COMMAIR
MECHANICAL SERVICES’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 AND

ALLEGED SUPPORTING EVIDENCE PLAINTIFFS' RESPONSE/EVIDENCE
1. Plaintiffs filed a Complaint for Damages 1. Undisputed.
(Asbestos-Personal Injury) on December 2,

010.

Plaintiffs’ Personal Injury Complaint,
attached to the Declaration of Tina Yim as
Exhibit A.

Ket opie COMBIAR ups 1 ory
PLAITITTS! RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTEDCo em YW KD hw BR YY

10

2. The Third Amended Complaint was
filed on May 11, 2012.

Plaintiffs’ Third Amended Complaint,
attached to the Declaration of Tina Yim as
Exhibit B.

3. The Complaint for Damages asserts
causes of action in both survivorship and
wrongful death against COMMAIR for
Negligence, Strict Liability, Loss of
Consortium and Premise
Owner/Contractor Liability.

Plaintiffs’ Personal Injury Complaint, pp. 2,
51-53, attached to the Declaration of Tina
Yim as Exhibit B.

4, COMMAIR filed its Answer, denying
each of Plaintiffs’ claims.

COMMAIR’s Answer to Complaint,
attached to the Declaration of Tina Yim as
Exhibit C.

5, Plaintiff Robert Ross joined Local 16 of
the International Association of Heat and
Frost Insulators and Asbestos Workers
Union (“Asbestos Workers Union’) as an
apprentice in 1959.

Deposition of Robert Ross, February 22,
2008, pp. 571:18-571:22, attached to the
Declaration of Tina Yim as Exhibit D.

6. As an apprentice, he took courses and
did hands-on training.

eposition of Robert Ross, February 22,
2008, pp. 572:8-572:11, attached to the
Declaration of Tina Yim as Exhibit D.

7. Plaintiff also received union publications
and attended union meetings as a union
member.

Ket opie COMBIAR ups 2

2. Undisputed.

3. Undisputed however plaintiffs have
dismissed the cause of action for products
liability.

4. Undisputed.

5. Undisputed.

6. Undisputed. However, this fact has no
tendency in reason to demonstrate that
plaintiff had a sophistication at any time.
Defendant has produced no evidence that
the courses and hands-on training Mr. Ross
took as an apprentice 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 courses and particularly with
regard to what, if any, training plaintiff
received with respect to asbestos hazards.
Although plaintiff was examined rogarding
the duration of the program and the length
and frequency of classes, defendant never
inquired of plaintiff regarding the substance
of his training.

7. Undisputed. However, this fact has no

tendency in reason to demonstrate that
plaintiff had a sophistication at any time.

Opn

PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:Co em YW KD hw BR YY

10

Deposition of Robert Ross, February 22,
2008, pp. 579:1-579:3, attached to the
Declaration of Tina Yim as Exhibit D.

8. All union members were sent copies of
the Union’s official journal, entitled Zhe
Asbestos Worker.

Declaration of Jeffrey Birkner, Jf 1-9, 12,
22-23

9. Plaintiff himself indicates that he learned
about the hazards of asbestos in the 1960’s.

Defendant’s Interrogatories to Plaintiff, No.
28, pp. 15:16, attached to the Declaration of
Tina Yim as Exhibit E.

Plaintiff's Answers to Interrogatories, No.
28, pp. 105:18, attached to the Declaration
of Tina Yim as Exhibit L.

10. The Asbestos Workers Union was
aware of the hazards of asbestos since 1957.
Through their newsletter, The Asbestos
Worker, they reported in April of 1957:

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 men had
definite symptoms of the aforementioned
hazards of our trade. Most of the locals in
attendance spoke on this vital subject...At

Kkinjurnd.t 9246 pldess COMMAR.wpd

3

Defendant has produced no evidence that
attending union meetings or receiving union
publications 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
publications and meetings and particularly
with regard to what, if any, specialized
information and traming Mr. ROSS gleaned
with respect to asbestos hazards.

8. Disputed. The evidence cited in support
of this “fact” is inadmissible, See
plaintiffs’ evidentiary objections filed
concurrently herewith. Additionally, this
fact has no tendency in reason to prove Mr.
ROSS had a sophistication at any time.
Defendant has produced no evidence that
receiving union publications 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
publications and particularly with regard to
what, if any, specialized information and
training Mr. ROSS gleaned with respect to
asbestos hazards from these publications.

9, Undisputed but 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 causin
plaintiff's exposure to asbestos. This aot is
further irrelevant in that it fails to set forth
what type of “hazards” of asbestos, what
iseases could result, what levels of
asbestos exposure were dangerous, or how
one was exposed to the same which would
result in the undefined “hazards” referred to
in this fact.

0. Disputed to the extent this fact is
supported by evidence that is inadmissible
based on the lack of authentication. (See
plaintiffs evidentiary objections filed
concurrently herewith.) This fact further
ails to show that plaintiff ever received,
read or had the opportunity to read this
magazine as he did not join the Union until
959, two (2) years after the publication of
his magazine.

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in

Opn

PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:CO OW YN DR A BY De

RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS

this time a motion was made, seconded and
passed that the international continue to
investigate that causes of Asbestosis and
allied lung ailments caused by fibrous
materials and to determine what measures
can be found to combat and prevent these
diseases.

Declaration of Jeffrey Birkner, 16.

11. Later that same year, in October of
1957, reporting on the 19th International
Convention, The Asbestos Worker again
advised its members:

Health Hazards: Being well aware of the
health hazards in the Asbestos Industry,
President Sickles requested for the General
Executive Board to make a study of the
health hazards, with authority to appoint
subcommittees and with the authority to
employee the services of such medial
authorities, that will enable the board to
adopt any policies that will tend to protect
the ealth of our International membership.

Declaration of Jeffrey Birkner, § 17.

12. By April of 1958, The Asbestos
Worker reported that, “The health hazards
of the trade were discussed and Local No.
16 presented ifs case relative to the vital
‘capacity test’ given through its health and
welfare program... The results are ver
startling and should be the concern of each
member of our trade.”

Declaration of Jeffrey Birkner, § 18.

Kkinjurnd.t 9246 pldess COMMAR.wpd

4

the undefined “hazards” referred to in this
act.

Also, it does not have any bearing
on plaintiffs own knowledge of the hazards
of asbestos. Defendant further offers no
evidence that plaintiff was at the Western
States Conference.

Finally, it is 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.

11. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)
It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine as he did not join the
Union until 1959, two (2) years after the
publication of this magazine.
it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in
the undefined “hazards” referred to in this
‘act.

Also, it does not have any bearing
on plaintiff's own knowledge of the hazards
of asbestos. Defendant offers no evidence
that plaintiff read the publication or was at
the 19" International Convention.

Finally, it is 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
plaintiffs exposure to asbestos.

12. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)

It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine as he did not join the
Union until 1959, one (1) year after the
publication of this magazine.

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos

Opn

PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:Co em YW KD hw BR YY

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13. In 1964 The Asbestos Worker reported
on the findings from Dr. Irwin Selikoff,
who analyzed the results of a number of
studies or cancers in asbestos workers: “In
addition, an unexpectedly large number of
men died of cancer of the stomach, colon or
rectum (29 compared with 9.4
expected)...after reviewing the problem and
adding data of his own, concluded that lung
cancer was a specific industrial hazard of
heavily exposed asbestos workers.”

Declaration of Jeffrey Birkner, 4 19.

14. Merle Steele, a former insulator for
Local 16, learned of the hazards of asbestos
in 1964.

Declaration of Jeffrey Birkner, 9 20-22.

Kkinjurnd.t 9246 pldess COMMAR.wpd

5

exposure were dangerous, or how one was
exposed to the same which would result in
u e undefined “hazards” referred to in this
‘act.
Also, it does not have any bearing
on plaintiff's own knowledge of the hazards
of asbestos.
Finally, it is 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.

3. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)
It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine.
It additionally fails to include what
type of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in
i e undefined “hazards” referred to in this
‘act.

Also, it does not have any bearing
on plaintiff’s own knowledge of the hazards
of asbestos.
Finally, it is irrelevant in that even if

ere was no duty to warn plaintiff of the
angers of asbestos, defendant remains
iable for its own negligence in causing
plaintiff’s exposure to asbestos.

4. Undisputed but irrelevant. This fact

as no tendency in reason to prove Mr.
ROSS had a sophistication in any way with
respect to the hazards of asbestos. It further
fails to include what type of “hazards” of
asbestos, what diseases could result, what
evels of asbestos exposure were dangerous,
or how one was exposed to the same which
would result in the undefined “hazards”
referred to in this fact.

't also fails to show what, if
anything, Mr. ROSS knew about the
hazards of asbestos.

Finally, it is irrelevant in that even if
there was no duty to warn plaintiff of the
dangers of asbestos, defendant remains
iable for its own negligence in causing
laintiff’s exposure to asbestos.

Opn

PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:Co em YW KD hw BR YY

10

15. Mr. Steele learned of the hazards of
asbestos from reading The Asbestos
Worker, the quarterly newsletter sent to him
by his union, Local 16.

Declaration of Jeffrey Birkner, § 22.

16. It is clear that the Asbestos Workers
Union knew of the hazards of asbestos
since 1957, and published such knowledge
through its newsletter, The Asbestos
Worker.

Declaration of Jeffrey Birkner, 4 23.

17, Plaintiffs’ written discovery contends
that Mr. Ross worked around COMMAIR
sheet metal workers when he worked at
US. Dept. of Agriculture in Albany,
California and at an unknown location on
the San Francisco Peninsula sometime
between the years of 1967 and 1972.

Defendant’s Standard Interrogatories to
Plaintiff, No. 26, pp. 12:19-13:9, attached
to the Declaration of Tina Yim as Exhibit
E.

Kkinjurnd.t 9246 pldess COMMAR.wpd

6

5, Undisputed but irrelevant. This fact

as no tendency in reason to prove Mr.

OSS had a sophistication in any way with
respect to the hazards of asbestos. It further
fails to include what type of “hazards” of
asbestos, what diseases could result, what
evels of asbestos exposure were dangerous,
or how one was exposed to the same which
would result in the undefined “hazards”
referred to in this fact.

It also fails to show what, if
anything, Mr. ROSS knew about the

azards of asbestos.

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

6. Disputed. The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in
the undefined “hazards” referred to in this

‘act.

Even if the evidence was
admissible, it does not have any bearing on
plaintiff's own knowledge of the hazards of
asbestos. Defendant offers no evidence that
plaintiff read the publications cited to.

Finally, it is 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
plaintiffs exposure to asbestos.

17. Undisputed.

Opn

PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:Co em YW KD hw BR YY

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Plaintiff's Supplemental/Amended Answers
to Interrogatories, No. 26, pp. 53:1-53:12,
attached to the Declaration of Tina Yim as
Exhibit F.
COMMAIR’s Special Interrogatories to
Plaintiffs, No. 16, pp. 4:1-4:3, attached to
the Declaration of Tina Yim as Exhibit G.

Plaintiffs’ Responses to COMMAIR’s
Special Interrogatories, No. 16, pp. 4:20-
7:6, attached to the Declaration of Tina Yim
as Exhibit H.

COMMAIR’s Special Interrogatories to
Plaintiffs, No. 28, pp. 6:8-6:10, attached to
the Declaration of Tina Yim as Exhibit G.

Plaintiffs’ Responses to COMMAIR’s
Special Interrogatories, No. 28, pp. 17:18-
19:28, attached to the Declaration of Tina
Yim as Exhibit H.

COMMAIR’s Special Interrogatories to
Plaintiffs, No. 34, pp. 7:1-7:3, attached to
the Declaration of Tina Yim as Exhibit G.

Plaintiffs’ Responses to COMMAIR’s
Special Interrogatories, No. 34, pp. 24:2-
26:11, attached to the Declaration of Tina
Yim as Exhibit H.

8. Mr. Ross testified that Mr. Ross
worked around COMMAIR sheet metal
workers when he worked at U.S. Dept. of
Agriculture in Albany, California and at an
unknown location on the San Francisco
Peninsula sometime between the years of
967 and 1972.

Deposition of Robert Ross, July 15, 2011,
pp. 631:10-631:13, 632:21-633:1, 642:8-
642:19, 646:9-648:20, 649:20-650:23,
654:17-655:2, 655:18-655:23, attached to
the Declaration of Tina Yim as Exhibit J.

9. Mr. Ross recognized that the
fireproofing had contained asbestos based.
on the appearance, and his knowledge that
older fireproofing contained asbestos from
his work at jobsites.

Deposition of Robert Ross, July 14, 2011,

pp. 467:6-468:13, 543:17-546:14, attached
to the Declaration of Tina Yim as Exhibit 1.

Kkinjurnd.t 9246 pldess COMMAR.wpd

7

18. Undisputed.

19. Undisputed.

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PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:Co em YW KD hw BR YY

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20. COMMAIR requested all facts in
support of Plaintiffs’ cause of action for
Strict Liability.

COMMAIR BUILDERS, INC.’S Special
Interrogatories to Plaintiff, No. 22, pp.
5:18-5:20, attached to the Declaration of
Tina Yim as Exhibit G.

21. In response to Special Interrogatory No.

22, Plaintiffs simply state they “have no
information responsive to this
Interrogatory.”

Plaintiffs’ Response to Special
interrogatories No. 22, pp. 11:6-11:12,
attached to the Declaration of Tina Yim as
Exhibit H.

22. Mr. Ross testified at deposition that he
did not receive any materials from
COMMAIR.

Deposition of Robert Ross, July 15, 2011,
pp. 644:24-645:4, attached to the
Declaration of Tina Yim as Exhibit J.

23. It was stipulated that Jean Ross has no
roduct identification testimony against any
defendant in this case.

Deposition of Jean Ross, pp. 33:11-33:18,
attached to the Declaration of Tina Yim as
Exhibit K.

20. Undisputed.

21. Undisputed but irrelevant. This fact is
moot as plaintiffs have dismissed the cause
of action for products liability.

22. Undisputed but irrelevant. Whether
Mr. ROSS received any materials from
COMMAIR has no tendency in reason to
prove Mr. ROSS was not exposed to
asbestos from the negligent conduct of
COMMAIR.

23. Undisputed.

MOTION FOR SUMMARY ADJUDICATION
PLAINTIFF’S FIRST CAUSE OF ACTION

(Negligence)

Issue 1:

Plaintiffs’ First Cause of Action for Negligence fails as a matter of law

because Plaintiff Robert Ross is a sophisticated user charged with the knowledge of
working with or around the hazards of asbestos. (Johnson v. American Standard, (2008) 43
Cal.4th 56.) Therefore, COMMAIR owes no duty to Plaintiff for the risks associated with

asbestos.

UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE

PLAINTIFFS' RESPONSE/EVIDENCE

1. Plaintiffs filed a Complaint for Damages
(Asbestos-Personal Injury) on December 2,
2010,

Plaintiffs’ Personal Injury Complaint,

attached to the Declaration of Tina Yim as
Exhibit A.

Kkinjurnd.t 9246 pldess COMMAR.wpd

1. Undisputed.

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PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:Co em YW KD hw BR YY

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2. The Third Amended Complaint was
filed on May 11, 2012.

Plaintiffs’ Third Amended Complaint,
attached to the Declaration of Tina Yim as
Exhibit B.

3. The Complaint for Damages asserts
causes of action in both survivorship and
wrongful death against COMMAIR for
Negligence, Strict Liability, Loss of
Consortium and Premise
Owner/Contractor Liability.

Plaintiffs’ Personal Injury Complaint, pp. 2,
51-53, attached to the Declaration of Tina
Yim as Exhibit B.

4, COMMAIR filed its Answer, denying
each of Plaintiffs’ claims.

COMMAIR’s Answer to Complaint,
attached to the Declaration of Tina Yim as
Exhibit C.

5, Plaintiff Robert Ross joined Local 16 of
the International Association of Heat and
Frost Insulators and Asbestos Workers
Union (“Asbestos Workers Union’) as an
apprentice in 1959.

Deposition of Robert Ross, February 22,
2008, pp. 571:18-571:22, attached to the
Declaration of Tina Yim as Exhibit D.

6. As an apprentice, he took courses and
did hands-on training.

eposition of Robert Ross, February 22,
2008, pp. 572:8-572:11, attached to the
Declaration of Tina Yim as Exhibit D.

7. Plaintiff also received union publications
and attended union meetings as a union
member.

Keisd otto COMMARWpd 9

2. Undisputed.

3. Undisputed however plaintiffs have
dismissed the cause of action for products
liability.

4. Undisputed.

5. Undisputed.

6. Undisputed. However, this fact has no
tendency in reason to demonstrate that
plaintiff had a sophistication at any time.
Defendant has produced no evidence that
the courses and hands-on training Mr. Ross
took as an apprentice 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 courses and particularly with
regard to what, if any, training plaintiff
received with respect to asbestos hazards.
Although plaintiff was examined rogarding
the duration of the program and the length
and frequency of classes, defendant never
inquired of plaintiff regarding the substance
of his training.

7. Undisputed. However, this fact has no

tendency in reason to demonstrate that
plaintiff had a sophistication at any time.

Opn

PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:Co em YW KD hw BR YY

10

Deposition of Robert Ross, February 22,
2008, pp. 579:1-579:3, attached to the
Declaration of Tina Yim as Exhibit D.

8. All union members were sent copies of
the Union’s official journal, entitled Zhe
Asbestos Worker.

Declaration of Jeffrey Birkner, Jf 1-9, 12,
22-23

9. Plaintiff himself indicates that he learned
about the hazards of asbestos in the 1960’s.

Defendant’s Interrogatories to Plaintiff, No.
28, pp. 15:16, attached to the Declaration of
Tina Yim as Exhibit E.

Plaintiff's Answers to Interrogatories, No.
28, pp. 105:18, attached to the Declaration
of Tina Yim as Exhibit L.

10. The Asbestos Workers Union was
aware of the hazards of asbestos since 1957.
Through their newsletter, The Asbestos
Worker, they reported in April of 1957:

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 men had
definite symptoms of the aforementioned
hazards of our trade. Most of the locals in
attendance spoke on this vital subject...At

Kkinjurnd.t 9246 pldess COMMAR.wpd

10

Defendant has produced no evidence that
attending union meetings or receiving union
publications 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
publications and meetings and particularly
with regard to what, if any, specialized
information and traming Mr. ROSS gleaned
with respect to asbestos hazards.

8. Disputed. The evidence cited in support
of this “fact” is inadmissible, See
plaintiffs’ evidentiary objections filed
concurrently herewith. Additionally, this
fact has no tendency in reason to prove Mr.
ROSS had a sophistication at any time.
Defendant has produced no evidence that
receiving union publications 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
publications and particularly with regard to
what, if any, specialized information and
training Mr. ROSS gleaned with respect to
asbestos hazards from these publications.

9, Undisputed but 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 causin
plaintiff's exposure to asbestos. This aot is
further irrelevant in that it fails to set forth
what type of “hazards” of asbestos, what
iseases could result, what levels of
asbestos exposure were dangerous, or how
one was exposed to the same which would
result in the undefined “hazards” referred to
in this fact.

0. Disputed to the extent this fact is
supported by evidence that is inadmissible
based on the lack of authentication. (See
plaintiffs evidentiary objections filed
concurrently herewith.) This fact further
ails to show that plaintiff ever received,
read or had the opportunity to read this
magazine as he did not join the Union until
959, two (2) years after the publication of
his magazine.

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in

Opn

PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:CO OW YN DR A BY De

RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS

this time a motion was made, seconded and
passed that the international continue to
investigate that causes of Asbestosis and
allied lung ailments caused by fibrous
materials and to determine what measures
can be found to combat and prevent these
diseases.

Declaration of Jeffrey Birkner, 16.

11. Later that same year, in October of
1957, reporting on the 19th International
Convention, The Asbestos Worker again
advised its members:

Health Hazards: Being well aware of the
health hazards in the Asbestos Industry,
President Sickles requested for the General
Executive Board to make a study of the
health hazards, with authority to appoint
subcommittees and with the authority to
employee the services of such medial
authorities, that will enable the board to
adopt any policies that will tend to protect
the ealth of our International membership.

Declaration of Jeffrey Birkner, § 17.

12. By April of 1958, The Asbestos
Worker reported that, “The health hazards
of the trade were discussed and Local No.
16 presented ifs case relative to the vital
‘capacity test’ given through its health and
welfare program... The results are ver
startling and should be the concern of each
member of our trade.”

Declaration of Jeffrey Birkner, § 18.

Kkinjurnd.t 9246 pldess COMMAR.wpd

i

the undefined “hazards” referred to in this
act.

Also, it does not have any bearing
on plaintiffs own knowledge of the hazards
of asbestos. Defendant further offers no
evidence that plaintiff was at the Western
States Conference.

Finally, it is 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.

11. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)
It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine as he did not join the
Union until 1959, two (2) years after the
publication of this magazine.
it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in
the undefined “hazards” referred to in this
‘act.

Also, it does not have any bearing
on plaintiff's own knowledge of the hazards
of asbestos. Defendant offers no evidence
that plaintiff read the publication or was at
the 19" International Convention.

Finally, it is 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.

12. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)

It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine as he did not join the
Union until 1959, one (1) year after the
publication of this magazine.

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos

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13. In 1964 The Asbestos Worker reported
on the findings from Dr. Irwin Selikoff,
who analyzed the results of a number of
studies or cancers in asbestos workers: “In
addition, an unexpectedly large number of
men died of cancer of the stomach, colon or
rectum (29 compared with 9.4
expected)...after reviewing the problem and
adding data of his own, concluded that lung
cancer was a specific industrial hazard of
heavily exposed asbestos workers.”

Declaration of Jeffrey Birkner, 4 19.

14. Merle Steele, a former insulator for
Local 16, learned of the hazards of asbestos
in 1964.

Declaration of Jeffrey Birkner, 9 20-22.

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12

exposure were dangerous, or how one was
exposed to the same which would result in
u e undefined “hazards” referred to in this
‘act.
Also, it does not have any bearing
on plaintiff's own knowledge of the hazards
of asbestos.
Finally, it is 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.

3. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)
It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine.
It additionally fails to include what
type of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in
i e undefined “hazards” referred to in this
‘act.

Also, it does not have any bearing
on plaintiff’s own knowledge of the hazards
of asbestos.
Finally, it is irrelevant in that even if

ere was no duty to warn plaintiff of the
angers of asbestos, defendant remains
iable for its own negligence in causing
plaintiff’s exposure to asbestos.

4. Undisputed but irrelevant. This fact

as no tendency in reason to prove Mr.
ROSS had a sophistication in any way with
respect to the hazards of asbestos. It further
fails to include what type of “hazards” of
asbestos, what diseases could result, what
evels of asbestos exposure were dangerous,
or how one was exposed to the same which
would result in the undefined “hazards”
referred to in this fact.

't also fails to show what, if
anything, Mr. ROSS knew about the
hazards of asbestos.

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

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10

15. Mr. Steele learned of the hazards of
asbestos from reading The Asbestos
Worker, the quarterly newsletter sent to him
by his union, Local 16.

Declaration of Jeffrey Birkner, § 22.

16. It is clear that the Asbestos Workers
Union knew of the hazards of asbestos
since 1957, and published such knowledge
through its newsletter, The Asbestos
Worker.

Declaration of Jeffrey Birkner, 4 23.

17, Plaintiffs’ written discovery contends
that Mr. Ross worked around COMMAIR
sheet metal workers when he worked at
US. Dept. of Agriculture in Albany,
California and at an unknown location on
the San Francisco Peninsula sometime
between the years of 1967 and 1972.

Defendant’s Standard Interrogatories to
Plaintiff, No. 26, pp. 12:19-13:9, attached
to the Declaration of Tina Yim as Exhibit
E.

Kkinjurnd.t 9246 pldess COMMAR.wpd

5, Undisputed but irrelevant. This fact

as no tendency in reason to prove Mr.

OSS had a sophistication in any way with
respect to the hazards of asbestos. It further
fails to include what type of “hazards” of
asbestos, what diseases could result, what
evels of asbestos exposure were dangerous,
or how one was exposed to the same which
would result in the undefined “hazards”
referred to in this fact.

It also fails to show what, if
anything, Mr. ROSS knew about the

azards of asbestos.

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

6. Disputed. The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in
the undefined “hazards” referred to in this

‘act.

Even if the evidence was
admissible, it does not have any bearing on
plaintiff's own knowledge of the hazards of
asbestos. Defendant offers no evidence that
plaintiff read the publications cited to.

Finally, it is 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
plaintiffs exposure to asbestos.

17. Undisputed.

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10

Plaintiff's Supplemental/Amended Answers
to Interrogatories, No. 26, pp. 53:1-53:12,
attached to the Declaration of Tina Yim as
Exhibit F.
COMMAIR’s Special Interrogatories to
Plaintiffs, No. 16, pp. 4:1-4:3, attached to
the Declaration of Tina Yim as Exhibit G.

Plaintiffs’ Responses to COMMAIR’s
Special Interrogatories, No. 16, pp. 4:20-
7:6, attached to the Declaration of Tina Yim
as Exhibit H.

COMMAIR’s Special Interrogatories to
Plaintiffs, No. 28, pp. 6:8-6:10, attached to
the Declaration of Tina Yim as Exhibit G.

Plaintiffs’ Responses to COMMAIR’s
Special Interrogatories, No. 28, pp. 17:18-
19:28, attached to the Declaration of Tina
Yim as Exhibit H.

COMMAIR’s Special Interrogatories to
Plaintiffs, No. 34, pp. 7:1-7:3, attached to
the Declaration of Tina Yim as Exhibit G.

Plaintiffs’ Responses to COMMAIR’s
Special Interrogatories, No. 34, pp. 24:2-
26:11, attached to the Declaration of Tina
Yim as Exhibit H.

8. Mr. Ross testified that Mr. Ross
worked around COMMAIR sheet metal
workers when he worked at U.S. Dept. of
Agriculture in Albany, California and at an
unknown location on the San Francisco
Peninsula sometime between the years of
967 and 1972.

Deposition of Robert Ross, July 15, 2011,
pp. 631:10-631:13, 632:21-633:1, 642:8-
642:19, 646:9-648:20, 649:20-650:23,
654:17-655:2, 655:18-655:23, attached to
the Declaration of Tina Yim as Exhibit J.

9. Mr. Ross recognized that the
fireproofing had contained asbestos based.
on the appearance, and his knowledge that
older fireproofing contained asbestos from
his work at jobsites.

Deposition of Robert Ross, July 14, 2011,

pp. 467:6-468:13, 543:17-546:14, attached
to the Declaration of Tina Yim as Exhibit 1.

Kkinjurnd.t 9246 pldess COMMAR.wpd

18. Undisputed.

19. Undisputed.

14

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20. COMMAIR requested all facts in
support of Plaintiffs’ cause of action for
Strict Liability.

COMMAIR BUILDERS, INC.’S Special
Interrogatories to Plaintiff, No. 22, pp.
5:18-5:20, attached to the Declaration of
Tina Yim as Exhibit G.

21. In response to Special Interrogatory No.

22, Plaintiffs simply state they “have no
information responsive to this
Interrogatory.”

Plaintiffs’ Response to Special
interrogatories No. 22, pp. 11:6-11:12,
attached to the Declaration of Tina Yim as
Exhibit H.

22. Mr. Ross testified at deposition that he
did not receive any materials from
COMMAIR.

Deposition of Robert Ross, July 15, 2011,
pp. 644:24-645:4, attached to the
Declaration of Tina Yim as Exhibit J.

23. It was stipulated that Jean Ross has no
roduct identification testimony against any
defendant in this case.

Deposition of Jean Ross, pp. 33:11-33:18,
attached to the Declaration of Tina Yim as
Exhibit K.

20. Undisputed.

21. Undisputed but irrelevant. This fact is
moot as plaintiffs have dismissed the cause
of action for products liability.

22. Undisputed but irrelevant. Whether
Mr. ROSS received any materials from
COMMAIR has no tendency in reason to
prove Mr. ROSS was not exposed to
asbestos from the negligent conduct of
COMMAIR.

23. Undisputed.

PLAINTIFF’S SECOND CAUSE OF ACTION
(Strict Liability)

Issue 2:

Plaintiff’s Second Cause of Action for Strict Liability fails as a matter of law

because Plaintiff has not established a triable issue of fact as to causation, i.e., Plaintiff has
no credible evidence that he was exposed to asbestos from any product distributed, sold,

manufactured or supplied by COMMAIR.

UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE

PLAINTIFFS' RESPONSE/EVIDENCE

24. Plaintiffs filed a Complaint for
Damages (Asbestos-Personal Injury) on
December 2, 2010.

Plaintiffs’ Personal Injury Complaint,
attached to the Declaration of Tina Yim as
Exhibit A.

dif

Kkinjurnd.t 9246 pldess COMMAR.wpd

24. Undisputed.

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25. The Third Amended Complaint was
filed on May 11, 2012.

Plaintiffs’ Third Amended Complaint,
attached to the Declaration of Tina Yim as
Exhibit B.

26. The Complaint for Damages asserts
causes of action in both survivorship and
wrongful death against COMMAIR for
Negligence, Strict Liability, Loss of
Consortium and Premise
Owner/Contractor Liability.

Plaintiffs’ Personal Injury Complaint, pp. 2,
51-53, attached to the Declaration of Tina
Yim as Exhibit B.

27, COMMAIR filed its Answer, denying
each of Plaintiffs’ claims.

COMMAIR’s Answer to Complaint,
attached to the Declaration of Tina Yim as
Exhibit C.

28. Plaintiff Robert Ross joined Local 16
of the International Association of Heat and
Frost Insulators and Asbestos Workers
Union (“Asbestos Workers Union’) as an
apprentice in 1959.

Deposition of Robert Ross, February 22,
2008, pp. 571:18-571:22, attached to the
Declaration of Tina Yim as Exhibit D.

29. As an apprentice, he took courses and.
did hands-on training.

eposition of Robert Ross, February 22,
2008, pp. 572:8-572:11, attached to the
Declaration of Tina Yim as Exhibit D.

30. Plaintiff also received union
publications and attended union meetings as
a union member.

Kkinjurnd.t 9246 pldess COMMAR.wpd

25. Undisputed.

26. Undisputed however plaintiffs have
dismissed the cause of action for products
liability.

27. Undisputed.

28. Undisputed.

29. Undisputed. However, this fact has no
tendency in reason to demonstrate that
plaintiff had a sophistication at any time.
Defendant has produced no evidence that
the courses and hands-on training Mr. Ross
took as an apprentice 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 courses and particularly with
regard to what, if any, training plaintiff
received with respect to asbestos hazards.
Although plaintiff was examined rogarding
the duration of the program and the length
and frequency of classes, defendant never
inquired of plaintiff regarding the substance
of his training.

30. Undisputed. However, this fact has no

tendency in reason to demonstrate that
plaintiff had a sophistication at any time.

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Deposition of Robert Ross, February 22,
2008, pp. 579:1-579:3, attached to the
Declaration of Tina Yim as Exhibit D.

31. All union members were sent copies of
the Union’s official journal, entitled Zhe
Asbestos Worker.

Declaration of Jeffrey Birkner, Jf 1-9, 12,
22-23

32. Plaintiff himself indicates that he
learned about the hazards of asbestos in the
1960's.

Defendant’s Interrogatories to Plaintiff, No.
28, pp. 15:16, attached to the Declaration of
Tina Yim as Exhibit E.

Plaintiff's Answers to Interrogatories, No.
28, pp. 105:18, attached to the Declaration
of Tina Yim as Exhibit L.

33. The Asbestos Workers Union was
aware of the hazards of asbestos since 1957.
Through their newsletter, The Asbestos
Worker, they reported in April of 1957:

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 men had
definite symptoms of the aforementioned
hazards of our trade. Most of the locals in
attendance spoke on this vital subject...At

Kkinjurnd.t 9246 pldess COMMAR.wpd

17

Defendant has produced no evidence that
attending union meetings or receiving union
publications 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
publications and meetings and particularly
with regard to what, if any, specialized
information and traming Mr. ROSS gleaned
with respect to asbestos hazards.

31. Disputed. The evidence cited in
support of this “fact” is inadmissible. See
plaintiffs’ evidentiary objections filed
concurrently herewith. Additionally, this
fact has no tendency in reason to prove Mr.
ROSS had a sophistication at any time.
Defendant has produced no evidence that
receiving union publications 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
publications and particularly with regard to
what, if any, specialized information and
training Mr. ROSS gleaned with respect to
asbestos hazards from these publications.

32. Undisputed but 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 causin
plaintiff's exposure to asbestos. This aot is
further irrelevant in that it fails to set forth
what type of “hazards” of asbestos, what
diseases could result, what levels of
asbestos exposure were dangerous, or how
one was exposed to the same which would
result in the undefined “hazards” referred to
in this fact.

33. Disputed to the extent this fact is
supported by evidence that is inadmissible
based on the lack of authentication. (See
plaintiffs evidentiary objections filed
concurrently herewith.) This fact further
fails to show that plaintiff ever received,
read or had the opportunity to read this
magazine as he did not join the Union until
1959, two (2) years after the publication of
this magazine.

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in

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PLAINTIFFS' RESPONSE TO DEFENDANT COMMAIR MECHANICAL SERVICES’S SEPARATE STATEMENT OF UNDISPUTED

FACTS:CO OW YN DR A BY De

RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS

this time a motion was made, seconded and
passed that the international continue to
investigate that causes of Asbestosis and
allied lung ailments caused by fibrous
materials and to determine what measures
can be found to combat and prevent these
diseases.

Declaration of Jeffrey Birkner, 16.

34. Later that same year, in October of
1957, reporting on the 19th International
Convention, The Asbestos Worker again
advised its members:

Health Hazards: Being well aware of the
health hazards in the Asbestos Industry,
President Sickles requested for the General
Executive Board to make a study of the
health hazards, with authority to appoint
subcommittees and with the authority to
employee the services of such medial
authorities, that will enable the board to
adopt any policies that will tend to protect
the ealth of our International membership.

Declaration of Jeffrey Birkner, § 17.

35. By April of 1958, The Asbestos
Worker reported that, “The health hazards
of the trade were discussed and Local No.
16 presented ifs case relative to the vital
‘capacity test’ given through its health and
welfare program... The results are ver
startling and should be the concern of each
member of our trade.”

Declaration of Jeffrey Birkner, § 18.

Kkinjurnd.t 9246 pldess COMMAR.wpd

18

the undefined “hazards” referred to in this
act.

Also, it does not have any bearing
on plaintiffs own knowledge of the hazards
of asbestos. Defendant further offers no
evidence that plaintiff was at the Western
States Conference.

Finally, it is 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.

34. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)
It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine as he did not join the
Union until 1959, two (2) years after the
publication of this magazine.
it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos
exposure were dangerous, or how one was
exposed to the same which would result in
the undefined “hazards” referred to in this
‘act.

Also, it does not have any bearing
on plaintiff's own knowledge of the hazards
of asbestos. Defendant offers no evidence
that plaintiff read the publication or was at
the 19" International Convention.

Finally, it is 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.

35. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)

It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine as he did not join the
Union until 1959, one (1) year after the
publication of this magazine.

it further fails to include what type
of “hazards” of asbestos, what diseases
could result, what levels of asbestos

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36. In 1964 The Asbestos Worker reported
on the findings from Dr. Irwin Selikoff,
who analyzed the results of a number of
studies or cancers in asbestos workers: “In
addition, an unexpectedly large number of
men died of cancer of the stomach, colon or
rectum (29 compared with 9.4
expected)...after reviewing the problem and
adding data of his own, concluded that lung
cancer was a specific industrial hazard of
heavily exposed asbestos workers.”

Declaration of Jeffrey Birkner, 4 19.

37. Merle Steele, a former insulator for
Local 16, learned of the hazards of asbestos
in 1964.

Declaration of Jeffrey Birkner, 9 20-22.

Kkinjurnd.t 9246 pldess COMMAR.wpd

19

exposure were dangerous, or how one was

exposed to the same which would result in

the undefined “hazards” referred to in this
‘act.

Also, it does not have any bearing
on plaintiff's own knowledge of the hazards
of asbestos.

Finally, it is 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.

36. Undisputed but irrelevant. Vague as to
“health hazards.” The evidence cited in
support of this fact is inadmissible based on
the lack of authentication. (See plaintiff's
evidentiary objections filed concurrently
herewith.)
It further fails to show that plaintiff
ever received, read or had the opportunity to
read this magazine.
It additionally fails to include what
type of “hazards” of asbest