Motion,Ex Parte: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588}
Thomas J. Moses [Bar No. 116002]

BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, Suite 2000 FILED
San Francisco, CA 94105 Superior Court of California,
Telephone (415) 808-0300 County of San Francisco
Facsimile (415) 808-0333 OCT 28 2011

Email: tmoses@bhplaw.com Clerk of the Court

BY: VANESSA WU

Attorney for Defendants Deputy Clerk

A. TEICHERT & SON, INC.
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
ROBERT ROSS, (ASBESTOS)
Case No: CGC-07-274099
OPPOSITION OF DEFENDANT A.
vs. TEICHERT & SON, INC. TO

PLAINTIFFS’ MOTION TO
ASBESTOS DEFENDANTS (BP), et al. | CONSOLIDATE ACTIONS FOR ALL

Plaintiff,

PURPOSES INCLUDING TRIAL
Defendants.
Date: November 10, 2011
Time: 9°30 a.m.
Dept.: 503
Judge: Hon. Teri L. Jackson
ROBERT ROSS and JEAN ROSS, (ASBESTOS)
CGC-10-275731
Plaintiffs,

vs.
C.C. MOORE & CO. ENGINEERS; et al.

Defendants.

L INTRODUCTION

The Brayton Purcell firm, counsel for Plaintiffs herein, seeks to consolidate two
different types of asbestos claims “for all purposes, including trial” by this motion. The
first, and older, case—the one in which Defendant A. TEICHERT & SON, INC. :
(“TEICHERT”) is not a defendant—was filed on March 5, 2007 by Plaintiff ROBERT ROSS

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OPPOSITION OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIAL(Mr. Ross”). In that case, Mr. Ross sought personal injuries based on his development of
an “asbestos-related pleural disease” in May 2006 (hereinafter, “the asbestosis
complaint”). His wife, JEAN ROSS (“Mrs. Ross”) was never a party to that action. That
case is still active and pending on this Court's trial calendar.

The second personal injury case—in which TEICHERT is named as a defendant—
was filed on December 17, 2010 by Plaintiffs ROBERT ROSS and JEAN ROSS. In that
action (hereinafter, “the colon cancer complaint”), Mr. Ross seeks personal injuries based
on having been diagnosed with an allegedly asbestos-related colon cancer; Mrs. Ross
seeks loss of consortium damages. The issue of whether Mr. Ross’ asbestos exposure was
a substantial factor in causing his colon cancer is vigorously disputed in the second
action, which is also an active case on the trial calendar.

While Plaintiffs’ Motion to Consolidate (“Plaintiffs’ Motion”) suggests that the
legal and factual questions to be presented in both actions are identical, and thus a
determination that consolidating them should be an easy one for this Court to reach.
Actually, though, Plaintiffs’ Motion seeks to force TEICHERT and the other defendants
in both cases to try two different trials at the same time, involving distinct factual claims
with regard to exposure, different medical evidence and expert testimony with regard to
issues of causation, and different damage claims.

If the cases were different enough for Brayton to have filed a separate lawsuit to
assert the “colon cancer”-related damages, they are certainly different enough to keep
them from being consolidated now. Accordingly, this Court should deny Plaintiffs’

Motion.

‘According to the “colon cancer” complaint filed in December 2010, Robert and Jean Ross
were married in 1975, It remains a mystery as to why Mrs. Ross did not assert her loss of

consortium claims in the “asbestosis” complaint.
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OPPOSITION OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIAL,oO oO we IT

out DN

I. PLAINTIFFS’ MOTION FAILS TO ESTABLISH THAT THE LEGAL OR
FACTUAL PREREQUISITES FOR CONSOLIDATION EXIST, OR THAT.
CONSOLIDATION WOULD ENHANCE JUDICIAL ECONOMY AND NOT
RESULT IN PREJUDICE TO THE DEFENDANTS

A. General Considerations Regarding Consolidation

Consolidation is a procedure for uniting separate lawsuits for trial, where they
involve common questions of Iaw or fact, are pending in the same court, and a
consolidated trial would be judicially economical. (Code Civ. Proc., § 1048(a); see also
Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396.) A motion to consolidate is
usually predicated on a showing that two or more actions already involve a common
question of law or fact. (Askew v. Askew (1994) 22 Cal. App.4th 942, 964,)

The purpose of consolidation of cases pursuant to Code of Civil Procedure
section 1048(a) is to enhance trial court efficiency, but not at the expense of jeopardizing
a defendant’s fundamental right to a fair trial. Consolidation, however, is not a matter
of right, and even cases which may be thoroughly “related,” in the sense of having
common questions of law or fact, do not have to be consolidated if the court chooses
not to do so. (Fisher v, Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 402.)

Further, where potential consolidation creates a substantial danger of
inconsistent adjudications or making the trial too confusing or complex for a jury, it
must be avoided. (Code Civ. Proc., § 1048(a); Todd-Stenberg v. Dalkon Shield Claimants
Trust (1996) 48 Cal. App.4th 976, 978-979; Fellner v. Steinbaum (1955) 132 Cal.App.2d 509,
511; Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867; Weil & Brown,
Cal. Prac. Guide: Civil Procedure Before Trial (The Rutter Group 1997) {[ 12:362, p.
12(1)-63.) And, cases should generally not be consolidated absent agreement among the
parties, particularly if one party objects. (McClure v. Donovan (1949) 33 Cal.2d 717, 722-
723.2

2 Under the San Francisco Superior Court General Orders, while the Court may consider
consolidation of asbestos cases, there is a standing presumption that “alll parties shall be
deemed to have objected to any proposal for consolidation or order consolidating or

subgrouping cases for trial.” (San Francisco Superior Court General Order 129.) Under
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OPPOSITION ‘OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALIn deciding whether to consolidate, a Court must exercise appropriate judicial
discretion—that is, the Court should act in a way which would “do justice according to
law or to the analogies of the law, as near as may be [and]...to promote substantial justice
in the case.” (Slack v. Murray (1959) 173 Cal.App.2d 558, 562-563.) California courts have
long recognized that appropriate judicial discretion “is not a capricious or arbitrary
discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal
principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to
be exercised in conformity with the spirit of the law and in a manner to subserve and not
to impede or defeat the ends of substantial justice.” (Slack, supra, 173 Cal.App.2d at 562;
Bailey 0. Taaffe (1866) 29 Cal. 422, 424.)

California courts have also ruled that where “case-common” issues do not
predominate over the individual issues, or where the risks of prejudice to a party can
outweigh the reduction in time and expense that would result, consolidation orders
issued under those circumstances would amount to an improper abuse of judicial
discretion. (Todd-Stenberg, supra, 48 Cal. App.4th at 978-979; see also General Motors Corp.
v. Superior Court (1966) 65 Cal.2d 88, 92; Fellner, supra, 132 Cal.App.2d at 511.)
Accordingly, while the possibility of prejudice must be considered, the lack of
predominating case-common issues alone merits refusing to consolidate.

No California case has addressed consolidation in asbestos cases. But, courts from
other jurisdictions have held that while these cases may be consolidated, courts should
not do so when there are “specitic risks of prejudice and possible confusion....” (Cain v.
Armstrong World Industries, 785 F. Supp. 1448, 1455 (S.D. Ala. 1992), Hendrix v. Raybestos-
Manhattan, 776 F.2d 1492, 1502 (11 Cir. 1985).) Such “prejudice and possible confusion”

might result even when relatively small numbers of asbestos claims are joined. (Cain,

supra, 785 F. Supp. at 1455; Hendrix, supra, 776 F.2d at 1502.) Other risks are the burdens

placed on parties, witnesses and judicial resources, and the time needed to try the cases.

this General Order, any party may also “raise further objections to a consolidation or
subgrouping of cases for trial at any time additional facts become known that justify a

renewed objection.” (Id.)
4.

OPPOSITION OF DEFENDANT A, TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIAL(Cain, supra, 785 F. Supp. at 1455; Hendrix, supra, 776 F.2d at 1502.)

Other courts have recognized that “[c]onsiderations of convenience and economy
must yield to a paramount concern for a fair and impartial trial.” (Malcolm v. National
Gypsum Co. (24 Cir, 1993) 995 F.2d 346, 350.) The obligation of the courts to deliver
justice “is paramount, and it may not be scrapped for the benefit of cheaper and more
rapid dispositions.” (Consorti v. Armstrong World Industries, Inc., 72 F.3d 1003, 1006 (2"4
Cir. 1995),) The ultimate question regarding consolidation is whether consolidation
would cause “such confusion or prejudice as to render the jury incapable of finding the
facts on the basis of the evidence.” (Consorti, supra, 72 F.3d at 1008; In re Ethyl Corp.,
supra, 975 8,W.2d 606, 612 (Tex. 1998).)).)

Finally, courts should undertake a systematic review of the facts to determine
whether consolidation is warranted. (Schwartz, A Letter To The Nation’s Trial Judges:
How The Focus On Efficiency Is Hurting You And Innocent Victims In Asbestos Liability
Cases (2000) 24 Am. J. Trial Advoc. 247, at 257; a true and correct copy of which is
attached as Exhibit 16 to the Compendium filed herewith.) As the Second Circuit
recognized in In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 853 (2"4 Cir. 1992):

[Courts should be] mindful of the dangers of a streamlined trial process in which
testimony must be curtailed and jurors must assimilate vast amounts of
information. The systemic urge to aggregate litigation must not be allowed to
trump our dedication to individual justice, and we must take care that each
individual plaintiff's and defendant’s—cause not be lost in the shadow of a
towering mass litigation.

When evaluating whether asbestos cases have properly been consolidated for trial,
appellate courts across the country have compiled a list of factors to consider. In
Malcolm, supra, the court construed FRCP 42(a),? which has language virtually identical to
Code of Civil Procedure section 1048(a), and reversed a judgment based upon the

consolidated trial of multiple asbestos-exposed plaintiffs. The Malcolm court, in deciding

3 Federal Rule of Civil Procedure 42(a) provides, in pertinent part, “When actions
involving a common question of law or fact are pending before the court, it may order a

joint hearing or trial of any of the matters at issue in the action...”
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OPPOSITION OF DEFENDANT A. TEICHERT & SON, {NC. TO PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALa nA A

that the consolidation in that case was improper, provided the following factors for a
court to consider when consolidating asbestos cases: (1) Did the Plaintiffs have a common
worksite; (2) did they have similar occupations; (3) did they have similar times of
exposure; (4) what types of disease are involved; (5) are the injured workers are living or
deceased; (6) what is the status of discovery in each case; (7) are the Plaintiffs represented
by the same counsel; and (8) what type of cancer is alleged regarding each Plaintiff.
(Malcolm, supra, 995 F.2d at 350-351.)

An Ohio federal court identified an additional Malcolm factor that would need to
be evaluated, namely, “whether the law applicable to all plaintiffs is the same” (In re
Welding Rod Fume Prods. Liab. Litig. (MDL 1535) (N.D. Ohio), 2006 WL 2869530 at *3 (slip
copy)), explaining, “[E]ven if all of the [Malcolm] Factors weigh in favor of consolidation,
a requirement that the Court or the jury apply different legal standards to the different
cases may present an excessive risk of prejudice and confusion, such that consolidation is
not appropriate.” (Id.; see also In re Consolidated Parlodel Litig. (D.N.J. 1998) 182 F.R.D.
441, 447.)

As was noted in In re Ethyl, supra, 975 S.W.2d at 614-615, the purpose of the test is
to permit consolidation only where it is both efficient and fair:

In some cases, the probability that prejudice or confusion will result may be
apparent when only one factor is examined. It may be that the number or
diversity of worksites, for example, would create such confusion that it would be
an abuse of discretion to consolidate. In other cases, no single factor may clearly
indicate that prejudice or confusion is probable, but when the evidence that will be
presented is considered in the aggregate, the cumulative effect would result in an
unacceptably high risk of prejudice or juror confusion. In the final analysis, the
dominant consideration in every case is whether the trial will be fair and impartial
to all parties.

Courts have adopted the Maleoli/Ethyl/In re Welding Fume factors for a simple
reason: to assist them in determining if the consolidation of claims is likely to prejudice a
party or confuse the jury. To the extent helpful or applicable, those factors should be

considered by this Court when ruling on Plaintiffs’ Motion.

6.

OPPOSITION OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALB. The Purposes of Consolidation Would Not Be Served Here By Granting
Plaintiffs’ Motion

Consolidation of cases for trial may be ordered if sufficient reasons exist to
warrant a common trial. But, if no time will be saved, or the potential exists for juror
confusion, disparate results, and defendant prejudice, consolidation is neither sensible
not fair. Because all of these defects are presented by the current request for
consolidation, Plaintiffs’ request here must be denied.

While Plaintiffs’ Motion doesn’t exactly come out and say so specifically, the
“type” of consolidation it appears to seek is one which essentially “merges” the two cases
together so that the end result would be one verdict and one judgment. (See, e.g.,
Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147-1148.)* All of the parties from
both actions would be put “into” the same case for purposes of any remaining discovery
(such as experts) and for trial. Thus, Mrs. Ross, who was not originally a party in the
“asbestosis complaint,” would be now; defendants like TEICHERT, who were only
named in one complaint but not both, would also now be jumbled together. This only
helps Plaintiffs, in that it essentially side-steps any need on their part to seek leave to
amend and justify to this Court why they filed two different actions in the first place; this
also does the defendants no favors, by forcing all of what were originally only either
“asbestosis” defendants or “colon cancer” defendants into one single trial.

Further, if the two cases are consolidated into one, the “combined” case would
take the lower case number (i.e., the number of the “asbestosis complaint” filed in 2007).
The result, as alluded to by Brayton attorney Nancy T. Williams in her declaration
supporting Plaintiffs’ Motion would be that the “combined” case would very likely get a
trial date a lot earlier due to the impending lapse of the five-year statute (Code Civ. Proc.,
§ 583.310). (See Declaration of Nancy T. Williams In Support Of Motion For Order
Consolidating Actions For All Purposes Including Trial, at 2:21-24.)

‘The other type of consolidation is one for trial only, in which the pleadings, verdicts,
and judgments are kept separate, and there is no technical merger of the parties into one
case. (See Sanchez v. Superior Court (1988) 203 Cal_App.3d 1391, 1395-1399.)
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OPPOSITION OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALPlaintiffs thus would be able to get a form of “preferential” trial date with regard
to their “colon cancer complaint” without ever having had to ask for (or justify) it from
this Court. Attorney Williams suggests that this effect provides the “good cause” for
their motion—but getting an earlier trial date for one of the cases to be consolidated is, in
actuality, not “good” for anyone but Plaintiffs’ counsel, and is not a “cause” that this
Court may properly consider when deciding whether the requirements of Code of Civil
Procedure section 1048(a) have been satisfied.

Plaintiffs’ Motion does not save judicial time or resources. Not only does it seek to
move the combined cases to the head of the line, past other deserving plaintiffs awaiting
their day in court, it guarantees that the consolidated trial would be longer and more
confusing. Trying a malignancy case and an asbestosis case before the same jury at the
same time would substantially outweigh the inevitable confusion and cross-prejudice to
the defendants that would result from such a trial.

Causation and damages issues differ between the two cases. (For example, the
lack of a “loss of consortium” claim in the “asbestosis complaint.”) In these
circumstances, the perils of juror confusion and defendant prejudice are significantly
magnified if the same jury, after hearing evidence applicable to one Plaintiff or one
defendant, is then requested to “forget” all that they’ve heard and start over again with
new evidence, a new Plaintiff and anew Defendant. The reality of our jury system is that
it would be impossible to require instant forgetfulness on the part of jurors, particularly if
they have gone through one or two “groups” of trials.

In essence, Plaintiffs’ Motion is a “consolidation” motion, a motion for “leave to
amend,” and a motion to “advance the trial date” all at the same time. But, Plaintiffs’
Motion fails to provide any cognizable justification for any of these requests, other than
the purely tactical benefit (to Plaintiffs) of an earlier trial date being given to the claims
asserted in their “colon cancer complaint.” Plaintiffs’ Motion also fails to explain why the
Brayton firm didn’t merely seek leave to amend the “asbestosis complaint” to also assert

the damages related to Mr. Ross’ subsequent colon cancer diagnosis.

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OPPOSITION OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO.
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALTEICHERT suggests that the only purpose of Plaintiffs’ Motion is to make it more
convenient for the Brayton firm to try this case, and to structure this case such that it
maximizes the prejudice to all of the defendants involved. In essence, Plaintiffs’ Motion
requests a consolidation of these two separate cases—filed separately by Brayton for
seemingly nothing more than tactical reasons—for only one reason: their counsel’s
convenience.

Separate trials before separate juries would eliminate any potential sources of
confusion and prejudice. While this might not always be the most time-efficient result, it
is what is required here, as Plaintiffs have failed to justify their consolidation request.
HI. CONCLUSION

For all of the reasons set forth above, Defendant A. TEICHERT & SON, INC.
respectfully requests that the Court deny Plaintiffs’ Motion to Consolidate For All
Purposes Including Trial, and, instead, try each of the cases separately, with separate
juries, and provide the parties with the order in which the cases will be tried,

DATED: October 28, 2011 BRYDON HUGO & PARKER

By:_/s/ Thomas J. Moses
Edward R. Hugo
P.M. Bessette
Thomas J. Moses
Attorneys for Defendant
A. TEICHERT & SON, INC,

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OPPOSITION OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’ MOTION TO.
CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALCo Om IND HW BB Ww

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Ross, Robert & Jean
San Francisco County Superior Court Case No. CGC-10-275731
LexisNexis Transaction No, 40613416

PROOF OF SERVICE

Tama resident of the State of California, over the age of 18 years, and not a
party to the within action. My electronic notification address is
service@bhplaw.com and my business address is 135 Main Street, 20" Floor, San
Francisco, California 94105. On the date below, I served the following:

OPPOSITION OF DEFENDANT A. TEICHERT & SON, INC. TO PLAINTIFFS’
MOTION TO CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING
TRIAL

on the following:

BRAYTON “PURCELL LexisNexis Electronic Service List
222 Rush Landing Road
Novato, CA 9494:

X By transmitting electronically the document(s) listed above as set forth
on the electronic service list on this date before 5:00 p.m.

o By transmitting via facsimile the document(s) listed above to the fax
number(s) set forth above on this date before 5:00 p.m.

o By placing the document(s) listed above in a sealed envelope and placing
the envelope for collection and mailing on the date below following the
firm’s ordinary business practices. I am readily familiar with the firm’s
practice of collection and processing correspondence for mailing. Under
that practice it would be deposited with U.5. Postal service on the same
day with postage thereon fully prepaid at San Francisco, California in
the ordinary course of business. I am aware that on motion of party
served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in
affidavit.

o By placing the document(s) listed above in a sealed envelope designated
for Federal Express overnight delivery and depositing same with fees
thereupon prepaid, in a facility regularly maintained by Federal Express,
addressed as set forth above.

o By causing personal delivery of the document(s) listed above to the
person(s) at the address(es) set forth above.

I declare under penalty of perjury that the above is true and correct.
Executed on October 28, 2011, at San Francisco, California.

Wards D. Caudi's

Wanda D. Claudio

PROOF OF SERVICE