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

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                                BRAYTONOPURCELL LLP

ATTORNEYS AT LAW
222 RUSH LANDING ROAD

POBOX 6169
NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

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ALAN R. BRAYTON, ESQ., 8. B. #73685
DAVID R. DONADIG, ESQ., S.B. #154436
UMU K. TAFISI, ESQ, S.B. #269862 ELECTRONICALLY
BRAYTON®PURCELL LLP
Attorneys at Law F ILE D -
222 Rush Landing Road Superior Court of California,
P.O. Box 6169 County of San Francisco
aeetss 94948-6169 SEP 29 2011
= Clerk of the Court
Sepotive Re Ruling Contest Email: contestasbestosTR@braytonlaw.com By: WILLIAM upex
Deputy Cle!
Attorneys 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 ALBAY
ASBESTOS DEFENDANTS (BYP) CONSTRUCTION COMPANY’S

MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION

Date: October 13, 2011
Time: 9:30 a.m.

Dept: 220, Hon. Harold Kahn
Trial Date: November 14, 2011
Action Filed: March 2, 2609

Pursuant to California Code of Civil Procedure § 437c(b), plaintiff submits the following
Separate Statement of Disputed Material Facts in Opposition to Defendant ALBAY
CONSTRUCTION COMPANY’s Motion for Summary Judgment or, in the Alternative,

Summary Adjudication.

PLAINTIFF'S DISPUTED

MATERIAL FACTS SUPPORTING EVIDENCE

1, Plaintiff testified that he saw 1. (Newly Served Deposition of Charles
ALBAY(ALBAY CONSTRUCTION Husband, Vol. I, April 19, 2011 (Husband
COMP. employees at Exxon refinery De 2 Pg. QT421-274: 2 Pg. 274:16-

in 1972, when he worked there for Oscar 2? 2 'g. 275:22-276:2; Pe 275:3-21;
Erickson, on a shutdown, for over 3 OTT: ie 19; Pg. 274:24-27 12; Pg.

months. He worked shoulder to shoulder to 5 7-11-19, attached as Exhibit A, to the

seav1088) Y 1
PLANTERS SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT ALB,
CONSTRUCTION COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATION0 Oo WM DH A BW ND

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Oo at A mW BB WY NH DD OBO SC HY DA HH BR WwW NH & ©

the ALBAY employees about 20 percent of
the time he was at Exxon. ALBAY
performed pipe work including welding on
fire pulling steam valves, and changing

ines. Plaintiff saw them removing
insulation materials from pipes, and the
insulation looked white and fibrous, and it
was flaky and dusty. Plaintiff worked near
them when he was performing scaffolding
work, building and tearing down scaffolds.
When ALBAY employees tore down
insulated pipe, the insulation chipped off
and fell onto the scaffolding.

2. Plaintiff also saw ALBAY employees
stirring up a lot of dust when they cleaned
up their work area. During his deposition,
he was not asked where the dust was from.
Had he been asked, he would have testified
that he saw the ALBAY employees
sweeping up dust from the white, fibrous,

insulation that they were removing
during their work on the pipes.

3. People at the jobsite referred to the
white insulating material on the pipes as
asbestos insulation.

4, During his deposition, plaintiff was not
asked about what flowed through the pipes
that ALBAY employees worked on, Had
he been asked, he would have testified that
the pipes were for steam and oil, and they
were highly pressurized.

$5. Plaintiff did not wear breathing
protection when he worked around
ALBAY’s employees when they performed
this work.

6. Plaintiff also saw ALBAY employees at
Shell Oil every day for about six months in
1974, when he worked for Dillingham and
was building scaffolding. He saw ALBAY
employees working on overhead pipi s
systems and pumps. He worked shoulder to

oulder to ALBAY’s employees for 30
percent of the time, since he put yy
scaffolding in the pipeway and ALBAY’s
employees used some of the same scaffolds
that he was working on.

Ue

KAlseetosey:

Declaration of Umu Tafisi “Tafisi Decl.”)

(Declaration of Charles Husband “Husband
Decl.” { 2, attached as Exhibit B, to the
Tafisi Decl.)

2. Misband Depo., Pg. 280:3-14, attached
as Exhibit A, to the Tafisi Decl.)

(Husband Decl. 3, attached as Exhibit B,
to the Tafisi Decl.)

3. (Husband Depo., Pg. 278:3-7, attached
as Exhibit A, to the Tafisi Decl.)

(Husband Decl. { 4, attached as Exhibit B,
to the Tafisi Deci.)

4, (Husband Decl, 5, attached as Exhibit
B, to the Tafisi Decl.}

5. (Husband Decl. { 6, attached as Exhibit
B, to the Tafisi Deci.}

6. (Husband Depo., Pg. 265:18-267:2; Pg.
267;3-11; Pg. 267:17-268:13, attached as
Exhibit A, to the Tafisi Decl.)

(Husband Decl. { 7, attached as Exhibit B,
to the Tafisi Decl.)

: 2 uKT
PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED MATERIAL

FACTS IN OPPOSITION TO DEFENDANT

ALBAY
CONSTRUCTION COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONOD CO DH NW mB WD Bm

yon yw vv = -
BRRREBBREB SEAR AEB E AS

7. Plaintiff saw the ALBAY employees
working with insulating material on pipes
and gasket material on valves. He saw
them cut pipe down and knock it on the
scaffolding, and he saw white, fibrous
insulation material go all over the place.

8. Plaintiff was not asked to describe the
gasket material that he saw ALBAY
employees working with on valves at Shell
Oilin 1974. Had he been asked, he would
have testified that he saw the ALBAY
employees removing and installing grayish
colored, fibrous ts on valves and
associated with valves and pipes.
Some of the gaskets had a metal ring.

9. Furthermore, plaintiff was not asked to
describe what was flowing through the
pipes. Had he been asked, he would have
testified that they were steam and oil lines,
and they were highly pressurized pipes.

10. Plaintiff testified that other workers at
the jobsite referred to the insulation on the
pipes as asbestos insulation. He testified
that this was in reference to the insulation
that his Dillingham co-workers were
working with. However, he was not asked
if this insulation was the same as the
insulation that the ALBAY employees were
disturbing. Had he been asked, he would
have testified that the insulation that other
workers called asbestos insulation was the
same type of white, fibrous pipe insulation
that he saw ALBAY employees disturbing.

il. Plaintiff did net wear breathing
protection when he worked around
ALBAY’s employees when they performed
this work.

12. Defendant ALBAY admits in its
General Order No. 129 Interrogatery
responses that employees of ALBAY would
“push back asbestos insulation in order to

io tie-ins.”

13. Gerald Lamphiear, a project manager
and Person Most Knowledgeable for Shell
Oil Co. testified in multiple cases on
February 21, 1992. Mr. Lamphiear testified
that Shell Oil was using asbestes-containing
askets when he st in 1980 and had
een unable to successfully phase them out.

x 1088 Y:

3

7. (Husband Depo., P;
Seid beo |. tac
Tafisi Decl.)

(Husband Decl. { 8, attached as Exhibit B,
to the Tafisi Deci.}

8. (Husband Deel. € 9, attached as Exhibit
B, to the Tafisi Decl.}

268:14-22; Pg.
as Exhibit A, to the

9. (Husband Decl. € 10, attached as Exhibit
B, to the Tafisi Decl.}

10. (Husband Depo., Pg. 270:4-271:18,
attached as Exhibit A, to the Tafisi Decl.)

(Husband Decl. { 11, attached as Exhibit B,
to the Tafisi Decl.)

11. (Husband Deel. { 12, attached as
Exhibit B, to the Tafisi Decl.)

12. (ALBAY’s Response to General Order
No. 129 Interrogatories, In re: Complex
Asbestos Litigation, San Francisco Superior
Court No. 828684, No. 33, § 2, attached as
Exhibit E, io the Tafisi Decl.)

13. (Deposition of Gerald Lamphiear, in
Michael Gray v. Abex, SFSC 897887; Glen
Boone v. Abex, SFSC 910118; Harold
Dennis v. Abex, SFSC 902130, SFSC
925508, and Robert and Marvel Gertz v
Abex, SFSC 922716, p. 134:9-16; pp.
135:25-136:1, 10-11; p. 136:12-15, attached

UKT

PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEPENDANT ALBAY
CONSTRUCTION COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONCo DT DH HH F&F YW N

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aon Nn WH FF YW NY KF Oo HO OH DDH BF WY KY

Mr. Lamphiear testified that, at the time of
the deposition, Shell had not yet found a
suitable replacement for asbestos gaskets.
Mr. Lamphiear testified that Shell
purchased asbestos-containing gaskets from
Flexitallic and Durabla.

14. The white, fibrous pipe covering
insulation material described by

Mr. HUSBAND more likely than not was
asbestos-containing material. The pipe
covering insulation described by

Mr. HUSBAND could only have been a
calcium silicate or "85% mag". These forms
of thermal insulation always had asbestos as
a component throughout the 1950s and
1960s and into the early 1970s when the
first non-asbestos containing pipe coverin;
and block insulations were first introduced.

15. The gaskets that Mr. HUSBAND
describes as grayish and fibrous, and some
having a metal ring, at Shell Oil in 1974,
more likely than not were asbestos-
containing materials. This is because the
vast majority of these types of gaskets used
on slate steam and oil lines, which are
igh heat and high pressure piping systems,
continuing through the late 1980s, were
asbestos containing. Additionally, Gerald
Lamphiear, a project manager and Person
Most Knowledgeable for Shell Oil Co.,
testified that Shell Oil was using asbestos-
containing gaskets when he started in 1980;
that at the time of the deposition (1992)
Shell Oil had not yet found a suitable
teplacement for asbestos gaskets; and that
Shell Oil purchased asbestos-containing
gaskets from Flexitallic and Durabla.

16. The removal and disturbance of the
thermal pipe insulation and gaskets by
ALBAY employees in Mr. HUSBAND’s
presence, as described by Mr. HUSBAND,
released respirable asbestos fibers that

Mr. HUSBAND inhaled. This is especially
so given that he did not wear breathing
protection.

94/0)

Dated:

KAlnjured 10581: -ALBAY.

as Exhibit C, to the Tafisi Decl.)

14. (Declaration of Charles Ay “Ay Decl.”,
q 33; attached as Exhibit D, to the Tafisi
Decl.)

15. (Declaration of Charles Ay “Ay Decl.”,
q 34 fitached as Exhibit D, to the Tafisi
Decl.

16. (Declaration of Charles Ay “Ay Decl.”,
q 35. attached as Exhibit D, to the Tafisi
Decl.)

BRAYTON*PURCELL LLP

By:
Umu K. Tafisi
Attorneys for Plaintiff

4 uKT

-EPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT ALB.

PLAINTIFF'S S!
CONSTRUCTION COMPANY'S MOTION FOR SUMMARY JUDGMENT OR, IN

JAY
THE ALTERNATIVE, SUMMARY ADJUDICATION