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

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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
PERINI- 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.

I. INTRODUCTION

(ASBESTOS)
Case No. CGC-10-275731

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF PERINI
CORPORATION’S MOTION FOR
SUMMARY JUDGMENT

[Filed Concurrently With Notice of Motion;
Separate Statement; Request for Judicial
Notice; 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 PERINI CORPORATION (“Perini”) owed no duty of care to plaintiff

Robert Ross because Robert Ross was a sophisticated user of asbestos. As a member of the

Asbestos Workers Union, Mr. Ross knew of the dangers of asbestos and even took

precautions to protect himself from exposure to asbestos.

Under the sophisticated user doctrine announced in Johnson v. American Standard,

Inc. (2008) 43 Cal.4th 56, Perini owed no duty of care to plaintiff, and summary judgment

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should be entered in favor of Perini.
IL. STATEMENT OF FACTS

A. Plaintiff's Allegations Against Perini.

Perini is a contractor. The cause of action against Perini is titled premises
owner/contractor liability', based upon the premise that Perini was somehow negligent in
its management of the job sites where plaintiff worked as an insulator. (See Plaintiff's
Third Amended Complaint at p. 2 & 56:4, attached to the Declaration of Josette D. Johnson
In Support Of Motion For Summary Judgment (“Johnson Deci.”) as Exhibit A.

Perini propounded special discovery on Plaintiff seeking all facts which support
their claims against Perini. Plaintiff stated that he “was exposed to asbestos by working in
close proximity to trades employed by Perini who were handling and disturbing asbestos-
containing products” during the 1960s and 1970s. (UMF No. 1.) Robert Cantley, a former
co-worker of plaintiff, confirmed that plaintiff worked as an insulator installing asbestos

containing insulation at several job sites where Perini was also present.

B. Robert Ross, a member of the Asbestos Workers union, was
knowledgeable regarding the dangers of asbestos exposure.

Robert Ross joined the Asbestos Workers, local 16 in San Francisco, in March
1959. (UMF No. 2.) Mr. Ross received both class room and field training in Asbestos
Workers’ apprenticeship program. (UMF No. 3.) His class-room instructor was Richard
Holmes. (UMF No. 4.) Robert Ross completed his apprenticeship program in
approximately 1962 or 1963. (UMF No. 5.) Mr. Ross attended union meetings at least once
per year, and sometimes more often. (UMF No. 6.) Mr. Ross also received the Asbestos
Worker Journal, although he denied reading it. (UMF No. 7.) Mr. Ross wore a mask
throughout his career as an insulator. (UMF No. 8.)

The Asbestos Workers Union, in particular Local No. 16, was aware of the hazards

of asbestos by 1957. (UMF No. 9) For instance, the Union's April, 1957 issue of The Asbestos

1 Plaintiff Jean Ross also alleges loss of consortium against Perini.

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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 number of the men had definite symptoms of the
aforementioned hazards of our trade.” (UMF No. 10.) According to this issue, "R. Holmes,”
was Local No. 16's delegate in attendance at said Conference. (Id.) Richard Holmes was
the instructor of the apprentice program for Local 16. (UMF No. 4.)

The October, 1957 issue 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 ...."" (UMF No. 11.) The April, 1958
issue 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.” (UMF
No. 12.)

The May, 1959 issue 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.” (UMF No. 13.) The February, 1963 issue 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." (UMF No. 14.)

The February, 1964 issue included a one-page article entitled “Insulation Workers’
Lung Problems Discussed at Meeting of American Medical Association." The article 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.” (UMF No. 15.) The November, 1964 issue 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

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asbestos by insulation workers, as studied here, results in a marked increase in the
incidence of cancer of the lung." (UMF No. 16.)

Plaintiffs in similar asbestos-related matters filed in this court frequently submit
declarations of experts such as Richard Cohen, MD, to establish that (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 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 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 circulated in the mainstream medial (newpapers).” (UMF No. 17.)

In addition, Plaintiffs’ own discovery responses state that “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.” (UMF No. 18.) Certainly the hazards
of asbestos were well known to Mr. Ross’s union, and by extension to Mr. Ross, when Mr.
Ross joined Local 16 in 1959.

Based on these facts, it is undisputed that Robert Ross’s union, Asbestos Workers
local 16, and Robert Ross himself were sophisticated users of asbestos who were

knowledgeable about the hazards of asbestos.

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Huco & PARKER
135 MAIN SpREDT
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Sart Francisco, CA 94108

il. LEGAL ANALYSIS

A. Summary Adjudication Is Properly Granted On The Issue Of Duty,
Which Is A Legal Question For The Court To Determine.

A defendant is entitled to summary judgment when one or more elements of the
plaintiffs’ cause of action cannot be established. (Barnes v. Black (1999) 71 Cal. App. 4 1473,
1477.) The defendant need not conclusively negate an element of the plaintiff's cause of
action, but may show only that one or more of its elements cannot be established. (Rubin v.
United Air Lines, Inc, (2002) 96 Cal. App. 4" 364, 371.) Duty is an essential element of each
of plaintiffs’ causes of action.

The defendant can satisfy its burden either by producing evidence which negates an
element of the cause of action, or by showing, through the plaintiff's deficient discovery
responses, that plaintiff does not possess, and cannot reasonably obtain, evidence to
establish the particular element. (Rubin, supra, 96 Cal.App.4® at p. 371.) Pursuant to Code
of Civil Procedure § 437c(f)(1), a party may move for summary adjudication as to one or
more causes of action if the party contends that the cause of action has no merit.

“Under the current version of the summary judgment statute, a moving defendant
need not support his motion with affirmative evidence negating an essential element of the
responding party’s case. Instead, the moving defendant may point to the absence of
evidence to support the plaintiffs case.” (McGomnell v. Kaiser Gypsum (2002) 98 Cal. App.4th
1098, 1103-05.) All that must be shown is that ove or all of plaintiff's causes of action has
“no merit,” in that at least one of the elements of each cause of action cannot be factually
supported. (Rubin v. United Air Lines, Inc. (2002) 96 Cal. App. 4th 364, 371). Perini here has
met its burden regarding Plaintiffs’ negligence and strict products liability causes of action
as it owed no duty as a matter of law.

B. Perini Cannot Be Liable For Failing To Warn A Sophisticated User
Of Asbestos About The Hazards Of Asbestos,

In Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, the Supreme Court
expressly adopted the sophisticated user defense, which “negate[s] a manufacturer’s duty

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to warn of a product’s potential danger when the plaintiff has (or should have) advance
knowledge of the product's inherent hazards.” (Johnson, supra, 43 Cal.4 at p. 61.) Johnson
explained that under the sophisticated user defense, “sophisticated users need not be
warned about dangers of which they are already aware or should be aware.” (Id. at p. 65.)
“Because these sophisticated users are charged with knowing the particular product's
dangers, the failure to warn about those dangers is not the legal cause of any harm that
product may cause.” (Ibid.) The Court held that because the intended sophisticated users
“are deemed to know of the risks, manufacturers have no obligation to warn, and
providing no warning is appropriate,” and that “[t]he focus of the defense...is whether the
danger in question was generally known within the trade or profession that a manufacturer
should not have been expected to provide a warning specific to the group to which the
plaintiff belonged.” (Id. at p. 72.)

Actual knowledge of the hazards is not required for the defense. The Supreme
Court explicitly rejected a subjective standard (“what the plaintiff actually knew”) in favor
of an objective standard (what he “knew or should have known”). “It would be nearly
impossible for a manufacturer to predict or determine whether a given user or member of
the sophisticated group actually has knowledge of the dangers because of the infinite
number of user idiosyncrasies.” (Johnson, supra, at p. 71.) Thus, an individual plaintiff's
actual knowledge, or claimed lack of knowledge, is irrelevant. (Ibid.) Additionally, The
Jehnsen holding is not limited to situations in which a manufacturer directly supplied its
product to the Plaintiff. (Jolson v. American Standard (2008) 43 Cal.4th 56.) Indeed, as can
be seen from the Johnson opinion, most of the cases relied on by the Supreme Court
involved injuries to a person other than the consumer to whom the manufacturer initially
sold its’ product. (id., citing Fierro v. International Harvester Co, (1982) 127 Cal. App.862; In re
Related Asbestos Cases (N.D. Cal.1982) 543 F.Supp 1142; Plenger v. Alza Corp. (1992) 11
Cal. App.4th 349; Holmes v. J.C. Penney Co. (1982) 133 Cal.App.3d 216; In re Air Crash Disaster
(6th Cir. 1996) 86 F.3d 498; Akin v. Ashland Chemical (L0th Cir.1988) 156 F.3d 1030, 1037

[manufacturer of chemical had no duty to warn Air Force of dangers of chemical exposure

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and was not liable to Air Force employee who suffered injury from exposure]; Autcliff v.
State Employees Credit Union (1982) 414 Mich.624, 627 [manufacturer of scaffold had no duty
to give instructions for safe rigging and thus was not liable to worker injured when scaffold
gave way]; Strong v. E.L. Du Pont de Nemours Co. Inc. (8th Cir.1981) 667 F.2d 682, 686-687
[natural gas pipe manufacturer had no duty to warn natural gas utility, or its employees, of
well known gas line dangers]; Billiar 0. Minnesota Mining and Manufacturing Co. (1980) 623
F.2d 240, 246 [district court correctly instructed jury to consider the extent of knowledge of
plaintiff, who sued manufacturer of chemical used at her place of employment, in
determining whether defendant fulfilled its duty to warn adequately].)

In analyzing a manufacturer’s duty to warn, as affected by the sophisticated user
doctrine, the two cases discussed at length in Johnson — Fierro and In re Asbestos — apply the
duty (if it exists) from the manufacturer to the purchaser/user, not the injured party.

In Fierro, the decedent was employed by Luer Packing Co. (Fierro, supra, 127
Cal.App. at 865.) Leur purchased a truck body from International Harvester, which Leur
modified by installing a refrigeration unit to the chassis. (Id. at 865.) Decedent was driving
the truck when a tire blew out, causing the vehicle to roll over, and gasoline to spill from
the tank and catch fire. (Ibid.) At trial, plaintiffs sought a jury instruction to the effect that
International had a duty to warn Leut that attaching a power cable from the refrigeration
unit to the battery of the vehicle might create a fire hazard. (ld. at 866.) In affirming the
trial court’s rejection of the proposed instruction, the Fierro Court stated, “A sophisticated
organization like Leur does not have to be told that gasoline is volatile and that sparks
from an electrical connection or friction can cause ignition.” (Ibid.) The Court of Appeal
concluded that “the absence of a warning to Leur did not substantially or unreasonably
increase any danger that may have existed in [Decedent] using the International unit and
Leur’s failure to guard against those eventualities did not render the International unit
defective.” (Id. at 866-867.)

Similarly, in In re Related Asbestos, plaintiffs were insulators and shipyard workers:

employed by the US Navy when they were allegedly exposed to asbestos. (In re Related

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Asbestos, supra, 543 F.Supp. at 1150.) The court found that defendant-manufacturers of
asbestos-containing products could assert the “sophisticated user” affirmative defense to
plaintiffs’ strict liability claims based upon the manufacturer's failure to warn. (lbid.) The
court noted that under California law, defendants could assert that the Navy’s negligence
in failing to provide their employees with a safe working environment constituted a
superseding cause which relieved the defendant of strict liability. (Ibid., citing Cronin v.
J.B.E. Olson Corp. 8 Cal.3d 121, 133.)

As the In re Related Asbestos court noted later in its opinion, the “sophisticated user”
doctrine is very similar in principle to the superseding cause defense. As applied in In re
Related Asbestos, defendants asserted that “the Navy was a ‘sophisticated user’ of asbestos
products — that is, that the Navy, as an employer, was as aware of the dangers of asbestos
as were defendants and that the Navy nonetheless misused the products, thereby absolving
the defendants of liability for failure to warn the Navy’s employees of the products’
danger.” (Id. at 1151; emphasis added].) The court ultimately refused to strike the
defendant's “sophisticated user” defense, recognizing it as a potential defense under
California law (a potential realized in the Johnson opinion).

Two other California cases relied upon by the Court in Johnson — Plenger and Holmes
~ reach similar conclusions. The Plenger plaintiffs—husband and daughter of a woman
who allegedly died from an infection caused by an implanted [UD—alleged negligence and
strict liability causes of action against the manufacturer of the IUD on the basis that the
manufacturer’s warning to the physician who prescribed the IUD for the decedent was not
sufficient, because it did not warn of a risk of death. (Plenger, supra, 11 Cal.App.4th 349.)
The Court of Appeal upheld the trial court’s grant of summary judgment, citing evidence
that the manufacturer’s warning included risk of infection, and that the “risk of death from
any untreated infection was a matter of general and elemental medical knowledge.” (Id. at
362.) The court in Plenger noted, “We are aware of no authority which requires a
manufacturer to warn of a risk which is readily known and apparent to the consumer .. .
[I}f the risk of death from untreated infection is universally known in the medical

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profession, the failure to warn the physician of that risk cannot be the legal cause of the
decedent's death.” (Id. at 362.)

The Plenger court also rejected the argument that the manufacturer had a duty to
warn the decedent directly, noting, “it is well established that a manufacturer fulfills its
duty to warn if it provides adequate warning to the physician,” and “it would be virtually
impossible for a manufacturer to comply with the duty of direct warning, as there is no
way to reach the patient.” (Id. at 362, fn. 6.)

In Holmes, defendant J.C. Penney sold a carbon dioxide cartridge which was used to
power a pellet gun. (Holmes, supra, 133 Cal.App.3d 216.) The plaintiff was struck by a pellet
from the gun and sued J.C. Penney, alleging that J.C. Penney was strictly liable on the
theory that the cartridge was defective for failing to warn of injuries to bystanders. The
Court of Appeal rejected Plaintiff's theory, stating “[a] seller does not need to adda
warning when ‘the danger, or potentiality of danger is generally known and recognized.””
(id, at 220, citing Bojorquez v. House of Toys, Inc., (1976) 62 Cal.App.3d 930, 933.) The court
also found that a warning in that case would have served no useful purpose, because it was
“inconceivable” that the danger of an errant shot harming a bystander was unknown.

(bid.)

Here, it is indisputable that Robert Ross was a member of the Asbestos Workers
Union, Local 16, which was well informed regarding the dangers of asbestos. Mr. Ross’
teacher in the Asbestos Workers’ apprenticeship program was a delegate to the 1957
meeting of the Western States Conference where the problems of asbestosis were discussed,
stemming from the reports of Local No. 16. Mr. Ross also received the Asbestos Workers
journal; the fact that he did not bother to read them does not detract from the fact that the
information was readily available to him. The “sophisticated user” defense, and the
conceptually-related supersecing cause defense, are both based on the premise that the
absence of a warning is not the cause of injury. Where, as here, the use of a product is a
“sophisticated user” of the product, the “sophisticated user” doctrine applies to negate the
manufacturer's duty to warn the user. The sophisticated user’s mis-use of the product is a

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERIN] CORPORATION'S MOTION
FOR SUMMARY JUDGMENT1 ||superseding cause of harm. It is the user’s activity, not the Perint’s failure to warn the user of
2 |\dangers already known to it, that is the cause of plaintiff's injuries herein.
3]1V. CONCLUSION
4 Based on the forgoing, Perini requests summary judgment be granted.
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6 ||Dated: February 22, 2013 BRYDON HUGO & PARKER
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By:  _/s/ Josette D. Johnson
8 Edward R. Hugo
P. M. Bessette
9 Josette D. Johnson
Attorneys for Defendant
0 PERINT CORPORATION
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BRYDON 10 i
Huco & Parktk |" EMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PERINI CORPORATION’S MOTION
san en aoe sas FOR SUMMARY JUDGMENT