On December 17, 2010 a Motion-Secondary was filed involving a dispute between Ross, Jean, Ross, Robert, and Acco Engineered Systems, Inc., Advanced Mechanical, Advance Mechanical Contractors, Inc., Air Systems Mechanical Contractor, A & K Heating Company, Inc., Albay Construction Company, Allen-Simmons Heating & Sheet Metal Company Inc., Allied Fire Protection, Allied Sprinkler Company, Inc., Allsberry Mechanical Corporation, Anderson, Rowe & Buckley, Inc., Associated Insulation Of California, A. Teichert & Son, Inc., Balliet Bros. Construction Corporation, Banner Drywall & Painting Co. Inc., Barnes Construction Co., Bayer Cropscience Inc., Bayer Cropscience, Inc., Successor To Amchem, Bell Products Inc., Beta Mechanical Contractors, L.P., Bragg Investment Company, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., California Drywall Co., Castro Construction, Inc., C.C. Moore & Co. Engineers, Cincinnati Valve Company, Cjr Plastering, Clausen-Patten, Inc., Clausen-Patten, Inc., A Dissolved Corporation, Climate Air, Inc., Climate Control Co., Inc., Collins Electrical Company, Inc., Commair Mechanical Services, Consolidated Insulation, Inc., Cosco Fire Protection, Inc., Cosco Sprinkler, Critchfield Mechanical, Inc., C & R Plastering, Inc., Csk Auto, Inc., Cupertino Electric, Inc., Delucchi Sheet Metal Works, Dilland Sederberg Plumbing, Does 1-8500, Domco Products Texas Inc., Domco Products Texas, L.P., Donovan Construction, Dorn Refrigeration, Dorn Refrigeration And Air Conditioning, Dpr Construction, Duro Dyne Corporation, D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Emil J. Weber Electric Co., Erwin Mechanical Inc., Ex- Fme, Inc. (Fka Fischbach And Moore Electric,, Fairmont Hotel Company, Fluor Corporation, Foley Electric Co., Foley Electric, Inc., Fuller Floors, General Mills, Inc., Giampolini & Co., Graybar Electric Company, Inc., Hanson Permanente Cement, Inc. Formerly Known As, Harold Beasley Plumbing And Heating, Inc., Harry Lee Plumbing & Heating, H & C Investment Associates, Inc., Henry C. Beck Company, Imperial Plastering & Drywall, Insulation Specialties, Inc., James A. Nelson Co., Inc., Johnson Controls, Inc., Jones Plastering Company, Joseph Bruno Sheet Metal Co., Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, J.W. Mcclenahan Company, Inc., Kentile Floors, Inc., Laub Sheet Metal Works, Lone Star Industries, Inc., Mack Construction Co., Magee, Robert, Malm Metal Products, Inc., Marine Engineering And Supply Company, Marshco Auto Parts, Inc., Mattock Construction Company, Mcclure Electric, Inc., Metropolitan Life Insurance Company, Michael Brothers, Midstate Mechanical, Inc., Mitchell Bros. Truck Lines, Inc., Monsanto Company, Sued As "Pharmacia Corporation", Oakfabco, Inc., Ortho-Craft, Pacific Fireproofing, Pacific Mechanical Corporation, Parker Insulation Contracting & Supply Co. Inc., Perini Corporation, Pharmacia Corporation, Which Will Do Business In, Pribuss Engineering, Pribuss Engineering, Inc., Raymond Interior Systems-North, Red Top Electric Co. Emeryville, Inc., Robert Magee, Rollie R. French, Inc., Rollins Construction, Rountree Plumbing & Heating Inc., Scott Co. Of California, S F L, Inc., S.J. Amoroso Construction Co., Inc., Slakey Brothers, Inc., Sugden Engineering Co., Swinerton Builders, Temper Insulation, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The W.W. Henry Company, Tuttle And Bailey Corp, Van Mulder Sheetmetal, Van-Mulder Sheet Metal, Inc., Walnut Creek Sheet Metal, Furnace & Air, W.C. Thomason, W.C. Thompson, Webcor Builders, Inc., Westburne Supply, Inc., Willard Electric, Wright Schuchart Harbor, Wright Schuchart Harbor Company, Ross, Jean, Ross, Robert, for civil in the District Court of San Francisco County.
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A 94948-6169 AT LAW BRAYTON*PURCELL LLP oem NY KD he BY 10 ALAN R. BRAYTON, ESQ., 8.B. #73685 DAVID R. DONADIO, ESQ., S.B. #154436 SARAH N. BENDON, ESQ., 8.B. #267525 ELECTRONICALLY BRAYTON&PURCELL LLP Attorneys at Law sopekr IL ED, 5 Rush Fanding Road County of San Francisco ‘ Novato, California 94948-6169 JUL 10 2012 (415) 898-1555 Clerk of the Court Tentative Ruling Contest Email: contestasbestasTR@braytonlaw,com BY: ALISON AGBAY Deputy Clerk Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ROBERT ROSS and JEAN ROSS, ASBESTOS No. CGC-10-275731 Plaintiffs, PLAINTIFFS’ SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT COSCO FIRE PROTECTION, INC.’°S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION vs. C.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit | attached to the Summary Complaint herein; and DOES 1-8500. eee Date: July 24, 2012 Time: 9:30 a.m. Dept: 503, Hon. Teri L. Jackson Trial Date: TBD Action Filed: December 17, 2010 Pursuant to California Code of Civil Procedure § 437¢(b), plaintiffs submit the following Separate Statement of Disputed Material Facts in Opposition to Defendant COSCO FIRE PROTECTION, INC.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication. PLAINTIFFS' DISPUTED MATERIAL FACTS SUPPORTING EVIDENCE 1. Plaintiff, ROBERT ROSS, is a career 1. Declaration of plaintiff ROBERT ROSS insulator, Throughout his career as an (hereinafter “Ross Decl.”), attached to the insulator, he has worked at mmumerous job Declaration of Sarah N. Bendon locations and sites. Some of these locations (hereinafter “Bendon Decl.”) as Exhibit A, include work he performed for at { 2. Consolidated Insulation between KAinjuned:t92 Niles COSFIR-nsj. spe 1 SNB PLAINTIFFS! SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION [0 DEFENDANT COSCO FIRE PROTECTION, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 approximately 1967 to1972 at the Highland Hospital in Oakland, California, for approximately one month, on and off at the UCSF Medical Center for four months, on and off, between 1977 and 1979; and at UC Berkeley, Warren Hall, in 1979 for two weeks. Mr. ROSS also worked for Douglass Insulation again. at the UCSF Medical Center for approximately nine days in 1977. 2. Mr. ROSS worked alongside employees of COSCO FIRE PROTECTION, INC. (hereinafter “COSCO FIRE”) on numerous occasions and at various jobsites, including the Highland Hospital in Oakland, California between 1967 to 1971, at the UCSF Medical Center for between 1977 and 1979, and at UC Berkeley, Warren Hall, in 1979. 3. Mr. ROSS was able to identify COSCO FIRE employees by their hardhats, which said “Cosco,” on them. Mr. ROSS was also able to recognize COSCO FIRE employees at some of those aforementioned ocations by their trucks and toolboxes, as well as by their hardhats. Like the hardhats, these toolboxes and trucks also said "Cosco" on them. 4. Mr. ROSS worked in close proximity to COSCO FIRE employees disturbing spray- on fireproofing materials at the Highland Hospital, UCSF Medical Center, and at UC Berkeley, Warren Hall. The distance Mr. ROSS was from the COSCO FIRE employees when they were performing this work varied. For example, at UCSF Medical Center, COSCO FIRE employees would be anywhere from two feet to twenty-five feet away from Mr. ROSS when installing their sprinklerfitter materials into the ceiling. For all of these locations, the ceilings were coating with fireproofing. When shooting studs into the ceilings in order to hang their unistruts and hangers during their installation of sprinkler pipe, Mr. ROSS saw COSCO FIRE employees scraping away, penetrating and removing previously installed fireproofing. Every time they installed a rod to hang pipe they disturbed asbestos fireproofing. This happened on multiple occasions, When KAinjunah 029 plas COSERR- mpd 2. Ross Decl., attached as Exhibit A to the Bendon Decl., at 4 3. 3. Ross Decl., attached as Exhibit A to the Bendon Decl., at § 4. 4. Ross Decl., attached as Exhibit A to the Bendon Decl., at 45. sna PLAIN TIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT COSCO FIRE PROTECTION, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 these COSCO FIRE employees removed this fireproofing, it generated visible dust. 5. The fireproofing that COSCO FIRE employees disturbed in Mr. ROSS’s presence was grayish color and had fibers sticking out of the fireproofing. The older type of fireproofing that contained asbestos also had a finer consistency than the newer fireproofing, which had a consistency more akin to oatmeal. Additionally, the older asbestos-containing fireproofing had fibers that stuck out of it whereas the asbestos- free fireproofing did not. This newer type of fireproofing did not appear on Mr. ROSS’s jobsites until approximately the mid-1970s. 6. As to the Highland Hospital jobsite location, both new construction and remodeling was being performed. At the UCSF Medical Center, remodeling was being performed. The fireproofing at both these jobsites that COSCO FIRE employees were disturbing was old looking, greyish in color, and had the smoother consistency as previously described as well as contained visible fibers that stuck out of the fireproofing. As to the UC Berkeley, Warren Hall, location, this was also old construction. The fireproofing at this jobsite was also the older-type of material that was grayish in color, had a smoother consistency than the newer, asbestos-free variety of fireproofing, and had fibers sticking out of the fireproofing itself. 7. The masks Mr. ROSS wore at these jobsites were white 3M-brand paper masks. These masks were also thin. When Mr. ROSS performed his insulation work, even when wearing these masks, debris and other materials would still accumulate underneath the mask. Additionally, despite wearing these masks, Mr. ROSS would still have dust and debris accumulate in and around his nose and mouth. Moreover, these masks were not form-fitted to Mr. ROSS’s face, and frequently slipped or fell off. 8. Fireproofing that was installed in the 1960s and early 1970s was asbestos- containing, including the fireproofing disturbed in Mr. ROSS’s presence by KAinjunah 029 plas COSERR- mpd 3 5. Ross Decl., attached as Exhibit A to the Bendon Decl., at 46. 6. Ross Decl., attached as Exhibit A to the Bendon Decl., at 7. 7. Ross Decl., attached as Exhibit A to the Bendon Decl., at § 8. 8, Declaration of Charles Ay (hereinafter “Ay Decl.”), attached as Exhibit E to the Bendon Decl., pp. 13-14 at 4 26 sna PLAIN TIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT COSCO FIRE PROTECTION, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 COSCO FIRE employees was asbestos- containing. Furthermore, OSHA regulations and the California Code of Regulations define fireproofing as a presumed asbestos containing material, if it is found in buildings that were constructed no later than 1980. In addition, the 1972 American Industrial Hygiene Association Journa’ article indicates that, in 1970, well over half of all multistory buildings constructed in this country made use of a sprayed fireproofing agent, usually a blend of 5- 30% asbestos fiber chrysotile. Moreover, 1973 EPA regulations banning asbestos- containing fireproofing, discussed above, indicate that, as of 1973, fireproofing materials then in use contained from 10- 80% asbestos. The EPA “Green Book,” as discussed above, indicated that asbestos was commonly used in fireproofing up through the 1970s. Existing fireproofing in the 1960s to early 1970s, in commercial and industrial settings, more likely than not contained asbestos, absent information to the contrary. 9. Despite wearing a thin, paper mask when performing his work, the disturbance of the asbestos-containing fireproofing by the COSCO FIRE employees im the late 1960s through the 1970s released respirable asbestos fibers that ROBERT ROSS inhaled, as the masks were not form-fitted to Mr. ROSS’s face, frequently slipped or fell off, and as debris and other materials still accumulated underneath those masks. 0. By the 1960s, a company that worked in construction and on job sites where ontractors and laborers where working like, should have been aware of potential ealth hazards associated with exposure to certain occupational dust generally. By the 960s a company that worked in onstruction and on job sites where contractors and laborers where working alike, should have been aware of health azards associated with exposure to asbestos dust. Information was readily available prior to the 1960s concerning the ealth hazards of not only exposure to certain occupational non-asbestos dust, but also to asbestos exposure and the associated increased risk of developing an asbestos-related disease. Information KAinjunah 029 plas COSERR- mpd 9. Ay Decl., attached as Exhibit E to the Bendon Decl., pp. 14-15 at § 27. 10. Declaration of Richard Cohen (hereinafter “Cohen Decl.”), attached as Exhibit D to the Bendon Decl., pp. 13-14 at q 14. sna PLAIN TIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT COSCO FIRE PROTECTION, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCO wm YD A BR RY RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be eo WA A BOB He se Ss oO we YY BD mA Bw ww regarding the substantial health risks associated with exposure to airborne asbestos was readily available by the 1960s, and only became more readily available over the course of time. Equally available was information about measures to reduce the creation of dust and eliminate or reduce the exposure to dust that was created. By the 1960s, contractors, including defendant, ocated in California and subject to California General Industry Safety Orders ad ready access to information regarding methods for mitigating exposures and could have implemented them. 1. All exposures to asbestos in a person’s history where that person has an asbestos- related injury, regardless of fiber type, given a sufficient minimum latency of 0-15 years prior to diagnosis, contributed to the asbestos fiber burden and caused the asbestos-related disease, such as asbestosis or asbestos-caused cancers. There is no ower limit to the threshold of asbestos exposure responsible for causing asbestosis or asbestos-caused cancer. No exposure to asbestos in that period of time can be excluded from the causal dose of asbestos that caused the ailments. This low dose aspect has been borne out in human epidemiological studies, case reports, and laboratory research on cells and on animals. There is no scientific requirement that the exposure last a certain amount of time, be of a given intensity, or occur with a certain regularity. Each and every exposure to asbestos experienced by a person with an asbestos-related injury is a substantial contributing factor in the development of e disease. There is no way to establish which fiber caused the changes seen, and the risk accumulates with each exposure. All inhaled fibers, regardless of fiber type, play a role in the development of subsequent asbestos-related diseases. 2. A contractor who had the potential for exposure to asbestos knew or should have known of the hazards of asbestos and it is clear that, regardless of the setting, a person, such as plaintiff ROBERT ROSS, thereby exposed to airborne asbestos was at an increased risk of developing an asbestos related illness. Such exposures were preventable. The information regarding the KAinjunah 029 plas COSERR- mpd if. Declaration of Herman Brach (hereinafter “Bruch Decl.”), attached as Exhibit F to the Bendon Decl., p. 4 at 912. 12. Cohen Decl., attached as Exhibit D to the Bendon Deel., p. 14 at ¥ 15. sna PLAIN TIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT COSCO FIRE PROTECTION, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONCo em YW KD hw BR YY 10 azards associated with asbestos exposure was readily available to companies working with or around asbestos-containing products, including COSCO FIRE at least ry the mid-1960s. OBERT ROSS suffered that was in the Bendon Decl., pp. 14-15 at § 17. addition to ambient air levels would, on a more likely than not basis, have been a substantial factor in causing him to suffer an asbestos-related disease. asbestosis, are total dose-response-related the Bendon Decl., p. 2 at ¥ 5. iseases. When a person, such as the plaintiff, ROBERT ROSS, contracts an asbestos-related disease, such as asbestosis, after exposures to multiple asbestos-contaiming products, given sufficient minimum latency, cach exposure contributes to the persons’ total dose. Thus all the asbestos to which a person is exposed up to about 15 years before clinical diagnosis contributed to cause the asbestos- related injury. 15. COSCO FIRE admits that 15. Declaration of James Crossley. “fireproofing became asbestos-free in the attached as Exhibit H to the Chiosso very early 1970s,” thereby it concedes that Declaration, § 6, p.2:9-12. fireproofing contained asbestos before the “very early 1970s.” Dated: July 10, 2012 BRAYTON*PURCELL LLP By: /s/Sarah N. Bendon 4. All asbestos-related diseases, including 14. Bruch Decl., attached as Exhibit F to 3. Any asbestos exposure that plaintiff 13. Cohen Decl., attached as Exhibit D to Sarah N. Bendon Attorneys for Plaintiffs KAinjuned:t92 Niles COSFIR-nsj. spe 6 sna PLAIN TIFFS' SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT COSCO FIRE PROTECTION, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION