On March 02, 2009 a Judgment was filed involving a dispute between Husband, Charles, and Albay Construction Company, All Asbestos Defendants See Scanned Documents, American Conference Of Governmental Industrial, Asbestos Defendants, Asbestos Manufacturing Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Bell Asbestos Mines Ltd., Bigge Crane And Rigging Co., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Bucyrus International Inc, Carone Brothers, Inc., Cbs Corporation,, Certainteed Corporation, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Conocophillips Company, Csk Auto, Inc., Daimlerchrysler Corporation, Daimlerchrysler Corporation (And Not The Claims, Dillingham Construction, N.A., Inc., Does 1-8500, Emsco Asbestos Company, Fibre & Metal Products Company, Forcee Manufacturing Corporation, Garlock Sealing Technologies Llc, Gatke Corporation, Georgia-Pacific Corporation, Georgia-Pacific Llc,, Hamilton Materials, Inc, Hanson Permanente Cement, Inc. Fka Kaiser Cement, H. Krasne Manufacturing Company, Honeywell International Inc.,, Ingersoll-Rand Company, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Lasco Brake Products, Lear Siegler Diversified Holdings Corp., L.J. Miley Company, Maremont Corporation, Marine Engineering And Supply Company, Metropolitan Life Insurance Company, Molded Industrial Friction Corporation, Morton International, Inc., National Transport Supply, Inc., Owens-Illinois, Inc., Pacific Gas And Electric Company, Parker Hannifin Corporation, Plant Insulation Company, Pneumo Abex Llc, Quintec Industries, Inc., Riteset Manufacturing Company, Rossendale-Ruboil Company, Santa Fe Braun, Inc. As Successor-In-Interest To, Shell Oil Company, Silver Line Products, Inc., Southern Friction Materials Company, Standard Motor Products, Inc., Standco, Inc., Stuart-Western, Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Underwriters Laboratories, Inc., Union Carbide Corporation, Universal Friction Materials Company, U.S. Spring & Bumper Company, Wheeling Brake Block Manufacturing Company, York International Corporation, for civil in the District Court of San Francisco County.
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Dean Pollack, State Bar No. 176440 Nicholas Burke, State Bar No. 256660 BURNHAM BROWN ELECTRONICALLY A Professional Law Corporation P.O. Box 119 FILED Superior Court of California, Oakland, California 94604 County of San Francisco wee 1901 Harrison Street, 11th Floor JUL 28 2011 Oakland, California 94612 Clerk of the Court Telephone: (510) 444-6800 BY: JUDITH NUNEZ Deputy Clerk Facsimile: {510} 835-6666 Attorneys for Defendant YORK INTERNATIONAL CORPORATION SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO 10 UNLIMITED JURISDICTION i CHARLES HUSBAND, No. CGC-09-275098 12 Plaintiff, DEFENDANT YORK INTERNATIONAL CORPORATION’S 13 v. SEPARATE STATEMENT IN SUPPORT OF ITS MOTION FOR 14 ASBESTOS DEFENDANTS (B“P), SUMMARY JUDGMENT 15 Defendants. Date: October 13, 2011 Time: 9:30 am. 16 Dept.: 220 (Asbestos) Judge: Hon. Harold E. Kahn 17 Complaint Filed: March 2, 2009 18 19 20 Defendant YORK INTERNATIONAL CORPORATION (“York”) submits the following 21 statement of undisputed material facts in support of its motion for summary judgment with 22. eference_ to supporting documentation, pursuant to California Civil Procedure Code section 23 437c(b). By reason of these facts, it is established that no triable issue of material facts exists 24 bearing the essential element of causation commen to every cause of action alleged against 25 York. 26 Plaintiff's causes of action for Negligence, Strict Liability, False Representation, 27 Premises Owner/Contractor Liability and Punitive Damages must fail because Plaintiff has 28 failed to proffer evidence establishing causation between York and Plaintiff's injuries. i DEF. YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT IN CGC-09-275098 SUPPORT OF MOTION FOR SUMMARY JUDGMENT MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE/ MATERIAL FACTS/SUPP. EVIDENCE SUPPORTING EVIDENCE I Plaintiff Charles Husband (“Plaintiff”) brings this personal injury action arising out of Plaintiff's alleged exposure to a plethora of asbestos-containing products. Plaintiff's Complaint for Personal Injury — Asbestos (“Complaint”) attached to Index of Documentary Evidence (“Index”) as Exhibit A 2 Plaintiff filed an Amended Complaint on September 23, 2010, designating York as DOE 13. Plaintiff's Amended Complaint. attached to Index as Exhibit B. 4 3 Plaintiff alleges the following causes of 10 action against York: Negligence, Strict Liability, False Representation, Premises i Owner/Contractor Liability and Punitive Damages. Complaint, attached to the Index as 2 Exhibit A. 13 4 York propounded Special Interrogatories and Requests for Production of 14 Documents upon Plaintiff seeking all facts, witnesses, documents and corroborating 15 evidence supporting his claims against York. Defendant York International Corporation’s 16 Special Interrogatories to Plaintiff, Set One. attached to Index as Exhibit C: Defendant 17 York International Corporation’s Request for Production of Documents to Plaintiff, Set One. 18 attached to Index as Exhibit D. 19 5 In his responses to York’s Special Interrogatories, Plaintiff alleges that he 20 “performed maintenance and repairs to various commercial refrigeration compressors” at 21 Whelen Engineering in Emeryville, CA from the early 1960s to the mid-1960s. Plaintiff 22. Charles Husband’s-Response to Defendant~ York International Corporation’s Special 23 Interrogatories, Set One, at 2:12-15, attached to Index as Exhibit E. 24 6 Plaintiff further alleges that the “[t}wo 25 brands of compressors plaintiff repaired were Frick and York International...Plaintiff's 26 repairs...required him to open them up and remove all asbestos containing gaskets. 27 Plaintiff Charles Husband’s Response to Defendant York International Corporation’s 28 Special Interrogatories, Set One at 2:15-17. DEF. YORK INTERNATIONAL CORPORATION’S SEFARATE STATEMENT IN CGC-09-275098 SUPPORT OF MOTION FOR SUMMARY JUDGMENT MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE/ MATERIAL FACTS/SUPP. EVIDENCE SUPPORTING EVIDENCE attached to Index as Exhibit E. 7 Plaintiff further alleges that the asbestos-containing gaskets removed from the compressors were original. Plaintiff Charles Husband’s Response to Defendant York International Corporation’s Special Interrogatories. Set One at 2:18. attached to Index as Exhibit E. 8 Plaintiff's responses to York’s Special Interrogatories do not identify any witnesses with the requested necessary contact information specifically linking York to Plaintiff's exposure to asbestos. Plaintiff ‘s Response to Defendant York International Corporation’s Special 10 Interrogatories, Set One, at 6:1-9, 10:25-1 1:4. 13:27-14:6, 16:22-25, 18:11-14, attachedto 11 Index as Exhibit E. 12 9 Plaintiff provided vague and evasive responses to York’s Request for Production of 13 Documents, which essentially identified the following documents allegedly linking York to 14 Plaintiff's alleged exposure to asbestos: employment records, Plaintiff's complaint, 15 standard interrogatory responses, deposition transcripts, and GO 129 responses. Plaintiff's 16 Response to York’s Request for Production of Documents, Set One, at 1:23-3:28, attached to 17 Index as Exhibit F. 18 10. At deposition, Plaintiff testified that his job at Whelen was to disassemble 19 compressors, submerge them in a solvent, and then clean them, which involved the removal 20 of gasket material. Deposition of Plaintiff’ Charles Husband, dated April 18, 2011 at 21 73:18-74:22 at attached to Index as Exhibit G. 22. It: Plaintiff disassembled an average of fifteen or twenty compressors per week during 23 the time he worked at Whelen. Deposition of Plaintiff Charles Husband, dated April 18. 24 2011 at 79:5-7, attached to Index as Exhibit G. 25 12. Plaintiff further testified that approximately twenty-five or thirty percent of 26 the compressors were York brand compressors and ten or fifteen percent were Frick 27 compressors. Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 81:1-5. 28 109:13-16, attached to Index as Exhibit G. 3 DEF. YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT IN CGC-09-275098 SUPPORT OF MOTION FOR SUMMARY JUDGMENT MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE/ MATERIAL FACTS/SUPP, EVIDENCE SUPPORTING EVIDENCE 13. Plaintiff testified that during the entire cleaning process, the York and Frick compressors were submerged in solvent. Deposition of Plaintiff, dated April 18, 2011 at 99:2-19, 113:3-5, attached to Index as Exhibit G. Y 14. Plaintiff did not observe anyone in his presence who he thought was a York employee. Deposition of Plaintiff Charles Husband, dated April 18,2011 at 104:2-5 attached to Index as Exhibit G. 15. Plaintiff admits that the work he performed on the York and Frick Compressors 10 for Whalen was the only work he has ever performed with or around any York or Frick 11 equipment at any time. Deposition of Plaintiff Charles Husband, dated April 18, 2011 at 12 103:15-104:1, 118:14-17, attached to the Index. as Exhibit G: Deposition of Plaintiff Charies 13 Husband, dated April 19, 2011 at 187:11-19. attached to Exhibit H, 14 16. By contrast, Plaintiff alleges he was 15 exposed to a plethora of asbestos-containing materials during his careers as an auto mechanic, 16 carpenter and equipment operator, which covered a time period of approximately twenty- 17 five years. Plaintiffs Supplemental/Amended Responses to Standard Interrogatories, Sets One 18 and Two, at 2:25-17:21, attached to the Index as Exhibit I. 19 20 21 22. 23 24 25 26 27 28 DEF. YORK INTERNATIONAL CORPORATION'S SEPARATE STATEMENT IN CGC-09-275098 SUPPORT OF MOTION FOR SUMMARY JUDGMENT MOVING PARTY’S UNDISPUTED OPPOSING PARTY’S RESPONSE/ MATERIAL FACTS/SUPP, EVIDENCE SUPPORTING EVIDENCE 17. Plaintiff also alleges he was exposed to asbestos-containing friction materials as a result of performing automobile repair and maintenance to several of his personal vehicles from 1963 to present, which involved the personal removal of brakes, clutches and gaskets. Plaintiff's Supplemental/Amended Responses to Standard Interrogatories, Sets One and Two at 23:7-26:5, attached to the Index as Exhibit 1. 18. Finally, Plaintiff alleges he was exposed to asbestos-containing drywall accessory products during home remodel projects between 1973 and 1976. Plaintiff's Supplemental/Amended Responses to Standard 10 Tnterrogatories, Sets One and Two at 22:27-23:7 attached to the Index as Exhibit 1, 11 12 13 DATED: July 27, 2011 BURNHAM BROWN 14 15 B WMWEHOLAS P. BURKE 16 Attorneys for Defendant YORK INTERNATIONAL CORPORATION 17 18 19 20 21 22. 23 24 25 26 1090927 2 28 DEF. YORK INTERNATIONAL CORPORATION’S SEPARATE STATEMENT IN CGC-09-275098 SUPPORT OF MOTION FOR SUMMARY JUDGMENT