Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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                                MICHAEL J. ESTRADA (SBN 121439)
MIRIAM P, MAXWELL (SBN 099924)
NILU K. MAJD (SBN 246017)
VASQUEZ ESTRADA & CONWAY LLP
Courthouse Square

1000 Fourth Street, Suite 700

San Rafael, CA 94901

Telephone: (415) 453-0555

Facsimile: (415) 453-0549

E-Mails: mestrada@vandelaw.com

mmaxwell@vandelaw.com

nmajd@vandelaw.com

Attorneys for Defendant
MONTEREY MECHANICAL COMPANY

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

APR 20 2012

Clerk of the Court
BY: VANESSA WU
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO ~ UNLIMITED JURISDICTION

CHARLES HUSBAND,
Plaintiff,
vs.

ASBESTOS DEFENDANTS (BéP).

ANTHONY PONTINO,
Plaintiff,

vs.

ASBESTOS DEFENDANTS (B¢P).

TYRONE SNOW,
Plaintiff,

VS.

ASBESTOS DEFENDANTS (BéP).

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ASBESTOS
Case No.: CGC-09-275098

Case No. CGC-09-275165

Case No. CGC-09-275188

DEFENDANT MONTEREY MECHANICAL COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165oS OD em RD HW BR BH DD

e
Room

CONNIE SOWELS,
Plaintiff,

VS.

ASBESTOS DEFENDANTS (BéP).

TERRY DeCARLO, )

Plaintiff,

YS.

ASBESTOS DEFENDANTS (B¢P).

JAMES GREELY,
Plaintiff,

vs.

ASBESTOS DEFENDANTS (BéP).

Case No. CGC-09-275312

Case No. CGC-09-275333

Case No. CGC-10-275502

DEFENDANT MONTEREY
MECHANICAL COMPANY’S
OPPOSITION TO PLAINTIFFS’
MOTION TO CONSOLIDATE FOR
TRIAL LIVING ASBESTOSIS/BRAYTON
CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES

Date: April 27, 2012

Time: 9:00 a.m.

Dept.: 608

Judge: Hon. Curtis E.A. Karnow

DEFENDANT MONTEREY MECHANICAL COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165Til.

IV.

TABLE OF CONTENTS

Page No

FACTUAL BACKGROUND ..
LEGAL ARGUMENT. 00... .cscccceseseeeeceeseceeeseeeeeeeeeeeseseeenesssusueeegssveeesennnieaaaen 3
A. Legal Standard for Consolidation. .....0.00..cccsccsesseseeeceseserseueseeecsaseeereuseseees 3
B. Plaintiffs’ Proposed Consolidation of Brayton Group $94 Will Lead to Prejudice

against Monterey Mechanical........000.0. 0. ccccececcceeeeetseeeettseeessenssssessneeeens 8

1 Consolidation Will Cause Jury Confusion...

2. “State of the Art” Defense... eee ccetecctseeeceecettesetceptsauteeevens 9

3. “Sophisticated User” Defense...........00.cc cc cccccceeeeersenssereseesateeeenees 10
Cc. Should the Court Be Inclined to Consolidate Some Cases for Trial, Monterey

Mechanical Requests that Pontino Be Consolidated with DeCarlo Only............ 10
CONCLUSION

i

DEFENDANT MONTEREY MECHANICAL COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES; CASE NO. CGC-09-275165TABLE OF AUTHORITIES
CASES
Page No.
Billsborrow v. Dow Chemical. U.S.A.
177 A.D.2d (N.Y. App.Div. 1992)... cence ceeece tees cess sate aeassunsaaseeuyeeeeeeesie 10

Fellner v. Steinbaum
(1995) 132 Cal.App.2d 509, 511

General Motors Corp. v. Superior Court
(1966) 65 Cal.2d 88, 92...

Hendrix v. Raybestos-Manhattan, Inc.
776 F.2d 1492, 1495 (11 Cir. 1985)... cccccceccseesesscessseeeesesccsesecsescvstaegivaveveranivaverenta 5

Hypertouch, Inc. v. Superior Court
(2005) 128 Cal App.4" 1527, 1544.00 occ cece eetee cutee rcaescnttenstenstesspenreneenereed 4

In Re Ethyl Corp.
975 S.W.2d 606, 611, 614 (Tew. 1998). 000. ceeeeccceeeeeee sete ee neseassaaseeeeearteeeeensas 5

In Re Repetitive Stress Injury Utig.
LL F.3d 368, 374 (2d Cir, 1993)... cccceceeeetensneeeeeeeeeeeeesceenauueeeeesseteeeesensaaees 5,7

Jehnson v. American Standard Inc.
(2005) 133 Cal-App.4" 1996

Johnson v. Celotex Corp.
899 F.2d 1281, 1285 (2d Cir)... ee eee cceccesceeceeceeeeecusnesesstseaeeeccenessseseraseerenens 5

Judd Whitehead Heater Co. v. Obler
(1952) 111 Cab. App.2d 861, 867.00... ccecerneneeeeeeeeeeeeceeeeaassceseceseneeeeseneenss 8

Malcolm v. National Gypsum Co.
995 F.2d 346, 350-352 (2™ Cir. 1993). csteneeeeeeeeeeereeeeeeeens 1,4,5,7,9, 11

Slack v. Murra’
(1959) 173 Cal. App.2d 558, 562-563... 0... eee rer even reterteeeeeseseetinieeetneesesennneiee 4

Todd-Stenberg v. DB/kon Shield Claimants Trust
(1996) 48 Cal. App.4™ 976, 978-979... ccc cccccccccceseeeececceeess eu eee ease veeevenertaneeeeaneneeses 3,8

Westside Community for Independent Living, Inc. v. Dbledo
(1983) 33 Cal.3d 348, 355...

STATUTES
California Code of Civil Procedure § 1048.00.00... .ccccccccceeeeeseeccsseeccessnsceseeccetenenes 1, 8,9

California Code of Civil Procedure § 1048 (a)... ccc ccceeeceeeeeee cette eeee ee etneeteeeeeennnnneee 3,4
Federal Rules of Civil Procedure 42(a)........0.000.0cccceeeseceeesseeeenee recesses reeeceeeseeveneeuneeneeenee 4

Weil & Brown, Cal.Prac. Guide: Civil Proc, Before Trial (The Rutter Group 2008)
912:362, p. 12G)-O3... occ cecscccsssesesvsvsssstosvssevvevseavseeeesesteccsevesesvsusecetsvsvenseeaveveueess 4,8
ii

DEFENDANT MONTEREY MECHANICAL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION TO.
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES, CASE NO. CGC-09-275165N

I. INTRODUCTION

Defendant Monterey Mechanical (hereinafter “Monterey Mechanical”) respectfully
submits this opposition to plaintiffs’ counsel Brayton¢Purcell’s (hereinafter “Brayton”) motion to
consolidate the following six cases in Brayton Group 594 for trial: Charles Husband v. Asbestos
Defendants (SFSC 275098), Anthony Pontino y. Asbestos Defendants (SFSC 275165) Tyrone
Snow vy. Asbestos Defendants (SFSC 275188), Connie Sowels v. Asbestos Defendants (SFSC
275312), Terry DeCarlo v. Asbestos Defendants (SFSC 275333), and James Greely v. Asbestos
Defendants (SFSC 275502). As Monterey Mechanical is a defendant in the Pontino case only, this
opposition is submitted on behalf of Monterey Mechanical as to the Pontino case only. While
plaintiffs rely on the obvious commonality of plaintiffs’ counsel and the nature of their claimed
asbestos- related illnesses to support their motion, the significant differences in plaintiffs’ actual
work history (and therefore potential asbestos-related exposure) are not discussed in any relevant
detail in their moving papers. Such details are only vaguely referenced, and relegated to plaintiffs’
attached exhibits. Furthermore, in only the Pontino and DeCarlo cases were the plaintiffs career
pipefitters, while the other four plaintiffs worked, respectively, as a laborer, equipment operator,
boilermaker and machinist.

Plaintiffs ignore the inherent prejudice to Monterey Mechanical that will result from the
inevitable jury confusion caused by the discordant nature of evidence to be presented in six
separate cases. Contrary to plaintiffs’ assertions, these cases involve different occupations,
different medical histories, and different smoking histories to name just a few issues, and
consolidating these cases together will prejudicially affect Monterey Mechanical’s right to a fair
and impartial trial. Moreover, the factors set forth in Malcolm v, National Gypsum Co., 995 F.2d
346 (2nd Cir, 1993) are not merely instructive, they are prescriptive in determining whether jury
confusion and undue prejudice are likely to arise from trying multiple asbestos cases together.
Allowing all six cases in Brayton Group 594 to be tried together in one large complex trial
involving plaintiffs with different medical and employment histories puts Monterey Mechanical at
a distinct disadvantage that is surely not contemplated by California Code of Civil Procedure

section 1048 or under Malcolm. As such, we request that plaintiffs’ motion for consolidation be
1

DEFENDANT MONTEREY MECHANICAL COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS’ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165Oo Om NI DA

denied. However, should the Court be inclined to consolidate at least some of the cases in this
group, Monterey Mechanical requests that the Pontino be consolidated for trial with only the
DeCarlo case for the reasons set forth below.

Ih FACTUAL BACKGROUND

On April 6, 2012, plaintiffs filed a motion to consolidate Pontino with the Husband,
DeCarlo, Snow, Sowels and Greely cases ~ six individual factually diverse cases - for trial. In
support of their motion, plaintiffs allege that all plaintiffs in this group suffer from the same
disease - asbestosis and/or asbestos-related pleural disease. However, while these plaintiffs all
allege the same or common disease, their medical histories, as well as their employment histories,
are widely diverse.

Mr. Pontino is a 63-year-old retired plumber, welder and pipefitter, who alleges exposure
to asbestos over the course of his career at various job sites in Northern California from 1966 to
2004, as well as extensive repair work on his personal automobiles, which caused him to develop
asbestos-related pleural disease. Plaintiff alleges that Monterey Mechanical employees removed
and disturbed asbestos-containing thermal insulation at unknown worksites in his presence.
According to both plaintiff and defense medical experts, Mr. Pontino does not suffer from
asbestosis, but only from minor bilateral non-calcified pleural plaques. (See Exhibit A and B to the
Majd Decl.) Plaintiff's medical records do not reflect a diagnosis of or treatment for any asbestos-
related disease. According to his medical records, plaintiff is relatively healthy, and has been
treated for such conditions as hypertension, hypercholesterol, dyslipidemia, and
hypertriglyceridemia. In addition, he has no smoking history of any significance. (See Exhibit A
and B to the Majd Decl.)

Plaintiff Charles Husband is a retired carpenter/equipment operator and drywaller who
allegedly suffers from asbestosis. In addition, Mr. Husband suffers from hyperinflation, advanced
emphysema and COPD, resulting from his extensive smoking history. (See {5 to the Majd Decl.)
Plaintiff Tyrone Snow is a retired boilermaker who worked from 1970 into the 1990s, and
allegedly suffers from asbestosis. Mr. Snow also suffers from hyperinflation consistent with

il
2

DEFENDANT MONTEREY MECHANICAL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION TO:
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165oO OD 6 WD

smoking, heart disease, COPD from smoking, type II diabetes mellitus, bronchial asthma,
alcoholism, hypertension, and obesity. (See § 5 to the Majd Decl.)

Plaintiff Connie Sowels is a retired machinist/laborer who worked from the 1960s to 2000s
and alleges asbestos exposure over the course of his career at various job sites in Northern
California which allegedly caused him to develop asbestosis. Mr. Sowels also suffered a stroke,
has heart disease, obesity, type Il diabetes mellitus and high cholesterol. Defense experts project
his life expectancy to 2013. (See 5 to the Majd Decl.) Plaintiff James Greely worked as a laborer
from 1960 to 1970 on various residential and industrial sites in Northern California where he was
exposed to asbestos, allegedly causing him to develop asbestosis. Mr. Greely additionally suffers
from heart disease, double bypass surgery, prostate cancer, and an immune deficiency disease.
(See J 5 to the Majd Decl.)

Lastly, plaintiff Terry DeCarlo worked as a pipefitter from the 1960s to the 1980s and as
an auto mechanic from the 1960s to approximately 2008. Mr. DeCarlo contends that his work as a
pipefitter at various industrial, residential and commercial sites, in addition to his extensive
automobile repair work, caused him to be exposed to asbestos and to develop asbestosis. Plaintiff
also suffers from high cholesterol, hypertension, obesity and joint disease. (See {5 to the Majd
Decl.)
ik LEGAL ARGUMENT

A. Legal Standard for Consolidation

The basis for plaintiffs’ motion seeking consolidation is Code of Civil Procedure section
1048(a) which provides:

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 or all matters

in issue in the actions; it may order all the actions consolidated and it

may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.

The decision whether to consolidate two (or six) actions rests in the sound discretion of the
court. Todd-Stenberg v. DB/kon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979. In

deciding whether to consolidate actions for trial, the court must consider "all possibilities of

3

DEFENDANT MONTEREY MECHANICAL COMPANY ’S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165prejudice” when deciding whether to exercise the discretion conferred by Section 1048(a).
General Motors Corp, v. Superior Court (1966) 65 Cal.2d 88, 92. See, also, Weil & Brown,
Cal.Prac. Guide: Civil Proc, Before Trial (The Rutter Group 2008) 12:362, p. 12 (4)-63 [in

deciding consolidation motion, court must consider whether joining actions for trial would be too
confusing or complex for a jury, and whether consolidation would adversely affect the rights of
any party].

Accordingly, the court's discretion is subject to all applicable legal principles governing
whether actions should be consolidated under Section 1048(a). Where the consolidation order is
manifestly unreasonable, it will be set aside. Westside Community for Independent Living, Inc. v.
Dhledo (1983) 33 Cal.3d 348, 355 ; Slack v. Murray (1959) 173 Cal_App.2d 558, 562-563,

In order to properly interpret and apply Section 1048(a) to the facts of these cases, this

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

In its decision in Malcalin, the Second Circuit articulated criteria commonly used by the
federal courts in evaluating whether the trial court abused its discretion in consolidating asbestos
cases for trial under Rule 42(a). Those criteria are: (1) common worksite, (2) similar occupation
(3) similar time of exposure, (4) type of disease, (5) whether injured workers are living or
deceased, (6) states of discovery in each case, (7) whether all plaintiffs are represented by the same
counsel and (8) type of cancer alleged. dd, at pp. 350-351.2. Applying the applicable criteria to

the six cases herein, the only critical factors supporting consolidation are that each case is a
4

DEFENDANT MONTEREY MECHANICAL COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165personal injury action involving living plaintiff's with the same counsel, claiming non-malignant
pleural and/or lung disease caused by asbestos, and that discovery is closed. The other factors are
simply not satisfied or are not critical to this determination. Indeed, the weight of those negative
factors virtually compels the conclusion that the consolidation order must be denied,

It is important to note that in analyzing the Malcolm factors there is no mathematical
formula and some of the Malcolm factors are to be given more weight than others. See Jn Re
Ethyl Corp., 975 8.W.2d 606, 611 (Tex. 1998). The court must determine "whether the specific
risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications
of common factual and legal issues...” Hendrix v. Raybestos-Manhattan, Inc. 776 F 2nd
1492, 1495 (11th Cir. 1985). While considerations of judicial economy are a factor,
"{clonsiderations of convenience and economy must yield to the paramount concern for a fair and
impartial trial." Johnson v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir.).

The Malcolm factors are a tool designed to assist courts in determining if the consolidation
of claims is likely to prejudice or confuse the jury. In some cases, the probability that prejudice or
confusion will result may be apparent when only one factor is examined. It may be that the number
and/or diversity of worksites, for example, would create such confusion that it would be an abuse
of discretion to consolidate. In other cases, no single factor may clearly indicate that prejudice or
confusion is probable, but when the evidence that will be presented is considered in the aggregate,
the cumulative effect would result in an unacceptably high risk of prejudice or juror confusion. In
the final analysis, the dominant consideration in every consolidation is whether the trial will be fair
and impartial to all parties. See Ju Re Ethyl Corp., 975 S.W.2d 606, 614 (Tex. 1998). Certainly
some Malcolm factors are more important than others, For example, the status of discovery and
whether the plaintiffs are represented by the same counsel have been considered far less important
than the other considerations identified in the Malcolm case. See In Re Repetitive Stress Injury
Utig., 11 F.3d 368, 374 (2d Cir.1993).

Common Work Sites And Similar Times of Exposure:

Plaintiffs generically state that all the cases involve “asbestos containing products in

refineries and at industrial sites” thus claiming to satisfy all the Afalcolm factors. In their moving
5

DEFENDANT MONTEREY MECHANICAL COMPANY'S OPPOSITION TO PLAINTIFES’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165documents, however, plaintiffs fail to provide any specific or detailed evidence of common work
sites that the plaintiffs share, but rather, offer generalized statements regarding the similar pes of
work sites in common. While Monterey Mechanical concedes that Mr. Pontino shares one
common worksite with five of the six plaintiffs (Standard Oil), according to plaintiffs’ own
exhibits attached to their moving documents, the plaintiffs never worked at Standard Oil

contemporaneously.' In fact, Mr. Pontino worked for only two weeks at the Standard Oil facility

in 1981. Furthermore, the Standard Oil refinery covers acres of land and contains numerous
“units.” Refineries are also continuously maintained, modernized and reconfigured. It would be
mere speculation to assume that the circumstances of any one of the plaintiffs’ exposures at these
sites occurred under sufficiently similar conditions, particularly as, for the most part, they were in
different trades. As to this criteria, plaintiffs have failed to show the similarity of worksite
exposures or how a jury would handle plaintiffs’ divergent testimony regarding their work at the
same “worksite” in different decades, for different trades, for different employers, and in different
areas of the facility. There is simply insufficient commonality to these plaintiffs’ worksites or
timeframe to find any similarity — even at Standard Oil.

Similar Occupations.

Once again, in each of the six cases the jury will be confronted with plaintiffs in
different trades, with different job duties and different exposures to asbestos from a wide variety of
products and modalities. Plaintiffs’ motion completely ignores the differing occupations of each
of the plaintiffs in this grouping. Mr. Pontino was a plumber/ pipefitter/welder. Nowhere in
plaintiffs’ moving papers do they identify what types of job duties each of the plaintiffs had. As
such, what plaintiffs fail to address in their moving papers is that the job duties of a pipefitter
(Pontino and DeCarlo) are vastly different that that of a laborer (Greely), boilermaker (Snow),

equipment operator/ drywaller/ carpenter (Husband) and machinist (Sowels). Given the differences

' Plaintiffs, Husband, DeCarlo, Pontino, Snow and Greely all worked at Standard Oil at different
times.

6

DEFENDANT MONTEREY MECHANICAL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165in plaintiffs’ trades, job descriptions, and duties, some may have had more intensive exposure to
asbestos than others.

Decisions that have applied the Malcolm factors indicate that a disparity in occupations
weighs against consolidation. See Malcolm, 995 F.2d at 351-352. If the nature and extent of
exposure qualitatively varied amongst the different plaintiffs, this would be significant in
determining whether the Malcoim factors have been satisfied. However, plaintiffs have failed to
inform the court or defendants as to the plaintiffs’ various occupational duties and descriptions and
whether these various occupations resulted in differing exposure levels. Plaintiffs do not even
attempt to resolve these inconsistencies regarding plaintiffs’ varied occupations. The duties and
responsibilities of a "plumber/pipefitter" vary dramatically at different jobsites. For example, a
plumber working at an oil refinery or an industrial site will have substantially different asbestos
exposures than a machinist, laborer or equipment operator working at a commercial site, Navy
shipyard, or chemical plant. Plaintiffs fail to distinguish the ostensibly different occupations, job
duties and job responsibilities for each of the plaintiffs.

Type of Disease/Cancer

In each of the six cases at issue, the plaintiff claims that he has a non-malignant pleural
and/or lung disease. However, each plaintiff has a widely different smoking history which would
have a variable causal effect regarding the plaintiff's life expectancy (particularly as to those
diagnosed with emphysema and/or COPD), and the synergistic effect of smoking and asbestos
exposure in the possibility of developing lung cancer.

Living or Deceased

Each case is a living plaintiff claiming personal injury.

Status of Discovery/Legal Representation

All six plaintiffs are represented by the Brayton¢Purcell law firm, and plaintiffs assert that
discovery is closed in all six cases. However, many courts have considered the status of discovery
and whether the plaintiffs are represented by the same counsel as far less important than the other
considerations identified in the Malcolm case. See In Re Repetitive Stress Injury Uiig., 11 F.3d

368, 374 (2d Cir. 1993). Furthermore, stipulations among the various parties as to the depositions
7

DEFENDANT MONTEREY MECHANICAL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES ~ CASE NO. CGC-09-275165Co mW IN DY BP

of expert witness in each of these cases may have the ultimate impact of demonstrating that
discovery is, in fact, not closed.

B. Plaintiffs’ Proposed Consolidation of Brayton Group 594 Will Lead to
Prejudice against Monterey Mechanical

The goal of consolidation is to enhance trial court efficiency. However, such efficiency
should not be achieved at the expense of 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. (C.C.P. § 1048) Todd-Stenberg v. DB/kon
Shield Claimants Trust (1996) 48 Cal. App.4th 976, 978-979 ; Fellner v. Steinbawm (1952) 132
Cal.App.2d 509, 511; Judd Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867, Weil
& Brown, Cal.Prac.Guide: Civ, Proc, Before Trial (The Rutter Group 2008) #12:362, p. 12()-63.)

In addition to the foregoing, trying six personal injury cases against Monterey Mechanical,
in which Monterey Mechanical is only a defendant in the Pontino case, guarantees that Monterey
Mechanical’s defenses at trial will be prejudiced. Monterey Mechanical intends to rely, at least in
part, upon a defense that the amount of asbestos for which it is allegedly liable is so small in
comparison with more extensive and more toxic forms of asbestos experienced by Mr. Pontino
through his own work and the work of other third parties, by certain types of thermal insulation
and high pressure asbestos cement pipe, that Monterey Mechanical’s work would not constitute a
substantial factor in the causation of plaintiff's alleged disease. But defending one case during a
trial of six separate cases makes a low or no-dose defense extremely difficult to present.
Notwithstanding differences in the duration and intensity of asbestos exposure among the cases,
there is a real risk that if the jury believes liability is established in one case, there will be a
powerful impetus to find liability in all six cases even if the evidence, fairly evaluated, would not
have resulted in a plaintiff's verdict in separate trials.

Consolidation for trial of all six cases in Brayton Group 594 must be avoided because it
will create a substantial danger of inconsistent adjudications and juror confusion, both of which
will result in prejudice against Monterey Mechanical. First, the unavoidable complexity that will
arise from trying multiple separate cases within the group at the same time will cause substantial

8

DEFENDANT MONTEREY MECHANICAL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165jury confusion; second, consolidating all six cases for trial will prevent Monterey Mechanical from
effectively utilizing the sophisticated user and state of the art defenses, and third, plaintiffs have
failed to satisfy the Malcolm criteria and therefore C.C.P. § 1048, to the significant prejudice of
Monterey Mechanical. Plaintiffs in this instance have failed to make their prerequisite showing
and, accordingly, this Court should deny consolidation.

1 Consolidation Will Cause Jury Confusion

Consolidation of ail cases in Brayton Group 594 with different questions of fact and law
will require a jury to keep track of different testimonies and allegations for each potential
wrongdoer in each case. Here, the plaintiffs to be consolidated with Mr. Pontino have extensive
and serious health problems, from which Mr. Pontino, luckily, is free. Plaintiffs Husband and
Snow both have smoking-related COPD; plaintiffs Sowels and Greely both have heart disease; and
Mr. Greely also has prostate cancer. Mr. Sowels’ life expectancy is only to 2013 ~ one year from
trial - based on his heart condition; and Mr. Greely’s life expectancy is to 2019 for reasons
unrelated to asbestos exposure. Two of the five plaintiffs have diabetes, and four are classified as
obese. Mr. Pontino has none of these medical issues, and thus the jury will have to listen to
testimony regarding a series of health and medical conditions which Mr. Pontino does not share.
Requiring a jury to compare the varied medical histories and each case’s lay and expert witness
testimony is a difficult, complicated and confusing task.

Furthermore, on the subject of damages, the jury will be equally challenged to fairly and
separately evaluate the claims of the six individual plaintiffs based on the facts of each individual
case and none other. Each case will feature different economic damage claims. In an ideal world,
all these overlapping claims could be separately handled by the jury. In practicality, however,
juries simply will hard put to keep all of these exposures, defendants, work histories, medical
histories, state of the art evidence, and defenses in these six different cases separate. A fair trial for
Monterey Mechanical simply cannot occur under these circumstances.

2. “State of the Art” Defense.
Consolidation of all cases within Brayton Group 594 for trial will also prejudice Monterey

Mechanical as to its ability to present a “state of the art” defense. In order to present a successful
Pp

DEFENDANT MONTEREY MECHANICAL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165D&B I DH WwW

“state of the art” defense, a defendant must show that it operated in accordance with the strategy of
technology at the time and in compliance with the industry or government standard enforced at the
time of the plaintiff's injury. Cases with disparate times of exposure, worksites, occupations, and
types of defendants result in the presentation of evidence regarding standards and compliance at
multiple worksites, during different times, for different employers. This is exacerbated in this
instance since the jurors will have to hear state of the art evidence covering multiple years for
multiple defendants regarding different work sites. In addition, Monterey Mechanical will have to
present evidence as to direct versus bystander exposure, especially as to exposure from mechanical
contractors. Testimony regarding what was known in the context of direct exposure, which would
be presented in some cases and not others, may weaken Monterey Mechanical’s defense and
prevent it from having a fair and impartial trial.

3. “Sophisticated User” Defense.

The “sophisticated user” defense is an important tool by defendants involved in toxic tort
litigation. Under this defense, where the end user of a product knows or has reason to know of the
hazards associated with the product, the manufacturer’s duty to warn is discharged. Billsborrow v.
Dow Chemical, U.S.A. 177 A.D.2d (N.Y.App.Div. 1992). A plaintiff may be expected to know the
hazards of a product due to his training, employment or other experience. Johnson v. American
Standard Inc. (2005) 133 Cal.App.4" 1996. In analyzing the sophisticated user defense, the courts
typically employ a fact intensive, case-by-case analysis of the plaintiff's knowledge of the risks
associated with the product, the manufacturer’s reliance upon such knowledge and the
appropriateness of such reliance. This will require the jurors to consider different evidence for
each individual plaintiff and will result in an unnecessarily lengthy trial, jury confusion and
prejudice against Monterey Mechanical, who is not a manufacturer of products, but rather a
contractor.

Cc. Should the Court Be Inclined to Consolidate Some Cases for Trial, Monterey
Mechanical Requests that Poxtino Be Consolidated with DeCarlo Only.

In spite of the above arguments, should the Court be inclined to consolidate some cases in
Brayton Group 594 for trial, Monterey Mechanical requests that the Pontino and DeCarlo cases be

10

DEFENDANT MONTEREY MECHANICAL COMPANY'S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO. CGC-09-275165Co Om WY DW BR BW Ye

NN BN RD NN RD ee
oN A A BR Ye YB = SS Oo em Be An aA RB oD SS S| Ss

consolidated as a sub-group. Mr. DeCarlo and Mr. Pontino are the only two plaintiffs in Brayton
Group 594 that share a common occupation - both were pipefitters/plumbers and they both have
one worksite in common (Standard Oil), In addition, both plaintiffs allege asbestos exposure from
automobile repair work. Additionally, Mr. Pontino and Mr. DeCarlo do not share similar medical
conditions with the other four plaintiffs in this group (e.g., diabetes, COPD, heart failure, heart
disease), Of the cases remaining in Brayton Group 594, only Pontino and DeCarlo share the most
in common pursuant to the Malcolm factors. Consequently, should this Court be inclined to grant
plaintiffs’ motion seeking consolidation, Monterey Mechanical requests that only DeCarlo be
consolidated with Pontino for trial.

Tv. CONCLUSION

Consolidation is inappropriate in light of the dissimilarities between plaintiffs’ cases
when examined in light of the factors delineated in Malcolm. Furthermore, potential jury
confusion and prejudice to defendant Monterey Mechanical far outweigh any judicial efficiency
that may be gained through consolidation, For the foregoing reasons, defendant Monterey
Mechanical respectfully requests that this Court deny plaintiffs’ Motion to Consolidate.
However, should the Court be inclined to grant plaintiffs’ motion, Monterey Mechanical requests

consolidation of the Pontino and DeCarlo cases for the reasons stated above.

Dated: April 20, 2012 VASQUEZ ESTRADA &C N AY LP
By: MAE aby iA 4 cig
MIRIAM P MAXWELL/
NILU K. MAJD
Attorneys for Defendant

MONTEREY MECHANICAL COMPANY

ul

DEFENDANT MONTEREY MECHANICAL COMPANY’S OPPOSITION TO PLAINTIFFS’ MOTION TO
CONSOLIDATE FOR TRIAL LIVING ASBESTOSIS/ BRAYTON CASES WITH SIGNIFICANT REFINERY
AND INDUSTRIAL EXPOSURES - CASE NO, CGC-09-275165