On February 26, 2019 a Motion,Ex Parte was filed involving a dispute between Torres, Christopher, Torres, Melissa, and Barnes Group Inc., As Successor By Acquisition Of Kar Products, Inc., A, Barnes Group Inc. As Successor By Acquisition Of Kar Products,Llc, B C Stocking Distributing, A California Corporation, B'Laster Llc, Chevron Corporation, A Delaware Corporation, Chevron U.S.A. Inc, Chevron U.S.A. Inc., Crc Industries, Inc. Which Will Do Businessin California As Pennsylvania Crc Industrie, Dap Products Inc., A Delaware Corporation, Does 3-100, Husqvarna Professional Products, Inc., A Delaware Corporation, Kern Oil & Refining Co., A California Corporation, Lighthouse For The Blind, Midwest Motor Supply Co., An Ohio Corporation, Nch Corporation, A Delaware Corporation, Oatey Co., An Ohio Corporation, Pennzoil-Quaker State Company, Petro Source Investments, Inc. A Delaware Corporation, Ppg Industries, Inc. A Pennsylvania Corporation, P-T Technologies, Inc., A Florida Corporation, Quaker State Corporation, As Successor By Acquistion Of Westland Oil Company, Inc., A, Safety-Kleen Systems, Inc., A Wisconsin Corporation, Union Oil Company Of California, A California Corporation, Wd-40 Company, A Delaware Corporation, for Product Liability Unlimited in the District Court of San Bernardino County.
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- ORIGINAL a LEWIS BRISBOIS BISGAARD PATRICK J. FOLEY, SB# 180391 & SMITH LLP COUNTY fod OF SAN FO roma E-Mail: Patrick.Foley@lewisbrisbois.com SAN BERNARDINO DAVID M. UCHIDA, SB# 232789 E-Mail: David. Uchida@lewisbrisbois.com 633 West 5" Street, Suite 4000 08 2023 Los Angeles, California 90071 Telephone: Facsimile: 213.250.1800 213.250.7900 (Me A~DE! HARRIS BEACH PLLC Kath mM son DANIEL R. STRECKER (Pro Hac Vice Admission) E-Mail: dstrecker@harrisbeach.com 100 Wall Street New York, New York 10005 " Telephone: 212.687.0100 Facsimile: 212.687.0659 10 Attorneys for Defendant SAFETY-KLEEN SYSTEMS, INC. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN BERNANDINO, JUSTICE CENTER 13 CHRISTOPHER TORRES and MELISSA CASE NO. CIVDS1906092 14 TORRES, [Assigned for all purposes to Hon. David E. 15 Plaintiffs, Driscoll Dept. S-22] 16 vs. DEFENDANT SAFETY-KLEEN SYSTEMS, INC.’S REPLY IN FURTHER 17 BARNES GROUP INC., et al., SUPPORT OF THE MOTION FOR SUMMARY ADJUDICATION; 18 Defendants. MEMORANDUM OF POINTS AND AUTHORITIES 19 Date: September 14, 2023 20 Time: 8:30 a.m. Dept.: S-22 21 Action Filed: February 26, 2019 22 Trial Date: May 13, 2024 23 [Filed Concurrently with Reply Separate 24 Statement of Undisputed Facts; Evidentiary Objections; Declaration of David M. Uchida| 25 26 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 27 Safety-Kleen Systems, Inc. (“Safety-Kleen” or “Defendant”, respectfully submits its reply 28 memorandum of points and authorities in further support of its motion for summary adjudication. LEWIS 1291389511 DEFENDANT SAFETY-KLEEN SYSTEMS, INC.°S REPLY MEMORANDUM IN FURTHER SUPPORT OF THE ‘& SMI LP MOTION FOR SUMMARY ADJUDICATION MEMORANDUM OF POINTS AND AUTHORITIES 1 Plaintiffs Fail to Establish a Triable Issue as to Punitive Damages Plaintiffs fail to rebut Safety-Kleen’s showing that at the relevant time (through 2008) it was 4 not scientific consensus that the substances at issue—mineral spirits, trichloroethylene (“TCE”), 5]| perchloroethylene (“perc”), and benzene—were capable of causing the alleged illness, kidney 6 || cancer, and therefore that Safety-Kleen is entitled to dismissal of Plaintiffs” punitive damages claim. 7 || Plaintiffs effectively concede there was no consensus and that the law holds in the absence of such 8 || consensus dismissal of punitive damages is appropriate. Instead, Plaintiffs offer inadmissible 9 || hearsay that has no bearing on the issue of scientific consensus, that is actually devoid of evidence 10 |] of a recognition of a risk of kidney cancer. To the extent any of this “evidenc e” is admissible or 11 relevant to the issue, Plaintiffs entirely fail to meet their burden to show that persons with the alleged 12 knowledge or who engaged in the alleged acts were officers/agents of sufficient authority, as 13 necessary to meet their burden by clear and convincing evidence (a burden of which Plaintiffs” 14 counsel is well aware, having had punitive damages dismissed in a prior case against Safety-Kleen 15 |] on the same grounds). 16 A Plaintiffs do not Rebut the Lack of Relevant Scientific Consensus 17 In opposition, Plaintiffs admit or fail to rebut, and do not object to the admissib ility, of the 18 following facts and evidence: 19 . The relevant timeframe is through 2008 and the relevant substances are mineral spirits, 20 TCE, pere, and benzene. (See Safety-Kleen’s Reply to Plaintiffs’ Separate Statemen t of 21 Disputed and Undisputed Material Facts (“Reply UMF”), § 1(2).) 22 As of 2010/2011, according to Dr. Harrison it was scientific understanding that benzene 23 (i.e., not perc, TCE, or mineral spirits), was the only commonly used solvent for which 24 there was sufficient evidence of carcinogenicity in humans. (See id., $9 1(6)-(7). (9), (15)- 25 (16), (18), (20)-(22).) 26 . And at that time, the cancer risk associated with benzene was as to leukemia , not kidney 27 cancer. (See id., §¥ 1(10)-(11), (13)-( 14).) 28 Having conceded, or failed to rebut, that it was not scientific consensus during LEWIS 1291389511 the relevant 2 DEFENDANT SAFETY-KLEEN SYSTEMS, INC.’S REPLY MEMORANDUM IN FURTHER & SMI UP SUPPORT OF THE MOTION FOR SUMMARY ADJUDICATION