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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                DRIATTEMADACIN

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Oct-20-2011 4:23 pm

Case Number: CGC-09-275098
Filing Date: Oct-20-2011 4:20
Juke Box: 001 Image: 03359419
ORDER

CHARLES HUSBAND VS. ASBESTOS DEFENDANTS {B*P) AS REFLECTED ON EXHIB

001003359419

Instructions:
Please place this sheet on top of the document to be scanned,BRAYTON@PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

POBOX $169
ROVATO, CALIFORNIA 94948-6169

(ALS) 898-1553

oP IAD HD Bw Hw =

BS RRP RRM w eee eee LLL
SNA MY FEN HF SSSR RFRERTB IS

ALAN R. BRAYTON, ESQ, 8.B. #73685
DAVID R, DONADIO, BSG, S84 i436 L
JENNIFER C. BENADERET. ESQ., 8.B. 3 or Cour
BRAYTONSPURCELL LLP ‘San FrancfscoCounty Super
Attomeys at Law ICT 40 Zui

222 Rush Landing Road

P.O. Box 6169 CLERKOF THECOURT
Novato, California 94948-6169 BY: se
(415) 898-1555 = Deputy Cleric

Tentative Ruling Contest Email: contestasbestosTR@braytoniaw.com

Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHARLES HUSBAND. ASBESTOS
No. CGC-09-275098
Plaintiff,

vs. INTERNATIONAL CORPORATION’S
MOTION FOR SUMMARY JUDGMENT

| ORDER DENYING DEFENDANT YORK
)
ASBESTOS DEFENDANTS (B*P) )

Date: October 20, 2011

Time: 9:45 a.m.

Dept: 503, Hon, Teri L. Jackson
Trial Date: November 14, 2011
Action Filed: March 2, 2009

Defendant YORK INTERNATIONAL CORPORATION’s Motion for Summary
Judgment came on regularly for hearing on October 20, 2011, in Department 503, of the above-
captioned Couri. Plaintiff and defendant, YORK INTERNATIONAL CORPORATION,
appeared by their counsel of record,

Having considered all papers and cvidence submitted, and inferences reasonably
deducible therefrom, the Court determines that per Tentative Tuling: Denied. Defendant failed
to sustain its burden of production that plaintiff does not now Possess and cannot
reasonably obtain evidence that he was exposed to asbestos-containing products or
materials attributable to defendant, Plaintiffs deposition testimony and responses to
defendant’s special interrogatories preclude defendant from successfully invoking the

factually devoid prong of Aguilar. Specifically, plaintiff's special interrogatory responses

Eafqured 9581 Splftend-VORKTN and 1 JCB
ORDER DENYING DEFENDANT YORK INTERNATIONAL CORPOR. 'ATION’S MOTION FOR SUMMARY JUDGMENTSoS 2 RBI HH BR ww

identified Steve Pelz as a person with knowledge in support of plaintiff's contentions and
stated what knowledge he had and defendant’s moving papers failed to demonstrate that
he had no such knowledge. Plaintiff's responses also identified and summarized
defendant's responses to General Order 129 interrogatories and the deposition testimony of
defendant’s corporate representative. The responses are not factually devoid and
defendant’s moving papers failed to address any of this information or demonstrate that
the information cited and discussed does not support plaintiff's contentions against
defendant. If a hearing is requested, it will be at 9:45am in Dept. 503, not 9:30am in Dept.
220. A court reporter will not be provided by the court. If a court reporter is needed, the
partics must meet and confer to agree on only one court reporter for any reperted matter
in this case.

INTIFF'S DISPUTED
MATERIAL FACTS SUPPORTING EVIDENCE

le 1950s through 1966, 1, Declaration of Charles Husband,
ND worked for his Us. 2, aydched as Exhibit A, to the
i eclargtton of Jennifer C. Benaderet.

CHARLES HU!
father’s business,
performing maintenatse to air-conditioning
compressors on the weekends.

2. Declaration of Charles Husband,
pre. 3, attached as Exhibit A, to the
eclaration of Jennifer C. Benaderet.

2. For this entire span betwebdy the Jate
1950s ihrough 1966, plaintiff performed
maintenance work to compressorNor
approximately 15-26 hours per weckend at,
his father’s shop on 8-10 compressors\pe
day, depending on the compressors he
working on because some were mor
difficult to tear down than others.

3. Declaration of Charles Husband.
(No. 4, attached as Exhibit A, to the

3. Approximate! 30% of the g6mpressors
that Plaintiff worked on duri gp this period
A

werc YORK INTERNATI eclaration of Jennifer C. Benaderet;
CORPORATION (“YORK”)-brand RK 's Responses to San Francisco
compressors. Additionglly, 15-20% were Cotgity General Order 129 interrogatories,
FRICK-brand compreg$ors, which dated October 16, 1997, Page 4, Line 27-
defendant admits wa: ¥ formerly a Page 5 Line 1, Attached as Exhibit F. to
competitor, and acqyired by YORK. the Declaration of Jennifer C. Benaderet.

Plaintiff identified fhese compressors as
YORK and FRICK because the company
name was written on an aluminum or brass
name plate on the side of the compressors.

af

Klrjueed 0581 3eASord- YORK aps 2 Icg

ORDER DENYING DEFENDANT YORK INTERNATIONAL. CORPORATICIN'S MOTION FOR SUMMARY JUIDGMENT4, The tear-down process for both the
YORK and FRICK compressors consisted
of washing, cleaning, and disassembling the
compressor in order to reach the
malfunctioning component part(s), and
scraping off asbestos-containing gaskets on
the unil every time he worked on a
compressor. On YORK electric motors,
plaintiff sometimes had 1o cut windings and
strips of insulation out in order to rewind
the motor.

5. It took plaintiff approximately 45
minutes to one hour to perform one tear-
down on both a YORK- and a FRICK-
brand compressor. This was dependant
upon how difficult it was to vemove each
asbesios-containing gasket from the
compressor, During the disassembling
process, some of the gaskets would fall off.
The ones that were stuck on the compressor
had to be scraped off with a hammer and
chisel or wire brush afer it was submerged
ina cleaning solvent and air blown dry.
Each gasket that was stuck took 15 to'20
minutes or more each to remove. This
occurred on about 50% of the compressors
that plaintiff worked on. The submerging
process did not penetrate the gaskets
ecause they would be so burnt onto the,
compressor that they werc like stone
had to be chipped off,
6. Ofall compressors that came jf for
repair to Whalen Engincering shop,
including YORK- and FRIC
compressors, which plaintiff personally
disassembled and remoyed/asbestos-
containing gaskets from//95% of them had
original manufacturer gquipment in place,
including the ashest -coniaining gaskets
that he had to scrap¢off, Plaintiff knew
this becausc they Had never been rebuilt or
repaired previously.

7. Plaintiff neyer wore a respirator or any
type of breathing equipment while
performing this work at Whalen
Engineering.

8. YORK’s responses to San Francisco
County General Order 129 Interrogatories,
dated October 16, 1997, admit that YORK
sold equipment, some of which contained
asbestos-containing gaskets manufactured

KAlnjureh34 Siphon YORKIN. nd

4. Declaration of Charles Husband,
No. 3, attached as Exhihii A, to the
eclaration of Jennifer C. Benaderet.

5. Declaration of Charles Husbahd,
Ne. 6, attachedas Exhibit A, to the
eclaration of Jennifer C. Benaderet.

6. Declaration of Charles Hushand
pe. 7, attached as Exhibit A, to the
eclaration of Jennifer C. Benaderet,

7. Declaration of Charles Husband.
Ne. &, attached as Exhibit A, to the
eclaration of Jennifer C. Benaderet,

8. YORK’s Responses io San Francisco
County General Order 129 Interrogatories,
dated October 16, 1997, Page 5, Lines 9-
15, Attached as Exhibit F. to the
Declaration of Jennifer C. Benaderet,

JcR

3
ORDER DENYING DEFENDANT YORK INTERNATIONAL CORPORATION'S MOTION FOR SUMMARY JUDGMENTCP YD wh & wD a!

BY8RRRRNRYMv ee eee ent L,
So OR MF PY NF SS eT RADE SH xo es

and purchased from Durabla, Garlock and
Johns-Manviile.

9. Additionally, in the deposition of Fred
Ziffer, in his capacity as corporate
representative for YORK dated
December 15, 2005, he admits that the
gaskets installed on new YORK-brand
compressors came from three preferred
vendors: Durabla, Garlock, and Jolins-
Manville. He also admits that these gaskets
contained asbestos in the 1960s, 1970s and
Ss.

10. Plaintiff's expert Charles Ay opines
that based on his asbestos training,
education, and expericnce in the trades as
an insulator, and personal testing and
review of the literature, and carcer in
asbestos detection and abatemeni, it is his
opinion that the gaskets scraped and
removed from YORK and FRICK
compressors, as described by CHARLES
HUSBAND, more likely than not were
asbestos-containing materials.

11. Additionally, Charles Ay opines that
based on his ashe:

This is especially so given that

Mr. HUSBAND did not wear 4 mask or any
breathing protection when heperformed
this work on YORK and F cK
compressors.

12, Plaintiff's expert Merman Bruch, M_D.,
opines that all asbcsigs-related diseases,
asbestosis, cancer, i
total dose-respon
a person, such as the plaintiff, contracts an
asbestos-related disease, such as asbestosis,
cancer, or pieural disease, after exposutes to
nuuitiple asbestos-containing products,
given sufficient minimum latency, each
exposure coniributes to the persons’ total

Eitipred\b0se | SpAaril- YORK Mngt

9. Deposition transcript of Fred Ziffer,
dated December 15, 2005 in Paul Sykes and
Bonnie Sykes, v_American Standard, ei al.
Cause No, 20035-11196, in the District
Court of Harris County, Texas, Page 5,

Line 19-21; Page 66, Line 20 - Page 67,
Line 8; Page 76, Line 17 - Page 78, Line 1,
Attached as Exhibit D, to the Declaration of
Jennifer C. Benaderei.

‘harles Ay, § No. 22,
attached as Exhifit B, to the Declaration of
Jennifer C. Bendderet.

11. Declaration of Charles Ay, J.No. 23,
attached as Exhibit B, to the Declaration of
Jennifer C. Benaderet.

12. Declaration of Herman Bruch, MD.
No. 13, attached as Exhibit C. to the
eclaration of Jennifer C. Benaderet.

JcB

4
ORDER DENYING DEFENDANT YORK INTERNATIONAL CORPORATION'S MOTION FOR SUMMARY JUDGMENT1} dose. Thus, all the asbestos to which a

erson is exposed up to about 15 years
before clinical diagnosis contributed to
cause his or her asbestos-related diseases.

13, Additionally, Dr. Bruch opines that 13. Declaration of Herman Bruch, MD.
ihere is no way of predicting a level of No. 14, attached as Exhibit C, to the
asbestos cxposure timat is safe for any Declaration of Jennifer C. Benaderet,

2

3

4

5] particular individual. tdividual
physiological responses tary. Only when a

6]| person does develop a disedge is it possible

7

8

9

to say that the level of asbesits that person
was éxposed to caused the disease. There is
no scientific basis upon which a
look back and exclude some expos
include other exposures as bein|
Telated to the ase

the plaintiff has incurred.

14. Declaration of Herman Bruch, M.D.,
he. 16-17, attached as Exhibit C, to the
eclaration of Jennifer C. Benaderet.

14. Dr. Bruch further opines that to a
U || reasonable degree of scientific certai
based on the facts that exist in this

enyair levels, including
those attributable tadefendant YORK
15 | would, more like fy than not, have been a
substantial fgefor in causing him to suffer
16] from his gs¥estos related diseases.

PF 15. Ruling in Strickland v_ Advocate Minds,
exposure to asbestos was a substantial Los Angeles County Superior Court Case,
factor in causing plaintiff's asbestos-related No. BC379088, Atiached as Exhibit G,

disease is a matter of faci, not of law. the Declaration of Jennifer C. Bengderct.

IT IS HEREBY ORDERED that defendant YORK INTERNATIONAL

21 | CORPORATION’s Motion for Summary Judgment is DENIED.
221) Dated:

KTourednasatSplitod-YORKMsupd 5 Ica
ORDER DENYING DEFENDANT YORK INTI ERNATIONAL CORPORATION'S MOTION FOR SUMMARY JUDGMENT