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BRAYTON® PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD
POBOX S169
NOVATO, CALIFORMA 94948-6169
(415) 898-1555
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ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436
RON G. ARCHER, ESQ., S.B. #189429
BRAYTON“*PURCELL LLP
ELECTRONICALLY
FILED
Attorneys at Law . ee
. Superior Court of California,
222 Rush Landing Road i
P.O. Box 6169 County of San Francisco
Novato, California 94948-6169 MAR 10 2010
(415) 898-1555 Clerk of the Court
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.comBY: CHRISTLE ARRIOLA
Deputy Clerk
Attomeys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JOYCE JUELCH and ) ASBESTOS
NORMA JUELCH, SR., ) No. CGC-09-275212
d
Plaintiffs, ) PLAINTIFFS' RESPONSE TO
) DEFENDANT METALCLAD
vs. ) INSULATION CORPORATION’S
) SEPARATE STATEMENT OF
ASBESTOS DEFENDANTS (B%P) UNDISPUTED FACTS
Date: March 18, 2010
Time: 9:30 a.m.
Dept.: 220, Hon. Harold E. Kahn
Trial Date: April 5, 2010
Action Filed: May 20, 2009
Plaintiffs hereby submit the following responses to defendant METALCLAD
INSULATION CORPORATION’s Separate Statement of Undisputed Facts in Support of Motion!
for Summary Judgment or, in the alternative, Summary Adjudication, with reference to plaintiffs’
supporting evidence disputing such statements.
Issue No.1 Plaintiffs’ First cause of action for Negligence fails as a matter of law because
Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show
that this claim against Metalclad is not barred by the exclusivity provisions of California Labar
Code section 3600, et seq. In the alternative, this claim is barred under the sophisticated user
doctrine, pursuant to the California Supreme Court’s opinion in William Johnson v. American
Standard, Inc. (2008) 43 Cal.4th 56, because Plaintiff Joyce Iueich, a union insulator, was
sufficiently knowledgeable, informed and or trained and knew or should have known of the
potential mger associated with the risk of exposure to asbestos.
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PLAINTIFFS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION’S SEPARATE STATEMENT OF
UNDISPUTED FACTSoC OD OM SM DH RH BR BY ON
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Issue No.2 Plaintiffs’ Second cause of action for Strict Liability fails as a matter of law
because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence,
to show that Metalclad distributed or supplied asbestos-containing products to which Plaintiffs
were exposed. In the alternative, this claim fails because Plaintiffs have insufficient evidence,
and cannot reasonably obtain sufficient evidence, to show that this claim against Metalclad is not
barred by the exclusivity provisions of California Labor Code section 3600, ef seg. Additionally.
and in the alternative, this claim is barred under the sophisticated user doctrine, pursuant to the
California Supreme Court’s opinion in William Johnson y. American Standard, inc. (2008) 43
Cal. 4th 56, because Plaintiff Joyce Juelch, a union insulator, was sufficiently knowledgeable,
informed and or trained and knew or should have known of the potential danger associated with
the risk of exposure to asbestos.
Issue No.3 Plaintiffs’ Third cause of action for False Representation fails as a matter of law
because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence,
to show that this claim against Metalclad is not barred by the exclusivity provisions of California
Labor Code section 3600, ef seq. Plaintiffs’ claim further fails as a matter of law because
Plaintiffs have insufficient evidence, and cannot reasonably obtain evidence, to show that
Metalclad intentionally made a material misrepresentation of fact and that Plaintiffs relied upon
the misrepresentation. Furthermore, Plaintiffs cannot establish the essential elements of this
claim against Metalclad.
Issue No.4 ‘Plaintiffs’ Fourth cause of action for Premises Owner/Contractor Liability fails as
a matter of law because Plaintiffs have insufficient evidence, and cannot reasonably obtain
sufficient evidence, to show that this claim against Metalclad is not barred by the exclusivity
provisions of California Labor Code section 3600, ef seg. In the alternative, this claim is barred
under the sophisticated user doctrine, pursuant to the California Supreme Court’s opinion in
William Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, because Plaintiff Joyce
Juelch, a union insulator, was sufficiently knowledgeable, informed and or trained and knew or
should have known of the potential danger associated with the risk of exposure to asbestos.
IssueNo.§ Plaintiffs’ claim for Loss of Consortium must fail as it is derivative of, and
dependent on, Plaintiffs having a valid personal injury cause of action against Metalclad. As
each and every personal injury cause of action alleged fails due to the exclusivity provisions of
California Labor Code section 3600, et seq., Mr. Juelch’s Loss of Consortium claim fails as
well.
Issue No.6 Plaintiffs’ claim for Punitive Damages fails as a matter of law because Plaintiffs
have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show that this
claim against Metalclad is not barred by the exclusivity provisions of California Labor Code
section 3600, et seg. Plaintiffs’ claim is further without merit because Plaintiffs have provided
insufficient evidence showing that Metalclad acted in a malicious, oppressive, or fraudulent
manner. gimthermore, Plaintiffs cannot establish the essential elements of this claim against
Metalclad.
As To All Causes Of Action: 1“, 2™, 3@ And 4" Causes Of Action And Claims For Loss Of
Consortium And Punitive Damages
[issue NOS. 1-6: NEGLIGENCE/STRICT LIABILITY/FALSE REPRESENTATION/PREMISES
OWNER-CONTRACTOR LIABILITY/LOSS OF CONSORTIUM/PUNITIVE DAMAGES]
UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE/EVIDENCE
1, On May 20, 2009, Plaintiffs, claiming 1. Undisputed for purposes of this motion.
generally that Plaintiff Joyce Juelch had
Kojo Jones ipidiesy METALC pd 2 RGA
PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF
UNDISPUTED FACTS:SD oO OW BW A A BB BRN
been injured by exposure to asbestos from
products manufactured, distributed or sold
by the named Defendants, filed their
Personal Injury Complaint against various
Defendants, including Defendant Metalclad
Insulation Corporation (“Metalclad or
“Defendant”).
Plaintiffs* Complaint for Personal Injury
and Loss of Consortium-Asbestos with
supporting exhibits and Plaintiffs’
Preliminary Fact Sheet (“Complaint”),
attached as Exhibit A to Declaration of
Alecia E. Cotton in Support of Defendant’s
Motion for Summary Judgment (“Cotton
Decl.”). Unless otherwise stated, al} :
Exhibits are attached te Cotton Decl.
2. Plaintiffs contend that Plaintiff Joyce
Juclch was exposed to asbestos-containing
products for which Metalclad and/or
Northern California Insulation, a-Metalclad
related company, are responsible and allege
the following causes of action: Negligence,
Strict Liability, False Representation,
Premises Owner/Contractor Liability, and
Loss of Consortium.
Exhibit A, Plaintiffs’ Complaint, in its
entirety; See also pp. 5-8 of Plaintiffs’
Exhibit A altached to their Complaint, p. 11
of Plaintiffs’ Exhibit B attached to their
Complaint, and pp. 17, 21-22 of Plaintiffs”
Exhibit C attached to their Complaint
(wherein, Plaintiffs refer to Defendant as
“Northern California Insulation aka
Metalclad Insulation Corporation.).
3. Plaintiffs are also claiming Punitive
Damages.
Exhibit A, Plaintiffs’ Complaint, in its
entirety.
4. While Plaintiffs allege that Mrs. Juelch’s
exposure to asbestos stemmed from
exposure while employed by Metalclad
Metalclad and Northern California
Insulation, (hereinafter, for purposes of this
Motion, Metalelad and Northern California
Insulation Company are jointly referred to
as “Metalclad” or eiendant’), Plaintiffs
also allege: “Plaintiff has resided with her
husband Norman Juelch Sr., local 16
imsulator since 1981. Plaintiffrecalls she
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2. Undisputed for purposes of this motion.
3. Punitive damages have been dismissed.
4. Undisputed for purposes of this motion.
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PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF
UNDISPUTED FACTSOe Ww A A & WN
10
was exposed to asbestos-containing
materials by washing her husband's laundry
after work. Plaintiff recalls her husband
| frequently returned home with asbestos-
containing debris and dust on his clothes
from the jobsite. Plaintiff shook out her
husband’s dusty clothes before washing
them in the garage, Plaintiffrecalls
vacuuming her husbands’ car which he
drove to and from work on a daily basis.”
Exhibit A, Plaintiffs’ Complaint, p.6.
5, Pursuant to the Court Order Granting
Trial Preference and Extending the
Discovery Cut-Off entered January 25,
2010, Plaintiffs identified the pllowmg
witnesses against Metalclad: (1) Mrs. Joyce
Juelch; and (2) Mr. Norman Juelch, Sr.
Exhibit B, Court Order Granting Trial
Preference and Extending the Discovery
Cut-Off entered January 25, 2010;
Exhibit C, Plaintiffs’ Product Identification
and Witness Disclosure dated January 11,
2010, pp. 4-5. .
6. Plaintiff Joyce Tuelch was deposed in
this matter over a period of 6 days. At her
deposition, she testified that she married
Mr. Juelch in 1981 and went to apprentice
school to become an insulator in 1982.
Relevant portions of deposition transcript of
Joyce Juelch, Trial Preservation deposition
taken on September 15, 2009, pp. 26:4-8,
26:11-12 and vol. 1, pp. 144:18-20, 144:25-
145:3, 147:22-148:4, attached as Exhibit D
to Cotton Decl.
7. They did not live together before they
were married.
Relevant portions of deposition transcript of
Joyce Tuelch, vol. 5, pp. 717:13-17,
attached as Exhibit D to Cotton Decl.
8. She and her husband Norman Juelch, Sr.
both worked for Metalclad as insulators,
and Mr. Juelch worked alongside Mrs.
Juelch at various jobsites while they were
employed by Metalclad.
Relevant portions of deposition transcript of
Joyce Juelch, Trial Preservation deposition
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5. Undisputed for purposes of this motion.
6. Undisputed for purposes of this motion.
7. Undisputed for purposes of this motion.
8. Undisputed for purposes of this motion.
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PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF
UNDISPUTED FACTS:Oo mW A Mh BRB wR om
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taken on September 15, 2009, pp. 64:7-9,
64:12-19, 90:3-12, 90:16-25, attached as
Exhibit D to Cotton Decl.
9. They continued to work together as
insulators until Mr. Juelch retired in 1989.
Relevant portions of deposition transcript of
Joyce Juelch, Trial Preservation deposition
taken on September 15, 2009, p. 94:1-4,
attached as Exhibit B to Cotton Decl. -
10. Mrs. Juelch testified that she laundered
the couple’s work clothes in the family
ome. .
Relevant portions of deposition transcript of
Joyce Juelch, vol. 5, pp. 723:4-725:11,
725:25-726:7, attached as Exhibit D to
Cotton Decl.
11. She admitted at her deposition that
Plaintiffs have filed a workers’
compensation claim against their former
emp loyers through the Brayton Purcell law
firm.
Relevant portions of deposition transcript of
Joyce Juelch, vol. 5, pp. $75:21-577:2,
| atlached as Exhibit D to Cotton Decl.
12. Plaintiff Norman Juelch, Sr. was
deposed in this matter ever a period of 3
days. At his deposition, he testified that
Mrs. Juelch began working as an insulator
about one year after they were married In
about 1982 or 1983, and he provided a list
at his deposition of all the jobsites at which
they worked together as insulators.
Relevant portions of deposition transcript of
Norman Juelch, Sr., vol. 1, pp. 18:22-19:23,
attached as Exhibit E to Cotton Decl.
13. Mr. Juelch testified that he and Joyce
Juelch worked together as insulators
employed by Metalclad at the following
sites: Shell Oil, Campbell Soup, Pacific
Bell, Lassen College, Corn Products and
Modules Alaska.
Relevant portions of deposition transcript of
Norman Jueich, Sr., vol. 1, pp. 74:22-75:9,
75:15-22, 92:23-93°5, 99:1-16, 102:16-
103:4, 111:15-16, 111:24-112:4, 118:1-2,
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9. Undisputed for purposes of this motion.
10. Undisputed for purposes of this motion.
11. Undisputed for purposes of this motion.
12. Undisputed for purposes of this motion.
13. Undisputed for purposes of this motion.
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PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF
UNDISPUTED FACTSSO me DW DW BF Ww
11
vol. 2, pp. 129:15-130:4, attached as
Exhibit E to Cotton Decl.
14. He further testified that they worked
together at Valmy Power Station, Tosco,
Shell Oil and Rancho Seco but for
employers other than Metalclad.
Relevant portions of deposition transcript of
Norman Juelch, Sr., vol. 1, pp. 20:2-8,
20:25-21:21, 47:17-24, 48:25-49:2, 74:22-
75:9, vol. 2, pp. 139:23-140:7, 141:5-7,
attached as Exhibit EF. to Cotton Decl.
15. He testified that Joyce Juelch laundered
work clothes, but that she never washed the
outside or cleaned the inside of his work
vehicle.
Relevant portions of deposition transcript of
Norman Juelch, Sr., vol. 2, pp. 180:20-
181:25, 184:10-25, attached as Exhibit E to
Cotton Decl.
16. Additionally, Mrs. Juelch testified that
she worked with her husband Norman
Juelch, Sr. as an insulator for Metalclad at
the following sites: Shell Oil, Pacific Bell,
Campbell Soup, Cheese Factory, Modules
Alaska, Lassen College and Corn Products.
Relevant portions of deposition transcript of
Joyce Juelch, vol. 2, pp. 258:16-25, 261:4-
9, vol. 3, pp. 440:22-25, 441:5-9, 443:22-
23, 445:22-25, 45! 10, 450:14-15, 452:7-
9, vol. 5, pp. 578:4-8, 578:12-14, 579:12-
22, 609:24-610:8, 610:12-21, 628:1-11,
628:21-629:3, 644:18-22, attached as
Exhibit D to Cotton Decl.
17. In response to Standard interrogatories
which required Plaintiffs to specifically
describe each asbestos-containing product
alleged to have caused harm to Mrs. Juelch,
including the dates and locations of such
exposure, Plaintiffs list Mrs. Juelch’s
employment history in the 1980s for
approximately four different insulating
companies, one of those companies being
Metalclad.
G.O, Interrogatories, Set One, in their
entirety and Plaintiffs’ Responses thereto,
attached as Exhibit F to Cotton Decl.; G.O.
Interrogatories, Set Two, in their entirety
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14. Undisputed for purposes of this motion.
15. Undisputed for purposes of this motion.
16. Undisputed for purposes of this motion.
17. Undisputed for purposes of this motion.
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PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION’S SEPARATE STATEMENT OF
UNDISPUTED FACTS:CD OB RR HH B & Nh
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and Plaintiffs’ Responses thereto, attached
as Exhibit G to Cotton Decl.
18. Plaintiffs also described Mrs. Juelch’s
alleged secondary exposure to asbestos
fiber via Mr. Juelch and his employment
history in the 1980s for approximately four
different insulating companies, again, one
of those being Metalclad.
G.O. interrogatories, Set One, a1 their
entirety and Plaintiffs’ Responses thereto,
attached as Exhibit F to Cotton Decl.; G.O.
Interrogatories, Set Two, in their entirety
and Plaintiffs’ Responses thereto, attached
as Exhibit G to Cotton Decl. cos
19. Additionally, in response to
Metalciad’s special discovery intended to
elicit the identification of ali facts,
witnesses and documents in support of their
claims against Metalelad, Plaintiffs
essentially restated the allegations in their
Complaint and in their responses to
Standard Interrogatories, i.¢., that
Mrs. Juelch was secondarily exposed to
asbestos fibers via her contact with
Mr. Juelch when she laundered work
clothing that he wore while working at
jobsites while both Plaintiffs were working
at those sites and were employed by
Metaiclad.
Metalclad’s Pre-Trial Interrogatories to
Plaintiffs Nos. 1-24 and 25-36 and
Plaintiffs’ responses thereto Nos. 1-24 and
25-36, attached as Exhibit H to Cotton
Decl.; Metalclad’s Requests for Production
of Documents in their entirety and
Plaintiffs’ responses thereto in their
entiveby, attached as Exhibit I to Cotton
ecl.
20. Plaintiffs denied all forty-six of
Metalclad’s Request for Admissions.
Metalclad’s Request for Admissions to
| Plaintiffs Nos. 1-46 and Plaintiffs’
responses thereto Nos. 1-46, attached as
Exhibit J to Cotton Decl.
21. Here, it is clear that exclusivity
provisions of the Labor Code apply to any
injury that Mrs. Juelch may have suffered as
a result of her work as an insulator for -
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18. Undisputed for purposes of this motion.
19. Undisputed for purposes of this motion,
except to the extent that the phrasing might
suggest a claim that Ms. Juelch laundered
her husbands clothes while actually on the
job, during working hours, for Metalclad.
All of the laundering of Mr. Juelch’s
clothes occurred in the family home after
work hours ,{ Depostion testimony of Joyce
Julech of Nov. 19, 2009, 719:2-726:13,;
Exhibit 1 to the Declaration of xxx..)
20. Undisputed for purposes of this motion.
21, Disputed. Mis-states evidence and
misleading. See defendant’s UMF No. 19,
The evidence establishes Mrs. TUELCH
was not at work while doing Mr.
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PLAINTIFFS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF
UNDISPUTED FACTSOw OP YW Dw &B Bw Re
MN RY MR RN BB om mee ee ee ee
CD DBD HR BR BR SO ON ORNS
Metalclad, During the time periods when
Plaintiffs claim Mrs. Juelch was exposed to
asbestos fibers originating from Metalclad
worksites, she was an employee of
Metalclad as was her husband and co-
worker Mr, Juelch,
Relevant portions of deposition transcript of
Joyce Juelch, Trial Preservation deposition
taken on September 15, 2009, pp. 64:7-9,
64:12-19, 90:3-12, 90:16-25, attached as
Exhibit D to Cotton Decl.; Relevant
portions of deposition transcript of Norman
Juelch, Sr., vol. 1, pp. 18:22-19:23, attached
as Exhibit E to Cotton Decl.; Relevant
portions of deposition transcript of Norman
Juelch, Sr., vol. 1, pp. 74:22-75:9, 75:15-
22, 92:23-93:5, 99:1-16, 102:16-103:4,
114:15-16, 111:24-112:4, 118:1-2, vol. 2,
PP. 129:15-136:4, attached as Exhibit E to
‘otton Decl.; Relevant portions of
deposition transcript of Joyce Juelch, vol. 2,
Bp. 258:16-25, 261:4-9, vol, 3, pp. 446:22-
5,441:5-9, 443:22-23, 445:22-25, 450:6-
10, 450:14-15, 452:7-9" vol. 5, pp. $78:4-8,
578:12-14, $79:12-22, 609:24-616:8,
610:12-21, 628:1-11, 628:21-629:3,
644:18-22, attached as Exhibit D to Cotton
Decl; G.O. Interrogatories, Set One, in
their entirety and Plaintiffs’ Responses
thereto, attached as Exhibit F to Cotton
Deel.; G.O. Interrogatories, Set Two, in
their entirety and Plaintiffs’ Responses
thereto, attached as Exhibit G to Cotton
Decl.; Metalclad’s Pre-Trial Interrogatories
to Plaintiffs Nos. 1-24 and 25-36 and
Plaintiffs’ responses thereto Nos. 1-24 and
25-36, attached as Exhibit H to Cotton
Decl.; Metalclad’s Requests for Production
of Documents i their entirety and
Plaintiffs” responses thereto in their
entirety, attached as Exhibit L to Cotton
Decl.
22. Plaintiff Joyce Juelch went through
extensive training to become an insulator
during the 1980s, beginning in 1982.
Relevant portions of deposition transcript of
Joyce Juelch, vol. 1, pp. 144:18-145:3,
145:4-146:6, attached as Exhibit D to
Cotton Decl.
KMnjuresht 08888 gig METALC wad,
JUELCH’s laundry and she was exposed to
asbestos as a result of such ordinary
housework. The statement is also argument
and not factual.
22. Disputed. Objection. Misleading and
mis-states evidence. The testimony does
not support the statement. There is no
mention in the testimony regarding Mrs.
JUELCH’s education or knowledge about
take-home exposure to asbestos. The use of
the term “extensive” is not Mrs. FUELCH’s
own term and is vague and ambiguous.
18 Q. After you left San Joaquin, you
went to work as
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PLAINTIFPS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORA TION’S SEPARATE STATEMENT OF
UNDISPUTED FACTS19 an apprentice; is that correct?
20 A. That's correct.
_21 Q. Did you join a union at that
time?
22. A. Yes, did.
23 Q. Which union did you join?
24 A. Local 16 out of San Francisco.
25 Q. You told us that you talked with
Mr. Juelch
00145
1 about becoming an apprentice and
working towards
2 becoming a journeyman, correct?
3. A. Correct.
Defendant’s Exhibit D, at 144:18 - 145:3
4 Q. When you talked to Mr. Juelch,
did he tell you
5 anything about the work of an
insulator?
6 A. We talked about it. I did go out
to his job a
7 couple of times to see what he did.
His employer
8 allowed me to come to the site.
S . Now, did he tell you that
working as an
10 insulator, you might ceme into contact
witl
11 asbestos-containing materials?
12. A. He-- no, .
13. Q. Soin your discussions with
him, he never
14 mentioned that as an insulator you
might come into
15 contact with in-place
asbestos-containing thermal
16 insulation?
17 _ A. That was later on that we talked
about it.
18 Q. Pm just talking about at any
time.
19 A. Yeah. We talked about it fater
on.
20 Q. When you say “later on," what
do you mean?
21 =A. After I started school, F had
talked to him
22 about it, because the school -- the
apprentice school,
‘3. when they gave you papers and -- you
know, it had Y Gave you pap y
24 "asbestos" on it.
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PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF
UNDISPUTED FACTSOo VY A mM RF WB
10
23. This training included education on the
dangers of asbestos and asbestos-containing
thermal insulation products.
Relevant portions of deposition transcript of
Joyce Juelch, vol. 1, pp. 145:4-146:6,
146;13-20, attached as Exhibit D to Cotton
Decl.
KMojuredh 108638 pldirss METALC wd
25 Q. As one of the topics in the
paper?
00146
1 A. It was one of the agents that
more or less
2 would say that we might run into it out
on the job. It
3 was more at the school, the beginning
of school,
4 Q. After you heard it at school, then
you talked
5 to Mr. Juelch about it, correct?
6 A. Yes.
Defendant’s Exhibit D, at 145:4 - 146:6.
23. Disputed, Objection. Misleading and
mis-states evidence. The testimony does
not support the statement. There is no
mention in the testimony regarding Mrs.
JUELCH’s education or knowledge about
take-home exposure to asbestos.
4 . When you talked to Mr. Juelch,
did he tell you
5 anything about the work of an
insulator?
6 A. We talked about it. I did go out
to his job a
7 couple of times to see what he did.
His employer
8 allowed me to come to the site.
9 Q. Now, did he tell you that
working as an
10 insulator, you might come into contact
with
1] asbestos-containing materials?
12. A. He-- no.
13. Q. So in your discussions with
him, he never
14 mentioned that as an insulator you
might come into
15 contact with in-place
asbestos-containing thermal
16 insulation?
17 __ A, That was later on that we talked
about it.
18 = Q. I'mjust talking about at any
time.
19 A. Yeah. We talked about it later
on.
20 Q. When you say “later on," what
do you mean?
21. =A. After i started school, I had
talked to him
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PLAINTIFFS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF
UNDISPUTED FACTS,OC Oo WD eh RB Ww
10
24. Plaintiff testified she became aware of
the hazards associated with asbestos
exposure in the 1980s, the same time she
became an insulator and began her
insulation work for Metaiclad at the jobsites
in question.
Relevant portions of deposition transcript of
Joyce Jueich, vol. 1, pp. 147:3-21, 148:
23, 1$1:22-152:4, attached as Exhibit D to
Cotton Decl.
K.tlsjuredst0868@\pldies METALC.wpd
22. about it, because the school -- the
apprentice school,
23 when they gave you papers and -- you
imow, it had
24 “asbestos” on it.
25 Q. As one of the topics in the
paper?
00146
1 A. It was one of the agents that
more or less
2 would say that we might run into it out
‘on the job. It
3 was more at the school, the beginning
of school.
4 Q. After you heard it at school, then
you talked
5 to Mr. Juelch about it, correct?
6 A. Yes. |
Defendant’s Exhibit D, at 145:4 - [46:6
13. Q. Were you told at the apprentice
school that
14 exposure to asbestos could cause lung
disease? .
15 A. At the school, they talked about
what asbestos
16 was used for.
17 Q. Did they tell you it had been
used for
18 insulation?
19 A. Yes. It was used for insulation
and what type
20 of insulation it was used for.
Defendant’s Exhibit D, at 146:13-20.
24. Disputed. Objection. Misleading and
mis-states evidence. The testimony does
not support the statement. The testimony
does not reflect that she becasme aware of
tasbestos hazards when she “began her
insulation work for Metaiclad” but rather
that her awareness developed over the
course of her career and that her formal
training about asbestos hazards did not
commence until years after she started
insulation work. There is no mention in the
testimony regarding Mrs. JUELCH’s
education or knowledge about take-home
exposure to asbestos.
3. Q. Now, did you learn in school
that exposure to
4 asbestos could cause lung disease?
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BRAYTON® PURCELL LLP ATTORNEYS AT LAW 222 RUSH LANDING ROAD POBOX S169 NOVATO, CALIFORMA 94948-6169 (415) 898-1555 oe SY OD AW BR we NY wN YN NN BRN ew ee ee ee eon A A FON = SS 6 we IY DH BY N & @ ALAN R. BRAYTON, ESQ., S.B. #73685 DAVID R. DONADIO, ESQ., S.B. #154436 RON G. ARCHER, ESQ., S.B. #189429 BRAYTON“*PURCELL LLP ELECTRONICALLY FILED Attorneys at Law . ee . Superior Court of California, 222 Rush Landing Road i P.O. Box 6169 County of San Francisco Novato, California 94948-6169 MAR 10 2010 (415) 898-1555 Clerk of the Court Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.comBY: CHRISTLE ARRIOLA Deputy Clerk Attomeys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOYCE JUELCH and ) ASBESTOS NORMA JUELCH, SR., ) No. CGC-09-275212 d Plaintiffs, ) PLAINTIFFS' RESPONSE TO ) DEFENDANT METALCLAD vs. ) INSULATION CORPORATION’S ) SEPARATE STATEMENT OF ASBESTOS DEFENDANTS (B%P) UNDISPUTED FACTS Date: March 18, 2010 Time: 9:30 a.m. Dept.: 220, Hon. Harold E. Kahn Trial Date: April 5, 2010 Action Filed: May 20, 2009 Plaintiffs hereby submit the following responses to defendant METALCLAD INSULATION CORPORATION’s Separate Statement of Undisputed Facts in Support of Motion! for Summary Judgment or, in the alternative, Summary Adjudication, with reference to plaintiffs’ supporting evidence disputing such statements. Issue No.1 Plaintiffs’ First cause of action for Negligence fails as a matter of law because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show that this claim against Metalclad is not barred by the exclusivity provisions of California Labar Code section 3600, et seq. In the alternative, this claim is barred under the sophisticated user doctrine, pursuant to the California Supreme Court’s opinion in William Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, because Plaintiff Joyce Iueich, a union insulator, was sufficiently knowledgeable, informed and or trained and knew or should have known of the potential mger associated with the risk of exposure to asbestos. MW ‘KSinjurash 108688 olds METALC wp, 1 RGA PLAINTIFFS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION’S SEPARATE STATEMENT OF UNDISPUTED FACTSoC OD OM SM DH RH BR BY ON RM RR Rete mete CW RA Yb SB — So wm a RH BR YW NM Issue No.2 Plaintiffs’ Second cause of action for Strict Liability fails as a matter of law because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show that Metalclad distributed or supplied asbestos-containing products to which Plaintiffs were exposed. In the alternative, this claim fails because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show that this claim against Metalclad is not barred by the exclusivity provisions of California Labor Code section 3600, ef seg. Additionally. and in the alternative, this claim is barred under the sophisticated user doctrine, pursuant to the California Supreme Court’s opinion in William Johnson y. American Standard, inc. (2008) 43 Cal. 4th 56, because Plaintiff Joyce Juelch, a union insulator, was sufficiently knowledgeable, informed and or trained and knew or should have known of the potential danger associated with the risk of exposure to asbestos. Issue No.3 Plaintiffs’ Third cause of action for False Representation fails as a matter of law because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show that this claim against Metalclad is not barred by the exclusivity provisions of California Labor Code section 3600, ef seq. Plaintiffs’ claim further fails as a matter of law because Plaintiffs have insufficient evidence, and cannot reasonably obtain evidence, to show that Metalclad intentionally made a material misrepresentation of fact and that Plaintiffs relied upon the misrepresentation. Furthermore, Plaintiffs cannot establish the essential elements of this claim against Metalclad. Issue No.4 ‘Plaintiffs’ Fourth cause of action for Premises Owner/Contractor Liability fails as a matter of law because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show that this claim against Metalclad is not barred by the exclusivity provisions of California Labor Code section 3600, ef seg. In the alternative, this claim is barred under the sophisticated user doctrine, pursuant to the California Supreme Court’s opinion in William Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, because Plaintiff Joyce Juelch, a union insulator, was sufficiently knowledgeable, informed and or trained and knew or should have known of the potential danger associated with the risk of exposure to asbestos. IssueNo.§ Plaintiffs’ claim for Loss of Consortium must fail as it is derivative of, and dependent on, Plaintiffs having a valid personal injury cause of action against Metalclad. As each and every personal injury cause of action alleged fails due to the exclusivity provisions of California Labor Code section 3600, et seq., Mr. Juelch’s Loss of Consortium claim fails as well. Issue No.6 Plaintiffs’ claim for Punitive Damages fails as a matter of law because Plaintiffs have insufficient evidence, and cannot reasonably obtain sufficient evidence, to show that this claim against Metalclad is not barred by the exclusivity provisions of California Labor Code section 3600, et seg. Plaintiffs’ claim is further without merit because Plaintiffs have provided insufficient evidence showing that Metalclad acted in a malicious, oppressive, or fraudulent manner. gimthermore, Plaintiffs cannot establish the essential elements of this claim against Metalclad. As To All Causes Of Action: 1“, 2™, 3@ And 4" Causes Of Action And Claims For Loss Of Consortium And Punitive Damages [issue NOS. 1-6: NEGLIGENCE/STRICT LIABILITY/FALSE REPRESENTATION/PREMISES OWNER-CONTRACTOR LIABILITY/LOSS OF CONSORTIUM/PUNITIVE DAMAGES] UNDISPUTED MATERIAL FACTS AND ALLEGED SUPPORTING EVIDENCE PLAINTIFFS’ RESPONSE/EVIDENCE 1, On May 20, 2009, Plaintiffs, claiming 1. Undisputed for purposes of this motion. generally that Plaintiff Joyce Juelch had Kojo Jones ipidiesy METALC pd 2 RGA PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTS:SD oO OW BW A A BB BRN been injured by exposure to asbestos from products manufactured, distributed or sold by the named Defendants, filed their Personal Injury Complaint against various Defendants, including Defendant Metalclad Insulation Corporation (“Metalclad or “Defendant”). Plaintiffs* Complaint for Personal Injury and Loss of Consortium-Asbestos with supporting exhibits and Plaintiffs’ Preliminary Fact Sheet (“Complaint”), attached as Exhibit A to Declaration of Alecia E. Cotton in Support of Defendant’s Motion for Summary Judgment (“Cotton Decl.”). Unless otherwise stated, al} : Exhibits are attached te Cotton Decl. 2. Plaintiffs contend that Plaintiff Joyce Juclch was exposed to asbestos-containing products for which Metalclad and/or Northern California Insulation, a-Metalclad related company, are responsible and allege the following causes of action: Negligence, Strict Liability, False Representation, Premises Owner/Contractor Liability, and Loss of Consortium. Exhibit A, Plaintiffs’ Complaint, in its entirety; See also pp. 5-8 of Plaintiffs’ Exhibit A altached to their Complaint, p. 11 of Plaintiffs’ Exhibit B attached to their Complaint, and pp. 17, 21-22 of Plaintiffs” Exhibit C attached to their Complaint (wherein, Plaintiffs refer to Defendant as “Northern California Insulation aka Metalclad Insulation Corporation.). 3. Plaintiffs are also claiming Punitive Damages. Exhibit A, Plaintiffs’ Complaint, in its entirety. 4. While Plaintiffs allege that Mrs. Juelch’s exposure to asbestos stemmed from exposure while employed by Metalclad Metalclad and Northern California Insulation, (hereinafter, for purposes of this Motion, Metalelad and Northern California Insulation Company are jointly referred to as “Metalclad” or eiendant’), Plaintiffs also allege: “Plaintiff has resided with her husband Norman Juelch Sr., local 16 imsulator since 1981. Plaintiffrecalls she KAlnjured\1O8688%p dings: METALC.wpd 2. Undisputed for purposes of this motion. 3. Punitive damages have been dismissed. 4. Undisputed for purposes of this motion. RGA PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTSOe Ww A A & WN 10 was exposed to asbestos-containing materials by washing her husband's laundry after work. Plaintiff recalls her husband | frequently returned home with asbestos- containing debris and dust on his clothes from the jobsite. Plaintiff shook out her husband’s dusty clothes before washing them in the garage, Plaintiffrecalls vacuuming her husbands’ car which he drove to and from work on a daily basis.” Exhibit A, Plaintiffs’ Complaint, p.6. 5, Pursuant to the Court Order Granting Trial Preference and Extending the Discovery Cut-Off entered January 25, 2010, Plaintiffs identified the pllowmg witnesses against Metalclad: (1) Mrs. Joyce Juelch; and (2) Mr. Norman Juelch, Sr. Exhibit B, Court Order Granting Trial Preference and Extending the Discovery Cut-Off entered January 25, 2010; Exhibit C, Plaintiffs’ Product Identification and Witness Disclosure dated January 11, 2010, pp. 4-5. . 6. Plaintiff Joyce Tuelch was deposed in this matter over a period of 6 days. At her deposition, she testified that she married Mr. Juelch in 1981 and went to apprentice school to become an insulator in 1982. Relevant portions of deposition transcript of Joyce Juelch, Trial Preservation deposition taken on September 15, 2009, pp. 26:4-8, 26:11-12 and vol. 1, pp. 144:18-20, 144:25- 145:3, 147:22-148:4, attached as Exhibit D to Cotton Decl. 7. They did not live together before they were married. Relevant portions of deposition transcript of Joyce Tuelch, vol. 5, pp. 717:13-17, attached as Exhibit D to Cotton Decl. 8. She and her husband Norman Juelch, Sr. both worked for Metalclad as insulators, and Mr. Juelch worked alongside Mrs. Juelch at various jobsites while they were employed by Metalclad. Relevant portions of deposition transcript of Joyce Juelch, Trial Preservation deposition KAlnjuredLosena pi ciess- MET ALC wpe 5. Undisputed for purposes of this motion. 6. Undisputed for purposes of this motion. 7. Undisputed for purposes of this motion. 8. Undisputed for purposes of this motion. RGA PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTS:Oo mW A Mh BRB wR om RPM YM NR RY NR NR Rm mm oe IA AF RYN = SB we IY Ah BW He Oo taken on September 15, 2009, pp. 64:7-9, 64:12-19, 90:3-12, 90:16-25, attached as Exhibit D to Cotton Decl. 9. They continued to work together as insulators until Mr. Juelch retired in 1989. Relevant portions of deposition transcript of Joyce Juelch, Trial Preservation deposition taken on September 15, 2009, p. 94:1-4, attached as Exhibit B to Cotton Decl. - 10. Mrs. Juelch testified that she laundered the couple’s work clothes in the family ome. . Relevant portions of deposition transcript of Joyce Juelch, vol. 5, pp. 723:4-725:11, 725:25-726:7, attached as Exhibit D to Cotton Decl. 11. She admitted at her deposition that Plaintiffs have filed a workers’ compensation claim against their former emp loyers through the Brayton Purcell law firm. Relevant portions of deposition transcript of Joyce Juelch, vol. 5, pp. $75:21-577:2, | atlached as Exhibit D to Cotton Decl. 12. Plaintiff Norman Juelch, Sr. was deposed in this matter ever a period of 3 days. At his deposition, he testified that Mrs. Juelch began working as an insulator about one year after they were married In about 1982 or 1983, and he provided a list at his deposition of all the jobsites at which they worked together as insulators. Relevant portions of deposition transcript of Norman Juelch, Sr., vol. 1, pp. 18:22-19:23, attached as Exhibit E to Cotton Decl. 13. Mr. Juelch testified that he and Joyce Juelch worked together as insulators employed by Metalclad at the following sites: Shell Oil, Campbell Soup, Pacific Bell, Lassen College, Corn Products and Modules Alaska. Relevant portions of deposition transcript of Norman Jueich, Sr., vol. 1, pp. 74:22-75:9, 75:15-22, 92:23-93°5, 99:1-16, 102:16- 103:4, 111:15-16, 111:24-112:4, 118:1-2, Ktinjueed. 0369 plus. METALC wy 9. Undisputed for purposes of this motion. 10. Undisputed for purposes of this motion. 11. Undisputed for purposes of this motion. 12. Undisputed for purposes of this motion. 13. Undisputed for purposes of this motion. ROA PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTSSO me DW DW BF Ww 11 vol. 2, pp. 129:15-130:4, attached as Exhibit E to Cotton Decl. 14. He further testified that they worked together at Valmy Power Station, Tosco, Shell Oil and Rancho Seco but for employers other than Metalclad. Relevant portions of deposition transcript of Norman Juelch, Sr., vol. 1, pp. 20:2-8, 20:25-21:21, 47:17-24, 48:25-49:2, 74:22- 75:9, vol. 2, pp. 139:23-140:7, 141:5-7, attached as Exhibit EF. to Cotton Decl. 15. He testified that Joyce Juelch laundered work clothes, but that she never washed the outside or cleaned the inside of his work vehicle. Relevant portions of deposition transcript of Norman Juelch, Sr., vol. 2, pp. 180:20- 181:25, 184:10-25, attached as Exhibit E to Cotton Decl. 16. Additionally, Mrs. Juelch testified that she worked with her husband Norman Juelch, Sr. as an insulator for Metalclad at the following sites: Shell Oil, Pacific Bell, Campbell Soup, Cheese Factory, Modules Alaska, Lassen College and Corn Products. Relevant portions of deposition transcript of Joyce Juelch, vol. 2, pp. 258:16-25, 261:4- 9, vol. 3, pp. 440:22-25, 441:5-9, 443:22- 23, 445:22-25, 45! 10, 450:14-15, 452:7- 9, vol. 5, pp. 578:4-8, 578:12-14, 579:12- 22, 609:24-610:8, 610:12-21, 628:1-11, 628:21-629:3, 644:18-22, attached as Exhibit D to Cotton Decl. 17. In response to Standard interrogatories which required Plaintiffs to specifically describe each asbestos-containing product alleged to have caused harm to Mrs. Juelch, including the dates and locations of such exposure, Plaintiffs list Mrs. Juelch’s employment history in the 1980s for approximately four different insulating companies, one of those companies being Metalclad. G.O, Interrogatories, Set One, in their entirety and Plaintiffs’ Responses thereto, attached as Exhibit F to Cotton Decl.; G.O. Interrogatories, Set Two, in their entirety EAlnjuredit 08S 88ipidies METALC mpd 14. Undisputed for purposes of this motion. 15. Undisputed for purposes of this motion. 16. Undisputed for purposes of this motion. 17. Undisputed for purposes of this motion. RGA PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION’S SEPARATE STATEMENT OF UNDISPUTED FACTS:CD OB RR HH B & Nh ee Noe and Plaintiffs’ Responses thereto, attached as Exhibit G to Cotton Decl. 18. Plaintiffs also described Mrs. Juelch’s alleged secondary exposure to asbestos fiber via Mr. Juelch and his employment history in the 1980s for approximately four different insulating companies, again, one of those being Metalclad. G.O. interrogatories, Set One, a1 their entirety and Plaintiffs’ Responses thereto, attached as Exhibit F to Cotton Decl.; G.O. Interrogatories, Set Two, in their entirety and Plaintiffs’ Responses thereto, attached as Exhibit G to Cotton Decl. cos 19. Additionally, in response to Metalciad’s special discovery intended to elicit the identification of ali facts, witnesses and documents in support of their claims against Metalelad, Plaintiffs essentially restated the allegations in their Complaint and in their responses to Standard Interrogatories, i.¢., that Mrs. Juelch was secondarily exposed to asbestos fibers via her contact with Mr. Juelch when she laundered work clothing that he wore while working at jobsites while both Plaintiffs were working at those sites and were employed by Metaiclad. Metalclad’s Pre-Trial Interrogatories to Plaintiffs Nos. 1-24 and 25-36 and Plaintiffs’ responses thereto Nos. 1-24 and 25-36, attached as Exhibit H to Cotton Decl.; Metalclad’s Requests for Production of Documents in their entirety and Plaintiffs’ responses thereto in their entiveby, attached as Exhibit I to Cotton ecl. 20. Plaintiffs denied all forty-six of Metalclad’s Request for Admissions. Metalclad’s Request for Admissions to | Plaintiffs Nos. 1-46 and Plaintiffs’ responses thereto Nos. 1-46, attached as Exhibit J to Cotton Decl. 21. Here, it is clear that exclusivity provisions of the Labor Code apply to any injury that Mrs. Juelch may have suffered as a result of her work as an insulator for - KAlpjuredh 10tsssiplives METALC upd 7 18. Undisputed for purposes of this motion. 19. Undisputed for purposes of this motion, except to the extent that the phrasing might suggest a claim that Ms. Juelch laundered her husbands clothes while actually on the job, during working hours, for Metalclad. All of the laundering of Mr. Juelch’s clothes occurred in the family home after work hours ,{ Depostion testimony of Joyce Julech of Nov. 19, 2009, 719:2-726:13,; Exhibit 1 to the Declaration of xxx..) 20. Undisputed for purposes of this motion. 21, Disputed. Mis-states evidence and misleading. See defendant’s UMF No. 19, The evidence establishes Mrs. TUELCH was not at work while doing Mr. RGA PLAINTIFFS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTSOw OP YW Dw &B Bw Re MN RY MR RN BB om mee ee ee ee CD DBD HR BR BR SO ON ORNS Metalclad, During the time periods when Plaintiffs claim Mrs. Juelch was exposed to asbestos fibers originating from Metalclad worksites, she was an employee of Metalclad as was her husband and co- worker Mr, Juelch, Relevant portions of deposition transcript of Joyce Juelch, Trial Preservation deposition taken on September 15, 2009, pp. 64:7-9, 64:12-19, 90:3-12, 90:16-25, attached as Exhibit D to Cotton Decl.; Relevant portions of deposition transcript of Norman Juelch, Sr., vol. 1, pp. 18:22-19:23, attached as Exhibit E to Cotton Decl.; Relevant portions of deposition transcript of Norman Juelch, Sr., vol. 1, pp. 74:22-75:9, 75:15- 22, 92:23-93:5, 99:1-16, 102:16-103:4, 114:15-16, 111:24-112:4, 118:1-2, vol. 2, PP. 129:15-136:4, attached as Exhibit E to ‘otton Decl.; Relevant portions of deposition transcript of Joyce Juelch, vol. 2, Bp. 258:16-25, 261:4-9, vol, 3, pp. 446:22- 5,441:5-9, 443:22-23, 445:22-25, 450:6- 10, 450:14-15, 452:7-9" vol. 5, pp. $78:4-8, 578:12-14, $79:12-22, 609:24-616:8, 610:12-21, 628:1-11, 628:21-629:3, 644:18-22, attached as Exhibit D to Cotton Decl; G.O. Interrogatories, Set One, in their entirety and Plaintiffs’ Responses thereto, attached as Exhibit F to Cotton Deel.; G.O. Interrogatories, Set Two, in their entirety and Plaintiffs’ Responses thereto, attached as Exhibit G to Cotton Decl.; Metalclad’s Pre-Trial Interrogatories to Plaintiffs Nos. 1-24 and 25-36 and Plaintiffs’ responses thereto Nos. 1-24 and 25-36, attached as Exhibit H to Cotton Decl.; Metalclad’s Requests for Production of Documents i their entirety and Plaintiffs” responses thereto in their entirety, attached as Exhibit L to Cotton Decl. 22. Plaintiff Joyce Juelch went through extensive training to become an insulator during the 1980s, beginning in 1982. Relevant portions of deposition transcript of Joyce Juelch, vol. 1, pp. 144:18-145:3, 145:4-146:6, attached as Exhibit D to Cotton Decl. KMnjuresht 08888 gig METALC wad, JUELCH’s laundry and she was exposed to asbestos as a result of such ordinary housework. The statement is also argument and not factual. 22. Disputed. Objection. Misleading and mis-states evidence. The testimony does not support the statement. There is no mention in the testimony regarding Mrs. JUELCH’s education or knowledge about take-home exposure to asbestos. The use of the term “extensive” is not Mrs. FUELCH’s own term and is vague and ambiguous. 18 Q. After you left San Joaquin, you went to work as RGA PLAINTIFPS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORA TION’S SEPARATE STATEMENT OF UNDISPUTED FACTS19 an apprentice; is that correct? 20 A. That's correct. _21 Q. Did you join a union at that time? 22. A. Yes, did. 23 Q. Which union did you join? 24 A. Local 16 out of San Francisco. 25 Q. You told us that you talked with Mr. Juelch 00145 1 about becoming an apprentice and working towards 2 becoming a journeyman, correct? 3. A. Correct. Defendant’s Exhibit D, at 144:18 - 145:3 4 Q. When you talked to Mr. Juelch, did he tell you 5 anything about the work of an insulator? 6 A. We talked about it. I did go out to his job a 7 couple of times to see what he did. His employer 8 allowed me to come to the site. S . Now, did he tell you that working as an 10 insulator, you might ceme into contact witl 11 asbestos-containing materials? 12. A. He-- no, . 13. Q. Soin your discussions with him, he never 14 mentioned that as an insulator you might come into 15 contact with in-place asbestos-containing thermal 16 insulation? 17 _ A. That was later on that we talked about it. 18 Q. Pm just talking about at any time. 19 A. Yeah. We talked about it fater on. 20 Q. When you say “later on," what do you mean? 21 =A. After I started school, F had talked to him 22 about it, because the school -- the apprentice school, ‘3. when they gave you papers and -- you know, it had Y Gave you pap y 24 "asbestos" on it. X StejweditORgBRipldes METALC upd 9 RGA PLAINTIFFS’ RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTSOo VY A mM RF WB 10 23. This training included education on the dangers of asbestos and asbestos-containing thermal insulation products. Relevant portions of deposition transcript of Joyce Juelch, vol. 1, pp. 145:4-146:6, 146;13-20, attached as Exhibit D to Cotton Decl. KMojuredh 108638 pldirss METALC wd 25 Q. As one of the topics in the paper? 00146 1 A. It was one of the agents that more or less 2 would say that we might run into it out on the job. It 3 was more at the school, the beginning of school, 4 Q. After you heard it at school, then you talked 5 to Mr. Juelch about it, correct? 6 A. Yes. Defendant’s Exhibit D, at 145:4 - 146:6. 23. Disputed, Objection. Misleading and mis-states evidence. The testimony does not support the statement. There is no mention in the testimony regarding Mrs. JUELCH’s education or knowledge about take-home exposure to asbestos. 4 . When you talked to Mr. Juelch, did he tell you 5 anything about the work of an insulator? 6 A. We talked about it. I did go out to his job a 7 couple of times to see what he did. His employer 8 allowed me to come to the site. 9 Q. Now, did he tell you that working as an 10 insulator, you might come into contact with 1] asbestos-containing materials? 12. A. He-- no. 13. Q. So in your discussions with him, he never 14 mentioned that as an insulator you might come into 15 contact with in-place asbestos-containing thermal 16 insulation? 17 __ A, That was later on that we talked about it. 18 = Q. I'mjust talking about at any time. 19 A. Yeah. We talked about it later on. 20 Q. When you say “later on," what do you mean? 21. =A. After i started school, I had talked to him RGA PLAINTIFFS' RESPONSE TO DEFENDANT METALCLAD INSULATION CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTS,OC Oo WD eh RB Ww 10 24. Plaintiff testified she became aware of the hazards associated with asbestos exposure in the 1980s, the same time she became an insulator and began her insulation work for Metaiclad at the jobsites in question. Relevant portions of deposition transcript of Joyce Jueich, vol. 1, pp. 147:3-21, 148: 23, 1$1:22-152:4, attached as Exhibit D to Cotton Decl. K.tlsjuredst0868@\pldies METALC.wpd 22. about it, because the school -- the apprentice school, 23 when they gave you papers and -- you imow, it had 24 “asbestos” on it. 25 Q. As one of the topics in the paper? 00146 1 A. It was one of the agents that more or less 2 would say that we might run into it out ‘on the job. It 3 was more at the school, the beginning of school. 4 Q. After you heard it at school, then you talked 5 to Mr. Juelch about it, correct? 6 A. Yes. | Defendant’s Exhibit D, at 145:4 - [46:6 13. Q. Were you told at the apprentice school that 14 exposure to asbestos could cause lung disease? . 15 A. At the school, they talked about what asbestos 16 was used for. 17 Q. Did they tell you it had been used for 18 insulation? 19 A. Yes. It was used for insulation and what type 20 of insulation it was used for. Defendant’s Exhibit D, at 146:13-20. 24. Disputed. Objection. Misleading and mis-states evidence. The testimony does not support the statement. The testimony does not reflect that she becasme aware of tasbestos hazards when she “began her insulation work for Metaiclad” but rather that her awareness developed over the course of her career and that her formal training about asbestos hazards did not commence until years after she started insulation work. There is no mention in the testimony regarding Mrs. JUELCH’s education or knowledge about take-home exposure to asbestos. 3. Q. Now, did you learn in school that exposure to 4 asbestos could cause lung disease? 5