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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                BRAYTON*PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
NOVATO, CALIFORNEA 94948-6169

4415) 808-1585

oem NY KD A BY

10

ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., 8.B. #154436
OREN P. NOAH, ESQ., S.B. #136310 ELECTRONICALLY
ASHLEY J. BENSON, ESQ., S.B. #276326

BRAYTON%PURCELL ie F I L E D
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 ROUNTREE PLUMBING &
HEATING 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 ROUNTREE PLUMBING
& HEATING 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 ROUNTREE’S
MOTION FOR SUMMARY JUDGMENT

Rountree 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. Plaintiff alleges that Rountree is a 1. Undisputed.
plumbing and heating contractor whose

KSinjured 19349) loss RNTPL Uses ipd 1 AJB
PLAINTIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT OF UNDISPUTED
FACTCo em YW KD hw BR YY

10

employees were “removing and disturbing
existing asbestos-containing insulation, joint
compound, drywalling, fireproofing and
ceiling materials” at Stanford University,
Pier 39, UC Berkeley, UCSF Medical Center
between 1960 and 1962, and at Sonoma
Valley Hospital for | month in 1982, while
Robert Ross worked as an insulator
installing asbestos containing insulation at
these sites,

Rountree 's Special Interrogatories to
Plaintiffs (Set One), attached to the
Declaration of Josette D. Johnson in
Support of Mation fer Summary
Adjudication (“Johnson Decl.”) as Exhibit
Cat 2:13-18,

Plaintiffs’ Response to Defendant
Rountree's Special Interrogatories, Set One,
attached to the Johnson Decl. as Exhibit D
at 1:24-10:27.

2. During his deposition, Robert Ross
testified that Rountree employees disturbed
existing fireproofing and sometimes
insulation when installing pipe at Stanford
University, Pier 39, UC Berkeley, and
Sonoma Valley Hospital while Robert Ross
was also present.

Pertinent portions of the transcript of
deposition of Robert Ross taken in this
action, attached to the Johnson Decl. as
Exhibit F, at 987:25-988:5, 9935-13-22,
998:20-999:10, 1001:24-1004:18, 1008:13-
1009:7, 1014:23-1013:9, 1016:1-1017:3,
1529:19-1530:12, 1338:2-6, 1538:14-
153921, and 1540:24-1541:5.

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

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

4, Robert Ross received both class room

and field training in Asbestos Workers’
apprenticeship program.

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

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

nowledge 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.

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTSCO 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

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

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

Johnson Decl, Exhibit F at 2364:15-
2365:13.

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 also received the Asbestos
Worker Journal, although he denied reading
it.

Kainjured bO240ipldssRNTPLU ia sa.wpd

3

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.
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.

AIB

PLAINTIFFS' RESPONSE TO.
FACTS

FENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT OF UNDISPUTEDCo em YW KD hw BR YY

10

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

9. Mr. Ross wore a mask throughout his
career as an insulator.

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

Mit
dif

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

4

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.

Additionally, this alleged “fact” does not
dispute the fact that plaintiff 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 reading MSDS sheets as
the plaintiff had in Johnson v, American
Standard. Here there is no requirement,
Federal or otherwise, that Mr. Ross was
required to read any journal or publication on
document regarding the hazards of working
with or around asbestos.

Additionally, it is irrelevant in that there is
no showing that the defendant knew at the
time of exposure that plaintiff was a member
of an asbestos union and/or relied on that
act.

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 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 Decl.”), Exhibit 1.

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTSCo em YW KD hw BR YY

10

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,
atiached to the Johnson Decl. as Exhibit H;

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

Ll. 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

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

Additionally, Mr. Ross further testified he
wore a mask because “asbestos and
fiberglass made [him] cough”.

Peposition of Robert Ross (SFSC No.
274099), 301:15-17 [Declaration of Ashley
J. Benson (“Benson Deel.”), Exhibit 1].

Further, there is no showing of whether any
mask worn by plaintiff was designed to be o¥
was protective of airborne asbestos fibers,
that 1t was worn in such a way as to prevent
exposure to asbestos fibers, that it was worn
in conjunction with protective clothing and
wash down procedures necessary to prevent
exposure to asbestos fibers which would
otherwise land on plaintiff's clothing, skin
and hair and cause exposures when an
otherwise effective mask was removed.

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 docs
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 to 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

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTSCo em YW KD hw BR YY

10

members passed away last year. A large
number of the men had definite symptoms of
the aforementioned hazards of our trade."

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

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

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;

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

6

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
“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
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

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTSCo em YW KD hw BR YY

10

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;

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 cach were brought
out.”

Spielman Decl., Exhibit 4 at pp. 20-22; see

also Spielman Decl., Exhibit 5 at second to
last page thereof.

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

7

of asbestos, defendant remains liable for its
own negligence in causing Mr. Ross’s
exposure to 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
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 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. 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

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTSCO 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

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 left 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

Kainjured bO240ipldssRNTPLU ia sa.wpd

8

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.

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 does

AIB

PLAINTIFFS' RESPONSE TO.
FACTS

FENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT OF UNDISPUTEDCo em YW KD hw BR YY

10

that a report of the studies so far completed
be made to its members.”

Spielman Decl., Exhibit 7 at p. 1.

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)
“it was clear by [952 that, regardless of the
setting, a person exposed to airborne

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

9

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
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. Ress. 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

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTSCo em YW KD hw BR YY

10

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
conceming 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
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,
Superior Court of the County of San
Francisco, case No. CGC-10-275498, at 4
7, 8(h), and 10, attached to the Johnson
Deel. as Exhibit J.

Declaration of Richard Cohen filed hy
plaintiffs in John Casey et al., v. Asbestos
Defendants, Superior Court of the County of
San Francisco, case No. CGC-10-275517, at
4 20, 23, 27, and 29 attached to the Johnson
Decl. as Exhibit K.

19. Plaintiffs’ responses to Rountree’s
interrogatories requriring plaintiffs to state
all facts which support their claims against
Rountree 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 Decl., Exhibit D at 2:13-18;
Johnson Decl., Exhibit E at 10:18-21.

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

10

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
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

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTSCo em YW KD hw BR YY

10

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.

SEPARATE STATEMENT IN SUPPORT OF ROUNTREE’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 Rountree.

Rountree incorporates herein the above- This issue is moot as plaintiffs have
stated Undisputed Material Facts Nos. 1-2, dismissed the products liability cause of
as though restated in full. action against Roundiree.

Rountree incorporates herein the evidence
supporting the above-stated Undisputed
Material Facts Nos. 1-2 as though restated
in full.

dif
Mit
dif

KSinjured 19349) loss RNTPL Uses ipd ii AJB
PLAINTIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT OF UNDISPUTED
FACTCo em YW KD hw BR YY

10

20. In response to Rountree’s special
interrogatory requring plaintiff to state all
facts supporting his cause of action for
strict products liability, plaintiff stated that
Rountree employees were “removing and
disturbing existing asbestos-containing
insulation, joint compound, drywalling,
fireproofing and ceiling materials” at
Stanford University, Pier 39, UC Berkeley,
UCSF Medical Center between 1960 and
1962, and at Sonoma Valley Hospital for |
month in 1982, while Robert Ross worked
as an insulator installing asbestos
containing insulation at these sites; plaintiff
does not assert that Rountree manufactured
or supplied asbestos containing products to
these job sites.

Johnson Decl., Exhibit C at 3:25-27;
Johnson Decl., Exhibit D at 27:22-36:21

Dated: _April 25, 2013

KAiujured 193 svipldvss-RNTPLU- naj sa.wpd

20. This issue is moot as plaintiffs have
dismissed the products liability cause of
action against Roundtree.

BRAYTON*PURCELL LLP

By: /s/ Ashley J. Benson

Ashley J. Benson
Attorneys for Plaintiff

12

AIB

PLAIN TIFFS! RESPONSE TO DEFENDANT ROUNTREE PLUMBING & HEATING INC.S SEPARATE STATEMENT GF UNDISPUTED.
PACTS