Motion,Ex Parte: CHARLES EVANS JR. ET AL VS. GENERAL ELECTRIC COMPANY ET AL

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                                BRAYTON@PURCELL LLP
ATTORNEYS AT LAW
222 RUSH LANDING ROAD

PO BOX 6169
_ _NOVATO, CALIFORNIA 94948-6169

(415) 898-1555

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GILBERT L. PURCELL, ESQ., S.B. #113603
STEVEN J. PATTI, ESQ., S.B. #163773

spatti@braytonlaw.com _ Superlor Court of California
BRA STONSPURCELL LLP County of Sen Francisco
Attorneys at Law

222 Rush Landing Road FER 0.5 2020

P.O. Box 6169
Novato, California 94948-6169
(415) 898-1555

Attorneys for Plaintiffs

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN FRANCISCO
MARIAN EVANS, as Successor-in- ASBESTOS
Interest to and as Wrongful Death Heir of No. CGC-15-276441
CHARLES EVANS, JR., Deceased; and )
KRISTINE EVANS; JENNIFER PARKS; ) PLAINTIFFS’ OPPOSITION TO
STACY WHITT, as Wrongful Death Heirs ) | DEFENDANTS’ JOINT MOTION JN
of CHARLES EVANS, JR., Deceased, . ) LIMINE TO EXCLUDE EVIDENCE OF
) SAFETY ORDER VIOLATIONS
Plaintiffs, )
)
vs. ) Trial Date: January 13, 2020
)  Dept.: 318, Hon. Charlene P. Kiesselbach
GENERAL ELECTRIC COMPANY, )
etal., )
)
Defendants. )
INTRODUCTION

Defendants move this Court’for an order in limine excluding reference to, or introduction
into evidence of, California Safety Orders, aka California General Industry Safety Orders
(collectively, “Safety Orders”) and/or the Cal-OSHA regulations, regarding the control of
asbestos dust and its hazards. Defendants mischaracterize both the regulations and the orders, as
they are relevant to plaintiffs’ case in chief of ordinary negligence under Civil Code Section
1714.

As to the orders or regulations that existed before or during the asbestos exposure in this

case, those are relevant to show notice and knowledge.

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. Plaintiffs will offer expert witness testimony concerning the existence of Cal-OSHA
regulations and California Safety Orders as they relate to the historical knowledge of asbestos
hazards, and therefore notice to these defendants regarding ordinary CACI 400 series negligence.
Plaintiffs do not allege, and will not argue, nor seek any jury instruction on, negligence per se,
nor will plaintiffs be asking for jury instruction based on the BAJI 8.00 series or the CACI
equivalent. :

The Safety Orders also prove that the means of preventing asbestos diseases were known
well before, and during the period when decedent Charles Evans, Jr., was exposed to asbestos by
these defendants. Current California law clearly allows for the admission of the Safety Orders or
testimony about them. This motion is premature, unsupportable under the law of the State of
(California, and should be denied.

I.
ARGUMENT

A. THE SAFETY ORDERS AND OSHA REGULATIONS ARE RELEVANT TO
PLAINTIFFS’ NEGLIGENCE CLAIMS

It is worth repeating, since the entire basis of defendants’ motion is a strawman:

plaintiffs do not allege, and will not argue, nor seek any jury instruction on, negligence per se,

nor will plaintiffs be asking for jury instruction based on the BAJI 8.00 series or the CACI
equivalent.

A basic tenet of California law is that everyone is required to use ordinary care to prevent,
injury to others from their conduct. (Civ. Code, § 1714, subd. (a); Pedefert v. Seidner
Enterprises (2013) 216 Cal.App.4th 359, 365.) This general rule requires a property owner,

contractor, or other person to exercise ordinary care in the management of a premises in order,

provide a safe work environment and to avoid exposing persons to an unreasonable risk of h

(Rowland v. Christian (1968) 69 Cal.2d 108, 112-119; Sprecher v. Adamson Companies (1
30 Cal.3d 358, 371; Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515.; Torres v. R
(1992) 3 Cal.App.4th 831, 836-837; Pedeferri v. Seidner Enterprises, 216 Cal.App.4th 35

A
Civil Code § 1714 does not limit responsibility for negligence to a certain class of defen

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rather, it provides that “[e]very one is responsible for an injury occasioned to another by [one’s]
‘want of ordinary care or skill.” (Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 764.).
Negligence may be active or passive in character. It may consist in heedlessly
doing an improper thing or in heedlessly refraining from doing the proper thing.
Whether the circumstances call for activity or passivity, one who does not do

what he should is equally chargeable with negligence with him who does what he
should not.

(Basler v. Sacramento Gas & Electric Co. (1910) 158 Cal. 514, 518.)

Under general negligence principles, everyone is “obligated to exercise due care in his or
her own actions so as not to create an unreasonable risk of injury to others, and this legal duty
generally is owed to the class of persons who it is reasonably foreseeable may be injured as the

result of the actor's conduct.” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716

(emphasis added); Cal. Civ. Code, § 1714; see generally Rest.2d Torts, § 281; Prosser & Keeton
on Torts (Sth ed. 1984) § 31, p. 169; 3 Harper, et al., The Law of Torts (2d ed. 1986) § 18.2,
654-655.)

The California Supreme Court has defined “ordinary care” as the degree of care that
ordinarily prudent people can be expected to exercise under similar circumstances. (Hilyar v.
Union Ice Co. (1955) 45 Cal.2d 30, 36.) The greater the danger and seriousness of the
reasonably anticipated consequences, the higher the degree of care that must be exercised. (Id.)

Beginning in 1936 and continuing to the present day, the California Industrial Safety
Orders, which apply to all employers, explicitly listed asbestos among the hazardous dusts and
provided precautions that should be taken to reduce the hazard. For example, in 1945, Order
1908(a) required the use of water, oil or chemicals to suppress and allay harmful dust. Order
1910(b) stated that “Employees engaged in cleaning operations and all others who may be
exposed shall wear approved respiratory equipment unless such cleaning is done by means of
suction apparatus capable of preventing harmful exposure.” Thus, the Orders demonstrate that
approximately three-quarters of a century ago employers were required by law to engage in
proper housekeeping and to provide protection for employees when asbestos dust was generated,
Asbestos dust was a known hazard, with known precautions that should be employed.

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PLAINTIFFS” OPPOSITION TO DEFENDANTS" JOINT MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SAFETY ORDERVil

Violation of a safety order was historically permitted as evidence of negligence:

The provisions of Cal-OSHA are intended to “assur[e] safe and healthful working
conditions for all California working men and women by authorizing the
enforcement of effective standards, assisting and encouraging employers to
maintain safe and healthful working conditions, and by providing for ...
enforcement in the field of occupational safety and health.” (§ 6300.) Until 1971,
these provisions were routinely admitted in workplace negligence actions to show
the standard of care, and their violation was treated as negligence per se.

(Elsner v. Uveges (2004) 34 Cal.4th 915, 926.)

(However, in 1972, Labor Code Section 6304.5 was amended to read as follows:

It is the intent of the legislature that the provisions of this division shall only be
applicable to proceedings against employers brought pursuant to the provisions of
Chapter 3 (commencing with Section 6300) and 4 (commencing with Section
6600) of Part I of this Division for the exclusive purpose of maintaining and
enforcing employee safety.

Neither this division nor any part of this division shall have any application to,
nor be considered in, nor be admissible into, evidence in any personal injury or
wrongful death action arising after the operative date of this section, except as

between an employee and his own employer.

against third-party defendants.

On October 6, 1999, new Labor Code Section 6304.5 was signed into law which

to the law that existed prior to 1972:

In combination, the new language and the deletion indicate that henceforth,
Cal-OSHA provisions are to be treated like any other statute or regulation and
may be admitted to establish a standard or duty of care in all negligence and
wrongful death actions, including third party actions. [Elsner, supra, at 928]

With regard to retroactivity, the Elsner court made it clear that the safety orders were not

admissible to show the standard of care for injury that occurred between 1972 and 1999:

To allow a jury in 2001 to decide whether Uveges had breached his duty of care
in 1998 by considering Cal-OSHA provisions not previously admissible would be
““to apply the new law of today to the conduct of yesterday.’ ” Nothing in the text
of Assembly Bill No. 1127 or its legislative history indicates that the Legislature
intended retroactive application. [Elsner, supra, at 938-39, citations omitted.]

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ JOINT MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SAFETY ORDER

VIOLATIONS

The net effect of this language prevented the Safety Orders from being used as a standard of care

permitted OSHA regulations to be admitted in third-party civil actions. This new law was made

effective on all cases tried after January 1, 2000. Labor Code section 6304.5 basically returned

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However, the use of the Industrial Safety Orders in trials occurring after April 1, 1972, is
permissible where, as here, acts causing injury to the decedent occurred before April 1, 1972:

It is unnecessary to determine whether Labor Code section 6304.5 bars the use of
industrial safety orders in cases concerning the nondelegable duty doctrine in the
third-party action in the instant case. Section 6304.5 precludes the use of such
orders “in any personal injuty or wrongful death action arising after the operative
date of this section. ...” In Spencer, the court pointed out that the injury
occurred, and the cause of action therefore arose after the operative date of
Section 6304.5 (Spencer v. G.A. MacDonald Construction Company (1976) 63
Cal.App.3d 836, 857). The operative date of the section was April 1, 1972. The
injury to respondent herein occurred on February 16, 1972. It is thus irrefutable
that the cause of action at issue here arose before the operative date of Labor
Code Section 6304.5 and that therefore, under the section’s own explicit terms, it
is inapplicable to respondent. [La Count v. Hensel Phelps Constr. Co. (1978) 79
Cal.App.3d 754, italics and ellipsis the court’s.]

The Legislature has recognized that asbestos-related illnesses do not manifest themselves
immediately. Rather, there is a long latency between the time of exposure to asbestos, initial
fiber deposition, sub-clinical injury therefrom, and the time physical symptoms manifest
themselves in clinical disease. Thus, the Safety Orders are admissible with respect to that part of
the “accident” or wrongful conduct — decedent’s exposure to asbestos as a result of acts
attributable to defendants — which occurred before the ‘April 1, 1972, operative date of Labor
Code § 6304.5, even though the manifestation of the harm did not arise until later.

In this case, decedent CHARLES EVANS, JR. began working as an apprentice insulator
in 1966, and was exposed to asbestos from defendants’ activities for years before the operative
date of Labor Code § 6304.5. Thus, at the very least the Safety Orders are admissible and
relevant to prove the standard of care during that period.

Plaintiffs will also offer the Safety Orders and OSHA regulations to prove two different
elements of their negligence claim. Even during the period when the Safety Orders were
inadmissible to show negligence, they were admissible for other reasons that have not changed.

In Smith v, AC&S, Inc., et al. (1994) 31 Cal.App.4th 77, the court noted that although “there

was no direct evidence that PG&E knew asbestos’s dangers, the jury could conclude that PG&E
should have foreseen the dangers, given ‘publication of various medical and industrial studies of
asbestos diseases and promulgation of industrial safety standards... ,” (Smith at 97,
lemphasis added.)

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Plaintiffs will offer the Safety Orders and OSHA regulations to prove knowledge or
“state of the art.” In proving negligence, plaintiffs must prove that defendants knew, should
have known, or could have reasonably discovered, that asbestos dust was a hazard in the
‘workplace. Defendants argue that they were unaware, or unaware at a certain time, of the
hazards posed by asbestos dust in the workplace. However, defendants will be shown to have

notice of the hazards of asbestos through the Safety Orders. The Industrial Safety Orders are

strong evidence that all contractors and premises owners in California knew, or should have

known, that asbestos dust was a toxic substance and constituted a hazard in the workplace. The

Orders also prove that the means of preventing asbestos diseases were known as early as 1936.
Second, Industrial Safety Orders prescribe comprehensive but easy to understand

regulations for the control of asbestos'dust in the workplace. The Safety Orders set standards for

[when asbestos dust should be controlled. Therefore, the regulations are evidence of the

appropriate notice of hazard for the workplace at a given time. Plaintiffs will offer expert
testimony that, by virtue of the standards set forth in Industrial Safety Orders for asbestos dust in
the work site, defendants were on notice that the exposures they caused decedent to undergo
‘were hazardous, and that certain controls were required to avoid the exposures.

B. THE SAFETY ORDERS AND OSHA REGULATIONS MEET THE
REQUIREMENTS FOR ADMISSIBLE EVIDENCE

“Except as otherwise provided by statute, all relevant evidence is admissible.”
(California Evidence Code §351.) Defendants cannot object to the presentation of evidence
merely because it is detrimental to their case. California Evidence Code § 352 provides that the
Court, in its discretion, may exclude evidence when its probative value is substantially
outweighed by the danger that its introduction will result in undue prejudice, consumption of
time, or misleading the jury. Defendants’ motions in limine do not meet this standard.

Proper analysis requires the Court to balance the probative value of the evidence against
the perceived prejudicial effect; the more substantial the probative value of the evidence, the
greater the danger that must be affirmatively demonstrated as to one of the excluding factors to

justify exclusion under Evidence Code § 352. (People v. Cudijo (1993) 6 Cal.4th 585,

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PLAINTIFES OPPOSITION TO DEFENDANTS’ JOINT MOTION JN LIMINE TO EXCLUDE EVIDENCE OF SAFETY ORDERoOo OND HW FB WN

25 Cal.Rptr.2d 390; People v. Castain (1981) 122 Cal.App.3d 138, 175 Cal.Rptr. 651.)
Specifically, the Evidence Code provides that:
, The court in its discretion may exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a) necessitate

undue consumption of time or (b) create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury. [Evidence Code § 352 (a),(b).]

Evidence pertaining to defendants’ awareness and knowledge of the ill medical effects of
asbestos is highly relevant to the present action. Moreover, evidence of "the generally
recognized and prevailing best scientific and medical knowledge available at the time of
manufacture and distribution" is clearly pertinent to the demonstration of the state of the art
information, which defendant, as a manufacturer of a defective product, will be charged. (See
Anderson v. Owens-Corning Fiberglass Corp. (1991) 53 Cal.3d 987, 1002.)

Each of the reference sources is accurate and reliable, and the facts contained therein are
not reasonably subject to dispute. Each is readily capable of immediate and accurate
determination. Each is a source of facts indisputably accurate and without controversy.
[Defendants have not shown — and cannot show — that the probative value of the Safety Orders is
outweighed by prejudice to itself.

Cc. NEGLIGENT FAILURE TO RECALL, WARN AND RETROFIT

As to the manufacture and supplier defendants, the post-exposure OSHA regulations are
further relevant because California law imposes a duty on manufacturers to warn, recall or
retrofit products when dangers are discovered after an allegedly defective product has left the
manufacturer’s control. A product manufacturer/supplier who learns (perhaps for example from
an OSHA regulation) after selling a product of a dangerous defect in that product must use
reasonable care under those circumstances. This includes a duty to provide adequate warnings,
recall the product and correct the defect in the product. This requirement is summarized in a jury
instruction approved by the CACI committee, CACI 1223, which provides as follows:

CACTI 1223: Negligence--Recall/Retrofit

[Name of Taintif| claims that [name of defendant] was negligent because

[he/she/it] failed to [recall/retrofit] the [product]. To establish this claim, [name of
plaintiff| must prove all of the following:

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1. That [name of defendant] [manufactured/ distributed/sold] the [product];

2. That [name of defendant] knew or reasonably should have known that the [product]
was dangerous or was likely to be dangerous when used in a reasonably foreseeable
manner;

3. That [name of defendant] became aware of this defect after the [product] was sold;

4. That [name of defendant] failed to [recall/retrofit] [or warn of the danger of] the
[product];

5. That a reasonable [manufacturer/distributor/ seller] under the same or similar
circumstances would have [recalled/retrofitted] the [product];

6. That [name of plaintiff] was harmed; and

7. That [name of defendant's failure to [recall/retrofit] the [product] was a substantial
factor in causing [name of plaintiff]'s harm.

The CACI committee cites the following authority in support of CACI 1223:

Failure to conduct an adequate retrofit campaign may constitute negligence apart
from the issue of defective design. (Hernandez v. Badger Construction Equipment Co.

(1994) 28 Cal.App.4th 1791, 1827 (emphasis added). See also Springmeyer v Ford
Motor Co (1998) 60 Cal App 4th 1541.

In Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, the court observed that,
where the evidence showed that the manufacturer became aware of dangers after the
product had been on the market, the jury “could still have found that Clark's knowledge
of the injuries caused by these features imposed a duty to warn of the danger,
and/or a duty to conduct an adequate retrofit campaign.” The failure to meet the
standard of reasonable care with regard to either of these duties could have supported a
finding of negligence. (Id. at p. 494.) (Emphasis added.)

In Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, the court concluded
that a jury could reasonably have found negligence based upon the manufacturer's failure
to retrofit equipment determined to be unsafe after it was sold, even though the
manufacturer told the cquipment’s owners of the safety problems and offered to correct
those problems for $500. (Id. at p. 649.) (emphasis added.)

Ifa customer fails to comply with a recall notice, this will not automatically absolve the
manufacturer from liability: “A manufacturer cannot delegate responsibility for the safety
of its product to dealers, much less purchasers.” (Springmeyer v. Ford Motor Co. (1998)
60 Cal.App:4th 1541, 1562-1563 [71 Cal.Rptr.2d 190], internal citations omitted.)

Defendants cite no relevant California negligence case that holds that such an obligation

under negligence law abruptly terminates once the product leaves the manufacturer’s or

supplier’s control.

In our case, plaintiffs contend that once defendants knew or should have known of the

extremely hazardous nature of their asbestos-containing products, defendants became obligated

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PLAIN TIFES OPPOSITION TO DEFENDANTS’ JOINT MOTION /N LIMINE TO EXCLUDE EVIDENCE OF SAFETY ORDER,

EVSto recall and to warn users of the hazard. The current version of the Restatement (Third) of Torts
specifically addresses the imposition of liability upon product manufacturers for a post-sale
failure to warn, and it thoughtfully considers the specific factual factors for consideration when
evaluating the reasonableness of the manufacturer's conduct:
§ 10. Liability Of Commercial Product Seller Or Distributor For Harm Caused By Post-
Sale Failure To Warn
(a) One engaged in the business of selling or otherwise distributing products is
subject to liability for harm to persons or property caused by the seller's failure to
provide a warning after the time of sale or distribution of a product ifa
reasonable person in the seller's position would provide such a warning.
(b) A reasonable person in the seller's position would provide a warning afer the
time of sale if
(1) «the seller knows or reasonably should know that the product poses a
substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be identified and can
reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those to
whom a warning might be provided; and
(4) _ the risk of harm is sufficiently great to justify the burden of providing a
warning.
(Restatement (Third) of Torts: Prod. Liab. § 10 (1998).)
Therefore, the post-exposure OSHA regulations are further admissible under negligent
failure to recall, warn, and/or retrofit.
CONCLUSION
The Safety Orders and OSHA regulations are relevant to prove “knowledge” and “notice”
of asbestos hazards, and of what precautions constitute ordinary care to avoid injury to others in
accordance with Civil Code Section 1714. Ultimately, this is an issue of fairness. Defendants
seek to deny that they had any knowledge of the harmful effects of asbestos. Such a denial
‘becomes untenable in light of the California Industrial Safety Orders dating back to the 1930s.
Such a denial is no credible in light of the fact that defendants were charged by law with that
knowledge. If reference to the Industrial Safety Orders is somehow excluded, defendants will be

allowed to deny that which they are charged by law with knowing. No social policy or objective

iit
Vif
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PLAINTIFFS OPPOSITION TO DEFENDANTS’ JOINT MOTION JN LIMINE TO EXCLUDE EVIDENCE OF SAFETY ORDER,is benefitted by such an analysis. Accordingly, defendants’ motion must be denied. Moreover,

the issues raised by defendants’ motion in limine can be adequately addressed during trial as the
evidence is offered.
Dated: Z 20 BRAYTON*PURCELL LLP
By:.
Steven J. Patti
Attorneys for Plaintiffs
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BLAINTIFES OPPOSITION TO DEFENDANTS’ JOINT MOTION JN L/MINE TO EXCLUDE EVIDENCE OF SAFETY ORDER,

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