Motion-Secondary: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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BUTY J CURLIANOLLP
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JASON J. CURLIANO [SBN 167509]
GEORGE S. SULLIVAN [SBN 187793]

BUTY & CURLIANO LLP

555 — 12" Street, Suite 1280 ELECTRONICALLY
Oakland, California 94607 FILED
Tel: — 510,267,3000 Superior Court of Californi
Fax: 510.267.0117 County of San Francisco
Email: jasonc@butycurliano.com MAY 02 2013

jsullivan@butycurliano.com Clerk of the Court

BY: WILLIAM TRUPEK
Attorneys for Defendant Deputy Cle!

HAROLD BEASLEY PLUMBING & HEATING, INC,

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, No. CGC-10-275731

Plaintiffs, DEFENDANT HAROLD BEASLEY
PLUMBING & HEATING, INC.’S
REPLY BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

v.

C.C. MOORE & CO. ENGINEERS; et al.,
Date: May 8, 2013
Time: 9:30 a.m.
Dept: 503

Defendants.

Trial: June 10, 2013

ee ee el ae

L INTRODUCTION

Defendant Harold Beasley Plumbing & Heating, Inc. (“Beasley”) supported its motion for
summary judgment with affirmative evidence it did not breach the duty of care it owed plaintiff
Robert Ross. Mr. Ross was an asbestos worker and worked around plumbers Beasley employed on
three construction projects between 1961 and 1979. The declarations of James Beasley and Kyle
Dotson establish when Beasley’s plumbers created the alleged bystander hazards Beasley did not
know and should not have known its work created unreasonable risk to an asbestos worker wearing
a protective mask. Mr. Ross now makes the argument that even though he worked with massive
amounts of asbestos insulation day in and day out throughout his entire career, the plumbing work

of Beasley on these small projects somehow exposed him to asbestos and that Beasley knew or
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should have known to warn or take precautions for Mr. Ross’s benefit. Plaintiff advances this
argument even though Mr. Ross exposed the other trades on these projects to asbestos through his
own work with asbestos insulation.

Beasley also produced evidence which supports the conclusion that by 1961 members of the
asbestos workers’ union like Mr. Ross knew asbestos was a hazardous material and took
precautions when they expected to generate asbestos dust at commercial job sites. Beasley did not
produce this evidence in support of the sophisticated user defense. Instead, produced this evidence
and to define the scope of the duty a plumbing contractor like Beasley owed an asbestos worker
like Mr. Ross. Beasley shifted the burden of production to plaintiffs with respect to the breach of
duty element of their action.

Plaintiffs’ opposition papers do not show how Beasley should have reasonably foreseen
disturbing small amounts of existing fireproofing and insulation and fabricating gaskets could
proximately cause damage to an asbestos worker who was working with large amounts of asbestos
products and wearing a mask. The declaration of Dr. Richard Cohen is not competent or probative
because it broadly covers asbestos “state of the art.” Dr. Cohen’s declaration fails to address
whether Beasley could have reasonably foreseen its plumbing work created a bystander asbestos
azard for Mr. Ross. The Court should exclude Dr. Cohen's declaration, Without this declaration,
plaintiffs have no competent admissible evidence of what a small plumbing contractor like Beasley

knew or should have known regarding any hazard posed by bystander exposure to asbestos in the

960s and 1970s and what duty, if any, Beasley had to warn asbestos workers about the hazards of
their own products.
Il. LEGAL ANALYSIS

A BEASLEY SHIFTED THE BURDEN OF PRODUCTION

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Ca. (2001) 25 Cal.4" 826, 843.)

Beasley met its initial burden by negating the breach of duty element of plaintiffs’ negligence and

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contractor liability causes of action.

For Beasley to be liable for negligence, plaintiffs have to show that each time a Beasley
plumber disturbed purportedly asbestos-containing products around Mr. Ross it was reasonably
foreseeable that such acts could proximately cause damage to Mr. Ross. (Alva v. Cook (1975) 49
Cal.App.3d 899, 903.) The declarations of James Beasley and Kyle Dotson establish Beasley’s
plumbers acted with reasonable prudence and did not create an unreasonable risk for an asbestos
worker wearing a protective mask.

The declarations submitted by Beasley show:

1. Beasley was a small family-owned business contractor that performed plumbing services in
and around Napa and Solano Counties.

2. Beasley had no knowledge regarding the dangers or health hazards associated with asbestos
between 1961 and 1979.

3. In 1973 — six years after Beasley a plumber purportedly exposed Mr. Ross to asbestos from
gaskets — the International Agency for Research on Cancer found exposure to asbestos from gaskets
presented an inconceivably small risk.*

4. The first article addressing the release of asbestos from handling gaskets was not published
in a peer-reviewed industrial hygiene journal until 1991.5

5. The first article addressing the release of asbestos from the disturbance of fireproofing by
trades such as plumbers was not published in a peer-reviewed industrial hygiene journal until

1983.°

! Plaintiffs’ opposition states they will dismiss their strict liability cause of action.

? Declaration of James Beasley in Support of Defendant Harold Beasley Plumbing & Heating, Inc’s Motion
for Summary Judgment or, Alternatively, Summary Adjudication (“Beasley Decl.”), 2:12-15, 2:18-19, 2:24-
25, see also UMF Nos. 43 and 45.

3 Beasley Decl., 2:20-25, see also UMF Nos. 44-46.

* Declaration of Kyle Dotson in Support of Defendant Harold Beasley Plumbing & Heating, Inc.’s Motion
for Summary Judgment or, Alternatively, Summary Adjudication (“Dotson Decl.”), 3:5-6 , see also UMF
No. 8.

5 Dotson Decl., 3:78, see also UMF Nos. 49-50.

6 Dotson Decl., 3:12-16 see also UMF Nos. 51-52.

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This evidence demonstrates Beasley had no reason to believe between 1961 and 1979
disturbing fireproofing or using gaskets could cause or contribute to a bystander asbestos worker’s
risk of developing an asbestos-related disease. Beasley also shifted the burden of production by
demonstrating the asbestos hazards asserted by plaintiffs were known to the asbestos workers’
union when Beasley worked around Mr. Ross and by showing plaintiffs do not possess and cannot
reasonably obtain evidence Beasley should have known the dust its employees generated in Mr.
Ross’s presence created an asbestos hazard.

This evidence includes:

1. Mr. Ross’s testimony he wore a mask throughout his career as an asbestos worker from
1959 through the 1990s.’
2, Mr. Ross’s statement in his response to standard interrogatories he learned exposure to

asbestos was a potential health hazard during the 1960s.

3. Mr. Ross’s testimony that by 1979 he knew asbestos “was killing people.”®

4. Mr. Klimack’s testimony Local 16 was monitoring and reporting on asbestos-related
hazards by the late 1950s.'°

5. Mr. Klimack’s testimony he advised insulation contractors asbestos was hazardous and to
provide masks for their employees while he served as a Business Agent for Local 16 during 1960
and 1961."!

6. Confirmation plaintiffs do not possess and cannot reasonably obtain evidence showing

Beasley breached the duty of care it owed Mr. Ross by knowingly exposing him to asbestos-

7 Deposition of Robert Ross (SFSC No. 274099), 300:16-301:17, see also UMF No. 4.

Defendants’ Standard Interrogatories to Plaintiff (Personal Injury), Set 1, 15:16; Answers to
Interrogatories, 105:18, see also UMF No. 5, but see, e.g., Deposition of Robert Ross (SFSC No, 274099),
3026:23-3027:1.

° Deposition of Robert Ross (SESC No. 274099), 3026:23-3027:1, 3030:12-16.

'° Deposition of Arthur R. Klimack (In Re: Complex Asbestos Litigation), 617:14-620:14, 624:16-625:25,
640:25-644:4, 658:13-659:4, 659:16-661:6, 716:9-718:5, 729:20-730:25, 731:16-732:18, 1002:4-1003:8;
Deposition of Arthur Klimack (2006), 46:18-47:20, 49:6-52:25, see also UMF Nos. 15-36.

"| Deposition of Arthur R. Klimack (In Re: Complex Asbestos Litigation), 229:3-231:22, 236:2-239:9,
704:18-705:2, 780:19-781:3, 782:4-8.792:11-794:25, see also UMF Nos. 37-42.

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containing dust and debris.’”

The undisputed facts demonstrate Beasley’s plumbers acted with reasonable prudence under
the circumstances. Because the asbestos hazards asserted by plaintiffs were known to insulators
but not reasonably foreseeable to plumbers when Beasley worked around Mr. Ross, Beasley did not
breach any duty of care it owed Mr. Ross as a matter of law.

In Tucker v. Lombardo, the California Supreme Court describes the relationship between

reasonable foreseeability and negligence:

It is an elementary principle that negligence is gauged by the ability to
anticipate danger. [Reasonable] foresight of harm is essential to the concept of
negligence, and supplies the criterion for determining whether it exists in a
particular case, and reasonable foreseeability of harm is the fundamental basis
of the law of negligence. . . . On the other hand, one is not bound to foresee
every possible injury which might occur, or every possible eventuality, but
only those which were reasonably foreseeable; and one is not required to
anticipate against dangers which it is not his duty to avoid.

(Tucker v. Lombardo (1956) 47 Cal.2d 459, 464-465.)

Plaintiff have provided no evidence Beasley was aware or should have been aware it created
conditions that posed an asbestos hazard to Mr. Ross. (Cf. Edmonson Property Management v.
Kwock (2007) 156 Cal.App.4" 197, 202 [property manager knew child played without supervision
on roof of shed but did not act to prevent her fall].) “The fact that an accident occurred does not
give rise to a presumption that it was caused by negligence. Instead, the injured plaintiff must
establish sufficient facts or circumstances that support an inference of a breach of duty, to defeat a
summary judgment motion by a defendant that is asserting due care was exercised.” (Howard v.
Omni Hotels Management Corp. (2012) 203 Cal.App.4" 403, 432 (citation omitted).)

The declaration of Dr. Richard Cohen submitted in opposition to Beasley’s summary
judgment motion does not address the issue raised in Beasley’s motion for summary judgment:
whether Beasley knew or should have known the materials its plumbers disturbed contained
asbestos and created a hazard for Mr. Ross. Because Dr. Cohen’s declaration does not create a
triable issue of material fact with respect to the breach element of plaintiffs’ action against Beasley,

the Court should grant this motion for summary judgment.

2 UME Nos. 56-58.
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B. PLAINTIFFS’ SPECULATIVE EVIDENCE Dogs NOT CREATE A TRIABLE ISSUE
OF MATERIAL FACT

Beasley has shifted the burden of production to plaintiffs, who were obligated to provide
evidence which establishes there is a genuine issue of materials fact concerning Beasley’s
purported breach of the duty care it owed Mr. Ross. (Code Civ. Proc. § 437c (p)(2).) “An issue of
fact can only be created by a conflict of evidence. It is not created by speculation, conjecture,
imagination or guess work. Further, an issue of fact is not raised by cryptic, broadly phrased, and
conclusory assertions, or mere possibilities." (Yuzon v. Collins (2004) 116 Cal.App.4"" 149, 166
(citations and internal punctuation omitted).) An opposition to a summary judgment is “deficient
when it is essentially conclusionary, argumentative or based on conjecture and speculation. (Wiz
Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal. App.4" 1, 11 (citations omitted).) Dr.
Cohen’s declaration is purely speculative and does not contain reasoned analysis concerning the
issues raised in Beasley’s motion for summary judgment. Because Dr. Cohen’s declaration has no
evidentiary value, it cannot establish a triable issue of material fact.

1. Dr. Cohen’s Opinions Lack Factual Support

A person who qualifies as an expert may give testimony in the form of an opinion if the
subject matter of the opinion is sufficiently beyond the common experience that the expert’s
opinion would assist the trier of fact. (Evidence Code § 801(a)'*; Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4" 747, 770; Jennings v. Palomar Pomerado
Health Systems, Inc. (2003) 114 Cal.App.4" 1108, 1116.) Ifa witness qualifies as an expert under

'3 The basic foundation requirements for expert testimony are set forth in Evidence Code section 801,
which states:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to
such an opinion as is ...

(b) Based on matter (including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such matter as a basis for his
opinion.

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DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S REPLY BRIEF
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT28

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Evidence Code section 801(a), he does not possess carte blanche to set forth any opinion he
chooses (Jennings at 1116) because “even an expert witness cannot be permitted just to testify in a
vacuum about things the he might think could have happened” (Hyatt v. Sierra Boat Co. (1978) 79
Cal. App.3d 325, 337). As fully discussed in Beasley’s objections to plaintiffs’ evidence, Dr.
Cohen’s general opinions regarding the hazards associated with dust exposure are irrelevant, and
his opinions concerning when Beasley should have aware of “the hazards associated with asbestos
dust exposure” are speculative. (See Declaration of Richard Cohen, M.D., M.P.H., in Support of
Plaintiffs’ Opposition to Defendant Harold Beasley Plumbing & Heating, Inc.’s Motion for
Summary Judgment or, in the Alternative, Summary Adjudication (“Cohen Decl.”), 11:20-23, 12:7-
10, 16:24-27, 18:1-9, 18:15-19:2. 19:9-24.) Dr. Cohen repeatedly cites to California Industrial
Safety Orders published in the 1930s and 1950s to support his opinions Beasley knew or should
have known asbestos was hazardous by the 1960s. (Cohen Deel., 8:6-10:22, 16:27-17:26, 18:15-
19:24, Exs. 2-4.) The California Industrial Safety Orders and additional general asbestos “state of
the art” documents cited by Dr. Cohen are not relevant to Beasley’s knowledge during the 1960s
and 1970s of the bystander hazard created by disturbing fireproofing, insulation, or gaskets.
Therefore, Dr. Cohen’s generic opinions are not grounded in fact or supported by reasons. The
Court should exclude them pursuant to Evidence Code section 801(b). (Sargon Enterprises at 770,
716; Geffcken v. D’Andrea (2006) 137 Cal.App.4" 1298, 1310-1312 [trial judge properly excluded
speculative expert opinion mycotoxins caused plaintiffs’ injuries].)
2. Dr. Cohen’s Opinions Are Speculative

Dr. Cohen’s declaration lacks reasoned analysis. Dr. Cohen broadly concludes Beasley
should have aware of “the hazards associated with asbestos dust exposure” by the 1960s. (Cohen
Deel., 18:6-9, 19:9-11.) Dr. Cohen does not support this general opinion with any information
relating to Beasley or describe the asbestos hazards Beasley should have known of and addressed.
More important, Dr. Cohen’s declaration does not explain how Beasley should have known in the
1960s and 1970s that potential bystander exposure to asbestos created a hazard for an asbestos
worker who was personally working with asbestos materials and wearing a protective mask. Dr.

Cohen makes no effort to connect his opinions regarding Beasley with the documents cited in his
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DEFENDANT HAROLD BEASLEY PLUMBING & HEATING, INC.’S REPLY BRIEF
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTBUTY& CURLIANOLLP
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declaration or the facts of this case. Dr. Cohen’s opinions regarding Beasley are based on “guess,
surmise, or conjecture necessarily” and should be excluded by the Court. (Summers v. A.L. Gilbert
Co. (1999) 69 Cal. App4th 1155, 1168-1169.)

An expert opinion unsupported by reasoned analysis is inadmissible. (Sargon Enterprises
at 771-772; Stephen v. Ford Motor Co. (2005) 134 Cal.App.4" 1363, 1371, citing Jennings at 1118
[theoretical possibility of causation cannot support an expert’s conclusion that the act in question
was the cause of the injury]; Lockheed Litigation Cases (2004) 115 Cal. App.4" 538, 564 [expert
must provide a reasonably basis for opinions, and opinions based on speculation or conjecture are
inadmissible].

In Andrews v. Foster Wheeler LLC, the First District Court of Appeal excluded speculative
opinion testimony by asbestos expert Charles Ay, counseling an expert opinion which is not
supported by reasoned analysis has no evidentiary value:

An expert’s opinion rendered without a reasoned explanation of why the underlying

facts lead to the ultimate conclusion has no evidentiary value because an expert’s
opinion is worth no more than the reasons and facts on which it is based.

(Andrews v. Foster Wheeler LLC (2005) 138 Cal.App.4"" 96, 108 quoting Bushling v. Fremont
Medical Center (2004) 117 Cal.App.4"" 493, 510.)

Dr. Cohen’s declaration does not contain a reasonable explanation that incorporates his
conclusions with the underlying facts. Dr. Cohen’s declaration contains no information specific to
Beasley or Mr. Ross, the work Beasley and Mr. Ross performed at shared jobsites, or the asbestos
materials plaintiffs allege Beasley disturbed in Mr. Ross’s presence. (See Cohen Decl., 1:21-20:4.)
Consequently, Dr. Cohen assumption Beasley’s plumbing work in Mr. Ross’s presence between
1961 and 1979 violated the General Safety Orders has no evidentiary value.

Excerpts from the General Safety Orders issued in 1936, 1945, and 1955 are attached to Dr.
Cohen’s declaration. (Cohen Decl., Exs. 2-4.) Appendix A to the 1955 General Safety Orders
regarding “Dusts, Fumes, Vapors, and Gasses” states: “The following tables represent
concentrations of various substances in which it is considered safe for men to work whether for
brief periods or for working for full working periods daily for an indefinite time.” (Cohen Decl.,

Ex. 4.) The attached table states acceptable total dust counts included up to 50 million particles per
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cubic foot and up to 5 million asbestos particles. (Cohen Decl., Ex. 4.) Because there is no
evidence work by Beasley’s plumbers in Mr. Ross’s presence exceeded either standard, Dr.
Cohen’s opinions regarding Beasley are not supported by sound reasoning. (See UMF Nos. 6-13.)
Dr. Cohen’s opinions lack “sufficient factual basis” and offer “virtually no explanation or reasoning
beyond the most general statements about [his] work and research.” (Andrews at 113, quoting
Bushling at 510.) Dr. Cohen’s opinions have “no evidentiary value” and should be excluded from
evidence. (/d.)
Ill CONCLUSION

The undisputed facts establish Beasley is not liable for Mr. Ross’s exposure to asbestos. No
reasonable jury could find Beasley failed to act with reasonable prudence when its plumbers
worked in the same areas as Mr. Ross. Beasley shifted the burden of production to plaintiffs, who
attempt to construct a triable issue of material fact through Dr. Cohen’s declaration. Dr. Cohen’s
opinions regarding Beasley are not supported by the documents he cites and lack reasoned analysis.
The Court should sustain Beasley’s objections to Dr. Cohen’s declaration and grant Beasley’s
motion for summary judgment.
DATED: May 1, 2013 BUTY & CURLIANO LLP

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