Motion-Secondary: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                1 || Edward R. Hugo [Bar No. 124839]
James C. Parker [Bar No. 106149]
2 || Shelley K. Tinkoff [Bar No. 187498]
Thomas J. Moses [Bar No. 116002] ELECTRONICALLY
3 || BRYDON HUGO & PARKER FILED
135 Main Street, Suite 2000 Superior Court of California,
4 1| San Francisco, CA 94105 County of San Francisco
Telephone (415) 808-0300
5 || Facsimile (415) 808-0333 NOV 23 2011
Email: tinkoff@bhplaw.com BY: JUDITH NUNEZ
6 Deputy Clerk {
Attorney for Defendants |
7 || FOSTER WHEELER LLC, |
UNION CARBIDE CORPORATION, and |
8 || MERLEX STUCCO, INC. !
9
SUPERIOR COURT - STATE OF CALIFORNIA
0
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION,
1
2
IN RE: BRAYTON GROUP 580 (ASBESTOS)
3 |) [Lead Case: JAMES WILLIAMS] Case No: CGC-07-274432
4 Plaintiffs, OPPOSITION TO PLAINTIFFS’
MOTION TO CONSOLIDATE LIVING
5 vs. ASBESTOSIS CASES FOR TRIAL OF
DEFENDANTS FOSTER WHEELER LLC,
6 || ASBESTOS DEFENDANTS (B“P), UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.
7 Defendants. BRAYTON GROUPS 580, 581 AND 582
8 Date: November 30, 2011
Time: 10:00 a.m.
9 Dept.: 504
Judge: A. James Robertson
20
Trial Date: November 7, 2011
21
IN RE: BRAYTON GROUP 581 (ASBESTOS)
22 || [Lead Case: OTTO S. GISLER] Case No. CGC-275012
23 Plaintiffs,
24 vs.
25 || ASBESTOS DEFENDANTS (BP),
26 Defendants.
27
28
BRYDON
ctw Group |] “OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES FOR TRIAL
"sure ise BY DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION AND MERLEX
Sun Branesc,CA 94108 STUCCO, INC.1 ||) BRAYTON GROUP 582 (ASBESTOS)
CGC-08-274851
2 |) RONALD HEVENER,

3 Plaintiff,

4 vs.

5 ASBESTOS DEFENDANTS (BP)
6 Defendants.
7

BRAYTON GROUP 582 (ASBESTOS)
TYRONE SNOW, CGC-09-275188

wo

Plaintiff,
vs.
ASBESTOS DEFENDANTS (B“P),

Defendants.

BRAYTON GROUP 582 (ASBESTOS)
4 || JAMES GREELY, CGC-10-275502

5 Plaintiff,
6 vs.

7 || ASBESTOS DEFENDANTS (B#P)

8 Defendants.

BRAYTON GROUP 582 (ASBESTOS)
20 || CHARLES HUSBAND, CGC-09-275098

21 Plaintiff,

22 vs.

23 || ASBESTOS DEFENDANTS (B“P)
24 Defendants.

BRYDON

Huco & PaRKER OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
. FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.1 TABLE OF CONTENTS
ZY) L  INTRODUCTION (0. ceeceeceseesseessesssesseesessesssecsecsecssesseesssesssesessessassaseanesseesnessecsnesearecsseeeee 1
3 |) I. FACTUAL BACKGROUND...

4) TIL LEGAL DISCUSSION .o..eseccccseesstestesstesssessesseeeneesesseaneesssneessecsesnssseessessessecaneessesseesneesnen 3
A. Legal Prerequisites For Consolidation Of Cases For Trial «1.0... 3

B. Courts Have Imposed Factors Of Commonality That Must Be
Considered When Evaluating Consolidation Of Asbestos Cases ..

~ nis

c. Plaintiffs’ Motion Does Not Satisfy The Malcolitt Factors.....ccsccccccsecssscsseese 8

wo

D. Separate Trials And Separate Juries Are Required Here....ecccceseeseseeseeene 14
TV. CONCLUSION ooo. een etn ene nenernercenenenstneeseneanssneesesiesrentenersecsrenteneeecssensate 15

BRryDON i
Huco & PARKER OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES

135 Main STREET

30 Fok FOR TRIAL BY DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
San Baneison, CASSIS AND MERLEX STUCCO, INC.1 TABLE OF AUTHORITIES

2 || California Cases Pages
3 || Askew v. Askew
(1994) 22 Cal. App Ath 942... ccscsseesssesesessseecsseessesssnnsesssessnessseeesnessssnsssessssaesssneeeseensneerseresseesies 3
4
Bailey v. Taaffe
5 (1866) 29 Cal. 422 veccceccssesssseessessseessneeeseessssecssessssesssneeessessssssssatesseesssecssvessneesssaseeseessnesssersssenssies 4
6 |) Fellner v. Steinbaum
(1955) 132 Cal App.2d 509
7
Fisher v. Nash Bldg. Co.
8 (1952) 113 Cal App.2d 397 0. cescteseesnicseseseecessnscseesinesnssnecsicsieesnssiesecsnsesaneeseesesnesses 4
9 || General Motors Corp. ». Superior Court
(1966) 65 Cal 2d 88.0.0. cece ceases nesesisseesnesnssnescessicsicsecssearsumeunessisenienseesenesneenees 4
0
Jud Whitehead Heater Co. v. Obler
1 (1952) 111 Cab App.2d 861 occ ccccescteseesntcsesereesessuscssncsaesnssnessetsesesinsnieseesnsessneeseesesnesses 3

2 || Kinsman v. Unocal Corporation
(2005) 37 Cal 4th 659... esseeececsseesssecseecsnseessesssnescsacecavecsasecssseisscsaecsessunsessnessesessnaceeasssnnsnsiae 14

MeClure v. Donovan
4 (1949) 33 Cal.2d 717.

5 |) Privette v. Superior Court

(1993) 5 Cal. 4th 689.000 een ese dieses eseennseneecesesneseee 14
6
Sanchez v. Superior Court
7 (1988) 203 Cal. App.3d 1391... ces ntcsieseeerescnecsessnesnscnecsicsiesseesntesesnissnescecesnesne 3,8
8 |) Slack v. Murray
(1959) 173 Cal. App.2d 558... cesses cesniesiesenssrescnecsessssnssiessiesssuiesaiesesnissnescecesesne 4,5
9
Todd-Stenberg v. Dalkon Shield Claimants Trust
20 |] (1996) 48 Cal. App th 976.....cccessssssssssssnseesssensseesssssnnsstssnnsstensssessuvanseteessteneseseiiee 3,4

21 |) Other Federal and State Cases

22 |) Cain v. Armstrong World Industries

785 FB. Supp. 1448 cecceccscsecseecsesseeseeesseseecseesssesceerecsseseacsevecsecssecsranesneesecsacesessseseersesansearsareeneeese 5
23
Consorti v. O00 TUE World Industries, Inc.
24 72 F.3d 1003, 1006 (2° Cir, 1995) oo seceseessessecssssessesseseesseseeseesseseessesssseeseecenmesneneesenssasesenesaesnese 5

25 || Hendrix v. Raybestos-Manhattan

776 F204 1492 vesrssecssssesssseeseesssecessusessssnsecsunsecssssrsesssussccsssascesssussssssseceessuscesusseesnsusesesnecssssareesssnneees 5
26
Illinois Central Railroad Co. v. Gregors:
27 912 So.2d 829.. seve secseesnnecsnssceseessnecessesnnseesnnsceseessneceusessneesaneensicssenesnaersareesaness
28
BRryDON ii
Hao & PaRKER OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
"20" FLOOR FOR TRIAL BY DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION

Sun Francisca, CA 98105

AND MERLEX STUCCO, INC.1 || Ia re Brooklyn Navy Yard Asbestos Litigation,
971 F.2d 831 (2rd Cir, 1992) occ cesceestecccetesteessesseesessecseesessiesusseceuneeenessecseeenseesienensiess 5

In re Consolidated Parlodel Litig.
3 (D.N.J. 1998) 182 F.R.D. 441 .

4 || Imre Ethyl Corp.,

975 S.W.2d 606, 612 (Tex. 1998) icc rs eenseeseenesiesisstmesnsseesseesusnianscesneaniees passim
5
In re Sheli Oil Co.
6 202 S.Wi3d 286 iccceccececreseeseesesnseeseesrssessueseessersersssesseresesussssssussetsessssssesecsecersseeseesestnas 14
71) Inre Van Waters & Rogers
145 S.W.3d 208 wee cece css ceesstsscscseessssessecsesseseeseeseesneseseeseesteseeseacescesreseesseecsecsseaateacesaad 8, 11
8

In re Welding Rod Fume Prods. Liab, Litig.
(MDL 1535) (N.D. Ohio), 2006 WL 1869530... ccc eeeseeceseesseesesceseesreseesessssceeeeneaneesee 7,13

9
0 || Johnson v. Celotex Corp.
899 F.2d 1281.

1
Katz v. Realty Equities Corp. of New York
2 521 F.2d 1354 woes cesceseceeseeseeseesesceseeseeseesceseesneseescesseesesesseesssessesssssssssessesreenesnseesseesnaneasens 8
3 || Malcolm v. National Gypsum Co.
(24 Cir, 1993) 995 F.2d 346 occ ener cesses cee nenmesneseeseessmeseensenenusecsae passim
4
North Am. Refractory Co. v. Easter
5 988 S.W.2d 904 (Tex. App.-Corpus Christi 1999)... ccccseesccescesssessecesrsaresneessecsersesesees 7, 10,13
6 || Oweus-Corning Fiberglas Corp. 2. Martin
942 S.W.2d 712 (Tex. App.-Dallas 1997) .eccsecsesssseesssssesssssesnescssnesesscsareensneesnersnes 7,8, 10, 11
7
California Statutes And Rules
8
Code Civ. Proc., § 1048 oo. ecccecssessceeeesertessessecaressnecsscacessnsssscavensnsaeseescavanansaeeseueaeaneaceeeneee 8,15
9
Code Civ. Proc., § 1048(a) cece secs csessessssssessessseessssnssssesessesssseeseesessneneenessesnesessesessee 3,6
20
Cal. Rules of Court, Rule 3.350(a)(1) ...cccecscseeeeessesnesceneeseeseeneeresseeneeseeseeneaseaneersassasseneasssaesnaced 8
21
Evid. Code, § 452(d)
22
Other Federal and State Statutes And Rules
23
Fed. Rules of Civ. Proc, Rule 42(a) occ cesses ce eescescesceesicsnceesseneenssaneaseisanseusseseneaneenses 6
24
Tex. R.Civ.P., 174 (A) cosssssssccesscssessesesssossosssanusasassoseuusisassssseussanssssegauisasossossutussnsosseseensnsanteeteee 7
25
Other Authorities
26

Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (The Rutter Group 1997) ¥
27 12:362, p. 12(1)-63.)

28
BRryDON iii
Huco & PaRKER OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
26" FLOR FOR TRIAL BY DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION

Sun Francisca, CA 98105

AND MERLEX STUCCO, INC.Schwartz, A Letter To The Nation’s Trial Judges: How The Focus On Efficiency Is Hurting
You And Innocent Victims In Asbestos Liability Cases
(2000) 24 Am. J. Trial Ad VOC. 247 ..ccceceeeeesieseeseenesseesesesnssesueseesessesnmsneasessssnssnessssnesnaneeaee 5

~~ Dw FB WW

wo

BRryDON iv

OPPOSITION TO PLAINTIFES’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
fhoos FOR TRIAL BY DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
Sen ancien, CA8SIO8 AND MERLEX STUCCO, INC.~ nis

wo

I. INTRODUCTION

The Brayton Purcell firm has filed this motion (“Plaintiffs’ Motion”) to consolidate
twenty-four living asbestosis cases for trial in this Court. This Opposition is submitted
on behalf of three defendants represented by this firm: FOSTER WHEELER LLC, UNION
CARBIDE CORPORATION and MERLEX STUCCO (“Defendants”)."

Defendants oppose Brayton’s request for trial consolidation of these cases.
Plaintiffs’ Motion makes no effort to justify the consolidation it seeks, does not analyze
the different cases, and fails on several levels to satisfy the criteria necessary to justify
consolidation under Malcolm v. National Gypsum Co. (2°4 Cir. 1993) 995 F.2d 346, which
requires this Court to consider the following factors when deciding whether to
consolidate asbestos cases for trial: (1) Did the Plaintiffs have a common worksite; (2) did
they have similar occupations; (3) did they have similar times of exposure; (4) what types

of disease are involved; (5) are they living or deceased; (6) what is the status of discovery

in each case; (7) are they represented by the same counsel; and (8) what type of cancer (if
any) is alleged regarding each Plaintiff. (Malcolm, supra, 995 F.2d at 350-351.) As set forth
more fully below, the cases sought to be consolidated here do not satisfy the Malcolm
factors, as they lack commonality of worksite, occupation, and timing of exposure.
Further, Plaintiffs’ Motion fails to even attempt to satisfy any of the most critical

Maicolm criteria. Rather, it contents itself with addressing the most superficial and

' Defendant FOSTER WHEELER LLC is involved in four cases that the Brayton firm
seeks to consolidate for trial in this Court—Jodie D. Collins, Sr. vs. Asbestos Defendants, et
al., SFSC Case No. CGC-09-275294, Ronald Buckner v. Asbestos Defendants, et al., SFSC Case
No. CGC-10-275471, James Greeley vs. Asbestos Defendants, et al., SFSC Case No. CGC-10-
275502, and Tyrone Snow v. Asbestos Defendants, et al., SFSC Case No. CGC-09-275188.
Defendant UNION CARBIDE CORPORATION is involved in five cases —- Emilio Gonzales
Valdivia v. Asbestos Defendants, et al., SFSC Case No. CGC-09-275311, James R. Nash v.
Asbestos Defendants, et al., SFSC Case No. CGC-09-275311, Robert A. Lindsey, Sr., v. Asbestos
Defendants, et al, SESC Case No, CGC-10-275492, Ronald Hevener vs. Asbestos Defendants, et
al., SFSC Case No. CGC-08-274831, and Charles Husband v. Asbestos Defendants, et al., SFSC
Case No. CGC-09-275098. Defendant MERLEX STUCCO, INC. is involved in only one

case: James R. Nash v. Asbestos Defendants, et al., SFSC Case No. CGC-09-275414.
-1-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.w Nn =

~~ Dw Bb

wo

insubstantial aspects of the cases—the name of Plaintiffs’ counsel, the disease, the
similarity of experts—while assiduously ignoring the many, obvious, and critical
distinctions between the cases. The question of whether these cases should be
consolidated for trial—as opposed to “grouping” them for organizational purposes
during the pre-trial litigation phase (a practice soon to be put to an end by this Court) —
has weighty and potentially prejudicial consequences to Defendants, and can only be
justified by satisfying the Malcolm standards — which Plaintiffs’ Motion does not do.

Finally, Plaintiffs’ Motion fails to offer any information for the Court’s
consideration which would justify consolidation under these factors. Attorney Anne T.
Acuna’s declaration merely provides snippets of information about each Plaintiff, and
the Malcolm chart attached to the declaration provides only four columns of information:
the name of the case, a description of the types of products manufactured by the
defendants to which the plaintiff in a particular case claims exposure, and the names of
the experts? and the remaining defendants in each case. The work histories attached to
the declaration, and the products identified therein (generic though their descriptions
might be) provide the only potentially relevant data for the Court’s determination of this
motion but, even so, no documentation is offered to support.

Plaintiffs’ Motion fails to demonstrate that these cases bear sufficient commonality
such that the claimed efficiency in trying some or all of them before a single jury would
substantially outweigh the inevitable confusion and cross-prejudice to the defendants
that would result from such a trial. As a result, Plaintiffs’ Motion should be denied.

Il. FACTUAL BACKGROUND

Plaintiffs’ Motion attempts to emphasize the non-substantive similarities between
the cases in an effort to justify consolidation; in actuality, though, the facts behind the

various cases are actually quite different.

° The identity of expert witnesses, however, isn’t even a Malcolm factor, as Plaintiffs’ own
motion impliedly concedes. (See Plaintiffs’ Motion, at 4:14-20.)

2-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

But, Plaintiffs’ Motion fails to address the most relevant issues of potential
commonality of facts which might potentially justify consolidation, such as the various
Plaintiffs’ employment histories or jobsites.* Plaintiffs’ Motion essentially suggests that
consolidation of these cases is necessary simply because the same experts have been
designated in many (but not all) of the cases. While Plaintiffs’ counsel might wish to
“save a buck” —they would only have to pay their experts once for their trial preparation
and testimony, instead of twenty-four times—neither Plaintiffs’ counsel’s miserliness nor
any potential similarity of experts are factors in the equation with regard to determining
whether these cases should be consolidated.

IHN. LEGAL DISCUSSION

A Legal Prerequisites For Consolidation Of Cases For Trial

The purpose of consolidation is to enhance trial court efficiency, but not at the
expense of jeopardizing a defendant's fundamental right to a fair trial. Where potential
consolidation creates a substantial danger of inconsistent adjudications or making the
trial too confusing or complex for a jury, it must be avoided. (Code Civ. Proc., §

1048(a); Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-
979; Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511; Jud Whitehead Heater Co. v. Obler
(1952) 111 Cal.App.2d 861, 867; Weil & Brown, Cal. Prac. Guide: Civil Procedure Before
Trial (The Rutter Group 1997) {| 12:362, p. 12(1)-63.)

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

jaw or fact. (Askew v. Askew (1994) 22 Cal.App.4th 942, 964.) Consolidation, however, is

3 For ease of reference, Defendants have prepared their own “Malcolm Chart,” attached as
Exhibit A to the accompanying Declaration of Thomas J. Moses (“Moses Deel.”), which
displays the information known to Defendants about these cases.

3.

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

not a matter of right, and even cases which may be thoroughly “related,” in the sense of
having common questions of law or fact, do not have to be consolidated if the court
chooses not to do so. (Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 402.) And, cases
should generally not be consolidated absent agreement among the parties, particularly if
one party objects. (McClure v. Donovan (1949) 33 Cal.2d 717, 722-723.)*

In deciding whether to consolidate, a Court must exercise appropriate judicial
discretion that is, the Court should act in a way which would “do justice according to
law or to the analogies of the law, as near as may be [and]...to promote substantial justice
in the case.” (Slack v. Murray (1959) 173 Cal. App.2d 558, 562-563.) California courts have
long recognized that appropriate judicial discretion “is not a capricious or arbitrary
discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal
principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to
be exercised in conformity with the spirit of the law and in a manner to subserve and not
to impede or defeat the ends of substantial justice.” (Slack, supra, 173 Cal. App.2d at 562;
Bailey v. Taaffe (1866) 29 Cal. 422, 424.)

Where “case-common” issues have been found not to predominate over the
individual issues, or where the risks of prejudice to a party outweighed the reduction in
time and expense that would result, California courts have ruled that orders
consolidating cases in those circumstances were an improper exercise of judicial
discretion. (Todd-Stenberg, supra, 48 Cal.App.4th at 978-979; General Motors Corp. v.
Superior Court (1966) 65 Cal.2d 88, 92; Fellner, supra, 132 Cal.App.2d at 511.)

No California case has addressed consolidation in asbestos cases. But, courts from.

+ Under the San Francisco Superior Court General Orders, which are still in effect (but
possibly not for very long), there is a standing presumption that “[a]ll parties shall be
deemed to have objected to any proposal for consolidation or order consolidating or
subgrouping cases for trial.” (San Francisco Superior Court General Order 129.) Under
this General Order, any party may also “raise further objections to a consolidation or
subgrouping of cases for trial at any time additional facts become known that justify a
renewed objection.” (Id.) Despite the “long history” of case consolidations lauded in

Plaintiffs’ Motion, the General Orders demonstrate a judicial bias against consolidation.
4.

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

other jurisdictions have held that while these cases may be consolidated, courts should
not do so when there are “specific risks of prejudice and possible confusion....” (Cain v.
Armstrong World Industries, 785 F. Supp. 1448, 1455 (S.D. Ala. 1992); Hendrix v. Raybestos-
Manhattan, 776 F.2d 1492, 1502 (11" Cir. 1985).) Such “prejudice and possible confusion”
might result even when relatively small numbers of asbestos claims are joined. (Cain,
supra, 785 F. Supp. at 1455; Hendrix, supra, 776 F.2d at 1502.) Other risks are the burdens
placed on parties, witnesses and judicial resources, and the time needed to try the cases.
(Cain, supra, 785 F. Supp. at 1455; Hendrix, supra, 776 F.2d at 1502.)

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

Finally, courts should undertake a systematic review of the facts to determine
whether consolidation is warranted. (Schwartz, A Letter To The Nation’s Trial Judges:
How The Focus On Efficiency Is Hurting You And Innocent Victims In Asbestos Liability
Cases (2000) 24 Am. J. Trial Advoc. 247, at 257.) As the Second Circuit recognized in In re
Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 853 (2° Cir. 1992), “The systemic
urge to aggregate litigation must not be allowed to trump our dedication to individual
justice, and we must take care that each individual plaintiff’s—and defendant’s—cause
not be lost in the shadow of a towering mass litigation.”

The First District Court of Appeal has applied the criteria and analysis described

in Malcolm to dissolve a consolidation order with regard to two San Francisco Superior

5.

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

Court cases (Gray and Oxford) that had been ordered to be tried together. That court
found that the lack of any common questions of fact between the two cases, the failure of
Plaintiffs’ counsel to provide any evidence to satisfy any of the Malcolm elements, the
potential for prejudice to the defendants, and the likely jury confusion resulting from
having to defends two essentially different cases at the same time, all militated against
consolidation. The same result should occur here, as the cases the Brayton firm seeks to
consolidate here are as different from one another as were Gray and Oxford.

B. Courts Have Imposed Factors Of Commonality That Must Be
Considered When Evaluating Consolidation Of Asbestos Cases

When evaluating whether asbestos cases have properly been consolidated for trial,
appellate courts across the country have compiled a list of factors to consider. In
Matcolm, supra, the court reversed a judgment based upon a consolidated trial of multiple
asbestos-exposed plaintiffs. The Malcolm court examined FRCP 42(a)*—virtually
identical to Code of Civil Procedure section 1048(a)—and decided that the consolidation
order had been improper, because of the prejudice to the defendants arising from the
disparity of diseases, and because none of the plaintiffs had any common work sites,
occupations, or exposure periods. (Malcolm, supra, 995 F.2d at 350-351; see also Johnson v.
Celotex Corp., 899 F.2d 1281, 1285 (2nd Cir. 1990); Hendrix, supra, 776 F.2d at 1492-1496.)

The Malcolm court provided the following factors to consider when consolidating

5 The cases were Jersey and Shirley Gray v. Asbestos Defendants, SFSC Case No. 274042, and
Judy Oxford v. Asbestos Defendants, SFSC Case No. 440328. Gray was a personal injury
case, where the Plaintiff suffered. from metastatic renal cancer from having worked with
asbestos-containing products at a power plant in Pasadena, CA. Oxford was a wrongful
death mesothelioma case, resulting from Decedent’s exposure to asbestos while serving
in the U.S. Navy. The Superior Court’s order consolidating these cases was reversed by
the First District Court of Appeal. This Court is requested to take judicial notice of those
court files and records pertaining to these cases to the extent relevant for purposes of
evaluating this Opposition. (Evid. Code, § 452(d).)

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

joint hearing or trial of any of the matters at issue in the action....”
-6-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

asbestos cases: (1) Did the Plaintiffs have a common worksite; (2) did they have similar
occupations; (3) were there similar times of exposure; (4) what diseases are involved; (5)
are the injured workers are living or deceased; (6) what is the status of discovery in each
case; (7) are the Plaintiffs represented by the same counsel; and (8) what type of cancer is
alleged regarding each Plaintiff. (Malcolm, supra, 995 F.2d at 350-351.)

Courts across the country have adopted the Maicolm analysis, and have identified
other factors to be considered when consolidating asbestos cases. Some courts require
commonality in “the type[s] of asbestos-containing product[s] to which the [plaintiffs or
decedent] was exposed.” (In re Ethyl, supra, 975 8.W.2d at 616-617; North Ant. Refractory
Co. v. Easter (Tex. App.-Corpus Christi 1999) 988 S.W.2d 904, 917.)’ Other courts look to
see “whether the law applicable to all plaintiffs is the same,” and have concluded that
“even if all of the [Malcolm] Factors weigh in favor of consolidation, a requirement that the
Court or the jury apply different legal standards to the different cases may present an
excessive risk of prejudice and confusion, such that consolidation is not appropriate.”
((In re Welding Rod Fume Prods. Liab. Litig. (MDL 1535) (N.D. Ohio), 2006 WL 2869530 at *3
(slip copy); see also In re Consolidated Parlodel Litig. (D.N.]. 1998) 182 F.R.D. 441, 447.)

Consolidation should be allowed in cases where it would be both efficient and fair
to all concerned. (See, e.g., In re Ethyl, supra, 975 S.W.2d at 614-615 [the dominant
consideration in every case should be “whether the trial will be fair and impartial to all
parties”].) Courts use the Malcolm factors to assist them in determining if consolidating
cases would be likely to lead to efficiency and fairness or prejudice and confusion.

Given the fact that the California statute is virtually identical to the federal rule

and courts and counsel in California are familiar with the MalcolmRod criteria, it is

? Under Texas law, cases may be consolidated only if they involve “a common question
of law or fact.” (Tex.R.Civ.P. 174(a).) Actions may be consolidated if they “relate to
substantially the same transaction, occurrence, subject matter, or question...[but the]
actions should be so related that the evidence presented will be material, relevant, and
admissible in each case.” (Owens-Corning Fiberglas Corp. v. Martin, 942 8.W.2d 712, 716

(Tex.App.-Dallas 1997) [emphasis added].)
7-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

appropriate to employ them here. In doing so, it is crystal clear that no time will be
saved by consolidating these cases, and that the potential exists for juror confusion,
disparate results, and prejudice to Defendants. As consolidation of these cases is neither
sensible nor fair, Plaintiffs’ Motion must be denied.

Cc. Plaintiffs’ Motion Does Not Satisfy The Malcolm Factors

While providing information regarding these factors by no means guarantees that
cases might be consolidated, sufficient information must be supplied to the Court to
allow it to make an appropriate determination regarding consolidation. (See Cal. Rules
of Court, Rule 3.350(a)(1); Code Civ. Proc., § 1048; Sanchez v. Superior Court (1988) 203
Cal.App.3d 1391, 1396; Illinois Central Railroad Co. v. Gregory, 912 So.2d 829, 836 (Miss.
2005); Katz v. Realty Equities Corp. of New York, 521 F.2d 1354, 1361 (2°4 Cir. 1975).)

While Plaintiffs’ Motion makes much of the fact that “most” of the Malcolm factors
supposedly are satisfied, it carefully sidesteps the fact that the factors “satisfied” are the
more inconsequential (or wholly irrelevant) ones—same attorney, same disease,
discovery closed, same experts. The jury at trial will spend no time at all in determining
who represents the Plaintiffs, or whether they are alive. But the more important factors,
upon which the jury will focus virtually all of its attention—worksites involved, type of
work done, time periods of exposure, product exposures —all, as set forth below,
mandate separate treatment of each case.

(1) Common worksites? Divergence in worksites among Plaintiffs weighs strongly
against consolidation. (Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 716
(Tex.App.-Dallas 1997).) Whether, how, and where someone was exposed to asbestos are
critical questions in these cases. Courts have recognized that it would be difficult for a
jury to keep track of where and when multiple plaintiffs were exposed if they worked at
several different worksites. (In re Ethyl, supra, 975 S.W.2d at 615.) In fact, one of the
policies behind consolidating cases involving shared worksites is to simplify the proof of
product identification. (Owens-Corning Fiberglas, supra, 942 5.W.2d at 717; In re Van

Waters, supra, 145 $.W.3d at 208.) This policy is not furthered, and the risks of jury
-B-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.w Nn =

~~ Dw Bb

wo

confusion and defendant prejudice are undeniable, if there are no worksites that were

shared among the Plaintiffs in the cases involved here.

The job sites of the Plaintiffs in these cases—not discussed in Plaintiffs’ Motion,

but which are included in Defendants’ Maicolm chart—are quite diverse:

Williams: Commercial ships/shipyards; commercial/industrial construction;
Lisk: Commercial/military ships;

McClary: Educational/commercial/industrial construction;

Gisler: Educational/government/commercial/residential construction;
Valdivia: Residential/commercial construction;

Nash: Navy ships, residential construction;

Buckner. Navy ships;

Lindsey: Residential/commercial construction;

Brooks: Residential/industrial construction (refineries, chemical plant);
Ciccone: Residential/commercial construction;

Cooper: Navy ships and submarines, Standard Oil refinery;

Fagg: Navy ships, residential/commercial locations (in WA);

Foster: Navy ships and shipyards, commercial locations;

Greeley: Shipyards, residential/industrial construction, and Johns
Manville plant;

Hevener. Residential/commercial/industrial construction;

Holtzclaw: Army bases, Chevron chemical plant;

Husband: Army bases, merchant marine ships, commercial/residential
construction, chemical and oil refineries (e.g., Shell Oil, Exxon, DuPont);
Moriarty: Jewelry making facilities;

Morris: Auto repair facilities, industrial sites, Atlas Mineral asbestos
mine;

Nagle: Air Force bases, Navy ships and shipyards, auto repair facility;
Owens: Navy ships and shipyards, industrial plants;

Schlimmer: Navy ships and shipyards, auto repair facility;

Snow: Air Force bases, residential/industrial construction sites;

White: Residential/commercial construction sites.

As areview of Defendants’ Malcolin chart demonstrates, none of the Plaintiffs in

these proposed trial groups have any commonality in specific job site locations, and even

where the Plaintiffs appear to have worked at some common types of locations, none of

9.

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES

FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION

AND MERLEX STUCCO, INC.w Nn =

~~ Dw Bb

wo

them ever worked at the same sites at the same time. While Plaintiffs’ Motion implies that
“all exposures are the same,” thus asserting that the locus of each Plaintiff's exposure is
essentially irrelevant, this is clearly not the case, either factually or legally speaking. This
factor militates against consolidation.

(2) Similar occupations? This inquiry is significant because the extent of a
worker's exposure to asbestos typically depends mainly on his occupation. (Malcolm,
supra, 995 F.2d at 351; Owens-Corning Fiberglas, supra, 942 S.W.2d at 717; North Am.
Refractory Co. v. Easter (Tex. App.-Corpus Christi 1999) 988 $.W.2d 904, 918.) Some
workers, due to their occupation, may have had more intensive exposure to asbestos than
others, and this factor would be significant where the nature or extent of exposure is
measurably different among the different occupations and Plaintiffs. (In re Ethyl, supra,
975 S.W.2d at 615.)

Plaintiffs here had very different types of jobs:

Williams: Refrigerator mechanic, pipefitter;

Lisk: Stock clerk, electrician’s mate, boiler inspector, marine engineer;
McClary: Insulator;

Gisler: Delivery driver, shop clerk, pipefitter, plumber;

Valdivia: Painter, drywall finisher, longshoreman;

Nash: Machinist mate, machinist, laborer, framer;

Buckner: Laborer;

Lindsey: Drywall hanger;

Brooks: Laborer, pipefitter, machine operator, carpenter;

Ciccone: Service technician, service station owner, HVAC company
owner;

Cooper: Fireman, operator, pipefitter;

Fagg: Machinist mate, construction laborer, heavy equipment operator,
boiler tender, contractor;

Foster: Sheet metal mechanic, mechanic;

Greeley: Laborer, installer, operator, truck driver;

Hevener: Laborer, plasterer;

Holtzclaw: Warehouseman, mechanic, plant operator;

Husband: Laborer, mechanic, carpenter, drywall carpenter, equipment

-10-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

operator, mechanic;

Moriarty: Student, teacher's aide, goldsmith, jewelry maker;

Morris: Auto mechanic, parts manager;

Nagle: Weapons specialist, mechanic, truck driver, rigger;

Owens: Machinist, machinist mate, lathe operator, machine
shop/production supervisor, quality control engineer, finisher, marine
machinist;

Schlimmer. Service station attendant, pipetitter;

Snow: Mechanic, roofer, boilermaker;

White: Floor installer.

Even a brief consideration of the numerous types of jobs held by Plaintiffs in
these cases reinforces the notion that these cases cannot be tried as a group, in that the
combinations of jobs held by each Plaintiff here had a very different potential for
asbestos exposure opportunities than the jobs held by the other Plaintiffs (and from
each of the jobs that other Plaintiffs with multiple jobs might have had). Some
Plaintiffs have many different types of jobs which would have presented different
types of potential opportunities for asbestos exposure; at least one Plaintiff (Moriarty)
had a job—jewelry maker~ where it facially would appear that asbestos exposure was
highly unlikely. Significant factual issues pertaining to exposure and causation thus
would still have to be addressed for each Plaintiff, individually and at length,
defeating the purpose of “judicial economy” that consolidation would be meant to
address. This factor militates against consolidation.

(3) Similar times of exposure? Courts must consider not only the specific times

when the claimants were exposed to a product, but also the duration of their exposure in

determining if these time considerations are comparable within the group of

consolidated claims. (Owens-Corning Fibergias, supra, 942 5.W.2d at 718; In re Ethyl, supra,
975 S.W.2d at 615.) If the durations of exposures differ significantly among the Plaintiffs,

this factor weighs against consolidation. (In re Van Waters, supra, 145 S.W.3d at 209.)
The exposure claims in this case extend back many years:
Williams: 1974-1991;

-ll-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

Lisk: 1952-1988;
McClary: 1954-1990;
Gisler: 1953-1987;
Valdivia: 1956-2009;
Nash: 1964-1970s;
Buckner: 1972-1988;
Lindsey: 1961-1997;
Brooks: 1976-2006;
Ciccone: 1950-2001;
Cooper: 1952-1987;
Fagg: 1965-1995;
Foster: 1962-1989;
Greeley: 1955-1997;
Hevener: 1955-1990;
Holtzclaw: 1969-1980s;
Husband: 1950s-1988;
Moriarty: 1966-present;
Morris: 1960-1999;
Nagle: 1966-2002;
Owens: 1957-1989;
Schlimmer: 1966-1994;
Snow: 1960-1997;
White: 1970-1990.

The exposure times of the Plaintiffs in these cases differ widely. Several Plaintiffs
were exposed beginning in the 1950s and 1960s; others (such as Buckner) didn’t begin
their exposures until the 1970s. Many of the Plaintiffs had exposures which pre-dated
OSHA, but most also had exposures that extended well into the post-OSHA years; one
Plaintiff (Brooks) didn’t even have asbestos exposures until 1976, after the adoption of
OSHA.. The differing lengths of exposures and the timing of the exposures in this group
of cases present significant factual issues. This factor militates against consolidation.

(4) Types of disease? (5) Living or deceased? (6) Status of discovery? (7)
Plaintiffs represented by the same counsel? None of these categories should be viewed

as meaningful here. There is no dispute (for purposes of this motion) that Plaintiffs are

-12-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

living, that Plaintiffs claim to have suffered from asbestosis, that discovery is closed in
each case, or that the Brayton firm is counsel in each case. This agreement, in fact, leaves
in the jury’s hands only disputed, complex, and widely disparate fact patterns—
underscoring why the cases should be tried separately. Indeed, these factors generally
must be considered to be “far less important” than the other considerations identified in
Malcolm. (See In re Ethyl, supra, 975 S.W.2d at 616.)

(8) Type of cancer? This is irrelevant, as all Plaintiffs allegedly have asbestosis.

(9) Types of asbestos-containing products? The court in In re Ethyl noted that in
addition to the Malcolm factors, the type of asbestos-containing product must be
considered when evaluating consolidation:

In some products, the asbestos is embedded and fibers are not likely to become
loose or airborne. In other products, the asbestos is friable. This, of course, bears
on the extent and intensity of exposure to asbestos and could be considered a
subset of the worksite or occupation factors.

(Un re Ethyl, supra, 975 S.W.2d at 617; see also Easter, supra, 988 S.W.2d at 918.)

Here, while each of the Plaintiffs appear to have had some exposures to some
similar types of products, not all of the Plaintiffs were exposed to the same products, and
some of the Plaintiffs had unique exposures to differing varieties of other types of
asbestos-containing materials. Instead of making things easier, consolidation of these
cases, under these circumstances, would only make the consolidated trial longer and
more confusing. Even if all of the products to which Plaintiffs in these cases were
exposed were the same— which, it is clear, they were not-~the frequency and nature of the
exposures related to such products, and the methods of exposure, would still have been
different for each Plaintiff. This factor militates against consolidation.

(10) Is the law applicable to all plaintiffs the same? Even if all of the other factors
weigh in favor of consolidation, if different legal standards may apply to the different
cases, and an excessive risk of prejudice and confusion would result, consolidation is not

appropriate. (In re Welding Fume, supra, 2006 WL 2869530 at *3; see also Parlodel, supra,

-13-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

142 F.R.D. at 447 [“the economies of consolidation would be significantly reduced in
these cases by the need to apply different law to each Plaintiff's claim, and even to
individual! issues within each claim’].)

Tf any of the Plaintiffs here were employed by independent contractors, “the
necessary factual inquiries become more complex.” (In re Shell Oil Co., 202 S.W.3d 286,
291 (Tex.2006).) This is so because in such cases, the responsibility for conducting a task
in a safe manner rests with the independent contractor “where the activity is conducted
by, and is under the control of, an independent contractor, and where the danger arises
out of the employees’ performance of the task.” (In re Ethyl, supra, 975 S.W.2d at 615.)
Also, should any of the Plaintiffs here decide to pursue at least one defendant for
premises liability/contractor liability, the focus in such cases would be on the question of
control and on the knowledge of each Plaintiff's employer regarding the potential
dangers of asbestos exposure. (See Privette v. Superior Court (1993) 5 Cal.4th 689, 693-694;
Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659, 661-675.) Pursuing these claims with
regard to only one case would require the contractor defendant to present evidence
significantly different from the other defendants, leading to potential confusion and
prejudice. Judicial economy would require separate, and not consolidated, trials.

In sum, it appears that the only reason Brayton wants these cases consolidated is
because it would be convenient for them, not because it would be correct. However, as
there are absolutely no similarities between the cases, consolidation “for the sake of
consolidation” should not be granted.

D. Separate Trials And Separate Juries Are Required Here

Finally, to the extent that Plaintiffs’ Motion suggests that all of the cases in this
group should proceed to trial before the same jury, that request must be denied. First,
there would be no time savings involved. The same jury might have to be empanelled
for weeks, and the difficulties of time-qualifying a panel of jurors would be magnified.

Second, Plaintiffs’ Motion is requesting a consolidation of all of these cases into

one group so that they can all be tried before the same judge and the same jury.
AL

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.~ nis

wo

However, the perils of juror confusion and potential defendant prejudice are significantly
magnified if the same jury, after hearing evidence applicable to one plaintiff or one
defendant, is then requested to “forget” all that they’ve heard and start over again with a
new set of parties and new evidence. The reality of our jury system is that it would be
impossible to require instant forgetfulness on the part of jurors, particularly if they have
gone through one or two “groups” of trials.

Third, Code of Civil Procedure Section 1048 only refers to “actions involving a
common question of law or fact.” While Plaintiffs’ motion suggests that all of these cases
should be in one group, the reality of the situation is that this Court is being asked to
enter an order consolidating a series of different actions which have absolutely no
“common questions of law or fact.”

Finally, separate trials before separate juries would eliminate any potential sources
of confusion and prejudice. While this might not always be the most time-efficient result,
it is what is required when the MaicolmRod Fumes factors are applied to consolidations.
Iv. CONCLUSION

For all of the reasons set forth above, Defendants FOSTER WHEELER LLC,
UNION CARBIDE CORPORATION and MERLEX STUCCO, INC. respectfully request
that the Court deny Plaintiffs Motion to Consolidate, and, instead, try each of the cases
separately, with separate juries, and. provide the parties with the order in which the cases

will be tried.

DATED: November 23, 2011 BRYDON HUGO & PARKER

By:_/s/ Thomas J. Moses
Edward R. Hugo
James C. Parker
Shelley K. Tinkoff
Thomas J. Moses
Attorneys for Defendants
FOSTER WHEELER LLC,
UNION CARBIDE CORPORATION and
MERLEX STUCCO, INC.

-15-

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE LIVING ASBESTOSIS CASES
FOR TRIAL OF DEFENDANTS FOSTER WHEELER LLC, UNION CARBIDE CORPORATION
AND MERLEX STUCCO, INC.