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

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| SAN FRANCISCO, CA 94104

.C.C. MOORE & CO, ENGINEERS, et al.,

Brace Imai, Esq. (Bar No. 053800)

Tina Yim, Esq. (Bar No. 232597)

IMAL, TADLOCK, KEBNEY & CORDERY, LLP
100 BUSH STREET, SUITE 1300 ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

FEB 22 2013

Clerk of the Court
~ BY: RAYMOND K. WONG.
Deputy Clerk

Telephone: (415) 675-7000
Facsimile: (415) 675-7008

Attomeys for Defendant
COMMAIR MECHANICAL SERVICES |

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS, CASE NO.: CGC-10-275731
DECLARATION OF DR. JEFFREY
Plaintiffs, BIRKNER IN SUPPORT OF COMMAIR
MECHANICAL SERVICES’ MOTION
¥. FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY JUDGMENT

Date: May 9, 2013
Time: 9:30 a.m.
Dept: 503
Defendants. Judge: Hon. Teri L. Jackson

Complaint Filed: December 17, 2010
Trial Date: June 10, 2013

The undersigned declares as follows:

1. L Dr. Jefitey S. Birkner, declare under penalty of perjury, under the laws of the State
of California that the statements made herein are based on personal knowledge and are true and
correct.

2. Teamed my B_A. in Biology and M.S. in Environmental Health Sciences from New
York University. I eamed my PhD. in Environmental Health Sciences from the University of
California, Los Angeles. Since 1987, [have been a-Certified Industrial Hygienist, qualified by the
American Board of Industial Hygiene (“ABIED’) for comprehensive practice of the profession. I
have more than 30 years of experience as an industrial hygienist, including field consuliations,
managing industrial bymene teams, teaching Health and Safety Technician students and 23 years of

experience as a consultant providing industrial hygiene and hazard assessment, as well as air

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DECLARATION OF DR. JEFFREY RIRENER IN SUPPORT OF COMMAIR MECHANICAL SERVICES”
MOTION-FOR SUMMaRY JUDGMENT OR, JN THE ALTERNATIVE, SUMMARY JUDGMENT

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EAN PRANCISCO, CA P4104

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sampling, indoor air quality evaluations, hazardous material assessments and OSHA compliance
evaluations, From 1986 fo the present, J have also been employed as Vice President Technical
Services for Moldex Metric, Inc. where I provide in-house industrial hygiene and safety services
including identification and abatement of asbestos-contaming materials. I have doring the course of
may years as an industrial hygienist become very famihar with the uses of construction products and
joint compomnds.

3. Tam a full member of the American Industnal Hygiene Association, the world's
largest industrial hygiene professional society and past President of the Southern Califorma
American Indusirial Hygiene Association. I have been the President of the International Society for
Respiratory Protection, the Chair and Vice-Cham of the Respiratory Protection Committee for the
Intemational Safety Equipment Association. I have also been the Chair and Vice Chair of the
Hearing Protection Committee for the Intemational Safety Equipment Association.

4. A tne and conect copy of my curriculum vitae is attached hereto and mecrporated
‘by reference as Exhibit 1 to this declaration.

5. Through my experience, training, and research as an industrial hygienist, I have
acquired extensive knowledge about the occupational exposures to asbestos fibers. I am familiar
with the chemical composition of asbestos, the fiber release for asbestos-containing products, as well
as the effect of differing asbestos exposures on buman health risks. My job duties have included
conducting air sampling campaigns for asbestos and many other occupational chemicals. I have also
provided industrial hygiene consultation and been retained as an expert for numerous asbestos-
telated matters,

6. In the couse of my work as an industial hygiene consultant, I have supplemented
my formal education, training and professional experience by extensive literature reviews of ashestos
air sarnpling, fiber release, and risk of occupational disease. This includes extensive teview of the
medical and scientific state of art of knowledge of the hazards of asbestos.

7. Throughout my career, | have become aware of and reviewed numerous
publications by various entities and organizations that are relevant to my area of work, including,
but not Limited to, The International Association of Heat & Frost Insulators and Asbestas Workers

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DECLARATION OF DR. JEFFREY BIRENEBR IN SUPPORT OF COMMAIR MECHANICAL SERVICES
MOTION POR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT4
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Union’s official journal, The Asbestos Worker.

8, Tam familiar with the International Association of Heat & Frost Insulators and
Asbestos Workers Union and its official journal, The Asbestos Worker.

9. Thave reviewed the deposition of Mr, Steve Steele, in the matters of Syhia
Currier, et al. v. Asbestos Defendants (BP}, San Francisco County Superior Court Case Nos.
CGC-06-454325, CGC-06-451849, CGC-08-274823, CGC-09-275161, CGC-08-274946, and
CGC-07-274099, Volumes I-J, dated Angust 21, 2009 and October 6, 2009.

10, Steve Steele testified at deposition that he is the business manager for Local No.
16 of the International Association of Heat & Frost Insvlators and Allied Workers Union
(formerly known as the International Association of Heat & Frost Insulators and Asbestos
‘Workers Umen). (Deposition of Steve Steele, Vol. 1, 15:5-15:25, 19:4-19:10, attached hereto as
Exhibit 2 and incorporated by teference.)

1l. Steve Steele testified that he is the Custodian of Records for Local No. 16, and the
Custodian of Records Zor all categories of documents requested per his deposition notice, except
for the joumals from his Union (i.¢., the Intemational Association of Heat & Frost Insulators and
Asbestos Workers). Mr. Steve Steele testified that he believes that the Intemational Association
of Heat & Frost Insulators and Asbestos Workers Union possesses copies of The Asbestos Warker
journals from the beginning of its publication, but he did not attempt to obtain “old” copies of The
Asbestos Worker journals in response or in preparation for his deposition. (Deposition of Steve
Steele, Vol. 1, 31:22-32:16, of Exhibit 2.)

12. At his deposition, Mr. Steve Steele testified that The Asbestos Worker is the
official journal of the Intemational Association of Heat & Frost Insulators and Asbestas Workers
Union, of which Local No. 16 is a part. Mr. Steele also indicated that The Asbestas Worker is
published by the Intemational Association of Heat & Frost Insulators and Asbestos Workers
Union and is sent ont several times per year. He also believes that the journals are sent on ot
about the date indicated on the journals to each and every member of the International
‘Association of Heat & Prost Insulators and Asbestos Workers Union. (Deposition of Steve
Steele, Vol. 1, 37:12-38:25, of Exhibit 2.)

3

DECLARATION OF DR. JEFFREY BIRENER IN SUPPORT OF COMMAIR MECHANICAL SERVICES"
MOTION FOR SUMMARY TUIDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENTcaw oefiets
IMAI, TADLOCK, KEENEY & CORDERY, LLP

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13. In response to the request for documents, Mr. Steele searched through his office,
filing cabinets, and off-site storage for responsive documents. Mr. Steele found and produced at
his deposition various documents, including eleven (11) editions of The Asbestos Worker that he
had located in his office. These journals were identified, marked, and attached to Mr. Steele’s
deposition as Exhibits EE1 through EE11.

14. During his deposition, Mr. Steele was shown and asked about eleven (11)
additional] issues of The Asbestos Worker that preceded the ones he had produced. These earlier
issues of The Ashestas Worker were marked and attached to Mr. Steele’s transcript as Exhibits F
through P.

15. _ Mr. Steele consistently testified that these earlier editions of The Ashestos Worker
appear fo have the same format as The Asbestos Worker journals he had produced, and/or simply
appear to be The Asbestos Worker journals (Deposition of Steve Steele, Vol. 1, 95:20-132:8 of
Evaibit 2.) ,

16 Tn my review of the April, 1957, issue of The Asbestos Worker, attached hereto as
Exhibit 3 and incorporated by reference, (p21) reporting on an annual meeting of the Western
States Conference, noted the statement that, “The problem of asbestosis and silicosis were
discussed at large stemming from the report of Local 16 in which it was revealed that eleven of its
members passed away last year. A large number of men had definite symptoms of the
aforementioned hazards of out trade. Most of the locals in attendance. spoke on this vital
subject. ..At this time a motion was made, seconded and passed that the international continue to
investigate the causes of Asbestosis and allied lung ailments caused by fibrous materials and to
determine what measures can be found to combat and prevent these disease.”

17. Inmy review of the October, 1957, issue of The Asbestos Worker, attached hereto
as Exhibit 4 and incorporated by reference, (p1), the magazine contained the following statement:
“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 ofthe health hazards, with
authority to appoint sub-committees, and to employ the services of such medial authorities, that
will enable the board fo adopt any policies that will tend to protect the health of our International

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DECLARATION OF DR. SEFERBY BIRENBR IN SUPPORT OF COMMATR MECHANICAL SERVICES"
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT4
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SAM FRANCISCO, CA 94104

KEENEY & CORDERY,

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IMAI, TADLOCK,

(455) 675-7000

membership.”

18 Inmy review of the April, 1958, issue of The Ashestos Worker, attached hereto as
Exhibit 5 and incorporated by reference, (p22), the magazine reported, “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.”

19. In my review of the November, 1964, issue of The Asbestos Worker, attached
hereto as Exhibit 6 and incorporated by reference, (p5), reported on the findings fram 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.”

20, also reviewed the deposition of Merle C. Steele, taken in Steele v. Fibreboard
Paper Products Corp. et al., San Francisco Case No, 729-384, dated January 27, 1978, attached
hereto as Exhibit 7 and incorporated by reference.

21. At his deposition, Merle Steele testified that he was a member of Local 16
Asbestos Workers, since March of 1950. Asa Local 16 insulator, Mr. Merle Steele worked for
multiple companies, installing various types of insulation, including pipe, boiler, and duct
insulation. (Deposition of Merle Steele, 10:5-10714, 10:25-11:21 at Exhibit 7.)

22, “Possibly” in the middle 1960s, Mr. Merle Steele began wearing a respirator
because he learned that the materials he was working with were dangerous to his health. Mz.
Merle Steele learmed of these dangers throngh discussions at his Union, and through The Asbestos
Worker Journal—a union publication sent to members quarterly, including to Mr. Merle Steele
(Deposition of Merle Steele, 15:23-16:24 at Exhibit 7.)

23. Based on my review of these issues of The Asbestos Worker, as well as the
depositions of Merle Steele and Steve Steele, I opine that The Asbestos Worker is a quarterly
journal distubuted by the Iniemational Association of Heat & Frost Insulators and Asbestos
Workers, who in tum, apparently provided it to local unions, including Local 16, and distributed

5.

DECLARATION OF DR. JEFFREY BIRENER IN SUPPORT OF COMMAIR MECHANICAL SERVICES’
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENTLAW OFFICES
IMAI, TADLOCK, KEENEY & CORDERY, LLF

100 BUSH STREET

AUCTE 106
SAN PRANCISGQ, CA P4ind
4415) 675-7089

to tts members. Itis also my opinion that The Asbestos Worker had been reporting on the

potential health hazards of asbestos as early as 1957 and continuing through 1964, at least.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed on February 18, 2014, at Simi Valley, California.

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"Jefizey 8. Birkner, PRD.

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DECLARATION OF DR, JEFFREY BIRENER IN SUPPORT OF COMMAIR MECHANICAL SERVICES?
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY TUDGMENT

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2; LLP

SUttE 1308
00 Buse STREET

LAW OEFICES
SAN FRANCIGCO, CA 94/04

KEENEY & CORDERY,

IMAI, TADLOCK;

(@15) 875.7000

PROOF OF SERVICE

I, Heather Cherry, declare:

lam a resident of the State of Califomia and over the age of eighteen years, and not a
party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA
94104. On the date of execution below, I served the within documents:

DECLARATION OF DR. JEFFREY BIRKNER IN SUPPORT OF COMMAIR:
MECHANICAL SERVICES” MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY JUDGMENT

by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below on this date before 5:00 p.m.

by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at San Francisco, California addressed, as set
forth below.

by patsonally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.

> On the date of execution below, Telecttonically served the document via File &
ServeXpress on the recipients designated on the Transaction Receipt lotated on the
File & ServeXpress Web site.

I declare under penalty of perjury under the laws of the State of Califomia that the above
is true and correct.” . .

Executed on February 22, 2013, at San Francisco, California.

fs! Heather Cherry
Heather Cherry

Ross, Robert and Jean v. C.C. Moore & Co. Engineers, et al..
SAN FRANCISCO SUPERIOR COURT NO. CGC-10-275731

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DECLARATION OF DR. JEFFREY BIRKNBER IN SUPPORT GF COMMAIR MECHANICAL SERVICES"
MOTION FOR SUMMARY IUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT

|', LLP

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190 BUBH STREET

KEENEY & CORDERY.
SAN FRA

LAW OFFICES

IMAI, FADLOCK,

BC, CA s4104

(485) 675-7090

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PROOF OF SERVICE

I, Tina Yim, declare:

lam a resident of the State of California and over the age of eighteen years, and nota
party to the within action; my business address is 100 Bush Street, Suite 1300, San Francisco, CA
94104. On the date of execution below, I served the within documents:

DECLARATION. OF DR. JEFFREY BIRKNER IN SUPPORT OF COMMA
MECHANICAL SERVICES" MOTION FOR SUMMARY JUDGMENT OR, IN THE
_ALTERNATIVE, SUMMARY JUDGMENT

by transmitting via facsimile the document(s) listed above to the fax number(s} set
forth below on this date before 5:00 p.m.

by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at San Francisco, Califomia addressed as set
forth below.

>| by personally delivering the document(s) listed above to the person(s} at the
address(es) set forth below:

Brayton Purcell, LLP
222 Rush Landing Road
Novato, CA 94945-2469

On the date of execution below, [ electronically served the document Vial
LexisNexis File & Serve on, the recipients designated on the Transaction Receipt
located on the LexisNexis File & Serve Web site.

I declare under penalty of perjury under the laws of the State of Califormia that the above
is true and correct.

Executed on February 22, 2013, at San Francisco, California.

‘sf Tina Yim
Tina Yim

Ross, Robert and Jean v, C.C. Moore & Co. Engineers, et al..
SAN FRANCISCO. SUPERIOR COURT NO. CGC-10-275731

~B-
DECLARATION OF DR, JEFFREY BIRKNER IN SUPPORT OF COMMAIR MECHANICAL SERVICES’
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT