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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
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

BRAYTON*PURCELL LLP
Attorneys at Law

222 Rush Landing Road

P.O. Box 6169

Novato, California 94948-6169
(415) 898-1555

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

SEP 29 2011
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

CHARLES HUSBAND, ) ASBESTOS

) No. CGC-09-275098

Plaintiff, )

) | PLAINTIFF'S SEPARATE STATEMENT
vs. ) OF DISPUTED MATERIAL FACTS IN

) OPPOSITION TO DEFENDANT YORK
ASBESTOS DEFENDANTS (BP) ) INTERNATIONAL CORPORATION’S

MOTION FOR SUMMARY JUDGMENT

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

Pursuant to California Code of Civil Procedure § 437c(b), plaintiff submits the following

Separate Statement of Disputed Material Facts in Opposition to Defendant YORK

INTERNATIONAL CORPORATION’s Motion for Summary Judgment.

PLAINTIFF'S DISPUTED
MATERIAL FACTS

1. 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.

2. For this entire span between. the late
1950s through 1966, plaintiff performed
maintenance work to compressors for
approximately 15-26 hours per weekend at

Kehinjured BOSS 1Sipidie YORKIN gpd

SUPPORTING EVIDENCE

1. Declaration of Charles Husband,
4| No. 2, attached as Exhibit A, to the
Declaration of Jennifer C. Benaderet.

2. Declaration of Charles Husband,
| No. 3, attached as Exhibit A, to the
Declaration of Jennifer C. Benaderet.

1 sou

PLAINTIFF'S SEPARATE STATEMENT
INTERNATIONAL CORPORATION’S MOT

OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT YORK
TION FOR SUMMARY JUDGMENTCo em YW KD hw BR YY

10

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 than others.

3. Approximately 30% of the compressors
that Plaintiff worked on during this period
were YORK INTERNATIONAL
CORPORATION (“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.

4. 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 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.

5. It took plaintiff approximately 45
minutes fo 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 disassemblin
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 like stone and
had to be chipped off.

6, Of all compressors that came in for
repair to Whalen Engineering shop,
including YORK- and FRICK-brand
compressors, which plaintiff personally

Su st = 5

at spd

3. Declaration of Charles Hushand,

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 1, Attached as Exhibit F, to
the Declaration of Jennifer C. Benaderet.

4, Declaration of Charles Husband,
4 No. 5, attached as Exhibit A, to the
Declaration of Jennifer C. Benaderet.

5. Declaration of Charles Husband,
4] No. 6, attached as Exhibit A, to the
Declaration of Jennifer C. Benaderet.

6, Declaration of Charles Husband,
| No. 7, attached as Exhibit A, to the
Declaration of Jennifer C. Benaderet.

2 sou

ARATE STATEMENT
IN WRNATIONAL CORPORATION’S MOT

OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT YORK.
TION FOR SUMMARY JUDGMENTCo em YW KD hw BR YY

10

disassembled and removed asbestos-
containing gaskets from, 95% of them had
original manufacturer equipment in place,
including the asbestos-containing gaskets
that he had to scrape off. Plaintiff knew
this because they had never been rebuilt or
repaired previously.

7. Plaintiff never 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
and purchased from Durabla, Garlock and
Johns-Manville.

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 Johns-
Manville. He also admits that these gaskets
contained asbestos in the 1960s, 1970s and
1980s.

10. 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.

11. 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.

Soasalt setts at spl

3

7. Declaration of Charles Husband,
4| No. 8, attached as Exhibit A, to the
Declaration of Jennifer C. Benaderet.

8. 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.

9. 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 78, Line 1,
Attached as Exhibit D, to the Declaration of
Jennifer C. Benaderet.

10. Declaration of Charles Ay, { No. 22,
attached as Exhibit B, to the Declaration of
Jennifer C. Benaderet.

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

JCB

ARATE STATEMENT
IN WRNATIONAL CORPORATION’S MOT

OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT YORK.
TION FOR SUMMARY JUDGMENTCo em YW KD hw BR YY

10

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.

12. Plaintiffs 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
before clinical diagnosis contributed to
cause his or her asbestos-related diseases.

13. 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 causally
related to the asbestos-related disease which
the plaintiff has incurred.

14. 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, any 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.

dif
Mit
dif

KeAinjuredhbOS815.

4

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

13. Declaration of Herman Bruch, M.D.,
No. 14, attached as Exhibit C, to the
Declaration of Jennifer C. Benaderet.

14. Declaration of Herman Bruch, M.D.,
| No. 16-17, attached as Exhibit C, to the
Declaration of Jennifer C. Benaderet.

JCB

hse YORKIN. pd

PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT YORK.
INTERNATIONAL CORPORATION’S MOTION FOR SUMMARY JUDGMENTOC Om RD HB RD me

wie oO

15, Further, whether or not a particular
exposure to asbestos was a substantial

disease is a matter of fact, not of law.

15. Ruling in Strickland v, Advocate Mines,
Les Angeles County Superior Court Case
factor in causing plaintiff’s asbestos-related No. BC379088, Attached as Exhibit G, te
the Declaration of Jennifer C. Benaderet.

Dated: RAYTONSPURCELL LLP
Attorneys for Plainti:
K sjurte 1058 Sipldss YORIGN xpd 5 JCB

PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT YORK
INTERNATIONAL CORPORATION'S MOTION FOR SUMMARY JUDGMENT