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

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                                NOVATO, CALIFORNIA 94948-6169

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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 MEMORANDUM OF
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT YORK
INTERNATIONAL CORPORATION’S
MOTION FOR SUMMARY JUDGMENT

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

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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT YORK INTERNATIONAL
CORPORATION'S MOTION FOR SUMMARY JUDGMENTCo em YW KD hw BR YY

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Hl.

CONCLUSION

LEGAL ARGUMENT.
A.

TABLE OF CONTENTS

THE SCOPE OF YORK’S MOTION IS LIMITED TO THE
ISSUES PRESENTED IN ITS SEPARATE STATEMENT OF

UNDISPUTED MATERIAL FACTS ..00 0.0. cece eee eee

DEFENDANT’S BURDEN OF RESPONSE HAS NOT
SHIFTED TO PLAINTIFF BECAUSE PLAINTIFE’S
DISCOVERY RESPONSES ARE NOT FACTUALLY DEVOID
AND PLAINTIFF CLEARLY TESTIFIED THAT HE WAS
EXPOSED TO ASBESTOS CONTAINING GASKETS IN

YORK COMPRESSORS .....0 0.0 ce cece

PLAINTIFF HAS PRODUCED EVIDENCE
DEMONSTRATING THAT DISPUTED ISSUES OF
MATERIAL FACT EXIST CONCERNING HIS CAUSES OF

ACTION 20 cen een tenes

PLAINTIFF’S EXPERTS’ DECLARATION MUST BE
LIBERALLY CONSTRUED AND ARE ENTITLED TO ALL
FAVORABLE INFERENCES. THEY DO NOT HAVE TO BE
DETAILED, AND ANY QUESTIONS AS TO FOUNDATION
GO TO THE WEIGHT AND NOT THE ADMISSIBILITY OF

THE EXPERT. .....2000 00222 ee eee

UNDER LINEAWEAVER AND RUTHERFORD, WHETHER
OR NOT A PARTICULAR EXPOSURE WAS A
SUBSTANTIAL FACTOR IN PLAINTIFF’S DISEASE IS A

MATTER OF FACT, NOT OF LAW. 0... ccc eee

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PLAINTIFF'S MEMORANDUM OF POINTS AND See ‘IES IN OPPOSETION TO DEFENDANT YORK INTERNATIONAL

CORPORATION'S MOTION FOR SUMMARY JUDG!Co em YW KD hw BR YY

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TABLE OF AUTHORITIES

CASES

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826...00000 00.00. 6,19
Allen vy, Superior Court (1984) 151 Cal. App.3d 447.000.0000... cece cece cee ene 16
Andrews v. Foster Wheeler, LLC (2006) 138 Cal. App.4th 96...........005...0..-2.00- 14
Black v. Sullivan (1975) 48 Cal. App.3d 557...000 0000 eee eee eae 9
Buckwalter v, Airline Training Center (1982) 134 Cal.App.3d 547.........-........- 13, 14
Bunzel v. Am. Academy of Orthopedic Surgeons (1980) 107 Cal-App.3d 165. ............ 6
California Court Reporters v. Judicial Council (1995) 39 Cal App.4th 15. ........... 14, 16
Chevron U.S.A., Inc. v. Super, Ct. (Cobb) (1992) 4 Cal App.4th 544, 200. 7
Camargo v Tjaarda Dairy (2001) 25 Cal. 4th 1235. 2.0... 10
Conn v. National Can Corp, (1981) 124 Cal.App.3d 630.00... 0 ccc cee cee 3
Cooper y. Board of Medical Eaminers (1975) 49 Cal. App.3d 931.0... 0... eee eee 14,15
Fleet v. CBS, Inc. (1996) 50 Cal App.4th 1911.2... ee eee 5
Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069. 0... eee eee 8
Galloway v. U.S. (1943) 319 U.S. 372.000 ccc cnet t eee is
Hanson v. Grode (1999) 76 Cal.App.4th 601. 0.0.0... coe eee 12, 13
Hayman v. Block (1986) 176 Cal App.3d 629.000.0000 6
Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282.00.00... 0... eee 7
Islas v. D & G Manufacturing Company, Inc. (2004) 120 Cal_App.4th 571. .......00.00. 15
Juge v. County of Sacramento (1993) 12 Cal App.4th 59. cee 4,5
Kaplan v. Superior Court (1971) 15 Cal. App.3rd 785. 000 cen 16
Kelley v. Trunk (1998) 66 Cal. App.4th 519. 00.00 13
Liv. Yellow Cab (1975) 13 Cal.3d 804 00000. 20
Lineaweaver v, Plant Insulation Co, (1995) 31 Cal.App.4th 1409 ............. 16, 17, 19, 20
Logerquist v. McVey (Arizona 2000) 196 Ariz. 470.000.000.000... ccc e eee e eee 15
Mitchell v. Gonzales (1984) 54 Cal.3d 1053... 0000 e eee 17
North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22.......... 5
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT YORK INTERNATIONAL
CORPORATION'S MOTION FOR SUMMARY JUDGMENTCo em YW KD hw BR YY

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TABLE OF AUTHORITIES (Cont'd)
CASES (Cont’d)

People v. Caldwell (1984) 36 Cal.3d 210. 000.0 c cece eee 17
People v. Guntert (1981) 126 Cal. App.3d Supp. Lo... cee nee eee 16
People v. Stuller (1970) 10 Cal. App.3d 582. 0000s i5
Powell v. Kleinman (2007) 151 Cal. App.4th 112. 0.00. ..0..0. 0c cee eee eee 13, 14,16
Ruiz v. Minnesota Mining & Manufacturing Co. (1971) 15 Cal. App. 3d 462. ........... 16
Rutherford v. Owens-Illinois (1997) 16 Cal. 4th. 953 2.00.2 eee 17, 18
Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal. App.4th 703......... 0.00... 0 eee ee 13
San Diego Watercrafts, Inc. v, Wells Fargo Bank, N.A, (2002) 102 Cal.App.4th 308........ 5
Talley v. Mitchell (6 Cir. 1960) 275 F.2d 244 000.0 15
Union Bank v. Super. Ct. (Demetry) (1995) 31 Cal App.4th 573.2... 0.0.00... eee eee 7
Walsh v. Walsh (1941) 18 Cal.2d 439 00 ner teers 9
STATUTES

CACINO. 435 000 nent e eee eee eee 20
Code of Civ. Proc. § 437¢ 0 cece eee ee 4
Code of Civ. Proc. § 437¢(a) oo cence ent ent enn enneenees 5
Code of Civ. Proc. § 437c(b)L) 2. eee eee eee 5
CCP. § 437e (ND (0) ce cece eee 6
Code of Civ. Proc. § 437¢(p)(2). nce enter e ete e nner enne eres 1
Evidence Code § 351. 0... ene eee ee 16
Evidence Code section 801(b) 2. nent cece centre eee 12
MISCELLANEOUS

Cal. Rules of Court, Rule 3.3150(d) 0.00. een nent n nee 5
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PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSETION TO DEFENDANT YORK INTERNATIONAL
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1.
INTRODUCTION
Plaintiff, CHARLES HUSBAND, respectfully request that the Court deny defendant
YORK INTERNATIONAL CORPORATION’S (hereinafter “YORK”) Motion For Summary
Judgment, as YORK has failed to meet its initial burden under Code of Civ. Proc. § 437¢(p)(2).
YORK has not presented sufficient facts or evidence precluding plaintiff from establishing any
element of his claims against it. In its motion, YORK incorrectly argues that Mr, HUSBAND’s

discovery responses are factually devoid of the requested information and vague and evasive.

However, plaintiff's discovery responses completely and fully identify the disputed facts in this
case. Merely alleging that discovery responses are devoid, vague or evasive without showing
how is insufficient to shift the burden of production to the non-moving party.

Finally, nowhere in defendant’s Separate Statement does defendant present affirmative
evidence negating plaintiff’s claim that his exposure to YORK asbestos-containing products was
a substantial factor in causing his asbestos-related disease. However, in its Points and
Authorities, defendant makes just such an improper and unsupported argument. Defendant
further claims that it lies with plaintiff to meet this burden. Defendant is again incorrect. The
initial burden lies with the moving party. This is a well-settled point of law. Moreover, the
moving party must address all issues within its Separate Statement. Nowhere in defendant’s
separate statement is a substantial factor raised. Nonetheless, plaintiff has addressed this issue.

All asbestos diseases are total dose-response diseases. Amy exposure is a substantial,

contributing factor, including plaintiff's exposures for which YORK is liable in this case.

Defendant has failed to shift the burden of production. Even if defendant had somehow
shifted the burden, the evidence presented in the declarations of CHARLES HUSBAND,
Charles Ay and Herman Bruch, M.D., raise triable issues of material fact regarding
Mr. HUSBAND’s asbestos exposure for which YORK is liable. Defendant is, therefore, not
entitled to summary judgment as a matier of law.

Mit
dit

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Il.
STATEMENT OF FACTS

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. (SS J.) For this entire span between the late 1950s 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 than others to tear down. (SS 2.)

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.
(SS 3.)

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. On YORK
electric motors, plaintiff sometimes had to cut windings and strips of insulation out in order to
rewind the motor. (SS 4.)

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 existing 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 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. (SS 5.)

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Of all compressors that came in for repair to Whalen Engineering’s shop, including
YORK and FRICK brand compressors, which Plaintiff personally disassembled and removed
asbestos-containing gaskets from, 95% of them had original manufacturer equipment in place,
including the asbestos-containing gaskets that Plaintiff had to scrape off. Plaintiff knew this
because they had never been rebuilt or repaired previously. (SS 6.)

Plaintiff never wore a respirator or any type of breathing equipment while performing
this work at Whalen Engineering. (SS 7.)

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. (SS
9)

Additionally, in the deposition of Fred Ziffer, in his capacity as corporate representative
for YORK INTERNATIONAL CORPORATION, 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. (SS 10)

Plaintiff's expert Charles Ay opines, 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 my 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. (SS 71.)

Additionally, Charles Ay opines, 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. (SS /2.)

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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, CHARLES HUSBAND, 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 their asbestos-related diseases. (SS 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. (SS 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, (SS /5.) 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. (SS 16.)

HL
LEGAL ARGUMENT
A. THE SCOPE OF YORK’S MOTION IS LIMITED TO THE ISSUES

PRESENTED IN ITS SEPARATE STATEMENT OF UNDISPUTED
MATERIAL FACTS

Code of Civil Procedure § 437c imposes “on the moving party both a pleading
requirement and a substantive burden in order to prevail on a motion for summary judgment.”

(Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) “[T]he initial duty to define the

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issues presented by the complaint and to challenge them factually is on the defendant who seeks
a summary judgment.” (Conn. v. National Can Corp. (1981) 124 Cal_App.3d 630, 638.) This
duty requires a defendant seeking summary judgment to set forth in its moving papers “with
specificity (1) the issues tendered by the complaint or answer which are pertinent to the
summary judgment motion and (2) cach of the grounds of law upon which the moving party is
relying in asserting that the action has no merit or there is no defense to the action.” (Juge,

12 Cal App.4th at 67.)

Specifically, “[t]he Separate Statement of Undisputed Material Facts in support of a
motion must separately identify each cause of action, claim, issue of duty or affirmative
defense, and each supporting material fact claimed to be without dispute with respect to the
cause of action, claim, issue of duty, or affirmative defense.” (Cal. Rules of Court, Rule
3.3150(d), emphasis added.) “The due process aspect of the SS requirement is self-evident, to
inform the opposing party of the evidence to be disputed to defeat the motion. (San Diego
Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal_App.4th 308, 316.) “Failure to

comply with this requirement of a SS may in the court’s discretion constitute a sufficient ground
for denial of the motion.” (Code of Civ. Proc, § 437c(b)(1).) “Facts stated elsewhere [other
than in the SS] need not be considered by the court.” (Fleet v. CBS, Inc. (1996) 50 Cal.App.4th
1911, 1916.) Due process further requires the Court to exclude any evidence which was not
timely served in accordance with Code of Civ. Proc. § 437c(a). (San Diego Watercrafts, Inc.,
102 Cal.App.4th at 316.) “Thus, when the ‘fact’ is not mentioned in the SS, it is irrelevant that
such fact might be buried in the mound of paperwork filed with the court, because the statutory
purposes are not furthered by unhighlighted facts.” (North Coast Business Park v, Nielsen
Construction Co. (1993) 17 Cal. App.4th 22, 31.)

Defendant incorrectly argues that plaintiff's discovery responses are factually devoid of
requested information, vague and evasive. In fact, plaintiff identified all requested information
in detail, including all facts regarding YORK’s liability in this case; plaintiff's witness with
relevant information regarding YORK’s liability in this case, contact information of such

witness, and facts known to such witness regarding YORK, and all documents supporting

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plaintiff's claims against YORK. Each of defendant’s arguments lacks foundation and fails as a
matter of law.

Defendant limits the scope of its motion to these issues. Defendant does not dispute that
plaintiff has an asbestos-related disease. Likewise, defendant does not present any “undisputed”
facts in its separate statement with regard to medical causation, substantial factor, or plaintiffs
damages. No other issues are properly before the Court to decide.

B. DEFENDANT’S BURDEN OF RESPONSE HAS NOT SHIFTED TO

PLAINTIFF BECAUSE PLAINTIFF’S DISCOVERY RESPONSES ARE NOT
FACTUALLY DEVOID AND PLAINTIFF CLEARLY TESTIFIED THAT HE

WAS EXPOSED TO ASBESTOS CONTAINING GASKETS IN YORK
COMPRESSORS

Defendant fails to meet its burden of showing plaintiff's causes of action have no merit.
A motion for summary judgment is a drastic measure which deprives the losing party of a trial
on the merits, and should therefore be used only with caution. (Bunzel vy. Am. Academy of
Orthopedic Surgeons (1980) 107 Cal App.3d 165, 169.) Because of the drastic nature of
summary judgment procedure, any doubts as to whether summary judgment is proper must be
resolved against the moving party. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) The
motion must not be granted unless the evidence brought forth by the moving party establishes
that there is no triable issue of material fact to be decided and that the moving party is entitled to
judgment as a matter of law. (C.C.P. § 437c (n) (0).) Absent this narrow finding, summary
judgment is not warranted.

Defendant fails to carry its threshold burden of producing competent evidence

establishing facts negating plaintiff's claims. In Aguilar v. Atlantic Richfield Company (2001)

25 Cal.4th 826, the California Supreme Court “clarified the law that courts must apply in ruling
on motions for summary judgment.” The Aguilar court held that “from commencement to
conclusion, the party moving for summary judgment bears the burden of persuasion that there is

no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Id, at

845.) "A defendant bears the burden of persuasion that ‘one or more elements of the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (1d. at

849, quoting C.C.P. § 437e(0)(2).)

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"Summary judgment law in this state, however, continues to require a defendant moving
for summary judgment to present evidence, and not simply point out through argument, that the
plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at
least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with
evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions,
and matters of which judicial notice ’ must or may ‘be taken...."" (Id. at 855., quoting C.C.P.

§ 437c(b), italics in original.)

Specifically, Aguilar ends any notion that defendants may somehow obtain summary
judgment simply by asserting, without proof, that plaintiffs have no evidence to support their
cause of action. "Language in certain decisions purportedly allowing a defendant moving for
summary judgment simply to ‘point{]’ out, through argument, ‘an absence of evidence to

support’ an element of the plaintiff's cause of action (e.g., Hunter v. Pacific Mechanical Corp.

(1995) 37 Cal. App.4th 1282, 1288, italics in original) does not reflect summary judgment law as
it has ever stood, and is accordingly disapproved." (Id., fn 23.)

YORK, as the moving party, has the burden of demonstrating through the presentation of
facts and evidence that plaintiff cannot establish one or more elements of his causes of action.
“The moving party must show that under no possible hypothesis within the reasonable purview
of the allegations of the complaint is there a material question of fact which requires

examination by trial.” (Chevron U.S.A., Inc. v, Super. Ct, (Cobb) (1992) 4 Cal. App.4th 544,

548.) “If the defendant does not satisfy its burden as the moving party. the motion must be
denied, and it is unnecessary for the court to consider the plaintiff’s opposition, if any.” (1d.,
emphasis added.)

In ruling on the motion, the court must “consider all of the evidence” and “all” of the
“inferences” reasonably drawn therefrom, and must view such evidence in the light most
favorable to the opposing party. (Aguilar, supra, 843.)

A defendant moving for summary judgment may rely on a non-moving party’s factually
devoid written discovery responses to shift the burden of proof to the non-moving party. (Union

Bank y. Super. Ct. (Demetry) (1995) 31 Cal.App.4th 573, 580-81.) Discovery in the Union

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Bank case involved written Requests for Admission and Judicial Council Form Interrogatory
answers. (1d. at 577-78.) The court found that the plaintiff's admission, coupled with the
party's response that “plaintiff believed...” that certain facts occurred constituted factually
devoid responses. (Id. at 578-79.)

Plaintiffs discovery responses are not devoid. Plaintiffs discovery responses are more
than sufficient to create a triable issue of fact. Plaintiff's responses outline the factual
circumstances through which he was exposed to asbestos as a result of his work with asbestos-
containing component parts on YORK and FRICK compressors. Plaintiff's discovery responses
clearly identify the disputed facts in this case, plaintiff's witnesses, contact information, and
facts plaintiff's witness possesses,

Plaintiff's deposition transcripts further prevent a burden shift. The substance of
Mr. HUSBAND’s deposition testimony, cited within defendant’s own motion, show that
Mr. HUSBAND worked with YORK and FRICK compressors, 30-45% of which had never had
maintenance work on them prior to that which plaintiff performed. This work included the
removal of asbestos-containing gaskets on every compressor that plaintiff performed hands-on
work to. Plaintiff’s plain deposition testimony is sufficient to create a triable issue of fact.
Defendant has presented no affirmative evidence disputing plaintiff's clear testimony.

Further, Mr. HUSBAND was directly asked at his deposition if he believed that his work
with YORK and FRICK compressors exposed him to asbestos. In both instances he directly
said, YES, because of the gaskets. YORK is aware of this testimony and has presented no
affirmative evidence which either negates, addresses, or shifts the burden of production to
plaintiff. As such, defendant has failed to shift its burden and is not entitled to judgment as a
matter of law.

c. PLAINTIFF HAS PRODUCED EVIDENCE DEMONSTRATING THAT

DISPUTED ISSUES OF MATERIAL FACT EXIST CONCERNING HIS
CAUSES OF ACTION

If the Court should find that defendant has somehow shifted its burden to plaintiff, the
Court should still deny this motion as triable issues of material fact remain. “The function of the

trial court in ruling on a motion for summary judgment is merely to determine whether such

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issues of fact exist, not to decide the merits of the issues themselves.” (Furla v. Jon Douglas
Co. (1998) 65 Cal App.4th 1069, 1076-77.) “The primary duty of the trial court is to decide
whether there is an issue of fact to be tried. If it finds one, it is then powerless to proceed
further, but must allow such issue to be tried by a jury unless a jury trial is waived.” (Walsh v.
Walsh (1941) 18 Cal.2d 439, 441, emphasis added.) “If an issue of fact is present the trial court
abuses its discretion in granting such a motion.” (Black v. Sullivan (1975) 48 Cal.App.3d 557,
567.)

The facts in support of plaintiff's motion are clear: Mr. HUSBAND was exposed to
asbestos fibers and dust in the ambient air as a result of his work with YORK and FRICK,
compressors from the late 1950s through 1966 when he worked for his father’s business,
Whalen Engineering. For this entire span between the late 1950s 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 than others.

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.

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.

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 existing asbestos-containing gasket from the compressor. During the

disassembling process, some of the gaskets would fall off. The ones that were stuck on the

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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.

Of all compressors that came in for repair to Whalen Engineering shop, including
YORK- and FRICK-brand compressors which plaintiff personally disassembled and removed
asbestos-containing gaskets from, 95% of them had original manufacturer equipment in place,
including the asbestos-containing gaskets that plaintiff had to scrape off. Plaintiff knew this
because they had never been rebuilt or repaired previously. Plaintiff never wore a respirator or
any type of breathing equipment while performing this work at Whalen Engincering.

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.
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-rand
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.

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. 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

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mask or any breathing protection when he performed this work on YORK and FRICK
compressors.

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, CHARLES HUSBAND, 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 person’s total dose. Thus ail
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. Additionally, plaintiff's expert
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. 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 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.

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. Defendant has
presented no evidence to the contrary. These facts are demonstrated within Mr. HUSBAND’s
deposition testimony, within his discovery responses, and within his declaration and those of
Charles Ay, and Herman Bruch, M.D.

The Court cannot conclude as a matter of law, based upon the evidence which plaintiff
submits in this matter, that triable issues of material fact do not exist. Given the evidence

proffered by plaintiff, and the absence of any affirmative evidence from defendant that would

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negate any element of plaintiff's case, the Court cannot conclude as a matter of law, that triable
issues of material fact do not exist.

D. PLAINTIFF’S EXPERTS’ DECLARATION MUST BE LIBERALLY
CONSTRUED AND ARE ENTITLED TO ALL FAVORABLE INFERENCES.
THEY DO NOT HAVE TO BE DETAILED, AND ANY QUESTIONS AS TO
FOUNDATION GO TO THE WEIGHT AND NOT THE ADMISSIBILITY OF

Evidence Code section 801(b) provides:
Testimony of expert witness must be...

Based on matter (including his special knowledge, skill,
experience, training, and education) perceived by or personally
known to the witness or made known to him at or before the
hearing, whether or not admissible, that is of a type that
reasonably

may be relied y upen by an expert in forming an opinion upon the
subject to which his testimony relates, unless an expert is
precluded by law from using such matter as a basis for is opinion.

The Law Revision Commission comments to 801 state:

in regard to some matters of expert opinion, an expert must, if he
is gong to give an opinion that will be helpful to the jury, rely on
reports, statements, and other information that might not be

admissible evidence.

(Tyhe matter relied upon by the expert in forming his opinion
must be of a type that reasonably may be relied upon by experts in
forming an opinion upon the subject to which his testimony
relates.

The rule stated in subdivision (b) thus permits an expert to base
his opinion upon reliable matter, whether or not admissible, of a
type that may reasonably be used in forming an opinion upon the
subject to which his expert testimony relates.

In determining whether the facts as shown by the parties give rise to a triable issue of
material fact, “the moving party’s affidavits are strictly construed while those of the opposing
are liberally construed... We accept as undisputed facts only those portions of the moving
party’s evidence that are not contradicted by the opposing party’s evidence... In other words, the
facts alleged in the evidence of the party opposing summary judgment and the reasonable

inferences therefrom must be accepted as true. (Hanson v. Grode (1999) 76 Cal.App.4th 601, at
Me

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604, citing A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427,
433-434.)

Cases dismissing expert declarations in connection with summary judgment motions do
so on the basis that the opinions were either speculative or were stated without sufficient
certainty. It is sufficient if an expert declaration establishes the matters relied upon in
expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and

the bases for the opinion, (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal. App 4th 703,

718.)

However, in deciding on the sufficiency and admissibility of expert's declarations there
are different considerations, dependant upon whether the declarations are proffered in support
of, or in opposition to, a motion for summary judgment. The court in Kelley v. Trunk (1998)
66 Cal.App.4th 519, considered the sufficiency of the declaration of defendant’s expert in
support of the defendant’s motion for summary judgment.

In Hanson v. Grode (1999) 76 Cal.App.4th 601, the court was considering the

sufficiency of the declaration of the plaintiff's expert in opposition to the defendant’s summary
jadgment motion. The court in Powell v. Kleinman (2007) 151 Cal.App.4th 112, reconciled the
two:

The court in Kelley was considering the sufficiency of the
declaration of the defendant’s expert in support of the defendant’s
motion for summary judgment. in such cases, the defendant
“bears the burden of persuasion that there is no genuine issue of
material fact and that he is entitled to judgment as a matter of
law.” (Citation) Thus the Kelley court was considering the burden
of production to make a prima facie showing of the nonexistence
of any genuine issue of material fact. To mect such a burden, the
Kelley court concluded the declaration of the defendant’s expert

ad to be detailed and with foundation. (Citing Kelley, supra, at
524) In contrast, the court in Hanson was considering the
sufficiency of the declaration of the plaintiff’s expert in
opposition to the defendant’s summary judgment motion. In such
a case, the declaration submitted by the plaintiff did not have to be
detailed, was entitled to all favorable inferences and was deemed
sufficient to defeat the summary judgment motion. [Citing
Hanson, supra, at 607-608

We conclude that both the Kelley and Hanson courts properly
applied the rule that, when considering the declarations of the
parties’ experts, we liberally construe the declarations for the

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plaintiff's experts and resolve any doubts as to the propriety of
granting the motion in. favor of plaintiff. Accordingly, we apply
this well-settled rule of evidence... [At 125-126, emphasis the
court’s.]

Likewise, in Buckwalter v. Airline Training Center (1982) 134 Cal App.3d 547, 553-

554, the court held:
The reasonableness of an expert's reliance is a question of degree,
and may well vary with the circumstances. Where, as here, there is
little or no direct evidence upon which the expert can base an
opinion, the expert may have to turn to forms of circumstantial
evidence on which he might not otherwise rely. In such
circumstances, the necessity for the information dictates that
courts accord to experts somewhat greater latitude in sources
of information than might otherwise be the case. [Emphasis
added.]

Plaintiff's expert declarations herein ~ lengthy, detailed and reasoned, stated with
certainty — are qualitatively and substantively different from those offered in Andrews v. Foster
Wheeler (2006) 138 Cal App.4th 96. The well-settled rules of evidence to construe these
declarations “liberally” with an entitlement to all “favorable inferences” cannot be ignored.

The factual bases, explanations and reasoning for the expert’s conclusions can be
transparently and readily determined. The opinions are directly based upon their personal
observations, research and testing, supported and/or based upon a plethora of scientific writings
and treatises, all specifically set forth in their declarations.

The experts’ facts, reasoning and explanations are neither obtuse or oblique. They are
not “speculation” or “conjecture” but rather are the specific well-researched and tested opinions
of experts with vast experience in the field of asbestos exposure. Their opinions are rendered
with reasoned explanations of why the underlying facts lead to their ultimate conclusion.
Moreover, as set forth above, when considering their declarations, they must be liberally
construed by the Court, entitling the declarations to all favorable inferences. Accordingly, this
matter is readily distinguishable from Andrews. Here, as opposed to Andrews, “how [the
expert] reached their conclusions” is eminently understandable.

Therefore, such declarations are admissible evidence. Here, unlike Andrews, they are

detailed and factually based with reasoned explanations of the experts’ opinions and

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conclusions. The declarations and all favorable inferences derived therefrom demonstrate that
there exist triable issues of material fact. Nothing more is needed.

Additionally, and perhaps most importantly, under the California Constitution, Article I,
§ 16; the California Evidence Code § 351; California Court Reporters v. Judicial Council (1995)

39 Cal.App.4th 15, 22; Buckwalter v. Airline Training Center (1982) 134 Cal App.3d 547, 553-

554; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126; and Cooper v. Board of
Medical Examiners (1975) 49 Cal. App.3d 931, 945, this Court lacks authority to exclude the
opinions contained in these declarations based upon an objection that these opinions supposedly
lack an adequate foundation. Such objections go to the “weight” of the expert’s opinions and
not to their “admissibility.” It is the province of the jury to decide the weight to accord an
expert’s conclusions and opinions.

Under the California Constitution, Article I, § 16, a court may not deprive a plaintiff of
his right to have a jury decide factual issues, including the weight and credence to be accorded
to expert testimony. This right is similar to the right to a jury trial afforded by the Seventh
Amendment to the U.S. Constitution, which includes the right to have a jury hear testimony of
expert witnesses. (See, e.g. Galloway v. U.S, (1943) 319 U.S, 372, 396; Talley v, Mitchell
(6th Cir. 1960) 275 F.2d 244, 245.)

Noting that Section 17 of the Arizona Constitution is similar to the California
Constitution, Article I, § 16, this Court may consider the well-reasoned opinion of the Arizona
Supreme Court in Logerquist v. McVey (Arizona 2000) 196 Ariz. 470, | P.3d 113, 130, where
that court held that the constitutional right to a trial by jury precludes a court from determining
the reliability and credibility of a qualified expert as a prerequisite to submission of the expert’s
opinions to a jury. (Id.) Questions about the accuracy and reliability of a expert’s factual basis,
data, and methods go to the weight and credibility of the expert’s testimony and are questions of
fact. “(T)he right to jury trial does not turn on the judge’s preliminary assessment of testimonial
reliability. Itis the jury’s fumction to determine accuracy, weight, or credibility.” (Id., at 131.)
The Arizona court’s holding and rationale is likewise applicable to the similar rights provided

under the California Constitution - a trial court is precluded from excluding expert testimony on

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the grounds that it allegedly lacks adequate foundation. (See, also, Islas v. D & G
Manufacturing Company, Inc. (2004) 120 Cal.App.4th 571, 577-580.)

In accord is Cooper v. Board of Medical Examiners (1975) 49 Cal. App.3d 931, 945,

where the court held that determining the qualifications of an expert and the degree of his
knowledge is a matter affecting the weight of his testimony, not its admissibility. (Scc,
also, People v. Stuller (1970) 10 Cal.App.3d 582, 597.)

Under the California Evidence Code § 351, “except as otherwise provided by statute, all
relevant evidence is admissible.” The Comment from the Law Revision Commission explains
that “Section 351 abolishes all limitations on the admissibility of relevant evidence except those
that are based on a statute, including a Constitutional provision.” Both the express language and
the legislative history of California Evidence Code § 351 preclude this Court from excluding
relevant evidence except when a statute specifically authorizes such exclusion. Since no
provision of the Evidence Code authorizes the exclusion of relevant expert testimony for lack of
an adequate foundation, California trial courts have no authority to exclude expert testimony on
that basis. (See, also Kaplan v. Superior Court (1971) 15 Cal.App.3d 785; Ruiz v. Minnesota
Mining & Manufacturing Co. (1971) 15 Cal. App.3d 462, 464-465, 467-468; Allen v. Superior
Court (1984) 151 Cal. App.3d 447, 451; People v. Guntert (1981) 126 Cal.App.3d Supp. 1. 9.)

A court simply does not have the authority to devise new rules of evidence, since under
the doctrine of separation of powers, that right is the legislature’s alone. (California Court
Reporters v. Judicial Council (1995) 39 Cal.App.4th 15, 22.) Evidence Code section 351
clearly limits a trial judge’s ability to exclude expert testimony. Once a declarant is recognized
as an expert, whether his or her opinions have sufficient “foundation” is a question of weight,
not admissibility, and must be determined by a jury.

And in a summary judgment proceeding, as set forth, supra, an expert’s declaration must
be liberally construed. The requisite of a detailed, reasoned explanation for expert opinions
applies to “expert opinions in support of summary judgment,” not to expert declarations in
opposition to summary judgment. (Powell v. Kleinman, supra, at 128.) But in any event, the

dif

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experts’ declarations proffered here are detailed and factually based, and under any analysis they
must be admitted and considered.
E. UNDER LINEAWEAVER AND RUTHERFORD, WHETHER OR NOT A

PARTICULAR EXPOSURE WAS A SUBSTANTIAL FACTOR IN
PLAINTIFF’S DISEASE IS A MATTER OF FACT, NOT OF LAW

As defendant states, Lincaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409

establishes that plaintiff must show exposure to defendant’s product. Plaintiff has here done
that, Lineaweaver does not attempt to quantify how much exposure there must be. Defendant’s
reliance on Lineaweaver to claim that plaintiffs exposure to asbestos fibers attributable to
defendant is not a substantial factor in the causation of plaintiff's asbestos-related illness is
misplaced. It is important here to distinguish between insufficient evidence of exposure, which
Lineaweaver addresses, and insufficient exposure. Defendant has inaccurately conflated the
two. Factors such as frequency of exposure, regularity of exposure, and proximity of the
asbestos product to plaintiff are relevant but not determinative. (Id. at 1416.) “Ultimately, the
sufficiency of the evidence of causation will depend on the unique circumstances of each case.”

(id. at 1417, quoting Lockwood v. AC & S, Inc. (1987) 109 Wn.2d 235 [744 P.2d 605, 613].)

Defendant quotes Lineaweaver to justify its claim that plaintiffs exposure to its products
was so small it did not matter. The court actually said precisely the opposite of what defendant

“

claims: “However, it has been suggested that a force which plays only an. ‘infinitesimal’ or
‘theoretical’ part is not a substantial factor. (People v. Caldwell (1984) 36 Cal.3d 210, 220 [203
Cal. Rptr. 433, 681 P.2d 274].) But the word ‘substantial’ should not be weighted too heavily.”

(id. at 1415.) The Supreme Court in its decision in Rutherford v. Owens-Illinois (1997)

16 Cal 4th. 953 warned of defendants’ efforts to twist the meaning of the word “substantial”:

Undue emphasis should not be placed on the term “substantial.”
For example, the substantial factor standard, formulated to aid
plaintiffs as a broader rule of causality than the “but for” test, has
been invoked by defendants whose conduct is clearly a “but for”
cause of plaintiff's injury but is nevertheless urged as an
insubstantial contribution to the injury. (Prosser & Keeton on
Torts 5th ed., 1988 supp. § 41, pp. 43-44.) Misused in this way,
the substantial factor test “undermines the principles of
comparative negligence, under which a party is responsible for his
or her share of negligence and the harm caused thereby.”

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[Mitchell v. Gonzales (1984) 54 Cal.3d 1053, 1053.] [Rutherford,
supra, at
Defendant’s argument is an attempt to establish an improper “but for” causation
standard. The “but for” test of cause in fact, which states that a defendant’s conduct is a cause
of an injury if the injury would not have occurred “but for” that conduct, has been expressly
rejected by the California Supreme Court. (Mitchell v. Gonzales, (1991) 54 Cal.3d 1041.) The
reason for abandoning the “but for” rule is that it improperly leads jurors to focus on
cause that is spatially or temporally closest to harm. (Id., 54 Cal.3d at 1052.) The
“substantial f