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

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GABRIEL A. JACKSON, State Bar No. 98119
ANTHONY C. CHIOSSO, State Bar No. 209014

achiosso@jjr-law.com ELECTRONICALLY
TODD M. THACKER, State Bar No. 199506
tthacker@jjr-law.com s F I L ED .
JACKSON JENKINS RENSTROM LLP County of San Francisco”
55 Francisco Street, 6th Floor JUL
San Francisco, CA 94133 17 2012
Tel: 415.982.3600 Clerk of the Court
Fax: 415.982.3700 BY: VANESSA WU

Deputy Clerk

Attorneys for Defendant
COSCO FIRE PROTECTION, INC.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

ROBERT ROSS AND JEAN ROSS, Case No CGC-10-275731
Plaintiffs, DEFENDANT COSCO FIRE PROTECTION, INC.'S
REPLY MEMORANDUM TO OPPOSITION TO
ve MOTION FOR SUMMARY JUDGMENT

C.C. MOORE & CO. ENGINEERS; Defendants
as Reflected on Exhibit 1 attached to the

Summary Complaint herein; and DOES 1- DATE: July 24, 2012
8500., et al. TIME: 9:30 a.m.
DEPT: 503
Defendants. JUDGE: Hon. Teri L. Jackson
TRIAL: TBD

COMPLAINT FILED: 12/17/10

L INTRODUCTION

In its underlying motion, Cosco showed that Plaintiff had no evidence showing it had any
reason to know that its work activities could possibly have injured Mr. Ross or anyone else at the
time Mr. Ross allegedly worked around Cosco employees. It is undisputed that Cosco never
knowingly used an asbestos-containing product; the question is whether Cosco disturbed an
asbestos-containing product in Mr. Ross’ presence and, if it did, whether it should have known
that such a disturbance might lead to Mr. Ross’ injury.

In his opposition, Plaintiff provided no evidence that Cosco had or should have had any

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knowledge that its activities on jobsites might cause a hazardous, toxic exposure. Their
opposition relied exclusively on the declaration of Richard Cohen to show that members of
Cosco’s industry should have known the alleged hazards of low-dose exposures. But Dr. Cohen’s
declaration mostly consists of summarizing articles from esoteric medical journals, many of
which were published in foreign countries. Nowhere in his declaration does Dr. Cohen provide
any evidence, or even provide any foundation for offering any evidence, that sprinkler fitting
contractors like Cosco knew or should have known about the hazards of low-dose asbestos
exposure.

Neither does Plaintiff provide any admissible evidence showing that any fireproofing or
insulation Cosco swept up in Mr. Ross’ presence contained asbestos. The only evidence Plaintiff
presents on this issue comes from the declaration of Charles Ay. In fact, Mr. Ay’s testimony is
the foundation upon which Plaintiff's entire opposition is built. If Mr. Ay cannot establish that
the fireproofing or insulation with which Cosco employees worked contained asbestos, none of
Plaintiff's arguments have any support. The entire edifice comes crashing down like a house of
cards.

But Mr. Ay is not an expert in fireproofing. He never worked with fireproofing during his
employment career, and there is no evidence that Mr. Ay ever engaged in any sort of academic
study that might allow him to opine on the historical use of asbestos-containing fireproofing
versus non-asbestos-containing fireproofing. Plaintiff therefore has no evidence that Cosco
ever disturbed any asbestos-containing material in Mr. Ross’ presence. This entitles Cosco to
summary judgment on all of Plaintiff's causes of action.

Ml. LEGAL ARGUMENT

A. Cosco Has Shifted the Burden on Summary Judgment
Case after California case holds that a defendant need not produce affirmative evidence

negating a cause of action in order to succeed on summary judgment; it may also show the
absence of evidence supporting plaintiffs’ claim. (Union Bank v. Superior Court (1995) 31
Cal.App.4th 573, 590; Villa v. McFerren (1995) 35 Cal.App.4th 733, 748-749; Hunter v. Pacific

Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1286-1288.) A defendant can show such an
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REPLYabsence through plaintiffs’ factually-devoid discovery responses, as in Union Bank, or in the
form of deposition testimony, as in Hunter and Chaknova v. Wilbur Eilis Company (1999) 69
Cal.App.4th 962.

So while Cosco cannot shift the burden by pointing to Plaintiff's failure to sua sponte
provide evidence supporting his claims, it can do so by pointing to his factually-devoid discovery
responses.

In its interrogatories, Cosco requested that Plaintiff state all facts supporting his
allegations of Cosco’s liability. (UMF No. 2.) He was also specifically asked to state each fact
supporting his contention that he was exposed to asbestos as a result of Cosco’s work and
summarize the facts those persons knew. (UMF No. 2.)

In response, Plaintiff has presented no evidence that Cosco either a) knew that its
employees were disturbing asbestos-containing materials, or 2) knew that such actions could
create a hazard to those in the vicinity. (UMF Nos. 3, 11.) Nor did Plaintiff offered evidence
establishing that a sprinkler fitting contractor like Cosco “should have known” of such dangers.
(Id.) In this case, Plaintiff's factually-devoid discovery responses to show that he cannot
establish essential elements of his claims against Cosco.

Cosco has, however, provided affirmative evidence in the form of the declaration of
Cosco employee, David Crossley. Mr. Crossley’s declaration indicates that that Cosco: a) did
NOT know that its employees were disturbing asbestos-containing materials; AND 2) Did NOT
know that such actions could create a hazard to those in the vicinity; AND it indicates that Cosco
is aware of no literature available in the 1970s suggesting that the act of shooting studs for the
purposes of installing hangers and supports for sprinkler pipes could create a hazardous
condition for anyone in the area. (UMF Nos, 25-31.)

Plaintiff's further failure to provide evidence in his opposition establishing a prima facie
case against Cosco entitles it to summary judgment on those claims. When also viewed with Mr.

Crossley’s declaration, plaintiff's claims become impossible.

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B. There is No Evidence That Cosco Employees Should Have Known That the
Fireproofing They Disturbed Contained Asbestos or that it was Hazardous

Cosco had no special knowledge about the contents of fireproofing. Fireproofing was
applied by the fireproofing contractor. Cosco was never retained to apply fireproofing and the
application of fireproofing was not part of Cosco’s job duties. Cosco never purchased or applied
fireproofing as a part of its business. (UMF No. 26)

Cosco also asked Plaintiffs to state all facts upon which they base any contention that
Cosco has any control of the use of asbestos or asbestos-containing products contributing to Mr.
Ross’s injury, to identify any witnesses upon which they rely to support that contention, and to
identify the knowledge possessed by each such witness. (UMF No. 27) Plaintiffs did not provide |
any information or evidence showing that Cosco controlled the use of asbestos or asbestos-
containing products at any premises on which it allegedly worked around Mr. Ross. (UMF No.
28)

During the 1960s and 1970s, trades such as plumbers, HVAC workers, and electricians
would create much larger disturbances of fireproofing than that caused by the shooting of studs
for the purposes of installing hangers and supports for sprinkler pipes. Cosco is not aware that
any of these trades took any precautions with respect to disturbing fireproofing in the 1960s or
1970s. (UMF No. 29)

Cosco is aware of no literature available in the 1960s or 1970s suggesting that the act of
shooting studs for the purposes of installing hangers and supports for sprinkler pipes could
create a hazardous condition for anyone in the area. No sprinkler fitter organization in the
1960s or 1970s warned that such actions might be hazardous. No governmental regulations in
the 1960s or 1970s addressed the shooting of studs for the purposes of installing hangers and
supports for sprinkler pipes or any asbestos hazards of sprinkler fitting. The government
regulations that did exist regarding asbestos in the 1960s or 1970s concerned concentrations
much higher than that caused by the shooting of studs for the purposes of installing hangers and
supports for sprinkler pipes. (UMF No. 30) Cosco is aware of no sprinkler fitter company in the

1960s or 1970s that took any precautions regarding possible health hazards from shooting studs

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REPLYfor the purposes of installing hangers and supports for sprinkler pipes. (UMF No. 31)

C There is No Evidence That Cosco Could Have Foreseen Plaintiff's Injury

In California, the determination of duty is primarily a question of law. (Weirum v, RKO
General, Inc. (1975) 15 Cal.3d 40, 46; Amaya v. Home Ice, Fue! & Supply Co. (1963) 59 Cal.2d 295,
307.) This legal determination includes a consideration of foreseeability. (Romero v. Superior
Court (2001) 89 Cal.App.4th 1068, 1078.)

Rowland v. Christian (1968) 69 Cal.2d 108 and its seven-part test fundamentally stands
for the proposition that you cannot impose a duty to prevent an unforeseeable outcome.
“Foreseeability of the harm is of primary importance in establishing the element of duty.” (See,
e.g., Martinez v. Bank of Am. (2000) 82 Cal. App. 4th 883, 891 [property owner not liable for
unforeseeable dog attack].) This is only commonsensical; “[d]efendant owes a duty, in the sense
of a potential liability for damages, only with respect to those risks or hazards whose likelihood
made the conduct unreasonably dangerous, and hence negligent, in the first instance.” (Dillon
v. Legg (1968) 68 Cal. 2d 728, 729.) In other words, how can defendants possibly be negligent
for failing to prevent a harm they cannot foresee?

The ultimate question is whether Mr. Ross’s alleged injury was foreseeable enough to
charge Cosco with the duty to act. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 307-308). As

Cosco pointed out in its original brief, an injury is only reasonably foreseeable if it '“is likely
enough in the setting of modern life that a reasonably thoughtful [person] would take account
of it in guiding practical conduct." (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal. 3d 49, 57
[quoting 2 Harper & James, Law of Torts (1956) § 18.2, p. 1020, brackets in original].)

Plaintiff freely admits that Cosco only disturbed “previously installed fireproofing”
(Opposition, pg. 2:17.) So Plaintiff must show that Cosco should have known that other
contractors were using toxic materials and that disturbing such materials could create a toxic
hazard to bystanders. Plaintiff's opposition does not accomplish this admittedly-difficult task.

D. Plaintiff Cannot Provide Any Evidence of Causation

As Cosco noted in its underlying motion, to establish causation Plaintiff must show both

that he was exposed to asbestos by Cosco’s activities, and that such exposure was a “substantial |
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factor” in causing his injury. (Lineaweaver v. Plant Insulation Company (1995) 31 Cal.App.4th
1409, 1415.)

1. There Is No Evidence That the Materials Cosco Disturbed Contained Asbestos

Plaintiff's “evidence” that the materials Cosco employees disturbed contained asbestos
is founded entirely on the declaration of Charles Ay. But Charles Ay is not an expert in
fireproofing. While he apparently “tested” fireproofing, he did not outline how many times he
conducted such tests or where those tests were conducted, aside from generic descriptions.
(Ay Decl., 9120, p. 10:12-22.) The only other activity Mr. Ay performed was reviewing product
information, specification sheets, and reports regarding fireproofing material. There is no
mention of these documents have anything to do with the locations of exposure in question.

Conducting a few tests in unrelated buildings and reviewing possibly irrelevant
documents does not an expert make. Mr. Ay spent 21 years in the shipyard industry and four
years as an asbestos pipe coverer and insulator in refineries, power plants, and buildings. Mr.
Ay does not point to any specialized training or education on the subject of fireproofing and its
various uses on the buildings at issue here. His background does not give him an expert grasp of
fireproofing historical practices, usage and composition in public buildings during the 1960s and
1970s,

Paragraph 10 of Mr. Ay’s declaration is especially astounding. Apparently Mr. Ay can
identify asbestos-containing fireproofing by its “oatmeal” appearance and texture. (Ay Decl.,
264, p. 12:7-20.) Indeed, Mr. Ay claims that he knows the precise brand and type of
fireproofing used. (Ay Decl., 126, p. 13:22-28.) But Mr. Ay fails to establish that the brand he
identifies was the fireproofing on the market or the characteristics the plaintiff described
somehow intrinsically linked it with asbestos content. Mr. Ay simply has not demonstrated the
expertise necessary to make any of the conclusions he draws in paragraphs 24-27 of his
declaration.

Mr. Ay cannot provide support for the assertion that the fireproofing Cosco employees
disturbed contained asbestos. Cosco also references its objections to plaintiffs evidence in

support of its belief that it is therefore entitled to summary judgment because there is no
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REPLYadmissible evidence on this issue.

2. Dr. Cohen Attempts to Establish Foreseeability by Referencing Documents Not
Commonly Available to Fire Sprinkler Contractors

Plaintiff attempts to establish foreseeability through Dr. Cohen, who references several
not-very-relevant documents. (See Cohen Declaration, 19, pg. 3:26-8:5 and 911-12, pg. 8:11-
11:1.) Dr. Cohen points to only two documents that he claims are not directly related to
academia or medical research: the 1935 Minutes of the Medical and Surgical Section of the
American Association of Railroads and a 1937 study of dust hazards conducted by Standard Oil
in New Jersey.

It is difficult to see how studies undertaken by the raiiroad or oil industries in the 1930s
have any relevance to what Cosco, a sprinkler fitting contractor, should have known about the
asbestos content and hazards of products installed and applied by other contractors. There is
no evidence that the railroad or oil industries published or promulgated these studies or that
the studies were in any way known outside the industries and/or organizations who sponsored
them. From Dr. Cohen’s description of these 30-year-old studies, it seems almost certain they
had nothing to do with asbestos hazards related to sprinkler fitting work.

Dr. Cohen also points to two government regulations: the California General Industry
Safety Orders and the 1971 promulgation of OSHA. But Dr. Cohen does not comment on OSHA’s
applicability to sprinkler fitting contractors, whether such contractors should have known that
other contractors were using and applying asbestos-containing products, or that the allegedly
actionable activity Cosco did in Mr. Ross’ presence (disturbing fireproofing) would even violate
OSHA's standards.

Neither does Plaintiff provide any evidence that the “California General Industry Safety
Orders” promulgated in the 1930s had any relevance to the construction trades or sprinkler
fitters in particular. Indeed, Plaintiffs own testimony that he knew nothing about the hazards of

asbestos until the late 1970's, despite being an expert insulator who regularly worked with and

installed asbestos-containing products and who always wore a mask when working with

insulation, indicates that the knowledge of asbestos’ hazards was not common among those

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trades.

Dr, Cohen’s declaration, concentrating as it does on the contents of medical journals and
scientific treatises, does not provide any evidence showing that sprinkler fitting contractors
“should have known” about the hazards of low-dose asbestos exposure. In this case, it would be
reasonable to think that Cosco “should have known” about the hazards of low-dose asbestos
expasure if Plaintiff had provided evidence of other contractors taking precautions, articles in
trade journals, testimony from other contractors, or indeed anything else tending to show what
contractors knew about such hazards at the time of the alleged injury. But Plaintiff has not done
this. Instead, he provided the testimony of a medical expert who crafted a declaration aimed at
other medical experts. Dr. Cohen’s declaration has no applicability to sprinkler fitting
contractors and entities Cosco to summary judgment.

3. If Knowledge of Fireproofing’s Hazards Was as Widespread as Dr. Cohen

Asserts, A Reasonable Fire Sprinkler Contractor Would Believe That Other
Trades Would No Longer Be Using Such Dangerous Products

Even if Dr. Cohen is completely correct, and the health hazards of asbestos-containing
fireproofing and/or insulation were common knowledge in the fire sprinkler industry, it would
be very reasonable for contractors to believe that other competent, licensed contractors would
not be using such dangerous products on the jobsite. Cosco would be totally justified in relying
on the subcontractors to use safe products, since those contractors would know best which

products were inherently dangerous and which were not.

4, Cosco Had No Way to Tell Whether Any Particular Fireproofing Contained
Asbestos

Plaintiff has provided no evidence that asbestos-containing fireproofing or insulation was
visibly different from non-asbestos-containing fireproofing or insulation. Cosco was a sprinkler
fitting contractor; its employees did not install or repair fireproofing and were in no way
qualified to determine whether fireproofing, or any other material contained asbestos or not.
Plaintiff has provided no reason that Cosco should have assumed that the fireproofing it may
have disturbed contained asbestos, especially if the dangers of such fireproofing were as

commonly known as Dr. Cohen would have us believe. Indeed, Cosco employee James Crossley

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REPLYhas affirmatively stated that they were not warned about the asbestos content or hazards of the
fireproofing they disturbed.

5. There is No Evidence That Cosco’s Disturbing of Any Materials Was a Substantial
Factor in Causing Plaintiff's Disease

Dr. Cohen states that any exposure to asbestos would be a “substantial factor” in the
causation of Plaintiff's injury. (Cohen Decl., 9117, p. 14:25-15:1.) This misunderstands the
California Supreme Court’s ruling in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953. In
Rutherford, the Supreme Court spends a great deal of time discussing the standard for what
kind of asbestos exposure would qualify as a “substantial factor” in the development of a
particular asbestos-related disease. (See Id. at 968-83.) Rutherford required two showings, one
of threshold exposure and one that the exposure amounted to a “substantial factor.” (/d. at
982.)

Dr. Cohen’s declaration, if accepted at face value, would completely destroy the
Supreme Court's painstakingly crafted “substantial factor” test. In Dr. Cohen’s world, any
threshold exposure is a “substantial factor” in the development of an illness, and no more need
be shown.

Dr. Cohen’s position simply does not comport with the California Supreme Court’s
“substantial factor” jurisprudence. A force which plays only an "infinitesimal" or "theoretical"
part in bringing about injury, damage, or loss is not a substantial factor. {People v. Caldwelf
(1984) 36 Cal. 3d 210, 220.) Yet, for Dr. Cohen, even an infinitesimal threshold exposure would
satisfy the “substantial factor” test. This simply cannot be.

Another problem with Dr, Cohen’s declaration is that he does not have any foundation to
make his determination of how much asbestos exposure Mr. Ross might have had as the result
of Cosco’s activities. As discussed above, there is no admissible evidence that any of the
fireproofing Cosco allegedly swept up contained asbestos. Yet Dr. Cohen relies on the asbestos
content of the fireproofing and/or insulation to draw his conclusion that such an exposure was a
“substantial factor” in the development of Mr. Ross’ illness. Dr. Cohen’s opinion therefore has

no foundation and must be stricken. Please also see Cosco’s objections to plaintiff's evidence.

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This entitles Cosco to summary judgment of all Plaintiff's causes of action.
6. Dr. Bruch’s Declaration is Similarly Flawed

The basis for Dr. Bruch’s entire opinion relies on the opinions of Charles Ay and the
plaintiff: that the materials Cosco disturbed in his presence contained asbestos (See objections
to evidence above at If] A, B and C}. As both of these opinions are themselves inadmissible for
the reasons stated above and in Cosco’s Objections to Plaintiff's Evidence, Dr. Bruch’s opinions,
which are wholly based on the preliminary fact that plaintiff was exposed to asbestos through
the work of Cosco employees, his entire declaration must also be excluded. Please see
additional arguments in its objections to plaintiff's evidence.

E. Plaintiff Has Dismissed their Punitives Damages Claim against Cosco

Plaintiff's have recently dismissed their punitive damages claim against Cosco in this
matter. (See Reply Declaration of Anthony Chiosso).

i. CONCLUSION

For the foregoing reasons, Cosco Construction Fire Protection requests that this Court

grant its motion for summary judgment.

Dated: July 17, 2012 JACKSON JENKINS RENSTROM LLP

By: /s/ ANTHONY C. CHIOSSO
ANTHONY C. CHIOSSO
Attorneys for Defendant
COSCO FIRE PROTECTION, INC.

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PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
I, the undersigned, declare that am a citizen of the United States and employed in San
Francisco County, California. | am over the age of eighteen years and not a party to the within-
entitled action. My business address is 55 Francisco Street, 6th Floor, San Francisco, California
94133. On July 17, 2012, | electronically served pursuant to General Order No. 158, the

following documents:

DEFENDANT COSCO FIRE PROTECTION, INC.'S REPLY MEMORANDUM TO OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT

, on interested parties in this action by causing Lexis Nexis E-Service program pursuant to |
General Order No. 158, to transmit a true copy thereof to the email address(es) of the following

parties:

BRAYTON PURCELL LLP and
222 Rush Landing Road

kok i i ist **
Novato CA 94948 Please See Lexis Nexis Service List’

The above document(s) were transmitted by Lexis Nexis E-Service and the transmission
was reported as complete without error.

| declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct and was executed on July 17, 2012, at San Francisco, California.

Js Joyce Vialpando

Joyce Vialpando

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