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1 ALAN R. BRAYTON, ESQ., S.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436
2 DDonadio@braytonlaw.com
JAMES P. NEVIN, ESQ., S.B. #220816 ELECTRONICALLY
3 NANCY T. WILLIAMS, ESQ., S.B. #201095
BRAYTONËœPURCELL LLP
FILED
Superior Court of California,
4 Attorneys at Law County of San Francisco
222 Rush Landing Road 04/22/2024
5 P.O. Box 6169 Clerk of the Court
Novato, California 94948-6169 BY: AUSTIN LAM
6 (415) 898-1555 Deputy Clerk
7 Attorneys for Plaintiff
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 CGC-24-277211
11 JOHN OLIVER GOSSETT III and ) ASBESTOS
MARY GOSSETT, ) No.
12 )
Plaintiffs, ) COMPLAINT FOR PERSONAL INJURY
NOVATO, CALIFORNIA 94948-6169
BRAYTONËœPURCELL LLP
13 ) AND LOSS OF CONSORTIUM -
222 RUSH LANDING ROAD
ATTORNEYS AT LAW
vs. ) ASBESTOS
14 )
(415) 898-1555
P O BOX 6169
GOLDEN GATE DRYWALL; ) (Pursuant to Case Management Order, Filed
15 UNION CARBIDE CORPORATION; ) June 29, 2012)
CONSOLIDATED INSULATION, INC.; )
16 KAISER GYPSUM COMPANY, INC.; ) Index of Causes of Action:
THE JACK DYMOND CO.; )
17 MARCONI PLASTERING COMPANY, ) 1. Negligence I
INC.; ) 2. Products Liability
18 DKC HOLDINGS, INC.; ) 3. Negligence I (From Take-Home
VANDERSON CONSTRUCTION, INC.; ) Exposure)
19 and DOES 1 through 800, inclusive, as ) 4. Products Liability (From Take-Home
required by California law on joint and ) Exposure)
20 several liability pursuant to California ) 5. Negligence II
Civil Code § 1431.2 enacted by the People ) 6. Negligence II (From Take-Home
21 of the State of California, ) Exposure)]
) 7. Loss of Consortium
22 Defendants.
23
24 FIRST CAUSE OF ACTION
(Negligence I)
25
26 PLAINTIFF JOHN OLIVER GOSSETT III COMPLAINS OF DEFENDANTS HEREIN
27 BELOW NAMED, THEIR "ALTERNATE ENTITIES" AND EACH OF THEM, FOR A
28 CAUSE OF ACTION FOR NEGLIGENCE I, PURSUANT TO CIVIL CODE § 1714, BAJI
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 3.00, 3.10, 3.11, 3.12, 3.76, 3.77, 3.78, 9.19, 9.20, 9.21, AND CACI 400, 401, 431, 435, 1220,
2 1221, 1222, 1223, AND ALLEGES:
3 1. The true names and capacities, whether individual, corporate, associate,
4 governmental or otherwise, of defendants DOES 1 through 300, inclusive, are unknown to
5 plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true
6 names and capacities of said defendants have been ascertained, plaintiff will amend this
7 complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each
8 defendant designated herein as a DOE is responsible, negligently or in some other actionable
9 manner, for the events and happenings hereinafter referred to, and caused injuries and damages
10 proximately thereby to the plaintiff, as hereinafter alleged.
11 2. At all times herein mentioned, each of the defendants was the agent, servant,
12 employee and/or joint venturer of his co-defendants, and each of them, and at all said times, each
13 defendant was acting in the full course and scope of said agency, service, employment and/or
14 joint venture.
15 3. Plaintiff is informed and believes, and thereon alleges that at all times herein
16 mentioned, defendants: GOLDEN GATE DRYWALL; UNION CARBIDE CORPORATION;
17 CONSOLIDATED INSULATION, INC.; and DOES 1 through 300, inclusive, were individuals,
18 or corporations, partnerships and/or unincorporated associations organized and existing under
19 and by virtue of the laws of the State of California, or the laws of some other state or foreign
20 jurisdiction, and that said defendants, and each of them, were and are authorized to do and are
21 doing business in the State of California, and that said defendants have regularly conducted
22 business in the County of San Francisco, State of California.
23 4. At all times herein mentioned, each of the named defendants and DOES 1 through
24 300 was the successor, successor in business, successor in product line or a portion thereof,
25 assign, predecessor, predecessor in business, predecessor in product line or a portion thereof,
26 parent, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in
27 an entity researching, studying, manufacturing, fabricating, designing, modifying, labeling,
28 assembling, distributing, leasing, buying, offering for sale, supplying, selling, inspecting,
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding,
2 manufacturing for others, packaging and advertising a certain substance, the generic name of
3 which is asbestos and other products containing said substance. Said entities shall hereinafter
4 collectively be called "alternate entities." Each of the herein named defendants is liable for the
5 tortious conduct of each successor, successor in business, successor in product line or a portion
6 thereof, assign, predecessor in product line or a portion thereof, parent, subsidiary, whole or
7 partial owner, or wholly or partially owned entity, or entity that it was a member of, or funded,
8 that researched, studied, tested, manufactured, fabricated, designed, modified, labeled,
9 assembled, distributed, promoted, leased, bought, offered for sale, recommended for use,
10 supplied, sold, inspected, serviced, installed, contracted for installation, repaired, marketed,
11 warranted, evaluated, rebranded, manufactured for others and advertised a certain substance, the
12 generic name of which is asbestos and other products containing said substance. The following
13 defendants, and each of them, are liable for the acts of each and every "alternate entity," and each
14 of them, in that there has been a virtual destruction of plaintiff's remedy against each such
15 "alternate entity"; defendants, and each of them, have acquired the assets, product line, or a
16 portion thereof, of each such "alternate entity"; such "alternate entity"; defendants, and each of
17 them, caused the destruction of plaintiff's remedy against each such "alternate entity"; each such
18 defendant has the ability to assume the risk-spreading role of each such "alternate entity"; and
19 that each such defendant enjoys the goodwill originally attached to each such "alternate entity."
20 DEFENDANT ALTERNATE ENTITY
21 UNION CARBIDE CORPORATION UNION CARBIDE CHEMICALS AND PLASTICS
COMPANY, INC.
22 UNION CARBIDE AND CARBON PRODUCTS
LINDE AIR PRODUCTS COMPANY
23
24 5. At all times herein mentioned, defendants, their "alternate entities," and each of
25 them, were and are engaged in the business of mining, processing, sorting, researching,
26 manufacturing, fabricating, designing, modifying, labeling, assembling, distributing, leasing,
27 buying, offering for sale, supplying, selling, inspecting, servicing, installing, removing,
28 manipulating, testing, disturbing, contracting for installation, repairing, marketing, warranting,
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1 rebranding, manufacturing for others, packaging and/or advertising a certain substance, the
2 generic name of which is asbestos and other products containing said substance.
3 6. There is general agreement among scientists, health care providers, physicians,
4 and health and science related agencies and organizations, including but not limited to, the World
5 Health Organization, International Agency for Research on Cancer, American Cancer Society,
6 National Cancer Institute, National Toxicology Program, Environmental Protection Agency,
7 American Thoracic Society, Occupational Safety and Health Administration, Consumer Products
8 Safety Commission, and the Unites States Congress that exposure to any asbestos type can
9 increase the risk of disease, including but not limited to sub-clinical pleural, lung, and other
10 organ scarring, cancer, mesothelioma, and non-malignant lung and pleural disorders. Evaluation
11 of all available human data provides no evidence for a "safe" level of asbestos exposure below
12 which risk of clinical disease is not increased. The mainstream scientific and medical
13 community is in consensus that exposure to asbestos at current regulatory levels results in excess
14 incidence of mesothelioma and that any occupational or para-occupational exposure to asbestos -
15 even that described as low-level or brief in duration must be regarded as causal in an individual
16 with clinical mesothelioma. "The victim ultimately suffocates from the tumor." Hernandez v.
17 Amcord, Inc., 215 Cal.App.4th 659, 664. A rigorous review of the epidemiologic evidence
18 confirms that all types of asbestos fibre are causally implicated in the development of various
19 diseases and premature death. Numerous well respected international and national scientific
20 organizations, through an impartial and rigorous process of deliberation and evaluation, have
21 concluded that all forms of asbestos are capable of inducing mesothelioma, lung cancer,
22 asbestosis and other diseases. These conclusions are based on the full body of evidence,
23 including the epidemiology, toxicology, industrial hygiene, biology, pathology, and other related
24 literature published to the time of the respective evaluations. Since the 1960s, the scientific
25 evidence has become overwhelming that occupational and environmental exposure to asbestos
26 can cause asbestosis, lung cancer, and mesothelioma. A large number of studies have reported an
27 excess of mesothelioma and lung cancer among workers who were predominantly exposed to
28 chrysotile asbestos (Kanarek, 2011). For example, excess mortality from lung cancer and
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 mesothelioma has been reported among miners and millers in Quebec (Liddell, et al., 1997),
2 among textile workers in South Carolina (Hein, et al., 2007) and North Carolina (Loomis, et al.,
3 2009), Chinese chrysotile production workers (Wang, et al., 2012), and in Italian miners (Pira, et
4 al., 2009) exposed primarily to chrysotile asbestos.
5 7. A basic tenet of California law is that everyone is required to use ordinary care in
6 their activities so as to regard the safety of others and prevent injury to others from their conduct
7 or omissions. (Civ. Code, § 1714, subd. (a); Pedeferri v. Seidner Enterprises (2013) 216
8 Cal.App.4th 359, 365; Cabral v. Ralphs (2011) 51 Cal.4th 764; Merrill v. Navegar, Inc. (2002)
9 26 Cal.4th 465; Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36.)
10 8. At all times herein mentioned, defendants, their "alternate entities" and each of
11 them, singularly and jointly, failed to use ordinary care to prevent harm to themselves or to
12 others, negligently acted or failed to act, negligently did something that a reasonably careful
13 person would not do in the same situation, negligently failed to do something that a reasonably
14 careful person would do in the same situation, negligently and carelessly researched or failed to
15 research, manufactured, fabricated, designed, modified, tested or failed to test, abated or failed to
16 abate, warned or failed to warn of the health hazards, labeled or failed to label, assembled,
17 distributed, leased, bought, offered for sale, supplied, sold, inspected or failed to inspect,
18 serviced, installed, contracted for installation, repaired, marketed, warranted, rebranded,
19 manufactured for others, packaged and advertised, removed, disturbed, failed to recall, and/or
20 failed to retrofit, a certain substance, the generic name of which is asbestos and other products
21 containing said substance, in that said substance proximately caused personal injuries to users,
22 consumers, workers, bystanders, family members, and others, including the plaintiff herein
23 (hereinafter collectively called "exposed persons"), while being used in a manner that was
24 reasonably foreseeable, thereby rendering said substance unsafe and dangerous for use by
25 "exposed persons."
26 9. Defendants, their "alternate entities," and each of them, had a duty to exercise due
27 care in the pursuance of the activities mentioned above and defendants, and each of them,
28 breached said duty of due care.
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1 10. Defendants, their "alternate entities" and each of them, knew, or should have
2 known, and intended that the aforementioned asbestos and products containing asbestos would
3 be transported by truck, rail, ship and other common carriers, that in the shipping process the
4 products would break, crumble or be otherwise damaged; and/or that such products would be
5 used for insulation, construction, drywalling, plastering, fireproofing, soundproofing, automotive,
6 aircraft and/or other applications, including, but not limited to mixing, sawing, chipping,
7 hammering, scraping, sanding, drilling, breaking, removal, "rip-out," clean up, and other
8 manipulation, resulting in the indiscriminate or other release of airborne asbestos fibers, and that
9 through such foreseeable use and/or handling "exposed persons," including plaintiff herein,
10 would use or be in proximity to and exposed to said asbestos fibers, which contaminated the
11 packaging, products, environment, and clothing of persons working in proximity to said
12 products, directly or through reentrainment.
13 11. Defendants, their "alternate entities" and each of them, knew, or should have
14 known, and intended that the aforementioned asbestos and asbestos-containing products would
15 be used, manipulated, or handled as specified in Exhibit A, which is attached hereto and
16 incorporated by reference herein, resulting in the release of airborne asbestos fibers, and that
17 through such foreseeable use and/or handling "exposed persons," including plaintiff herein,
18 would be in proximity to and exposed to said asbestos fibers.
19 12. Plaintiff JOHN OLIVER GOSSETT III has used, handled or been otherwise
20 exposed to asbestos and asbestos-containing products referred to herein in a manner that was
21 reasonably foreseeable and from the intended use of the product. Plaintiff's exposure to asbestos
22 and asbestos-containing products occurred at various locations as set forth in Exhibit A, which is
23 attached hereto and incorporated by reference herein.
24 13. As a direct and proximate result of the conduct or omissions of the defendants,
25 their "alternate entities," and each of them, as aforesaid, plaintiff's exposure to asbestos and
26 asbestos-containing products caused severe and permanent injury, damage, loss, or harm to the
27 plaintiff, including, but not limited to breathing difficulties, pleural disease, asbestosis, other lung
28 ///
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1 damage and/or cancer, the nature of which, along with the date of plaintiff's diagnosis, are set
2 forth in Exhibit B, which is attached hereto and incorporated by reference herein.
3 14. Plaintiff is informed and believes, and thereon alleges, that progressive lung
4 disease, cancer and other serious diseases and physical injury are caused by inhalation of asbestos
5 fibers without contemporaneous perceptible trauma and that said disease results from exposure to
6 asbestos and asbestos-containing products over a period of time.
7 15. Plaintiff JOHN OLIVER GOSSETT III suffers from a condition related to
8 exposure to asbestos and asbestos-containing products.
9 16. As a direct and proximate result of the aforesaid conduct of defendants, their
10 "alternate entities," and each of them, plaintiff has suffered, and continues to suffer, permanent
11 injuries and/or future increased risk of injuries to his person, body and health, including, but not
12 limited to, pleural disease, asbestosis, other lung damage, and cancer, and the mental and
13 emotional distress attendant thereto, from the effect of exposure to asbestos fibers, all to his
14 general damage in a sum in excess of the jurisdictional limits of a limited civil case. This action
15 is an Unlimited Civil Case as defined in Code of Civil Procedure § 88.
16 17. As a direct and proximate result of the aforesaid conduct of the defendants, their
17 "alternate entities," and each of them, plaintiff has incurred, is presently incurring, and will incur
18 in the future, liability for physicians, surgeons, nurses, hospital care, medicine, hospice care, X-
19 rays, CT scans, PET scans, and other medical treatment, the true and exact amount thereof being
20 unknown to plaintiff at this time, and plaintiff prays leave to amend this complaint accordingly
21 when the true and exact cost thereof is ascertained.
22 18. As a further direct and proximate result of the said conduct of the defendants,
23 their "alternate entities," and each of them, plaintiff has incurred, and will incur, loss of income,
24 wages, profits and commissions, a diminishment of earning potential, and other pecuniary losses,
25 the full nature and extent of which are not yet known to plaintiff; and leave is requested to amend
26 this complaint to conform to proof at the time of trial.
27 19. The following defendants, their "alternate entities," and each of them, and their
28 officers, directors and managing agents participated in, authorized, expressly and impliedly
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1 ratified, and had full knowledge of, or should have known of, each of the acts set forth herein.
2 The following defendants, their "alternate entities," and each of them, are liable for the
3 fraudulent, oppressive, and malicious acts of their "alternate entities," and each of them, and each
4 defendant's officers, directors and managing agents participated in, authorized, expressly and
5 impliedly ratified, and had full knowledge of, or should have known of, the acts of each of their
6 "alternate entities" as set forth herein. The herein-described conduct of said defendants listed in
7 this paragraph below, their "alternate entities," and each of them, was and is willful, malicious,
8 fraudulent, outrageous and in conscious disregard and indifference to the safety and health of
9 "exposed persons." Plaintiff, for the sake of example and by way of punishing said defendants,
10 seeks punitive damages according to proof against the following defendants only: UNION
11 CARBIDE CORPORATION and DOES 65-75.
12 WHEREFORE, plaintiff prays judgment against defendants, their "alternate entities,"
13 and each of them, as hereinafter set forth.
14 SECOND CAUSE OF ACTION
(Products Liability)
15
16 AS AND FOR A SECOND, SEPARATE, FURTHER AND DISTINCT CAUSE OF
17 ACTION FOR PRODUCTS LIABILITY, PLAINTIFF JOHN OLIVER GOSSETT III
18 COMPLAINS OF DEFENDANTS NAMED IN PARAGRAPH 3 HERE IN ABOVE, DOES
19 1-300, AND EACH OF THEM, PURSUANT TO BAJI 3.76, 3.77. 3.78, 9.00, 9.00.5, 9.00.7,
20 AND CACI 431, 435, 1200, 1203, 1205, AND 1223, AND ALLEGES AS FOLLOWS:
21 20. Plaintiff incorporates herein by reference, as though fully set forth herein, the
22 allegations and facts contained in all of the forgoing paragraphs.
23 21. Defendants, their "alternate entities," and each of them, defectively designed
24 asbestos and asbestos-containing products and failed to adequately warn of potential safety
25 hazards of asbestos and asbestos-containing products.
26 22. Such asbestos and asbestos-containing products did not perform as safely as an
27 ordinary consumer would expect when used or misused in an intended or reasonably foreseeable
28 way.
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1 23. Such asbestos and asbestos-containing products when used or misused in an
2 intended or reasonably foreseeable way had potential risks that were known or knowable in light
3 of the scientific and medical knowledge that was generally accepted in the scientific community
4 at the time of manufacture, distribution, or sale, and defendants failed to adequately warn of
5 those potential risks.
6 24. Defendants, their "alternate entities," and each of them, knew and intended that
7 the above-referenced asbestos and asbestos-containing products would be used by the purchaser
8 or user without inspection for defects therein or in any of their component parts and without
9 knowledge of the hazards involved in such use.
10 25. Said asbestos and asbestos-containing products were defective under California
11 Consumer Safety Law and unsafe for their intended purpose in that the inhalation of asbestos
12 fibers causes serious disease and/or death. The defect existed in the said products at the time
13 they left the possession of defendants, their "alternate entities," and each of them. Said products
14 did, in fact, cause personal injuries, including asbestosis, other lung damage, and cancer to
15 "exposed persons," including plaintiff herein, while being used in a reasonably foreseeable
16 manner, thereby rendering the same defective, unsafe and dangerous for use. Moreover, said
17 products failed to be designed, as required by California law, to account for foreseeable risks,
18 even if they arise from the conduct of others. Collins v. Navistar, Inc. (2013) 214 Cal.App.4th
19 1486, 1511.
20 26. "Exposed persons" did not know of the substantial danger of using said products.
21 Said dangers were not readily recognizable by "exposed persons." Said defendants, their
22 "alternate entities," and each of them, further failed to adequately warn of the risks to which
23 plaintiff and others similarly situated were exposed.
24 27. In researching or failing to research, manufacturing, fabricating, designing,
25 modifying, testing or failing to test, warning or failing to warn, labeling or failing to label,
26 assembling, distributing, leasing, buying, offering for sale, supplying, selling, inspecting,
27 servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding,
28 manufacturing for others, packaging and advertising, disturbing, removing, failing to recall,
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1 failing to retrofit asbestos and asbestos-containing products, defendants, their "alternate entities,"
2 and each of them, did so with reckless or conscious disregard for the safety of "exposed persons"
3 who came in contact with said asbestos and asbestos-containing products, related to the intended
4 use of said products by defendants, which intended use created hazardous circumstance and
5 situation, in that said defendants, their "alternate entities," and each of them, had prior knowledge
6 that there was a substantial risk of injury or death resulting from exposure to asbestos or
7 asbestos-containing products, including, but not limited to, asbestosis, other lung disabilities and
8 cancer. Said knowledge was obtained, in part, from scientific studies performed by, at the
9 request of, or with the assistance of, said defendants, their "alternate entities," and each of them,
10 and which knowledge was obtained by said defendants, their "alternate entities," and each of
11 them on or before 1930, and thereafter.
12 28. On or before 1930, and thereafter, said defendants, their "alternate entities" and
13 each of them, were aware that members of the general public and other "exposed persons," who
14 would come in contact with their asbestos and asbestos-containing products, had no knowledge
15 or information indicating that asbestos or asbestos-containing products could cause injury, and
16 said defendants, their "alternate entities," and each of them, knew that members of the general
17 public and other "exposed persons," who came in contact with asbestos and asbestos-containing
18 products, would assume, and in fact did assume, that exposure to asbestos and asbestos-
19 containing products was safe, when in fact said products and exposure thereto was extremely
20 hazardous to health and human life.
21 29. With said knowledge, said defendants, their "alternate entities," and each of them,
22 opted to research, manufacture, fabricate, design, modify, label, assemble, distribute, lease, buy,
23 offer for sale, supply, sell, inspect, service, install, contract for installation, repair, market,
24 warrant, rebrand, manufacture for others, package and advertise, remove, and disturb said
25 asbestos and asbestos-containing products without attempting to protect "exposed persons" from,
26 or warn "exposed persons" of, the high risk of injury or death resulting from exposure to asbestos
27 and asbestos-containing products. Rather than attempting to protect "exposed persons" from, or
28 warn "exposed persons" of, the high risk of injury or death resulting from exposure to asbestos
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1 and asbestos-containing products, defendants, their "alternate entities," and each of them,
2 intentionally failed to reveal their knowledge of said risk, and consciously and actively concealed
3 and suppressed said knowledge from "exposed persons" and members of the general public, thus
4 impliedly representing to "exposed persons" and members of the general public that asbestos and
5 asbestos-containing products were safe for all reasonably foreseeable uses. Defendants, their
6 "alternate entities," and each of them, engaged in this conduct and made these implied
7 representations with the knowledge of the falsity of said implied representations.
8 30. The above-referenced conduct of said defendants, their "alternate entities," and
9 each of them, was motivated by the financial interest of said defendants, their "alternate entities,"
10 and each of them, in the continuing, uninterrupted research, design, modification, manufacture,
11 fabrication, labeling, assembly, distribution, lease, purchase, offer for sale, supply, sale,
12 inspection, installation, contracting for installation, repair, marketing, warranting, rebranding,
13 manufacturing for others, packaging and advertising, disturbing, removing of asbestos and
14 asbestos-containing products. In pursuance of said financial motivation, said defendants, their
15 "alternate entities," and each of them, consciously disregarded the safety of "exposed persons"
16 and in fact were consciously willing and intended to permit asbestos and asbestos-containing
17 products to cause injury to "exposed persons" and induced persons to work with and be exposed
18 thereto, including plaintiff.
19 31. Plaintiff alleges that the aforementioned defendants, their "alternate entities," and
20 each of them impliedly warranted their asbestos and asbestos-containing products, to be safe for
21 their intended use but that their asbestos and asbestos-containing products, created an
22 unreasonable risk of bodily harm to exposed persons.
23 32. Plaintiff further alleges his injuries are a result of cumulative exposure to asbestos
24 and various asbestos-containing products manufactured, fabricated, inadequately researched,
25 designed, modified, inadequately tested, labeled, assembled, distributed, leased, bought, offered
26 for sale, supplied, sold, inspected, serviced, installed, contracted for installation, repaired,
27 marketed, warranted, rebranded, manufactured for others, packaged and advertised by the
28 aforementioned defendants, their "alternate entities," and each of them and that plaintiff cannot
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1 identify precisely which asbestos or asbestos-containing products caused the injuries complained
2 of herein.
3 33. Plaintiff relied upon defendants', their "alternate entities'," and each of their
4 representations, lack of warnings, and implied warranties of fitness of asbestos and their
5 asbestos-containing products. As a direct, foreseeable and proximate result thereof, plaintiff has
6 been injured permanently as alleged herein.
7 34. As a direct and proximate result of the actions and conduct outlined herein,
8 plaintiff has suffered the injuries and damages previously alleged.
9 35. The following defendants, their "alternate entities," and each of them, and their
10 officers, directors and managing agents participated in, authorized, expressly and impliedly
11 ratified, and had full knowledge of, or should have known of, each of the acts set forth herein.
12 The following defendants, their "alternate entities," and each of them, are liable for the
13 fraudulent, oppressive, and malicious acts of their "alternate entities," and each of them, and each
14 defendant's officers, directors and managing agents participated in, authorized, expressly and
15 impliedly ratified, and had full knowledge of, or should have known of, the acts of each of their
16 "alternate entities" as set forth herein. The herein-described conduct of said defendants listed in
17 this paragraph below, their "alternate entities," and each of them, was and is willful, malicious,
18 fraudulent, outrageous and in conscious disregard and indifference to the safety and health of
19 "exposed persons." Plaintiff, for the sake of example and by way of punishing said defendants,
20 seeks punitive damages according to proof against the following defendants only: UNION
21 CARBIDE CORPORATION and DOES 65-75.
22 WHEREFORE, plaintiff prays judgment against defendants, their "alternate entities," and
23 each of them, as hereinafter set forth.
24 THIRD CAUSE OF ACTION
(Negligence I) (From Take-Home Exposure)
25
26 AS AND FOR A THIRD, SEPARATE, FURTHER AND DISTINCT CAUSE OF
27 ACTION, PLAINTIFF JOHN OLIVER GOSSETT III COMPLAINS OF DEFENDANTS
28 KAISER GYPSUM COMPANY, INC.; UNION CARBIDE CORPORATION;
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 CONSOLIDATED INSULATION, INC.; GOLDEN GATE DRYWALL; DOES 251-300,
2 THEIR "ALTERNATE ENTITIES" AND EACH OF THEM, FOR A CAUSE OF ACTION
3 FOR NEGLIGENCE I, PURSUANT TO CIVIL CODE § 1714, BAJI 3.00, 3.10, 3.11, 3.12,
4 3.76, 3.77, 3.78, 9.19, 9.20, 9.21, AND CACI 400, 401, 431, 435, 1220, 1221, 1222, 1223, AND
5 ALLEGES:
6 36. Plaintiff JOHN OLIVER GOSSETT III lived with his father John Gossett Jr.,
7 deceased, c/o BraytonËœPurcell LLP, from his birth on March 3, 1960 until he left home in 1980.
8 Plaintiff’s father worked as a carpenter for a drywall contractor. Plaintiff was exposed to
9 asbestos through the work done by his father John Gossett Jr. when plaintiff’s father would come
10 home from work with dirty, dusty clothes.
11 37. The true names and capacities, whether individual, corporate, associate,
12 governmental or otherwise, of defendants DOES 251 through 300, inclusive, are unknown to
13 plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true
14 names and capacities of said defendants have been ascertained, plaintiff will amend this
15 complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each
16 defendant designated herein as a DOE is responsible, negligently or in some other actionable
17 manner, for the events and happenings hereinafter referred to, and caused injuries and damages
18 proximately thereby to the plaintiff, as hereinafter alleged.
19 38. At all times herein mentioned, each of the defendants was the agent, servant,
20 employee and/or joint venturer of his co-defendants, and each of them, and at all said times, each
21 defendant was acting in the full course and scope of said agency, service, employment and/or
22 joint venture.
23 39. Plaintiff is informed and believes, and thereon alleges that at all times herein
24 mentioned, defendants KAISER GYPSUM COMPANY, INC.; UNION CARBIDE
25 CORPORATION; CONSOLIDATED INSULATION, INC.; GOLDEN GATE DRYWALL; and
26 DOES 251 through 300, inclusive, were individuals, or corporations, partnerships and/or
27 unincorporated associations organized and existing under and by virtue of the laws of the State of
28 California, or the laws of some other state or foreign jurisdiction, and that said defendants, and
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 each of them, were and are authorized to do and are doing business in the State of California, and
2 that said defendants have regularly conducted business in the County of San Francisco, State of
3 California.
4 40. At all times herein mentioned, each of the named defendants and DOES 251
5 through 300 was the successor, successor in business, successor in product line or a portion
6 thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion
7 thereof, parent, subsidiary, wholly or partially owned by, or the whole or partial owner of or
8 member in an entity researching, studying, manufacturing, fabricating, designing, modifying,
9 labeling, assembling, distributing, leasing, buying, offering for sale, supplying, selling,
10 inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting,
11 rebranding, manufacturing for others, packaging and advertising a certain substance, the generic
12 name of which is asbestos and/or talc and other products containing said substance. Said entities
13 shall hereinafter collectively be called "alternate entities." Each of the herein named defendants
14 is liable for the tortious conduct of each successor, successor in business, successor in product
15 line or a portion thereof, assign, predecessor in product line or a portion thereof, parent,
16 subsidiary, whole or partial owner, or wholly or partially owned entity, or entity that it was a
17 member of, or funded, that researched, studied, tested, manufactured, fabricated, designed,
18 modified, labeled, assembled, distributed, promoted, leased, bought, offered for sale,
19 recommended for use, supplied, sold, inspected, serviced, installed, contracted for installation,
20 repaired, marketed, warranted, evaluated, rebranded, manufactured for others and advertised a
21 certain substance, the generic name of which is asbestos and/or talc and other products
22 containing said substance. The following defendants, and each of them, are liable for the acts of
23 each and every "alternate entity," and each of them, in that there has been a virtual destruction of
24 plaintiff's remedy against each such "alternate entity"; defendants, and each of them, have
25 acquired the assets, product line, or a portion thereof, of each such "alternate entity"; such
26 "alternate entity"; defendants, and each of them, caused the destruction of plaintiff's remedy
27 against each such "alternate entity"; each such defendant has the ability to assume the risk-
28 ///
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 spreading role of each such "alternate entity"; and that each such defendant enjoys the goodwill
2 originally attached to each such "alternate entity."
3 DEFENDANT ALTERNATE ENTITY
4 KAISER GYPSUM COMPANY, INC. LEHIGH HANSON, INC.
SIERRA GYPSUM, INC.
5
6 41. At all times herein mentioned, defendants, their "alternate entities," and each of
7 them, were and are engaged in the business of researching, manufacturing, fabricating, designing,
8 modifying, labeling, assembling, distributing, leasing, buying, offering for sale, supplying,
9 selling, inspecting, endorsing, testing, authorizing, approving, certifying, facilitating, promoting,
10 representing, servicing, installing, contracting for installation, repairing, marketing, warranting,
11 rebranding, manufacturing for others, packaging, specifying, requiring, mandating, or otherwise
12 directing and/or facilitating the use of, or advertising a certain product, namely asbestos and other
13 products containing asbestos.
14 42. At all times herein mentioned, defendants, their "alternate entities," and each of
15 them, were and are engaged in the business of mining, processing, sorting, researching,
16 manufacturing, fabricating, designing, modifying, labeling, assembling, distributing, leasing,
17 buying, offering for sale, supplying, selling, inspecting, servicing, installing, removing,
18 manipulating, testing, disturbing, contracting for installation, repairing, marketing, warranting,
19 rebranding, manufacturing for others, packaging and/or advertising a certain substance, the
20 generic name of which is asbestos and other products containing said substance.
21 43. There is general agreement among scientists, health care providers, physicians,
22 and health and science related agencies and organizations, including but not limited to, the World
23 Health Organization, International Agency for Research on Cancer, American Cancer Society,
24 National Cancer Institute, National Toxicology Program, Environmental Protection Agency,
25 American Thoracic Society, Occupational Safety and Health Administration, Consumer Products
26 Safety Commission, and the Unites States Congress that exposure to any asbestos type can
27 increase the risk of disease, including but not limited to sub-clinical pleural, lung, and other
28 organ scarring, cancer, mesothelioma, and non-malignant lung and pleural disorders. Evaluation
K:\Injured\129605\PLD\cmp pilcp2exp.wpd 15
COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 of all available human data provides no evidence for a "safe" level of asbestos exposure below
2 which risk of clinical disease is not increased. The mainstream scientific and medical
3 community is in consensus that exposure to asbestos at current regulatory levels results in excess
4 incidence of mesothelioma and that any occupational or para-occupational exposure to asbestos -
5 even that described as low-level or brief in duration must be regarded as causal in an individual
6 with clinical mesothelioma. "The victim ultimately suffocates from the tumor." Hernandez v.
7 Amcord, Inc., 215 Cal.App.4th 659, 664. A rigorous review of the epidemiologic evidence
8 confirms that all types of asbestos fiber are causally implicated in the development of various
9 diseases and premature death. Numerous well respected international and national scientific
10 organizations, through an impartial and rigorous process of deliberation and evaluation, have
11 concluded that all forms of asbestos are capable of inducing mesothelioma, lung cancer,
12 asbestosis and other diseases. These conclusions are based on the full body of evidence,
13 including the epidemiology, toxicology, industrial hygiene, biology, pathology, and other related
14 literature published to the time of the respective evaluations. Since the 1960s, the scientific
15 evidence has become overwhelming that occupational and environmental exposure to asbestos
16 can cause asbestosis, lung cancer, and mesothelioma. A large number of studies have reported an
17 excess of mesothelioma and lung cancer among workers who were predominantly exposed to
18 chrysotile asbestos (Kanarek, 2011). For example, excess mortality from lung cancer and
19 mesothelioma has been reported among miners and millers in Quebec (Liddell, et al., 1997),
20 among textile workers in South Carolina (Hein, et al., 2007) and North Carolina (Loomis, et al.,
21 2009), Chinese chrysotile production workers (Wang, et al., 2012), and in Italian miners (Pira, et
22 al., 2009) exposed primarily to chrysotile asbestos.
23 44. A basic tenet of California law is that everyone is required to use ordinary care in
24 their activities so as to regard the safety of others and prevent injury to others from their conduct
25 or omissions. (Civ. Code, § 1714, subd. (a); Pedeferri v. Seidner Enterprises (2013) 216
26 Cal.App.4th 359, 365; Cabral v. Ralphs (2011) 51 Cal.4th 764; Merrill v. Navegar, Inc. (2002)
27 26 Cal.4th 465; Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36.)
28 ///
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COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS
1 45. At all times herein mentioned, defendants, their "alternate entities" and each of
2 them, singularly and jointly, failed to use ordinary care to prevent harm to themselves or to
3 others, negligently acted or failed to act, negligently did something that a reasonably careful
4 person would not do in the same situation, negligently failed to do something that a reasonably
5 careful person would do in the same situation, negligently and carelessly researched or failed to
6 research, manufactured, fabricated, designed, modified, tested or failed to test, abated or failed to
7 abate, warned or failed to warn of the health hazards, labeled or failed to label, assembled,
8 distributed, leased, bought, offered for sale, supplied, sold, inspected or failed to inspect,
9 serviced, installed, contracted for installation, repaired, marketed, warranted, rebranded,
10 manufactured for others, packaged and advertised, removed, disturbed, failed to recall, and/or
11 failed to retrofit, a certain substance, the generic name of which is asbestos and other products
12 containing said substance, in that said substance proximately caused personal injuries to users,
13 consumers, workers, bystanders, family members, and others, including the plaintiff herein
14 (hereinafter collectively called "exposed persons"), while being used in a manner that was
15 reasonably foreseeable, thereby rendering said substance unsafe and dangerous for use by
16 "exposed persons."
17 46. Defendants, their "alternate entities," and each of them, had a duty to exercise due
18 care in the pursuance of the activities mentioned above and defendants, and each of them,
19 breached said duty of due care.
20 47. Defendants, their "alternate entities" and each of them, knew, or should have
21 known, and intended that the aforementioned asbestos and products containing asbestos, would
22 be transported by truck, rail, ship, and o
Preview
1 ALAN R. BRAYTON, ESQ., S.B. #73685 DAVID R. DONADIO, ESQ., S.B. #154436 2 DDonadio@braytonlaw.com JAMES P. NEVIN, ESQ., S.B. #220816 ELECTRONICALLY 3 NANCY T. WILLIAMS, ESQ., S.B. #201095 BRAYTON˜PURCELL LLP FILED Superior Court of California, 4 Attorneys at Law County of San Francisco 222 Rush Landing Road 04/22/2024 5 P.O. Box 6169 Clerk of the Court Novato, California 94948-6169 BY: AUSTIN LAM 6 (415) 898-1555 Deputy Clerk 7 Attorneys for Plaintiff 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 CGC-24-277211 11 JOHN OLIVER GOSSETT III and ) ASBESTOS MARY GOSSETT, ) No. 12 ) Plaintiffs, ) COMPLAINT FOR PERSONAL INJURY NOVATO, CALIFORNIA 94948-6169 BRAYTON˜PURCELL LLP 13 ) AND LOSS OF CONSORTIUM - 222 RUSH LANDING ROAD ATTORNEYS AT LAW vs. ) ASBESTOS 14 ) (415) 898-1555 P O BOX 6169 GOLDEN GATE DRYWALL; ) (Pursuant to Case Management Order, Filed 15 UNION CARBIDE CORPORATION; ) June 29, 2012) CONSOLIDATED INSULATION, INC.; ) 16 KAISER GYPSUM COMPANY, INC.; ) Index of Causes of Action: THE JACK DYMOND CO.; ) 17 MARCONI PLASTERING COMPANY, ) 1. Negligence I INC.; ) 2. Products Liability 18 DKC HOLDINGS, INC.; ) 3. Negligence I (From Take-Home VANDERSON CONSTRUCTION, INC.; ) Exposure) 19 and DOES 1 through 800, inclusive, as ) 4. Products Liability (From Take-Home required by California law on joint and ) Exposure) 20 several liability pursuant to California ) 5. Negligence II Civil Code § 1431.2 enacted by the People ) 6. Negligence II (From Take-Home 21 of the State of California, ) Exposure)] ) 7. Loss of Consortium 22 Defendants. 23 24 FIRST CAUSE OF ACTION (Negligence I) 25 26 PLAINTIFF JOHN OLIVER GOSSETT III COMPLAINS OF DEFENDANTS HEREIN 27 BELOW NAMED, THEIR "ALTERNATE ENTITIES" AND EACH OF THEM, FOR A 28 CAUSE OF ACTION FOR NEGLIGENCE I, PURSUANT TO CIVIL CODE § 1714, BAJI K:\Injured\129605\PLD\cmp pilcp2exp.wpd 1 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 3.00, 3.10, 3.11, 3.12, 3.76, 3.77, 3.78, 9.19, 9.20, 9.21, AND CACI 400, 401, 431, 435, 1220, 2 1221, 1222, 1223, AND ALLEGES: 3 1. The true names and capacities, whether individual, corporate, associate, 4 governmental or otherwise, of defendants DOES 1 through 300, inclusive, are unknown to 5 plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true 6 names and capacities of said defendants have been ascertained, plaintiff will amend this 7 complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each 8 defendant designated herein as a DOE is responsible, negligently or in some other actionable 9 manner, for the events and happenings hereinafter referred to, and caused injuries and damages 10 proximately thereby to the plaintiff, as hereinafter alleged. 11 2. At all times herein mentioned, each of the defendants was the agent, servant, 12 employee and/or joint venturer of his co-defendants, and each of them, and at all said times, each 13 defendant was acting in the full course and scope of said agency, service, employment and/or 14 joint venture. 15 3. Plaintiff is informed and believes, and thereon alleges that at all times herein 16 mentioned, defendants: GOLDEN GATE DRYWALL; UNION CARBIDE CORPORATION; 17 CONSOLIDATED INSULATION, INC.; and DOES 1 through 300, inclusive, were individuals, 18 or corporations, partnerships and/or unincorporated associations organized and existing under 19 and by virtue of the laws of the State of California, or the laws of some other state or foreign 20 jurisdiction, and that said defendants, and each of them, were and are authorized to do and are 21 doing business in the State of California, and that said defendants have regularly conducted 22 business in the County of San Francisco, State of California. 23 4. At all times herein mentioned, each of the named defendants and DOES 1 through 24 300 was the successor, successor in business, successor in product line or a portion thereof, 25 assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, 26 parent, subsidiary, wholly or partially owned by, or the whole or partial owner of or member in 27 an entity researching, studying, manufacturing, fabricating, designing, modifying, labeling, 28 assembling, distributing, leasing, buying, offering for sale, supplying, selling, inspecting, K:\Injured\129605\PLD\cmp pilcp2exp.wpd 2 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding, 2 manufacturing for others, packaging and advertising a certain substance, the generic name of 3 which is asbestos and other products containing said substance. Said entities shall hereinafter 4 collectively be called "alternate entities." Each of the herein named defendants is liable for the 5 tortious conduct of each successor, successor in business, successor in product line or a portion 6 thereof, assign, predecessor in product line or a portion thereof, parent, subsidiary, whole or 7 partial owner, or wholly or partially owned entity, or entity that it was a member of, or funded, 8 that researched, studied, tested, manufactured, fabricated, designed, modified, labeled, 9 assembled, distributed, promoted, leased, bought, offered for sale, recommended for use, 10 supplied, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, 11 warranted, evaluated, rebranded, manufactured for others and advertised a certain substance, the 12 generic name of which is asbestos and other products containing said substance. The following 13 defendants, and each of them, are liable for the acts of each and every "alternate entity," and each 14 of them, in that there has been a virtual destruction of plaintiff's remedy against each such 15 "alternate entity"; defendants, and each of them, have acquired the assets, product line, or a 16 portion thereof, of each such "alternate entity"; such "alternate entity"; defendants, and each of 17 them, caused the destruction of plaintiff's remedy against each such "alternate entity"; each such 18 defendant has the ability to assume the risk-spreading role of each such "alternate entity"; and 19 that each such defendant enjoys the goodwill originally attached to each such "alternate entity." 20 DEFENDANT ALTERNATE ENTITY 21 UNION CARBIDE CORPORATION UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC. 22 UNION CARBIDE AND CARBON PRODUCTS LINDE AIR PRODUCTS COMPANY 23 24 5. At all times herein mentioned, defendants, their "alternate entities," and each of 25 them, were and are engaged in the business of mining, processing, sorting, researching, 26 manufacturing, fabricating, designing, modifying, labeling, assembling, distributing, leasing, 27 buying, offering for sale, supplying, selling, inspecting, servicing, installing, removing, 28 manipulating, testing, disturbing, contracting for installation, repairing, marketing, warranting, K:\Injured\129605\PLD\cmp pilcp2exp.wpd 3 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 rebranding, manufacturing for others, packaging and/or advertising a certain substance, the 2 generic name of which is asbestos and other products containing said substance. 3 6. There is general agreement among scientists, health care providers, physicians, 4 and health and science related agencies and organizations, including but not limited to, the World 5 Health Organization, International Agency for Research on Cancer, American Cancer Society, 6 National Cancer Institute, National Toxicology Program, Environmental Protection Agency, 7 American Thoracic Society, Occupational Safety and Health Administration, Consumer Products 8 Safety Commission, and the Unites States Congress that exposure to any asbestos type can 9 increase the risk of disease, including but not limited to sub-clinical pleural, lung, and other 10 organ scarring, cancer, mesothelioma, and non-malignant lung and pleural disorders. Evaluation 11 of all available human data provides no evidence for a "safe" level of asbestos exposure below 12 which risk of clinical disease is not increased. The mainstream scientific and medical 13 community is in consensus that exposure to asbestos at current regulatory levels results in excess 14 incidence of mesothelioma and that any occupational or para-occupational exposure to asbestos - 15 even that described as low-level or brief in duration must be regarded as causal in an individual 16 with clinical mesothelioma. "The victim ultimately suffocates from the tumor." Hernandez v. 17 Amcord, Inc., 215 Cal.App.4th 659, 664. A rigorous review of the epidemiologic evidence 18 confirms that all types of asbestos fibre are causally implicated in the development of various 19 diseases and premature death. Numerous well respected international and national scientific 20 organizations, through an impartial and rigorous process of deliberation and evaluation, have 21 concluded that all forms of asbestos are capable of inducing mesothelioma, lung cancer, 22 asbestosis and other diseases. These conclusions are based on the full body of evidence, 23 including the epidemiology, toxicology, industrial hygiene, biology, pathology, and other related 24 literature published to the time of the respective evaluations. Since the 1960s, the scientific 25 evidence has become overwhelming that occupational and environmental exposure to asbestos 26 can cause asbestosis, lung cancer, and mesothelioma. A large number of studies have reported an 27 excess of mesothelioma and lung cancer among workers who were predominantly exposed to 28 chrysotile asbestos (Kanarek, 2011). For example, excess mortality from lung cancer and K:\Injured\129605\PLD\cmp pilcp2exp.wpd 4 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 mesothelioma has been reported among miners and millers in Quebec (Liddell, et al., 1997), 2 among textile workers in South Carolina (Hein, et al., 2007) and North Carolina (Loomis, et al., 3 2009), Chinese chrysotile production workers (Wang, et al., 2012), and in Italian miners (Pira, et 4 al., 2009) exposed primarily to chrysotile asbestos. 5 7. A basic tenet of California law is that everyone is required to use ordinary care in 6 their activities so as to regard the safety of others and prevent injury to others from their conduct 7 or omissions. (Civ. Code, § 1714, subd. (a); Pedeferri v. Seidner Enterprises (2013) 216 8 Cal.App.4th 359, 365; Cabral v. Ralphs (2011) 51 Cal.4th 764; Merrill v. Navegar, Inc. (2002) 9 26 Cal.4th 465; Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36.) 10 8. At all times herein mentioned, defendants, their "alternate entities" and each of 11 them, singularly and jointly, failed to use ordinary care to prevent harm to themselves or to 12 others, negligently acted or failed to act, negligently did something that a reasonably careful 13 person would not do in the same situation, negligently failed to do something that a reasonably 14 careful person would do in the same situation, negligently and carelessly researched or failed to 15 research, manufactured, fabricated, designed, modified, tested or failed to test, abated or failed to 16 abate, warned or failed to warn of the health hazards, labeled or failed to label, assembled, 17 distributed, leased, bought, offered for sale, supplied, sold, inspected or failed to inspect, 18 serviced, installed, contracted for installation, repaired, marketed, warranted, rebranded, 19 manufactured for others, packaged and advertised, removed, disturbed, failed to recall, and/or 20 failed to retrofit, a certain substance, the generic name of which is asbestos and other products 21 containing said substance, in that said substance proximately caused personal injuries to users, 22 consumers, workers, bystanders, family members, and others, including the plaintiff herein 23 (hereinafter collectively called "exposed persons"), while being used in a manner that was 24 reasonably foreseeable, thereby rendering said substance unsafe and dangerous for use by 25 "exposed persons." 26 9. Defendants, their "alternate entities," and each of them, had a duty to exercise due 27 care in the pursuance of the activities mentioned above and defendants, and each of them, 28 breached said duty of due care. K:\Injured\129605\PLD\cmp pilcp2exp.wpd 5 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 10. Defendants, their "alternate entities" and each of them, knew, or should have 2 known, and intended that the aforementioned asbestos and products containing asbestos would 3 be transported by truck, rail, ship and other common carriers, that in the shipping process the 4 products would break, crumble or be otherwise damaged; and/or that such products would be 5 used for insulation, construction, drywalling, plastering, fireproofing, soundproofing, automotive, 6 aircraft and/or other applications, including, but not limited to mixing, sawing, chipping, 7 hammering, scraping, sanding, drilling, breaking, removal, "rip-out," clean up, and other 8 manipulation, resulting in the indiscriminate or other release of airborne asbestos fibers, and that 9 through such foreseeable use and/or handling "exposed persons," including plaintiff herein, 10 would use or be in proximity to and exposed to said asbestos fibers, which contaminated the 11 packaging, products, environment, and clothing of persons working in proximity to said 12 products, directly or through reentrainment. 13 11. Defendants, their "alternate entities" and each of them, knew, or should have 14 known, and intended that the aforementioned asbestos and asbestos-containing products would 15 be used, manipulated, or handled as specified in Exhibit A, which is attached hereto and 16 incorporated by reference herein, resulting in the release of airborne asbestos fibers, and that 17 through such foreseeable use and/or handling "exposed persons," including plaintiff herein, 18 would be in proximity to and exposed to said asbestos fibers. 19 12. Plaintiff JOHN OLIVER GOSSETT III has used, handled or been otherwise 20 exposed to asbestos and asbestos-containing products referred to herein in a manner that was 21 reasonably foreseeable and from the intended use of the product. Plaintiff's exposure to asbestos 22 and asbestos-containing products occurred at various locations as set forth in Exhibit A, which is 23 attached hereto and incorporated by reference herein. 24 13. As a direct and proximate result of the conduct or omissions of the defendants, 25 their "alternate entities," and each of them, as aforesaid, plaintiff's exposure to asbestos and 26 asbestos-containing products caused severe and permanent injury, damage, loss, or harm to the 27 plaintiff, including, but not limited to breathing difficulties, pleural disease, asbestosis, other lung 28 /// K:\Injured\129605\PLD\cmp pilcp2exp.wpd 6 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 damage and/or cancer, the nature of which, along with the date of plaintiff's diagnosis, are set 2 forth in Exhibit B, which is attached hereto and incorporated by reference herein. 3 14. Plaintiff is informed and believes, and thereon alleges, that progressive lung 4 disease, cancer and other serious diseases and physical injury are caused by inhalation of asbestos 5 fibers without contemporaneous perceptible trauma and that said disease results from exposure to 6 asbestos and asbestos-containing products over a period of time. 7 15. Plaintiff JOHN OLIVER GOSSETT III suffers from a condition related to 8 exposure to asbestos and asbestos-containing products. 9 16. As a direct and proximate result of the aforesaid conduct of defendants, their 10 "alternate entities," and each of them, plaintiff has suffered, and continues to suffer, permanent 11 injuries and/or future increased risk of injuries to his person, body and health, including, but not 12 limited to, pleural disease, asbestosis, other lung damage, and cancer, and the mental and 13 emotional distress attendant thereto, from the effect of exposure to asbestos fibers, all to his 14 general damage in a sum in excess of the jurisdictional limits of a limited civil case. This action 15 is an Unlimited Civil Case as defined in Code of Civil Procedure § 88. 16 17. As a direct and proximate result of the aforesaid conduct of the defendants, their 17 "alternate entities," and each of them, plaintiff has incurred, is presently incurring, and will incur 18 in the future, liability for physicians, surgeons, nurses, hospital care, medicine, hospice care, X- 19 rays, CT scans, PET scans, and other medical treatment, the true and exact amount thereof being 20 unknown to plaintiff at this time, and plaintiff prays leave to amend this complaint accordingly 21 when the true and exact cost thereof is ascertained. 22 18. As a further direct and proximate result of the said conduct of the defendants, 23 their "alternate entities," and each of them, plaintiff has incurred, and will incur, loss of income, 24 wages, profits and commissions, a diminishment of earning potential, and other pecuniary losses, 25 the full nature and extent of which are not yet known to plaintiff; and leave is requested to amend 26 this complaint to conform to proof at the time of trial. 27 19. The following defendants, their "alternate entities," and each of them, and their 28 officers, directors and managing agents participated in, authorized, expressly and impliedly K:\Injured\129605\PLD\cmp pilcp2exp.wpd 7 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 ratified, and had full knowledge of, or should have known of, each of the acts set forth herein. 2 The following defendants, their "alternate entities," and each of them, are liable for the 3 fraudulent, oppressive, and malicious acts of their "alternate entities," and each of them, and each 4 defendant's officers, directors and managing agents participated in, authorized, expressly and 5 impliedly ratified, and had full knowledge of, or should have known of, the acts of each of their 6 "alternate entities" as set forth herein. The herein-described conduct of said defendants listed in 7 this paragraph below, their "alternate entities," and each of them, was and is willful, malicious, 8 fraudulent, outrageous and in conscious disregard and indifference to the safety and health of 9 "exposed persons." Plaintiff, for the sake of example and by way of punishing said defendants, 10 seeks punitive damages according to proof against the following defendants only: UNION 11 CARBIDE CORPORATION and DOES 65-75. 12 WHEREFORE, plaintiff prays judgment against defendants, their "alternate entities," 13 and each of them, as hereinafter set forth. 14 SECOND CAUSE OF ACTION (Products Liability) 15 16 AS AND FOR A SECOND, SEPARATE, FURTHER AND DISTINCT CAUSE OF 17 ACTION FOR PRODUCTS LIABILITY, PLAINTIFF JOHN OLIVER GOSSETT III 18 COMPLAINS OF DEFENDANTS NAMED IN PARAGRAPH 3 HERE IN ABOVE, DOES 19 1-300, AND EACH OF THEM, PURSUANT TO BAJI 3.76, 3.77. 3.78, 9.00, 9.00.5, 9.00.7, 20 AND CACI 431, 435, 1200, 1203, 1205, AND 1223, AND ALLEGES AS FOLLOWS: 21 20. Plaintiff incorporates herein by reference, as though fully set forth herein, the 22 allegations and facts contained in all of the forgoing paragraphs. 23 21. Defendants, their "alternate entities," and each of them, defectively designed 24 asbestos and asbestos-containing products and failed to adequately warn of potential safety 25 hazards of asbestos and asbestos-containing products. 26 22. Such asbestos and asbestos-containing products did not perform as safely as an 27 ordinary consumer would expect when used or misused in an intended or reasonably foreseeable 28 way. K:\Injured\129605\PLD\cmp pilcp2exp.wpd 8 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 23. Such asbestos and asbestos-containing products when used or misused in an 2 intended or reasonably foreseeable way had potential risks that were known or knowable in light 3 of the scientific and medical knowledge that was generally accepted in the scientific community 4 at the time of manufacture, distribution, or sale, and defendants failed to adequately warn of 5 those potential risks. 6 24. Defendants, their "alternate entities," and each of them, knew and intended that 7 the above-referenced asbestos and asbestos-containing products would be used by the purchaser 8 or user without inspection for defects therein or in any of their component parts and without 9 knowledge of the hazards involved in such use. 10 25. Said asbestos and asbestos-containing products were defective under California 11 Consumer Safety Law and unsafe for their intended purpose in that the inhalation of asbestos 12 fibers causes serious disease and/or death. The defect existed in the said products at the time 13 they left the possession of defendants, their "alternate entities," and each of them. Said products 14 did, in fact, cause personal injuries, including asbestosis, other lung damage, and cancer to 15 "exposed persons," including plaintiff herein, while being used in a reasonably foreseeable 16 manner, thereby rendering the same defective, unsafe and dangerous for use. Moreover, said 17 products failed to be designed, as required by California law, to account for foreseeable risks, 18 even if they arise from the conduct of others. Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 19 1486, 1511. 20 26. "Exposed persons" did not know of the substantial danger of using said products. 21 Said dangers were not readily recognizable by "exposed persons." Said defendants, their 22 "alternate entities," and each of them, further failed to adequately warn of the risks to which 23 plaintiff and others similarly situated were exposed. 24 27. In researching or failing to research, manufacturing, fabricating, designing, 25 modifying, testing or failing to test, warning or failing to warn, labeling or failing to label, 26 assembling, distributing, leasing, buying, offering for sale, supplying, selling, inspecting, 27 servicing, installing, contracting for installation, repairing, marketing, warranting, rebranding, 28 manufacturing for others, packaging and advertising, disturbing, removing, failing to recall, K:\Injured\129605\PLD\cmp pilcp2exp.wpd 9 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 failing to retrofit asbestos and asbestos-containing products, defendants, their "alternate entities," 2 and each of them, did so with reckless or conscious disregard for the safety of "exposed persons" 3 who came in contact with said asbestos and asbestos-containing products, related to the intended 4 use of said products by defendants, which intended use created hazardous circumstance and 5 situation, in that said defendants, their "alternate entities," and each of them, had prior knowledge 6 that there was a substantial risk of injury or death resulting from exposure to asbestos or 7 asbestos-containing products, including, but not limited to, asbestosis, other lung disabilities and 8 cancer. Said knowledge was obtained, in part, from scientific studies performed by, at the 9 request of, or with the assistance of, said defendants, their "alternate entities," and each of them, 10 and which knowledge was obtained by said defendants, their "alternate entities," and each of 11 them on or before 1930, and thereafter. 12 28. On or before 1930, and thereafter, said defendants, their "alternate entities" and 13 each of them, were aware that members of the general public and other "exposed persons," who 14 would come in contact with their asbestos and asbestos-containing products, had no knowledge 15 or information indicating that asbestos or asbestos-containing products could cause injury, and 16 said defendants, their "alternate entities," and each of them, knew that members of the general 17 public and other "exposed persons," who came in contact with asbestos and asbestos-containing 18 products, would assume, and in fact did assume, that exposure to asbestos and asbestos- 19 containing products was safe, when in fact said products and exposure thereto was extremely 20 hazardous to health and human life. 21 29. With said knowledge, said defendants, their "alternate entities," and each of them, 22 opted to research, manufacture, fabricate, design, modify, label, assemble, distribute, lease, buy, 23 offer for sale, supply, sell, inspect, service, install, contract for installation, repair, market, 24 warrant, rebrand, manufacture for others, package and advertise, remove, and disturb said 25 asbestos and asbestos-containing products without attempting to protect "exposed persons" from, 26 or warn "exposed persons" of, the high risk of injury or death resulting from exposure to asbestos 27 and asbestos-containing products. Rather than attempting to protect "exposed persons" from, or 28 warn "exposed persons" of, the high risk of injury or death resulting from exposure to asbestos K:\Injured\129605\PLD\cmp pilcp2exp.wpd 10 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 and asbestos-containing products, defendants, their "alternate entities," and each of them, 2 intentionally failed to reveal their knowledge of said risk, and consciously and actively concealed 3 and suppressed said knowledge from "exposed persons" and members of the general public, thus 4 impliedly representing to "exposed persons" and members of the general public that asbestos and 5 asbestos-containing products were safe for all reasonably foreseeable uses. Defendants, their 6 "alternate entities," and each of them, engaged in this conduct and made these implied 7 representations with the knowledge of the falsity of said implied representations. 8 30. The above-referenced conduct of said defendants, their "alternate entities," and 9 each of them, was motivated by the financial interest of said defendants, their "alternate entities," 10 and each of them, in the continuing, uninterrupted research, design, modification, manufacture, 11 fabrication, labeling, assembly, distribution, lease, purchase, offer for sale, supply, sale, 12 inspection, installation, contracting for installation, repair, marketing, warranting, rebranding, 13 manufacturing for others, packaging and advertising, disturbing, removing of asbestos and 14 asbestos-containing products. In pursuance of said financial motivation, said defendants, their 15 "alternate entities," and each of them, consciously disregarded the safety of "exposed persons" 16 and in fact were consciously willing and intended to permit asbestos and asbestos-containing 17 products to cause injury to "exposed persons" and induced persons to work with and be exposed 18 thereto, including plaintiff. 19 31. Plaintiff alleges that the aforementioned defendants, their "alternate entities," and 20 each of them impliedly warranted their asbestos and asbestos-containing products, to be safe for 21 their intended use but that their asbestos and asbestos-containing products, created an 22 unreasonable risk of bodily harm to exposed persons. 23 32. Plaintiff further alleges his injuries are a result of cumulative exposure to asbestos 24 and various asbestos-containing products manufactured, fabricated, inadequately researched, 25 designed, modified, inadequately tested, labeled, assembled, distributed, leased, bought, offered 26 for sale, supplied, sold, inspected, serviced, installed, contracted for installation, repaired, 27 marketed, warranted, rebranded, manufactured for others, packaged and advertised by the 28 aforementioned defendants, their "alternate entities," and each of them and that plaintiff cannot K:\Injured\129605\PLD\cmp pilcp2exp.wpd 11 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 identify precisely which asbestos or asbestos-containing products caused the injuries complained 2 of herein. 3 33. Plaintiff relied upon defendants', their "alternate entities'," and each of their 4 representations, lack of warnings, and implied warranties of fitness of asbestos and their 5 asbestos-containing products. As a direct, foreseeable and proximate result thereof, plaintiff has 6 been injured permanently as alleged herein. 7 34. As a direct and proximate result of the actions and conduct outlined herein, 8 plaintiff has suffered the injuries and damages previously alleged. 9 35. The following defendants, their "alternate entities," and each of them, and their 10 officers, directors and managing agents participated in, authorized, expressly and impliedly 11 ratified, and had full knowledge of, or should have known of, each of the acts set forth herein. 12 The following defendants, their "alternate entities," and each of them, are liable for the 13 fraudulent, oppressive, and malicious acts of their "alternate entities," and each of them, and each 14 defendant's officers, directors and managing agents participated in, authorized, expressly and 15 impliedly ratified, and had full knowledge of, or should have known of, the acts of each of their 16 "alternate entities" as set forth herein. The herein-described conduct of said defendants listed in 17 this paragraph below, their "alternate entities," and each of them, was and is willful, malicious, 18 fraudulent, outrageous and in conscious disregard and indifference to the safety and health of 19 "exposed persons." Plaintiff, for the sake of example and by way of punishing said defendants, 20 seeks punitive damages according to proof against the following defendants only: UNION 21 CARBIDE CORPORATION and DOES 65-75. 22 WHEREFORE, plaintiff prays judgment against defendants, their "alternate entities," and 23 each of them, as hereinafter set forth. 24 THIRD CAUSE OF ACTION (Negligence I) (From Take-Home Exposure) 25 26 AS AND FOR A THIRD, SEPARATE, FURTHER AND DISTINCT CAUSE OF 27 ACTION, PLAINTIFF JOHN OLIVER GOSSETT III COMPLAINS OF DEFENDANTS 28 KAISER GYPSUM COMPANY, INC.; UNION CARBIDE CORPORATION; K:\Injured\129605\PLD\cmp pilcp2exp.wpd 12 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 CONSOLIDATED INSULATION, INC.; GOLDEN GATE DRYWALL; DOES 251-300, 2 THEIR "ALTERNATE ENTITIES" AND EACH OF THEM, FOR A CAUSE OF ACTION 3 FOR NEGLIGENCE I, PURSUANT TO CIVIL CODE § 1714, BAJI 3.00, 3.10, 3.11, 3.12, 4 3.76, 3.77, 3.78, 9.19, 9.20, 9.21, AND CACI 400, 401, 431, 435, 1220, 1221, 1222, 1223, AND 5 ALLEGES: 6 36. Plaintiff JOHN OLIVER GOSSETT III lived with his father John Gossett Jr., 7 deceased, c/o Brayton˜Purcell LLP, from his birth on March 3, 1960 until he left home in 1980. 8 Plaintiff’s father worked as a carpenter for a drywall contractor. Plaintiff was exposed to 9 asbestos through the work done by his father John Gossett Jr. when plaintiff’s father would come 10 home from work with dirty, dusty clothes. 11 37. The true names and capacities, whether individual, corporate, associate, 12 governmental or otherwise, of defendants DOES 251 through 300, inclusive, are unknown to 13 plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true 14 names and capacities of said defendants have been ascertained, plaintiff will amend this 15 complaint accordingly. Plaintiff is informed and believes, and thereon alleges, that each 16 defendant designated herein as a DOE is responsible, negligently or in some other actionable 17 manner, for the events and happenings hereinafter referred to, and caused injuries and damages 18 proximately thereby to the plaintiff, as hereinafter alleged. 19 38. At all times herein mentioned, each of the defendants was the agent, servant, 20 employee and/or joint venturer of his co-defendants, and each of them, and at all said times, each 21 defendant was acting in the full course and scope of said agency, service, employment and/or 22 joint venture. 23 39. Plaintiff is informed and believes, and thereon alleges that at all times herein 24 mentioned, defendants KAISER GYPSUM COMPANY, INC.; UNION CARBIDE 25 CORPORATION; CONSOLIDATED INSULATION, INC.; GOLDEN GATE DRYWALL; and 26 DOES 251 through 300, inclusive, were individuals, or corporations, partnerships and/or 27 unincorporated associations organized and existing under and by virtue of the laws of the State of 28 California, or the laws of some other state or foreign jurisdiction, and that said defendants, and K:\Injured\129605\PLD\cmp pilcp2exp.wpd 13 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 each of them, were and are authorized to do and are doing business in the State of California, and 2 that said defendants have regularly conducted business in the County of San Francisco, State of 3 California. 4 40. At all times herein mentioned, each of the named defendants and DOES 251 5 through 300 was the successor, successor in business, successor in product line or a portion 6 thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion 7 thereof, parent, subsidiary, wholly or partially owned by, or the whole or partial owner of or 8 member in an entity researching, studying, manufacturing, fabricating, designing, modifying, 9 labeling, assembling, distributing, leasing, buying, offering for sale, supplying, selling, 10 inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, 11 rebranding, manufacturing for others, packaging and advertising a certain substance, the generic 12 name of which is asbestos and/or talc and other products containing said substance. Said entities 13 shall hereinafter collectively be called "alternate entities." Each of the herein named defendants 14 is liable for the tortious conduct of each successor, successor in business, successor in product 15 line or a portion thereof, assign, predecessor in product line or a portion thereof, parent, 16 subsidiary, whole or partial owner, or wholly or partially owned entity, or entity that it was a 17 member of, or funded, that researched, studied, tested, manufactured, fabricated, designed, 18 modified, labeled, assembled, distributed, promoted, leased, bought, offered for sale, 19 recommended for use, supplied, sold, inspected, serviced, installed, contracted for installation, 20 repaired, marketed, warranted, evaluated, rebranded, manufactured for others and advertised a 21 certain substance, the generic name of which is asbestos and/or talc and other products 22 containing said substance. The following defendants, and each of them, are liable for the acts of 23 each and every "alternate entity," and each of them, in that there has been a virtual destruction of 24 plaintiff's remedy against each such "alternate entity"; defendants, and each of them, have 25 acquired the assets, product line, or a portion thereof, of each such "alternate entity"; such 26 "alternate entity"; defendants, and each of them, caused the destruction of plaintiff's remedy 27 against each such "alternate entity"; each such defendant has the ability to assume the risk- 28 /// K:\Injured\129605\PLD\cmp pilcp2exp.wpd 14 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 spreading role of each such "alternate entity"; and that each such defendant enjoys the goodwill 2 originally attached to each such "alternate entity." 3 DEFENDANT ALTERNATE ENTITY 4 KAISER GYPSUM COMPANY, INC. LEHIGH HANSON, INC. SIERRA GYPSUM, INC. 5 6 41. At all times herein mentioned, defendants, their "alternate entities," and each of 7 them, were and are engaged in the business of researching, manufacturing, fabricating, designing, 8 modifying, labeling, assembling, distributing, leasing, buying, offering for sale, supplying, 9 selling, inspecting, endorsing, testing, authorizing, approving, certifying, facilitating, promoting, 10 representing, servicing, installing, contracting for installation, repairing, marketing, warranting, 11 rebranding, manufacturing for others, packaging, specifying, requiring, mandating, or otherwise 12 directing and/or facilitating the use of, or advertising a certain product, namely asbestos and other 13 products containing asbestos. 14 42. At all times herein mentioned, defendants, their "alternate entities," and each of 15 them, were and are engaged in the business of mining, processing, sorting, researching, 16 manufacturing, fabricating, designing, modifying, labeling, assembling, distributing, leasing, 17 buying, offering for sale, supplying, selling, inspecting, servicing, installing, removing, 18 manipulating, testing, disturbing, contracting for installation, repairing, marketing, warranting, 19 rebranding, manufacturing for others, packaging and/or advertising a certain substance, the 20 generic name of which is asbestos and other products containing said substance. 21 43. There is general agreement among scientists, health care providers, physicians, 22 and health and science related agencies and organizations, including but not limited to, the World 23 Health Organization, International Agency for Research on Cancer, American Cancer Society, 24 National Cancer Institute, National Toxicology Program, Environmental Protection Agency, 25 American Thoracic Society, Occupational Safety and Health Administration, Consumer Products 26 Safety Commission, and the Unites States Congress that exposure to any asbestos type can 27 increase the risk of disease, including but not limited to sub-clinical pleural, lung, and other 28 organ scarring, cancer, mesothelioma, and non-malignant lung and pleural disorders. Evaluation K:\Injured\129605\PLD\cmp pilcp2exp.wpd 15 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 of all available human data provides no evidence for a "safe" level of asbestos exposure below 2 which risk of clinical disease is not increased. The mainstream scientific and medical 3 community is in consensus that exposure to asbestos at current regulatory levels results in excess 4 incidence of mesothelioma and that any occupational or para-occupational exposure to asbestos - 5 even that described as low-level or brief in duration must be regarded as causal in an individual 6 with clinical mesothelioma. "The victim ultimately suffocates from the tumor." Hernandez v. 7 Amcord, Inc., 215 Cal.App.4th 659, 664. A rigorous review of the epidemiologic evidence 8 confirms that all types of asbestos fiber are causally implicated in the development of various 9 diseases and premature death. Numerous well respected international and national scientific 10 organizations, through an impartial and rigorous process of deliberation and evaluation, have 11 concluded that all forms of asbestos are capable of inducing mesothelioma, lung cancer, 12 asbestosis and other diseases. These conclusions are based on the full body of evidence, 13 including the epidemiology, toxicology, industrial hygiene, biology, pathology, and other related 14 literature published to the time of the respective evaluations. Since the 1960s, the scientific 15 evidence has become overwhelming that occupational and environmental exposure to asbestos 16 can cause asbestosis, lung cancer, and mesothelioma. A large number of studies have reported an 17 excess of mesothelioma and lung cancer among workers who were predominantly exposed to 18 chrysotile asbestos (Kanarek, 2011). For example, excess mortality from lung cancer and 19 mesothelioma has been reported among miners and millers in Quebec (Liddell, et al., 1997), 20 among textile workers in South Carolina (Hein, et al., 2007) and North Carolina (Loomis, et al., 21 2009), Chinese chrysotile production workers (Wang, et al., 2012), and in Italian miners (Pira, et 22 al., 2009) exposed primarily to chrysotile asbestos. 23 44. A basic tenet of California law is that everyone is required to use ordinary care in 24 their activities so as to regard the safety of others and prevent injury to others from their conduct 25 or omissions. (Civ. Code, § 1714, subd. (a); Pedeferri v. Seidner Enterprises (2013) 216 26 Cal.App.4th 359, 365; Cabral v. Ralphs (2011) 51 Cal.4th 764; Merrill v. Navegar, Inc. (2002) 27 26 Cal.4th 465; Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 36.) 28 /// K:\Injured\129605\PLD\cmp pilcp2exp.wpd 16 COMPLAINT FOR PERSONAL INJURY AND LOSS OF CONSORTIUM - ASBESTOS 1 45. At all times herein mentioned, defendants, their "alternate entities" and each of 2 them, singularly and jointly, failed to use ordinary care to prevent harm to themselves or to 3 others, negligently acted or failed to act, negligently did something that a reasonably careful 4 person would not do in the same situation, negligently failed to do something that a reasonably 5 careful person would do in the same situation, negligently and carelessly researched or failed to 6 research, manufactured, fabricated, designed, modified, tested or failed to test, abated or failed to 7 abate, warned or failed to warn of the health hazards, labeled or failed to label, assembled, 8 distributed, leased, bought, offered for sale, supplied, sold, inspected or failed to inspect, 9 serviced, installed, contracted for installation, repaired, marketed, warranted, rebranded, 10 manufactured for others, packaged and advertised, removed, disturbed, failed to recall, and/or 11 failed to retrofit, a certain substance, the generic name of which is asbestos and other products 12 containing said substance, in that said substance proximately caused personal injuries to users, 13 consumers, workers, bystanders, family members, and others, including the plaintiff herein 14 (hereinafter collectively called "exposed persons"), while being used in a manner that was 15 reasonably foreseeable, thereby rendering said substance unsafe and dangerous for use by 16 "exposed persons." 17 46. Defendants, their "alternate entities," and each of them, had a duty to exercise due 18 care in the pursuance of the activities mentioned above and defendants, and each of them, 19 breached said duty of due care. 20 47. Defendants, their "alternate entities" and each of them, knew, or should have 21 known, and intended that the aforementioned asbestos and products containing asbestos, would 22 be transported by truck, rail, ship, and o