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  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview
  • ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS ASBESTOS document preview 
						
                                
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                                GABRIEL A. JACKSON, State Bar No. 98119
ANTHONY C. CHIOSSO, State Bar No. 209014

KERI A. DONOHUE, State Bar No, 226411 ELECTRONICALLY
JACKSON JENKINS RENSTROM LLP FILED

55 Francisco Street, 6th Floor Superior Court of Californk

San Francisco, CA 94133 County of San Francisco.”
Tel: 415.9 32 3600 County of San Francisco

Fax: 415.982.3700 MAR 23 2012

Clerk of the Court

Attorneys for Defendant BY: VANESSA WU
COSCO FIRE PROTECTION, INC. Deputy Clerk
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 OPPOSITION TO
v. PLAINTIFFS' MOTION TO
CONSOLIDATE ACTIONS AND
C.C. MOORE & CO. ENGINEERS, et al. CONTINUE THE TRIAL DATE OF APRIL
2, 2012
Defendants.

Date: April 2, 2012
Time: 9:30 am.
Dept: 503

L INTRODUCTION / FACTUAL BACKGROUND

Defendant Cosco Fire Protection, Inc. (hereinafter, “Cosco”) opposes Plaintiffs’ motion to
consolidate the matters of Ross. v. C.C. Moore & Co.., et al, CGC-10-27573 ("ROSS 2010") and
Ross y. Asbestos Defendants, CGC-07-274009 ("ROSS 2007"). In ROSS 2007, Plaintiff alleges
thai he developed asbestosis from occupational exposure to asbestos. In ROSS 2010, Plaintiffs
allege that Mr. Ross developed colon cancer as a result of his occupational exposure to asbestos.
Plaintiffs’ complaint in the ROSS 2010 matter also included allegations of asbestosis and pleural-
related disease.

Further, ROSS 2010 included a loss of consortium claim that was not a part of Plaintiff's

OPPOSITION TO MOTION TO CONSOLIDATEeo fe NU DH HW FB BN

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first complaint, and also named new parties who were not a part of ROSS 2007.

Cosco is a named defendant in ROSS 2010, and is not a party to ROSS 2007.

Several defendants in ROSS 2010 moved to dismiss Plaintiffs' complaint for violation of
the statute of limitations. Thereafter, Plaintiffs voluntarily dismissed the asbestosis claim from
the ROSS 2010 complaint and the only injury remaining to be tried in ROSS 2010 is Plaintiff's
allegations of colon cancer.

ROSS 2007 had an original trial date of March 5, 2012, the last day that the case could be
tried under the five year statue. At trial call on March 5, 2012, the parties agreed to provide
Plaintiffs a one month extension of the five year statute to April 5, 2010, The trial date for ROSS
2007 is set for April 2, 2012.

There is no trial date set for ROSS 2010.

I. LEGAL ARGUMENT

A. An Order of Consolidation Herein Would Prejudice Defendants And
Jeopardize Their Right To A Fair Trial.

The decision whether to consolidate actions per Section 1048(a) rests in the sound
discretion of the Court. (Todd-Stenberg v. Dalkon Shield Claimants Trust, (1996) 48 Cal.App.4th
976, 978-979.) In deciding whether to consolidate actions for trial, the Court must consider "all
possibilities of prejudice" in determining whether to exercise the discretion conferred by CCP §
1048(a). (General Motors Corp. v. Superior Court, 65 Cal.2d 88, 92 (1966). (See also, Weil &
Brown, Cal.Prac. Guide: Civil Proc. Before Trial (The Rutter Group 1997) 1112:362, p.12(1)-63
fin deciding consolidation motion, the Court must consider whether joining actions for trial would
be too confusing or complex for a jury, and whether consolidation would adversely affect the
rights of any party].) Accordingly, the Court's discretion is subject to all applicable legal
principles governing whether actions should be consolidated under CCP § 1048(a). Where the
consolidation order is manifestly unreasonable, it will be set aside. (Westside Community for
Independent Living, Inc. v. Dbledo, (1983) 33 Cal.3d 348, 355; Slack v. Murray, (1959) 173
Cal.App.2d 558, 562-563.)

To properly interpret and apply CCP § 1048(a) to the facts of these cases, this Court
2

OPPOSITION TO MOTION TO CONSOLIDATE28 |

should consider the virtually identical provisions of Federal Rules of Civil Procedure ("FRCP")
42(a) together with the cases interpreting that Rule, when considering whether to consolidate
multiple asbestos cases for trial. (See Hypertouch, Inc. v. Superior Court, (2005) 128 Cal.App.4th
1527, 1544 [looking to federal rules for guidance is appropriate when state law virtually the
same].) Thus, in Malcolm v. National Gypsum Co., 2nd Cir. 1993) 995 F.2d 346, the trial court
consolidated 48 asbestos personal injury asbestos claims for trial. When the defendants appealed
from the resulting adverse judgment, the Circuit Court reversed and remanded for a new trial,
citing the scores of different work sites, the multitude of asbestos-containing products involved
and the wide-ranging time frames included in the evidence that the jury was expected to sift
through during its deliberations.

In its decision, the Second Circuit articulated criteria commonly used by the federal courts
for evaluating whether the trial court abused its discretion in consolidating asbestos cases for trial
under Rule 42(a). Those criteria are: (1) common worksite, (2) similar occupation (3) similar time
of exposure, (4) type of disease, (5) whether injured workers are living or deceased, (6) status of
discovery in each case, (7) whether all plaintiffs are represented by the same counsel and (8) type
of cancer alleged, (Malcolm, supra, 995 F.2d at pp. 350-351.)

The Court must determine "whether the specific risks of prejudice and possible confusion
[are] overborne by the risk of inconsistent adjudications of common factual and legal issues..."
(Hendrix v. Raybestos-Manhattan, Inc. (11th Cir. 1985) 776 F, 2nd 1492, 1495.) While
considerations of judicial economy are a factor, "[c]onsiderations of convenience and economy
must yield to the paramount concern for a fair and impartial trial." (Johnson v. Celotex Corp.,
899 F.2d 1281, 1285 (2d Cir.).)

The Malcolm factors are a tool designed to assist courts in determining if the
consolidation of claims is likely to prejudice or confuse the jury. In some cases, the probability
that prejudice or confusion will result may be apparent when only one factor is examined. Tt 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
3

OPPOSITION TO MOTION TO CONSOLIDATEconsidered 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
consolidation is whether the trial will be fair and impartial to all parties. (See In Re Ethyl
Corp., (Tex.1998) 975 S.W.2d 606, 614, emphasis added.) Certainly some Malcolm factors are
more important than others. For example, the status of discovery and whether the plaintiffs are
represented by the same counsel have been considered far less important than the other
considerations identified in the Malcolm case, (See In Re Repetitive Stress Injury Litig., (2d
Cir,1993) 11 F.3d 368, 374.)

Here, the fact that Plaintiffs are alleging two separate injuries in two separate complaints
will undoubtedly confuse the jury and prejudice defendants if both cases are tried together, and
therefore, consolidation must be denied. For example, Plaintiffs will present evidence from
different witnesses and experts regarding his alleged exposure to asbestos, and how that exposure
caused his injuries.

But, because of the two difference disease processes involved herein, the testimony on
these issues will differ, and the two different lines of testimony will certainly confuse the jury and
prejudice the defendants, especially considering that with respect to ROSS 2010 the parties will
litigate as to whether exposure to asbestos can actually cause colon cancer. Indeed, it will be
most difficult for the jury to keep track of Mr. Ross’s alleged exposure to asbestos from different
products and different materials at different job sites, and then attempt to attribute the exposures
to separate injuries, nonetheless try and award damages attributable to the different defendants for
the different injuries.

It is not difficult to imagine that a jury would confuse these issues and that their
confusion would lead the jury to find a defendant liable for one injury based on the evidence
submitted with respect to the other injury. For this most important reason, Plaintiff's motion to
consolidate must be denied. (Consorti v. Armstrong World Industries, Inc. 72 F. 3d 1003, 1006
(2™ Cir. 1995 [the ultimate question regarding consolidation is whether consolidation would
cause such confusion or prejudice as to rending the jury incapable of finding the facts based on

the evidence].)
4

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Consolidating these matters would not be in the interest of judicial economy. It’s only
result would be to create an unnecessarily long trial which would ultimately prejudice the
defendants and would most likely involve an appeal. Furthermore, the courts have held that
judicial economy must give way if consolidation would risk a party’s right to a fair trial. Indeed,
the obligation of the courts to deliver justice is paramount, and may not be scrapped for the
benefit of cheaper and more rapid dispositions, no matter the current economic climate. (Id, at
1006.)

Lastly, the fact that the five year statute as to ROSS 2007 is about to expire should not be
a reason to consolidate these matters. No reason exists under section 583.340 of the California
Code of Civil Procedure which would exclude this matter from being dismissed under the statute.
That is, Plaintiffs have not shown that it was “impossible, impractible or futile” to bring ROSS
2007 to trial before the statute runs, as it is Plaintiffs’ duty to ensure that the case is tried within
five years. (See Sanchez v. City of Los Angeles (2003) Cal. App.4" 1262, emphasis added.)

Plaintiffs clearly have not met their burden or proving that it was impossible to try this
case within the statutory period. Indeed, Plaintiffs have not presented any evidence in its moving
papers to suggest why trial proceedings in ROSS 2007 cannot commence on April 2, 2012, which
would include merely commencing jury hardships and selection or setting a hearing date on the
parties’ pre-trial motions, and would effectively satisfy the five year statute. For these reason’s
Plaintiff’s motion must be denied.

Ill. CONCLUSION

Defendant Cosco requests that the Court deny Plaintiffs’ motion to consolidate the matters

of ROSS 2007 and ROSS 2010.
Dated: March 23, 2012 JACKSON JENKINS RENSTROM LLP
By: 4/ Kee Oh, Ponohne
KERI A. DONOHUE

Attorneys for Defendant
COSCO FIRE PROTECTION, INC.

5

OPPOSITION TO MOTION TO CONSOLIDATEoO co DD WH FF W YW HF

RP Mw wR HB YW NY ND RD Nm et
on A mW FF YW NHN =F SF BD we IN DH BW NH S&S SD

PROOF OF SERVICE BY ELECTRONIC TRANSMISSION
J, the undersigned, declare that I am a 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 55 Francisco Street, 6" Floor, San Francisco, CA 94133.
On March 23, 2012, I electronically served the document(s) via Lexis Nexis File & Serve
described as:

DEFENDANT COSCO FIRE PROTECTION, INC.'S

OPPOSITION TO PLAINTIFFS' MOTION TO CONSOLIDATE

ACTIONS AND CONTINUE THE TRIAL DATE
on the recipients designated on the Transaction Receipt located on the Lexis Nexis File & Serve
website. I 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 March 23, 2012, at San Francisco,

California.

Al Gia Heaven

Jill Harvey

PROOF OF SERVICE