On December 17, 2010 a Order 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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oOo NIN Hw 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 BUTY A CURLIANOLLP: ae ‘SUE OAKLAND, CA 24 ‘510.267.3000 (e07 JASON J. CURLIANO [SBN 167509] DREXWELL M., JONES [SBN 221112] BUTY & CURLIANO LLP 555 — 12" Street, Suite 1280 Oakland, CA 94607 Tel: 510.267.3000 Fax: 510.267.0117 Email: jasonc@butycurliano.com. dmj@pbutycurliano.com Attorneys for Defendants: CRITCHFIELD MECHANICAL, INC. and ELECTRONICALLY FILED Superior Court of California, County of San Francisco OCT 31 2011 Clerk of the Court BY: JUANITA D. MURPHY Deputy Clerk HAROLD BEASLEY PLUMBING & HEATING, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO ROBERT ROSS, Plaintiff, v. ASBESTOS DEFENDANTS (BP), ef al, Defendants. ROBERT ROSS and JEAN ROSS, Plaintiffs, ve C.C. MOORE & CO. ENGINEERS; Defendants as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500, Defendants. NN Ne Nl ea a a a Nae Na ea ee L INTRODUCTION Nos. CGC-07-274099 and CGC-10-275731 CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & HEATING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIAL DATE: November 10, 2011 TIME: 9:30 am. DEPT: 503 Complaint Filed: December 17, 2010 Plaintiffs dismissed their asbestosis arid asbestos-related pleural disease claims against Critchfield Mechanical, Inc. (“CMI”) and Harold Beasley Plumbing and Heating, Inc. (“Beasley”). 1 CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & HEATING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIALom DY DH uM FF WN wNM NNR NY N SF Be Be Be Pe Se Fe Be Se a a fp oB NY |= SF BD we BW DHA FF YW YN = 27 BUTY & CURLIANOLLP. ‘ATTORNEYS ATLAW ‘Sure 1280 OAKLAND, GA 24007 ‘810.267.3000 Now, plaintiffs seek to consolidate plaintiffs’ asbestosis/pleural plaque action and his malignancy action. The result would be unavoidable confusion for the jury and severe prejudice to CMI and Beasley. Accordingly, CMI and Beasley ask the court to deny plaintiffs’ motion to consolidate. Il. STATEMENT OF FACTS On March 5, 2007, plaintiff Robert Ross filed a personal injury action based on asbestos exposure. Mr. Ross’ 2007 personal injury action is based on his alleged diagnosis of asbestosis and/or asbestos-related pleural disease. Mr. Ross named Beasley in that action, but dismissed Beasley on the eve of the initial trial date. Mr. Ross did not sue CMI in his first personal injury action. On December 17, 2010, Mr. Ross, along with-his wife Jean Ross, commenced a second personal injury action based on asbestos exposure. ‘This action involved Mr. Ross’ alleged diagnosis of colon cancer along with his alleged asbestosis and asbestos-related pleural disease. Both CMI and Beasley were named in Mr. Ross’ second asbestos-related personal injury action. After meeting and conferring regarding the nature of Mr. Ross’ second personal injury lawsuit, Mr. Ross dismissed his claims for asbestosis and asbestos-related pleural disease against CMI and Beasley. (Requests for Dismissal, attached as Exhibit A to the Declaration of Drexwell M. Jones, J 2.) Shortly, thereafter, plaintiffs brought the present motion to consolidate. Tl. LEGAL While Code of Civil Procedure section 1048(a) provides the Court broad discretion in consolidating actions pending before it, such consolidation is an abuse of discretion if it prejudices a substantial right of a party. In this case, CMI and Beasley would be extremely prejudiced to have the same jury determine causation and Proposition 51 allocation for both Mr. Ross’ asbestosis/pleural plaque claim and malignancy claim. The disease process for developing asbestosis/pleural disease is far different than that of developing cancer. ‘The pathology, epidemiology, and industrial hygiene for these very different illnesses involve different scientific principles, which are difficult to understand. In presenting a defense to plaintiff's malignancy claim, CMI and Beasley anticipate the presentation of extensive expert testimony. Plaintiffs’ 2 CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & HEATING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIALNY A uw BW ND BUTY & CURLIANO LLP. "ATTORNEYSAT LAW 385-12" Sr ‘Surte 1280 CA 510.267.3000, counsel dismissed all claims for asbestosis and pleural disease against CMI and Beasley. To now allow plaintiff's to present evidence regarding asbestosis and/or asbestos-related pleural disease to the same trier of fact as the malignancy claim is exceedingly prejudicial. The likelihood for confusion among the jury is great and a limiting instruction would not cure the prejudice. The California Supreme Court has determined potential jury confusion is a basis to deny a motion to consolidate. In State Farm Ins. Co. v. Superior Court (1956) 47 Cal. 2d 428, insurer State Farm, brought an action for declaratory relief against its insured, who was involved in an automobile accident, and relied on an exclusion in its policy applying to use of an automobile “ ‘for carrying persons for a charge.’ “ Id. at p. 431. Subsequently, several passengers who rode in the insured’s automobile at the time of the crash filed actions for personal injury against the insured alleging negligence and willful misconduct. The trial court consolidated the declaratory relief action and the personal injury actions for trial before the same jury. On appeal, the Supreme Court found that the order of consolidation required State Farm to take apparently inconsistent positions before the jury: In the declaratory relief action, it would contend that the riders were passengers “for a charge" within its policy exclusion; in the personal injury actions, it would urge that the riders were guests within the meaning of the guest statute, so that the insured would be liable only for willful misconduct. The tests for determining the riders' status were not the same under the guest law and the policy exclusion. Under these circumstances, the court held that the consolidation of the two actions was an abuse of the court's discretion. The California Supreme Court noted: Substantially the same evidence might be involved in the adjudication of these issues, but petitioner would be forced into contradictory arguments based upon conflicting testimony, or at least upon conflicting inferences arising from the evidence, with regard to these distinguishable relationships. Moreover, the consolidation would unquestionably confuse the jury in determining under differing tests set out in the instructions the consequences of any particular factual situation which the jury might find to exist. Id, at 431. Undoubtedly, consolidation in the present case would confuse the jury. First, the causation analysis for asbestosis/plural plaques is different than that of colon cancer. As in State Farm, 3 CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & HEATING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIALOo Oo WH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 BUTY & CURLIANO LL multiple tests would be at issue, albeit related to some of the same evidence. Second, asking the jury to keep track of defendants who have been sued for only asbestosis/pleural plaques, only colon cancer and those sued for both asbestosis/pleural plaques and colon cancer would be confusing and unwieldy in light of the complicated scientific principles involved. Finally, asking the jury to apportion fault in an asbestos case involving two distinct diseases would prejudice CMI and Beasley’s substantive rights. Under Proposition 51, a tortfeasor is liable only for his or her apportioned share of liability for plaintiff's non-economic damages. In the present case, there is a substantial likelihood the jury will be confused in determining the non-economic damages resulting from plaintiffs’ asbestosis/pleural plaque and the non-economic damages attributed to Mr. Ross’ alleged colon cancer (especially when Mr. Ross’ malignant tumor was removed some time ago). Second, there is a substantial likelihood the jury will be confused with respect to a rational basis for apportioning liability between multiple classes of defendants and multiple diseases. Contemplating a jury verdict form that would account for the complexity of a consolidated action immediately raises the spire of convolution. CMI and Beasley suspect plaintiffs’ counsel to some degree will count on the jury throwing up their collective hands in making liability assessments. The substantive rights potentially prejudiced by consolidation of Mr. Ross’ two cases are CMI and Beasley’s right to due process and right to a fair trial, Requiring the jury to decide liability with respect to one disease in an asbestos case is normally confusing as the jury will hear about multiple exposures and multiple defendants. Requiring the jury to determine liability for a second, entirely different, disease is impermissibly burdensome. Moreover, CMI and Beasley will be prejudiced by having the jury hear an asbestosis/pleural plaque case when they are not being sued for those illnesses. The likelihood CMI and Beasley may be assessed liability because the jury could not distinguish between multiple and confusing legal principles is high. If such confusion occurred, process would not have been due as CMI and Beasley would essentially be assessed liability for claims (asbestosis/pleural plaques) not sought by plaintiffs. MI Mt 4 CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & HEATING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIAL1] IV. CONCLUSION 2 Accordingly, CMI and Beasley request the Court deny plaintiffs’ motion for consolidation. 3 | DATED: October 28, 2011 BUTY & CURLIANO LLP 5 By: JASON J. CURL 6 DREXWELL M. § 7 Attorneys for Defendants CRITCHFIELD MECHANICAL, INC. and 8 HAROLD BEASLEY PLUMBING & HEATING, 9 5 ee encer CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & HEATING, INC.’S on Saas OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES ‘310.287.2000 INCLUDING 1PROOE OF SERVICE I declare that: Tam employed in the County of Alameda, California. 1 am over the age of eighteen years 4 and not a party to the within entitled cause; my business address is 555 — 12" Street, Suite 1280, Oakland, CA 94607. I served the following document(s) via LexisNexis File & Serve as described as: ° CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & 7 HEATING, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIAL on recipients designated on the Transaction Receipt located on the LexisNexis File & Serve bsite. og | we 10 T declare, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on October 28, 2011, in Oakland, California. 2 | REGAN BALINTON ‘siRegar Balintow Print Name Signature 6 ATER CRITCHFIELD MECHANICAL, INC.’S AND HAROLD BEASLEY PLUMBING & HEATING, INC.’S ong a sor OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER CONSOLIDATING ACTIONS FOR ALL PURPOSES INCLUDING TRIAL