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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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28

‘Walsworth,
Frankdin,
Bevins &

‘McCall, LLP

ATTORNESSATLAW

LISA R, ACKLEY, State Bar No, 162427

lackley@wfbm.com
DANA L, BURCH, State Bar No, 224713
dburch@wfbm.com ELECTRONICALLY
HILLARY H. HUTH, State Bar No. 215536 FILED
hhuth@wfbm.com Superior Court of California,
WALSWORTH FRANKLIN BEVINS & McCALL, LLP County of San Francisco
601 Montgomery Street, Ninth Floor MAR 23 2012
San Francisco, California 94111-2612 kK
Telephone: (415) 781-7072 : artaricof tne ce un
Facsimile: (415) 391-6258 Deputy Clerk
Attorneys for Defendant
DURO DYNE CORPORATION
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ROBERT ROSS and JEAN ROSS, Case No. CGC-10-275731
Plaintiffs, DEFENDANT DURO DYNE
CORPORATION'S CONDITIONAL
vs. NON-OPPOSITION TO PLAINTIFFS'
MOTION TO CONSOLIDATE ACTIONS
C.C. MOORE & CO. ENGINEERS; et al., AND CONTINUE THE TRIAL DATE
Defendant. Date: April 2, 2012
Time: 9:30 a.m.
Dept.: 503, Hon. Teri L. Jackson
Complaint Filed: December 17, 2010
Trial Date: N/A

Defendant DURO DYNE CORPORATION (“defendant”) submits the following
Conditional Non-Opposition to Plaintiff Robert Ross and Jean Ross’ (“plaintiffs”) Motion to
Consolidate Actions and Consolidate the Trial Date (“Motion.”)

Defendant does not oppose plaintiffs’ Motion as long as defendant’s due process rights are
not violated. Specifically, defendant requests that:

1. Plaintiffs waive their rights to a trial within 5 years from the date of filing of the
2007 complaint;
2. Defendant has sufficient time to conduct discovery;

3. The current trial date is vacated, and a new trial date is set for no sooner than March

ele
DEFENDANT DURO DYNE CORPORATION'S ANSWER TO PLAINTIFFS’ SECOND AMENDED
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS2013; and
4. All deadlines foliow the new trial date.
L STATEMENT OF FACTS

Duro Dyne was served in case No. CGC-10-275731 (“ROSS 2010”) in which plaintiff
alleges he suffers from colon cancer caused by his occupational exposure to asbestos on March 2,
2012. Duro Dyne has not had the opportunity to conduct discovery specific to plaintiff's
allegations against Duro Dyne. Duro Dyne is not a party to case No. CGC-07-274099 (“ROSS
2007”) in which plaintiff seeks damages related to asbestos-related pleural disease.

Il. ARGUMENT

Plaintiffs request that ROSS 2007 and ROSS 2010 be consolidated pursuant to CCP
§ 1048(a). Plaintiffs argue that consolidation will avoid inconsistent results and further interests of
judicial economy.

As both cases involve allegations of disease caused by exposure to asbestos, all potential
exposures are of interest to defendants in both cases. California Civil Code section 1431.2
(“Proposition 51”) requires that non-economic damages be allocated to the “universe” of
tortfeasors severally, based on each tortfeasor’s proportionate fault. (DaFonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 596-97; Kitzig v. Nordguist (2000) 81 Cal.App.4th 1384, 1396-99; Arena v.
Owens-Corning Fiberglass (1998) 63 Cal.App.4th 1178, 1195-1196; Rosian v. Permea, Inc. (1993)
17 Cal.App.4th 110, 113; Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 852-56.)
However, the statute is silent as to how a jury is required to allocate fault among this “universe” of
tortfeasors. In Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, the trial court
was faced with precisely this issue. In that matter, the defendant proposed a special verdict form
which listed out by name the other joint tortfeasors. (/bid. at 322.) The court rejected the
defendant’s special verdict form and, instead, submitted a special verdict form which listed “other
persons” to whom fault could be allocated generally. (/bid. at 322-23.) The Court of Appeal
affirmed the use of the trial court’s special verdict form, concluding that use of a special verdict
form which identified nonparties to whom some percentage of fault could be allocated as “other

persons” could not reasonably mislead a jury. (Ibid. at 325-26.)

2-
DEFENDANT DURO DYNE CORPORATION'S CONDITIONAL NON-OPPOSITION TO PLAINTIFFS'
MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATE

1790217.1
3413-3.2941Furthermore, if these cases proceed to trial separately, we run the risk of inconsistent

| verdicts. For example, if one jury allocates fault to a defendant in the asbestosis case, there is no

| indication that defendants in the colon cancer case could rely upon that allocation at trial in the

| colon cancer action. The risk of inconsistent results at trial is sufficient reason to grant plaintiffs’
| motion.

As Duro Dyne was served less than one month ago, Duro Dyne has not had opportunity to

conduct discovery or fully evaluate all discovery conducted to date. Therefore, Duro Dyne

12 || requests sufficient time to conduct fact and expert discovery. To wit, Duro Dyne requests that no

13 | trial date be set in this case at this time. In the alternative, Duro Dyne requests a trial date no

14 | sooner than March 2013.

15 Il. CONCLUSION

16 Defendant Duro Dyne does not oppose plaintiffs’ Motion as long as defendant’s due

17 | process rights are not violated. Specifically, defendant requests that:

18 1. Plaintiffs waive their rights to a trial within 5 years from the date of filing of the

19 2007 complaint;

20 2. Defendant is provided sufficient time to conduct discovery prior to any trial date set;
21 3. The current trial date is vacated, and a new trial date is set for no sooner than March
22 2013; and

23 4. All deadlines follow the new trial date.

24 || Dated: March 23, 2012 WALSWORTH FRANKLIN BEVINS & MeCALL, LLP

25
By:
26 LARY H. H

LISA R. ACKLEY

27 DANA L. BURCH
Attorneys for Defendant
28 DURO DYNE CORPORATION
-3-

DEFENDANT DURO DYNE CORPORATION'S CONDITIONAL NON-OPPOSITION TO PLAINTIFFS'
17902171 MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATE
3413-3.2941oe NID

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Walsworth,
Frankdin,
Bevins &

‘McCall, LLP

ATToRNEITAT Le

PROOF OF SERVICE

lam employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is 601 Montgomery Street, Ninth Floor,
San Francisco, California 94111-2612.

On March 23, 2012, I served the within document(s) described as:

DEFENDANT DURO DYNE CORPORATION'S CONDITIONAL NON-OPPOSITION
TO PLAINTIFFS' MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL
DATE

on the interested parties in this action as stated below:

Brayton Purcell LLP ALL COUNSEL VIA LEXIS NEXIS
222 Rush Landing Road

P.O, Box 6169

Novato, CA 94948

(BY ELECTRONIC FILING/SERVICE) I provided the document(s) listed above
electronically to the LexisNexis File & Serve Website to the parties on the Service List
maintained on the LexisNexis File & Serve Website for this case. If the document is
provided to LexisNexis electronically by 5:00 p.m., then the document will be deemed
served on the date that it was provided to LexisNexis. A copy of the "LexisNexis File &
Serve Filing Receipt" page will be maintained with the original document(s) in our office.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed on March 23, 2012, at San Francisco, California.

Juvily P. Catig
(Type or print name)

4.
DEFENDANT DURO DYNE CORPORATION'S CONDITIONAL NON-OPPOSITION TO PLAINTIFFS"
MOTION TO CONSOLIDATE ACTIONS AND CONTINUE THE TRIAL DATE

1790217.1
3413-32941