Preview
1
David R. Ongaro (State Bar No. 154698)
2 dongaro@ongaropc.com
Kirsten McNelly Bibbes (State Bar No. 276308) ELECTRONICALLY
3 kbibbes@ongaropc.com F I L E D
Kenneth M. Natelborg (State Bar No. 260550) Superior Court of California,
County of San Francisco
4 knatelborg@ongaropc.com
ONGARO PC 05/07/2020
1604 Union Street Clerk of the Court
5 BY: EDNALEEN ALEGRE
San Francisco, CA 94123 Deputy Clerk
6 Telephone: (415) 433-3900
Facsimile: (415) 433-3950
7
Attorneys for Defendant
8 HONEYWELL INTERNATIONAL INC., f/k/a
AlliedSignal Inc., Successor-In-Interest To
9 The Bendix Corporation
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
12
GLORIA LUZ MARTINEZ, Individually Case No. CGC-15-276442
13 and as Successor-in-Interest to JUAN
SANCHEZ MARTINEZ, SR., Decedent; HONEYWELL INTERNATIONAL
14 JUAN MARTINEZ, JR., MARTIN INC.’S MEMORANDUM OF POINTS
MARTINEZ, and FRANCISCO AND AUTHORITIES IN SUPPORT OF
15 MARTINEZ, MOTION FOR SUMMARY
16 ADJUDICATION OF PLAINTIFFS’
Plaintiffs, PUNITIVE DAMAGE CLAIM
17
vs. Date: July 23, 2020
18 Time: 9:30 a.m.
ASBESTOS COMPANIES, et al.,
Dept.: 503
19
Judge: Hon. Cynthia Lee
Defendants.
20
Accompanying Documents:
21 1. Notice of Motion and Motion
2. Separate Statement of Undisputed
22 Material Facts
3. Index of Evidence.
23
24 Complaint filed: July 9, 2015
Trial Date: August 24, 2020
25
26
27
28
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 TABLE OF CONTENTS
2
I. INTRODUCTION ....................................................................................................................1
3
II. STATEMENT OF fACTS ........................................................................................................2
4
A. Plaintiffs allege exposure from brake work between the
5 1960s and the 1990s ...........................................................................................................3
6 B. Plaintiffs’ punitive damage allegations are vague and non-specific ..................................3
7 C. Plaintiffs provide no specific evidence as a basis for their punitive damage claim
in responses to written discovery .......................................................................................4
8
1. Plaintiffs allegation of malice is based solely on a failure to warn .............................4
9
D. The scientific knowledge and articles relating to asbestos in brakes prior to
10 Honeywell’s warnings show that there was no scientific consensus of danger
related to brake products, proving Honeywell is not guilty of malice ...............................5
11
1. Scientific knowledge in the 1960s affirmed there was no danger from
12 asbestos in brakes, meaning there can be no malice in failing to warn.......................6
13 E. Honeywell warned consumers in 1973.............................................................................10
14 III. ARGUMENT ..........................................................................................................................10
15 A. Summary adjudication is proper, as here, where plaintiffs lack evidence on
any essential evidence ......................................................................................................10
16
B. Summary adjudication must be granted where, as here, plaintiffs do not have
17 clear and convincing evidence of oppression, fraud or malice ........................................11
18 1. The 1960s scientific community’s failure to identify dangers in brake products
punitive damages for pre-1973 failure to warn .........................................................13
19
2. The evidence plaintiffs identify in discovery is inadmissible and insufficient
20 to give rise to a punitive damage claim as a matter of law .......................................17
21 a. Letters Related to Silicosis .................................................................................17
22 b. The Bendix Corporation’s Nolo Contendre Plea ...............................................17
23 c. Plaintiffs’ Mischaracterize the Documents They Reference ..............................18
24 d. The E.A. Martin Letter and Correspondence with Johns Manville ...................20
e. The January 7, 1969 correspondence .................................................................22
25
f. The 1972 J-M memorandum by H.G. Donovan ................................................22
26
3. Plaintiffs’ discovery responses are factually devoid .................................................22
27 4. Plaintiffs cannot rely on the Letter because it is inadmissible ..................................24
28 IV. CONCLUSION .......................................................................................................................25
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 TABLE OF AUTHORITIES
2 CASES
3 Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826 ............................................................................................................ 10, 11
4
American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton
5 (2002) 96 Cal.App.4th 1017 .................................................................................................. 12, 23
6 Anderson v. Liberty Lobby, Inc.
(1986) 477 U.S. 242 ..................................................................................................................... 23
7
Andrews v. Foster Wheeler LLC
8 (2006) 138 Cal.App.4th 96 .................................................................................................... 11, 24
9 Bell v. Sharp Cabrillo Hospital
(1989) 212 Cal.App.3d 1034........................................................................................................ 15
10
Brokopp v. Ford Motor Co.
11 (1977) 71 Cal.App.3d 841............................................................................................................ 18
12 Catalano v. Sup. Ct.
(2000) 82 Cal.App.4th 91 ............................................................................................................ 11
13
Century Surety Co. v. Polisso
14 (2006) 139 Cal.App.4th 922 ........................................................................................................ 16
15 Dukes v. Pneumo Abex Corp.
(2008) 386 Ill. App. 3d 425.................................................................................................... 18, 25
16
Ehrhardt v. Brunswick, Inc.
17 (1986) 186 Cal.App.3d 734..................................................................................................... 5, 12
18 Gober v. Ralphs Grocery Co.
(2006) 137 Cal.App.4th 204 ........................................................................................................ 15
19
Holdgrafer v. Unocal Corp. (2008)
20 160 Cal.App.4th 907 ............................................................................................................. 21, 22
21 Honeywell International Inc. v. Guilder
(2009) 23 So.3d 867 ..................................................................................................................... 25
22
In re Department of Soc. Servs. v. Ronald P.
23 (1981) 28 Cal.3d 908 ................................................................................................................... 23
24 Jackson v. Paramount Pictures Corp.
(1998) 68 Cal.App.4th 10 ............................................................................................................ 23
25
Johnson & Johnson Talcum Powder Cases
26 (2019) 37 Cal.App.5th 292 ...................................................................................................... 2, 14
27 McGonnell v. Kaiser Gypsum Co.
(2002) 98 Cal.App.4th 1098 .................................................................................................. 11, 24
28
i
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 Medo v. Superior Court
(1988) 205 Cal.App.3d 64...................................................................................................... 15, 22
2
Pac. Gas & Elec. Co. v. Sup. Ct.
3 (2018) 24 Cal.App.5th 1150 .............................................................................................. 1, 10, 12
4 People v. Ault
(2004) 33 Cal.4th 1250 ................................................................................................................ 15
5
Phillips v. Honeywell International Inc.
6 (2017) 9 Cal.App.5th 1061 .................................................................................................... 20, 25
7 R & B Auto Center, Inc. v. Farmers Group, Inc.
(2006) 140 Cal.App.4th 327 ........................................................................................................ 16
8
Romo v. Ford Motor Co.
9 (2002) 99 Cal.App.4th 1115 ........................................................................................................ 15
10 Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763 .................................................................................................................. 10
11
Simmons v. Southern Pac. Transportation Co.
12 (1976) 62 Cal.App.3d 341............................................................................................................ 15
13 State Farm Mutual Insurance v. Campbell
14 (2003) 538 U.S. 408 ............................................................................................................... 21, 22
Union Bank v. Superior Ct.
15
(1995) 31 Cal.App.4th 573 .......................................................................................................... 10
16 United States [sic.]v. Brake Lining Manufactures’ association [sic.], Inc.
17 C126/205-206-207, Sept. 22, 1948 .............................................................................................. 17
18 STATUTES
19 Cal. Civ. Code § 3294 ....................................................................................................................... 12
20 Cal. Evid. Code § 350 ....................................................................................................................... 18
21 Code Civ. Proc. § 437c ............................................................................................................... 10, 11
22 OTHER AUTHORITIES
23 David H. Garabrant, et al., Mesothelioma among Motor Vehicle Mechanics: And Updated
Review and Meta-analysis, ANNALS OF OCCUPATIONAL HYGIENE, Aug. 2015 ....................... 8, 10
24
H.A. Shapiro, Pneumoconiosis, Proceedings of the International Conference, Johannesburg
25 1969, CAPE TOWN OXFORD UNIVERSITY PRESS, 1970 ................................................................... 7
26 Hickish and Knight, Exposure to Asbestos During Brake Maintenance, CONFERENCE ON
EXPOSURE TO ASBESTOS DURING BRAKE AND CLUTCH MAINTENANCE IN BRENTWOOD
27 EDDEX, Mar. 1969 .......................................................................................................................... 7
28
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 Honeywell International Inc. (“Honeywell”) is entitled to summary adjudication of plaintiffs’
3 punitive damage claim as plaintiffs cannot satisfy their burden of clear and convincing evidence to
4 support it. It is undisputed that Honeywell placed warnings on the boxes of its Bendix brakes as
5 early as 1973—prior to Juan Sanchez Martinez, Sr.’s (“decedent”) first Bendix exposure in 1974.
6 In written discovery, Plaintiffs allege that decedent used, or was in the presence of others
7 using, Bendix brand asbestos-containing brakes between the 1960s and the late 1990s. However, the
8 deposition evidence shows a first exposure to a Bendix brake started in 1974—a year after Bendix
9 placed OSHA-compliant warnings on Bendix brake boxes cautioning users of the risk of serious
10 bodily harm. This affirmative act negates plaintiffs’ claim for punitive damages.1
11 When Honeywell provided warnings to its customers, it was not required to do so as the
12 applicable Occupational Safety and Health Administration (“OSHA”) requirements specifically
13 provided an exception for products, such as vehicle brakes, where the asbestos was bound in a resin
14 matrix. Despite this exception, Honeywell provided an OSHA-compliant warning on the boxes of
15 its brakes. Thus, at the time that decedent first used a Bendix brakes, no malice can be shown
16 toward decedent. The case law is clear that punitive damages are improper where the defendant
17 takes action to protect or minimize the injury to the plaintiff.2
18 Plaintiffs predicate their punitive damage claim upon a belief that Honeywell knew that
19 asbestos could cause disease but failed to warn decedent about the danger. Contrary to plaintiffs’
20 broad allegations implying that the “dangers” of asbestos were known for almost a century, the
21 scientific community indicated that asbestos in brakes presented no hazard before and at the time of
22 decedent’s first exposure to a Bendix brake.3 The asbestos-containing Bendix brakes that Honeywell
23
24 1
Punitive damages are not available where a “defendant [takes] action to protect or minimize the
injury to the plaintiff.” (Pac. Gas & Elec. Co. v. Sup. Ct. (2018) 24 Cal.App.5th 1150, 1161.)
25 2
Id. at 1161.
3
In fact, as quoted by plaintiffs in their discovery responses, in 1966 Johns-Manville employee Noel
26
Hendry purportedly wrote to Honeywell: “I suppose we have to bear with people who have nothing
27 better to do than create alarm, but we are not alarmed and we live and sleep with the stuff.” (Gloria
Martinez’s Amended Responses to Special Interrogatory No. 1, at p. 9:2-3 (emphasis added).) These
28 are not the words of someone who has been informed by the scientific community that asbestos in
brake products is harmful.
1
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 made, through the Bendix Corporation, contained chrysotile asbestos that was bound in a resin
2 matrix. This product is fundamentally different from those researched prior to the 1970s, which
3 largely consisted of studies on friable amphibole asbestos products used by insulation workers. No
4 science disputes that persons exposed to amphibole asbestos are at an increased risk for disease.
5 Punitive damages are also not appropriate when the science at the time shows no danger from
6 the ordinary use or when that science is in a state of contradiction. Even when a defendants breaches
7 its duty to warn consumers about the potential harm by obtaining some information about the
8 dangers, that knowledge cannot rise to the level of malice by clear and convincing evidence when
9 there is no consensus in the scientific community.4 At no point prior to placing warnings on Bendix
10 brakes did the scientific community reach a consensus regarding whether or not asbestos-containing
11 brakes are hazardous to human health. Even today, the weight of the epidemiological evidence
12 shows that brake mechanics are not and never have been at an increased risk for asbestos-related
13 diseases. The failure of the scientific community to determine that chrysotile asbestos-containing
14 Bendix brakes are hazardous precludes a finding a malice for failure to warn prior to the time that
15 Honeywell voluntarily placed OSHA warnings on the boxes of its brakes.
16 As such, as a matter of law it is impossible for a Honeywell officer, director or managing
17 agent to have acted in such a way as to engage in oppression, fraud or malice on the part of
18 Honeywell. Summary adjudication is warranted.
19 II. STATEMENT OF FACTS
20 Plaintiffs Gloria Martinez, individually and as successor-in-interest to Juan Martinez, Sr.,
21 Juan Martinez, Jr., Martin Martinez, and Francisco Martinez (“plaintiffs”) seek punitive damages on
22 claims for negligence and strict liability against all defendants.5 There is no fraud cause of action or
23 any allegation specific to Honeywell in the complaint that is not also alleged against everyone else.
24 In furtherance of their punitive damages claim, the complaint is silent on allegations of oppression
25
26 Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 333-335.
4
5
Plaintiffs have no fraud or oppression cause of action against Honeywell. (UMF 2.) Oppression is
27 despicable conduct subjecting a person to cruel and unjust hardship in knowing disregard of his or
her rights. (Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal. App. 3d 232 (disapproved of
28 on other grounds by, Gruenberg v. Aetna Ins. Co. (1973) 9 Cal. 3d 566; Hughes v. Blue Cross of
Northern California (1989) 215 Cal. App. 3d 832.) Plaintiffs have not made these allegations here.
2
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 where any defendant subjected plaintiffs to cruel and unjust hardship in conscious disregard of their
2 rights.6 Thus, this Court need only adjudicate plaintiffs’ allegation of malice under Civil Code
3 section 3294. This claim is unsupported by the evidence, and summary adjudication is appropriate.
4 A. Plaintiffs allege exposure from brake work between the 1960s and the 1990s.
5 Although the complaint states that decedent passed away on April 21, 2014, medical records
6 and the death certificate confirm Plaintiffs’ true allegation that decedent died from mesothelioma on
7 January 9, 2015. (Statement of Undisputed Material Facts [“UMF”] 3.) In addition to a lifetime
8 working with asbestos-containing products, plaintiffs allege that decedent was exposed to asbestos
9 through “Bendix brand brake shoes from the early 1960’s through at least the late-1990’s.” (UMF
10 3.) Each of the named witnesses listed against Honeywell was deposed. (UMF 3.) Despite their
11 allegation that decedent first used a Bendix brake starting in the 1960s, Plaintiffs have no admissible
12 evidence that decedent ever used or was in the presence of anyone else using a Bendix brake prior to
13 1974. (UMF 3.) Martin Martinez is their primary product identification witness, and he had no
14 information that his father used a Bendix brake before he was 10 years old in 1974. (UMF 3.)
15 B. Plaintiffs’ punitive damage allegations are vague and non-specific.
16 As is typical in asbestos litigation, plaintiffs’ complaint provides no details specific as to a
17 punitive damages claim against any individual defendant. There are no claims made against
18 Honeywell that are not made against everyone else. No dates are provided for exposures or acts. No
19 products are identified. The complaint is silent on witnesses who may have knowledge or corporate
20 representatives who may have acted in a manner giving rise to punitive damages. Rather, plaintiffs
21 generally aver against everyone that:
22 As the above referenced conduct of said ASBESTOS DEFENDANTS was and is
vile, base, willful, malicious, fraudulent, oppressive, outrageous, grossly negligent
23 and in conscious disregard and indifference to the safety and health of workers
exposed to asbestos and asbestos products, including Plaintiffs' decedent,
24 Plaintiffs, for the sake of example, and by way of punishing said ASBESTOS
DEFENDANTS, seeks punitive damages according to proof.
25
(UMF 4). Plaintiffs go on to allege that on or before 1933, defendants knew that asbestos containing
26
products put users at a risk disease and failed to “reveal their knowledge of said risk.” (UMF 5.)
27
28
6
See, Baker v. Peck (1934) 1 Cal.App.2d 231, 235.
3
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 The specific manner by which any defendant came to this knowledge is not discussed, nor is the
2 source of this alleged “knowledge.” (Id.)
3 C. Plaintiffs’ provide no specific evidence as a basis for their punitive damage claim
in responses to written discovery.
4
Due to the complaint’s lack of information, Honeywell propounded special interrogatories
5
requesting that plaintiffs provide all facts that support plaintiffs’ claim for punitive damages, each
6
person with knowledge of any such facts, and each document that supports any such facts. (UMF 6.)
7
In their responses, plaintiffs provided all their known information for their responses to most
8
all of Honeywell’s interrogatories—including Honeywell’s interrogatories requesting information on
9
Plaintiffs’ claim for punitive damages—in the response to Special Interrogatory Number 25. For
10
each of their responses to the individual questions asked by Honeywell other than a few damages
11
questions, plaintiffs’ responses simply refer to their response to Interrogatory Number 25 or
12
Interrogatory Number 1. The response to Interrogatory Number 1 is simply a pared down version of
13
the information provided in response to Interrogatory Number 25.7 (Id.)
14
1. Plaintiffs allegation of malice is based on a failure to warn.
15
Plaintiffs’ discovery responses do not contain allegations or evidence related to oppression or
16
fraud. (UMF 2.) As to punitive damages, plaintiffs allege that Honeywell is guilty of malice due to
17
a failure to warn:
18
Defendant had actual knowledge that asbestos could cause permanent and fatal
19 diseases prior to and during the time that the Decedent was exposed. Despite this
knowledge, the Defendant failed to warn Decedent or take precautions to insure that
20 he and other individuals were not exposed to asbestos. Such actions and inactions
constitute conscious indifference to the rights, safety, and welfare of the Decedent
21 and others.
22 (UMF 8.) To support their allegation for punitive damages against Honeywell, plaintiffs rely on
23
24 7
Plaintiffs’ response to Honeywell’s all fact discovery for the punitive damages claim does not
25 identify any document substantiating the wrongful death complaint’s claim that on or before 1933,
all defendants knew that asbestos containing products put users at a risk disease. There is a vague
26 reference to “laws, safety orders, ordinances and regulations” dating back to the 1930s, but there is
no identification as to what these are or that they in any way actually regulate the use of or exposure
27 to asbestos-containing products. (UMF 5.) In reality, OSHA was the first set of laws regulating the
use of asbestos in the United States, and it was not recognized as a known “human carcinogen” by
28 OSHA until 1975 when OSHA published a Notice of Proposed Rule Making.
4
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 letters related to silicosis (not mesothelioma, at issue here), a nolo contendre plea related to price
2 fixing (in no way relevant to the allegations in this case), mischaracterizing documents, and alleged
3 correspondences between an employee of the Bendix Corporation and the supplier of asbestos used
4 in Bendix brakes (Johns Manville). (UMF 9.) As will be discussed below, none of the purported
5 evidence gives rise to a finding of malice as is required to withstand Honeywell’s motion for
6 summary adjudication. Rather, these documents—along with current data—show that there is not
7 and never has been a scientific consensus that asbestos-containing brakes cause disease.
8 D. The scientific knowledge and articles relating to asbestos in brakes prior to
Honeywell’s warnings show that there was no consensus of danger related to
9 brake products, proving Honeywell is not guilty of malice.
10 Plaintiffs base their claim for punitive damages on an allegation that Honeywell knew of
11 dangers related to asbestos and did not warn end users. (UMFs 4, 8.). To succeed on this claim,
12 plaintiffs must proffer evidence that Honeywell had actual knowledge that asbestos in brakes
13 constituted a danger to consumers and in the face of that knowledge chose not to minimize the risks
14 to end users to succeed on a claim for malice.8 They cannot do so, as even today the scientific
15 community does not conclude that asbestos exposure from encapsulated brake products causes
16 mesothelioma, which is decedent’s alleged disease.
17 In the 1960s, when decedent first alleges exposure attributable to Honeywell, the information
18 within the scientific community indicated that there was no danger from asbestos in brakes. In fact,
19 as late as 1972—then reaffirmed in the 1980s—the United States government, through OSHA,
20 recognized that encapsulated friction products were not harmful, as it did not require warnings and
21 specifically exempted them from this requirement.9 (UMF 10.) Despite this and in an abundance of
22
23 “Put another way, the defendant must ‘have actual knowledge of the risk of harm it is creating and,
8
in the face of that knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.’”
24 (PG&E, infra, at 1159 citing Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 742 (emphasis
in original).)
25
9
Before 1975, the permissible exposure level (“PEL”) for asbestos was 5 fibers/ cm³ in the United
26 States under OSHA. In 1975, this level was dropped to 2 fibers/cm³ for a time weighted average in
an 8-hour day. (UMF 10.) The fact that OSHA provided a carve out exception in 37 C.F.R.
27 1910.93a(g)(2), p. 1132 is also telling of the science at the time in 1972 when OSHA was first
promulgated. (See also UMF 10; M.G. Jacko, et al., Thermal Stability & Fade Characteristics of
28 Friction Materials, by Jacko M.G., 1968 [“Friction materials for automotive brakes are complex
composites containing three kinds of components: an organic resin binder; chrysotile-type asbestos
5
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 caution so as to avoid any potential harm10 from its product, Honeywell placed warnings on the
2 boxes of its Bendix brakes in 1973. (UMF 11.)
3 Further, based on their responses to discovery and deposition testimony, Plaintiffs are unable
4 to refute that Honeywell placed warnings on the boxes of its brakes in 1973 that warned of serious
5 bodily harm. (UMF 12.) They are also precluded from arguing against Honeywell’s 1986 OSHA
6 compliant warning which included the dangers of cancer. Not one witness or plaintiff who was
7 identified in discovery responses looked at a box of Bendix brakes to determine if there were or were
8 not warnings on them. For example, Martin Martinez was asked, “Q. So if there were warnings on
9 the box, you wouldn't have seen them; correct? A. Correct. Q. That's not something you were
10 looking for while you were there? A. Correct.” (UMF 12.)
11 Thus, plaintiffs’ punitive damage claim may only potentially lie for the short period from the
12 early-1960s, before any admissible evidence of exposure in this case, through 1973, if they could
13 show a scientific consensus, which they cannot.11 However, it is unnecessary to get to the Johnson
14 & Johnson analysis, infra, because plaintiffs have proffered no admissible evidence that decedent
15 ever used or was in the presence of anyone else using a Bendix brake prior to 1974. (UMF 3.) Post
16 1973, plaintiffs’ punitive damages claims are precluded by PG&E.
17 1. Scientific knowledge in the 1960s affirmed there was no danger from
asbestos in brakes, meaning there can be no malice in failing to warn.
18
Plaintiffs attempt to cast the 1960s science as conclusively showing that all asbestos products
19
were dangerous and a cause of mesothelioma. This characterization misstates important facts as the
20
21
22 fiber, a reinforcing agent; and modifiers that adjust or maintain the friction level and wear rate or
modify the noise properties.”].) The carve out exception for encapsulated asbestos products is again
23 found in the 1986 OSHA regulations in 29 C.F.R. 1910.1001(d)(4).
10
To prevail on a claim for punitive damages, plaintiffs must prove by clear and convincing evidence
24 that Honeywell “was aware of the probable dangerous consequences of his conduct, and that he
willfully and deliberately failed to avoid those consequences.” (PG&E, infra, 24 Cal.App.5th 1150,
25 1159-1161.) By placing warnings on its boxes of brakes that complied with the then existing OSHA
requirements, Honeywell has negated plaintiffs’ ability to prove this requirement.
26 11
See PG&E at 1159 [“the defendant must ‘have actual knowledge of the risk of harm it is creating
27 and, in the face of that knowledge, fail to take steps it know will reduce or eliminate the risk of
harm.” (emphasis added).] Placing warnings on a product, where not required to do so, shows that
28 Honeywell attempted to reduce and eliminate any risk of harm and thereby makes it impossible for
plaintiffs to prove this requirement for punitive damages as a matter of law.
6
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 evidence does not support such a claim. Below is a closer look at statements made within the
2 scientific literature available to Honeywell for asbestos in brakes at the time of decedent’s first
3 alleged exposure in the 1960s:
4 “There is no scientific evidence that anyone has ever contracted any disease from
5 exposure to the wearing or weathering of brake linings…” (UMF 13; Johns-Manville
6 position paper, Asbestos and Human Health, 1968, Exh. EE to Natelborg Decl.)
7 “Many sources of respirable fibers not associated with asbestos products have been
8 identified, and the free fibers from brake lining wear appear to be an inconsequential
9 health factor in urban air pollution.” (UMF 14; Jeremiah R. Lynch, Brake Lining
10 Decomposition Products report, ENGINEERS ROUND TABLE THIRTIETH ANNUAL
11 MEETING AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, May
12 12, 1968, Exh. FF Natelborg Decl.)
13 “Brake-drum dust has evoked a pulmonary response in rats and hamsters which
14 suggests that this dust is biologically ‘inert.’” (UMF 15; Paul Gross, M.D., Report on
15 the Pulmonary Response to Brake-Drum Dust: A Preliminary Investigation for Johns
16 Manville Corporation, INDUSTRIAL HYGIENE FOUNDATION, 1968, Exh. GG to
17 Natelborg Decl.)
18 “Exposure to asbestos during brake maintenance is not as severe as was anticipated,
19 and in the situations we examined, the personal exposure of the operators was below
20 the limit corresponding to 50-year exposure.” (UMF 16; Hickish and Knight,
21 Exposure to Asbestos During Brake Maintenance, CONFERENCE ON EXPOSURE TO
22 ASBESTOS DURING BRAKE AND CLUTCH MAINTENANCE IN BRENTWOOD EDDEX, Mar.
23 1969 Exh. HH to Natelborg Decl.)
24 One of the most powerful statements of its time was by Dr. Irvin J. Selikoff at the largest
25 asbestos conference of its time in 1969. Dr. Selikoff uses the Hickish and Knight article as well as
26 the Lynch article, supra, for the proposition that asbestos is converted into forsterite during the
27 braking process. (UMF 17; H.A. Shapiro, Pneumoconiosis, Proceedings of the International
28 Conference, Johannesburg 1969, CAPE TOWN OXFORD UNIVERSITY PRESS, 1970, Exh. Y to the
7
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 Natelborg Decl.) At the conference Dr. Selikoff concluded, “Brake linings do not constitute a
2 hazard.” (Ibid. (emphasis added).) During the discussion on brake exposures, other notable
3 scientists are also quoted as confirming there is no risk from exposure to asbestos from brake shoes:
4 (1) Dr. W.J. Smither, “Even in the conditions of brake drum cleaning by compressed air,
5 time-weighted average exposures are within the limits considered negligible by the
6 British Occupational Health Service Standards.”;
7 (2) Dr. L.J. Cralley, “I can confirm what Dr. Smither has said about brake linings, viz.
8 that very few asbestos fibers are found in the dust from brake linings.”; and
9 (3) Professor L. Noro, “There is no reason to believe that the asbestos industry was any
10 worse than any other industry.” (Id.)
11 Clearly, the leading scholars in the 1960s did not see a hazard from asbestos-containing
12 brakes or brake dust. This begs the question: if the scientific community was not aware of any link
13 between brakes and disease, how can there be actual knowledge to Honeywell that asbestos-
14 containing brakes posed any danger to end users?
15 As interest in asbestos as a carcinogen increased, the Environmental Protection Agency
16 contracted with the Bendix Research Laboratories to investigate the effect of brake wear for a study
17 that began in 1971. In this comprehensive report, measurements were taken for asbestos content of
18 the wear material in brake dust. The report shows that “on the average, more than 99.7 percent of
19 the asbestos [from brakes] is converted” to forsterite, an inert substance. (UMF 18; see M. G. Jacko,
20 et al., Brake emissions: emission measurements from brake and clutch linings from selected mobile
21 sources, Mar. 1973.) Despite this extensive collection of data and scientific knowledge, Honeywell
22 warned users not to create dust. (UMF 11.)
23 One key factor in plaintiffs’ misdirection is the distinction between amphibole and
24 serpentine/chrysotile asbestos. While both amphibole and chrysotile are forms of asbestos, the
25 difference in these fiber types is marked and the crucial distinction in asbestos that causes disease
26 and asbestos showing no increased risk to users. (UMF 19; see David H. Garabrant, et al.,
27 Mesothelioma among Motor Vehicle Mechanics: And Updated Review and Meta-analysis, ANNALS
28 OF OCCUPATIONAL HYGIENE, Aug. 2015, Exh. LL [“Studies of motor vehicle repair activities and
8
HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
1 brake repair activities provide an opportunity to examine the risks of mesothelioma in settings in
2 which chrysotile exposure is not accompanied by exposure to commercial amphibole products.”].)
3 The 2015 Garabrant study was an updated analysis of the available scientific information. “A
4 comprehensive literature search was conducted using PubMed and Embase to identify studies
5 evaluating mesothelioma risk among motor vehicle mechanics.” (Ibid.)
Preview
1 David R. Ongaro (State Bar No. 154698) 2 dongaro@ongaropc.com Kirsten McNelly Bibbes (State Bar No. 276308) ELECTRONICALLY 3 kbibbes@ongaropc.com F I L E D Kenneth M. Natelborg (State Bar No. 260550) Superior Court of California, County of San Francisco 4 knatelborg@ongaropc.com ONGARO PC 05/07/2020 1604 Union Street Clerk of the Court 5 BY: EDNALEEN ALEGRE San Francisco, CA 94123 Deputy Clerk 6 Telephone: (415) 433-3900 Facsimile: (415) 433-3950 7 Attorneys for Defendant 8 HONEYWELL INTERNATIONAL INC., f/k/a AlliedSignal Inc., Successor-In-Interest To 9 The Bendix Corporation 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 GLORIA LUZ MARTINEZ, Individually Case No. CGC-15-276442 13 and as Successor-in-Interest to JUAN SANCHEZ MARTINEZ, SR., Decedent; HONEYWELL INTERNATIONAL 14 JUAN MARTINEZ, JR., MARTIN INC.’S MEMORANDUM OF POINTS MARTINEZ, and FRANCISCO AND AUTHORITIES IN SUPPORT OF 15 MARTINEZ, MOTION FOR SUMMARY 16 ADJUDICATION OF PLAINTIFFS’ Plaintiffs, PUNITIVE DAMAGE CLAIM 17 vs. Date: July 23, 2020 18 Time: 9:30 a.m. ASBESTOS COMPANIES, et al., Dept.: 503 19 Judge: Hon. Cynthia Lee Defendants. 20 Accompanying Documents: 21 1. Notice of Motion and Motion 2. Separate Statement of Undisputed 22 Material Facts 3. Index of Evidence. 23 24 Complaint filed: July 9, 2015 Trial Date: August 24, 2020 25 26 27 28 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 TABLE OF CONTENTS 2 I. INTRODUCTION ....................................................................................................................1 3 II. STATEMENT OF fACTS ........................................................................................................2 4 A. Plaintiffs allege exposure from brake work between the 5 1960s and the 1990s ...........................................................................................................3 6 B. Plaintiffs’ punitive damage allegations are vague and non-specific ..................................3 7 C. Plaintiffs provide no specific evidence as a basis for their punitive damage claim in responses to written discovery .......................................................................................4 8 1. Plaintiffs allegation of malice is based solely on a failure to warn .............................4 9 D. The scientific knowledge and articles relating to asbestos in brakes prior to 10 Honeywell’s warnings show that there was no scientific consensus of danger related to brake products, proving Honeywell is not guilty of malice ...............................5 11 1. Scientific knowledge in the 1960s affirmed there was no danger from 12 asbestos in brakes, meaning there can be no malice in failing to warn.......................6 13 E. Honeywell warned consumers in 1973.............................................................................10 14 III. ARGUMENT ..........................................................................................................................10 15 A. Summary adjudication is proper, as here, where plaintiffs lack evidence on any essential evidence ......................................................................................................10 16 B. Summary adjudication must be granted where, as here, plaintiffs do not have 17 clear and convincing evidence of oppression, fraud or malice ........................................11 18 1. The 1960s scientific community’s failure to identify dangers in brake products punitive damages for pre-1973 failure to warn .........................................................13 19 2. The evidence plaintiffs identify in discovery is inadmissible and insufficient 20 to give rise to a punitive damage claim as a matter of law .......................................17 21 a. Letters Related to Silicosis .................................................................................17 22 b. The Bendix Corporation’s Nolo Contendre Plea ...............................................17 23 c. Plaintiffs’ Mischaracterize the Documents They Reference ..............................18 24 d. The E.A. Martin Letter and Correspondence with Johns Manville ...................20 e. The January 7, 1969 correspondence .................................................................22 25 f. The 1972 J-M memorandum by H.G. Donovan ................................................22 26 3. Plaintiffs’ discovery responses are factually devoid .................................................22 27 4. Plaintiffs cannot rely on the Letter because it is inadmissible ..................................24 28 IV. CONCLUSION .......................................................................................................................25 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 TABLE OF AUTHORITIES 2 CASES 3 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ............................................................................................................ 10, 11 4 American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton 5 (2002) 96 Cal.App.4th 1017 .................................................................................................. 12, 23 6 Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242 ..................................................................................................................... 23 7 Andrews v. Foster Wheeler LLC 8 (2006) 138 Cal.App.4th 96 .................................................................................................... 11, 24 9 Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034........................................................................................................ 15 10 Brokopp v. Ford Motor Co. 11 (1977) 71 Cal.App.3d 841............................................................................................................ 18 12 Catalano v. Sup. Ct. (2000) 82 Cal.App.4th 91 ............................................................................................................ 11 13 Century Surety Co. v. Polisso 14 (2006) 139 Cal.App.4th 922 ........................................................................................................ 16 15 Dukes v. Pneumo Abex Corp. (2008) 386 Ill. App. 3d 425.................................................................................................... 18, 25 16 Ehrhardt v. Brunswick, Inc. 17 (1986) 186 Cal.App.3d 734..................................................................................................... 5, 12 18 Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204 ........................................................................................................ 15 19 Holdgrafer v. Unocal Corp. (2008) 20 160 Cal.App.4th 907 ............................................................................................................. 21, 22 21 Honeywell International Inc. v. Guilder (2009) 23 So.3d 867 ..................................................................................................................... 25 22 In re Department of Soc. Servs. v. Ronald P. 23 (1981) 28 Cal.3d 908 ................................................................................................................... 23 24 Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10 ............................................................................................................ 23 25 Johnson & Johnson Talcum Powder Cases 26 (2019) 37 Cal.App.5th 292 ...................................................................................................... 2, 14 27 McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098 .................................................................................................. 11, 24 28 i HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 Medo v. Superior Court (1988) 205 Cal.App.3d 64...................................................................................................... 15, 22 2 Pac. Gas & Elec. Co. v. Sup. Ct. 3 (2018) 24 Cal.App.5th 1150 .............................................................................................. 1, 10, 12 4 People v. Ault (2004) 33 Cal.4th 1250 ................................................................................................................ 15 5 Phillips v. Honeywell International Inc. 6 (2017) 9 Cal.App.5th 1061 .................................................................................................... 20, 25 7 R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327 ........................................................................................................ 16 8 Romo v. Ford Motor Co. 9 (2002) 99 Cal.App.4th 1115 ........................................................................................................ 15 10 Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 .................................................................................................................. 10 11 Simmons v. Southern Pac. Transportation Co. 12 (1976) 62 Cal.App.3d 341............................................................................................................ 15 13 State Farm Mutual Insurance v. Campbell 14 (2003) 538 U.S. 408 ............................................................................................................... 21, 22 Union Bank v. Superior Ct. 15 (1995) 31 Cal.App.4th 573 .......................................................................................................... 10 16 United States [sic.]v. Brake Lining Manufactures’ association [sic.], Inc. 17 C126/205-206-207, Sept. 22, 1948 .............................................................................................. 17 18 STATUTES 19 Cal. Civ. Code § 3294 ....................................................................................................................... 12 20 Cal. Evid. Code § 350 ....................................................................................................................... 18 21 Code Civ. Proc. § 437c ............................................................................................................... 10, 11 22 OTHER AUTHORITIES 23 David H. Garabrant, et al., Mesothelioma among Motor Vehicle Mechanics: And Updated Review and Meta-analysis, ANNALS OF OCCUPATIONAL HYGIENE, Aug. 2015 ....................... 8, 10 24 H.A. Shapiro, Pneumoconiosis, Proceedings of the International Conference, Johannesburg 25 1969, CAPE TOWN OXFORD UNIVERSITY PRESS, 1970 ................................................................... 7 26 Hickish and Knight, Exposure to Asbestos During Brake Maintenance, CONFERENCE ON EXPOSURE TO ASBESTOS DURING BRAKE AND CLUTCH MAINTENANCE IN BRENTWOOD 27 EDDEX, Mar. 1969 .......................................................................................................................... 7 28 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 I. INTRODUCTION 2 Honeywell International Inc. (“Honeywell”) is entitled to summary adjudication of plaintiffs’ 3 punitive damage claim as plaintiffs cannot satisfy their burden of clear and convincing evidence to 4 support it. It is undisputed that Honeywell placed warnings on the boxes of its Bendix brakes as 5 early as 1973—prior to Juan Sanchez Martinez, Sr.’s (“decedent”) first Bendix exposure in 1974. 6 In written discovery, Plaintiffs allege that decedent used, or was in the presence of others 7 using, Bendix brand asbestos-containing brakes between the 1960s and the late 1990s. However, the 8 deposition evidence shows a first exposure to a Bendix brake started in 1974—a year after Bendix 9 placed OSHA-compliant warnings on Bendix brake boxes cautioning users of the risk of serious 10 bodily harm. This affirmative act negates plaintiffs’ claim for punitive damages.1 11 When Honeywell provided warnings to its customers, it was not required to do so as the 12 applicable Occupational Safety and Health Administration (“OSHA”) requirements specifically 13 provided an exception for products, such as vehicle brakes, where the asbestos was bound in a resin 14 matrix. Despite this exception, Honeywell provided an OSHA-compliant warning on the boxes of 15 its brakes. Thus, at the time that decedent first used a Bendix brakes, no malice can be shown 16 toward decedent. The case law is clear that punitive damages are improper where the defendant 17 takes action to protect or minimize the injury to the plaintiff.2 18 Plaintiffs predicate their punitive damage claim upon a belief that Honeywell knew that 19 asbestos could cause disease but failed to warn decedent about the danger. Contrary to plaintiffs’ 20 broad allegations implying that the “dangers” of asbestos were known for almost a century, the 21 scientific community indicated that asbestos in brakes presented no hazard before and at the time of 22 decedent’s first exposure to a Bendix brake.3 The asbestos-containing Bendix brakes that Honeywell 23 24 1 Punitive damages are not available where a “defendant [takes] action to protect or minimize the injury to the plaintiff.” (Pac. Gas & Elec. Co. v. Sup. Ct. (2018) 24 Cal.App.5th 1150, 1161.) 25 2 Id. at 1161. 3 In fact, as quoted by plaintiffs in their discovery responses, in 1966 Johns-Manville employee Noel 26 Hendry purportedly wrote to Honeywell: “I suppose we have to bear with people who have nothing 27 better to do than create alarm, but we are not alarmed and we live and sleep with the stuff.” (Gloria Martinez’s Amended Responses to Special Interrogatory No. 1, at p. 9:2-3 (emphasis added).) These 28 are not the words of someone who has been informed by the scientific community that asbestos in brake products is harmful. 1 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 made, through the Bendix Corporation, contained chrysotile asbestos that was bound in a resin 2 matrix. This product is fundamentally different from those researched prior to the 1970s, which 3 largely consisted of studies on friable amphibole asbestos products used by insulation workers. No 4 science disputes that persons exposed to amphibole asbestos are at an increased risk for disease. 5 Punitive damages are also not appropriate when the science at the time shows no danger from 6 the ordinary use or when that science is in a state of contradiction. Even when a defendants breaches 7 its duty to warn consumers about the potential harm by obtaining some information about the 8 dangers, that knowledge cannot rise to the level of malice by clear and convincing evidence when 9 there is no consensus in the scientific community.4 At no point prior to placing warnings on Bendix 10 brakes did the scientific community reach a consensus regarding whether or not asbestos-containing 11 brakes are hazardous to human health. Even today, the weight of the epidemiological evidence 12 shows that brake mechanics are not and never have been at an increased risk for asbestos-related 13 diseases. The failure of the scientific community to determine that chrysotile asbestos-containing 14 Bendix brakes are hazardous precludes a finding a malice for failure to warn prior to the time that 15 Honeywell voluntarily placed OSHA warnings on the boxes of its brakes. 16 As such, as a matter of law it is impossible for a Honeywell officer, director or managing 17 agent to have acted in such a way as to engage in oppression, fraud or malice on the part of 18 Honeywell. Summary adjudication is warranted. 19 II. STATEMENT OF FACTS 20 Plaintiffs Gloria Martinez, individually and as successor-in-interest to Juan Martinez, Sr., 21 Juan Martinez, Jr., Martin Martinez, and Francisco Martinez (“plaintiffs”) seek punitive damages on 22 claims for negligence and strict liability against all defendants.5 There is no fraud cause of action or 23 any allegation specific to Honeywell in the complaint that is not also alleged against everyone else. 24 In furtherance of their punitive damages claim, the complaint is silent on allegations of oppression 25 26 Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 333-335. 4 5 Plaintiffs have no fraud or oppression cause of action against Honeywell. (UMF 2.) Oppression is 27 despicable conduct subjecting a person to cruel and unjust hardship in knowing disregard of his or her rights. (Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal. App. 3d 232 (disapproved of 28 on other grounds by, Gruenberg v. Aetna Ins. Co. (1973) 9 Cal. 3d 566; Hughes v. Blue Cross of Northern California (1989) 215 Cal. App. 3d 832.) Plaintiffs have not made these allegations here. 2 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 where any defendant subjected plaintiffs to cruel and unjust hardship in conscious disregard of their 2 rights.6 Thus, this Court need only adjudicate plaintiffs’ allegation of malice under Civil Code 3 section 3294. This claim is unsupported by the evidence, and summary adjudication is appropriate. 4 A. Plaintiffs allege exposure from brake work between the 1960s and the 1990s. 5 Although the complaint states that decedent passed away on April 21, 2014, medical records 6 and the death certificate confirm Plaintiffs’ true allegation that decedent died from mesothelioma on 7 January 9, 2015. (Statement of Undisputed Material Facts [“UMF”] 3.) In addition to a lifetime 8 working with asbestos-containing products, plaintiffs allege that decedent was exposed to asbestos 9 through “Bendix brand brake shoes from the early 1960’s through at least the late-1990’s.” (UMF 10 3.) Each of the named witnesses listed against Honeywell was deposed. (UMF 3.) Despite their 11 allegation that decedent first used a Bendix brake starting in the 1960s, Plaintiffs have no admissible 12 evidence that decedent ever used or was in the presence of anyone else using a Bendix brake prior to 13 1974. (UMF 3.) Martin Martinez is their primary product identification witness, and he had no 14 information that his father used a Bendix brake before he was 10 years old in 1974. (UMF 3.) 15 B. Plaintiffs’ punitive damage allegations are vague and non-specific. 16 As is typical in asbestos litigation, plaintiffs’ complaint provides no details specific as to a 17 punitive damages claim against any individual defendant. There are no claims made against 18 Honeywell that are not made against everyone else. No dates are provided for exposures or acts. No 19 products are identified. The complaint is silent on witnesses who may have knowledge or corporate 20 representatives who may have acted in a manner giving rise to punitive damages. Rather, plaintiffs 21 generally aver against everyone that: 22 As the above referenced conduct of said ASBESTOS DEFENDANTS was and is vile, base, willful, malicious, fraudulent, oppressive, outrageous, grossly negligent 23 and in conscious disregard and indifference to the safety and health of workers exposed to asbestos and asbestos products, including Plaintiffs' decedent, 24 Plaintiffs, for the sake of example, and by way of punishing said ASBESTOS DEFENDANTS, seeks punitive damages according to proof. 25 (UMF 4). Plaintiffs go on to allege that on or before 1933, defendants knew that asbestos containing 26 products put users at a risk disease and failed to “reveal their knowledge of said risk.” (UMF 5.) 27 28 6 See, Baker v. Peck (1934) 1 Cal.App.2d 231, 235. 3 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 The specific manner by which any defendant came to this knowledge is not discussed, nor is the 2 source of this alleged “knowledge.” (Id.) 3 C. Plaintiffs’ provide no specific evidence as a basis for their punitive damage claim in responses to written discovery. 4 Due to the complaint’s lack of information, Honeywell propounded special interrogatories 5 requesting that plaintiffs provide all facts that support plaintiffs’ claim for punitive damages, each 6 person with knowledge of any such facts, and each document that supports any such facts. (UMF 6.) 7 In their responses, plaintiffs provided all their known information for their responses to most 8 all of Honeywell’s interrogatories—including Honeywell’s interrogatories requesting information on 9 Plaintiffs’ claim for punitive damages—in the response to Special Interrogatory Number 25. For 10 each of their responses to the individual questions asked by Honeywell other than a few damages 11 questions, plaintiffs’ responses simply refer to their response to Interrogatory Number 25 or 12 Interrogatory Number 1. The response to Interrogatory Number 1 is simply a pared down version of 13 the information provided in response to Interrogatory Number 25.7 (Id.) 14 1. Plaintiffs allegation of malice is based on a failure to warn. 15 Plaintiffs’ discovery responses do not contain allegations or evidence related to oppression or 16 fraud. (UMF 2.) As to punitive damages, plaintiffs allege that Honeywell is guilty of malice due to 17 a failure to warn: 18 Defendant had actual knowledge that asbestos could cause permanent and fatal 19 diseases prior to and during the time that the Decedent was exposed. Despite this knowledge, the Defendant failed to warn Decedent or take precautions to insure that 20 he and other individuals were not exposed to asbestos. Such actions and inactions constitute conscious indifference to the rights, safety, and welfare of the Decedent 21 and others. 22 (UMF 8.) To support their allegation for punitive damages against Honeywell, plaintiffs rely on 23 24 7 Plaintiffs’ response to Honeywell’s all fact discovery for the punitive damages claim does not 25 identify any document substantiating the wrongful death complaint’s claim that on or before 1933, all defendants knew that asbestos containing products put users at a risk disease. There is a vague 26 reference to “laws, safety orders, ordinances and regulations” dating back to the 1930s, but there is no identification as to what these are or that they in any way actually regulate the use of or exposure 27 to asbestos-containing products. (UMF 5.) In reality, OSHA was the first set of laws regulating the use of asbestos in the United States, and it was not recognized as a known “human carcinogen” by 28 OSHA until 1975 when OSHA published a Notice of Proposed Rule Making. 4 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 letters related to silicosis (not mesothelioma, at issue here), a nolo contendre plea related to price 2 fixing (in no way relevant to the allegations in this case), mischaracterizing documents, and alleged 3 correspondences between an employee of the Bendix Corporation and the supplier of asbestos used 4 in Bendix brakes (Johns Manville). (UMF 9.) As will be discussed below, none of the purported 5 evidence gives rise to a finding of malice as is required to withstand Honeywell’s motion for 6 summary adjudication. Rather, these documents—along with current data—show that there is not 7 and never has been a scientific consensus that asbestos-containing brakes cause disease. 8 D. The scientific knowledge and articles relating to asbestos in brakes prior to Honeywell’s warnings show that there was no consensus of danger related to 9 brake products, proving Honeywell is not guilty of malice. 10 Plaintiffs base their claim for punitive damages on an allegation that Honeywell knew of 11 dangers related to asbestos and did not warn end users. (UMFs 4, 8.). To succeed on this claim, 12 plaintiffs must proffer evidence that Honeywell had actual knowledge that asbestos in brakes 13 constituted a danger to consumers and in the face of that knowledge chose not to minimize the risks 14 to end users to succeed on a claim for malice.8 They cannot do so, as even today the scientific 15 community does not conclude that asbestos exposure from encapsulated brake products causes 16 mesothelioma, which is decedent’s alleged disease. 17 In the 1960s, when decedent first alleges exposure attributable to Honeywell, the information 18 within the scientific community indicated that there was no danger from asbestos in brakes. In fact, 19 as late as 1972—then reaffirmed in the 1980s—the United States government, through OSHA, 20 recognized that encapsulated friction products were not harmful, as it did not require warnings and 21 specifically exempted them from this requirement.9 (UMF 10.) Despite this and in an abundance of 22 23 “Put another way, the defendant must ‘have actual knowledge of the risk of harm it is creating and, 8 in the face of that knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.’” 24 (PG&E, infra, at 1159 citing Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 742 (emphasis in original).) 25 9 Before 1975, the permissible exposure level (“PEL”) for asbestos was 5 fibers/ cm³ in the United 26 States under OSHA. In 1975, this level was dropped to 2 fibers/cm³ for a time weighted average in an 8-hour day. (UMF 10.) The fact that OSHA provided a carve out exception in 37 C.F.R. 27 1910.93a(g)(2), p. 1132 is also telling of the science at the time in 1972 when OSHA was first promulgated. (See also UMF 10; M.G. Jacko, et al., Thermal Stability & Fade Characteristics of 28 Friction Materials, by Jacko M.G., 1968 [“Friction materials for automotive brakes are complex composites containing three kinds of components: an organic resin binder; chrysotile-type asbestos 5 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 caution so as to avoid any potential harm10 from its product, Honeywell placed warnings on the 2 boxes of its Bendix brakes in 1973. (UMF 11.) 3 Further, based on their responses to discovery and deposition testimony, Plaintiffs are unable 4 to refute that Honeywell placed warnings on the boxes of its brakes in 1973 that warned of serious 5 bodily harm. (UMF 12.) They are also precluded from arguing against Honeywell’s 1986 OSHA 6 compliant warning which included the dangers of cancer. Not one witness or plaintiff who was 7 identified in discovery responses looked at a box of Bendix brakes to determine if there were or were 8 not warnings on them. For example, Martin Martinez was asked, “Q. So if there were warnings on 9 the box, you wouldn't have seen them; correct? A. Correct. Q. That's not something you were 10 looking for while you were there? A. Correct.” (UMF 12.) 11 Thus, plaintiffs’ punitive damage claim may only potentially lie for the short period from the 12 early-1960s, before any admissible evidence of exposure in this case, through 1973, if they could 13 show a scientific consensus, which they cannot.11 However, it is unnecessary to get to the Johnson 14 & Johnson analysis, infra, because plaintiffs have proffered no admissible evidence that decedent 15 ever used or was in the presence of anyone else using a Bendix brake prior to 1974. (UMF 3.) Post 16 1973, plaintiffs’ punitive damages claims are precluded by PG&E. 17 1. Scientific knowledge in the 1960s affirmed there was no danger from asbestos in brakes, meaning there can be no malice in failing to warn. 18 Plaintiffs attempt to cast the 1960s science as conclusively showing that all asbestos products 19 were dangerous and a cause of mesothelioma. This characterization misstates important facts as the 20 21 22 fiber, a reinforcing agent; and modifiers that adjust or maintain the friction level and wear rate or modify the noise properties.”].) The carve out exception for encapsulated asbestos products is again 23 found in the 1986 OSHA regulations in 29 C.F.R. 1910.1001(d)(4). 10 To prevail on a claim for punitive damages, plaintiffs must prove by clear and convincing evidence 24 that Honeywell “was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (PG&E, infra, 24 Cal.App.5th 1150, 25 1159-1161.) By placing warnings on its boxes of brakes that complied with the then existing OSHA requirements, Honeywell has negated plaintiffs’ ability to prove this requirement. 26 11 See PG&E at 1159 [“the defendant must ‘have actual knowledge of the risk of harm it is creating 27 and, in the face of that knowledge, fail to take steps it know will reduce or eliminate the risk of harm.” (emphasis added).] Placing warnings on a product, where not required to do so, shows that 28 Honeywell attempted to reduce and eliminate any risk of harm and thereby makes it impossible for plaintiffs to prove this requirement for punitive damages as a matter of law. 6 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 evidence does not support such a claim. Below is a closer look at statements made within the 2 scientific literature available to Honeywell for asbestos in brakes at the time of decedent’s first 3 alleged exposure in the 1960s: 4 “There is no scientific evidence that anyone has ever contracted any disease from 5 exposure to the wearing or weathering of brake linings…” (UMF 13; Johns-Manville 6 position paper, Asbestos and Human Health, 1968, Exh. EE to Natelborg Decl.) 7 “Many sources of respirable fibers not associated with asbestos products have been 8 identified, and the free fibers from brake lining wear appear to be an inconsequential 9 health factor in urban air pollution.” (UMF 14; Jeremiah R. Lynch, Brake Lining 10 Decomposition Products report, ENGINEERS ROUND TABLE THIRTIETH ANNUAL 11 MEETING AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS, May 12 12, 1968, Exh. FF Natelborg Decl.) 13 “Brake-drum dust has evoked a pulmonary response in rats and hamsters which 14 suggests that this dust is biologically ‘inert.’” (UMF 15; Paul Gross, M.D., Report on 15 the Pulmonary Response to Brake-Drum Dust: A Preliminary Investigation for Johns 16 Manville Corporation, INDUSTRIAL HYGIENE FOUNDATION, 1968, Exh. GG to 17 Natelborg Decl.) 18 “Exposure to asbestos during brake maintenance is not as severe as was anticipated, 19 and in the situations we examined, the personal exposure of the operators was below 20 the limit corresponding to 50-year exposure.” (UMF 16; Hickish and Knight, 21 Exposure to Asbestos During Brake Maintenance, CONFERENCE ON EXPOSURE TO 22 ASBESTOS DURING BRAKE AND CLUTCH MAINTENANCE IN BRENTWOOD EDDEX, Mar. 23 1969 Exh. HH to Natelborg Decl.) 24 One of the most powerful statements of its time was by Dr. Irvin J. Selikoff at the largest 25 asbestos conference of its time in 1969. Dr. Selikoff uses the Hickish and Knight article as well as 26 the Lynch article, supra, for the proposition that asbestos is converted into forsterite during the 27 braking process. (UMF 17; H.A. Shapiro, Pneumoconiosis, Proceedings of the International 28 Conference, Johannesburg 1969, CAPE TOWN OXFORD UNIVERSITY PRESS, 1970, Exh. Y to the 7 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 Natelborg Decl.) At the conference Dr. Selikoff concluded, “Brake linings do not constitute a 2 hazard.” (Ibid. (emphasis added).) During the discussion on brake exposures, other notable 3 scientists are also quoted as confirming there is no risk from exposure to asbestos from brake shoes: 4 (1) Dr. W.J. Smither, “Even in the conditions of brake drum cleaning by compressed air, 5 time-weighted average exposures are within the limits considered negligible by the 6 British Occupational Health Service Standards.”; 7 (2) Dr. L.J. Cralley, “I can confirm what Dr. Smither has said about brake linings, viz. 8 that very few asbestos fibers are found in the dust from brake linings.”; and 9 (3) Professor L. Noro, “There is no reason to believe that the asbestos industry was any 10 worse than any other industry.” (Id.) 11 Clearly, the leading scholars in the 1960s did not see a hazard from asbestos-containing 12 brakes or brake dust. This begs the question: if the scientific community was not aware of any link 13 between brakes and disease, how can there be actual knowledge to Honeywell that asbestos- 14 containing brakes posed any danger to end users? 15 As interest in asbestos as a carcinogen increased, the Environmental Protection Agency 16 contracted with the Bendix Research Laboratories to investigate the effect of brake wear for a study 17 that began in 1971. In this comprehensive report, measurements were taken for asbestos content of 18 the wear material in brake dust. The report shows that “on the average, more than 99.7 percent of 19 the asbestos [from brakes] is converted” to forsterite, an inert substance. (UMF 18; see M. G. Jacko, 20 et al., Brake emissions: emission measurements from brake and clutch linings from selected mobile 21 sources, Mar. 1973.) Despite this extensive collection of data and scientific knowledge, Honeywell 22 warned users not to create dust. (UMF 11.) 23 One key factor in plaintiffs’ misdirection is the distinction between amphibole and 24 serpentine/chrysotile asbestos. While both amphibole and chrysotile are forms of asbestos, the 25 difference in these fiber types is marked and the crucial distinction in asbestos that causes disease 26 and asbestos showing no increased risk to users. (UMF 19; see David H. Garabrant, et al., 27 Mesothelioma among Motor Vehicle Mechanics: And Updated Review and Meta-analysis, ANNALS 28 OF OCCUPATIONAL HYGIENE, Aug. 2015, Exh. LL [“Studies of motor vehicle repair activities and 8 HONEYWELL INTERNATIONAL INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION 1 brake repair activities provide an opportunity to examine the risks of mesothelioma in settings in 2 which chrysotile exposure is not accompanied by exposure to commercial amphibole products.”].) 3 The 2015 Garabrant study was an updated analysis of the available scientific information. “A 4 comprehensive literature search was conducted using PubMed and Embase to identify studies 5 evaluating mesothelioma risk among motor vehicle mechanics.” (Ibid.)