Trial Materials: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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MCKENNA LONG. &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN Francisco

LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)

ALECIA E. COTTON (BAR NO. 252777)

MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY

101 California Street FILED

4ist Floor Superior Court of California,

San Francisco, CA 94111 County of San Francisco

Telephone: (415) 267-4000 APR 13 2010

Facsimile: (415) 267-4198 Clerk of the Court
BY: CHRISTLE ARRIOLA

Attorneys for Defendant Deputy Clerk

METALCLAD INSULATION CORPORATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

JOYCE JUELCH and CaSE No. CGC-09-275212
NORMAN JUELCH, SR.,
DEFENDANT METALCLAD INSULATION
CORPORATION’S TRIAL BRIEF

Plaintiffs, REGARDING THE ADMISSIBILITY OF
EVIDENCE RELATED To THE
vy. SOPHISTICATED USER DOCTRINE
[MIL 28}
ASBESTOS DEFENDANTS, (BP), e7 a.,
TRIAL DATE: ApRIL 5, 2010
Defendants. Dept.: 604

JUDGE: HONORABLE MARLA J. MILLER

1. INTRODUCTION

The “sophisticated user” defense was adopted by the California Supreme Court in
Johnsen vy, American Staintard, lac, (2008) 43 Cal-dih 36. The Court recognized, although not
previously adopted in California, the sophisticated user defense was “a natural outgrowth of the
rule that there is no duty to warn of know risks or obvious dangers,” i.e. an exception to the
general duty to warn consumers about a products’ potential dangers. ‘/ at 07. Because there is
no duty to warn about known risks, when an allegedly defective product is sold to a sophisticated
user, one who knows about the hazards of such products, there is no duty to warn about risks in

the use of that product.

DEFENDANT METALCLAD INSULATION CORPORATION'S TRIAL BRIEF REGARDING THE ADMISSIBILITY OF EVIDENCE RELATED 10 THE
SOPHISTICATED USER DOCTRINE [MIL 28}

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MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

Defendant submits this brief to assist the Court in understanding the “sophisticated user”
defense as it applies to Plaintiffs’ claims against Defendant.

This motion will show that Plaintiff Joyce Juelch (“Plaintiff”) was a “sophisticated user”
of asbestos products. Evidence regarding the knowledge within Plaintiff's industry and trade, and
Plaintiff's knowledge, will be presented to the jury. Defendant is entitled to present evidence that
Plaintiff was aware of the dangers of asbestos, thereby absolving Defendant of liability for failure
to warn her of the dangers of asbestos-containing materials. Johnson v. American Standard, Inc.
(2008) 43 Cal.4th 56.

Il. ARGUMENT

A. THERE Is No DuTY TO WARN WHERE THE PURCHASER OR ULTIMATE USER HAS
KNOWLEDGE OF THE Risk

In Johnson ¥, Ainerican Standard, Ine. (2008) 43 Cal_tth 36, the California Supreme
Court adopted the “sophisticated user” doctrine as a defense to negate a manufacturer’s duty to
warn of a product’s potential danger when the plaintiff has (or should have) advance knowledge
of the product’s inherent hazards. The Court affirmed the trial court’s grant of summary
Judgment against a plaintiff on his failure to warn causes of action because the plaintiff, who
worked in the heating and air conditioning industry (“HVAC”), and was a trained and licensed
HVAC technician, was therefore presumed to be knowledgeable about the dangers arising from
the repair of the product at issue, It was shown that the community of HVAC manufacturers and
technicians had generally known of dangers to R-22 phosgene gas since 1931 and that the HVAC
industry was regularly apprised of this information through Material Data Safety Sheets, EPA
certification and other professional training programs. Jolmsait. supra. al 61. The Supreme
Court concluded that “[a] manufacturer is not liable to a sophisticated user of its product for
failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of
that risk, harm, or danger.” // at 71. (Emphasis added.) The Court held that while “the defense
is specifically applied to plaintiffs who knew or should have known of the product’s hazards, it

acts as an exception to manufacturers’ gencral duty to warn consumers.” /ed. at 61.

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DEFENDANT METALCLAD INSULATION CORPORATION'S TRIAL BRIEF REGARDING THE ADMISSIBILITY OF EVIDENCE RELATED TO THE
SOPHISTICATED USER DOCTRINE [MIL 28}
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MCKENNA
ALDRIDGE LL

ATTORNEYS AT LAW
SAN FRANCISCO

The Court’s opinion in Johnson was based on well-established California tort law,
California case law as well as case law from other jurisdictions. Currently, under California tort
law, we hold manufactures strictly liable for injurics caused by their failure to warn of dangers
that were known to the scientific community at the time they manufactured and distributed their
product. (Rest.2d Torts § 402A). However, as the Ja/niser Court pointed out, when a sufficient
warning is given, “the seller may reasonably assume that it will be read and heeded; and a product
bearing such a warning, which is safe for use if it is followed, is not defective condition, nor is it
unreasonably dangerous, Jodmson, at 65. The sophisticated user defense exempts manufactures
from their typical obligation to provide product users with warnings about the products potential
hazards. (Ja Re Asbestos Cases, 543 F.Supp. 1142 (N.D.Cal. 1982) The defense is considered an
exception to the manufacturer’s general duty to warn consumers, and therefore, in most
Jurisdictions, if successfully argued, acts as an affirmative defense to negate a manufacturers duty
to warn. fd In California, the defense, applies equally to strict liability and negligent failure to
warn cases. Bojorge: v. House af Toys, Ine. 970) 62 Cal. App sd 930 at pp. 933-934, 133
Cab.Rpu. 483: Holmes vo LC Penny Co. (1982) 133 Cal App.3d 2if, 220, 183 Can Rpu. 777,

The duty to warn is measured by what is generally known or should have been known to
the class of sophisticated users rather than by the individual plaintiff's subjective knowledge.
Johusen, at 05-66, Courts have interpreted this development of tort law to suggest that if the
manufacturer reasonably believes the user will know or should know about a given products
tisks, the manufacturer nced not warn that user of that risk. /ofrsen. at 116-117. citing Martinez
v, Dixie Carriers, Inc. (Sth Cit.1976) 529 F.2d 457. 404-465; Locke » General Electric
Company (.1).Pa.1974) 376 F.Supp. 1201, 1208-1209, affd. (3d Cir, 1978 511 2d 1394:

Brvant v. Hercules Incorporated (WW 1).Ry.1970} 325 F Supp. 241. 247. The court went on to
point out that “this is especially [true] when the user is a professional who should be aware of the
characteristics of the product.” Johayon, at 117. citing Sirong & £1 Bu Pout de Nemours Co.,

Jac. (8° Cir. 1981) 667 F 2d 682. 387,

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DEFENDANT METALCLAD INSULATION CORPORATION'S TRIAL BRIEF REGARDING THE ADMISSIBILITY OF EVIDENCE RELATED 70 THE
SOPHISTICATED USER DOCTRINE — {MIL 28}

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MCKENNA LONG &
ALDRIOCE LLP
ATTORNEYS AT LAW
SAN Francisca.

B. INSULATORS DURING THE 1980s, LIKE PLAINTIFF, WERE AWARE OF THE HAZARDS OF
ASBESTOS, WHICH NEGATE ANY Dury TO WARN BY METALCLAD

The duty to warn is measured by what is generally known or should have been known to
the class of sophisticated users rather than by the individual plaintiffs subjective knowledge.
Johnson, supra at 65-66. In Johnson, the Court explained “it would be nearly impossible for a
manufacturer to predict or determine whether a given user or member of the sophisticated group
actually has knowledge of the dangers because of the infinite number of user idiosyncrasies.”

Johnson, at 71. The Court noted:

“Individuals who represent that they are trained or are members of a
sophisticated group of users are saying to the world that they
possess the level of knowledge and skill associated with that class.
if they do not actually possess that knowledge and skill, that fact
should not give rise to liability on the part of the manufacturer.” Jd.

Therefore, “the focus of the defense is whether the danger in question was so generally
known within the trade or profession that a manufacturer should not have been expected to
provide a warning specific to the group to which plaintiff belonged.” Johnson, at 72.
Accordingly, in Johnson, the Court held that the sophisticated user defense applies, regardless of
the fact that Plaintiff was not aware of the danger because “the danger created by exposing
refrigerant to high heat and flame was well known within the community of HVAC technicians to
which plaintiff belonged.” Jd. at 74.

In this case, both Joyce Jucich and Norman Juelch, Sr. worked as insulators during the
1980s. As in Johnson, there is overwhelming evidence that insulators, like Plaintiffs, working in
the trade during the 1980s knew of the hazards of asbestos.

Insulators during the 1980s were aware of the hazards of asbestos well before both
Plaintiffs’ employment for Metalclad. Accordingly, Metalclad is entitled to introduce evidence
that insulators working in the trade during the 1980s, like Plaintiff, knew of the hazards of
asbestos, and were well aware of the potential hazards. Therefore, this Defendant had no duty to

warn or to protect Plaintiff.

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DEFENDANT METALCLAD INSULATION CORPORATION'S TRIAL BRIEF REGARDING THE ADMISSIBILITY OF EVIDENCE RELATED TO THE
SOPHISTICATED USER DOCTRINE {MIL 28}

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MCKENNA LONG &
ALDRIDGE LLP
ATTORNEYS AT LAW
SAN FRANCISCO

CG JOYCE JUELCH WAS A SOPHISTICATED USER OF ASBESTOS-CONTAINING PRODUCTS,
Wuicn NEGATE ANY DUTY To WARN BY METALCLAD

No cause of action for failure to warn lies where the Plaintiff has actual knowledge of the
hazards associated with that product. As set forth above, Johnson v. American Standard, Inc.
(2008) 43 Cal.4th 56, the California Supreme Court adopted the “sophisticated user” doctrine as a
defense to negate a manufacturer’s duty to warn of a product’s potential danger when the plaintiff
has knowledge of the product’s inherent hazards.

Joyce Juelch is a “sophisticated user,” and therefore Metalclad is not liable. Mrs. Juelch
went through extensive training to become an insulator during the 1980s, beginning in 1982. (See
Deposition of Joyce Juelch, Vol. 1, pp. 144:18-145:3, 145:4-146:6, attached as Exhibit A “Exh.
A”) to the declaration of Alecia E. Cotton (“Cotton Decl.”).) This training included education on
the dangers of asbestos and asbestos-containing thermal insulation products. (Exh. A to Cotton
Decl., pp. 145:4-146:6, 146:13-20.) Plaintiff testified she became aware of the hazards associated
with asbestos exposure in the 1980s, the same time she became an insulator and began her
insulation work for Metalclad at the jobsites in question. (Exh. A to Cotton Decl., pp. 147:3-21,
148:16-23, 151:22-152:4.) She even performed her own internet research during the 1980s
concerning the hazards of asbestos associated with her career choice. (Exh. A to Cotton Decl.,
pp. 153:1-17.) Moreover, before she became an insulator, Mrs. Juclch was a Licensed Nurse and
was aware of the potential hazards of certain substances concerning their effect on the lungs,
(Exh. A to Cotton Decl., pp. 15:16-16;2, 39:4-41 124.)

Accordingly, claims arising out of Mrs. Juelch’s alleged contact with Metalclad products
during the 1980s must be barred because 1) Mrs. Juelch is in the class of insulators working
during the 1980s with knowledge of the hazards of asbestos; and, 2) her appreciation that asbestos
was hazardous to human health and use of precautions when working with asbestos-containing

materials such as insulation materials,

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DEFENDANT METALCLAD INSULATION CORPORATION'S TRIAL BRIEF REGARDING THE ADMISSIBILITY OF EVIDENCE RELATED TO THE
SOPHISTICATED USER DOCTRINE (MIL 28}

‘SP:27418575.11
2 Ill. CONCLUSION
3 Defendant respectfully requests the opportunity to introduce evidence to the jury related to
4 | the Sophisticated User doctrine.
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7 | Dated: April 5, 2010 MCKENNA LONG & ALDRIDGE LLP
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9 By: i bia cS Lt
Lisa L. OBERG
10 DANIEL B. HoYE
n ALECIA E, COTTON
2 Attorneys for Defendant,
METALCLAD INSULATION
3 CORPORATION
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ATIORNEYS AT Law DEFENDANT METALCLAD INSULATION CORPORATION'S TRIAL BRIEF REGARDING THE ADMISSIBILITY OF EVIDENCE RELATED TO THE
SAN FRANCISCO, SOPHISTICATED USER DOCTRINE {MIL 28)

‘SF:27418575.1