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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1 || Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588]
21) Josette D. Johnson [Bar No. 195977]
BRYDON HUGO & PARKER ELECTRONICALLY
3 || 135 Main Street, 20th Floor FILED
San Francisco, CA 94105 Superior Court of California,
41| Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 FEB 20 2013
5 || Email: service@bhplaw.com Clerk of the Court
6 || Attorneys for Defendant BY: ALISON ae puty Clerk
ROUNTREE PLUMBING & HEATING, INC.
7
8 SUPERIOR COURT - STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
0
1 || ROBERT ROSS and JEAN ROSS, (ASBESTOS)
Case No. CGC-09-275731
2 Plaintiffs,
vs. MEMORANDUM OF POINTS AND
3 AUTHORITIES IN SUPPORT OF
C.C. MOORE & CO. ENGINEERS, et al., ROUNTREE PLUMBING & HEATING,
4 INC. MOTION FOR SUMMARY
Defendants. JUDGMENT, OR IN THE ALTERNATIVE,
5 SUMMARY ADJUDICATION
6 [Filed Concurrently With Notice of Motion;
Separate Statement; Request for Judicial
7 Notice; Declaration of Josette D. Johnson]
8 Date: May 9, 2013
Time: 9:30 a.m.
9 Dept: 503
Judge: Hon. Teri L. Jackson
20
Complaint Filed: | December 17, 2010
21 Trial Date: June 10, 2013
22
23
24
25
26
27
28
BryDON
Law Group MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
Ps cane Re HEATING, INC.'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
San Peaneisen, CA 4104 ADJUDICATION1 TABLE OF CONTENTS
2
LT INTRODUCTION wu... ese esesseesessesestessesseseesseseeseeseesesseeseesesssensenessesssassesseessssesssseesssscesesanesee 1
3
Tl. STATEMENT OF FACTS ....ccccsscscseesssescssnssesecssetecseessnseessnsersesssessssesersersseserserssneecsseseesecssenerse 1
4
A. Plaintiff's Allegations Against Roumtree.......ccccecccscestseesecsessecseesnesstesseesneesnee 1
5
B. Robert Ross, a member of the Asbestos Workers union, was
6 knowledgeable regarding the dangers of asbestos exPOSUTE. «0... cece reese” 2
T |) TIL = LEGAL ANALYSIS weccecssescseesecseseessessasessesssessesnessarecssesesnessaseasseseesecsnassaseaseesecsecsnestaeese 4
8 A. Summary Adjudication Is Properly Granted On The Issue Of Duty,
Which Is A Legal Question For The Court To Determine. ......cscsssrcseseeseresessesneesy 4
9
B. Rountree Cannot Be Liable For Failing To Warn A Sophisticated User Of
0 Asbestos About The Hazards Of Asbestos...
1 C. Plaintiffs’ Cause of Action For Strict Liability Fails Because Rountree Did
Not Put Into the Stream of Commerce Any Product to Which Plaintiff
2 Was Exposed, ....cscccesccicessssecssescsscesneessasessnessunecancessnessessesnsessunscessesnnessunecsancesnnessasesnnensaae 10
BY) TV. CONCLUSION os cessesecssssesnessesssnsesessecsnersaseasessecsecsnessarecsesseesnensaseaseaneesecsuestassasesseasecseeseases il
4
5
6
7
8
9
20
21
22
23
24
25
26
27
28
BryDON i
Law Group MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
Ps cane Re HEATING, INC.'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
Son Feapeisen, CA 941 ADJUDICATION1 TABLE OF AUTHORITIES

2 Cases

3 || Akin v. Ashland Chemical

(LOth Cir.1988) 156 F.3d 1030 oessesecsesscseessstsceneccnseecsnsecsnessoneessnecnsnccsnseesnesansecsnnsecssesanseesnrconseesias 6
4
Anteliff. State Employees Credit Union
5 (1982) 414 Mich.624 oo. ..eecseseesesssstecsnsecseessensesnconssecsnsecsnecsoneesasccnssccsnseesnesansecsnnseesecsaneeesersonsessias 6
6 || Barnes v. Black
(1999) 71 Cal. App. 4 1473.
7
Billiar v. Minnesota Mining and Manufacturing Co.
8 (1980) 623 F.2d 240... eccseccsstecssesscneecsnsecscsscssesarecnnecssnsecsvessesecsareceuscsenseesecsnasectinseesectanecserenanctias 7
9 || Bojorquez v. House of Toys, Inc.,
(1976) 62 Cal. App.3d 980... cecsecscsccssecsecssetscsireenncssnseesiessenecsarecnnscssnseesecsnasectiasersectansecsecenanctins 9
0
Cronin v. J.B.E. Olson Corp.
1 S CalBd 121 oe eeceeccccecssesecseeseecsnessesscesnsecnnessesecsnesseasecsnsecaneseesscsiseecanecsasecsvessonesarsectasteassesvessenses 8

2 || Fierro v. International Harvester Co.
(1982) 127 Cal App.862 -occccsccccceccsecsetsntecntcsecsneeseesesecsecsiesinsenstentcsiesietintenteeatesecsiessetecseesecste 6,7

Greenman v. Yuba Power Products, Inc.
4 (1963) 59 Cal.2d 57...

5 || Holmes v. J.C. Penney Co.

(1982) 133 Cal App.3d 216... ctetcetcnneeseescnscnecstessssniecntcsieseeseesntscateaicsnessescesete 6, 8,9
6
In re Air Crash Disaster
7 (6th Cir. 1996) 86 F.3d 498 wooo ees ee ces cesessseeeasessessesesiesiesiesientesesiestesecneenseesenseneenaee 6
8 || In re Related Asbestos Cases
(N.D. Cal.1982) 543 F.Supp 1142 woos ccescesceecnecstessessesecntcatesseeseesntecateaicanessescesene 6,7,8
9
Johnson v. American Standard
20 (2008) 43 Cal. 4th 56...cccccsscsscsscsscsessesssssssessstsesseussascsssssssscsecsecssesseessessessenteasesseaseasease 15,68

214) Merrill v. Navegar, Inc.
(2001) 26 Cal.4% 465 .

22
McGonnell v. Kaiser Gypsum
23 (2002) 98 Cal. App Ath 1098... cecscessssscssessnteessesssneessnessssessnueessssssecssnserssessnecssnsseisessneersuessneeesins 5
24 |) O'Neill v. Crane Co.
(2011) 53 Cal 4 335 vesscsessesesesssseecsnseessesssesesssssneessnscrsessnusessensnscssnssessessnueessnetessessneeessessnneets 10
25
Plenger v, Alza Corp.
26 (1992) 11 Cal. App Ath 349... cecssesessssscnsessneersiessnecssnssessessnensessnuecssnssessesssensuessnersneseesiessesee 6,8
271| Rubin v. United Air Lines, Inc.
(2002) 96 Cal. App. 4th 364....cccsseesssssessessseecsesssneecsneesssssssecssusssseesssssssessseecssnsseisessneerssessseeesins 5
28
BRYDON ii
Huo & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
1SSMawn Stier HEATING, INC’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATIONStrong v. E.1. Du Pont de Nemours Co. Inc.
(8th Cir.1981) 667 F.2d 682

Taylor v. Elliott Turbomachinery Co., Inc.
(2009) 171 Cal. App.4th 564..

won

iS

Statutes
Code of Civil Procedure § 437 C(E)(1) ee eeeseensersesteseersersssesrersersesseneersansevsersarsassercersareessercerearentaey 5

~ nis

wo

BRYDON iii
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
San Francisco, CA 94105 ADJUDICATION1] 1. INTRODUCTION
2 Defendant Rountree Plumbing & Heating, Inc. (“Rountree”) owed no duty of care
3 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.
6 Under the sophisticated user doctrine announced in Johnson v. American Standard,
7 Inc. (2008) 43 Cal.4th 56, Rountree owed no duty of care to plaintiff, and summary
8 jadgment should be entered in favor of Rountree. In the alternative, summary
° adjudication of plaintiffs’ strict liability cause of action should be entered in favor of
° Rountree because there is no evidence that it manufactured, supplied or put into the
1 stream of commerce any asbestos containing product to which plaintiff was exposed.
: Il. STATEMENT OF FACTS
4 A.  Plaintiff’s Allegations Against Rountree.
° Rountree is a contractor. Plaintiffs causes of action against Rountree are
6 negligence, strict products liability, premises owner/contractor liability, and loss of
7 consortium (See Plaintiff's Third Amended Complaint at p. 2, & 51:19, and 55:23,
§ attached to the Declaration of Josette D. Johnson In Support Of Motion For Summary
° Judgment (“Johnson Decl.”) as Exhibit A; Request for Dismissal attached to Johnson
20 Decl. as Exhibit B.)
a Rountree propounded special discovery on Plaintiff seeking all facts which
2 support his claims against Rountree. Plaintiff stated that Rountree is a plumbing and
8 heating contractor whose employees were “removing and disturbing existing asbestos-
* containing insulation, joint compound, drywalling, fireproofing and ceiling materials” at
25 Stanford University, Pier 39, UC Berkeley, UCSF Medical Center between 1960 and 1962,
*6 and at Sonoma Valley Hospital for 1 month in 1982, while Robert Ross worked as an
7 insulator installing asbestos containing at these sites. (UMF No. 1.) During his
28
BRYDON 5
Huco & PaRKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
Se Sree HEATING, INC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
Son Fran, CA M4108 ADJUDICATION1 || deposition, Robert Ross testified that Rountree employees disturbed existing

2 || fireproofing and sometimes insulation when installing pipe at Stanford University, Pier
3 || 39, UC Berkeley, and Sonoma Valley Hospital while Robert Ross was also present; he

4 || denied seeing Rountree employees at UCSF Medical Center. (UMF No. 3.)

5 Additionally, plaintiff’s response to Rountree’s special interrogatories seeking all
6 || facts supporting plaintiff's strict products liability cause of action does not contain any
7 || allegations, let alone specific facts, that Rountree placed into the stream of commerce

8 || any asbestos-containing products which plaintiff was then exposed to. (UMF No. 20.)

9 || Rather, plaintiffs response repeats his assertion that Rountree employees were
0 || “removing and disturbing existing asbestos-containing insulation” and other materials.

1 || (UME No. 20, emphasis added.)

2 B. Robert Ross, a member of the Asbestos Workers union, was
3 knowledgeable regarding the dangers of asbestos exposure.
4 Robert Ross joined the Asbestos Workers, local 16 in San Francisco, in

5 || March 1959. (UMF No. 3.) Mr. Ross received both class room and field training in
6 || Asbestos Workers’ apprenticeship program. (UMF No. 4.) His class-room instructor
7 || was Richard Holmes. (UMF No. 5.) Robert Ross completed his apprenticeship program

8 || in approximately 1962 or 1963. (UMF No. 6.) Mr. Ross attended union meetings at least

9 || once per year, and sometimes more often. (UMF No.7.) Mr. Ross also received the

20 |) Asbestos Worker Journal, although he denied reading it. (UMF No. 8.) Mr. Ross wore a

21 |) mask throughout his career as an insulator. (UMF No. 9.)

22 The Asbestos Workers Union, in particular Local No. 16, was aware of the hazards
23 || of asbestos by 1957. (UMF No. 10.) For instance, the Union's April, 1957 issue of The

24 |) Asbestos Worker reported that, "The problems of Asbestosis and Silicosis were discussed
25 || at large [at the regular annual meeting of the Western States Conference on February 9,
26 |) 1957], stemming from the report of Local No. 16, in which it was revealed that eleven

27 |) members passed away last year. A large number of the men had definite symptoms of

28 || the aforementioned hazards of our trade.” (UMF No. 11.) According to this issue, "R.

BRYDON 2
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATIONHolmes," was Local No. 16's delegate in attendance at said Conference. (Id.) Richard

2 || Holmes was the instructor of the apprentice program for Local 16. (UMF No. 5.)

3 The October, 1957 issue advised: "Health Hazards: Being well aware of the health
4 || hazards in the Asbestos industry, President Sickles requested authority for the General

5 || Executive Board to make a study of the health hazards ...." (UMF No. 12.) The April, 1958
6 || issue noted: "The health hazards of the trade were discussed and Local No. 16 presented
7 || its case relative to the vital ‘capacity test’ given through its health and welfare program ....
8 || The results are very startling and should be the concern of each member of our trade.”

9 | (UME No. 13.)

0 The May, 1959 issue reported that, "Health Hazards relating to our trade were

1 || discussed and various types of respirators were presented and the good points of each

2 || were brought out." (UMF No. 14.) The February, 1963 issue included a three-page article
3 || entitled "Progress Report on Health Hazards," which described the efforts undertaken

4 |) for a survey of lung diseases among insulation workers in the Union and emphasizing

5 || that “everyone has to be examined - no one can be left out.” (UMF No. 15.)

6 The February, 1964 issue included a one-page article entitled “Insulation Workers’
7 || Lung Problems Discussed at Meeting of American Medical Association." The article

8 || stated, 'Two years ago our International undertook to stimulate interest into research

9 || into health problems in the insulation trade, which our men have long known to exist."
20 |) It also noted that "the American Medical Association requested that a report of the

21 |) studies so far completed be made to its members.” (UMF No. 16.) The November, 1964
22 || issue provided a report from Irving Silikoff, M.D., entitled "Asbestos Exposure and

23 || Neoplasia,” on the high rate of lung cancer among asbestos workers, concluding that

24 |) "lijndustrial exposure to asbestos by insulation workers, as studied here, results in a

25 || marked increase in the incidence of cancer of the lung.” (UMF No. 17.)

26 Plaintiffs in similar asbestos-related matters filed in this court frequently submit
27 || declarations of experts such as Richard Cohen, MD, to establish that (1) "the medical and

28 || scientific literature makes it clear that, at least as early as 1931, it was known in the

BRYDON 3
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATION1 || medical and scientific community that breathing asbestos dust was harmful and
2 || dangerous to human health" (2) “it was clear by 1952 that, regardless of the setting, a
3 || person exposed to airborne asbestos was at an increased risk of developing cancer"; (3) in

4 || 1950s, "there was a cancer concern not only for the asbestos factory workers, but for other

5 || trades exposed to asbestos working with asbestos containing products,” including

6 || asbestos insulation workers; (4) "Information was readily available in the late 1950s and
7 || 1960s concerning the health hazards of asbestos exposure and the associated risk of

8 || developing an asbestos-related disease”; and (5) in 1964 Dr. Iriving Selikoff’s study

9 || finding that a high proportions of asbestos insulators had died from cancer compared to
0 || the general population was “widely circulated in the mainstream medial (newpapers).”

1 || (UMF No. 18.)

2 In addition, Plaintiffs’ own discovery responses state that “The hazards associated
3 || with exposure to asbestos and the effect of asbestos exposure on humans have been well
4 || documented throughout this century. As early as the 1930s there existed a wealth of

5 || information available for defendant which evidences that exposure to asbestos and

6 || asbestos-containing products was a health hazard.” (UMF No. 19.) Certainly the hazards
7 || of asbestos were well known to Mr. Ross's union, and by extension to Mr. Ross, when

8 |) Mr. Ross joined Local 16 in 1959.

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

21 |) knowledgeable about the hazards of asbestos.

22

4 IW. LEGAL ANALYSIS

24 A Summa: Adjudication Is Property Granted On The Issue Of

25 Duty, Which Is A Legal Question For The Court To Determine.

26 A defendant is entitled to summary judgment when one or more elements of the

27 || plaintiffs’ cause of action cannot be established. (Barnes v. Black (1999) 71 Cal. App. 4"
28 |) 1473, 1477.) The defendant need not conclusively negate an element of the plaintiff's

BRYDON 4
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATION1 || cause of action, but may show only that one or more of its elements cannot be
2 || established. (Rubin v. United Air Lines, Inc. (2002) 96 Cal. App. 4" 364, 371.) Duty is an

3 || essential element of each of plaintiffs’ causes of action.

4 The defendant can satisfy its burden either by producing evidence which negates
5 || an element of the cause of action, or by showing, through the plaintiff's deficient

6 || discovery responses, that plaintiff does not possess, and cannot reasonably obtain,

7 || evidence to establish the particular element. (Rubin, supra, 96 Cal.App.4® at p. 371.)

wo

Pursuant to Code of Civil Procedure § 437¢(f)(1), a party may move for summary

9 || adjudication as to one or more causes of action if the party contends that the cause of

0 || action has no merit.

1 “Under the current version of the summary judgment statute, a moving defendant
2 || need not support his motion with affirmative evidence negating an essential element of

3 || the responding party’s case. Instead, the moving defendant may point to the absence of
4 || evidence to support the plaintiff's case.” (McGonnell v. Kaiser Gypsum (2002) 98

5 || Cal. App.4th 1098, 1103-05.) All that must be shown is that one or all of plaintiff's causes

6 || of action has “no merit,” in that at least one of the elements of each cause of action cannot
7 |) be factually supported. (Rubin v. United Air Lines, Inc. (2002) 96 Cal. App. 4th 364, 371).

8 || Rountree here has met its burden regarding Plaintiffs’ negligence and strict products

9 |) liability causes of action as it owed no duty as a matter of law.

20 B. Rountree Cannot Be Liable For Failing To Warn A Sophisticated
4 User Of Asbestos About The Hazards Of Asbestos.
22 In Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, the Supreme Court

23 || expressly adopted the sophisticated user defense, which “negate[s] a manufacturer's

24 |) duty to warn of a product’s potential danger when the plaintiff has (or should have)

25 |) advance knowledge of the product’s inherent hazards.” (Johnson, supra, 43 Cal.4™ at p.
26 |) 61.) Johnson explained that under the sophisticated user defense, “sophisticated users

27 |) need not be warned about dangers of which they are already aware or should be aware.”

28 |) (Id. at p. 65.) “Because these sophisticated users are charged with knowing the particular

BRYDON 5
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATION1 || product’s dangers, the failure to warn about those dangers is not the legal cause of any
2 || harm that product may cause.” (Ibid.) The Court held that because the intended
3 || sophisticated users “are deemed to know of the risks, manufacturers have no obligation

4 || to warn, and providing no warning is appropriate,” and that “[t]he focus of the

5 || defense...is whether the danger in question was generally known within the trade or
6 || profession that a manufacturer should not have been expected to provide a warning
7 || specific to the group to which the plaintiff belonged.” (Id. at p. 72.)

8 Actual knowledge of the hazards is not required for the defense. The Supreme

9 || Court explicitly rejected a subjective standard (“what the plaintiff actually knew”) in

0 || favor of an objective standard (what he “knew or should have known”). “It would be

1 || nearly impossible for a manufacturer to predict or determine whether a given user or

2 || member of the sophisticated group actually has knowledge of the dangers because of the
3 || infinite number of user idiosyncrasies.” (Johnson, supra, at p. 71.) Thus, an individual

4 || plaintiff’s actual knowledge, or claimed lack of knowledge, is irrelevant. (Ibid.)

5 || Additionally, The Johnson holding is not limited to situations in which a manufacturer

6 || directly supplied its product to the Plaintiff, (Johnson v. American Standard (2008) 43

7 {| Cal.4th 56.) Indeed, as can be seen from the Johnson opinion, most of the cases relied on

8 || by the Supreme Court involved injuries to a person other than the consumer to whom the

9 || manufacturer initially sold its’ product. (/d., citing Fierro v. International Harvester Co.

20 |) (1982) 127 Cal. App.862; In re Related Asbestos Cases (N.D. Cal.1982) 543 F.Supp 1142;

21 |) Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349; Holmes v. J.C. Penney Co. (1982) 133

22 |) Cal.App.3d 216; In re Air Crash Disaster (6th Cir. 1996) 86 F.3d 498; Akin v. Ashland

23 || Chemical (10th Cir.1988) 156 F.3d 1030, 1037 [manufacturer of chemical had no duty to

24 |) warn Air Force of dangers of chemical exposure and was not liable to Air Force employee
25 || who suffered injury from exposure]; Anteliffv. State Employees Credit Union (1982) 414

26 |) Mich.624, 627 [manufacturer of scaffold had no duty to give instructions for safe rigging
27 |) and thus was not liable to worker injured when scaffold gave way]; Strong v. El. Du Pont

28 |) de Nemours Co. Inc. (8th Cir.1981) 667 F.2d 682, 686-687 [natural gas pipe manufacturer

BRYDON 6
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATION1 || had no duty to warn natural gas utility, or its employees, of well known gas line
2 || dangers}; Billiar v. Minnesota Mining and Manufacturing Co. (1980) 623 F.2d 240, 246
3 || [district court correctly instructed jury to consider the extent of knowledge of plaintiff,

4 || who sued manufacturer of chemical used at her place of employment, in determining

5 || whether defendant fulfilled its duty to warn adequately].)

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

9 In Fierro, the decedent was employed by Luer Packing Co. (Fierro, supra, 127

0 || Cal.App. at 865.) Leur purchased a truck body from International Harvester, which Leur
1 || modified by installing a refrigeration unit to the chassis. (Id. at 865.) Decedent was

2 || driving the truck when a tire blew out, causing the vehicle to roll over, and gasoline to

3 || spill from the tank and catch fire. (Ibid.) At trial, plaintiffs sought a jury instruction to the
4 || effect that International had a duty to warn Leur that attaching a power cable from the

5 || refrigeration unit to the battery of the vehicle might create a fire hazard. (Id. at 866.) In

6 || affirming the trial court’s rejection of the proposed instruction, the Ferre Court stated, “A
7 || sophisticated organization like Leur does not have to be told that gasoline is volatile and

8 || that sparks from an electrical connection or friction can cause ignition.” (Ibid.) The Court

9 || of Appeal concluded that “the absence of a warning to Leur did not substantially or

20 |) unreasonably increase any danger that may have existed in [Decedent] using the

21 |) International unit and Leur’s failure to guard against those eventualities did not render
22 || the International unit defective.” (Jd. at 866-867.)

23 Similarly, in In re Related Asbestos, plaintiffs were insulators and shipyard workers
24 |) employed by the US Navy when they were allegedly exposed to asbestos. (In re Related
25 || Asbestos, supra, 543 F.Supp. at 1150.) The court found that defendant-manufacturers of
26 || asbestos-containing products could assert the “sophisticated user” affirmative defense to
27 |) plaintiffs’ strict liability claims based upon the manufacturer's failure to warn. (Ibid.) The

28 |) court noted that under California law, defendants could assert that the Navy's negligence

BRYDON 7
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATION1]/ in failing to provide their employees with a safe working environment constituted a
2 || superseding cause which relieved the defendant of strict liability. (Ibid., citing Cronin v.

3 |) J.B.E. Olson Corp. 8 Cal.3d 121, 133.)

4 As the In re Related Asbestos court noted later in its opinion, the “sophisticated

5 || user” doctrine is very similar in principle to the superseding cause defense. As applied in
6 || In re Related Asbestos, defendants asserted that “the Navy was a ‘sophisticated user’ of

7 || asbestos products — that is, that the Navy, as an employer, was as aware of the dangers of

wo

asbestos as were defendants and that the Navy nonetheless misused the products,

9 || thereby absolving the defendants of liability for failure to warn the Navy's employees of
0 || the products’ danger.” (Id. at 1151; emphasis added].) The court ultimately refused to

1 || strike the defendant's “sophisticated user” defense, recognizing it as a potential defense
2 || under California law (a potential realized in the Johnson opinion).

3 Two other California cases relied upon by the Court in Jolson ~ Plenger and

4 || Holmes — reach similar conclusions. The Plenger plaintiffs—husband and daughter of a

5 || woman who allegedly died from an infection caused by an implanted IUD—alleged

6 || negligence and strict liability causes of action against the manufacturer of the IUD on the
7 || basis that the manufacturer’s warning to the physician who prescribed the TUD for the

8 || decedent was not sufficient, because it did not warn of a risk of death. (Plenger, supra, 11

9 || Cal.App.4th 349.) The Court of Appeal upheld the trial court’s grant of summary

20 |) judgment, citing evidence that the manufacturer’s warning included risk of infection, and
21 |) that the “risk of death from any untreated infection was a matter of general and

22 |) elemental medical knowledge.” (id. at 362.) The court in Plenger noted, “We are aware of
23 |) no authority which requires a manufacturer to warn of a risk which is readily known and
24 || apparent to the consumer . . . [I]f the risk of death from untreated infection is universally
25 || known in the medical profession, the failure to warn the physician of that risk cannot be
26 |) the legal cause of the decedent's death.” (Id. at 362.)

27 The Plenger court also rejected the argument that the manufacturer had a duty to

28 || warn the decedent directly, noting, “it is well established that a manufacturer fulfills its

BRYDON 8
Huco & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATION1]| duty to warm if it provides adequate warning to the physician,” and “it would be
2 || virtually impossible for a manufacturer to comply with the duty of direct warning, as

3 || there is no way to reach the patient.” (Id. at 362, fn. 6.)

4 In Holmes, defendant J.C. Penney sold a carbon dioxide cartridge which was used
5 || to power a pellet gun. (Holmes, supra, 133 Cal.App.3d 216.) The plaintiff was struck by a
6 || pellet from the gun and sued J.C. Penney, alleging that J.C. Penney was strictly liable on
7 || the theory that the cartridge was defective for failing to warn of injuries to bystanders.

wo

The Court of Appeal rejected Plaintiff's theory, stating “[a] seller does not need to add a
9 || warning when ‘the danger, or potentiality of danger is generally known and

0 || recognized.’” (Id. at 220, citing Bojorquez v. House of Toys, Inc., (1976) 62 Cal.App.3d 930,
1 || 933.) The court also found that a warning in that case would have served no useful

2 || purpose, because it was “inconceivable” that the danger of an errant shot harming a

3 || bystander was unknown. (Ibid.)

4 Here, it is indisputable that Robert Ross was a member of the Asbestos Workers
5 || Union, Local 16, which was well informed regarding the dangers of asbestos. Mr. Ross’
6 || teacher in the Asbestos Workers’ apprenticeship program was a delegate to the 1957

7 || meeting of the Western States Conference where the problems of asbestosis were

8 || discussed, stemming from the reports of Local No. 16. Mr. Ross also received the

9 || Asbestos Workers journal; the fact that he did not bother to read them does not detract

20 |) from the fact that the information was readily available to him. The “sophisticated user”

21 |) defense, and the conceptually-related superseding cause defense, are both based on the
22 || premise that the absence of a warning is not the cause of injury. Where, as here, the use
23 || of a product is a “sophisticated user” of the product, the “sophisticated user” doctrine

24 | applies to negate the manufacturer’s duty to warn the user. The sophisticated user’s mis-
25 || use of the product is a superseding cause of harm. It is the user’s activity, not the Rountree’s

26 |) failure to warn the user of dangers already known to it, that is the cause of plaintiff's injuries

27 |) herein.
28
BRYDON 9
Huo & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
eho HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

San Francisco, CA 94105 ADJUDICATION1 c. Plaintiffs’ Cause of Action For Strict Liability Fails Because
Rountree Did Not Put Into the Stream of Commerce Any Product
2 to Which Plaintiff Was Exposed.
3 Plaintiff was not injured by any product manufactured, distributed or sold by
‘ Rountree. Likewise, there is no product at issue in this case that Rountree placed into the
° stream of commerce.
$ From the earliest cases to the most recent, California products liability law has
7 rested on the principle that those who manufacture, distribute or sell products can be
8 held strictly liable for injuries caused by design or manufacturing defects, or a failure to
° warn of serious dangers of products. Starting with the seminal case establishing strict
° products liability in California, the Supreme Court reasoned that imposing liability
1 strictly would “insure that the costs of injuries resulting from defective products are
: borne by the manufacturers that put such products on the market rather than by the injured
5 persons who are powerless to protect themselves.” (Greenman v. Yuba Power Products, Inc.
4 (1963) 59 Cal.2d 57, 62-63; emphasis added.)
° The most recent appellate decision on that subject echoes Greenman: “The rules of
6 products liability ‘focus responsibility for defects, whether negligently or nonnegligently
’ caused, on the manufacturer of the completed product.’” [Cit. omitted.] As the California
§ Supreme Court explained three decades ago, the basis for imposing strict products
° liability on a particular defendant is that “he has marketed or distributed a defective
20 product.” (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 575,
a quoting Merrill v. Navegar, Inc. (2001) 26 Cal.4" 465, 478-479; emphasis added.)
2 Just last year the Supreme Court reaffirmed this principle by holding that in an
8 asbestos case a defendant manufacturer is not liable for products that may be associated
* with ones it made or marketed, either because it physically connects or replaces a worn
8 out component, unless the defendant put the replacement or related part into the stream
6 of commerce. (O'Neill v. Crane Co. (2011) 53 Cal.4% 335, 355.)
27
28
BRYDON 10
Huco & PaRKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
Se Sree HEATING, INC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY
Son Fran, CA M4108 ADJUDICATION1 Thus, there has always been a “bright line legal distinction” imposing strict

2 || liability not on everyone, but rather only on those responsible for placing products into
3 || the sfream of commerce. (Taylor, supra, 171 Cal.App.4® at 575; O'Neill, supra, 53 Cal.4®
4 || 335, 355]; see also, CACI 1200, 1201, 1205 [plaintiff must prove that the defendant

5 || manufactured, distributed or sold a defective product].) Here, there is no product at

6 || issue that Rountree made or marketed. Plaintiff never purchased and was never around
7 || any Rountree product. The purposes of strict products liability law ~ to spread the

8 || profits from manufacturing and marketing to injured consumers — would not apply here.

Accordingly, Plaintiffs cannot establish an essential element of strict products liability, as

9
0 || there is no Rountree product in dispute.

San Francisco, CA 94105 ADJUDICATION

1| Iv. CONCLUSION
2 :
Based on the forgoing, Rountree requests summary judgment be granted.
3
4
Dated: February 20, 2013 BRYDON HUGO & PARKER
5
6
By: _/s/ Josette D. Johnson
7 Josette D. Johnson
Attorneys for Defendant
8 ROUNTREE PLUMBING & HEATING,
INC.
9
20
21
22
23
24
25
26
27
28
BRYDON i
Huo & PARKER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ROUNTREE PLUMBING &
158 Maun Sree HEATING, INC’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY