Exhibit,Appendix: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                PATRICIA G. ROSENBERG, SBN 154820

HAAS & NAJARIAN, LLP
58 Maiden Lane, Second Floor
San Francisco, CA 94108
Telephone: 415.788.6330

JAMES N. SINUNU, SBN 62802
JUNIPER BACON, SBN 256687
SINUNU BRUNI LLP

333 Pine Street, Suite 400

San Francisco, CA 94104
Telephone: 415.362.9700
Facsimile: 415.362.9707
jsinunu@sinunubruni.com
jbacon@sinunubruni.com

Attorneys for Defendant
MCCLURE ELECTRIC, INC.

ELECTRONICALLY
FILED

Superior Court of California,

County of San Francisco

FEB 28 2013

Clerk of the Court
BY: CAROL BALISTRERI
Deputy Cle

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO-UNLIMITED JURISDICTION

ROBERT ROSS and JEAN ROSS,

Plaintiffs,

VS.

C.C. MOORE & CO. ENGINEERS:
Defendants as Reflected on Exhibit 1
attached to the Summary Complaint
herein; and DOES 1-8500.

Defendants.

Ne ee eee

1

Case No.: CGC-10-275731

EXHIBITS E THROUGH G TO
DECLARATION OF JUNIPER BACON
IN SUPPORT OF DEFENDANT
MCCLURE ELECTRIC, INC.’S MOTION
FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY
ADJUDICATION

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

EXHIBIT E THROUGH G TO DECLARATION OF JUNIPER BACON IN SUPPORT OF DEFENDANT MCCLURE ELECTRIC,
INC."S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATION

ekExhibit ECo em YW KD hw BR YY

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48511949

Dec 19 2012

ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436
HEATHER-ANN YOUNG, ESQ., S.B. #283211
BRAYTON*®PURCELL LLP

Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169

(415) 898-1555

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ASBESTOS
No. CGC-10-275731

PLAINTIFF ROBERT ROSS’ AMENDED
RESPONSE TO DEFENDANT MCCLURE
ELECTRIC, INC.’S SPECIAL
INTERROGATORIES, SET ONE

ROBERT ROSS and JEAN ROSS,
Plaintiffs,
vs.

C.C. MOORE & CO. ENGINEERS;
Defendants as Reflected on Exhibit |
attached to the Summary Complaint

herein; and DOES 1-8500.

eee

PROPOUNDING PARTY: Defendant MCCLURE ELECTRIC, INC.
RESPONDING PARTY: Plaintiff ROBERT ROSS
SET: ONE (1)

GENERAL OBJECTION

Plaintiff objects to defendant's definition of the words “YOU” and “YOUR.” The
definition is vague, ambiguous and overly broad. The definition includes seven separate groups
of persons and “their present and former agents, attorneys, investigators, representatives,
assigns.” The terms "agents" and "representatives" are vague and ambiguous and require
Plaintiff to guess as to who might fit within these descriptions. Additionally, the inclusion of a
potentially unknown number of persons makes each Interrogatory with “YOU” or “YOUR”
unduly burdensome and impossible to respond to. The inclusion of “plaintiff's attorneys” in
this definition calls for information that is potentially protected by the attorney-work product
doctrine. Subject to, and without waiving said objections, plaintiff responds as follows:

RESPONSE TO INTERROGATORY NO. 1: Plaintiff objects to this Interrogatory on the
grounds that itis overly broad, particularly with regard to the use of the undefined phrase, “each
and every.” Plaintiff objects to the defined terms and phrases “exposed,” “asbestos” and
“exposure,” as vague and ambiguous. Plaintiff objects to the undefined term, “activity.”Subject
to and without waiving said objections, plaintiff responds as follows: Plaintiff identifies the
Mills Building (Bush/Montgomery) in San Francisco, California.

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After a reasonable and good-faith inquiry, plaintiff has no further information
responsive to this Interrogatory at this time that is not equally available to or already known by
the propounding party. Plaintiff's investigation and discovery are continuing. Plaintiff reserves
the right to amend these Responses.

RESPONSE TO INTERROGATORY NO. 2: Plaintiff objects to this Interrogatory on the
grounds that it is overly broad, particularly with regard to the use of the undefined phrase, “each
and every.”Plaintiff objects to the defined terms and phrases “exposed,” and “asbestos” as
vague and ambiguous. Plaintiff objects to the undefined term, “activity.”Subject to and without
waiving said objections, plaintiff responds as follows: From 1967-1972, plaintiff was an
insulator, Plaintiff worked in close proximity to MCCLURE ELECTRIC, INC. electricians
who were disturbing previously sprayed asbestos-containing overhead fireproofing while setting
their pipe and conduit supports. This disturbance spread dust throughout plaintiff's work areas.
Plaintiff knew these were MCCLURE ELECTRIC, INC. electricians because of their
distinguishing hard hats and toolboxes. Plaintiff recalls this fireproofing having an appearance
similar to small curd cottage cheese. Plaintiff worked in as close as three feet proximity to
MCCLURE ELECTRIC, INC. electricians. Plaintiff observed MCCLURE ELECTRIC, INC.
electricians shooting up studs in the ceiling, which caused the existing asbestos containing
insulation and MONOKOTE fireproofing to fall all over the work area. Moreover, plaintiff
observed MCCLURE ELECTRIC, INC. electricians scrape off existing fireproofing. This
scraping and removal caused a visible dust cloud in plaintiff’s presence. Plaintiffs body, hair
and clothing were covered in dust. Plaintiff subsequently inhaled this dust.

After a reasonable and good-faith inquiry, plaintiff has no further information
responsive to this Interrogatory at this time that is not equally available to or already known by
the propounding party. Plaintiff's investigation and discovery are continuing. Plaintiff reserves
the right to amend these Responses.

RESPONSE TO INTERROGATORY NO, 3: Plaintiff objects to this Interrogatory on the
grounds that it is overly broad, particularly with regard to the use of the undefined term,
“any.”Plaintiff objects to the defined terms and phrases “exposed,” “asbestos” and “exposure,”
as vague and ambiguous. Plaintiff objects to the undefined phrase, “total duration.”’Plaintiff
objects to this Interrogatory on the grounds that it improperly calls for premature identification
and disclosure of plaintiffs retained consultants, who may or may not later be appropriately
named as expert witnesses in violation of Code of Civil Procedure (“C.C.P.”) §§ 2034.210,
2034.230, and 2034.240.

After a reasonable and good-faith inquiry, plaintiff has no further information
responsive to this Interrogatory at this time that is not equally available to or already known by
the propounding party. Plaintiff's investigation and discovery are continuing. Plaintiff reserves
the right to amend these Responses.

RESPONSE TO INTERROGATORY NO. 4: Plaintiff objects to this Interrogatory on the
grounds that it is overly broad, particularly with regard to the use of the undefined term,
“any.”’Plaintiff objects to the defined terms and phrases “exposed,”and “asbestos”as vague and
ambiguous. Subject to and without waiving said objections, plaintiff responds as follows:

Location of Exposure
Employer Exposure Job Title Dates
Consolidated Insulation Mills Building Insulator 1/1967-3/1972
517-D Marine View Ave. (Bush/Montgomery) (16 man days)
Belmont, CA San Francisco, CA

Job Duties: From 1967-1972, plaintiff was an insulator. Plaintiff worked in close proximity to
MCCLURE ELECTRIC, INC. electricians who were disturbing previously sprayed asbestos-
containing overhead fireproofing while setting their pipe and conduit supports. This disturbance
spread dust throughout plaintiff's work areas. Plaintiff knew these were MCCLURE

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ELECTRIC, INC. electricians because of their distinguishing hard hats and toolboxes. Plaintiff
recalls this fireproofing having an appearance similar to small curd cottage cheese. Plaintiff
worked in as close as three fect proximity to MCCLURE ELECTRIC, INC. electricians.
Plaintiff observed MCCLURE ELECTRIC, INC. electricians shooting up studs in the ceiling,
which caused the existing asbestos containing insulation and MONOKOTE fireproofing to fall
all over the work area. Moreover, plaintiff observed MCCLURE ELECTRIC, INC. electricians
scrape off existing fireproofing. This scraping and removal caused a visible dust cloud in
plaintiffs presence. Plaintiffs body, hair and clothing were covered in dust. Plaintiff
subsequently inhaled this dust.

Plaintiff identifies plaintiffs ROBERT ROSS and JEAN ROSS c/o Brayton%Purcell
LLP, 222 Rush Landing Road, Novato, California 94948-6169 (415) 898-1555.

Plaintiff identifies the past and present Persons Most Knowledgeable and Custodians of
Records for McClure Electric Inc.

Plaintiff identifies the Person(s) Most Knowledgeable and Custodian(s) of Records for
all other named defendants in this action.

Plaintiff also identifies all doctors and other medical professionals identified in
plaintiff's medical records which are equally available to defendant.

Plaintiff anticipates that defendant’s representatives, agents, managing agents, directors,
officers and employees possess knowledge of defendant’s asbestos-containing products, when it
became aware of the hazards of asbestos, the trade, industrial and lobbying organizations to
which it belonged, the sources of its asbestos-containing products, fiber-release testing
performed to its products, other requirements pertaining to defendant’s products, and what
defendant actually knew or should have known regarding its products and the hazards of
asbestos.

Plaintiff identifies the Complaint filed in this matter and all documents attached thereto,
Plaintiff identifies plaintiff's Responses to Standard Asbestos Case Interrogatories , and all
exhibits attached thereto. Plaintiff further identifics his deposition transcripts, beginning on
February 20, 2008 and all future depositions and exhibits attached thereto to be taken in this
case.

Plaintiff identifies plaintiff's Social Security records. Plaintiff identifics plaintiff's
medical records and billing which are, or will be made available to defendant through Berry &
Berry.

, Plaintiff identifies all defendants’ responses to General Order 129 Standard Asbestos
Case Interrogatories, each available care of each defendant's attorney of record.

Plaintiff identifies The CUSCORE test and the Q-Interval in Cluster Analyses of Colon
Cancer and of Lymphoma Among Asbestos Workers by R. Chen and P. Froom, Department of
Epidemiology, Sackler Medical School, Tel Aviv University, Ramat Aviv, Israel in Statistics in
Medi , copyright 2003 John Wiley & Sons, Ltd.

Insulation:

California Code of Regulations, Title 8, Section 1529(b) defines “Presumed Asbestos
Containing Material” as “thermal system insulation and surfacing material found in buildings
constructed no later than 1980.”

Products such as thermal pipe insulation, thermal block insulation, asbestos cloth,
asbestos refractory materials and asbestos paper more likely than not were asbestos-containing
in the 1940s, 1950s, 1960s, and 1970s. On high temperature and high pressure steam pipes and
equipment, asbestos-containing insulation was more likely than not used, whereas on the low
temperature equipment and pipes, non-asbestos-containing products were more likely than not
used, such as Styrofoam and Urethane. Plaintiff cites to the Federal Register, Vol. 59,

August 10, 1994, which sets out the Occupational Safety and Health Administration’s standards
for asbestos exposure in construction, industry, and shipyards:

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‘Class I’ work is defined as activities involving the removal of thermal system
insulation and sprayed-on or troweled-on or otherwise applied surfacing ACM
(asbestos-containing material) and PACM (presumed asbestos-containing
material), .. . Class I asbestos work involves removal of surfacing materials
sprayed or troweled or otherwise applied to surfaces, and removal of thermal
system insulation. Surfacing materials include, for example, decorative plaster
on ceilings or acoustical ACM on decking or fireproofing on structural members.
Thermal system insulation includes, for example, ACM applied to pipes, boilers,
tanks and ducts. Based on the record, OSHA has determined that the prevalence
of these materials and their likelihood of significant fiber release when
disturbed, requires rigorous control methods which OSHA has set out in the
standards. (Emphasis added.)

Plaintiff cites to the Asbestos Information Act of 1988 and all manufacturer disclosures
under it as published in the Federal Register, 55 FR 5144, February 13, 1990. The Act required
disclosure of asbestos content in its product by “any person who manufactured or processed,
before the date of the enactment of this Act, asbestos or asbestos-containing material that was
prepared for sale for use as surfacing material, thermal system insulation, or miscellaneous
material in buildings (or whose corporate predecessor manufactured or processed such asbestos
or material).” The Act defines thermal insulation products as “material in a building applied to
pipes. fittings, boilers, breeching, tanks, ducts, or other structural components to prevent heat
oss or gain or water condensation, or for other purposes.” Disclosures were made to the EPA
by manufacturers of asbestos-containing products who identified asbestos-containing thermal
insulation products, including but not limited to, the following:

Armstrong World Industries, Inc.; Low temperature thermal cork insulation with an
asbestos paper laminate covering. Celotex Corporation: 85% magnesia (filter-molded); Super
Light 85% magnesia {precision molded); Allttemp; Careytemp (jacketed and unjacketed
versions); Temp-check; Hi-temp # 12, #15, and #19; Careytemp 2000. Fibreboard Corporation
(formerly Fibreboard Paper Products and Pabco Corporation): Prasco; 85% magnesia; Caltemp
(or Caltherm); Supercaltemp; Kaylo, LK Insulation, and Pyrocal (rebranded for Owens Corning
Fiberglas, Armstrong Contracting and Supply; and PPG Industries, respectively). GAF
Building Materials (as successor to the Ruberoid Company: now known as G-l Holdings, Inc.):
Calsilite; Calsilite Hi; Air Cell; Imperial Insulation; Imperial pipe-covering: various asbestos
papers and wrappings. Keene Corporation (as successor in interest to Baldwin-Ehret-Hill, Inc;
Ehret Magnesia Manufacturing Company; and Baldwin Hill Company): 85% Magnesia
(Thermalite); Mono-Block; Thermasil; Enduro. Johns Manville: 85% Magnesia; Superex M &
Superex 1900; Thermobestos; White Surface asbestos jacket; various asbestos-containing felts
and blankets. Owens Corning Fibergias: Kaylo. United States Gypsum Company: K-Fac and
K-Fac 19. Many of these manufacturers and others also manufactured asbestos-containing
accessory products, such as papers, felts, ropes, packing materials, and tapes.

Fireproofing:

The following facts and documents, while not specifically related to the particular
circumstances of plaintiff's exposure, support the contention that the fireproofing spray and
debris to which he was exposed were more likely than not asbestos. They are also indicative of
the state of the art regarding the knowledge of the hazards of asbestos, which is relevant to
plaintiff's negligence and failure to warn claims.

Direct to steel spray-applied fireproofing, both cementitious and non-cementitious
(feathers), contained asbestos up until the mid to late 1970's. Brands of asbestos-containing
fireproofing could be distinguished by the method of application; for example, MONOKOTE
fireproofing came out of a single hose and was mixed in a hopper, whereas CAFCO was
sprayed out of a two hose application where the material resembled a dried “feather” material.
One hose shot out the dried “feather” material and the other hose shot out water. In cither case,
sacks of asbestos-containing materials were opened and dumped into the hopper that fed the
hose. Dumping the dry contents into the hopper created large amounts of dust. After the wet

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fireproofing was applied to the steel, it was allowed to dry. When it had dried, other trades such
as plumbers, mechanical contractors, electricians, pipefitters, sheetmetal workers or HVAC
crews would scrape it away in order to attach their hangers to the steel structure. This created
significant dust and debris, which released asbestos fibers into the ambient air, It also required
re-application of the fireproofing to these areas.

Plaintiff identifies a letter from James L. Whittaker of James L. Whitaker Incorporated,
an acoustical and fireproofing contractor, to James P. Verhalen of United States Mineral
Products Company dated May 24, 1971. This letter was produced as Exhibit L to the
Deposition of James L. Whittaker in Roy and Virginia Elliot v. A.P. Green Industries, Inc., et
al,, San Francisco Superior Court Case No. 321243, September 26, 2001. The court reporter
was Clark Re orting, 2161 Shattuck Ave., Suite 201, Berkeley, California 94704, 510-486-
0700. In the letter, Mr. Whittaker stated,

[Option] 2. Provide us with the technical data and substantiation so that we can
obtain complete approval of CAFCO D/CF. Because this would only be part of
the plan, we would then have to embark on a strong campaign with the
ecologists to see that asbestos-contaminated products are thrown completely out
of our market. 4. . . ] Despite the ridiculous level of installed prices that are now
rampant here, the outlook for sprayed-on fireproofing has never been better. It
seems that everybody wants their West Coast headquarters in the Bay Area and
the number of high-rise structures now on the boards has never been greater; . . .

This letter supports a reasonable inference that at least through the early 1970s existing
fireproofing and fireproofing installed in new construction was more likely than not asbestos-
containing.

The production of asbestos-containing fireproofing was banned in 1973. As described
in The Federal Register, vol. 38, no. 66, April 6, 1973:

The promulgated standard applies to these uses of spray-on asbestos materials
which could generate major emissions of particulate asbestos material. For those
spray-on materials used to insulate or fireproof buildings, structures, pipes, and
conduits, the standard limits the content to no more than | percent. Materials
currently used contain from 10-80% asbestos. (p. 8321.) (Emphasis added.)

Absent evidence of abatement, OSHA defines presumed asbestos-containing material
(PACM) to be either thermal system insulation (TSD) or surfacing material found in buildings
constructed no later than 1980, 29 CFR 1910,1001()() states: “Installed Asbestos Containing
Material. Employers and building owners are required to treat installed TSI [Thermal System
Insulation] and spraved on and troweled- on surfacing materials as ACM in buildings
constructed no later than 1980 for purposes of this standard. These materials are designated
‘presumed ACM or PACM’, and are defined in paragraph (b) of this section. Asphalt and vinyl
flooring material installed no later than 1980 also must be treated as asbestos-containing.”
(Emphasis added.)

Likewise, California Code of Regulations, Title 8, Section 1529(b) defines “Presumed
Asbestos Containing Material” as “thermal system insulation and surfacing material found in
buildings constructed no later than 1980. The designation of a material as “PACM’ may be
rebutted pursuant to subsection (k)(5) of this section.” Subsection (k)(5) in turn states that an
employer or owner may demonstrate that PACM does not contain more than 1% asbestos either

having an inspection conducted pursuant to the Asbestos Hazard Emergency Response Act
(AHERA) (40 CFR Part 763, Suby ypart E) which demonstrates that the material is not asbestos-
containing or by having a test performed by an accredited asbestos inspector or a certified
industrial hygienist, with samples collected in the manner described in 40 CFR 763.86,
Analysis must be by a laboratory with proficiency demonstrated by current successful
participation in a nationally recognized testing program.

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Absent any proof of abatement by an employer or building owner, or evidence of
abatement, thermal insulation and surfacing materials installed in buildings constructed prior to
1980 are to be treated as asbestos-containing in California. Defendant has not provided any
evidence that the materials it disturbed were not ACMs under this definition. Nor has it
provided any proof that the jobsites were subsequently abated.

Bay Area: (Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa
Clara, southwestern Solano, and southern Sonoma counties)

The Bay Area Air Quality Management District requires that “for each renovation
operation where the amount of RACM [Regulated Asbestos-Containing Material] is
greater than or equal to 30.8m (100 ft.) linear, 9.4m2 (100 ft.2) or 1 m3 (35 f13), and for
all dry removals, a written plan or notification of intent to demolish or renovate shall be
provided to the APCO at least ten (10) working days prior to commencement of
demolition or renovation.” (Rule and Regulations 1 1-2-401.3.) Evidence of abatement
is therefore equally available to defendant by submitting a Public Records Request.
More information can be found at
hitp://www.baagmd.gov/Divisions/Legal/Public-Records-Request.aspx.

Because plaintiff has proved exposure to Presumed Asbestos-Containing Materials as
defined by OSHA, plaintiff has met his burden of showing that the Presumed Asbestos-
Containing Materials to which plaintiff was exposed by defendant are more likely than not
asbestos-containing. The burden lies with defendant to prove that Presumed Asbestos-
Containing Materials are more likely than not asbestos-free.

Articles in the Medical and Scientific Literature:

W.B. Reitze, W. J. Nicholson, D.A. Holaday, & 1. .J. Selikoff “Application of Sprayed
Inorganic Fiber Containing Asbestos: Occupational Health Hazards,” American Industrial
Hygiene Association Journal (1972) 33(3): 178-191. In this article the authors state:

In 1970, well over half of all the large multistory buildings constructed in this
country made use of sprayed ‘inorganic fiber’ as a fireproofing agent. (178-9.)

The material used for fireproofing in a building usually is a blend of 5-30%
asbestos fiber (chrysotile)... (179.)

Pipe fitters, welders, electricians, plumbers, carpenters, and others may be on the
construction site during or shortly after mineral fibers have been sprayed. . . .
That there is a potential serious risk may be inferred from the increasing reports
of mesothelioma among men working in shipyards in which asbestos spraying
was associated with such risk of indirect occupational exposure. (182.)

Our air studies indicate .. . that very high asbestos fiber levels are found in the
work environment of building trades workmen not associated with spraying
operations, but simply working in the same buildings. (183.)

J. W. Skidmore and J. S. P. Jones: “Monitoring an Asbestos Spray Process,” Annals of
Occupational Hygiene (1975) 18(2): 151-156. Tn this article the authors state,

In a number of places conduit work uncompleted before spraying commenced,
which approached or ran alongside sprayed beams, had not been adequately
cleared of the asbestos inadvertently sprayed on it. In addition to these hazards
left by the spray operatives it was noted that where the coating on beams had
been disturbed by fitters, for example, to bolt partition supports to them, the
asbestos had been dropped to the floor to be subsequently swept up. (155.)

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It should be emphasized that many different tradesmen~joiners, partition fitters,
electricians, etc— and especially men engaged in sweeping up the dry concrete
floor, would be unaware of the particular dust hazards. They were, in fact, more
liable to respiratory exposure than the original spray team because they had no
respiratory protection. (155.)

Prust, R.S. (1979) “Future Problems to Be Anticipated: Demolition, Repair, and Disposal.”
Annals of the New York Academy of Sciences, 330: 545-548. R.S. Prust is identified as being
affiliated with the Health, Safety and Environmental Department of the Johns-Manville Sales
Corporation. The article states,

A pertinent case in point is the fireproofing of steel structural members in high-
rise buildings. ... The introduction of mineral fiber sprayed-on coatings
permitted equivalent fire protection with as little as 20% of the weight and
substantially less labor. . . .{_ It is quite possible that asbestos-containing
spray coatings are present in any high-rise steel frame building constructed
after World War II. (p.545, emphasis added.)

Sawyer, R.N. (1979.) “Indoor Asbestos Pollution: Application of Hazard Criteria.” Annals of
the New York Academy of Sciences, 330: 579-586, Robert Sawyer at that time worked with the
Yale Health Service. He has since testified frequently as a defense expert. The article states,

Sprayed material has been used extensively for insulation and fireproofing and,
because of widespread use and ease of fiber dissemination, can be considered the
most significant source of asbestos fibers in the indoor environment. (p.580.)

Government and Other Public Documents:

Manufacturer disclosures under the Asbestos Information Act of 1988 as published in The
Federal Register, 55 FR 5144, February 13, 1990.:

UNITED STATES GYPSUM COMPANY: Red Top Firecode plaster; Red Top
Firecode “V” plaster; Spraydon Standard A fireproofing plaster; Spraydon Standard G
fireproofing plaster.

W.R. GRACE & CO.: Zonolite Mono-Kote MK-1 aka Mono-Kote; Zonolite Spra-
Insulation; Zonolite Mono-Kote MK-3 aka Mono-Kote.

Statements of Frank H. Zimmerman, Director of Corporate Safety and Environmental Health
for the National Gypsum Company, representing the Asbestos Information Association at the
Environmental Protection Agency Public Hearing on National Emissions Standards for
Hazardous Air Pollutants, February 15-16, 1972, in Los Angeles, California. Mr. Zimmerman
stated in part,

We realize that this section of the regulations was designed primarily to deal
with the problem of the use of asbestos-containing spray fireproofing compounds
in high rise building construction. § Those of us in the industry who have
followed the course of the spray fireproofing controversy over the past two years
can well understand the EPA’s decision to prohibit this particular use of
asbestos. (p.322.)

Mr. Zimmerman’s comments are available on-line at www.regulations.gov, Document ID No.
OSHA-H033A-2006-08 18-0151.

Public comments of W.R. Grace & Co. for delivery before the Environmental Protection
Agency Public Hearing on National Emissions Standards for Hazardous Air Pollutants,
February 15-16, 1972, in Los Angeles, California. The comments state in part,

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In the EPA Background Information it is stated that asbestos-free substitute
materials are available for sprayed asbestos fireproofing for a cost of no higher
than 15% of asbestos-containing fireproofing materials. Grace does not deny
that such materials are available. In fact, Grace itself manufactures and sells
substitute materials. However, Grace wishes fo point out to you that at least as
of this date none of the nonasbestos fireproofing materials approved by
Underwriters’ Laboratories, Inc. have achieved full equivalency with the
asbestos-containing material previously approved by UL. { The area where full
equivalency has not been obtained is in the ability of nonasbestos-containing
fireproofing materials of the type here under discussion to remain in place during
fire exposure as long as the asbestos-containing materials. This bonding ability
is an essential parameter of this type of fireproofing. (p. 8-9.)

The comments are available on-line at www.regulations.gov, Document LD No.
OSHA-H033A-2006-08 18-0158.
Managing Asbestos in Place, EPA, July 1990, commonly known as the “Green Book”:

Asbestos became a popular commercial product because it is strong, won’t burn,
resists corrosion, and insulates well, In the United States, its commercial use
began in the early 1900's and peaked in the period from World War II into the
1970's.{p.2.)

Asbestos in buildings has been commonly used for thermal insulation,
fireproofing, and in various building materials, such as floor coverings and
ceiling tile, cement pipe and sheeting, granular and corrugated paper pipe wrap,
and acoustical and decorative treatment for ceiling and walls. Typically, it is
found in pipe and boiler insulation and in spray-applied uses such as fireproofing
or sound-deadening applications. (p.3.)

Because [asbestos] fibers are so small and light, they may remain in the air for
many hours if they are released from ACM in a building. When fibers are
released into the air they may be inhaled by people in the building. (p.2.)

Depositions and Trial Testimony:

Testimony of defense expert Dr. Robert Sawyer in the trial of Jack Casey and Patricia
Casey v. Asbestos Defendants, San Francisco Superior Court Case No. CGC-10-275517, where
he stated,

“I would assume that he did that hundreds of times, scraping off, fireproofing,
which was undoubtedly, as I mentioned earlier, chrysotile containing.” (p. 2338:
9-11; February 2, 2011.)

Testimony of defense expert Dr. Robert Sawyer, that it would be appropriate to presume
that fireproofing spray applied prior to 1972 contained asbestos. (Deposition of Dr. Robert
Sawyer, taken November 11, 2010 in John Casey and Patricia Casey v. Asbestos Defendants

BP), San Francisco Superior Court Case No. CGC-10-275517, pp. 26:2- 27:9.)

Testimony of Jeffrey Birkner, Ph.D., who was produced as a certified industrial
hygienist by the defense, in Lee Nixt v. Asbestos Defendants (B¢P), San Francisco Superior
Court No. CGC-08-274992, taken December 2, 2010. Dr. Birkner stated that it was more
likely than not that fireproofing prior to 1970 would have contained asbestos. (p.18:2-8.)

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Defendant Responses to General Order Interrogatories:

NATIONAL GYPSUM COMPANY: Gold Bond Fire-Shield Plaster, 1959-1970; Gold
Bond “Limpet”asbestos spray, 1944-1949,

UNITED STATES GYPSUM COMPANY: SprayDon Fireproofing, 1966-1971;
Firecode V; and Firecode V Type D.

UNITED STATES MINERAL PRODUCTS COMPANY: Cafco Spray, 1954-1958;
Cafeo Blaze-shield, 1958-1971; Cafco Blaze-shield Type D, 1964-1972; Cafco Spray
Type |; Caafco Sound Shiled (acoustical absorption), 1958-1969; Cafco Blaze-shield
Type H (1969-1971); various spray-on insulation products, insulating cements, patches,
and coating.

W.R. GRACE & CO.-CONN: Zonolite High Temperature Cement (trowel-applied
insulation and fireproofing for high temperature applications), 1966-1972; Zonolite
Monokote cementicious fireproofing, 1959 to approx. 1962; Zonolite spray-insulation,
1961-1973; and Zonolite Monokote-3 cemenenticious fireproofing, 1961-1973.

Other Documents:

Letter dated February 7, 1967 from the California Division of Industrial Safety to J. P.
Verhalen, President of the Sprayed Mineral Fiber Manufacturers Association. This letter states
that evidence has been accumulating for at least the last ten years connecting lung cancer to
asbestos exposure, and that a serious increase in mesothelioma among asbestos workers has
been reported. The letters states the dry sweeping of material in an enclosed building is
potentially hazardous and that immediate clean-up is important. The letter states that the use of
approved dust respirators is required.

Plaintiff identifies a 2010 article by the Collegium Ramazzini in Bologna, Italy titled
“Commentary: Asbestos is Still With US: Repeat Call.” Journal of Occupational and
Environmental Hygiene, 7,D57-D61. This article begins by stating “All forms of asbestos are
known human carcinogens.” It says, “No exposure to asbestos is without risk, and there is no
safe threshold of exposure to asbestos.”

Any Dust is Hazardous:

Subject to and without waiver of the foregoing objections, plaintiff responds as follows
as to why defendant knew, or should have known, that the relevant asbestos-containing
materials contained asbestos:

Regardless of whether or not any materials contained asbestos, defendant knew or
should have known that ANY kind of DUST is hazardous. It has long been known in the
scientific and medical community that the inhalation of dust is hazardous, regardless of whether
or not the dust is visible to the naked eye.

The problem of various dusts causing pneumoconiosis was well known in the medical
and scientific community over 150 years before asbestos was recognized as causing asbestosis.
pie longstanding knowledge of hazards posed by dusts generally is further substantiated by the

ollowing:

In 1760, Bernadino Ramazzini, an Italian medical professor, wrote De Morbis
Artificum Diatriba (Diseases of Workers) which, among other materials, discussed dust as a
cause of occupational diseases among workers. (Ramazzini, B., Diseases of Workers, 1713
[translated from the Latin text DeMorbis Artificum of 1713, Wilmer Cave Wright, transl. Intr.
Seong sem The New York Academy of Medicine, Harper Publishing Company, Published
in :

b. Thomas Oliver published his seminal work, Dangerous Trades, in 1902. (Oliver,
Thomas, Dangerous Trades, E.P. Dutton and Co., New York and John Murray, London, 1902).
Included in his book is an entire chapter dedicated to discussing the dangers associated with

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dust-producing occupations. Oliver states, in part, “That the constant inhalation of dust as a
necessary condition of daily labour results sooner or later in the appearance of grave and
characteristic lesions which lead to premature breakdown and death among the workers, is a
matter of common medical experience.” (Oliver., Dangerous Trades, p. 134.)

c. Furthermore, there have been recommendations in publications as far back as the
early 20th century concerning the suppression of such dangerous dusts. For example, Oliver
also discusses the dangers associated with a lack of proper ventilation for workers whose
occupations are not otherwise dangerous, and cites the lack of proper ventilation from these
airborne dust and particles as a cause of their diseases. (Oliver., Dangerous Trades, p. 149.)

d. In 1917, an entire section dedicated to dust removal in the workplace was published
in The Standardization of Working Essentials, by Lillian Erskine and John Roach, Annals of the
American Academy of Political and Social Science, Vol. 71, “Stabilizing Industrial
Employment Reducing the Labor Turnover” (May 1917, pp. 86-90), in which they
recommended that the minimum standard where workers were exposed to dust, dirt and
poisonous materials should be provided with a clean place in which to change from street
clothes to working clothing. “The presence of animal, vegetable, metallic, or mineral dusts in
the air of the workroom is a menace to the self-respect and vitality of the worker. When such
dusts are, in addition, of a cutting or poisonous character, their hazard is increased a
hundredfold, [ ] When it is remembered that at each breath some sixty cubic inches of dust-
laden air may be inhaled by a worker, the ultimate injury possible to the twenty square feet of
surface of the 500,000,000 air cells of his lungs becomes apparent.”

e. In 1934, the International Labour Office, Standard Code of Industrial Hygiene,
published recommendations regarding the prevention of exposure to dust. “During
manipulation of dust-producing material, or manual or mechanical work causing dust liable to
injure the health, requisite measures should be taken to prevent dispersion of such dust in the air
of the workroom.” (Section XXXIX.)

f. By 1949, the International Labour Office, Model Code of Safety Regulations For
Industrial Establishments for the Guidance of Governments and Industry at Chapter X, provides
definitions of “Dangerous and Obnoxious Substances” including the term “dusts.” The term
“dusts” means “solid particles capable of being blown about or suspended in the air, which are
generated by handling, crushing, cutting, drilling, grinding, rapid impact, spraying, detonation
or disintegration of inorganic or organic materials such as coal, grain, metal, ore, rock or wood
and are of a composition similar to the substance or substances from which they are derived.”
The Code further provided methods of protection by requiring special precautions to be used to
avoid exposure to such dust.

By no later than the mid-1930s, both the State of California and the federal government set forth
regulations governing, among other things, the industry practices of employers in the
construction trade as they related to the specific workplace hazards posed by dusts.

a. On December 28, 1936, the California Department of Industrial Relations issued a
series of General Industry Safety Orders entitled, “Dusts, Fumes, Vapors and Gases Safety
Orders.” These orders required suppression, control and prevention of harmful dust by
every employer at every place of employment. These orders defined “harmful dust” to
include asbestos dust. Moreover, violation of these orders constituted a misdemeanor,
punishable by a fine or jail time. (“Penalties for Violation of Order”).

1. Order 1901, regarding “Application,” states that “[t]hese orders shail apply to
every place of employment where a work or process is carried on by which dusts
..- Of a harmful nature are produced or generated, or exist independently of
the work or process, which may be inhaled in quantities or concentrations that
constitute harmful exposure as hereinafter defined or be in any other manner
injurious to health.” (emphasis added)

2. Order 1902, sub. 12, defines “dust” as “particles of solid matter in such state
of comminution that they may be inhaled, swallowed or absorbed.”

3. Order 1903, “Harmful Exposure,” directs the reader to Appendix A.
Appendix A recommends that the total amount of non-toxic dust not exceed
50 million particles, of a size between 0.5 and 5 microns, per cubic foot of
air. In listing harmful dusts, Appendix A specifically highlights asbestos dust:

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“The Commission recommends that the following limiting concentrations be
used as a basis in determining the existence of a health hazard in places of
employment. ... Asbestos: 10 million particles, of a size between 0.5 and 10
microns, per cubic foot of air.” (emphasis added)
4. This succession of orders provides for and requires a varie!
methods intended to prevent and reduce exposure to harmful rs.
Order 1904, “General Ventilation” requires that, “[w]herever harmful
dusts . . . exist, or are produced in the course of the employment, and
prevention, elimination or control of said hazards is not practicable by
local exhaust, or other means hereinafter provided, the capacity of the
general ventilation system . . . shail be so augmented as to provide for the
elimination of said hazards to a degree specified under Order 1903.”
(emphasis added) Where “general ventilation” is insufficient, Order
1905 requires the use of local exhaust ventilation; where local exhaust
ventilation is insufficient, Order 1906 requires the use of personal
protective equipment (although sub. C of this order makes plain that this
1s intended to be a temporary step). Order 1907 requires that, wherever
possible, an injurious substance shall be replaced by a non- or less-
injurious substance,
5. In addition, Order 1908, “Dust-Allaying Media” requires the
suppression of harmful dust: “Use shall be made of water, oil or
chemicals . . . as may be necessary to suppress and allay harmful
wherever the provisions of Orders 1904 and 1905 and impracticable or
inadequate to prevent harmful exposure. The use of dust-allaying media
may also be supplementary to other provisions of these orders.”
6. Appendix A specifically recommends the “use of dust counts . . . for
the purpose of obtaining information as to the existence of dust hazards,”
and notes that such counts, “if taken periodically, will determine the
effectiveness of dust control measures.”

b. On July 20, 1945, the California Department of Industrial Relations re-issued the
foregoing series of General Industry Safety Orders. This issuance provided a subtitle for
Appendix A, “Suggested Maximum Permissible Concentrations (Toxic Thresholds),” and
indicated that the total dust present not exceed 50 million particles (0.5 - 10.0 microns in
size) per cubic foot of air. This Appendix provides for a threshold limit for asbestos dust of
5 million particles, of a size between 0.5 and 10 microns, per cubic foot of air.

c. The January 22, 1955 revisions to these General Industry Safety Orders defined

“Harmful” as follows: “as applied to dusts . . . .means productive of injury or impairment of the
normal functions of any part of the body thereof...” The same Orders defined “Harmful
effect” as “any bodily injury, disease, or impairment...” The same Orders defined “Harmful

exposure” to mean “exposure to dusts... of such duration and such concentration as to produce
effects herein defined as harmful,” and noted the maximum acceptable concentrations of
substances set forth in Appendix A.” These Orders further noted that “[i]t cannot be taken for
granted that higher concentrations than those given in the table are safe for short and occasional
exposure. .. . It cannot be assumed that a substance safe for eight hours in a concentration of
100 parts per million will be safe for one hour at 800 parts per million.

d. The Walsh-Healey Public Contracts Act, enacted by Congress on June 30, 1936,
required that, in any contract made and entered into by the federal government for the
manufacture or furnishing of materials or supplies, “no part of such contract will be performed
nor will any of the materials, supplies, articles, or equipment to be manufactured or ished
under said contract be manufactured or fabricated i in any ¥ plants, factories, buildings, or
surroundings or under working conditions which are . zardous or dangerous to the health
and safety of employees engaged in the performance of said contract. Compliance with the
safety, sanitary, and factory inspection laws of the State in which the work .. . is to be
performed shall be prima facie evidence of compliance with this subsection.” (Chapter 88.1(c))

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e In 1952, the United States Department of Labor's publication “Safety and Health
Standards for Contractors Performing Federal Supply Contracts under the Walsh-Healey Public
Contracts Act” specified requirements for the control of atmospheric contaminants. In a section
entitled, “Environmental Conditions and Personal Services” (p. 23), these Standards required
that “[w]orkers shall not be exposed to concentrations of atmospheric contaminants hazardous
to health.” The Standards further provided that atmospheric contaminants might be controlled
via: (1) substitution of a less toxic material; (2) exhaust ventilation; (3) isolation of the
operation producing the contaminant; (4) enclosure of the operation; (5) changing of the process
or operation; or (6) increase of general ventilation.

i, These Standards further considered provisions for workers who
handle or are exposed to harmful material in such a manner that contact
of work clothes with street clothes will communicate to the latter the
harmful substances accumulated during the working hours. For such
workers, the Standards recommended that the workers should be
provided with facilities which will prevent this contact and also permit
the free ventilation or drying of the work clothes while not in use.

2. The Standards go on to discuss “Maximum Allowable
Concentrations” for various contaminants, as recommended by the
American Conference of Governmental Industrial Hygienists. However,
the Standards note that “[m]aximum. concentrations should not be used as
the sole criterion for establishing evidence of hazard to health or well-
being, but the evaluation of a possible hazard should also be subject to
other pertinent factors such as the nature of the contaminant and the
frequency and duration of the exposure or clinical evidence of harmful
effects.” The contaminants listed in the “Maximum Allowable
Concentrations” table following this discussion are characterized by the
text as “examples.” The list specifies a maximum allowable
concentration of asbestos of 5 million particles, of a size between 0.5
and 10 microns, per cubic foot of air.

f in 1931, an article by Frederick Willson, M.D., entitled “The Very Least an
Employer Should Know about Dust and Fume Diseases,” was published in Safety Engineering.
The article observed that “the employer who has at heart the welfare of his workmen and the
best monetary interests of his company should wish to have some information on the subject,
that he may not err through ignorance of the danger of dust and fumes or of the liability under
the law which he must always face.” The article opined that “no employer can observe
reasonable care unless he has at least a little knowledge about the nature of dust and fume
hazards,” and then went on to provide the following information:

Foreign particles in the air become dangerous to human beings when their mass
is so slight that they readily remain in suspension in the atmosphere. .. . Under 5
microns in size dust particles readily pass through the mouth and nose, traverse
the bronchial passages and lodge in the alveolar tissue, from which remote parts
of the lung structure they cannot be dislodged by hawking or coughing. .. .
Naturally, the more concentrated the quantity of dust and fume in suspension in
the atmosphere the greater the danger to which the workman is exposed and the
smaller the particles the greater the likelihood that entrance into the lung
interstices will ensue. The size of particles in prolonged suspension in the air is
more likely to be under 5 microns than over; probably the most dangerous sort of
dust is that ranging from 2 microns to 0.5 micron, or smaller...”

The article went on to report the following: “We do know . . . that breathing of dust
under the following conditions is seriously harmful: ... Asbestos and every operation in which
itis used.”

dif

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As is clear from the plethora of published books, articles and treatises, dust had been a
well known cause of disease and respiratory ailments for hundreds of years, and the suppression
of dust as a method of decreasing the likelihood of acquiring such a disease for over one
hundred years.

However, defendant knew or should have known that the materials contained asbestos.
Many articles uncover the historical state of knowledge about the hazards of asbestos.

DOCUMENTS SUPPORTING THAT DEFENDANT KNEW OR SHOULD HAVE
KNOWN OF THE DANGERS ASSOCIATED WITH ASBESTOS:

As stated in Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, 768, “California law
establishes the general duty of each person to exercise, in his or her activities, reasonable care
for the safety of others, (Civ. Code, § 1714, subd. (a).).” Defendant owed plaintiff a general
duty of care, which was breached because defendant knew or should have known of the dangers
of asbestos and failed to prevent plaintiff from inhaling asbestos fibers. The hazards associated
with exposure to asbestos and the effect of asbestos exposure on humans have been well
documented throughout the twentieth 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. Numerous articles and studies relating to the health
hazards of exposure to asbestos have appeared in medical and scientific literature since the turn
of the twentieth century and have also been summarized in various publications. Following are
some of the documents identifying hazards associated with asbestos and which defendant knew
or should have known about.

As early as 1898, the Annual Report of the Chief Inspector of Factories and Workshops
in England identified increased health problems among workers in asbestos textile mills.

In 1924, Cooke wrote an article in the British Medical Journal titled "Fibrosis of the
Lungs Due to the Inhalation of Asbestos Dust".

At least as early as 1931, and as already mentioned above, it was known in the medical
and scientific community that breathing asbestos dust was harmful and dangerous to human
health. As stated by Dr. Frederick Willson in 1931, "We do know, however, that breathing of
dust under the following conditions is seriously harmful: ... asbestos and every operation in
which it is used." (Wilson, Frederick, The Very Least An Employer Should Know About Dust
And Fume Diseases, Safety Engineering, November 1931, Volume 62(5). pp. 317-318.)
Additionally, the fact that asbestos exposure causes asbestosis, and the need for safety
precautions, including masks, respirators, education, ventilation, dust control, and substitution,
to prevent asbestos-related diseases, was known as early as the 1930s. Merewether ERA, Price
CW, Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos
Industry, His Majesty's Stationery Office, London, 1930, pp. 1-34.

Tn 1934, in an article titled "Pulmonary Asbestosis" published in The Lancet, two
physicians reported 100 cases of people with asbestosis. The occupations of the people