Document for ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT Law
SAN FRancisco

MICHAEL P. PULLIAM (SBN 215435)
DRINKER BIDDLE & REATH LLP

50 Fremont Street, 20th Floor

San Francisco, CA 94105-2235
Telephone: (415) 591-7500
Facsimile: (415) 591-7510

Attorneys for Defendant
MONSANTO COMPANY

ELECTRONICALLY
FILED

Superior Court of Calffornia,
County of San Francisco
08/21/2015
Clerk of the Court
BY:EDNALEEN JAVIER
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

ROBERT ROSS, et al.
Plaintiff,
v.
ASBESTOS DEFENDANTS,

Defendants.

81979440.1

Case No, CGC-10-275731

IDENTIFICATION OF RECENT
AUTHORITY REGARDING PREJUDICE
TO DEFENDANTS IN CONSOLIDATED
ASBESTOS TRIALS

IDENTIFICATION OF RECENT AUTHORITY RE: PREJUDICE TO DEFENDANTS IN CONSOLIDATED ASBESTOS TRIALSCD em YN DH KB WN

Nm RB N YN NN DY
I A A KF ow NH |= S

28

DRINKER BIDDLE &
REATH LLP
Avrorneys Az Law
SAN FRANCISCO

At yesterday's hearing regarding potential consolidation of the Ross, Barragan, Fortner
and Roman cases, the Court commented that it was familiar with complaints from defense
counsel about potential prejudice to defendants in consolidated asbestos trials but was unaware of
evidence to support these claims. The recent decision from In re: New York City Asbestos Litig.,
No. 190411/13, 2015 N.Y. Misc. LEXIS 2634 (N.Y. Sup. Ct., N.Y. Cty. “NYCAL”), July 24,
2015), attached as Exhibit A, addresses this prejudice to defendants. In denying a motion ton
consolidate multiple asbestos cases the Court relied upon statistics from nineteen recent
consolidated and non-consolidated asbestos trial from NYCAL, showing that showing
consolidated trials lasted much longer. Id. at *7. The results from those nineteen trials also
provided strong evidence that consolidation is prejudicial to defendants. In the individual trials,
the defense won two-thirds of the trials and had about a $4.4 million per plaintiff verdicts in the
rest, Id. at *7-*8. In the consolidated cases, the results were dramatically different: the defense

won one-tenth of the trials and had about $9 million per plaintiff verdicts in the rest. Id.

Dated: August 20, 2015 DRINKER BIDDLE & REATH LLP

By: /s/Michael P. Pulliam
Michael P. Pulliam

Attorneys for Defendant
MONSANTO COMPANY

81979440.1 -2-

IDENTIFICATION OF RECENT AUTHORITY RE: PREJUDICE TO DEFENDANTS IN CONSOLIDATED ASBESTOS TRIALS28

DRINKER BIDDLE &
REATH LLP
ATTORNEYS AT LAW
San Francisco

PROOF OF SERVICE
Robert Ross, et al. v, Asbestos Defendants, et al.

I, Michelle Sankey, declare:

I ama citizen of the United States and employed in San Francisco County, California. I
am over the age of eighteen years and not a party to the within-entitled action. My business
address is 50 Fremont Street, 20th Floor, San Francisco, California 94105-2235. On August 20,
2015, I served a copy of the within document(s):

IDENTIFICATION OF RECENT AUTHORITY REGARDING

pete TO DEFENDANTS IN CONSOLIDATED ASBESTOS

by transmitting electronically via File & Serve Xpress transmission the
document(s) listed above to the person(s) at the e-mail address(es) set forth below

Attorneys for Plaintiffs
Gilbert L. Purcell, Esq.
James P. Nevin, Esq.
BRAYTON PURCELL LLP
222 Rush Landing Road

PO Box 6169

Novato, CA 94948
Telephone: (415) 898-1550

jnevin@braytonpurcell.com

and to all other recipients designated on the Transaction Receipt located on the File
& Serve Xpress website.

I declare under penalty of perjury under the laws of the State of California that the above

is true and correct.

Executed on August 20, 2015, at San Francisco, California.

ewe
ithelle Sankey

ACTIVE/ 76344 142.1

PROOF OF SERVICEEXHIBIT A@ LexisNexis’

Page 1

[**1] IN RE: NEW YORK CITY ASBESTOS LITIGATION Index No.
190411/13; MICHAIL ANDREADIS, Plaintiff, - against - ABB, INC., et al., Defend-

ants.

190411/13

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2015 N.Y. Mise. LEXIS 2634; 2015 NY Slip Op 31358(U)

July 24, 2015, Decided

NOTICE: THIS OPINION IS UNCORRECTED
AND WILL NOT BE PUBLISHED IN THE PRINTED
OFFICIAL REPORTS.

COUNSEL: [*1] For plaintiff: Derell D. Wilson, Esq.,
The Early Law Firm, New York, NY.

For William Powell Co.: Matthew H. Mueller, Esq.,
Clemente Mueller, P.A., New York, NY.

For Mario & DiBono: Austin D. O'Malley, Esq., Cullen
and Dykman LLP, New York, NY.

For joint defendants: Stephen Novakidis, Esq., Malaby &
Bradley, LLC, New York, NY.

For Milwaukee/Oakfabco: Mark K. Hsu, Esq., Joanna
Drozd, Hawkins Parnell, et al., New York, NY.

For Fairbanks: Lee D. Schneider, Esq., McGivney &
Kluger, P.C., New York, NY.

For Goulds: Austin D. O'Malley, Esq., Cullen and Dyk-
man LLP, New York, NY.

For Andal: Samantha J. Geoghan, Esq., Wilson, Elser, et
al., New York, NY.

JUDGES: Barbara Jaffe, JSC.
OPINION BY: Barbara Jaffe
OPINION

DECISION AND ORDER
BARBARA JAFFE, J.:

By order to show cause, plaintiffs move pursuant to
CPLR 602 for an order consolidating the following "in
extremis" cases for a joint trial: (1) Michail Andreadis,
Index No. 190411/13; (2) Joseph Barry Best, Index No.
190109/14; (3) David William Fahy, Index No.
190259/13; (4) Donald Nefsey, Index No. 190051/14; (5)
Donald Rocovich, Index No. 190042/14; and (6) William
Weil, Index No. 1900434/11. Plaintiff seeks to try the
cases in four groups as [**2] follows: Group one -
Andreadis; Group two - Fahy; [*2] Group three - Best
and Nefsey; and Group four - Rocovich and Weil.

Defendants jointly oppose; opposing in the Nefsey
matter are defendants The William Powell Company
(Powell), Milwaukee Valve Company, Inc., Oakfabco,
Goulds Pumps, Inc., and The Fairbanks Company (Fair-
banks); opposing in the Rocovich matter are defendants
Oakfabco and Goulds; opposing in the Best matter is
defendant Goulds; and opposing in the Weil matter are
defendants Andal, Goulds, and Mario & DiBono.

1, APPLICABLE LAW

Pursuant to CPLR 602(a), a motion for a joint trial
rests in the discretion of the trial court. (See Matter of
New York City Asbestos Litigation [Dummit], 121
A.D.3d 230, 990 N.Y.S.2d 174 [lst Dept 2014]; JP
Foodservice Distribs., Inc. vy PricewaterhouseCoopers
LLP, 291 A.D.2d 323, 737 N.Y.S.2d 849 [1st Dept 2002];
Rodgers v Worrell, 214 AD2d 553, 625 N.Y.S.2d 64 [2d
Dept 1995]).

Generally, in order to join actions for trial, there
must be a "plain identity between the issues involved in
the []two controversies." (Vigo S.S. Corp. v Marship
Corp. of Monrovia, 26 N.Y.2d 157, 257 N.E.2d 624, 309
N.Y.S.2d 165 [1970]; Geneva Temps, Inc. v New WorldPage 2

2015 N.Y. Misc. LEXIS 2634, *; 2015 NY Slip Op 31358(U), **

Communities, Inc., 24 AD3d 332, 806 N.Y:S.2d 519 [Ist
Dept 2005]). A motion for a joint trial should be granted
unless the opposing party demonstrates prejudice to a
substantial right (in re New York City Asbestos Litigation
[Bernard], 99 A.D.3d 410, 951 N.Y.S.2d 154 [Ist Dept
2012]), and allegations of prejudice must be specific and
non-conclusory (Dummit, 12] AD3d at 245). However, a
joint trial should not be granted if individual issues pre-
dominate over common ones. (/d.).

In determining whether to consolidate the individual
plaintiffs’ cases for a joint trial where exposure [*3] to
asbestos is alleged, courts consider the factors set forth in
Malcolm v Nil. Gypsum Co., 995 F2d 346 (2d Cir 1993),
[**3] which follow, in pertinent part:

(1) whether the plaintiffs worked at a
common or similar worksite;

(2) whether the plaintiffs had similar
occupations, as a "worker's exposure to
asbestos must depend mainly on his oc-
cupation," such as those who worked di-
rectly with materials containing asbestos
as opposed to those who were exposed to
asbestos as bystanders;

(3) whether the plaintiffs were ex-
posed to asbestos during the same period
of time;

(4) whether the plaintiffs suffer or
suffered from the same disease, as the Ju-
ry at a consolidated trial will hear evi-
dence about the etiology and pathology of
different diseases, and prejudice may re-
sult where the jury learns that a terminal
cancer engenders greater suffering and
shorter life span than does asbestosis;

(5) whether the plaintiffs are alive;
“dead plaintiffs may present the jury with
a powerful demonstration of the fate that
awaits those claimants who are still liv-
ing"; and

(6) number of defendants named in
each case.

(Malcolm, 995 F2d at 350-353).

To reduce juror confusion and minimize any alleged
prejudice to defendants in consolidated cases, the court
may use techniques such as providing [*4] "limiting,
explanatory and curative instructions," giving notebooks
to jurors to “assist them in recording and distinguishing
the evidence in each case," and presenting the jurors with

plaintiff-specific verdict questions and sheets. (Dummit,
121 AD3d at 245).

II. PLAINTIFFS' INFORMATION

As there is no opposition to proposed groups one
and two (Andreadis and Fahy), I address only groups
three (Best and Nefsey) and four (Rocovich and Weil).

A. John Barry Best

Best recently passed away at the age of 68 from
mesothelioma. From 1966 to 1970, he [**4] served as
a shopkeeper for the United States Navy, and was alleg-
edly exposed to asbestos while taking damaged returned
parts, such as asbestos-containing gaskets and packing,
to the shop from ship engineers while they were doing
repair work. He also assisted with, and worked near oth-
ers performing, work on boilers, engine, pumps, valves,
steam traps, and turbines, and general clean-up. After he
left the Navy, Best performed brake jobs on vehicles
using asbestos-containing brakes. (NYSCEF 95).

Defendants remaining in his action are Carrier Cor-
poration, Goulds, ITT Corporation, and Warren Pumps,
LLC.

B. Donald Nefsey

Nefsey is 81 years old and suffers from mesothelio-
ma. From [*5] 1951 to 1955, he served in the Navy as a
fireman aboard the USS Charles P, Cecil, DDR 835, and
was allegedly exposed to asbestos from asbes-
tos-containing pumps, steam traps, and valves. From
1946 to 1979, Nefsey also worked as a fireman, laborer,
and pipefitter, during which time he was exposed to as-
bestos contained in and used with boilers, heating coils,
insulation, pumps, steam traps, and valves. (NYSCEF
95).

Defendants remaining in his action are Armstrong
International, Inc. f/k/a Armstrong Machine Works, Au-
rora, Bell & Gossett Company, Bryan Steam Corpora-
tion, Burnham Corporation, Burnham LLC, Crown Boil-
er Co., FMC Corporation on behalf of Peerless Pumps,
Fort Kent Holdings, Inc. f/k/a Dunham-Bush, Inc.,
Goulds, Jenkins Bros., Milwaukee Valve, Oakfabco,
Perma-Pipe (a subsidiary of MFRI, Inc.), Riley Power,
Inc., Sterling Fluid Systems (USA), LLC (formerly
known as Peerless Pump Company), Taco, Inc., Fair-
banks, Powell, and Warren Pumps, LLC.

[**5] C. Donald Rocovich

Rocovich recently passed away at the age of 84 from
lung cancer. From 1949 to 1974 he worked as an insula-
tor at various residential, commercial, and industrial
sites, and was allegedly exposed to asbestos from asbes-Page 3

2015 N.Y. Misc. LEXIS 2634, *; 2015 NY Slip Op 31358(U), **

tos-containing [*6] insulation, piping and_ fittings,
valves, elbows, steam traps, pumps, turbines, and other
related equipment. Defendants remaining in his action
are Goulds and Oakfabco. (NYSCEF 95).

D. William Weil

Weil is a 76-year-old suffering from lung cancer.
From 1957 to 1979, he worked as a sheet metal worker,
and was allegedly exposed to asbestos from asbes-
tos-containing joint compound, insulation, and fire-
proofing while working on construction of the World
Trade Center. He also performed home renovations in
the 1950s and 1960s, and was allegedly exposed to as-
bestos-containing floor tiles and joint compound. De-
fendants remaining in his action are Andal, Kaiser Gyp-
sum Company, Mario & DiBono, Port Authority of New
York and New Jersey, Tishman Realty & Construction
Co., Inc., and Tishman Realty Corporation.

Ul. ANALYSIS

A. Judicial economy

Plaintiffs argue that consolidating these cases will
save time and lead to more efficient and speedier dispo-
sitions as the same state of the art evidence and medical
evidence will be offered at each trial. (NYSCEF 95).

Defendants assert that the more plaintiffs in a trial
group, the more defendants, and the correspondingly
longer process needed for jury selection [*7] and trial.
And, when a multi-plaintiff trial is scheduled, jurors are
asked to serve weeks if not months. Thus, they maintain,
finding [**6] jurors who will commit to a lengthy trial
prolongs jury selection, as does the necessity of selecting
extra alternates against the possibility that one or more
jurors will be released before the trial concludes. De-
fendants also observe that jurors who are students or
professionals and/or hold managerial or supervisory po-
sitions may be unable to serve for a long period, yielding
a less diverse pool. (NYSCEF 102).

In denying plaintiffs’ claim that consolidation results
in speedier dispositions, defendants offer statistics re-
flecting that of the most recent 19 asbestos trials in New
York County, those with only one plaintiff lasted up to
three weeks each, whereas those with more lasted as long,
as 18 weeks. (/d.). Defendants also argue that longer
trials involving more than one plaintiff almost always
lead to large plaintiff verdicts, while trials with one
plaintiff often lead to defense verdicts or smaller plaintiff
verdicts. Their statistics show that of the nine trials in
New York County with one plaintiff, six resulted in de-
fense verdicts, and the other [*8] three in verdicts of
$2.5 million, $3.8 million, and $7 million. In contrast, of
the ten trials conducted with more than one plaintiff,

only one had a defense verdict, and the remaining ag-
gregate verdicts ranged from $7.3 million to $190 mil-
lion, or between $2.43 million at the lowest and $38 mil-
lion at the highest per plaintiff, representing an average
of approximately $9 million per plaintiff.

Defendants also observe that the large verdicts are
often reduced by the trial or appellate courts, illustrating
a disconnect between juror verdicts in those cases and
the sustained verdicts. They thus argue that there is no
great efficiency in trying consolidated cases as final
judgments must often await appellate scrutiny and deci-
sion. (/d.).

In juxtaposition to the alleged New York County
consolidation trend (see In re New York City Asbestos
Litigation, 188 AD2d 214, 593 N.Y.S.2d 43 [Ist Dept
1993], affd 82 N.Y.2d 821, 625 N.E.2d 588, 605 N.Y.S.2d
3 [joint trials may [**7] potentially reduce cost of
litigation, promote judicial economy, speed disposition
of cases, and encourage settlements]; Matter of New York
City Asbestos Litigation [Dummit], 36 Misc. 3d 1234[A],
2012 NY Slip Op 51597[U], 960 N.¥.S.2d 51 [Sup Ct,
New York County 2012] [in New York County, asbestos
cases have historically been consolidated for trial]),
elsewhere the trend is to prohibit the consolidation of
asbestos trials absent the consent of all parties. (Ohio R
Civ P 41[A][2]; Tex Civ Prac & Rem Code Ann §
90.009; Kan Stat Ann § 60-4902[j]; GA Code Ann §
51-14-10; Mich Admin Order [*9] No. 2006-6).

And, while judicial economy and efficiency should
be considered in determining whether to consolidate,
they "must yield to a paramount concern for a fair and
impartial trial." (Johnson v Celotex Corp., 899 F2d 1281
[2d Cir 1990]). "The systemic urge to aggregate litiga-
tion must not be allowed to trump our dedication to indi-
vidual 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." (Jn re Brooklyn
Navy Yard Asbestos Litig., 971 F2d 831 [2d Cir 1992];
see also Malcolm, 995 F2d at 350 ["benefits of efficien-
cy can never be purchased at the cost of fairness"]).
However, consolidating cases that are somewhat diverse
does not "suggest the prejudice of defendant's right to a
fair trial." (in the Matter of New York City Asbestos Liti-
gation [Baruch], 111 A.D.3d 574, 975 N.Y.S.2d 660 [Ist
Dept 2013]).

Moreover, state of the art evidence differs according
to the pertinent occupation or industry, and may differ
according to the product. (See Curry v Am. Standards,
2010 U.S. Dist. LEXIS 83205, 2010 WL 6501559 [SD NY
2010] (differences in degree and duration of plaintiffs’
asbestos exposure would likely require presentation of
different complex state-of-art evidence in each case, fur-
ther mitigating against potential efficiency of consolida-Page 4

2015 N.Y. Misc. LEXIS 2634, *; 2015 NY Slip Op 31358(U), **

tion]). And, while medical evidence may be duplicative,
[**8] it takes less trial time than that spent on each
plaintiff's medical history. [*10] Thus, the length of the
trial often depends on the plaintiffs' occupations and
medical histories.

Accordingly, in exercising my discretion in deciding
whether to consolidate these cases, I duly consider judi-
cial economy and efficiency.

B. Best and Nefsey

Powell, a defendant only in the Nefsey case, main-
tains that while it was also sued in the Best matter, it was
granted summary dismissal, and it would thus be unfair
to require it to participate in a trial from which it has
been dismissed. It also argues that it would be prejudicial
for it to try a case with a living plaintiff and a deceased
one; that plaintiffs’ economic losses are dissimilar as
Best died at 68 years old while he was still working and
Nefsey is 81 years old and retired; that as both plaintiffs
served in the Navy during different decades, the state of
the art does not overlap; and that as Nefsey was mostly
exposed to asbestos in Michigan, Michigan law may
apply and confuse the jury as only New York law applies
in Best's case. (NYSCEF 100).

Milwaukee Valve and Oakfabco also oppose the
consolidation of living and deceased plaintiffs, and ob-
serve that Best and Nefsey did not share a common oc-
cupation, worksite, or time of [*11] exposure.
(NYSCEF 101). Goulds and Fairbanks advance the same
arguments. (NYSCEF 120, 121).

Consolidating cases involving living and deceased
plaintiffs is not inherently prejudicial. (See Jn re Joint
Eastern and Southern Dist. Asbestos Litig. [Schultz],
1990 U.S. Dist. LEXIS 442, 1990 WL 4772 [SD NY
1990] [coexistence of personal injury and wrongful death
claims warrants use of cautionary instructions but is not
so inherently prejudicial as to preclude consolidation]; Jn
re New York City Asbestos Litigation v A.O. Smith Water
Prods. [Collura], 9 Misc. 3d 1109[A], 2005 NY Slip Op
51465[U], 806 N.Y.S.2d 446 [Sup Ct, New York County
2005).

[**9] Moreover, that a different state's law may
apply to one of the plaintiff's cases does not require sep-
arate trials. (See In re New York City Asbestos Litigation

[Bernard], 99 A.D.3d 410, 951 N.¥.S.2d 154 (Ist Dept ©

2012] [as defendant had not yet asked court to determine
whether different state's law applied to action, it would
be premature to deny consolidation on that ground, and
defendant did not demonstrate why alleged differences in
states’ laws cannot be cured with jury instructions]).

However, the only commonality between Best and
Nefsey is their naval service, and the differences in their

services predominate here. Moreover, their Navy expo-
sure constituted only a part of their overall exposure,
which also differs. Best was exposed, after 1970, to as-
bestos-containing brakes from work on vehicles. Nefsey
was exposed from 1946 to [*12] 1979 while working as
a fireman, laborer, and pipefitter to asbestos-containing
boilers, heating coils, insulation, pumps, steam traps, and
valves.

Finally, four defendants remain in the Best case,
whereas 20 defendants remain in the Nefsey matter, and
there are only two defendants in common. Thus, consol-
idating these cases for trial would result in 22 defendants
participating in a trial in which they are involved in one
of the plaintiffs' cases.

Plaintiffs have thus failed to establish that Best and
Nefsey shared a common occupation, worksite, or expo-
sure, or that joining these cases for trial would result in
judicial economy or greater efficiency. (See Curry v Am.
Standards, 2010 U.S. Dist. LEXIS 83205, 2010 WL
6501559 [SD NY 2010] [differences in degree and dura-
tion of plaintiffs’ asbestos exposure would likely require
presentation of different complex state-of-art evidence in
each case, further mitigating against potential efficiency
of consolidation]).

C. Rocovich and Weil

Milwaukee Valve and Oakfabco oppose the consol-
idation of living and deceased [**10] plaintiffs, and
observe that Rocovich and Weil did not share a common
occupation or worksite. (NYSCEF 101). Andal, a de-
fendant in the Weil action only, advances the same ar-
guments, and observes that Weil's lung cancer [*13] has
been in remission since 2011. (NYSCEF 117).

Rocovich worked as an insulator from 1949 to 1974
at numerous residential, commercial, and industrial sites,
while Weil's primary exposure came from his work as a
sheet metal worker at the World Trade Center from 1957
to 1979. Weil also performed home renovation from the
1950s to the 1960s. They were exposed to only one
common product, insulation, Two defendants remain in
the Rocovich matter, while six remain in the Weil matter,
and there are no defendants in common.

Absent the commonality of their occupations,
worksites, or exposures, plaintiffs have not demonstrated
that these two cases should be consolidated for trial.

IV, CONCLUSION
Accordingly, it is hereby

ORDERED, that plaintiffs' motion for an order con-
solidating certain cases for trial is denied in its entirety;
and it is furtherPage 5
2015 N.Y. Misc. LEXIS 2634, *; 2015 NY Slip Op 31358(U), **

ORDERED, that the parties are directed to appear /s/ Barbara Jaffe
for a final pretrial conference on August 19, 2015 at 2:30
pm at 80 Centre Street, Room 279, New York, New Barbara Jaffe, JSC.
York. DATED: July 24, 2015

ENTER: New York, New York