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

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                                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
SWINERTON BUILDERS
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. MEMORANDUM OF POINTS AND
3 AUTHORITIES IN SUPPORT OF
C.C. MOORE & CO. ENGINEERS, et al., SWINERTON BUILDERS MOTION FOR
4 SUMMARY JUDGMENT
Defendants.
5 [Filed Concurrently With Notice of Motion;
Separate Statement; Request for Judicial
6 Notice; Declaration of Josette D. Johnson]
7 Date: May 9, 2013
Time: 9:30 a.m.
8 Dept: 503
Judge: Hon. Teri L. Jackson
9
Complaint Filed: | December 17, 2010
20 Trial Date: June 10, 2013
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BryDON
Law Group ee
eA MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SWINERTON BUILDERS
San Francison, CA 94104 MOTION FOR SUMMARY JUDGMENTI. INTRODUCTION

2 Defendant SWINERTON BUILDERS (“Swinerton”) owed no duty of care to

3 || plaintiff Robert Ross because Robert Ross was a sophisticated user of asbestos. As a

4 || member of the Asbestos Workers Union, Mr. Ross knew of the dangers of asbestos and

5 || 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, Swinerton owed no duty of care to plaintiff, and summary

8 || judgment should be entered in favor of Swinerton.

9 || IL STATEMENT OF FACTS

0 A. Plaintiff’s Allegations Against Swinerton.

1 Swinerton is a contractor. The cause of action against Swinerton is titled premises

2 || owner/contractor liability', based upon the premise that Swinerton was somehow

3 || negligent in its management of the job sites where plaintiff worked as an insulator. (See
4 |) Plaintiff's Third Amended Complaint at p. 2 & 55:17, attached to the Declaration of

5 || Josette D. Johnson In Support Of Motion For Summary Judgment (“Johnson Decl.”) as
6 |) Exhibit A; Request for Dismissal attached to Johnson Decl. as Exhibit B.)

7 Swinerton propounded special discovery on Plaintiff seeking all facts which

8 || support their claims against Swinerton. Plaintiff stated that he was exposed to asbestos

9 || containing products that Swinerton delivered, installed, maintained, cleaned up,

20 |) replaced and repaired at a multitude of job sites where plaintiff worked as an insulator
21 |) installing asbestos containing insulation during the 1960s and 1970s. (UMF No. 1.)

22 || Robert Cantley, a former co-worker of plaintiff, confirmed that plaintiff worked as an
23 || insulator installing asbestos containing insulation at several job sites where Swinerton

24 |) was also present.

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26
27
28 || | Plaintiff Jean Ross also alleges loss of consortium against Swinerton. t
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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 B. Robert Ross, a member of the Asbestos Workers union, was
knowledgeable regarding the dangers of asbestos exposure.

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

4 || March 1959. (UMF No. 2.) Mr. Ross received both class room and field training in

5 || Asbestos Workers’ apprenticeship program. (UMF No. 3.) His class-room instructor

6 || was Richard Holmes. (UMF No. 4.) Robert Ross completed his apprenticeship program
7 || in approximately 1962 or 1963. (UMF No. 5.) Mr. Ross attended union meetings at least
g || once per year, and sometimes more often. (UMF No. 6.) Mr. Ross also received the

9 || Asbestos Worker Journal, although he denied reading it. (UMF No. 7.) Mr. Ross wore a
Q || mask throughout his career as an insulator. (UMF No. 8.)

1 The Asbestos Workers Union, in particular Local No. 16, was aware of the hazards
2 || of asbestos by 1957. (UMF No. 9) For instance, the Union's April, 1957 issue of The

3 || Asbestos Worker reported that, "The problems of Asbestosis and Silicosis were discussed
4 || at large [at the regular annual meeting of the Western States Conference on February 9,

5 || 1957], stemming from the report of Local No. 16, in which it was revealed that eleven

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

7 || the aforementioned hazards of our trade.” (UMF No. 10.) According to this issue, "R.

g || Holmes," was Local No. 16's delegate in attendance at said Conference. (Id.) Richard

9 || Holmes was the instructor of the apprentice program for Local 16. (UMF No. 4.)

20 The October, 1957 issue advised: "Health Hazards: Being well aware of the health
21 |) hazards in the Asbestos industry, President Sickles requested authority for the General
22 || Executive Board to make a study of the health hazards ...."" (UMF No. 11.) The April, 1958
23 || issue noted: "The health hazards of the trade were discussed and Local No. 16 presented.
24 || its case relative to the vital ‘capacity test’ given through its health and welfare program ....
25 || The results are very startling and should be the concern of each member of our trade.”

26 || (UME No. 12.)

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

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

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENTwere brought out.” (UMF No. 13.) The February, 1963 issue included a three-page article

2 || entitled "Progress Report on Health Hazards," which described the efforts undertaken

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

4 || that "everyone has to be examined - no one can be left out." (UMF No. 14.)

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

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

8 || into health problems in the insulation trade, which our men have long known te exist.”

9 || Tt also noted that "the American Medical Association requested that a report of the

0 || studies so far completed be made to its members." (UMF No. 15.) The November, 1964

1 || issue provided a report from Irving Silikoff, M.D., entitled "Asbestos Exposure and

2 || Neoplasia," on the high rate of lung cancer among asbestos workers, concluding that

3 || "[ijndustrial exposure to asbestos by insulation workers, as studied here, results in a

4 || marked increase in the incidence of cancer of the lung." (UMF No. 16.)

5 Plaintiffs in similar asbestos-related matters filed in this court frequently submit

6 || declarations of experts such as Richard Cohen, MD%, to establish that (1) "the medical and
7 || scientific literature makes it clear that, at least as early as 1931, it was known in the

8 || medical and scientific community that breathing asbestos dust was harmful and

9 || dangerous to human health" (2) "it was clear by 1952 that, regardless of the setting, a

20 |) person exposed to airborne asbestos was at an increased risk of developing cancer”; (3) in
21 |) 1950s, “there was a cancer concern not only for the asbestos factory workers, but for other
22 || trades exposed to asbestos working with asbestos containing products,” including

23 || asbestos insulation workers; (4) "Information was readily available in the late 1950s and
24 |) 1960s concerning the health hazards of asbestos exposure and the associated risk of

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

26 || finding that a high proportions of asbestos insulators had died from cancer compared to

28 ||? Plaintiff's responses to Swinerton’s special interrogatories cite to the transcript of Richard Cohen, MD, |
taken on August 17, 2010. See Johnson Decl., Exhibit D at 7:8-11.

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || the general population was “widely circulated in the mainstream medial (newpapers).”
2 || (UMF No. 17.)
3 In addition, Plaintiffs’ own discovery responses state that “The hazards associated

4 || with exposure to asbestos and the effect of asbestos exposure on humans have been well

5 || documented throughout this century. As early as the 1930s there existed a wealth of

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

7 || asbestos-containing products was a health hazard.” (UME No. 18.) Certainly the hazards
8 || of asbestos were well known to Mr. Ross’s union, and by extension to Mr. Ross, when

9 || Mr. Ross joined Local 16 in 1959.

0 Based on these facts, it is undisputed that Robert Ross’s union, Asbestos Workers

1 || local 16, and Robert Ross himself were sophisticated users of asbestos who were

2 || knowledgeable about the hazards of asbestos.

3] Ill. LEGAL ANALYSIS

4
A. Summary Adjudication Is Properly Granted On The Issue Of

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

6

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

8 || plaintiffs’ cause of action cannot be established. (Barnes v. Black (1999) 71 Cal. App. 4*

9 || 1473, 1477.) The defendant need not conclusively negate an element of the plaintiff's

20 |) cause of action, but may show only that one or more of its elements cannot be

21 |) established. (Rubin v. United Air Lines, Inc. (2002) 96 Cal. App. 4" 364, 371.) Duty is an
22 || essential element of each of plaintiffs’ causes of action.

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

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

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

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

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

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || action has no merit.
2 “Under the current version of the summary judgment statute, a moving defendant
3 || need not support his motion with affirmative evidence negating an essential element of

4 || the responding party’s case. Instead, the moving defendant may point to the absence of

5 || evidence to support the plaintiff's case.” (McGonnell v. Kaiser Gypsum (2002) 98

6 || Cal. App.4th 1098, 1103-05.) All that must be shown is that one or all of plaintiff's causes
7 || of action has “no merit,” in that at least one of the elements of each cause of action cannot
8 || be factually supported. (Rubin v. United Air Lines, Inc. (2002) 96 Cal. App. 4th 364, 371).

Swinerton here has met its burden regarding Plaintiffs’ negligence and strict products

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

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

4 || expressly adopted the sophisticated user defense, which “negate[s] a manufacturer’s
5 || duty to warn of a product's potential danger when the plaintiff has (or should have)

6 || advance knowledge of the product's inherent hazards.” (Johnson, supra, 43 Cal.4* at p.
7 || 61.) Johnson explained that under the sophisticated user defense, “sophisticated users

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

9 |) Ud. at p. 65.) “Because these sophisticated users are charged with knowing the particular
20 |) product’s dangers, the failure to warn about those dangers is not the legal cause of any
21 ]) harm that product may cause.” (Ibid.) The Court held that because the intended

22 || sophisticated users “are deemed to know of the risks, manufacturers have no obligation
23 || to warn, and providing no warning is appropriate,” and that “[t]he focus of the

24 | defense...is whether the danger in question was generally known within the trade or

25 |) profession that a manufacturer should not have been expected to provide a warning

26 || specific to the group to which the plaintiff belonged.” (Id. at p. 72.)

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

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

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Sar Hanetsco, CA 94105 MOTION FOR SUMMARY JUDGMENT1 || favor of an objective standard (what he “knew or should have known”). “It would be
2 || nearly impossible for a manufacturer to predict or determine whether a given user or
3 || member of the sophisticated group actually has knowledge of the dangers because of the

4 || infinite number of user idiosyncrasies.” (Johnson, supra, at p.71.) Thus, an individual

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

6 || Additionally, The Johnson holding is not limited to situations in which a manufacturer
7 || directly supplied its product to the Plaintiff. (Johnson v. American Standard (2008) 43

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

9 || by the Supreme Court involved injuries to a person other than the consumer to whom the
0 || manufacturer initially sold its’ product. (Id., citing Fierro v. International Harvester Co.

1 || (1982) 127 Cal App.862; In re Related Asbestos Cases (N.D. Cal.1982) 543 F.Supp 1142;

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

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

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

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

7 || Mich.624, 627 [manufacturer of scaffold had no duty to give instructions for safe rigging

8 || and thus was not liable to worker injured when scaffold gave way]; Strong v. E.1. Du Pont

9 || de Nemours Co. lnc. (8th Cir.1981) 667 F.2d 682, 686-687 [natural gas pipe manufacturer
20 |) had no duty to warn natural gas utility, or its employees, of well known gas line

21 |) dangers); Billiar v. Minnesota Mining and Manufacturing Co. (1980) 623 F.2d 240, 246

22 || [district court correctly instructed jury to consider the extent of knowledge of plaintiff,
23 || who sued manufacturer of chemical used at her place of employment, in determining
24 | whether defendant fulfilled its duty to warn adequately.)

25 In analyzing a manufacturer’s duty to warn, as affected by the sophisticated user
26 || doctrine, the two cases discussed at length in Johnson — Fierro and In re Asbestos — apply

27 |) the duty (if it exists) from the manufacturer to the purchaser/user, not the injured party.

28
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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 In Fierro, the decedent was employed by Luer Packing Co. (Fierro, supra, 127
2 || Cal.App. at 865.) Leur purchased a truck body from International Harvester, which Leur
3 || modified by installing a refrigeration unit to the chassis. (Id. at 865.) Decedent was

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

5 || spill from the tank and catch fire. (Ibid.) At trial, plaintiffs sought a jury instruction to the
6 || effect that International had a duty to warn Leur that attaching a power cable from the
7 || refrigeration unit to the battery of the vehicle might create a fire hazard. (Id. at 866.) In
8 || affirming the trial court’s rejection of the proposed instruction, the Fierro Court stated, “A

9 || sophisticated organization like Leur does not have to be told that gasoline is volatile and
0 || that sparks from an electrical connection or friction can cause ignition.” (Ibid.) The Court
1 || of Appeal concluded that “the absence of a warning to Leur did not substantially or

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

3 || International unit and Leur’s failure to guard against those eventualities did not render

4 || the International unit defective.” (Id. at 866-867.)

5 Similarly, in In re Related Asbestos, plaintiffs were insulators and shipyard workers
6 || employed by the US Navy when they were allegedly exposed to asbestos. (In re Related
7 || Asbestos, supra, 543 F.Supp. at 1150.) The court found that defendant-manufacturers of

8 || asbestos-containing products could assert the “sophisticated user” affirmative defense to

9 || plaintiffs’ strict liability claims based upon the manufacturer's failure to warn. (Ibid.) The
20 |) court noted that under California law, defendants could assert that the Navy's negligence
21]) in failing to provide their employees with a safe working environment constituted a
22 |) superseding cause which relieved the defendant of strict liability. (ibid., citing Cronin v.
23 || J.B.E. Olson Corp. 8 Cal.3d 121, 133.)

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

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

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

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

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || thereby absolving the defendants of liability for failure to warn the Navy’s employees of
2 || the products’ danger.” (Id. at 1151; emphasis added].) The court ultimately refused to
3 || strike the defendant's “sophisticated user” defense, recognizing it as a potential defense

4 || under California law (a potential realized in the Johnson opinion).

5 Two other California cases relied upon by the Court in Johnsen — Plenger and

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

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

8 || negligence and strict liability causes of action against the manufacturer of the IUD on the

9 || basis that the manufacturer’s warning to the physician who prescribed the IUD for the

0 || decedent was not sufficient, because it did not warn of a risk of death. (Plenger, supra, 11
1 || Cal App4th 349.) The Court of Appeal upheld the trial court’s grant of summary

2 || jadgment, citing evidence that the manufacturer’s warning included risk of infection, and
3 || that the “risk of death from any untreated infection was a matter of general and

4 || elemental medical knowledge.” (id. at 362.) The court in Plenger noted, “We are aware of
5 || no authority which requires a manufacturer to warn of a risk which is readily known and
6 || apparent to the consumer .. . [I]f the risk of death from untreated infection is universally
7 || known in the medical profession, the failure to warn the physician of that risk cannot be

8 |) the legal cause of the decedent's death.” (Id. at 362.)

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

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

28 || The Court of Appeal rejected Plaintiff's theory, stating “[a] seller does not need to adda

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || warning when ‘the danger, or potentiality of danger is generally known and
2 |) recognized.” (Id. at 220, citing Bojorquez v. House of Toys, Inc., (1976) 62 Cal.App.3d 930,
3 || 933.) The court also found that a warning in that case would have served no useful

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

5 || bystander was unknown. (Ibid.)

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

9 || meeting of the Western States Conference where the problems of asbestosis were
0 || discussed, stemming from the reports of Local No. 16. Mr. Ross also received the
1 || Asbestos Workers journal; the fact that he did not bother to read them does not detract

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

3 || defense, and the conceptually-related superseding cause defense, are both based on the

4 || premise that the absence of a warning is not the cause of injury. Where, as here, the use

5 || of a product is a “sophisticated user” of the product, the “sophisticated user” doctrine

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

8 || Swinerton’s failure to warn the user of dangers already known to it, that is the cause of

9 |) plaintiff's injuries herein.

20 || IV. CONCLUSION

21
Based on the forgoing, Swinerton requests summary judgment be granted.
22
23 |) Dated: February 20, 2013 BRYDON HUGO & PARKER
24
25 By:  _/s/ Josette D. Johnson
Josette D. Johnson
26 Attorneys for Defendant
” SWINERTON BUILDERS
28 t
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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENTI. INTRODUCTION

2 Defendant SWINERTON BUILDERS (“Swinerton”) owed no duty of care to

3 || plaintiff Robert Ross because Robert Ross was a sophisticated user of asbestos. As a

4 || member of the Asbestos Workers Union, Mr. Ross knew of the dangers of asbestos and

5 || 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, Swinerton owed no duty of care to plaintiff, and summary

8 || judgment should be entered in favor of Swinerton.

9 || IL STATEMENT OF FACTS

0 A. Plaintiff’s Allegations Against Swinerton.

1 Swinerton is a contractor. The cause of action against Swinerton is titled premises

2 || owner/contractor liability', based upon the premise that Swinerton was somehow

3 || negligent in its management of the job sites where plaintiff worked as an insulator. (See
4 |) Plaintiff's Third Amended Complaint at p. 2 & 55:17, attached to the Declaration of

5 || Josette D. Johnson In Support Of Motion For Summary Judgment (“Johnson Decl.”) as
6 |) Exhibit A; Request for Dismissal attached to Johnson Decl. as Exhibit B.)

7 Swinerton propounded special discovery on Plaintiff seeking all facts which

8 || support their claims against Swinerton. Plaintiff stated that he was exposed to asbestos

9 || containing products that Swinerton delivered, installed, maintained, cleaned up,

20 |) replaced and repaired at a multitude of job sites where plaintiff worked as an insulator
21 |) installing asbestos containing insulation during the 1960s and 1970s. (UMF No. 1.)

22 || Robert Cantley, a former co-worker of plaintiff, confirmed that plaintiff worked as an
23 || insulator installing asbestos containing insulation at several job sites where Swinerton

24 |) was also present.

25
26
27
28 || | Plaintiff Jean Ross also alleges loss of consortium against Swinerton. t
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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 B. Robert Ross, a member of the Asbestos Workers union, was
knowledgeable regarding the dangers of asbestos exposure.

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

4 || March 1959. (UMF No. 2.) Mr. Ross received both class room and field training in

5 || Asbestos Workers’ apprenticeship program. (UMF No. 3.) His class-room instructor

6 || was Richard Holmes. (UMF No. 4.) Robert Ross completed his apprenticeship program
7 || in approximately 1962 or 1963. (UMF No. 5.) Mr. Ross attended union meetings at least
g || once per year, and sometimes more often. (UMF No. 6.) Mr. Ross also received the

9 || Asbestos Worker Journal, although he denied reading it. (UMF No. 7.) Mr. Ross wore a
Q || mask throughout his career as an insulator. (UMF No. 8.)

1 The Asbestos Workers Union, in particular Local No. 16, was aware of the hazards
2 || of asbestos by 1957. (UMF No. 9) For instance, the Union's April, 1957 issue of The

3 || Asbestos Worker reported that, "The problems of Asbestosis and Silicosis were discussed
4 || at large [at the regular annual meeting of the Western States Conference on February 9,

5 || 1957], stemming from the report of Local No. 16, in which it was revealed that eleven

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

7 || the aforementioned hazards of our trade.” (UMF No. 10.) According to this issue, "R.

g || Holmes," was Local No. 16's delegate in attendance at said Conference. (Id.) Richard

9 || Holmes was the instructor of the apprentice program for Local 16. (UMF No. 4.)

20 The October, 1957 issue advised: "Health Hazards: Being well aware of the health
21 |) hazards in the Asbestos industry, President Sickles requested authority for the General
22 || Executive Board to make a study of the health hazards ...."" (UMF No. 11.) The April, 1958
23 || issue noted: "The health hazards of the trade were discussed and Local No. 16 presented.
24 || its case relative to the vital ‘capacity test’ given through its health and welfare program ....
25 || The results are very startling and should be the concern of each member of our trade.”

26 || (UME No. 12.)

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

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

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENTwere brought out.” (UMF No. 13.) The February, 1963 issue included a three-page article

2 || entitled "Progress Report on Health Hazards," which described the efforts undertaken

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

4 || that "everyone has to be examined - no one can be left out." (UMF No. 14.)

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

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

8 || into health problems in the insulation trade, which our men have long known te exist.”

9 || Tt also noted that "the American Medical Association requested that a report of the

0 || studies so far completed be made to its members." (UMF No. 15.) The November, 1964

1 || issue provided a report from Irving Silikoff, M.D., entitled "Asbestos Exposure and

2 || Neoplasia," on the high rate of lung cancer among asbestos workers, concluding that

3 || "[ijndustrial exposure to asbestos by insulation workers, as studied here, results in a

4 || marked increase in the incidence of cancer of the lung." (UMF No. 16.)

5 Plaintiffs in similar asbestos-related matters filed in this court frequently submit

6 || declarations of experts such as Richard Cohen, MD%, to establish that (1) "the medical and
7 || scientific literature makes it clear that, at least as early as 1931, it was known in the

8 || medical and scientific community that breathing asbestos dust was harmful and

9 || dangerous to human health" (2) "it was clear by 1952 that, regardless of the setting, a

20 |) person exposed to airborne asbestos was at an increased risk of developing cancer”; (3) in
21 |) 1950s, “there was a cancer concern not only for the asbestos factory workers, but for other
22 || trades exposed to asbestos working with asbestos containing products,” including

23 || asbestos insulation workers; (4) "Information was readily available in the late 1950s and
24 |) 1960s concerning the health hazards of asbestos exposure and the associated risk of

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

26 || finding that a high proportions of asbestos insulators had died from cancer compared to

28 ||? Plaintiff's responses to Swinerton’s special interrogatories cite to the transcript of Richard Cohen, MD, |
taken on August 17, 2010. See Johnson Decl., Exhibit D at 7:8-11.

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || the general population was “widely circulated in the mainstream medial (newpapers).”
2 || (UMF No. 17.)
3 In addition, Plaintiffs’ own discovery responses state that “The hazards associated

4 || with exposure to asbestos and the effect of asbestos exposure on humans have been well

5 || documented throughout this century. As early as the 1930s there existed a wealth of

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

7 || asbestos-containing products was a health hazard.” (UME No. 18.) Certainly the hazards
8 || of asbestos were well known to Mr. Ross’s union, and by extension to Mr. Ross, when

9 || Mr. Ross joined Local 16 in 1959.

0 Based on these facts, it is undisputed that Robert Ross’s union, Asbestos Workers

1 || local 16, and Robert Ross himself were sophisticated users of asbestos who were

2 || knowledgeable about the hazards of asbestos.

3] Ill. LEGAL ANALYSIS

4
A. Summary Adjudication Is Properly Granted On The Issue Of

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

6

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

8 || plaintiffs’ cause of action cannot be established. (Barnes v. Black (1999) 71 Cal. App. 4*

9 || 1473, 1477.) The defendant need not conclusively negate an element of the plaintiff's

20 |) cause of action, but may show only that one or more of its elements cannot be

21 |) established. (Rubin v. United Air Lines, Inc. (2002) 96 Cal. App. 4" 364, 371.) Duty is an
22 || essential element of each of plaintiffs’ causes of action.

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

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

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

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

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

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || action has no merit.
2 “Under the current version of the summary judgment statute, a moving defendant
3 || need not support his motion with affirmative evidence negating an essential element of

4 || the responding party’s case. Instead, the moving defendant may point to the absence of

5 || evidence to support the plaintiff's case.” (McGonnell v. Kaiser Gypsum (2002) 98

6 || Cal. App.4th 1098, 1103-05.) All that must be shown is that one or all of plaintiff's causes
7 || of action has “no merit,” in that at least one of the elements of each cause of action cannot
8 || be factually supported. (Rubin v. United Air Lines, Inc. (2002) 96 Cal. App. 4th 364, 371).

Swinerton here has met its burden regarding Plaintiffs’ negligence and strict products

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

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

4 || expressly adopted the sophisticated user defense, which “negate[s] a manufacturer’s
5 || duty to warn of a product's potential danger when the plaintiff has (or should have)

6 || advance knowledge of the product's inherent hazards.” (Johnson, supra, 43 Cal.4* at p.
7 || 61.) Johnson explained that under the sophisticated user defense, “sophisticated users

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

9 |) Ud. at p. 65.) “Because these sophisticated users are charged with knowing the particular
20 |) product’s dangers, the failure to warn about those dangers is not the legal cause of any
21 ]) harm that product may cause.” (Ibid.) The Court held that because the intended

22 || sophisticated users “are deemed to know of the risks, manufacturers have no obligation
23 || to warn, and providing no warning is appropriate,” and that “[t]he focus of the

24 | defense...is whether the danger in question was generally known within the trade or

25 |) profession that a manufacturer should not have been expected to provide a warning

26 || specific to the group to which the plaintiff belonged.” (Id. at p. 72.)

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

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

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Sar Hanetsco, CA 94105 MOTION FOR SUMMARY JUDGMENT1 || favor of an objective standard (what he “knew or should have known”). “It would be
2 || nearly impossible for a manufacturer to predict or determine whether a given user or
3 || member of the sophisticated group actually has knowledge of the dangers because of the

4 || infinite number of user idiosyncrasies.” (Johnson, supra, at p.71.) Thus, an individual

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

6 || Additionally, The Johnson holding is not limited to situations in which a manufacturer
7 || directly supplied its product to the Plaintiff. (Johnson v. American Standard (2008) 43

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

9 || by the Supreme Court involved injuries to a person other than the consumer to whom the
0 || manufacturer initially sold its’ product. (Id., citing Fierro v. International Harvester Co.

1 || (1982) 127 Cal App.862; In re Related Asbestos Cases (N.D. Cal.1982) 543 F.Supp 1142;

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

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

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

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

7 || Mich.624, 627 [manufacturer of scaffold had no duty to give instructions for safe rigging

8 || and thus was not liable to worker injured when scaffold gave way]; Strong v. E.1. Du Pont

9 || de Nemours Co. lnc. (8th Cir.1981) 667 F.2d 682, 686-687 [natural gas pipe manufacturer
20 |) had no duty to warn natural gas utility, or its employees, of well known gas line

21 |) dangers); Billiar v. Minnesota Mining and Manufacturing Co. (1980) 623 F.2d 240, 246

22 || [district court correctly instructed jury to consider the extent of knowledge of plaintiff,
23 || who sued manufacturer of chemical used at her place of employment, in determining
24 | whether defendant fulfilled its duty to warn adequately.)

25 In analyzing a manufacturer’s duty to warn, as affected by the sophisticated user
26 || doctrine, the two cases discussed at length in Johnson — Fierro and In re Asbestos — apply

27 |) the duty (if it exists) from the manufacturer to the purchaser/user, not the injured party.

28
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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 In Fierro, the decedent was employed by Luer Packing Co. (Fierro, supra, 127
2 || Cal.App. at 865.) Leur purchased a truck body from International Harvester, which Leur
3 || modified by installing a refrigeration unit to the chassis. (Id. at 865.) Decedent was

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

5 || spill from the tank and catch fire. (Ibid.) At trial, plaintiffs sought a jury instruction to the
6 || effect that International had a duty to warn Leur that attaching a power cable from the
7 || refrigeration unit to the battery of the vehicle might create a fire hazard. (Id. at 866.) In
8 || affirming the trial court’s rejection of the proposed instruction, the Fierro Court stated, “A

9 || sophisticated organization like Leur does not have to be told that gasoline is volatile and
0 || that sparks from an electrical connection or friction can cause ignition.” (Ibid.) The Court
1 || of Appeal concluded that “the absence of a warning to Leur did not substantially or

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

3 || International unit and Leur’s failure to guard against those eventualities did not render

4 || the International unit defective.” (Id. at 866-867.)

5 Similarly, in In re Related Asbestos, plaintiffs were insulators and shipyard workers
6 || employed by the US Navy when they were allegedly exposed to asbestos. (In re Related
7 || Asbestos, supra, 543 F.Supp. at 1150.) The court found that defendant-manufacturers of

8 || asbestos-containing products could assert the “sophisticated user” affirmative defense to

9 || plaintiffs’ strict liability claims based upon the manufacturer's failure to warn. (Ibid.) The
20 |) court noted that under California law, defendants could assert that the Navy's negligence
21]) in failing to provide their employees with a safe working environment constituted a
22 |) superseding cause which relieved the defendant of strict liability. (ibid., citing Cronin v.
23 || J.B.E. Olson Corp. 8 Cal.3d 121, 133.)

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

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

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

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

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || thereby absolving the defendants of liability for failure to warn the Navy’s employees of
2 || the products’ danger.” (Id. at 1151; emphasis added].) The court ultimately refused to
3 || strike the defendant's “sophisticated user” defense, recognizing it as a potential defense

4 || under California law (a potential realized in the Johnson opinion).

5 Two other California cases relied upon by the Court in Johnsen — Plenger and

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

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

8 || negligence and strict liability causes of action against the manufacturer of the IUD on the

9 || basis that the manufacturer’s warning to the physician who prescribed the IUD for the

0 || decedent was not sufficient, because it did not warn of a risk of death. (Plenger, supra, 11
1 || Cal App4th 349.) The Court of Appeal upheld the trial court’s grant of summary

2 || jadgment, citing evidence that the manufacturer’s warning included risk of infection, and
3 || that the “risk of death from any untreated infection was a matter of general and

4 || elemental medical knowledge.” (id. at 362.) The court in Plenger noted, “We are aware of
5 || no authority which requires a manufacturer to warn of a risk which is readily known and
6 || apparent to the consumer .. . [I]f the risk of death from untreated infection is universally
7 || known in the medical profession, the failure to warn the physician of that risk cannot be

8 |) the legal cause of the decedent's death.” (Id. at 362.)

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

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

28 || The Court of Appeal rejected Plaintiff's theory, stating “[a] seller does not need to adda

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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT1 || warning when ‘the danger, or potentiality of danger is generally known and
2 |) recognized.” (Id. at 220, citing Bojorquez v. House of Toys, Inc., (1976) 62 Cal.App.3d 930,
3 || 933.) The court also found that a warning in that case would have served no useful

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

5 || bystander was unknown. (Ibid.)

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

9 || meeting of the Western States Conference where the problems of asbestosis were
0 || discussed, stemming from the reports of Local No. 16. Mr. Ross also received the
1 || Asbestos Workers journal; the fact that he did not bother to read them does not detract

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

3 || defense, and the conceptually-related superseding cause defense, are both based on the

4 || premise that the absence of a warning is not the cause of injury. Where, as here, the use

5 || of a product is a “sophisticated user” of the product, the “sophisticated user” doctrine

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

8 || Swinerton’s failure to warn the user of dangers already known to it, that is the cause of

9 |) plaintiff's injuries herein.

20 || IV. CONCLUSION

21
Based on the forgoing, Swinerton requests summary judgment be granted.
22
23 |) Dated: February 20, 2013 BRYDON HUGO & PARKER
24
25 By:  _/s/ Josette D. Johnson
Josette D. Johnson
26 Attorneys for Defendant
” SWINERTON BUILDERS
28 t
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Son Franeisco, CA D415 MOTION FOR SUMMARY JUDGMENT