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Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
STEVEN SOBEL (SBN: 177210)
ssobel@gordonrees.com
LORRIE A, WALKER (SBN: 272637)
lwalker@gordonrees.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 (B“P) As
Reflected on Exhibits B, B-1, C, F, G; and
DOES 1-8500; and SEE ATTACHED LIST.
Defendants.
ee ee ee ae ee ee eee eee
CASE NO. CGC-09-275046
Complaint filed: 61/30/09
DECLARATION OF RUSSELL DARNELL,
PH.D. 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 AA RW
Date: February 20, 2014
Time: 9:30 am.
Judge: Teri Jackson
Dept.: 503
DECLARATION OF RUSSELL DARNELL, Ph.D, Ed.D, MBA, BSE, C.AL.
1, Russell Darnell, Ph.D, Ed.D, MBA, BSE, C.A.L, declare as follows:
1. 1 am the founder and president of Global Solutions, and have provided automotive
engineering and product consultation and solutions to vehicle manufacturers and other
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DECLARATION OF RUSSELL DARNELL PH.D. 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
16
automotive entities around the world for over 25 years. | have personal knowledge of the
matters stated herein, and, if called upon as a witness, | could and would competently testify to
the matters stated in this declaration as being true and correct based upon my personal
knowledge.
Qualifications
2. Ihave worked in the automotive and motorcycle vehicle industry for over 50
years as a mechanic, mechanical engineer, and automotive service and general manager. | have
researched, designed, engineered, tested, built and consulted regarding automobiles and
motorcycles, | have researched, designed, engineered, tested, built and consulted regarding
automobile and motorcycle parts, including brakes and braking systems.
3. As part of my professional experience, | have performed work personally and
professionally as an automotive mechanic the majority of my working life, from the 1950s
through present. I have worked in automotive repair shops as an automobile and pick-up truck
mechanic. I have worked as a mechanic throughout my automotive career on passenger,
performance and racing automobiles and motorcycles. I am a National Institute for Automotive
Service Excellence (ASE) master technician, which requires demonstrated expertise in several
areas, including brakes and braking systems. I have been licensed as a master technician in both
the United States and Europe and through such hands-on, personal work have seen, worked with
and become knowledgeable on a first-hand basis about automotive brakes, linings and braking
systems from the 1950s through present.
4. In 1963 at age 16, I designed, engineered, and built from scratch, a motorcycle
with an advanced suspension system and a three-cylinder, two-stroke engine. In 1964 at the age
of 17, L worked on the Norm Thatcher Race Team, and helped build the first stock sedan to
achieve 200 mph.
3, 1 was the division manager for Montgomery Wards automotive service
department in the late 1960s (1967 through 1970/71), overseeing personnel, repair and parts
protocols for seven stores in the Los Angeles area. | have worked as a service manager at
several automotive service locations, including Oasis Honda in Palm Springs, Mercedes Only in
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DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES,
INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
10L West Broadway, Suite 2000
San Diego, CA 92101
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Palm Springs and Dave’s European in Citrus Heights, California. I have worked as service
manager at several other locations, including Europe. In my experience as a service manager
and division manager during the 1960s and 1970s, I became very familiar with the parts used and
sold during automotive vehicle repair, including the various types of brakes, linings and braking
system parts.
6. From 1970 through 1972, I ran a company called R & T Motocross Necessities, a
retail and wholesale outlet of racing parts for motorcycles, cars and off-road vehicles, which
included performance automobile brakes, linings and braking system parts.
7, As an international motocross racer during the 1960s and 1970s, I was a
contracted factory racer for the Swedish company Husqvarna (“HUSKY”), and ultimately
became a lead member of their engineering research and development team. Through a school |
attended through Husqvarna, I became a master research technician in automotive engineering.
Husqvarna was associated with Volvo, and as a result I became involved in testing of Volvo
automobiles and parts, including fully-instrumented car testing and crashes which necessarily
involved Volvo brakes and braking systems.
8. In the 1960s, I served as chief test engineer for Yankee Motor Corporation and
held a similar title at Ossa Motorcycle of Spain. In the 1970s, I led the test team responsible for
developing a line of motorcycle tires for Firestone.
9. More recently, I served in the mid-2000s as president and chief technical officer
of ZXNA (Zhongxing Automobile North America) and CHAMCO, personally designing a new
vehicle to be manufactured in China and intended for distribution, marketing and sale in the
United States.
10. As a result of my own personal and professional mechanic experience on
passenger, performance and racing vehicles, | have first-hand knowledge and familiarity with
Ammco brake arcing machines, as well as the various types of brake shoe linings commercially
available and used on domestic and foreign vehicles from the 1950s through present.
11. In addition to my hands on mechanic work and 40 plus years of hands-on
mechanical engineering experience, I have, since 1986, obtained a Bachelor of Science in
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DECLARATION OF RUSSELL DARNELL PH.D. 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
Engineering, Ph.D. in Engineering Management, Doctor of Education and MBA from California
Coast University at Santa Ana.
12. lam a member of the Society of Automobile Engineers (S.A.E.), the American
Society of Mechanical Engineers (A.S.M.E.), the Society of Naval Architects and Marine
Engineers (S.N.A.M.E.) and the Forensic Expert Witness Association. | am a certified Chief
Instructor for the Specialty Vehicle Institute of America, a licensed Master Research Technician
with the European Auto Union, a Class A Engineering Contractor, a certified N.1.A.S.E. master
technician and hold several professional automotive and motorcycle racing licenses.
13. In addition to providing automotive engineering and consultation services through
Global Solutions, I have also provided expert witness consultation and testimony for litigation. |
am a contract accident reconstruction expert for the U.S. Justice Department and the Califomia
Office of the Attorney General. I have conducted accident reconstruction for more than 1,000
events. I have given sworn deposition testimony on over 600 occasions and have appeared as an
expert witness in 200 jury trials. | have qualified as an automotive product, liability, engineering
and safety expert since 1974 in state, federal and foreign courts
General and Specific Opinions
14. Based upon my own first-hand experience and knowledge, accumulated as a
result of personal and professional automotive mechanic work on automobile brakes in the
United States and Europe from the 1950s through the 2000s, as well as my own accumulated
research and training regarding automotive repair (and specifically as it pertains to automotive
brakes, linings and braking systems), I can state with all certainty as an automotive mechanic and
service manager and beyond any reasonable degree of scientific certainty as an automotive and
mechanical engineer that non-asbestos metallic brake shoe linings were commercially available,
installed and used in both the United States and European markets during the 1950s, 1960s,
1970s, 1980s. This opinion, in addition to the materials listed below and my own first-hand
experience, is also based on first-hand accounts from working mechanics from this time period.
itt
fed
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DECLARATION OF RUSSELL DARNELL PH.D. 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
15. Tam personally aware from my own mechanical experience, training and research
that non-asbestos metallic brake shoe linings were used on Mercedes-Benz vehicles at least as
early as the 1940s.
16. I personally held, handled, manipulated, installed, used and vehicle tested non-
asbestos metallic brake shoe linings from the early 1960s onward, through both the 1960s and
the 1970s. These metallic brake linings were regularly seen and used by mechanics such as
myself (including myself) on vehicles, including vehicles such as Corvettes, GTs, “SS”, and
similar domestically available sports cars and performance-type vehicles, known as “muscle”
cars, which became widely popular during the 1960s and 1970s in the United States. Although
less frequently used than standard type brake shoes, these metallic brake linings were available
and installed on a variety of the more powerful GM/Chevrolet and Ford vehicles sold during the
1960s and 1970s. In addition, | worked on motorcycles with sintered metal brake linings such as
Greeves, Ossa, Montesa, Gilera, and Husqvarna.
17, I would have occasion to install these metallic brake linings as part of mechanic
work } performed on vehicles such as Corvettes, Camaros, higher-powered Pontiacs, Chevrolets
and the like during the 1960s and 1970s. While running, R & T Motocross Necessities, a retail
and wholesale outlet of racing parts for motorcycles, cars and off-road vehicles, | sold these
types of non-asbestos metallic brakes for such purposes.
18. [am personally familiar with Ammco brake arcing machines and similar types of
grinding equipment used to radius-arc brake shoe linings for drum brake systems. Based upon
my own experience as a mechanic, | am personally aware that these non-asbestos metallic brake
shoe linings could be and were in fact ground on Ammeo arcing machines during the 1960s and
1970s.
19. [have received a copy of Plaintiff Anthony Conte’s responses to Special
Interrogatories, Set One propounded by Hennessy Industries, Inc.in this matter, and understand
that Plaintiff alleges that he was exposed to asbestos as a result of his use of an Ammco brake
shoe arcing machine while working as a mechanic during the time period of approximately 1971
to the early 1980’s. Based upon my own personal knowledge as set forth above, as well as my
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DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES,
INC."S NOTICE OF MOTION AND MOTION FOR SUMMARY JODGMENTGordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, CA 92101
review and informed opinion as set forth below, non-asbestos metallic brake shoe linings were
certainly commercially available and in use in the United States at all relevant times alleged by
Plaintiff. Further, based upon my own personal knowledge as forth above, as well as my review
and informed opinion as set forth below, non-asbestos metallic brake shoe linings could be and
were in fact ground on Ammco arcing machines at all relevant times alleged by Plaintiff.
20. In preparing for and offering the opinions stated herein, 1 have reviewed and
reasonably relied upon the following documents, which both reaffirm and further inform my
opinions based upon personal, first-hand knowledge. Based upon my experience as an
automotive engineering research technician and forensic expert, it is reasonable for experts in my
field to review and rely upon the types of documents listed herein.
a. Plaintiff Anthony Conte’s responses to Special Interrogatories, Set One
propounded by Hennessy Industries, Inc. are attached hereto as Exhibit 1
b. The Declaration of Dr. David Egilman, in pertinent part, submitted in asbestos
litigation in Norfolk County, State of Massachusetts. A true and correct copy of this
declaration and the exhibits attached thereto are attached hereto as Exhibit 2.
c, Excerpts from the book, Asbestos: Medical and Legal Aspects, Fourth Edition, by
Barry I. Castleman, published by Aspen Law & Business in 1996. A true and correct
copy of these excerpts are attached hereto as Exhibit 3.
d. Portions of an article from Asbestos magazine, entitled “Asbestos Substitutes in
Friction Materials,” from Volume 64 of Asbestos magazine, published February 1983. A
true and correct copy of this article is attached hereto as Exhibit 4.
e. An article entitled “1958 Chevrolet Corvette — The ‘boulevard’ ‘ Vette,” originally
published in December of 1957 in Sports Car Illustrated and republished by Car and
Driver magazine in January of 1970. A true and correct copy of this article as retrieved
from www.caranddriver.com is attached hereto as Exhibit 5.
£ An article entitled “1959 Chevrolet Corvette ~ Dual-purpose sports cars for
1959,” originally published in December 1958 in Sports Car Ilustrated and republished
‘tt
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DECLARATION OF RUSSELL DARNELL PH.D. 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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in Car and Driver magazine in January 1970. A true and correct copy of this article as
retrieved from www.caranddriver,com is attached hereto as Exhibit 6.
g. An article entitled “Chevrolet Sting Ray ~ The fish-like snout of Bill Mitchell's
Corvette-SS-based racing car has been nibbling at the exhaust pipes of some highly
exoteric iron lately,” originally published in March of 1961 in Sports Car illustrated and
republished by Car and Driver magazine in January of 1970. A true and correct copy of
this article as retrieved from www.caranddriver.com is attached hereto as Exhibit 7.
h United States Patent Number 2,239,134 for Sintered Friction Article and Method
of Making Same, held by Samuel K. Wellman, with a patent date of April 22, 1941. A
true and correct copy of this document is attached hereto Exhibit 8.
i, United States Patent Number 2,945,291 for Frictional Material, held by Thomas
G. Ankeny, and John W. Amett, assignors to General Motors Corporation, with a patent
date of April 22, 1941. A true and correct copy of this document is attached hereto
Exhibit 9.
je An article entitled “1963 Chevrolet Corvette Sting Ray ~ At long last America has
a formidable weapon to challenge Europe’s fastest grand touring cars on their home
ground,” originally published in April of 1963 in Sports Car Ilustrated and republished
in Car and Driver magazine in January 1970. A true and correct copy of this article as
retrieved from www.caranddriver.com is attached hereto as Exhibit 10.
k. An advertisement from General Motors regarding General Motors’ 1967 line of
performance vehicles, circa 1966. A true and correct copy of this advertisement is
attached hereto as Exhibit 11.
1 An article entitled “1965 Ford Mustang Shelby GT350 — Shelby Takes some
Cobra venom, sce and injects it into FOMoCo’s pony...,” originally published in May of
1965 in Car and Driver magazine and republished in May of 1970 by Car and Driver
Magazine. A true and correct copy of this article as retrieved from
www.caranddriver.com is attached hereto as Exhibit 12.
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DECLARATION OF RUSSELL DARNELL PH.D. 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
a Dw
m. An advertisement from Hertz Rent a Car circa 1966 entitled “Hertz presents the
G.T. 350-H.” A true and correct copy of this document, as retrieved from
www.mustangeattitude.com, is attached hereto as Exhibit 13.
nh The trademark details for Velvetouch™ filed on January 2, 1932, and a
registration drawing date of September 26, 1933, and for Velvetouch Metalik™ filed on
April 17, 1961. A true and correct copy of these documents, as retrieved from the United
States Patent Office, is attached hereto as Exhibit 14.
0. A copy of an article from Popular Mechanics, published in January of 1962,
entitled “Those New Metallic Brake Linings ~ How good — or bad? PM makes its own
exclusive tests for you.” A true and correct copy of this article is attached hereto as
Exhibit 15.
p. An advertisement from Brian Chuchua’s Four Wheel Drive Center for
VelveTouch Metalik powdered metal brake linings circa 1971 regarding the 1972 line of
Jeep vehicle’s compatibility with Velvetouch Metalik brakes. A true and correct copy of
this document is attached hereto as Exhibit 16.
q. Portions of the deposition transcript of Albert D. Indelicato, in pertinent part,
taken in the matter of Stillman v. Allied Packing and Supply, et al, Alameda County Case
No. RG1052822. A true and correct copy of this document is attached hereto as Exhibit
1
r Portions of the deposition transcript of Albert D. Indelicato, in pertinent part,
taken in the matter of Lepore, et al v. ACandS, et al, San Francisco County Case No.
CGC-09-275411. A true and correct copy of this document is attached hereto as Exhibit
1
Ss. Chevrolet Engineering Center’s 1961 Chevrolet Passenger Car Specification
manual. A true and correct copy of the relevant portions of this manual are attached as
Exhibit 19.
t Chevrolet Parts and Accessories Catalogue, published by Chevrolet Motor
Division of General Motors Corporation, dated 1967. A true and correct copy of the
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DECLARATION OF RUSSELL DARNELL PH.D. 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
we
wa
relevant portions of this catalogue regarding non-metallic (asbestos) and sintered metallic
brakes is attached as Exhibit 20.
uw Advance General Information for 1966 Passenger Car Models, published by
Chevrolet Central Office Distribution Department in 1965. A true and correct copy of
the relevant portions of this document are attached as Exhibit 21.
v. Chevrolet Chassis Group Parts Catalogue regarding brakes, published/revised by
GM Parts Division, General Motors Corporation in 1981. A true and correct copy of the
relevant portions of this document are attached as Exhibit 22.
w, Chevrolet V8 Cars & Corvette 1960 guide, published by General Motors. A true
and correct copy of the relevant portions of this document are attached as Exhibit 23.
Xx. Brochure for the 1962 Chevrolet Corvair Monza Spyder, distributed by General
Motors. A true and correct copy of this document is attached as Exhibit 24.
y. Vehicle Information kit for the 1960 Chevrolet Corvette “passenger car,” as
available at http://www.gmheritagecenter.com/docs/gm-heritage-archive/vehicle-
information-kits/Corvette/1960-Chevrolet-Corvette.pdf. A true and correct copy of the
relevant portions of this document is attached as Exhibit 25.
ZL The Declaration of Lee Statler, executed on May 10, 2013. A true and correct
copy of this document is attached as Exhibit 26.
aa. Portions of the deposition of Michael Sherman, taken in Sherman, et al. v. BASF
Catalysts LLC, et al., Los Angeles Superior Court case no. BC481282, commenced in the
matter on November 1, 2012. A true and correct copy of the relevant portions of this
deposition are attached as Exhibit 27.
21. — In addition to those opinions stated above on the basis of my own personal
knowledge and experience, based upon my review of the foregoing documents, | hold the
following additional opinions in support that at all times relevant to this matter, non-asbestos
brake shoe linings were commercially available and in use in the United States.
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DECLARATION OF RUSSELL DARNELL PH.D. 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
Asbestos-Free Brake Linings Are Available in the 1930s
22. Following the commencement of production of asbestos-containing brake linings
in the early Twentieth Century, asbestos-free brakes were once again used and available on the
market in the United States at least as early as 1936. Indeed, throughout the 1930s and 1940s,
companies such as General Motors, Bendix Corporation, the S.K. Wellman Company and
Raybestos-Manhattan, Inc, all obtained patents for asbestos-free brake linings. Metallic (non-
asbestos) brake linings were also used in German-made automobiles prior to and during World
War IL.
Asbestos-Free Brake Linings for Vehicles in the 1950s
23. Asbestos-free brake linings were on the rise in the 1950s. For example, the
Bendix Corporation manufactured, marketed and sold asbestos-free brakes for trucks as carly as
1956. Bendix brand cera-metallic (non-asbestos) brake shoe linings were also offered for use on
the rear brakes of the 1958 Chevrolet Corvette.
24, Bendix cera-metallic rear-drum brake linings were replaced as an option in the
1959 Corvette by sintered metallic lining pads from Moraine/Delco-Moraine. Although the
Moraine linings are called “pads,” multiple, separate pads were affixed to the brake shoe to
actually form a lining over the brake shoe’s metal surface.
25. As another example of non-asbestos containing brakes on the market in the 1950s,
sintered-iron brake shoe linings were available from 1957 through the 1960s models of the
Corvette Sting Ray.
Asbestos-Free Brake Linings in the 1960s and 1970s
26. Non-asbestos sintered (powdered) metallic linings have been available for use on
automobiles as a friction element since the 1940s through present. However, their presence on
the United States market increased significantly during the early 1960s. On July 19, 1960,
General Motors was assigned U.S. Patent No. 2,945,291 relating to sintered iron friction
members for use as clutches, brakes and the like. Sintered iron brake shoe linings were available
for use throughout the late 1950s to the present and were in fact OEM options used on General
Motors’ Chevrolet Corvette brakes in the late 1950s and 1960s and on other GM vehicles
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DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES,
INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
101 West Broadway, Suite 2600
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through the 1960s and beyond. Further, sintered-iron brake shoe linings remained an option for
1963 Corvettes.
27, Sintered metallic brake shoe linings were available through and sold by General
Motors throughout the 1960s into the 1970s. The availability of these metallic brake shoe linings
is consistent with increase and popularity of the more powerful, performance muscle type cars
that became popular during the 1960s and 1970s. General Motors offered its sintered metallic
brake shoes as a regular production option and factory optional accessory throughout the 1960
and into the 1970s by way of its RPO (“regular production option”) 686 and later RPO J65 brake
shoe linings for such vehicles. These brake shoes, while indicated available for all passenger
vehicle models, were normally used on higher performance GM vehicles such as Impalas,
Corvettes, Chevelles, Camaros, Pontiac GTO, bigger engine Oldsmobile models and similar
models.
28. Sintered metal linings (non-asbestos) were also available as an OEM option and
as an after-market product for use on Ford vehicles from at least 1965 and later, especially on
their muscle or performance vehicles, including the Shelby Mustang G-350 and GT500 vehicles.
These vehicles and the non-asbestos metallic brake linings were not just for racing use, but were
available to the public through Ford dealerships and were even available for rent through Hertz,
Rent-A-Car.
29. As early as 1961 and through the present day, sintered metallic brake linings were
also commercially available under the tradenames Velvetouch and/or Velvetouch Metalik in the
United States for use as an OEM and replacement brake shoe lining on light passenger vehicles
and other vehicles. $.K. Wellman’s (and subsequent manufacturers using the tradename)
Velvetouch and Velvetouch Metalik products are well known in the performance and muscle car
industry, but were not and are not limited to such use. In a review published in 1962, Popular
Mechanics described the product as non-asbestos brake shoe linings (“made of sintered iron
powder and graphitic carbon, along with other inorganic friction-modifying additives”) fitting all
popular passenger cars, including imports. In the article, the Velvetouch Metalik linings were
purchased (i.e. commercially available) and then installed on a 1960 Ford Fairlane. These non-
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DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES,
INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP
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asbestos containing Metalik brakes were also made to fit all models of 1972 Jeep-branded
vehicles. Car.
30. Abex Corporation also manufactured and marketed non-asbestos, semi-metallic
brake linings in the United States beginning in the 1960s. According to the Person Most
Knowledgeable for Pneumo Abex LLC, Mr. Alberto Indelicato: (1) semi-metallic (non-asbestos)
brake linings were manufactured and marketed by Abex in the 1960s and 1970s; (2) semi-
metallic brake linings were sold in the 1960s and 1970s at NAPA Auto Parts Stores; and (3)
Abex itself marketed the semi-metallic brake linings through product catalogs.
Asbestos-Containing Brake Linings in the 1980s and 1990s
31. Throughout the 1980s and 1990s, asbestos-containing brake linings were largely
phased out of the marketplace. In his book, Asbestos: Medical and Legal Aspecis, medical
librarian Dr. Barry 1. Castleman details this occurrence with specific references to domestic and
foreign car makers. The below are a few highlights from Dr. Castleman’s analysis of the
available information on the issue:
a. Raybestos-Manhattan, Inc. set forth a plan for eliminating asbestos from their
products by 1982.
db. General Motors planned to have asbestos-free drum brakes in all passenger cars
and light trucks by the 1985 model year.
c. By 1982, nearly all Saab vehicles contained asbestos-free brake linings.
d. By 1982, “Metal Master” asbestos-free brakes were being offered “for dozens of
different modets of cars by Audi, BMW, Fiat, Ford, Mercedes, Opel, Peugeot, Renault,
Saab, Toyota, Volkswagen, Volvo and others.”
Conclusion
32. Based upon my own personal experience and knowledge of non-asbestos metallic
brakes as an automobile mechanic, automotive department service manager, automotive parts
company manager and engineering research technician, as well as my review of the relevant
documents set forth herein, it is my opinion, with certainty as a scientist and automobile
mechanic, that non-asbestos metallic brake shoe linings were commercially available in the
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DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES,
INC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTSan Diego, CA 92101
Gordon & Rees LLP
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165636175435 408.1
we
United States market at all relevant times to this case, and certainly after 1971, and that such
brake shoe linings could be and were in fact ground on Ammco brake arcing machines.
I declare under penalty of perjury under the laws of the State of California that all of the
foregoing is true and correct.
Executed November 3@, 2013, at El Dorada Hills, California
Datel ©. bx
ét, a
Russell Darnell, Ph.D, Ed.D, MBA, BSE, CAL
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DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES,
INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
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Gordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 STEVEN SOBEL (SBN: 177210) ssobel@gordonrees.com LORRIE A, WALKER (SBN: 272637) lwalker@gordonrees.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 (B“P) As Reflected on Exhibits B, B-1, C, F, G; and DOES 1-8500; and SEE ATTACHED LIST. Defendants. ee ee ee ae ee ee eee eee CASE NO. CGC-09-275046 Complaint filed: 61/30/09 DECLARATION OF RUSSELL DARNELL, PH.D. 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 AA RW Date: February 20, 2014 Time: 9:30 am. Judge: Teri Jackson Dept.: 503 DECLARATION OF RUSSELL DARNELL, Ph.D, Ed.D, MBA, BSE, C.AL. 1, Russell Darnell, Ph.D, Ed.D, MBA, BSE, C.A.L, declare as follows: 1. 1 am the founder and president of Global Solutions, and have provided automotive engineering and product consultation and solutions to vehicle manufacturers and other -1- DECLARATION OF RUSSELL DARNELL PH.D. 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 16 automotive entities around the world for over 25 years. | have personal knowledge of the matters stated herein, and, if called upon as a witness, | could and would competently testify to the matters stated in this declaration as being true and correct based upon my personal knowledge. Qualifications 2. Ihave worked in the automotive and motorcycle vehicle industry for over 50 years as a mechanic, mechanical engineer, and automotive service and general manager. | have researched, designed, engineered, tested, built and consulted regarding automobiles and motorcycles, | have researched, designed, engineered, tested, built and consulted regarding automobile and motorcycle parts, including brakes and braking systems. 3. As part of my professional experience, | have performed work personally and professionally as an automotive mechanic the majority of my working life, from the 1950s through present. I have worked in automotive repair shops as an automobile and pick-up truck mechanic. I have worked as a mechanic throughout my automotive career on passenger, performance and racing automobiles and motorcycles. I am a National Institute for Automotive Service Excellence (ASE) master technician, which requires demonstrated expertise in several areas, including brakes and braking systems. I have been licensed as a master technician in both the United States and Europe and through such hands-on, personal work have seen, worked with and become knowledgeable on a first-hand basis about automotive brakes, linings and braking systems from the 1950s through present. 4. In 1963 at age 16, I designed, engineered, and built from scratch, a motorcycle with an advanced suspension system and a three-cylinder, two-stroke engine. In 1964 at the age of 17, L worked on the Norm Thatcher Race Team, and helped build the first stock sedan to achieve 200 mph. 3, 1 was the division manager for Montgomery Wards automotive service department in the late 1960s (1967 through 1970/71), overseeing personnel, repair and parts protocols for seven stores in the Los Angeles area. | have worked as a service manager at several automotive service locations, including Oasis Honda in Palm Springs, Mercedes Only in -2- DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 10L West Broadway, Suite 2000 San Diego, CA 92101 So Dw DA HH BR WwW Nw = wos Palm Springs and Dave’s European in Citrus Heights, California. I have worked as service manager at several other locations, including Europe. In my experience as a service manager and division manager during the 1960s and 1970s, I became very familiar with the parts used and sold during automotive vehicle repair, including the various types of brakes, linings and braking system parts. 6. From 1970 through 1972, I ran a company called R & T Motocross Necessities, a retail and wholesale outlet of racing parts for motorcycles, cars and off-road vehicles, which included performance automobile brakes, linings and braking system parts. 7, As an international motocross racer during the 1960s and 1970s, I was a contracted factory racer for the Swedish company Husqvarna (“HUSKY”), and ultimately became a lead member of their engineering research and development team. Through a school | attended through Husqvarna, I became a master research technician in automotive engineering. Husqvarna was associated with Volvo, and as a result I became involved in testing of Volvo automobiles and parts, including fully-instrumented car testing and crashes which necessarily involved Volvo brakes and braking systems. 8. In the 1960s, I served as chief test engineer for Yankee Motor Corporation and held a similar title at Ossa Motorcycle of Spain. In the 1970s, I led the test team responsible for developing a line of motorcycle tires for Firestone. 9. More recently, I served in the mid-2000s as president and chief technical officer of ZXNA (Zhongxing Automobile North America) and CHAMCO, personally designing a new vehicle to be manufactured in China and intended for distribution, marketing and sale in the United States. 10. As a result of my own personal and professional mechanic experience on passenger, performance and racing vehicles, | have first-hand knowledge and familiarity with Ammco brake arcing machines, as well as the various types of brake shoe linings commercially available and used on domestic and foreign vehicles from the 1950s through present. 11. In addition to my hands on mechanic work and 40 plus years of hands-on mechanical engineering experience, I have, since 1986, obtained a Bachelor of Science in -3- DECLARATION OF RUSSELL DARNELL PH.D. 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 Engineering, Ph.D. in Engineering Management, Doctor of Education and MBA from California Coast University at Santa Ana. 12. lam a member of the Society of Automobile Engineers (S.A.E.), the American Society of Mechanical Engineers (A.S.M.E.), the Society of Naval Architects and Marine Engineers (S.N.A.M.E.) and the Forensic Expert Witness Association. | am a certified Chief Instructor for the Specialty Vehicle Institute of America, a licensed Master Research Technician with the European Auto Union, a Class A Engineering Contractor, a certified N.1.A.S.E. master technician and hold several professional automotive and motorcycle racing licenses. 13. In addition to providing automotive engineering and consultation services through Global Solutions, I have also provided expert witness consultation and testimony for litigation. | am a contract accident reconstruction expert for the U.S. Justice Department and the Califomia Office of the Attorney General. I have conducted accident reconstruction for more than 1,000 events. I have given sworn deposition testimony on over 600 occasions and have appeared as an expert witness in 200 jury trials. | have qualified as an automotive product, liability, engineering and safety expert since 1974 in state, federal and foreign courts General and Specific Opinions 14. Based upon my own first-hand experience and knowledge, accumulated as a result of personal and professional automotive mechanic work on automobile brakes in the United States and Europe from the 1950s through the 2000s, as well as my own accumulated research and training regarding automotive repair (and specifically as it pertains to automotive brakes, linings and braking systems), I can state with all certainty as an automotive mechanic and service manager and beyond any reasonable degree of scientific certainty as an automotive and mechanical engineer that non-asbestos metallic brake shoe linings were commercially available, installed and used in both the United States and European markets during the 1950s, 1960s, 1970s, 1980s. This opinion, in addition to the materials listed below and my own first-hand experience, is also based on first-hand accounts from working mechanics from this time period. itt fed -4- DECLARATION OF RUSSELL DARNELL PH.D. 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 15. Tam personally aware from my own mechanical experience, training and research that non-asbestos metallic brake shoe linings were used on Mercedes-Benz vehicles at least as early as the 1940s. 16. I personally held, handled, manipulated, installed, used and vehicle tested non- asbestos metallic brake shoe linings from the early 1960s onward, through both the 1960s and the 1970s. These metallic brake linings were regularly seen and used by mechanics such as myself (including myself) on vehicles, including vehicles such as Corvettes, GTs, “SS”, and similar domestically available sports cars and performance-type vehicles, known as “muscle” cars, which became widely popular during the 1960s and 1970s in the United States. Although less frequently used than standard type brake shoes, these metallic brake linings were available and installed on a variety of the more powerful GM/Chevrolet and Ford vehicles sold during the 1960s and 1970s. In addition, | worked on motorcycles with sintered metal brake linings such as Greeves, Ossa, Montesa, Gilera, and Husqvarna. 17, I would have occasion to install these metallic brake linings as part of mechanic work } performed on vehicles such as Corvettes, Camaros, higher-powered Pontiacs, Chevrolets and the like during the 1960s and 1970s. While running, R & T Motocross Necessities, a retail and wholesale outlet of racing parts for motorcycles, cars and off-road vehicles, | sold these types of non-asbestos metallic brakes for such purposes. 18. [am personally familiar with Ammco brake arcing machines and similar types of grinding equipment used to radius-arc brake shoe linings for drum brake systems. Based upon my own experience as a mechanic, | am personally aware that these non-asbestos metallic brake shoe linings could be and were in fact ground on Ammeo arcing machines during the 1960s and 1970s. 19. [have received a copy of Plaintiff Anthony Conte’s responses to Special Interrogatories, Set One propounded by Hennessy Industries, Inc.in this matter, and understand that Plaintiff alleges that he was exposed to asbestos as a result of his use of an Ammco brake shoe arcing machine while working as a mechanic during the time period of approximately 1971 to the early 1980’s. Based upon my own personal knowledge as set forth above, as well as my ~5- DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC."S NOTICE OF MOTION AND MOTION FOR SUMMARY JODGMENTGordon & Rees LLP 101 West Broadway, Suite 2000 San Diego, CA 92101 review and informed opinion as set forth below, non-asbestos metallic brake shoe linings were certainly commercially available and in use in the United States at all relevant times alleged by Plaintiff. Further, based upon my own personal knowledge as forth above, as well as my review and informed opinion as set forth below, non-asbestos metallic brake shoe linings could be and were in fact ground on Ammco arcing machines at all relevant times alleged by Plaintiff. 20. In preparing for and offering the opinions stated herein, 1 have reviewed and reasonably relied upon the following documents, which both reaffirm and further inform my opinions based upon personal, first-hand knowledge. Based upon my experience as an automotive engineering research technician and forensic expert, it is reasonable for experts in my field to review and rely upon the types of documents listed herein. a. Plaintiff Anthony Conte’s responses to Special Interrogatories, Set One propounded by Hennessy Industries, Inc. are attached hereto as Exhibit 1 b. The Declaration of Dr. David Egilman, in pertinent part, submitted in asbestos litigation in Norfolk County, State of Massachusetts. A true and correct copy of this declaration and the exhibits attached thereto are attached hereto as Exhibit 2. c, Excerpts from the book, Asbestos: Medical and Legal Aspects, Fourth Edition, by Barry I. Castleman, published by Aspen Law & Business in 1996. A true and correct copy of these excerpts are attached hereto as Exhibit 3. d. Portions of an article from Asbestos magazine, entitled “Asbestos Substitutes in Friction Materials,” from Volume 64 of Asbestos magazine, published February 1983. A true and correct copy of this article is attached hereto as Exhibit 4. e. An article entitled “1958 Chevrolet Corvette — The ‘boulevard’ ‘ Vette,” originally published in December of 1957 in Sports Car Illustrated and republished by Car and Driver magazine in January of 1970. A true and correct copy of this article as retrieved from www.caranddriver.com is attached hereto as Exhibit 5. £ An article entitled “1959 Chevrolet Corvette ~ Dual-purpose sports cars for 1959,” originally published in December 1958 in Sports Car Ilustrated and republished ‘tt -6- DECLARATION OF RUSSELL DARNELL PH.D. 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 BW oN itt in Car and Driver magazine in January 1970. A true and correct copy of this article as retrieved from www.caranddriver,com is attached hereto as Exhibit 6. g. An article entitled “Chevrolet Sting Ray ~ The fish-like snout of Bill Mitchell's Corvette-SS-based racing car has been nibbling at the exhaust pipes of some highly exoteric iron lately,” originally published in March of 1961 in Sports Car illustrated and republished by Car and Driver magazine in January of 1970. A true and correct copy of this article as retrieved from www.caranddriver.com is attached hereto as Exhibit 7. h United States Patent Number 2,239,134 for Sintered Friction Article and Method of Making Same, held by Samuel K. Wellman, with a patent date of April 22, 1941. A true and correct copy of this document is attached hereto Exhibit 8. i, United States Patent Number 2,945,291 for Frictional Material, held by Thomas G. Ankeny, and John W. Amett, assignors to General Motors Corporation, with a patent date of April 22, 1941. A true and correct copy of this document is attached hereto Exhibit 9. je An article entitled “1963 Chevrolet Corvette Sting Ray ~ At long last America has a formidable weapon to challenge Europe’s fastest grand touring cars on their home ground,” originally published in April of 1963 in Sports Car Ilustrated and republished in Car and Driver magazine in January 1970. A true and correct copy of this article as retrieved from www.caranddriver.com is attached hereto as Exhibit 10. k. An advertisement from General Motors regarding General Motors’ 1967 line of performance vehicles, circa 1966. A true and correct copy of this advertisement is attached hereto as Exhibit 11. 1 An article entitled “1965 Ford Mustang Shelby GT350 — Shelby Takes some Cobra venom, sce and injects it into FOMoCo’s pony...,” originally published in May of 1965 in Car and Driver magazine and republished in May of 1970 by Car and Driver Magazine. A true and correct copy of this article as retrieved from www.caranddriver.com is attached hereto as Exhibit 12. -7- DECLARATION OF RUSSELL DARNELL PH.D. 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 a Dw m. An advertisement from Hertz Rent a Car circa 1966 entitled “Hertz presents the G.T. 350-H.” A true and correct copy of this document, as retrieved from www.mustangeattitude.com, is attached hereto as Exhibit 13. nh The trademark details for Velvetouch™ filed on January 2, 1932, and a registration drawing date of September 26, 1933, and for Velvetouch Metalik™ filed on April 17, 1961. A true and correct copy of these documents, as retrieved from the United States Patent Office, is attached hereto as Exhibit 14. 0. A copy of an article from Popular Mechanics, published in January of 1962, entitled “Those New Metallic Brake Linings ~ How good — or bad? PM makes its own exclusive tests for you.” A true and correct copy of this article is attached hereto as Exhibit 15. p. An advertisement from Brian Chuchua’s Four Wheel Drive Center for VelveTouch Metalik powdered metal brake linings circa 1971 regarding the 1972 line of Jeep vehicle’s compatibility with Velvetouch Metalik brakes. A true and correct copy of this document is attached hereto as Exhibit 16. q. Portions of the deposition transcript of Albert D. Indelicato, in pertinent part, taken in the matter of Stillman v. Allied Packing and Supply, et al, Alameda County Case No. RG1052822. A true and correct copy of this document is attached hereto as Exhibit 1 r Portions of the deposition transcript of Albert D. Indelicato, in pertinent part, taken in the matter of Lepore, et al v. ACandS, et al, San Francisco County Case No. CGC-09-275411. A true and correct copy of this document is attached hereto as Exhibit 1 Ss. Chevrolet Engineering Center’s 1961 Chevrolet Passenger Car Specification manual. A true and correct copy of the relevant portions of this manual are attached as Exhibit 19. t Chevrolet Parts and Accessories Catalogue, published by Chevrolet Motor Division of General Motors Corporation, dated 1967. A true and correct copy of the -8- DECLARATION OF RUSSELL DARNELL PH.D. 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 we wa relevant portions of this catalogue regarding non-metallic (asbestos) and sintered metallic brakes is attached as Exhibit 20. uw Advance General Information for 1966 Passenger Car Models, published by Chevrolet Central Office Distribution Department in 1965. A true and correct copy of the relevant portions of this document are attached as Exhibit 21. v. Chevrolet Chassis Group Parts Catalogue regarding brakes, published/revised by GM Parts Division, General Motors Corporation in 1981. A true and correct copy of the relevant portions of this document are attached as Exhibit 22. w, Chevrolet V8 Cars & Corvette 1960 guide, published by General Motors. A true and correct copy of the relevant portions of this document are attached as Exhibit 23. Xx. Brochure for the 1962 Chevrolet Corvair Monza Spyder, distributed by General Motors. A true and correct copy of this document is attached as Exhibit 24. y. Vehicle Information kit for the 1960 Chevrolet Corvette “passenger car,” as available at http://www.gmheritagecenter.com/docs/gm-heritage-archive/vehicle- information-kits/Corvette/1960-Chevrolet-Corvette.pdf. A true and correct copy of the relevant portions of this document is attached as Exhibit 25. ZL The Declaration of Lee Statler, executed on May 10, 2013. A true and correct copy of this document is attached as Exhibit 26. aa. Portions of the deposition of Michael Sherman, taken in Sherman, et al. v. BASF Catalysts LLC, et al., Los Angeles Superior Court case no. BC481282, commenced in the matter on November 1, 2012. A true and correct copy of the relevant portions of this deposition are attached as Exhibit 27. 21. — In addition to those opinions stated above on the basis of my own personal knowledge and experience, based upon my review of the foregoing documents, | hold the following additional opinions in support that at all times relevant to this matter, non-asbestos brake shoe linings were commercially available and in use in the United States. ~9- DECLARATION OF RUSSELL DARNELL PH.D. 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 Asbestos-Free Brake Linings Are Available in the 1930s 22. Following the commencement of production of asbestos-containing brake linings in the early Twentieth Century, asbestos-free brakes were once again used and available on the market in the United States at least as early as 1936. Indeed, throughout the 1930s and 1940s, companies such as General Motors, Bendix Corporation, the S.K. Wellman Company and Raybestos-Manhattan, Inc, all obtained patents for asbestos-free brake linings. Metallic (non- asbestos) brake linings were also used in German-made automobiles prior to and during World War IL. Asbestos-Free Brake Linings for Vehicles in the 1950s 23. Asbestos-free brake linings were on the rise in the 1950s. For example, the Bendix Corporation manufactured, marketed and sold asbestos-free brakes for trucks as carly as 1956. Bendix brand cera-metallic (non-asbestos) brake shoe linings were also offered for use on the rear brakes of the 1958 Chevrolet Corvette. 24, Bendix cera-metallic rear-drum brake linings were replaced as an option in the 1959 Corvette by sintered metallic lining pads from Moraine/Delco-Moraine. Although the Moraine linings are called “pads,” multiple, separate pads were affixed to the brake shoe to actually form a lining over the brake shoe’s metal surface. 25. As another example of non-asbestos containing brakes on the market in the 1950s, sintered-iron brake shoe linings were available from 1957 through the 1960s models of the Corvette Sting Ray. Asbestos-Free Brake Linings in the 1960s and 1970s 26. Non-asbestos sintered (powdered) metallic linings have been available for use on automobiles as a friction element since the 1940s through present. However, their presence on the United States market increased significantly during the early 1960s. On July 19, 1960, General Motors was assigned U.S. Patent No. 2,945,291 relating to sintered iron friction members for use as clutches, brakes and the like. Sintered iron brake shoe linings were available for use throughout the late 1950s to the present and were in fact OEM options used on General Motors’ Chevrolet Corvette brakes in the late 1950s and 1960s and on other GM vehicles -10- DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 101 West Broadway, Suite 2600 San Diego, CA 92101 through the 1960s and beyond. Further, sintered-iron brake shoe linings remained an option for 1963 Corvettes. 27, Sintered metallic brake shoe linings were available through and sold by General Motors throughout the 1960s into the 1970s. The availability of these metallic brake shoe linings is consistent with increase and popularity of the more powerful, performance muscle type cars that became popular during the 1960s and 1970s. General Motors offered its sintered metallic brake shoes as a regular production option and factory optional accessory throughout the 1960 and into the 1970s by way of its RPO (“regular production option”) 686 and later RPO J65 brake shoe linings for such vehicles. These brake shoes, while indicated available for all passenger vehicle models, were normally used on higher performance GM vehicles such as Impalas, Corvettes, Chevelles, Camaros, Pontiac GTO, bigger engine Oldsmobile models and similar models. 28. Sintered metal linings (non-asbestos) were also available as an OEM option and as an after-market product for use on Ford vehicles from at least 1965 and later, especially on their muscle or performance vehicles, including the Shelby Mustang G-350 and GT500 vehicles. These vehicles and the non-asbestos metallic brake linings were not just for racing use, but were available to the public through Ford dealerships and were even available for rent through Hertz, Rent-A-Car. 29. As early as 1961 and through the present day, sintered metallic brake linings were also commercially available under the tradenames Velvetouch and/or Velvetouch Metalik in the United States for use as an OEM and replacement brake shoe lining on light passenger vehicles and other vehicles. $.K. Wellman’s (and subsequent manufacturers using the tradename) Velvetouch and Velvetouch Metalik products are well known in the performance and muscle car industry, but were not and are not limited to such use. In a review published in 1962, Popular Mechanics described the product as non-asbestos brake shoe linings (“made of sintered iron powder and graphitic carbon, along with other inorganic friction-modifying additives”) fitting all popular passenger cars, including imports. In the article, the Velvetouch Metalik linings were purchased (i.e. commercially available) and then installed on a 1960 Ford Fairlane. These non- -li- DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTGordon & Rees LLP 101 West Broadway, Suite 2606 San Diego, CA 92101 asbestos containing Metalik brakes were also made to fit all models of 1972 Jeep-branded vehicles. Car. 30. Abex Corporation also manufactured and marketed non-asbestos, semi-metallic brake linings in the United States beginning in the 1960s. According to the Person Most Knowledgeable for Pneumo Abex LLC, Mr. Alberto Indelicato: (1) semi-metallic (non-asbestos) brake linings were manufactured and marketed by Abex in the 1960s and 1970s; (2) semi- metallic brake linings were sold in the 1960s and 1970s at NAPA Auto Parts Stores; and (3) Abex itself marketed the semi-metallic brake linings through product catalogs. Asbestos-Containing Brake Linings in the 1980s and 1990s 31. Throughout the 1980s and 1990s, asbestos-containing brake linings were largely phased out of the marketplace. In his book, Asbestos: Medical and Legal Aspecis, medical librarian Dr. Barry 1. Castleman details this occurrence with specific references to domestic and foreign car makers. The below are a few highlights from Dr. Castleman’s analysis of the available information on the issue: a. Raybestos-Manhattan, Inc. set forth a plan for eliminating asbestos from their products by 1982. db. General Motors planned to have asbestos-free drum brakes in all passenger cars and light trucks by the 1985 model year. c. By 1982, nearly all Saab vehicles contained asbestos-free brake linings. d. By 1982, “Metal Master” asbestos-free brakes were being offered “for dozens of different modets of cars by Audi, BMW, Fiat, Ford, Mercedes, Opel, Peugeot, Renault, Saab, Toyota, Volkswagen, Volvo and others.” Conclusion 32. Based upon my own personal experience and knowledge of non-asbestos metallic brakes as an automobile mechanic, automotive department service manager, automotive parts company manager and engineering research technician, as well as my review of the relevant documents set forth herein, it is my opinion, with certainty as a scientist and automobile mechanic, that non-asbestos metallic brake shoe linings were commercially available in the -12- DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENTSan Diego, CA 92101 Gordon & Rees LLP 101 West Broadway, Suite 2000 165636175435 408.1 we United States market at all relevant times to this case, and certainly after 1971, and that such brake shoe linings could be and were in fact ground on Ammco brake arcing machines. I declare under penalty of perjury under the laws of the State of California that all of the foregoing is true and correct. Executed November 3@, 2013, at El Dorada Hills, California Datel ©. bx ét, a Russell Darnell, Ph.D, Ed.D, MBA, BSE, CAL -13- DECLARATION OF RUSSELL DARNELL PH.D. IN SUPPORT OF DEFENDANT HENNESSY INDUSTRIES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT