Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023
EXHIBIT X
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023
Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014)
176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Journal D.A.R. 10,005
[4] fact issue existed as to applicability of sophisticated
user defense.
KeyCite Yellow Flag - Negative Treatment
Distinguished by Lyons v. Colgate-Palmolive Co., Cal.App. 1 Dist.,
October 19, 2017
Two judgments affirmed, and two judgments reversed.
228 Cal.App.4th 582
Court of Appeal,
Third District, California.
West Headnotes (21)
Verna Lee COLLIN, Plaintiff and Appellant,
v.
[1] Judgment
CALPORTLAND COMPANY et
-- Weight and sufficiency
al., Defendants and Respondents.
A defendant moving for summary judgment
Verna Lee Collin, Plaintiff and Appellant,
or summary adjudication need not
v.
conclusively negate an element of the
J-M Manufacturing Company, plaintiff's cause of action; instead, the
Inc., Defendant and Respondent. defendant show through devoid
may factually
discovery responses that the plaintiff does not
Co63875
possess and cannot reasonably obtain needed
evidence. Cal. Civ. Proc. Code § 437c(f)(2).
Co65180
24 Cases that cite this headnote
Filed July 1, 2014
Synopsis 12] Judgment
Background: Asbestos user brought action against Existence or non-existence of fact issue
asbestos manufacturers for negligence, strict liability, false A triable issue of material fact exists, as would
representation, and intentional tort/failure to warn. User's preclude judgment, if and only if the
summary
wife substituted herself as user's successor in interest after evidence permits the trier of fact to
reasonably
he died. The Superior Court, Sacramento County, No. find the contested fact in favor of the plaintiff
34200900045133CUASGDS, Shelleyanne W. L. Chang, in accordance with the applicable standard of
J., granted judgment for four manufacturers. Cal. Civ. Code
summary proof. Proc. § 437c(p)(2).
Wife appealed.
19 Cases that cite this headnote
[31 Products
Holdings: The Court of Appeal, Mauro, J., held that: Liability
Proximate Cause
[1] asbestos user's wife could not reasonably obtain needed Products Liability
evidence that user had been exposed to manufacturer's Asbestos
asbestos-containing plastic cement; A plaintiff claiming asbestos-related injuries
must establish some exposure to the asbestos-
[2]asbestos user's wife could not reasonably obtain needed
containing product or activity for which the
evidence that user had been exposed to manufacturer's
defendant is responsible, and if there has been
asbestos-containing premixed joint compounds; but
no exposure, the plaintiff cannot demonstrate
that the defendant caused his or her injuries.
[3] fact issue existed as to whether user was exposed to a
particular brand of asbestos cement pipe after corporation 3 Cases that cite this headnote
began selling it; and
|4| Judgment
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023
Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014)
176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Joumal D.A.R. 10,005
Weight and sufficiency insufficient to preclude summary judgment
Evidence that the defendant propounded for manufacturer on products liability claims
comprehensive requests arising from user's mesothelioma, where user
sufficiently discovery
and that the plaintiff provided admitted he never heard of manufacturer's
factually
insufficient responses can raise an inference gun plastic cement, and he never saw the word
"gun"
that the plaintiff cannot prove as on a bag of cement. Cal. Civ. Proc.
causation,
would support judgment for the Code § 437c(p)(2).
summary
defendant. Cal. Civ. Proc. Code § 437c(p)(2).
2 Cases that cite this headnote
11 Cases that cite this headnote
17) Judgment
-- Presumptions and burden of proof
[5l Judgment
Torts Although a party may rely on reasonable
Plastic cement manufacturer made a sufficient inferences drawn from direct and
that deceased asbestos user's wife did circumstantial evidence to satisfy its burden
showing
not possess and could not obtain on summary judgment, courts do not draw
reasonably
needed evidence that user had been exposed inferences from thin air. Cal. Civ. Proc. Code
to manufacturer's asbestos-containing plastic § 437c.
cement, thus shifting the burden to wife
3 Cases that cite this headnote
on manufacturer's motion for summary
judgment on products liability claims arising
from user's mesothelioma, with evidence that [81 Judgment
the only asbestos-containing cement product Torts
the manufacturer had produced was called Plastic cement manufacturer made a sufficient
cement,"
"gun plastic that user never saw a that deceased asbestos user's wife did
showing
bag of cement used for exterior plastering that not possess and could not reasonably obtain
"gun"
had the word on it, that user could needed evidence that user had been exposed to
not say whether he had any information that manufacturer's asbestos-containing premixed
he was ever on a job where anybody used joint thus the burden to
compounds, shifting
manufacturer's gun plastic cement, and that wife on manufacturer's motion for summary
user had never heard of manufacturer's gun judgment on products claims
liability arising
plastic cement before being deposed for the from user's with evidence that
mesothelioma,
lawsuit. Cal. Civ. Proc. Code § 437c(p)(2). user had been able to recall that he
only
was exposed to manufacturer's compounds
4 Cases that cite this headnote years"
"over the and that he could not specify
any particular year when he was exposed,
|6] Judgment and that during the last six of the 21 years
Torts when user could have been exposed to the
judgment manufacturer's premixed joint compounds
Plastic cement user's summary
he exposed to plastic not all of them contained asbestos. Cal. Civ.
testimony that was
cement that came in Proc. Code § 437c(p)(2).
packaging bearing
manufacturer's name, that it was similar
3 Cases that cite this headnote
in appearance, function, and packaging
to manufacturer's asbestos-containing "gun
cement,"
plastic and that it was sometimes [9] Products Liability
applied using a gun, was speculative on Proximate Cause
the issue of whether the plastic cement Products Liability
cement"
was "gun plastic and thus was Asbestos
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023
Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014)
176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Journal D.A.R. 10,005
Causation element of asbestos user's products forfeited those objections in user's wife's
liability claims against manufacturer required appeal from the summary judgment in user's
proof of the fact, not the date, of exposure. and wife's products liability action. Cal. Civ.
Proc. Code § 437c(b)(5). (c); Cal. R. Ct.
1 Cases that cite this headnote
3.1352, 3.1354.
2 Cases that cite this headnote
(10] Appeal and Error
-- Judgment
manufacturers' [14] Products Liability
Asbestos failure to object
to user's special answer or Proximate Cause
interrogatory
his deposition testimony as vague or made A plaintiff claiming asbestos-related injuries
in response to a leading question in their must prove that exposure to the defendant's
summary judgment papers or at the hearing asbestos product or activity was, in reasonable
on their summary judgment motions forfeited medical probability, a substantial factor in
those objections in user's wife's appeal from causing or contributing to the plaintiffs
the summary judgment in user's and wife's injury.
products liability action. Cal. Civ. Proc. Code
4 Cases that cite this headnote
§ 437c(b)(5), (c); Cal. R. Ct. 3.1352, 3.1354.
2 Cases that cite this headnote
115| Products Liability
-- Warnings or Instructions
[111 Judgment In a manufacturer or supplier has a
general,
Tort cases in general to warn consumers about the dangers
duty
Genuine issue of material fact existed as to and risks inherent in the use of its product,
whether asbestos user was exposed to any of a and a failure to warn gives rise to liability for
particular brand of asbestos cement pipe after injuries caused thereby. CACI No. 1205.
a new corporation was formed to sell the pipe,
Cases that cite this headnote
thus precluding summary judgment for the
corporation in user's and his wife's products
liability action. Products
[16] Liability
Sophisticated user
Cases that cite this headnote
The sophisticated user defense is an exception
to a manufacturer's or supplier's general duty
[121 Appeal and Error to warn.
Matters not included or shown in general
1 Cases that cite this headnote
Court of Appeal does not consider evidence
that is not in the record in reviewing a motion
for summary judgment· Products
[171 Liability
. -- Design
1 Cases that cite this headnote
The sophisticated user defense does not apply
to a cause of action for design defect.
[13] Appeal and Error
Judgment 1 Cases that cite this headnote
manufacturers'
Asbestos failure to object to
document used as an exhibit at a deposition on Products
|18| Liability
hearsay, authentication, or relevance grounds Sophisticated user
in their summary judgment papers or at the
hearing on their summary judgment motions
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023
Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014)
176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Joumal D.A.R. 10,005
Under the sophisticated user defense, a
manufacturer is not liable to a sophisticated Cases that cite this headnote
user of its product for failure to warn about
the product's dangers if the sophisticated user
knew or should have known of the dangers.
**282 APPEAL from a summary judgment of the
1 Cases that cite this beadnote Superior Court of Shelleyanne W. L.
Sacramento,
Chang, Judge. Affirmed and Reversed. (Super. Ct. No.
Products 34200900045133CUASGDS)
[19] Liability
Sophisticated user
Attorneys and Law Firms
The requirement that the user "should
known"
have of the dangers, to apply Waters, Kraus & Paul, Paul B. Cook and Michael B.
the sophisticated user defense to products Gurien, El Segundo, for Plaintiff and Appellant.
liability, is an objective standard that
Berkes Crane Robinson & Seal, Los Angeles, Robert H.
examines what is generally known or should
Berkes, Steven M. Crane and Barbara S. Hodous for
have been known to the class of sophisticated
Defendant and Respondent CalPortland Company.
users at the time of the plaintiffs injury, and
it does not inquire into the user's subjective
Horvitz & Levy, Lisa Perrochet, Dean A. Bochner,
knowledge.
Encino, DeHay & Elliston and Jennifer Judin,
Oakland, for Defendant and Respondent Kaiser Gypsum
Cases that cite this headnote
Company, Inc.
[20] Products Liability Walsworth Franklin Bevins & McCall, Helen M. Luetto,
Sophisticated user Orange, and Ingrid K. Campagne, San Francisco,
for Defendants and Respondents J-M Manufacturing
The focus of the sophisticated user defense
Company, Inc. and Formosa Plastics Corporation USA.
to products liability is whether the danger
in question was so generally known within . .
Opimon
the trade or profession that a manufacturer
should not have been expected to provide J.
MAURO,
a warning specific to the group to which
plaintiff belonged. *585 After Loren A. Collin was diagnosed with
mesothelioma, he and his wife Verna Lee Collin sued 22
Cases that cite this headnote entities for negligence, strict false representation,
liability,
intentional tort/failure to warn, alter ego, and loss of
consortium, alleging Loren was exposed to asbestos from
1211 Judgment
defendants'
products or activities when he worked in
Tort cases in general
fact existed as various construction trades.
Genuine issue of material
to whether construction worker knew or
Plaintiff now appeals from the grant of summary
should have known of the dangers of
judgment in favor of four defendants: CalPortland
asbestos exposure from using asbestos cement
Company (CalPortland), Kaiser Gypsum Company,
pipe, thus precluding summary judgment
in his Inc. (Kaiser Gypsum), J-M Manufacturing Company,
for pipe manufacturer worker's and
action under the Inc. (J-MM), and Formosa Plastics Corporation USA
wife's products liability
(Formosa), named as an alter ego of J-MM. Plaintiff
sophisticated user defense.
**283 contends those defendants did not show that
See 6 Witkin, Summary of Cal. Law (10th ed. plaintiff does not possess and cannot reasonably obtain
2005) Torts, § 1490 et seq. evidence of exposure to an asbestos-containing product
for which defendants are responsible, but even if the
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023
Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014)
176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Journal D.A.R. 10,005
burden shifted to plaintiff, the evidence is sufficient to Loren was exposed to an asbestos-containing product for
support an inference of exposure. Plaintiff also claims J- which the defendant was responsible.
MM and Formosa did not establish that Loren was a
sophisticated user who knew or should have known of CalPortland argued that despite several opportunities
the potential risks and dangers of using J-MM's asbestos to state facts supporting his claims, Loren did not say
cement,"
cement pipe. he was exposed to "Colton gun plastic which
was the only asbestos-containing cement CalPortland
Our discussion is organized by defendant: part I addresses manufactured and sold. Plaintiff responded that a trier of
CalPortland, part II involves Kaiser Gypsum, and part fact could infer from the similarities between the plastic
III pertains to J-MM and its
Preview
FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023 EXHIBIT X FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023 Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014) 176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Journal D.A.R. 10,005 [4] fact issue existed as to applicability of sophisticated user defense. KeyCite Yellow Flag - Negative Treatment Distinguished by Lyons v. Colgate-Palmolive Co., Cal.App. 1 Dist., October 19, 2017 Two judgments affirmed, and two judgments reversed. 228 Cal.App.4th 582 Court of Appeal, Third District, California. West Headnotes (21) Verna Lee COLLIN, Plaintiff and Appellant, v. [1] Judgment CALPORTLAND COMPANY et -- Weight and sufficiency al., Defendants and Respondents. A defendant moving for summary judgment Verna Lee Collin, Plaintiff and Appellant, or summary adjudication need not v. conclusively negate an element of the J-M Manufacturing Company, plaintiff's cause of action; instead, the Inc., Defendant and Respondent. defendant show through devoid may factually discovery responses that the plaintiff does not Co63875 possess and cannot reasonably obtain needed evidence. Cal. Civ. Proc. Code § 437c(f)(2). Co65180 24 Cases that cite this headnote Filed July 1, 2014 Synopsis 12] Judgment Background: Asbestos user brought action against Existence or non-existence of fact issue asbestos manufacturers for negligence, strict liability, false A triable issue of material fact exists, as would representation, and intentional tort/failure to warn. User's preclude judgment, if and only if the summary wife substituted herself as user's successor in interest after evidence permits the trier of fact to reasonably he died. The Superior Court, Sacramento County, No. find the contested fact in favor of the plaintiff 34200900045133CUASGDS, Shelleyanne W. L. Chang, in accordance with the applicable standard of J., granted judgment for four manufacturers. Cal. Civ. Code summary proof. Proc. § 437c(p)(2). Wife appealed. 19 Cases that cite this headnote [31 Products Holdings: The Court of Appeal, Mauro, J., held that: Liability Proximate Cause [1] asbestos user's wife could not reasonably obtain needed Products Liability evidence that user had been exposed to manufacturer's Asbestos asbestos-containing plastic cement; A plaintiff claiming asbestos-related injuries must establish some exposure to the asbestos- [2]asbestos user's wife could not reasonably obtain needed containing product or activity for which the evidence that user had been exposed to manufacturer's defendant is responsible, and if there has been asbestos-containing premixed joint compounds; but no exposure, the plaintiff cannot demonstrate that the defendant caused his or her injuries. [3] fact issue existed as to whether user was exposed to a particular brand of asbestos cement pipe after corporation 3 Cases that cite this headnote began selling it; and |4| Judgment FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023 Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014) 176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Joumal D.A.R. 10,005 Weight and sufficiency insufficient to preclude summary judgment Evidence that the defendant propounded for manufacturer on products liability claims comprehensive requests arising from user's mesothelioma, where user sufficiently discovery and that the plaintiff provided admitted he never heard of manufacturer's factually insufficient responses can raise an inference gun plastic cement, and he never saw the word "gun" that the plaintiff cannot prove as on a bag of cement. Cal. Civ. Proc. causation, would support judgment for the Code § 437c(p)(2). summary defendant. Cal. Civ. Proc. Code § 437c(p)(2). 2 Cases that cite this headnote 11 Cases that cite this headnote 17) Judgment -- Presumptions and burden of proof [5l Judgment Torts Although a party may rely on reasonable Plastic cement manufacturer made a sufficient inferences drawn from direct and that deceased asbestos user's wife did circumstantial evidence to satisfy its burden showing not possess and could not obtain on summary judgment, courts do not draw reasonably needed evidence that user had been exposed inferences from thin air. Cal. Civ. Proc. Code to manufacturer's asbestos-containing plastic § 437c. cement, thus shifting the burden to wife 3 Cases that cite this headnote on manufacturer's motion for summary judgment on products liability claims arising from user's mesothelioma, with evidence that [81 Judgment the only asbestos-containing cement product Torts the manufacturer had produced was called Plastic cement manufacturer made a sufficient cement," "gun plastic that user never saw a that deceased asbestos user's wife did showing bag of cement used for exterior plastering that not possess and could not reasonably obtain "gun" had the word on it, that user could needed evidence that user had been exposed to not say whether he had any information that manufacturer's asbestos-containing premixed he was ever on a job where anybody used joint thus the burden to compounds, shifting manufacturer's gun plastic cement, and that wife on manufacturer's motion for summary user had never heard of manufacturer's gun judgment on products claims liability arising plastic cement before being deposed for the from user's with evidence that mesothelioma, lawsuit. Cal. Civ. Proc. Code § 437c(p)(2). user had been able to recall that he only was exposed to manufacturer's compounds 4 Cases that cite this headnote years" "over the and that he could not specify any particular year when he was exposed, |6] Judgment and that during the last six of the 21 years Torts when user could have been exposed to the judgment manufacturer's premixed joint compounds Plastic cement user's summary he exposed to plastic not all of them contained asbestos. Cal. Civ. testimony that was cement that came in Proc. Code § 437c(p)(2). packaging bearing manufacturer's name, that it was similar 3 Cases that cite this headnote in appearance, function, and packaging to manufacturer's asbestos-containing "gun cement," plastic and that it was sometimes [9] Products Liability applied using a gun, was speculative on Proximate Cause the issue of whether the plastic cement Products Liability cement" was "gun plastic and thus was Asbestos FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023 Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014) 176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Journal D.A.R. 10,005 Causation element of asbestos user's products forfeited those objections in user's wife's liability claims against manufacturer required appeal from the summary judgment in user's proof of the fact, not the date, of exposure. and wife's products liability action. Cal. Civ. Proc. Code § 437c(b)(5). (c); Cal. R. Ct. 1 Cases that cite this headnote 3.1352, 3.1354. 2 Cases that cite this headnote (10] Appeal and Error -- Judgment manufacturers' [14] Products Liability Asbestos failure to object to user's special answer or Proximate Cause interrogatory his deposition testimony as vague or made A plaintiff claiming asbestos-related injuries in response to a leading question in their must prove that exposure to the defendant's summary judgment papers or at the hearing asbestos product or activity was, in reasonable on their summary judgment motions forfeited medical probability, a substantial factor in those objections in user's wife's appeal from causing or contributing to the plaintiffs the summary judgment in user's and wife's injury. products liability action. Cal. Civ. Proc. Code 4 Cases that cite this headnote § 437c(b)(5), (c); Cal. R. Ct. 3.1352, 3.1354. 2 Cases that cite this headnote 115| Products Liability -- Warnings or Instructions [111 Judgment In a manufacturer or supplier has a general, Tort cases in general to warn consumers about the dangers duty Genuine issue of material fact existed as to and risks inherent in the use of its product, whether asbestos user was exposed to any of a and a failure to warn gives rise to liability for particular brand of asbestos cement pipe after injuries caused thereby. CACI No. 1205. a new corporation was formed to sell the pipe, Cases that cite this headnote thus precluding summary judgment for the corporation in user's and his wife's products liability action. Products [16] Liability Sophisticated user Cases that cite this headnote The sophisticated user defense is an exception to a manufacturer's or supplier's general duty [121 Appeal and Error to warn. Matters not included or shown in general 1 Cases that cite this headnote Court of Appeal does not consider evidence that is not in the record in reviewing a motion for summary judgment· Products [171 Liability . -- Design 1 Cases that cite this headnote The sophisticated user defense does not apply to a cause of action for design defect. [13] Appeal and Error Judgment 1 Cases that cite this headnote manufacturers' Asbestos failure to object to document used as an exhibit at a deposition on Products |18| Liability hearsay, authentication, or relevance grounds Sophisticated user in their summary judgment papers or at the hearing on their summary judgment motions FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023 Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014) 176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Joumal D.A.R. 10,005 Under the sophisticated user defense, a manufacturer is not liable to a sophisticated Cases that cite this headnote user of its product for failure to warn about the product's dangers if the sophisticated user knew or should have known of the dangers. **282 APPEAL from a summary judgment of the 1 Cases that cite this beadnote Superior Court of Shelleyanne W. L. Sacramento, Chang, Judge. Affirmed and Reversed. (Super. Ct. No. Products 34200900045133CUASGDS) [19] Liability Sophisticated user Attorneys and Law Firms The requirement that the user "should known" have of the dangers, to apply Waters, Kraus & Paul, Paul B. Cook and Michael B. the sophisticated user defense to products Gurien, El Segundo, for Plaintiff and Appellant. liability, is an objective standard that Berkes Crane Robinson & Seal, Los Angeles, Robert H. examines what is generally known or should Berkes, Steven M. Crane and Barbara S. Hodous for have been known to the class of sophisticated Defendant and Respondent CalPortland Company. users at the time of the plaintiffs injury, and it does not inquire into the user's subjective Horvitz & Levy, Lisa Perrochet, Dean A. Bochner, knowledge. Encino, DeHay & Elliston and Jennifer Judin, Oakland, for Defendant and Respondent Kaiser Gypsum Cases that cite this headnote Company, Inc. [20] Products Liability Walsworth Franklin Bevins & McCall, Helen M. Luetto, Sophisticated user Orange, and Ingrid K. Campagne, San Francisco, for Defendants and Respondents J-M Manufacturing The focus of the sophisticated user defense Company, Inc. and Formosa Plastics Corporation USA. to products liability is whether the danger in question was so generally known within . . Opimon the trade or profession that a manufacturer should not have been expected to provide J. MAURO, a warning specific to the group to which plaintiff belonged. *585 After Loren A. Collin was diagnosed with mesothelioma, he and his wife Verna Lee Collin sued 22 Cases that cite this headnote entities for negligence, strict false representation, liability, intentional tort/failure to warn, alter ego, and loss of consortium, alleging Loren was exposed to asbestos from 1211 Judgment defendants' products or activities when he worked in Tort cases in general fact existed as various construction trades. Genuine issue of material to whether construction worker knew or Plaintiff now appeals from the grant of summary should have known of the dangers of judgment in favor of four defendants: CalPortland asbestos exposure from using asbestos cement Company (CalPortland), Kaiser Gypsum Company, pipe, thus precluding summary judgment in his Inc. (Kaiser Gypsum), J-M Manufacturing Company, for pipe manufacturer worker's and action under the Inc. (J-MM), and Formosa Plastics Corporation USA wife's products liability (Formosa), named as an alter ego of J-MM. Plaintiff sophisticated user defense. **283 contends those defendants did not show that See 6 Witkin, Summary of Cal. Law (10th ed. plaintiff does not possess and cannot reasonably obtain 2005) Torts, § 1490 et seq. evidence of exposure to an asbestos-containing product for which defendants are responsible, but even if the FILED: ERIE COUNTY CLERK 03/03/2023 08:35 PM INDEX NO. 815818/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 03/03/2023 Collin v. CalPortland Co., 228 Cal.App.4th 582 (2014) 176 Cal.Rptr.3d 279, 14 Cal. Daily Op. Serv. 8673, 2014 Daily Journal D.A.R. 10,005 burden shifted to plaintiff, the evidence is sufficient to Loren was exposed to an asbestos-containing product for support an inference of exposure. Plaintiff also claims J- which the defendant was responsible. MM and Formosa did not establish that Loren was a sophisticated user who knew or should have known of CalPortland argued that despite several opportunities the potential risks and dangers of using J-MM's asbestos to state facts supporting his claims, Loren did not say cement," cement pipe. he was exposed to "Colton gun plastic which was the only asbestos-containing cement CalPortland Our discussion is organized by defendant: part I addresses manufactured and sold. Plaintiff responded that a trier of CalPortland, part II involves Kaiser Gypsum, and part fact could infer from the similarities between the plastic III pertains to J-MM and its