Preview
NOVATO, CALIFORNIA 94948-6169
oem NY KD he BY
10
ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., 8.B. #154436
JENNIFER C. BENADERET, ESQ., 8.B. #269953 ELECTRONICALLY
BRAYTON&PURCELL LLP
Attorneys at Law sopehr IL EDP
5 Rush Fanding Road County of San Francisco ‘
Novato, California 94948-6169 SEP 29 2011
(415) 898-1555 Clerk of the Court
Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com BY: WILLIAM TRUPEK
Deputy Clerk
Attomeys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ASBESTOS
No. CGC-09-275098
CHARLES HUSBAND,
Plaintiff,
PLAINTIFF'S RESPONSE TO
DEFENDANT YORK INTERNATIONAL
CORPORATION’S SEPARATE
STATEMENT OF UNDISPUTED FACTS
vs.
ASBESTOS DEFENDANTS (BP)
eee
Date: October 13, 2011
Time: 9:30 a.m.
Dept: 220, Hon. Harold E. Kahn
Trial Date: November 14, 2011
Action Filed: March 2, 2009
Plaintiff hereby submits the following responses to defendant YORK INTERNATIONAL
CORPORATION’s Separate Statement of Undisputed Facts in Support of Motion for Summary
Judgment with reference to plaintiff's supporting evidence disputing such statements.
UNDISPUTED MATERIAL FACTS AND
ALLEGED SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE/EVIDENCE
1. Plaintiff Charles Husband (“Plaintiff”) 1. Undisputed.
brings this personal injury action arising out
of Plaintiff's alleged exposure to a plethora
of asbestos-containing products.
Plaintiffs Complaint for Personal Injury —
Asbestos (“Complaint”) attached to Index
of Documentary Evidence (“Index”) as
Exhibit A.
KSinjured O5615pidirss-VORKIN wiped 1 JCB
PLAINTIFF'S RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
FACTCo em YW KD hw BR YY
10
2. Plaintiff filed an Amended Complaint on
September 23, 2010, designating York as
DOE 13.
Plaintiff's Amended Complaint, attached to
Index as Exhibit B.
3. Plaintiff alleges the following causes of
action against York: Negligence, Strict
Liability, False Representation, Premises
Owner/Contractor Liability and Punitive
Damages.
Complaint, attached to the Index as Exhibit
A.
4, York propounded Special Interrogatories
and Requests for Production of Documents
upon Plaintiff seeking all facts, witnesses,
documents and corroborating evidence
supporting his claims against York.
Defendant York International Corporation’s
Special Interrogatories to Plaintiff, Set One,
attached to Index as Exhibit C; Defendant
York International Corporation’s Request
for Production of Documents to Plaintiff,
Set One, attached to Index as Exhibit D.
5. In his responses to York’s Special
interrogatories, Plaintiff alleges that he
“performed maintenance and repairs to
various commercial refrigeration
compressors” at Whelen Engineering in
Emeryville, CA from the early 1960s to the
mid-1960s.
Plaintiff Charles Husband’s Response to
Defendant York International Corporation’s
Special Interrogatories, Set One, at 2:12-15,
attached to Index as Exhibit E.
6. Plaintiff further alleges that the “[t]wo
brands of compressors plaintiff repaired
were Frick and York
International...Plaintiff’s repairs...required
him to open them up and remove all
asbestos containing gaskets.
Plaintiff Charles Husband’s Response to
Defendant York International Corporation’s
Special Interrogatories, Set One at 2:15-17,
attached to Index as Exhibit E.
dif
Kinjuredi OSS 1S pidits-YORKIN pd
2
2. Undisputed.
3. Undisputed.
4, Undisputed.
5. Undisputed.
6. Undisputed.
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
7. Plaintiff further alleges that the
asbestos-containing gaskets removed from
the compressors were original.
Plaintiff Charles Husband’s Response to
Defendant York International Corporation’s
Special Interrogatories, Set One at 2:18,
attached to Index as Exhibit E.
8. Plaintiffs responses to York’s Special
interrogatories do not identify any witnesses
with the requested necessary contact
information specifically linking York to
Plaintiff's exposure to asbestos.
Plaintiff ‘s Response to Defendant York
International Corporation's Special
Interrogatories, Set One, at 6:1-9,
10:25-11:4, 13:27-14:6, 16:22-25,
18:11-14, attached to Index as Exhibit E.
9. Plaintiff provided vague and evasive
responses to York’s Request for Production
of Documents, which essentially identified
the following documents allegedly linking
York to Plaintiff's alleged exposure to
asbestos: employment records, Plaintiff's
complaint, standard interrogatory responses,
deposition transcripts, and GO 129
responses.
Plaintiff's Response to York’s Request for
Kinjuredi OSS 1S pidits-YORKIN pd
3
7. Undisputed.
8. Disputed. Misleading. Incomplete
recitation of facts.
Plaintiff's responses to York’s Special
Interrogatories state, in part, the following
information specifically linking YORK to
plaintiff's exposure to asbestos:
“Steve Pelz, P.O. Box 353, Joshua Tree,
California 92252. c/o Brayton Purcell,
worked with plaintiff at his father’s
compressor shop during the 1960s. Mr. Pelz
and plaintiff both worked on various
refrigeration compressors at this shop,
including compressors manufacture: by
YORK INTERNATIONAL, Mr. Pelz
could identify these refrigeration.
compressors as YORK INTERNATIONAL
compressors since the company name was
written on the compressor itself. Mr. Pelz
plaintiff both cleaned the heads on these
YORK INTERNATIONAL refrigeration
compressors. This required them to remove
and Scrape off asbestos-containing Garlock-
type gaskets. They both used scrapers and
grinders to scrape off the asbestos-
containing gasket residue from the YORK
INTERNATIONAL compressors, This
work created visible dust which they both
inhaled.” (Plaintiff ‘s Response to
Defendant York International
Corporation's Special Interrogatories, Set
One, at 2:21-26, attached to defendant's
Index as Exhibit E.)
9. Disputed. Misleading. Incomplete
recitation of facts.
Plaintiffs responses to YORK’s Request
for Production of Documents, identify the
following documents, which directly link
YORK to his exposure to asbestos:
“Plaintiff identifies his employment records
and medical records, previously Produced to
Designated Defense “Counsel an equally
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
Production of Documents, Set One, at
1:23-3:28, attached to Index as Exhibit F.
Kinjuredi OSS 1S pidits-YORKIN pd
4
available to defendant. Plaintiff believes
defendant is in possession of these
documents.
Plaintiff further identifies his
complaint in this action and all exhibits
attached thereto. Plaintiff believes
defendant is in possession of these
documents.
Plaintiff further identifies his
responses in this case to Defendants’
Standard Interrogatories to Plaintiffs
(Personal Injury), Sets One and Two.
Plaintiff believes defendant is in possession
of these documents.
Plaintiff identifies the transcripts of
all depositions taken in this action, and all
attached exhibits, if any. Plaintiff
identifies plaintiff’s own trial
preservation and deposition transcripts
and all exhibits, if any attached thereto,
commencing on February 2, 2010 and all
subsequent dates. These transcripts are
reported by and available from Aiken &
Welch, One Kaiser Plaza, Suite 505,
Oakland, California. Plaintiff believes
defendant is in possession of these
documents.
Plaintiff further identifies the
deposition transcripts of plaintiff in the
matter, Steve Pelz v. Asbestos
Defendants, San Francisco Court Case
No. 440228, commencing on November
29, 2007 and all subsequent dates. These
transcripts are reported by and available
from Aiken & Welch, One Kaiser Plaza,
Suite 505, Oakland, California. Plaintiff
believes defendant is in possession of these
documents.
Plaintiff further identifies the
deposition transcripts of Steve Pelz in the
matter, Steve Pelz v. Asbestos
Defendants, San Francisco Court Case
No. 440228, commencing on May 3, 2006
and all subsequent dates. These transcripts
are reported by and available from Aiken &
Welch, One Kaiser Plaza, Suite 505,
Oakland, California. Plaintiff believes
defendant is in possession of these
documents.
Plaintiff further identifies
defendant’s responses to Standard
Interrogatories pursuant to San
Francisco General Order No. 129
including but not limited to that dated
10/16/97 by Walter Rundin, verified
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCO OW YN DR A BY De
RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS
KeAinjuredhbOS815.
1s5-YORKIN wp
10/16/97 by Wayne Naylor, and served
10/16/97 by Virginia Gaulter,
Plaintiff further identifies the
transcript and all exhibits attached
thereto of the Person(s) Most
Knowledgeable and Custodian(s) of
Records of YORK INTERNATIONAL
CORPORATION in the matter of Paul
Sykes and Bonnie Sykes v. American
Standard, et al., filed in the District
Court of Harris County Texas, Case
No. 2005-11196, taken on December 15,
2005, reported by Henjum Goucher
Reporting Services. Plaintiff believes
defendant is in possession of these
documents.
Plaintiff further identifies all the
papers, photographs, films, recordings,
memoranda, books, records, pamphiets,
circulars, handbooks, manuals, periodicals,
files, envelopes, notices, instructions,
transcripts, notes, telex messages,
communications (including reports, notes,
notation and memoranda of telephone
conversations and conferences, electronic
mail, minutes, transcriptions,
correspondence, etc.), writings, letters,
telegrams, correspondence, notes of
meetings or of conversations either in
writing or upon any mechanical or
electronic devices, notes, accountants’
statements or summaries, reports, invoices,
canceled checks, check stubs receipts, bank
statements, diaries, desk calendars,
appointment books, payment records,
telephone bills in defendant’s constructive
possession, custody, care or control relating
to plaintiff and the jobsites at which he
worked. Plaintiff believes defendant is in
possession of these documents.
Plaintiff further identifies all of the
agreements and contracts between
defendant and all general contractors and
sub-contractors present at the jobsites where
plaintiff worked. Plaintiff believes
defendant is in possession of these
documents.
Plaintiff further identifies all of the
labeling and packaging materials for all of
the asbestos-containing materials and
equipment manufactured by, sold by,
supplied by, and/or in the control of
defendant used at the jobsites where
plaintiff worked. Plaintiff believes
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCO OW YN DR A BY De
RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS
KeAinjuredhbOS815.
1s5-YORKIN wp
defendant is in possession of these
documents.
Plaintiff further identifies numerous
articles and studies relating to the health
hazards associated with exposure to asbestos
which have appeared in medical and
scientific literature since the turn of the
twentieth century and have also been
summarized in various publications.
Plaintiff identifies texts that contain
summaries and/or bibliographies of asbestos-
related disease:
Asbestos: Medical and Legal
Aspects,
Barry [. Castleman, Prentice-Hall
Law and Business, 1990
Sourcebook on Asbestos
Disease, Medical, Legal, and
Engineering Aspects.
George A. Peters and Barbara J.
Peters, Garland STPM Press
Vol. 1, 1980, Vol. 2, 1986
Pathology of Asbestos-Associated.
Diseases, Second Edition,
Victor Roggli, Tim Oury, and
Thomas Sporn, Springer-Verlag, 2004
Plaintiff is in possession of these texts and
will make them available for defendant’s
teview. Due to the limitations of copyright
law, plaintiff cannot provide copies of these
texts to defendant.
Plaintiff further identifies General
Industry Safety Orders promulgated pursuant
to California Labor Code § 6400, et seq.,
and California Administrative Code under
the California Department of Industrial
Relations, Division of Industrial Safety,
including, but not limited to, Title VIL,
Group 9 (Control of Hazardous Substances),
Article 81, §§ 4150, 4104-4108, and
Threshold Limit Values as documented for
asbestos and other toxic substances under
Appendix A, Table I of said Safety Orders.
Plaintiff also identifies NESHAP Asbestos
Regulations (National Emission Standards
for Hazardous Air Pollutants) which are
found at Code of Federal Regulations, Title
40, Chapter |, Subchapter C, Part 61,
Subpart M, published under the Federal
Clean Air Act of 1970, 42 U.S.C.A.
¥7412(by A) and 42 US.C.A.
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCO OW YN DR A BY De
RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
eo WA A PB OH se So we IY DR mA BW BW ee oS
10, At deposition, Plaintiff testified that his
job at Whelen was to disassemble
compressors, submerge them in a solvent,
K:Alnjured F058 Sipidies-YORKIN wpe
§ 7412(b)(1)(B). Plaintiff also identifies
OSHA standards relating to asbestos, found
at Code of Federal Regulations, Title 29,
Chapter 17, Section 1910, et seq.; and Title
8, Section 5208 of the California OSHA
regulations pertaining to asbestos exposure.
Plaintiff incorporates by reference,
without repeating herein, all testimony from
all plaintiffs experts from all prior
similarly-situated cases.
Without limiting the scope of
defendant's liability, plaintiff contends that
defendant supplied, sold, manufactured,
and/or distributed asbestos-containing
products to plaintiff and/or to worksites
where plaintiff used said products. By 1937,
California listed asbestosis as a compensable
disease under Worker’s Compensation laws.
Numerous articles and studies relating to the
health hazards of exposure to asbestos have
appeared in medical and scientific literature
since the turn of the twentieth century and
have also been summarized in various
publications. Additionally, safety orders
have existed since the 1940s regarding the
control of asbestos dust in the workplace.
Defendant knew or reasonably should have
known of the health hazards associated with
exposure to asbestos and asbestos-containing
products prior to their distribution, sale, or
supply and failed to take available safety
precautions. Further, defendant failed to
warn plaintiff of the dangers inherent in
these products. Defendant’s conduct was
wilful, malicious, and done with a wanton
disregard for plaintiffs safety and the safety
of others.
After a reasonable and good-faith
inquiry to other persons and organization,
pursuant to C.C.P. § 2030.220(a)-(c),
plaintiff has no further information
responsive to this Request at this time.
Plaintiff's investigation and discovery are
continuing. Plaintiff expressly reserves the
tight to amend this Response pending the
outcome of plaintiffs investigation.”
(Plaintiff's Response to YORK ’s Request for
Production of Documents, Set One, at
2:27-3:28, attached to defendant's Index as
Exhibit F.)
10, Disputed. Misleading. Misstates
Plaintiff’s deposition testimony.
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
and then clean them, which involved the
removal of gasket material.
Deposition of Plaintiff Charles Husband,
dated April 18, 2011 at 73:18-74:22 at
attached to Index as Exhibit G.
1, Plaintiff disassembled an average of
fifteen or twenty compressors per week.
during the time he worked at Whelen.
Deposition of Plaintiff Charles Husband,
dated April 18, 2011 at 79:5-7, attached to
index as Exhibit G.
2. Plaintiff further testified that
approximately twenty-five or thirty percent
of the compressors were York brand
compressors and ten or fifteen percent were
Frick compressors.
Deposition of Plaintiff Charles Husband,
ated April 18, 2011 at 81:1-5, 109:13-16,
attached to Index as Exhibit G.
3. Plaintiff testified that during the entire
cleaning process, the York and Frick
compressors were submerged in solvent.
cposition of Plaintiff, dated April 18,
2011 at 99:2-19, 113:3-5, attached to Index
as Exhibit G.
Kinjuredi OSS 1S pidits-YORKIN pd
8
At deposition, plaintiff testified that the
tear-down of a compressor was like an
assembly line. He stated that to get the oil
and grease off, they used a solvent-based
material, but that was at the end of the
process. He testified that before the use of
the cleaning solvent they had to tear down
the compressors by removing the bolts and
the more easily removable gaskets. The
gaskets that were baked on from high-heat
in comparison would have to be hammered,
chiseled or scraped off with compressed air
and a wire brush later in the process.
(Deposition of Plaintiff Charles Husband,
dated April 18, 2011 at 97:24-98:13,
Attached as Exhibit E, to the Benaderet
Decl.)
11, Disputed. Misleading. Misstates
Plaintiff's deposition testimony.
Plaintiff testified that he took apart between
15-26 compressors on a weekly basis.
(Deposition of Plaintiff Charles Husband,
dated April 18, 2011 at 79:5-8, Attached as
Exhibit E, to the Benaderet Decl.)
12. Undisputed.
13. Disputed. Misleading. Incomplete
recitation of facts.
Plaintiff testified that the first step in the
process, after taking apart the
compressor, would be to immerse it in
solvent. He first had to tear down the
compressors by removing the bolts and the
more easily removable gaskets that did not
have to be hammered, chiseled or scraped
off with compressed air and a wire brush.
Additionally, plaintiff testified that gaskets
on the compressors would get so hot that
they would become hard like stone,
requiring the gaskets to be chipped off.
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
14. Plaintiff did not observe anyone in his
presence who he thought was a York
employee.
Deposition of Plaintiff Charles Husband,
dated April 18, 2011 at 104:2-5, attached to
Index as Exhibit G.
15. Plaintiff admits that the work he
performed on the York and Frick
Compressors for Whalen was the only work
he has ever performed with or around any
York or Frick equipment at any time.
Deposition of Plaintiff Charles Husband,
dated April 18, 2011 at 103:15-104:1,
118:14-17, attached to the Index as Exhibit
G; Deposition of Plaintiff Charles Husband,
dated April 19, 2011 at 187:11-19, attached
to Exhibit H.
16. By contrast, Plaintiff alleges he was
exposed toa plethora of
asbestos-containing materials during his
careers as an auto mechanic, carpenter and
equipment operator, which covered a time
period of approximately twenty-five years.
Plaintiff's Supplemental/Amended
Responses to Standard Interrogatories, Sets
One and Two, at 2:25-17:21, attached to the
Index as Exhibit I.
Kinjuredi OSS 1S pidits-YORKIN pd
9
Plaintiff stated that the solvent did not
penetrate the gaskets, it just removed the
dirt from them their exterior. He stated that
because the solvent had no real effect on the
gaskets, the baked-on gaskets still had to be
chiseled and scraped off with a wire brush.
Plaintiff testified that he had to chisel and
scrape off hardened gaskets on 50% of the
compressors he worked on, with cach taking
15-20 minutes, or longer, to remove.
(Deposition of Plaintiff Charles Husband,
dated April 18, 2011 at 79:5-8;
97:24-98:13; 99:2-19; 113:8 -24, Attached
as Exhibit E, to the Benaderet Decl.)
14. Undisputed, but irrelevant.
15. Undisputed, but irrelevant.
16. Undisputed, but irrelevant. Misleading.
From the late 1950s through 1966,
CHARLES HUSBAND worked for his
father’s business, Whalen Engineering,
performing maintenance to air conditioning
compressors on the weekends.
(Declaration of Charles Husband, § No. 2,
attached as Exhibit A, to the Declaration of
Jennifer C. Benaderet.)
For this entire span between the late 1950's
through 1966, plaintiff performed
maintenance work to compressors for
approximately 15-26 hours per weekend at
his father’s shop on 8-10 compressors per
day, depending on the compressors he was
working on because some were more
difficult to tear down. (Declaration of
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
Kinjuredi OSS 1S pidits-YORKIN pd
Charles Husband, § No. 3, attached as
Exhibit A, to the Declaration of Jennifer C.
Benaderet.}
Approximately 30% of the compressors that
Plaintiff worked on during this period were
YORK-brand compressors. Additionally,
15-20% were FRICK-brand compressors,
which defendant admits was formerly a
competitor, and acquired by YORK.
Plaintiff identified these compressors as
YORK and FRICK because the company
name was written on an aluminum or brass
name plate on the side of the compressors.
(Declaration of Charles Husband, § No. 4,
attached as Exhibit A, to the Declaration of
Jennifer C. Benaderet; YORK’s Responses
to San Francisco County General Order
129 Interrogatories, dated October 16,
1997, Page 4, Line 27-Page 5, Line I,
Attached as Exhibit F, to the Declaration of
Jennifer C. Benaderet.)
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 existing asbestos-containing
gaskets on the unit every time he worked on
a compressor. On YORK electric motors,
Plaintiff sometimes had to cut windings and
strips of insulation out in order to rewind
the motor. (Declaration of Charles
Husband, { No. 5, attached as Exhibit A, to
the Declaration of Jennifer C. Benaderet.)
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 remove each asbestos-
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 after it was submerged in a
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 because they would be
so burnt onto the compressor that they were
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
Kinjuredi OSS 1S pidits-YORKIN pd
like stone and had to be chipped off.
(Declaration of Charles Husband, § No. 6,
attached as Exhibit A, to the Declaration of
Jennifer C. Benaderet.}
Of all compressors that came in for repair to
Whalen Engineering shop, including
YORK-and FRICK-rand compressors
which plaintiff personally disassembled and
removed asbestos-containing gaskets from,
95% of them had original manufacturer
equipment in place, including the asbestes-
containing gaskets that plaintiff had to
scrape off. Plaintiff knew this because they
had never been rebuilt or repaired
previously. (Declaration of Charles
Husband, { No. 7, attached as Exhibit A, to
the Declaration of Jennifer C. Benaderet.)
Plaintiff never wore a respirator or any type
of breathing equipment while performing
this work at Whalen Engineering.
(Declaration of Charles Husband, § No. 8,
attached as Exhibit A, to the Declaration of
Jennifer C. Benaderet.)
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
and purchased from Durabla, Garlock and
Johns-Manville. (YORK 's Responses to 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.)
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 Johns-
Manville. He also admits that these gaskets
contained asbestos in the 1960s, 1970s and
1980s. (Deposition transcript of Fred
Ziffer, dated December 15, 2005 in Paul
Sykes and Bonnie Sykes, v. American
Standard, et al., Cause No. 2005-11196, 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
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
Kinjuredi OSS 1S pidits-YORKIN pd
78, Line 1, Attached as Exhibit D, to the
Declaration of Jennifer C. Benaderet.)
Plaintiff's expert Charles Ay opines that
based on his asbestos training, education,
and experience in the trades as an insulator,
and personal testing and review of the
literature, and career in asbestos detection
and abatement, 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.
(Declaration of Charles Ay, § No. 22,
attached as Exhibit B, to the Declaration of
Jennifer C. Benaderet.)
Additionally, Charles Ay opines that based
on his asbestos training, education, and
experience in the trades as an insulator, and
personal testing and review of the literature,
and career in asbestos detection and
abatement, it is his opinion that the scraping
of Durabla, Garlock and Johns-Manville
gaskets from both YORK and FRICK
compressors between the late 1950s and
1966 released respirable asbestos fibers that
CHARLES HUSBAND inhaled. This is
especially so given that Mr. HUSBAND did
not wear a mask or any breathing protection
when he performed this work on YORK and
FRICK compressors. (Declaration of
Charles Ay, § No. 23, attached as Exhibit B,
to the Declaration of Jennifer C.
Benaderet.}
Plaintiff's expert Herman Bruch, M.D.,
opines that all asbestos-related diseases,
asbestosis, cancer, and pleural disease, are
total dose-response-related diseases. When
a person, such as the plaintiff, contracts an
asbestos-related disease, such as asbestosis,
cancer, or pleural disease, after exposures to
multiple asbestos-containing products,
given sufficient minimum latency, each
exposure contributes to the persons’ total
dose. Thus, all the asbestos to which a
person is exposed up to about 15 years
efore clinical diagnosis contributed to
cause their asbestos related diseases.
(Declaration of Herman Bruch, M_D.,
{ No. 13, attached as Exhibit C, to the
Declaration of Jennifer C. Benaderet.}
JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em YW KD hw BR YY
10
17. Plaintiff also alleges he was exposed to
asbestos-containing friction materials as a
result of performing automobile repair and
maintenance to several of his personal
vehicles from 1963 to present, which
involved the personal removal of brakes,
clutches and gaskets.
Plaintiff's Supplemental/Amended
Responses to Standard Interrogatories, Sets
One and Two at 23:7-26:5, attached to the
Index as Exhibit I.
Kinjuredi OSS 1S pidits-YORKIN pd
Additionally, Dr. Bruch opines that there is
no way of predicting a level of asbestos
exposure that is safe for any particular
individual. Individual physiological
responses vary. Only when a person does
develop a disease is it possible to say that
the level of asbestos that person was
exposed to caused the disease. There is no
scientific basis upon which anyone can look
back and exclude some exposures and
include other exposures as being causall
related to the asbestos-related disease which
the plaintiff has incurred. (Declaration of
Herman Bruch, M.D., | No. 14, attached as
Exhibit C, to the Declaration of Jennifer C.
Benaderet.)
Dr. Bruch further opines that to a
reasonable degree of scientific certainty
based on the facts that exist in this matter,
his knowledge, skill and training, and upon
facts and methodologies reasonably relied
upon by experts in his field, that an
asbestos exposure that plaintiff suffered,
which was in addition to ambient air levels,
including those attributable to defendant
YORK would, more likely than not, have
been a substantial factor in causing him to
suffer from his asbestos related diseases.
(Declaration of Herman Bruch, M.D.,
{ Nos. 16-17, attached as Exhibit C, to the
Declaration of Jennifer C. Benaderet.)
Further, whether or not a particular
exposure to asbestos was a substantial
factor in causing Plaintiff's asbestos-related
disease is a matter of fact, not of law.
(Ruling in Strickland vy. Advocate Mines,
Los Angeles County Superior Court Case
No. BC379088, Attached as Exhibit G, to
the Declaration of Jennifer C. Benaderet.)
17, Undisputed, but irrelevant. Misleading.
Plaintiff further incorporates herein the
above-stated Response No. 16.
13 JCB
PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED
PACTSCo em IN DA PF Ww Nw
NR NR RW NR NR NR Rett
oe VARA FON | S Ce NIN DH BY NH S&S Oo
18. Finally, Plaintiff alleges he was 18. Undisputed, but irrelevant. Misleading.
exposed to asbestes-containing drywall
accessory products during home remodel Plaintiff further incorporates herein the
projects between 1973 and 1976. above-stated Response No. 16.
Plaintiff's Supplemental/Amended
Responses to Standard Interrogatories, Sets
One and Two at 22:27-23:7, attached to the
Index as Exhibit J.
Dated: SP DP BRAYTON#PURCELL LLP
drneys for Plaintiff
I AMrjure 4058 Sipidss-YORKIN.wpd 14 JCB
PLAINTIFF'S RESPONSE TO DEFENDANT VORK INTERNATIONAL CORPORATION S SEPARATE STATEMENT OF UNDISPUTED
Preview
NOVATO, CALIFORNIA 94948-6169 oem NY KD he BY 10 ALAN R. BRAYTON, ESQ., 8.B. #73685 DAVID R. DONADIO, ESQ., 8.B. #154436 JENNIFER C. BENADERET, ESQ., 8.B. #269953 ELECTRONICALLY BRAYTON&PURCELL LLP Attorneys at Law sopehr IL EDP 5 Rush Fanding Road County of San Francisco ‘ Novato, California 94948-6169 SEP 29 2011 (415) 898-1555 Clerk of the Court Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com BY: WILLIAM TRUPEK Deputy Clerk Attomeys for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ASBESTOS No. CGC-09-275098 CHARLES HUSBAND, Plaintiff, PLAINTIFF'S RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION’S SEPARATE STATEMENT OF UNDISPUTED FACTS vs. ASBESTOS DEFENDANTS (BP) eee Date: October 13, 2011 Time: 9:30 a.m. Dept: 220, Hon. Harold E. Kahn Trial Date: November 14, 2011 Action Filed: March 2, 2009 Plaintiff hereby submits the following responses to defendant YORK INTERNATIONAL CORPORATION’s Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment with reference to plaintiff's supporting evidence disputing such statements. UNDISPUTED MATERIAL FACTS AND ALLEGED SUPPORTING EVIDENCE PLAINTIFF'S RESPONSE/EVIDENCE 1. Plaintiff Charles Husband (“Plaintiff”) 1. Undisputed. brings this personal injury action arising out of Plaintiff's alleged exposure to a plethora of asbestos-containing products. Plaintiffs Complaint for Personal Injury — Asbestos (“Complaint”) attached to Index of Documentary Evidence (“Index”) as Exhibit A. KSinjured O5615pidirss-VORKIN wiped 1 JCB PLAINTIFF'S RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED FACTCo em YW KD hw BR YY 10 2. Plaintiff filed an Amended Complaint on September 23, 2010, designating York as DOE 13. Plaintiff's Amended Complaint, attached to Index as Exhibit B. 3. Plaintiff alleges the following causes of action against York: Negligence, Strict Liability, False Representation, Premises Owner/Contractor Liability and Punitive Damages. Complaint, attached to the Index as Exhibit A. 4, York propounded Special Interrogatories and Requests for Production of Documents upon Plaintiff seeking all facts, witnesses, documents and corroborating evidence supporting his claims against York. Defendant York International Corporation’s Special Interrogatories to Plaintiff, Set One, attached to Index as Exhibit C; Defendant York International Corporation’s Request for Production of Documents to Plaintiff, Set One, attached to Index as Exhibit D. 5. In his responses to York’s Special interrogatories, Plaintiff alleges that he “performed maintenance and repairs to various commercial refrigeration compressors” at Whelen Engineering in Emeryville, CA from the early 1960s to the mid-1960s. Plaintiff Charles Husband’s Response to Defendant York International Corporation’s Special Interrogatories, Set One, at 2:12-15, attached to Index as Exhibit E. 6. Plaintiff further alleges that the “[t]wo brands of compressors plaintiff repaired were Frick and York International...Plaintiff’s repairs...required him to open them up and remove all asbestos containing gaskets. Plaintiff Charles Husband’s Response to Defendant York International Corporation’s Special Interrogatories, Set One at 2:15-17, attached to Index as Exhibit E. dif Kinjuredi OSS 1S pidits-YORKIN pd 2 2. Undisputed. 3. Undisputed. 4, Undisputed. 5. Undisputed. 6. Undisputed. JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 7. Plaintiff further alleges that the asbestos-containing gaskets removed from the compressors were original. Plaintiff Charles Husband’s Response to Defendant York International Corporation’s Special Interrogatories, Set One at 2:18, attached to Index as Exhibit E. 8. Plaintiffs responses to York’s Special interrogatories do not identify any witnesses with the requested necessary contact information specifically linking York to Plaintiff's exposure to asbestos. Plaintiff ‘s Response to Defendant York International Corporation's Special Interrogatories, Set One, at 6:1-9, 10:25-11:4, 13:27-14:6, 16:22-25, 18:11-14, attached to Index as Exhibit E. 9. Plaintiff provided vague and evasive responses to York’s Request for Production of Documents, which essentially identified the following documents allegedly linking York to Plaintiff's alleged exposure to asbestos: employment records, Plaintiff's complaint, standard interrogatory responses, deposition transcripts, and GO 129 responses. Plaintiff's Response to York’s Request for Kinjuredi OSS 1S pidits-YORKIN pd 3 7. Undisputed. 8. Disputed. Misleading. Incomplete recitation of facts. Plaintiff's responses to York’s Special Interrogatories state, in part, the following information specifically linking YORK to plaintiff's exposure to asbestos: “Steve Pelz, P.O. Box 353, Joshua Tree, California 92252. c/o Brayton Purcell, worked with plaintiff at his father’s compressor shop during the 1960s. Mr. Pelz and plaintiff both worked on various refrigeration compressors at this shop, including compressors manufacture: by YORK INTERNATIONAL, Mr. Pelz could identify these refrigeration. compressors as YORK INTERNATIONAL compressors since the company name was written on the compressor itself. Mr. Pelz plaintiff both cleaned the heads on these YORK INTERNATIONAL refrigeration compressors. This required them to remove and Scrape off asbestos-containing Garlock- type gaskets. They both used scrapers and grinders to scrape off the asbestos- containing gasket residue from the YORK INTERNATIONAL compressors, This work created visible dust which they both inhaled.” (Plaintiff ‘s Response to Defendant York International Corporation's Special Interrogatories, Set One, at 2:21-26, attached to defendant's Index as Exhibit E.) 9. Disputed. Misleading. Incomplete recitation of facts. Plaintiffs responses to YORK’s Request for Production of Documents, identify the following documents, which directly link YORK to his exposure to asbestos: “Plaintiff identifies his employment records and medical records, previously Produced to Designated Defense “Counsel an equally JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 Production of Documents, Set One, at 1:23-3:28, attached to Index as Exhibit F. Kinjuredi OSS 1S pidits-YORKIN pd 4 available to defendant. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies his complaint in this action and all exhibits attached thereto. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies his responses in this case to Defendants’ Standard Interrogatories to Plaintiffs (Personal Injury), Sets One and Two. Plaintiff believes defendant is in possession of these documents. Plaintiff identifies the transcripts of all depositions taken in this action, and all attached exhibits, if any. Plaintiff identifies plaintiff’s own trial preservation and deposition transcripts and all exhibits, if any attached thereto, commencing on February 2, 2010 and all subsequent dates. These transcripts are reported by and available from Aiken & Welch, One Kaiser Plaza, Suite 505, Oakland, California. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies the deposition transcripts of plaintiff in the matter, Steve Pelz v. Asbestos Defendants, San Francisco Court Case No. 440228, commencing on November 29, 2007 and all subsequent dates. These transcripts are reported by and available from Aiken & Welch, One Kaiser Plaza, Suite 505, Oakland, California. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies the deposition transcripts of Steve Pelz in the matter, Steve Pelz v. Asbestos Defendants, San Francisco Court Case No. 440228, commencing on May 3, 2006 and all subsequent dates. These transcripts are reported by and available from Aiken & Welch, One Kaiser Plaza, Suite 505, Oakland, California. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies defendant’s responses to Standard Interrogatories pursuant to San Francisco General Order No. 129 including but not limited to that dated 10/16/97 by Walter Rundin, verified JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCO OW YN DR A BY De RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be eo WA A PB OH se So we IY DR mA BW BW ee oS KeAinjuredhbOS815. 1s5-YORKIN wp 10/16/97 by Wayne Naylor, and served 10/16/97 by Virginia Gaulter, Plaintiff further identifies the transcript and all exhibits attached thereto of the Person(s) Most Knowledgeable and Custodian(s) of Records of YORK INTERNATIONAL CORPORATION in the matter of Paul Sykes and Bonnie Sykes v. American Standard, et al., filed in the District Court of Harris County Texas, Case No. 2005-11196, taken on December 15, 2005, reported by Henjum Goucher Reporting Services. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies all the papers, photographs, films, recordings, memoranda, books, records, pamphiets, circulars, handbooks, manuals, periodicals, files, envelopes, notices, instructions, transcripts, notes, telex messages, communications (including reports, notes, notation and memoranda of telephone conversations and conferences, electronic mail, minutes, transcriptions, correspondence, etc.), writings, letters, telegrams, correspondence, notes of meetings or of conversations either in writing or upon any mechanical or electronic devices, notes, accountants’ statements or summaries, reports, invoices, canceled checks, check stubs receipts, bank statements, diaries, desk calendars, appointment books, payment records, telephone bills in defendant’s constructive possession, custody, care or control relating to plaintiff and the jobsites at which he worked. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies all of the agreements and contracts between defendant and all general contractors and sub-contractors present at the jobsites where plaintiff worked. Plaintiff believes defendant is in possession of these documents. Plaintiff further identifies all of the labeling and packaging materials for all of the asbestos-containing materials and equipment manufactured by, sold by, supplied by, and/or in the control of defendant used at the jobsites where plaintiff worked. Plaintiff believes JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCO OW YN DR A BY De RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be eo WA A PB OH se So we IY DR mA BW BW ee oS KeAinjuredhbOS815. 1s5-YORKIN wp defendant is in possession of these documents. Plaintiff further identifies numerous articles and studies relating to the health hazards associated with exposure to asbestos which have appeared in medical and scientific literature since the turn of the twentieth century and have also been summarized in various publications. Plaintiff identifies texts that contain summaries and/or bibliographies of asbestos- related disease: Asbestos: Medical and Legal Aspects, Barry [. Castleman, Prentice-Hall Law and Business, 1990 Sourcebook on Asbestos Disease, Medical, Legal, and Engineering Aspects. George A. Peters and Barbara J. Peters, Garland STPM Press Vol. 1, 1980, Vol. 2, 1986 Pathology of Asbestos-Associated. Diseases, Second Edition, Victor Roggli, Tim Oury, and Thomas Sporn, Springer-Verlag, 2004 Plaintiff is in possession of these texts and will make them available for defendant’s teview. Due to the limitations of copyright law, plaintiff cannot provide copies of these texts to defendant. Plaintiff further identifies General Industry Safety Orders promulgated pursuant to California Labor Code § 6400, et seq., and California Administrative Code under the California Department of Industrial Relations, Division of Industrial Safety, including, but not limited to, Title VIL, Group 9 (Control of Hazardous Substances), Article 81, §§ 4150, 4104-4108, and Threshold Limit Values as documented for asbestos and other toxic substances under Appendix A, Table I of said Safety Orders. Plaintiff also identifies NESHAP Asbestos Regulations (National Emission Standards for Hazardous Air Pollutants) which are found at Code of Federal Regulations, Title 40, Chapter |, Subchapter C, Part 61, Subpart M, published under the Federal Clean Air Act of 1970, 42 U.S.C.A. ¥7412(by A) and 42 US.C.A. JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCO OW YN DR A BY De RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be eo WA A PB OH se So we IY DR mA BW BW ee oS 10, At deposition, Plaintiff testified that his job at Whelen was to disassemble compressors, submerge them in a solvent, K:Alnjured F058 Sipidies-YORKIN wpe § 7412(b)(1)(B). Plaintiff also identifies OSHA standards relating to asbestos, found at Code of Federal Regulations, Title 29, Chapter 17, Section 1910, et seq.; and Title 8, Section 5208 of the California OSHA regulations pertaining to asbestos exposure. Plaintiff incorporates by reference, without repeating herein, all testimony from all plaintiffs experts from all prior similarly-situated cases. Without limiting the scope of defendant's liability, plaintiff contends that defendant supplied, sold, manufactured, and/or distributed asbestos-containing products to plaintiff and/or to worksites where plaintiff used said products. By 1937, California listed asbestosis as a compensable disease under Worker’s Compensation laws. Numerous articles and studies relating to the health hazards of exposure to asbestos have appeared in medical and scientific literature since the turn of the twentieth century and have also been summarized in various publications. Additionally, safety orders have existed since the 1940s regarding the control of asbestos dust in the workplace. Defendant knew or reasonably should have known of the health hazards associated with exposure to asbestos and asbestos-containing products prior to their distribution, sale, or supply and failed to take available safety precautions. Further, defendant failed to warn plaintiff of the dangers inherent in these products. Defendant’s conduct was wilful, malicious, and done with a wanton disregard for plaintiffs safety and the safety of others. After a reasonable and good-faith inquiry to other persons and organization, pursuant to C.C.P. § 2030.220(a)-(c), plaintiff has no further information responsive to this Request at this time. Plaintiff's investigation and discovery are continuing. Plaintiff expressly reserves the tight to amend this Response pending the outcome of plaintiffs investigation.” (Plaintiff's Response to YORK ’s Request for Production of Documents, Set One, at 2:27-3:28, attached to defendant's Index as Exhibit F.) 10, Disputed. Misleading. Misstates Plaintiff’s deposition testimony. JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 and then clean them, which involved the removal of gasket material. Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 73:18-74:22 at attached to Index as Exhibit G. 1, Plaintiff disassembled an average of fifteen or twenty compressors per week. during the time he worked at Whelen. Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 79:5-7, attached to index as Exhibit G. 2. Plaintiff further testified that approximately twenty-five or thirty percent of the compressors were York brand compressors and ten or fifteen percent were Frick compressors. Deposition of Plaintiff Charles Husband, ated April 18, 2011 at 81:1-5, 109:13-16, attached to Index as Exhibit G. 3. Plaintiff testified that during the entire cleaning process, the York and Frick compressors were submerged in solvent. cposition of Plaintiff, dated April 18, 2011 at 99:2-19, 113:3-5, attached to Index as Exhibit G. Kinjuredi OSS 1S pidits-YORKIN pd 8 At deposition, plaintiff testified that the tear-down of a compressor was like an assembly line. He stated that to get the oil and grease off, they used a solvent-based material, but that was at the end of the process. He testified that before the use of the cleaning solvent they had to tear down the compressors by removing the bolts and the more easily removable gaskets. The gaskets that were baked on from high-heat in comparison would have to be hammered, chiseled or scraped off with compressed air and a wire brush later in the process. (Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 97:24-98:13, Attached as Exhibit E, to the Benaderet Decl.) 11, Disputed. Misleading. Misstates Plaintiff's deposition testimony. Plaintiff testified that he took apart between 15-26 compressors on a weekly basis. (Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 79:5-8, Attached as Exhibit E, to the Benaderet Decl.) 12. Undisputed. 13. Disputed. Misleading. Incomplete recitation of facts. Plaintiff testified that the first step in the process, after taking apart the compressor, would be to immerse it in solvent. He first had to tear down the compressors by removing the bolts and the more easily removable gaskets that did not have to be hammered, chiseled or scraped off with compressed air and a wire brush. Additionally, plaintiff testified that gaskets on the compressors would get so hot that they would become hard like stone, requiring the gaskets to be chipped off. JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 14. Plaintiff did not observe anyone in his presence who he thought was a York employee. Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 104:2-5, attached to Index as Exhibit G. 15. Plaintiff admits that the work he performed on the York and Frick Compressors for Whalen was the only work he has ever performed with or around any York or Frick equipment at any time. Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 103:15-104:1, 118:14-17, attached to the Index as Exhibit G; Deposition of Plaintiff Charles Husband, dated April 19, 2011 at 187:11-19, attached to Exhibit H. 16. By contrast, Plaintiff alleges he was exposed toa plethora of asbestos-containing materials during his careers as an auto mechanic, carpenter and equipment operator, which covered a time period of approximately twenty-five years. Plaintiff's Supplemental/Amended Responses to Standard Interrogatories, Sets One and Two, at 2:25-17:21, attached to the Index as Exhibit I. Kinjuredi OSS 1S pidits-YORKIN pd 9 Plaintiff stated that the solvent did not penetrate the gaskets, it just removed the dirt from them their exterior. He stated that because the solvent had no real effect on the gaskets, the baked-on gaskets still had to be chiseled and scraped off with a wire brush. Plaintiff testified that he had to chisel and scrape off hardened gaskets on 50% of the compressors he worked on, with cach taking 15-20 minutes, or longer, to remove. (Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 79:5-8; 97:24-98:13; 99:2-19; 113:8 -24, Attached as Exhibit E, to the Benaderet Decl.) 14. Undisputed, but irrelevant. 15. Undisputed, but irrelevant. 16. Undisputed, but irrelevant. Misleading. From the late 1950s through 1966, CHARLES HUSBAND worked for his father’s business, Whalen Engineering, performing maintenance to air conditioning compressors on the weekends. (Declaration of Charles Husband, § No. 2, attached as Exhibit A, to the Declaration of Jennifer C. Benaderet.) For this entire span between the late 1950's through 1966, plaintiff performed maintenance work to compressors for approximately 15-26 hours per weekend at his father’s shop on 8-10 compressors per day, depending on the compressors he was working on because some were more difficult to tear down. (Declaration of JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 Kinjuredi OSS 1S pidits-YORKIN pd Charles Husband, § No. 3, attached as Exhibit A, to the Declaration of Jennifer C. Benaderet.} Approximately 30% of the compressors that Plaintiff worked on during this period were YORK-brand compressors. Additionally, 15-20% were FRICK-brand compressors, which defendant admits was formerly a competitor, and acquired by YORK. Plaintiff identified these compressors as YORK and FRICK because the company name was written on an aluminum or brass name plate on the side of the compressors. (Declaration of Charles Husband, § No. 4, attached as Exhibit A, to the Declaration of Jennifer C. Benaderet; YORK’s Responses to San Francisco County General Order 129 Interrogatories, dated October 16, 1997, Page 4, Line 27-Page 5, Line I, Attached as Exhibit F, to the Declaration of Jennifer C. Benaderet.) 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 existing asbestos-containing gaskets on the unit every time he worked on a compressor. On YORK electric motors, Plaintiff sometimes had to cut windings and strips of insulation out in order to rewind the motor. (Declaration of Charles Husband, { No. 5, attached as Exhibit A, to the Declaration of Jennifer C. Benaderet.) 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 remove each asbestos- 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 after it was submerged in a 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 because they would be so burnt onto the compressor that they were JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 Kinjuredi OSS 1S pidits-YORKIN pd like stone and had to be chipped off. (Declaration of Charles Husband, § No. 6, attached as Exhibit A, to the Declaration of Jennifer C. Benaderet.} Of all compressors that came in for repair to Whalen Engineering shop, including YORK-and FRICK-rand compressors which plaintiff personally disassembled and removed asbestos-containing gaskets from, 95% of them had original manufacturer equipment in place, including the asbestes- containing gaskets that plaintiff had to scrape off. Plaintiff knew this because they had never been rebuilt or repaired previously. (Declaration of Charles Husband, { No. 7, attached as Exhibit A, to the Declaration of Jennifer C. Benaderet.) Plaintiff never wore a respirator or any type of breathing equipment while performing this work at Whalen Engineering. (Declaration of Charles Husband, § No. 8, attached as Exhibit A, to the Declaration of Jennifer C. Benaderet.) 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 and purchased from Durabla, Garlock and Johns-Manville. (YORK 's Responses to 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.) 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 Johns- Manville. He also admits that these gaskets contained asbestos in the 1960s, 1970s and 1980s. (Deposition transcript of Fred Ziffer, dated December 15, 2005 in Paul Sykes and Bonnie Sykes, v. American Standard, et al., Cause No. 2005-11196, 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 JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 Kinjuredi OSS 1S pidits-YORKIN pd 78, Line 1, Attached as Exhibit D, to the Declaration of Jennifer C. Benaderet.) Plaintiff's expert Charles Ay opines that based on his asbestos training, education, and experience in the trades as an insulator, and personal testing and review of the literature, and career in asbestos detection and abatement, 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. (Declaration of Charles Ay, § No. 22, attached as Exhibit B, to the Declaration of Jennifer C. Benaderet.) Additionally, Charles Ay opines that based on his asbestos training, education, and experience in the trades as an insulator, and personal testing and review of the literature, and career in asbestos detection and abatement, it is his opinion that the scraping of Durabla, Garlock and Johns-Manville gaskets from both YORK and FRICK compressors between the late 1950s and 1966 released respirable asbestos fibers that CHARLES HUSBAND inhaled. This is especially so given that Mr. HUSBAND did not wear a mask or any breathing protection when he performed this work on YORK and FRICK compressors. (Declaration of Charles Ay, § No. 23, attached as Exhibit B, to the Declaration of Jennifer C. Benaderet.} Plaintiff's expert Herman Bruch, M.D., opines that all asbestos-related diseases, asbestosis, cancer, and pleural disease, are total dose-response-related diseases. When a person, such as the plaintiff, contracts an asbestos-related disease, such as asbestosis, cancer, or pleural disease, after exposures to multiple asbestos-containing products, given sufficient minimum latency, each exposure contributes to the persons’ total dose. Thus, all the asbestos to which a person is exposed up to about 15 years efore clinical diagnosis contributed to cause their asbestos related diseases. (Declaration of Herman Bruch, M_D., { No. 13, attached as Exhibit C, to the Declaration of Jennifer C. Benaderet.} JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em YW KD hw BR YY 10 17. Plaintiff also alleges he was exposed to asbestos-containing friction materials as a result of performing automobile repair and maintenance to several of his personal vehicles from 1963 to present, which involved the personal removal of brakes, clutches and gaskets. Plaintiff's Supplemental/Amended Responses to Standard Interrogatories, Sets One and Two at 23:7-26:5, attached to the Index as Exhibit I. Kinjuredi OSS 1S pidits-YORKIN pd Additionally, Dr. Bruch opines that there is no way of predicting a level of asbestos exposure that is safe for any particular individual. Individual physiological responses vary. Only when a person does develop a disease is it possible to say that the level of asbestos that person was exposed to caused the disease. There is no scientific basis upon which anyone can look back and exclude some exposures and include other exposures as being causall related to the asbestos-related disease which the plaintiff has incurred. (Declaration of Herman Bruch, M.D., | No. 14, attached as Exhibit C, to the Declaration of Jennifer C. Benaderet.) Dr. Bruch further opines that to a reasonable degree of scientific certainty based on the facts that exist in this matter, his knowledge, skill and training, and upon facts and methodologies reasonably relied upon by experts in his field, that an asbestos exposure that plaintiff suffered, which was in addition to ambient air levels, including those attributable to defendant YORK would, more likely than not, have been a substantial factor in causing him to suffer from his asbestos related diseases. (Declaration of Herman Bruch, M.D., { Nos. 16-17, attached as Exhibit C, to the Declaration of Jennifer C. Benaderet.) Further, whether or not a particular exposure to asbestos was a substantial factor in causing Plaintiff's asbestos-related disease is a matter of fact, not of law. (Ruling in Strickland vy. Advocate Mines, Los Angeles County Superior Court Case No. BC379088, Attached as Exhibit G, to the Declaration of Jennifer C. Benaderet.) 17, Undisputed, but irrelevant. Misleading. Plaintiff further incorporates herein the above-stated Response No. 16. 13 JCB PLAIN TIPPS RESPONSE TO DEFENDANT YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT OF UNDISPUTED PACTSCo em IN DA PF Ww Nw NR NR RW NR NR NR Rett oe VARA FON | S Ce NIN DH BY NH S&S Oo 18. Finally, Plaintiff alleges he was 18. Undisputed, but irrelevant. Misleading. exposed to asbestes-containing drywall accessory products during home remodel Plaintiff further incorporates herein the projects between 1973 and 1976. above-stated Response No. 16. Plaintiff's Supplemental/Amended Responses to Standard Interrogatories, Sets One and Two at 22:27-23:7, attached to the Index as Exhibit J. Dated: SP DP BRAYTON#PURCELL LLP drneys for Plaintiff I AMrjure 4058 Sipidss-YORKIN.wpd 14 JCB PLAINTIFF'S RESPONSE TO DEFENDANT VORK INTERNATIONAL CORPORATION S SEPARATE STATEMENT OF UNDISPUTED