On December 17, 2010 a Motion,Ex Parte was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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co CU GF SD TR DW Re m oO PN De FF WwW N 21 BRyYDON Huco & PARKER 135 MAIN SpREDT 20" FLO Sart Francisco, CA 94108 Edward R. Hugo [Bar No. 124839] P.M. Bessette [Bar No. 127588] Josette D. Johnson [Bar No. 195977] BRYDON HUGO & PARKER 135 Main Street, 20th Floor San Francisco, CA 94105 Telephone: (415) 808-0300 Facsimile: (415) 808-0333 Email: service@bhplaw.com Attorneys for Defendant PERINT CORPORATION ELECTRONICALLY FILED Superior Court of California, County of San Francisco FEB 22 2013 Clerk of the Court BY: ALISON AGBAY Deputy Clerk SUPERIOR COURT - STATE OF CALIFORNIA. COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION ROBERT ROSS and JEAN ROSS, Plaintiffs, vs. C.C. MOORE & CO. ENGINEERS, et al, Defendants. (ASBESTOS) Case No. CGC-10-275731 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PERINI CORPORATION’S MOTION FOR SUMMARY JUDGMENT [Filed Concurrently With Notice of Motion; Memorandum of Points and Authorities; Request for Judicial Notice and Declaration of Josette D. Johnson] Date: May 9, 2013 Time: 9:30 a.m. Dept: 503 Judge: Hon. Teri L. Jackson Complaint Filed: | December 17, 2010 Trial Date: June 10, 2013 Defendant PERIN] CORPORATION (hereinafter, “Perini”) hereby submits the following Separate Statement of Undisputed Material Facts in support of its Motion for Summary Judgment against Plaintiffs ROBERT ROSS and JEAN ROSS (“Plantiffs”). 1 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT PERINE CORPORATION’ MOTION FOR SUMMARY JUDGMENTco CU GF SD TR DW Re m oO PN De FF WwW N 21 BRyYDON Huco & PARKER 135 MAIN SpREDT 20" FLO Sart Francisco, CA 94108 SEPARATE STATEMENT IN SUPPORT OF PERINI CORPORATION'S MOTION FOR SUMMARY JUDGMENT PERINI CORPORATION 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. 1. Plaintiffs allege that Robert Ross “was exposed to asbestos by working in close proximity to trades employed by PERINI who were handling and disturbing asbestos- containing products” while at several of Plaintiff's jobsites, in the 1960s and 1970s. Perini's Special Interrogatories to Plaintiffs (Set One), attached to the Declaration of Josette D. Johnson in Support of Motion for Summary Adjudication (“Johnson Decl.”) as Exhibit B at 3:2-10. Plaintiffs’ Amended Response to Defendant Perini Corporation's Special Interrogatories, Set One, attached to the Johnson Decl. as Exhibit C at 2:1-33:22 2. Robert Ross joined the Asbestos Workers, local 16 in San Francisco, in March 1959, Deposition of Robert Ross in the matter of Robert Ross v. Asbestos Defendants, San Francisco County Superior Court, case number 274099, Johnson Deel. attached to the Johnson Dect as Exhibit D at 571:18-22, 3. Robert Ross received both class room and field training in Asbestos Workers’ apprenticeship program. Johnsen Decl., Exhibit D at 572:8-11. 4. Robert Ross’ class-room instructor was Richard Holmes. Deposition of Robert Ross in the current matter attached to the Johnson Decl as Exhibit E at 2364:15-2365:13; Deposition of Robert Cantley taken in the matter 2 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT PERINE CORPORATION’ MOTION FOR SUMMARY JUDGMENTco CU GF SD TR DW Re m oO PN De FF WwW N 21 BRyYDON Huco & PARKER 135 MAIN SpREDT 20" FLO Sart Francisco, CA 94108 of Robert Ross v. Asbestos Defendants, San Francisco County Superior Court, case number 274099 attached to the Johnson Decl. as Exhibit F at 95:4-15. 5. Robert Ross completed his apprenticeship program in approximately 1962 or 1963. Johnson Decl., Exhibit E at 2365:6-10. 6. Mr. Ross attended union meetings at least once per year, and sometimes more often. Johnson Decl., Exhibit D at 573:1-7. 7. Mr. Ross also received the Asbestos Worker Journal, although he denied reading it. Johnson Decl., Exhibit E at 2365:22-2366:6. 8. Mr. Ross wore a mask throughout his career as an insulator. Johnson Deel., Exhibit D at 300:16-24. 9. The Asbestos Workers Union, in particular Local No. 16, was aware of the azards of asbestos by 1957. Declaration of Howard Spielman at J13 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, attached to the Johnson Decl. as Exhibit G; Deposition of Stephen Steele, taken in Sylvia Currier v. Asbestos Defendants, Superior Court of the County of San Francisco, case No. CGC- 06-454323, dated August 21, 2009 attached to the Johnson Deel. as Exhibit H, at 142:7-143:10. 10. 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 members passed away last year. A large 3 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT PERINE CORPORATION’ MOTION FOR SUMMARY JUDGMENTco CU GF SD TR DW Re m oO PN De FF WwW N 21 BRyYDON Huco & PARKER 135 MAIN SpREDT 20" FLO Sart Francisco, CA 94108 number of the men had definite symptoms of the aforementioned hazards of our trade.” Johnson Decl., Exhibit G at Exhibit 1 at pp. 19- 22, thereto; Johnson Decl., Exhibit H at 142:7-143:10. 11. 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 .... " Johnson Decl., Exhibit G at Exhibit 2 at pp. 19- 22, thereto. 12. The April, 1958 issue of The Asbestos Worker noted: "The health hazards of the trade were discussed and Local No. 16 resented 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.” Johnson Decl., Exhibit G at Exhibit 3 at pp. 20, 22, thereto. 13. 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 each were brought out.” Johnson Decl., Exhibit G at Exhibit 4 at pp. 20- 22, thereto; see also Johnson Decl., Exhibit G at Exhibit 5 at second to last page thereof. 14. The February, 1963 issue of the Asbestos Worker included a three-page article entitled "Progress Report on Health azards,”" 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." Johnson Decl., Exhibit G at Exhibit 6 at pp. 25- 27, thereto. 4 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT PERINE CORPORATION’ MOTION FOR SUMMARY JUDGMENTco CU GF SD TR DW Re m oO PN De FF WwW N 21 BRyYDON Huco & PARKER 135 MAIN SpREDT 20" FLO Sart Francisco, CA 94108 15. 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 that a report of the studies so far completed be made to its members.” Johnson Decl., Exhibit G at Exhibit 7 at p. 1, thereto. 16. 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 lung cancer among asbestos workers, concluding that "[ijndustrial exposure to asbestos by insulation workers, as studied here, results in a marked increase in the incidence of cancer of the lung." Johnson Decl., Exhibit G at Exhibit 8 at p. 5-9, thereto; see also Johnson Decl., Exhibit G at Exhibit 9 at pp. 22, 26, thereto [referencin: report on “heath hazard research program” given at Western States Conference of Asbestos Workers. ]. 17. Plaintiffs’ expert, Richard Cohen, MD, has expressed the following opinions: (1) "the medical and scientific Fiterature 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 1952 that, regardless of the setting, a person exposed to airborne 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 concerning the health hazards of asbestos exposure and the associated risk of 5 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT PERINE CORPORATION’ MOTION FOR SUMMARY JUDGMENTco CU GF SD TR DW Re m oO PN De FF WwW N 21 BRyYDON Huco & PARKER 135 MAIN SpREDT 20" FLO Sart Francisco, CA 94108 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 ] 7, 8(h), and 10, attached to the Johnson Decl. as Exhibit I. Declaration of Richard Cohen filed by plaintiffs in John Casey et al., v. Asbestos Defendants, Superior Court of the County of San Francisco, case No. CGC-10-275517, at | 20, 23, 27, and 29 attached to the Johnson Decl. as Exhibit J. 18. Plaintiffs’ responses to Perini’s interrogatories requriring plaintiffs to state all facts which support their claims against Perini 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 B at 3:7-10; Johnson Decl., Exhibit C at 28:28-29:3. Dated: February 22, 2013 By: 6 BRYDON HUGO & PARKER /s/ Josette D. Johnson Edward R. Hugo P. M. Bessette Josette D. Johnson Attorneys for Defendant PERINI CORPORATION SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT PERINE CORPORATION’ MOTION FOR SUMMARY JUDGMENT