arrow left
arrow right
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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, 20% 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-10-275731
2 Plaintiffs,
vs. SEPARATE STATEMENT OF
3 UNDISPUTED MATERIAL FACTS IN
C.C. MOORE & CO. ENGINEERS, et al., SUPPORT OF ROUNTREE PLUMBING &
4 HEATING, INC.’5 MOTION FOR
Defendants. SUMMARY JUDGMENT, OR IN THE
5 ALTERNATIVE, SUMMARY
ADJUDICATION
6
[Filed Concurrently With Notice of Motion;
7 Memorandum of Points and Authorities;
Request for Judicial Notice and Declaration
8 of Josette D. Johnson]
9 Date: May 9, 2013
Time: 9:30 a.m.
20 Dept: 503
Judge: Hon. Teri L. Jackson.
21
Complaint Filed: | December 17, 2010
22 Trial Date: June 10, 2013
23
24 Defendant ROUNTREE PLUMBING & HEATING, INC. (hereinafter, “Rountree”)

25 |) hereby submits the following Separate Statement of Undisputed Material Facts in
26 || support of its Motion for Summary Judgment against Plaintiffs ROBERT and JEAN ROSS
27 || (“Plantiffs”).

28
Brybon I
Hugo & Parker SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20" Fook ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATION1 SEPARATE STATEMENT IN SUPPORT OF ROUNTREE’S
MOTION FOR SUMMARY JUDGMENT

2
Rountree did not owe a duty to plaintiff Robert Ross based upon the sophisticated |

3 :

user defense, pursuant to Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56. |
‘
5
6L
q {it Plaintiff alleges that Rountree is a

plumbing and heating contractor whose
8 employees were “removing and disturbing
9 || existing asbestos-containing insulation, joint
g |, Compound, drywalling, fireproofing and

ceiling materials” at Stanford University,
Pier 39, UC Berkeley, UCSF Medical Center
2 || between 1960 and 1962, and at Sonoma
Valley Hospital for 1 month in 1982, while

° Robert Ross worked as an insulator installing
41 asbestos containing insulation at these sites.

5

6 Rountree’s Special Interrogatories to Plaintiffs

4 (Set One), attached to the Declaration of Josette

D. Johnson in Support of Motion for Summary
8 || Adjudication (“Johnson Decl.") as Exhibit C at
2213-18.

Plaintiffs’ Response to Defendant Rountree’s
21 || Special Interrogatories, Set One, attached to the
Johnson Deel. as Exhibit D at 1:24-10:27.

93 || 2. During his deposition, Robert Ross
testified that Rountree employees disturbed.
existing fireproofing and sometimes

25 | insulation when installing pipe at Stanford
96 || University, Pier 39, UC Berkeley, and
Sonoma Valley Hospital while Robert Ross

27
was also present.
28
BRYDON 2
Hugo & PanKer SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20” Floor ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATION3 |, Pertinent portions of the transcript of deposition
of Robert Ross taken in this action, attached to
the Johnson Decl. as Exhibit F, at 987:25-988:5,
995:13-22, 998:20-999:10, 1001:24-1004:18,
1008:13-1009:7, 1014:23-1015:9, 1016:1-1017:3,
1529:19-1530:12, 1538:2-6, 1538:14-1539:1, and
1540:24-1541:5.

~ nis

wo

3. Robert Ross joined the Asbestos Workers,
local 16 in San Francisco, in March 1959.

Pertinent portions of the transcript of deposition
of Robert Ross taken in the matter of Robert Ross

2 || v. Asbestos Defendants, San Francisco County

3 || Superior Court, case number 274099, attached to
the Johnson Decl. as Exhibit Johnson Decl.,
Exhibit E at 571:18-22.

4. Robert Ross received both class room and
field training in Asbestos Workers’
7 || apprenticeship program.

Johnson Decl., Exhibit E at 572:8-11.

5. Robert Ross’ class-room instructor was
Richard Holmes.

22 || Johnson Decl., Exhibit F at 2364:15-2365:13.
Johnson Decl., Exhibit GH at 95:4-15.

8

4 || © Robert Ross completed his apprenticeship
program in approximately 1962 or 1963.

26 || Johnson Decl., Exhibit F at 2365:6-10.

277, Mr. Ross attended union meetings at least

28
Brybon 3
Hugo & Parker SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20" Fook ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATION2 Z
3 | once per year, and sometimes more often.
4 Johnson Deel., Exhibit E at 573:1-7.
5

8. Mr. Ross also received the Asbestos
6 || Worker Journal, although he denied reading
7 || it.
8 pe

Johnson Decl., Exhibit F at 2365:22-2366:6.
9

9. Mr. Ross wore a mask throughout his
9 | career as an insulator.
1
2 Johnson Decl., Exhibit E at 300:16-24.

3 || 10. The Asbestos Workers Union, in
particular Local No. 16, was aware of the
hazards of asbestos by 1957.

Declaration of Howard Spielman “Spielman
6 || Decl.” at Y13 and Exhibits 1-9 thereto, filed in
Eugene Millard v. Associated Insulation of
7 || California, Superior Court of the County of San
Francisco, case No. CGC-09-275091, attached to
8 |! the Johnson Decl. as Exhibit H;

9 || Johnson Dect. as Exhibit L at 142:7-143:10.

20 | 11. The April, 1957 issue of The Asbestos
3 || Worker reported that, "The problems of
Asbestosis and Silicosis were discussed. at
large [at the regular annual meeting of the
23 |, Western States Conference on February 9,

4 || 1957], stemming from the report of Local No.
16, in which it was revealed that eleven
members passed away last year. A large

26 |) number of the men had definite symptoms of
the aforementioned hazards of our trade.”

28 Spielman Decl., Exhibit 1 at pp. 19-22, thereto;

Brybon 4
Hugo & Parker SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20" Fook ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATION3 || Johnson Deel., Exhibit I at 142:7-143:10.

12. 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 ....”

~ nis

wo

Spielman Deel., Exhibit 2 at pp. 19-22, thereto;

13. The April, 1958 issue of The Asbestos
Worker noted: "The health hazards of the
2 || trade were discussed and Local No. 16

3 || presented its case relative to the vital
‘capacity test’ given through its health and
welfare program .... The results are very

5 || startling and should be the concern of each
6 || member of our trade.”

7 Spielman Decl., Exhibit 3 at pp. 20, 22, thereto;

8 |/ 14. The May, 1959 issue of the Asbestos
9 Worker reported that, "Health Hazards
relating to our trade were discussed and

various types of respirators were presented
21 | and the good points of each were brought

22 out.

23 |) Spielman Decl., Exhibit 4 at pp. 20-22; see also
ppielman Decl., Exhibit 5 at second to last page
thereof.

15. The February, 1963 issue of the Asbestos
Worker included a three-page article entitled

26 | "Progress Report on Health Hazards,” which
27 |, described the efforts undertaken for a survey
of lung diseases among insulation workers in

28
Brybon Ss
Hugo & Parker SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20" Fook ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATION3 |, the Union and emphasizing that "everyone
has to be examined - no one can be left out.”

Spielman Decl., Exhibit 6 at pp. 25-27;

16. 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

~ nis

wo

9 |) our International undertook to stimulate

g || interest into research into health problems in
the insulation trade, which our men have
long known to exist." It also noted that "the
2 || American Medical Association requested

3 || that a report of the studies so far completed
be made to its members."

Spielman Decl., Exhibit 7 at p. 1.

6 17. The November, 1964 issue of The
Asbestos Worker provided a report from
Irving Silikoff, M.D., entitled "Asbestos

8 || Exposure and Neoplasia,” on the high rate of

g | lung cancer among asbestos workers,
concluding that "[ijndustrial exposure to
asbestos by insulation workers, as studied

21 |) here, results in a marked increase in the

29 | incidence of cancer of the lung."

23 || Spielman Decl. Exhibit 8 at p. 5-9; see also
Spielman Decl, Exhibit 9 at pp. 22, 26
24 | lreferencing report_on “heath hazard research

program” given at Western States Conference of
25 || Asbestos Workers.].

26 | 18. Plaintiffs’ expert, Richard Cohen, MD,
7 || has expressed the following opinions: (1) "the
medical and scientific literature makes it

28
Brybon 6
Hugo & Parker SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20" Fook ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATION1

2 ¢

3 clear that, at least as early as 1931, it was
known in the medical and scientific

4 community that breathing asbestos dust was

5 || harmful and dangerous to human health” (2)

6 “it was clear by 1952 that, regardless of the
setting, a person exposed to airborne

7 | asbestos was at an increased risk of

8 || developing cancer"; (3) in 1950s, "there was a

g | cancer concern not only for the asbestos

0 factory workers, but for other trades exposed

to asbestos working with asbestos containing
1 |] products,” including asbestos insulation

2 workers; (4) "Information was readily
available in the late 1950s and 1960s
concerning the health hazards of asbestos

4 | exposure and the associated risk of

5 || developing an asbestos-related disease”; and
(5) in 1964 Dr. Iriving Selikoff’s study finding
that a high proportions of asbestos insulators
7 || had died from cancer compared to the

g || general population was “widely circulatated
in the mainstream medial (newpapers).”

Declaration of Richard Cohen filed by plaintiff in
20 || Betty Peterson, et al., v. Associated Veulation of
California, Superior Court of the County of San
21 || Francisco, case No. CGC-10-275498, at ¥ 7, 8(h),
and 10, attached to the Johnson Decl. as Exhibit J.

Declaration of Richard Cohen filed by plaintiffs
23 | in John Casey et al., v. Asbestos Defendants,
Superior Court of the County of San Francisco,
24 || case No. CGC-10-275517, at ¥ 20, 23, 27, and 29
attached to the Johnson Decl. as Exhibit K.

19. Plaintiffs’ responses to Rountree’s
27 || interrogatories requriring plaintiffs to state
ag | all facts which support their claims against

Brybon 7
Hugo & Parker SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20" Fook ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATIONRountree state: “The hazards associated with

3 |
exposure to asbestos and the effect of
4 | asbestos exposure on humans have been well !
5 || documented throughout this century. As |
6 early as the 1930s there existed a wealth of |
information available for defendant which |
7 || evidences that exposure to asbestos and |
8 || asbestos-containing products was a health
nn {
g | hazard. |
{
0 | Johnsen Decl., Exhibit D at 2:13-18; |
{
1 | johnson Decl, Exhibit E at 10:18-21,
2 |
3 SEPARATE STATEMENT IN SUPPORT OF ROUNTREE’S
MOTION FOR SUMMARY ADJUDICATION
4
5 Adjudication Issue No. 1 ~ Plaintiffs’ Second cause of action for products liability
6 || hasno merit because there is no evidence that Plaintiff was exposed to asbestos from a
7 product sold by, or put into the stream of commerce by Rountree.
8
9
20
4 Rountree incorporates herein the above-

stated Undisputed Material Facts Nos. 1-
22 2, as though restated in full.

Rountree incorporates herein the evidence
24 |) | supporting the above-stated Undisputed

25 Material Facts Nos. 1-2 as though restated in
full.

20. In response to Rountree’s special

27 interrogatory requring plaintiff to state all

2g || facts supporting his cause of action for strict

Brybon 8
Hugo & Parker SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20" Fook ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATIONproducts liability, plaintiff stated that

4 || | Rountree employees were “removing and
disturbing existing asbestos-containing

° insulation, joint compound, drywalling,
6 fireproofing and ceiling materials” at

7 Stanford University, Pier 39, UC

8 Berkeley, UCSF Medical Center between

1960 and 1962, and at Sonoma Valley

9 Hospital for 1 month in 1982, while

0 || | Robert Ross worked as an insulator

1 || installing asbestos containing insulation
at these sites; plaintiff does not assert that
Rountree manufactured or supplied

3 || | asbestos containing products to these job
sites.

5 Johnson Decl., Exhibit C at 3:25-27;
~ Johnson Decl., Exhibit D at 27:22-36:21

6
q Dated: February 20, 2013 BRYDON HUGO & PARKER
8
9 By: /s/ Josette D. Johnson
Edward R. Hugo
20 P.M. Bessette
Josette D. Johnson
21 Attorneys for Defendant
ROUNTREE PLUMBING & HEATING,
INC.
22
23
24
25
26
27
28
BRYDON 9
Hugo & PanKer SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT
20” Floor ROUNTREE PLUMBING & HEATING, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE

Son Faclaon, CA 10S ALTERNATIVE, SUMMARY ADJUDICATION