Preview
Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
oD Oo MW ND
STEVEN SOBEL (SBN: 177210)
ssobel@gordonrees.com
LORRIE A. WALKER (SBN: 272637)
Iwalker@pordonrees.com
GORDON & REES LLP
101 W. Broadway, Suite 2000
San Diego, CA 92101
Telephone: (619) 696-6700
Facsimile: (619) 696-7124
Attorneys for Defendant
HENNESSY INDUSTRIES, INC.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
DEC 05 2013
Clerk of the Court
BY: MICHAEL RAYRAY
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ANTHONY CONTE,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BP) As
Reflected on Exhibits B, B-1, C, F, G; and
DOES 1-8500; and SEE ATTACHED LIST.
Defendants.
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CASE NO, CGC-09-275046
Coniplaint filed: 01/30/09
DECLARATION OF CRAIG MOUNTZ IN
SUPPORT OF HENNESSY INDUSTRIES,
INC.’S MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION
Filed & Served Together
. Notice of Motion and Motion
. Memorandum of Points & Authorities
. Separate Statement of Undisputed Facts
. Request for Judicial Notice
Declaration of Craig Mountz.
Declaration of Russell Darnell
. Declaration of Lorrie A. Walker
. Appendix of Exhibits
. Appendix of Exhibits to Darnell Declaration
WON AN RW
Date: February 20, 2014
Time: 9:30 a.m.
Judge: Teri Jackson
Dept.: 503
ate
DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
10f West Broadway, Suite 2000
San Diego, CA 92101
So me NY DW BF YW wD =
Reem
Nom S © 6 YA BH BON 2S
DECLARATION OF CRAIG MOUNTZ
I, Craig Mountz, declare as follows:
1. Tam employed as a Product Engineer by Hennessy Industries, Inc. (“Hennessy”),
a defendant in this action. If called and sworn as a witness, | could competently testify to the
matters stated in this declaration as being true and correct based upon my personal knowledge.
2. fam an engineer employed by Hennessy. I was first employed by Ammco Tools,
Inc. (“Ammco”), in 1975, and was employed by Ammco continuously until 1987. Since 1987, |
have been employed continuously by Hennessy.
3. During the course of my employment with Ammco and Hennessy, I held the job
titles of Engineer (1975 to 1987), Engineering Manager (1987 to 1993), and Product Engineer
(1993 to present). I am the person most knowledgeable at Hennessy regarding the design,
manufacture, marketing, distribution, and sale of Ammco products.
4, Ammco was in the business of designing, manufacturing, and selling brake
service equipment, including brake shoe arcing machines and brake lathes. For illustration
purposes, a true and correct copy of a photograph of an Ammco brake shoe arcing machine is
attached as Exhibit A to the Appendix of Exhibits. All Ammco brake shoe arcing machines, as
originally manufactured, resemble and function in a manner similar to the machine depicted in
Exhibit A. For illustration purposes, a true and correct copy ofa photograph of an Ammco brake
lathe is attached as Exhibit B to the Appendix of Exhibits. All Ammco brake drum lathes, as
originally manufactured, resemble and function in a manner similar to the machine depicted in
Exhibit B.
5. Thave been personally involved with the design of Ammco brake service
equipment. I have detailed knowledge of the design and construction of Ammco brake service
equipment, including all models of Ammco brake shoe arcing machines and brake lathes, and all
component parts thereof. As Engineer, 1 was involved in all engineering aspects relating to a
variety of Ammeco produets, including all models of Ammeco brake shoe arcing machines and
brake lathes. Furthermore, as an Engineering Manager and as a Product Engineer, | was, and
still am, responsible for oversecing all engineering aspects of brake service equipment that was
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DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
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manufactured by Ammco. As such, ] am familiar with the engineering aspects of all Ammco
brake service equipment, including brake shoe arcing machines and brake lathes. As part of my
job and background, I am familiar with the function and operation of brake shoes and drums, and
the proper use of Ammco brake service equipment with brake shoes and drums.
6. As a necessary part of my employment with Ammco and Hennessy as an
Engineer, Engineering Manager, and Product Engineer, { have been required to learn the
complete product history of all Ammco brake service equipment. This knowledge was necessary
in order to work in an engineering capacity relative to Ammco brake service equipment
throughout my thirty-eight year employment history. From learning the complete product
history of all Ammco brake service equipment, I have gained personal knowledge of the design,
construction, and composition, including the composition of all component parts, of all Ammco
brake service equipment, including products manufactured, marketed, designed or sold by
Ammco prior to the beginning of my employment.
7. Ammco brake shoe arcing machines and brake lathes, as manufactured and
supplied with Ammco replacement parts, did not contain asbestos-containing parts nor did they
contain respirable asbestos. A review of parts specification sheets for Ammco brake shoe arcing
machines and brake lathes reveals no asbestos-containing parts. (See Exhibits C and D, which
are true and correct copies of part specifications for Ammeo brake shoe arcing machines and
brake lathes, respectively.) In my capacity as the person most knowledgeable for Hennessy since
at least 2000, I am aware that no evidence has ever been supplied by any plaintiff, including the
plaintiff in this case, that Ammco brake shoe arcing machines or brake lathes contained asbestos-
containing parts or respirable asbestos in any form. Based upon my personal knowledge of all
Ammco brake service products, as explained above, the abrasive belts that comprised the
sanding surface of the Ammco brake shoe arcing machine were always a generic coated abrasive
(sandpaper) with a hard and gritty/granule abrasive material. ‘The abrasive material was not
composed of asbestos, which is a fibrous-type material unsuited for use as an abrasive.
8. Ammo brake shoe arcing machines are designed to reshape the friction material
of a brake shoe (brake lining), regardless of the brake shoe’s composition, by mechanical
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DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
NOD UW BR Ww
abrasion, in order to match the shape of the corresponding brake drum to maximize braking
efficiency. Ammco brake shoe arcing machines are designed to reshape any brake shoe friction
material, whether composed of asbestos or not. Ammco brake shoe arcing machines were not
specifically designed or intended to be used solely with asbestos-containing brake linings, or any
other type of brake shoe lining. The composition of the friction material of a brake shoe is not a
limiting factor in regards to the design or expected use of an Ammco brake shoe arcing machine.
The abrasive material that came standard on all Ammco arcing machines was capable of and
could in fact are any type of brake shoe.
9. In later years, Ammco manufactured additional abrasives to better tailor the
machine to certain types of brake linings, thereby increasing the machine’s efficiency. For
example, in response to the increased presence of metallic and high-performance racing brake
linings on the market in the 1960s, Ammco created and released a high performance grit abrasive
belt (Part No. 9970) in 1969 for high volume use of the Ammco arcing machine with metallic
and high performance racing linings. (A true and correct copy of the product design diagram for
Part 9970 “High Performance Grit” is attached hereto as Exhibit E, a true and correct copy of
page from a 1974 Ammco catalogue advertising Part 9970 “High Performance Grit” is attached
hereto as Exhibit F, and a page from a 1983 Ammceo catalogue advertising the same product is
attached hereto as Exhibit G.) Although the high performance grit would last longer than the
standard grit in high volume situations involving metallic and high-performance linings, both the
standard grit and the high performance grit were capable of and could in fact are metallic and
high-performance brake linings. Ammco brake shoe arcing machines do not require asbestos in
order to operate, nor do brake shoes/linings, asbestos-containing or otherwise, require arcing by
an Ammco brake shoe arcing machine in order to operate.
10. Ammco brake lathes are designed to reshape brake drums and brake rotors,
regardless of the brake drum or rotor’s composition, or whatever type of dust or dirt that may be
on the brake drum or rotor at the time a user places a brake drum or rotor on an Ammco brake
lathe. Individuals operating an Ammco brake lathe can reshape whatever variety of brake drum
‘if
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DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC?S
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
wn
or rotor they wish. Ammceo brake lathes do not require asbestos in order to operate, nor do brake
drums or rotors require lathing in order to operate.
11. Neither Hennessy nor Ammco has ever manufactured, marketed, designed or sold
brake shoes, brake linings, or brake pads, which are separate and distinct products from Ammco
brake shoe arcing machines and brake lathes. Ammco brake shoe arcing machines are complete,
independent products, in and of themselves. Ammico brake lathes are complete, independent
products in and of themselves.
12. Neither Hennessy nor Ammico has ever had any role in designing brake shoes,
brake linings, or friction material associated with brake shoes, to be used with a brake shoe
arcing machine. Brake shoes, brake linings and friction materials used with Ammco brake shoe
arcing machines are designed, manufactured, distributed and sold by entities wholly separate
from both Ammco and Hennessy.
13. In the course of my employment with Hennessy and Ammco, | have become
personally familiar with the manner in which Ammco brake shoe arcing machines and brake
lathes were marketed and represented to customers and the general public.
14. Neither Hennessy nor Ammco has ever made any sort of representation to the
effect that asbestos or asbestos-containing products are not harmful to human health, and neither
Hennessy nor Ammco has ever taken any action to suppress information regarding the effect of
asbestos or asbestos-containing products on human health.
15. All models of Ammco brake shoe arcing machines bore a logo consisting of the
block letters “AMMCO.” All models of Ammco brake drum lathes bore a logo consisting of the
block letters “AMMCO.” The “Ammco” in “Ammco Tools, Inc.,” as labeled on “Ammco”
machinery is spelled “A-M-M-C-O.”
16, All models of Ammco brake shoe arcing machines were primarily colored a
distinctive color of blue. All models of Ammco brake drum lathes were primarily colored the
same distinctive color of blue.
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DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92401
105683417549 1860.1
PB Wo
17. All models of Ammco brake shoe arcing machines required being placed on a
table to operate. All models of Ammco brake drum lathes required being placed on a table to
operate,
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed at Lavergne, Tennessee, on December 3 2013.
Crai se“ ean
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DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S
NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
Preview
Gordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 oD Oo MW ND STEVEN SOBEL (SBN: 177210) ssobel@gordonrees.com LORRIE A. WALKER (SBN: 272637) Iwalker@pordonrees.com GORDON & REES LLP 101 W. Broadway, Suite 2000 San Diego, CA 92101 Telephone: (619) 696-6700 Facsimile: (619) 696-7124 Attorneys for Defendant HENNESSY INDUSTRIES, INC. ELECTRONICALLY FILED Superior Court of California, County of San Francisco DEC 05 2013 Clerk of the Court BY: MICHAEL RAYRAY Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO ANTHONY CONTE, Plaintiff, vs. ASBESTOS DEFENDANTS (BP) As Reflected on Exhibits B, B-1, C, F, G; and DOES 1-8500; and SEE ATTACHED LIST. Defendants. Ne ee ee ee ee ae ee ‘if Aid itt ‘tf CASE NO, CGC-09-275046 Coniplaint filed: 01/30/09 DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF HENNESSY INDUSTRIES, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION Filed & Served Together . Notice of Motion and Motion . Memorandum of Points & Authorities . Separate Statement of Undisputed Facts . Request for Judicial Notice Declaration of Craig Mountz. Declaration of Russell Darnell . Declaration of Lorrie A. Walker . Appendix of Exhibits . Appendix of Exhibits to Darnell Declaration WON AN RW Date: February 20, 2014 Time: 9:30 a.m. Judge: Teri Jackson Dept.: 503 ate DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 10f West Broadway, Suite 2000 San Diego, CA 92101 So me NY DW BF YW wD = Reem Nom S © 6 YA BH BON 2S DECLARATION OF CRAIG MOUNTZ I, Craig Mountz, declare as follows: 1. Tam employed as a Product Engineer by Hennessy Industries, Inc. (“Hennessy”), a defendant in this action. If called and sworn as a witness, | could competently testify to the matters stated in this declaration as being true and correct based upon my personal knowledge. 2. fam an engineer employed by Hennessy. I was first employed by Ammco Tools, Inc. (“Ammco”), in 1975, and was employed by Ammco continuously until 1987. Since 1987, | have been employed continuously by Hennessy. 3. During the course of my employment with Ammco and Hennessy, I held the job titles of Engineer (1975 to 1987), Engineering Manager (1987 to 1993), and Product Engineer (1993 to present). I am the person most knowledgeable at Hennessy regarding the design, manufacture, marketing, distribution, and sale of Ammco products. 4, Ammco was in the business of designing, manufacturing, and selling brake service equipment, including brake shoe arcing machines and brake lathes. For illustration purposes, a true and correct copy of a photograph of an Ammco brake shoe arcing machine is attached as Exhibit A to the Appendix of Exhibits. All Ammco brake shoe arcing machines, as originally manufactured, resemble and function in a manner similar to the machine depicted in Exhibit A. For illustration purposes, a true and correct copy ofa photograph of an Ammco brake lathe is attached as Exhibit B to the Appendix of Exhibits. All Ammco brake drum lathes, as originally manufactured, resemble and function in a manner similar to the machine depicted in Exhibit B. 5. Thave been personally involved with the design of Ammco brake service equipment. I have detailed knowledge of the design and construction of Ammco brake service equipment, including all models of Ammco brake shoe arcing machines and brake lathes, and all component parts thereof. As Engineer, 1 was involved in all engineering aspects relating to a variety of Ammeco produets, including all models of Ammeco brake shoe arcing machines and brake lathes. Furthermore, as an Engineering Manager and as a Product Engineer, | was, and still am, responsible for oversecing all engineering aspects of brake service equipment that was -2- DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 wo Wa sO 10 ni 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 manufactured by Ammco. As such, ] am familiar with the engineering aspects of all Ammco brake service equipment, including brake shoe arcing machines and brake lathes. As part of my job and background, I am familiar with the function and operation of brake shoes and drums, and the proper use of Ammco brake service equipment with brake shoes and drums. 6. As a necessary part of my employment with Ammco and Hennessy as an Engineer, Engineering Manager, and Product Engineer, { have been required to learn the complete product history of all Ammco brake service equipment. This knowledge was necessary in order to work in an engineering capacity relative to Ammco brake service equipment throughout my thirty-eight year employment history. From learning the complete product history of all Ammco brake service equipment, I have gained personal knowledge of the design, construction, and composition, including the composition of all component parts, of all Ammco brake service equipment, including products manufactured, marketed, designed or sold by Ammco prior to the beginning of my employment. 7. Ammco brake shoe arcing machines and brake lathes, as manufactured and supplied with Ammco replacement parts, did not contain asbestos-containing parts nor did they contain respirable asbestos. A review of parts specification sheets for Ammco brake shoe arcing machines and brake lathes reveals no asbestos-containing parts. (See Exhibits C and D, which are true and correct copies of part specifications for Ammeo brake shoe arcing machines and brake lathes, respectively.) In my capacity as the person most knowledgeable for Hennessy since at least 2000, I am aware that no evidence has ever been supplied by any plaintiff, including the plaintiff in this case, that Ammco brake shoe arcing machines or brake lathes contained asbestos- containing parts or respirable asbestos in any form. Based upon my personal knowledge of all Ammco brake service products, as explained above, the abrasive belts that comprised the sanding surface of the Ammco brake shoe arcing machine were always a generic coated abrasive (sandpaper) with a hard and gritty/granule abrasive material. ‘The abrasive material was not composed of asbestos, which is a fibrous-type material unsuited for use as an abrasive. 8. Ammo brake shoe arcing machines are designed to reshape the friction material of a brake shoe (brake lining), regardless of the brake shoe’s composition, by mechanical -3- DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 NOD UW BR Ww abrasion, in order to match the shape of the corresponding brake drum to maximize braking efficiency. Ammco brake shoe arcing machines are designed to reshape any brake shoe friction material, whether composed of asbestos or not. Ammco brake shoe arcing machines were not specifically designed or intended to be used solely with asbestos-containing brake linings, or any other type of brake shoe lining. The composition of the friction material of a brake shoe is not a limiting factor in regards to the design or expected use of an Ammco brake shoe arcing machine. The abrasive material that came standard on all Ammco arcing machines was capable of and could in fact are any type of brake shoe. 9. In later years, Ammco manufactured additional abrasives to better tailor the machine to certain types of brake linings, thereby increasing the machine’s efficiency. For example, in response to the increased presence of metallic and high-performance racing brake linings on the market in the 1960s, Ammco created and released a high performance grit abrasive belt (Part No. 9970) in 1969 for high volume use of the Ammco arcing machine with metallic and high performance racing linings. (A true and correct copy of the product design diagram for Part 9970 “High Performance Grit” is attached hereto as Exhibit E, a true and correct copy of page from a 1974 Ammco catalogue advertising Part 9970 “High Performance Grit” is attached hereto as Exhibit F, and a page from a 1983 Ammceo catalogue advertising the same product is attached hereto as Exhibit G.) Although the high performance grit would last longer than the standard grit in high volume situations involving metallic and high-performance linings, both the standard grit and the high performance grit were capable of and could in fact are metallic and high-performance brake linings. Ammco brake shoe arcing machines do not require asbestos in order to operate, nor do brake shoes/linings, asbestos-containing or otherwise, require arcing by an Ammco brake shoe arcing machine in order to operate. 10. Ammco brake lathes are designed to reshape brake drums and brake rotors, regardless of the brake drum or rotor’s composition, or whatever type of dust or dirt that may be on the brake drum or rotor at the time a user places a brake drum or rotor on an Ammco brake lathe. Individuals operating an Ammco brake lathe can reshape whatever variety of brake drum ‘if ~4- DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC?S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 wn or rotor they wish. Ammceo brake lathes do not require asbestos in order to operate, nor do brake drums or rotors require lathing in order to operate. 11. Neither Hennessy nor Ammco has ever manufactured, marketed, designed or sold brake shoes, brake linings, or brake pads, which are separate and distinct products from Ammco brake shoe arcing machines and brake lathes. Ammco brake shoe arcing machines are complete, independent products, in and of themselves. Ammico brake lathes are complete, independent products in and of themselves. 12. Neither Hennessy nor Ammico has ever had any role in designing brake shoes, brake linings, or friction material associated with brake shoes, to be used with a brake shoe arcing machine. Brake shoes, brake linings and friction materials used with Ammco brake shoe arcing machines are designed, manufactured, distributed and sold by entities wholly separate from both Ammco and Hennessy. 13. In the course of my employment with Hennessy and Ammco, | have become personally familiar with the manner in which Ammco brake shoe arcing machines and brake lathes were marketed and represented to customers and the general public. 14. Neither Hennessy nor Ammco has ever made any sort of representation to the effect that asbestos or asbestos-containing products are not harmful to human health, and neither Hennessy nor Ammco has ever taken any action to suppress information regarding the effect of asbestos or asbestos-containing products on human health. 15. All models of Ammco brake shoe arcing machines bore a logo consisting of the block letters “AMMCO.” All models of Ammco brake drum lathes bore a logo consisting of the block letters “AMMCO.” The “Ammco” in “Ammco Tools, Inc.,” as labeled on “Ammco” machinery is spelled “A-M-M-C-O.” 16, All models of Ammco brake shoe arcing machines were primarily colored a distinctive color of blue. All models of Ammco brake drum lathes were primarily colored the same distinctive color of blue. -5- DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92401 105683417549 1860.1 PB Wo 17. All models of Ammco brake shoe arcing machines required being placed on a table to operate. All models of Ammco brake drum lathes required being placed on a table to operate, I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Lavergne, Tennessee, on December 3 2013. Crai se“ ean ~6- DECLARATION OF CRAIG MOUNTZ IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT