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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
May-04-2012 10:44 am
Case Number: CGC-09-275098
Filing Date: May-04-2012 10:44
Filed by: DANIAL LEMIRE
Juke Box: 001 Image: 03602564
ORDER
CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON
EXHIBITS
001C03602564
Instructions:
Please place this sheet on top of the document to be scanned.San Francisco County Soearier Court
MAY 4 ~ 2012
CLERK OF 76 COURT
BY:
Denty Glerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
MIYO BARLEY. as Wrongful Death Heir,
and as Successor-in-Interest to JACK
BARLEY, Deceased; and KENNETH
BARLEY, THERESA DILLABOUGH,
JOHN BARLEY, as Legal Heirs of JACK
BARLEY, Deceased,
Plaintiffs.
vs.
CRANE CO,; Defendants as Reflected on
Exhibit { attached to the Summary Complaint
herein; and DOES 1-8500.
JESSICA MILLER as Successor-in-Interest
to DALE BICKFORD, Deceased,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (B¢P)
RONALD HEVENER ,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BéP)
CHARLES HUSBAND,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (B¢P)
Case No. CGC:
07-274086
08-274601
08-274851
09-275098
AsbestosANTHONY PONTINO,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
TYRONE SNOW,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
LARRY LEE,
Plaintiff,
VS.
ASBESTOS DEFENDANTS (B¢P)
EMILIO VALDIVIA,
Plaintiff,
VS.
ASBESTOS DEFENDANTS (BéP)
CONNIE SOWELS,
Plaintiff,
VS,
ASBESTOS DEFENDANTS (BéeP)
TERRY DeCARLO,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (B¢P)
JAMES NASH,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (Bé¢P)
RONALD BUCKNER,
Plaintiff,
vs.
09-275165
09-275188
09-275220
09-275311
09-275312
09-275333
09-275414
10-275471
twASBESTOS DEFENDANTS (BéP)
ROBERT LINDSEY, SR.,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
JAMES GREELY,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
DONALD AMANTITE,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
CHARLES BURGIN, SR.,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (B¢P)
GARY MORRIS,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeéP)
GEORGE FOSTER,
Plaintiff,
V5.
ASBESTOS DEFENDANTS (Be¢P)
10-275492
10-275502
10-275506
10-275531
10-275625
10-275627
MEMORANDUM ORDER GRANTING IN
PART PLAINTIFFS’ MOTIONS TO
CONSOLIDATE
AND
SETTING CERTAIN DATES FOR
PRETRIAL SUBMISSIONSIntroduction
Plaintiffs have moved to consolidate (for trial) a series of cases into four groups. In what
I will term group one: Hevener, Lee, Valdivia, Nash, Lindsey and Amantite; in group two:
Husband, Pontino, Snow, DeCarlo, and Greeley. Group three would consist of Burgin, Buckner,
Morris and Foster, and group four would consist of Barley and Miller/Bickford.
J held over an hour and half of hearings on the motions on April 27, 2012. Counsel for
Oxnard indicated issues with service of the motions, and asked for time until May 1, 2012 to file
an opposition, and presented oral opposition at the hearing. The matters were all deemed
submitted as of May 1, 2012.
The cases at issue here all are included in the informal groupings created by plaintiffs’
counsel, i.e., groups Nos. 581, 582, 584, 591, 594 and 595. Certain cases within those groups
were not however the subject of the motions decided here, for a variety of reasons. Those cases
are Cicone (group 582); Pierce (group 591), Santa (group 594) and Harris (group 595).!
Below, in § J, ] discuss the consolidation motions. In § I, I set forth certain case
management and pretrial preparation orders, and set down a hearing for June 4, 2012 in
Department 503 of this Court.
I. Consolidation
A. General Discussion
The parties invoke Malcoim v. National Gypsum Co., 995 F.2d 346 (1993) and its now
classic eight factor test. (Malcolm was decided under the federal equivalent of our C.C.P. § 1048,
ie, F.R.C.P. 42(a).) The factors in brief are: commonality of worksite, similar occupations,similar exposure times, types of diseases, whether plaintiffs are living or not, status of discovery,
whether plaintiffs are represented by the same counsel, and type of cancer. These factors, and
the implied factor of jury confusion, are designed to order presentation on the two competing
interests presented by consolidation motions: efficiency and prejudice.
Typically (and understandably) the parties focus on the Malcolm factors that favor their
position, and brush off the significance of the others. So for example plaintiffs accurately note
that the plaintiffs have (at least at some times during their career) similar occupations; the same
disease (asbestosis); are all alive, the fact that discovery is done in al] cases and the case are
ready for trial; that the same law firm represents all of them, and that cancer is not a factor in all
cases. Defendants dismiss these latter factors as of only marginal relevance,” and concentrate on
the number of different worksites and jobs that would be involved in a consolidated action; and
of course these are Jegion. But they are legion whether a case is consolidated or not, because
even a single asbestos case normally involves a large number of defendants, types of exposure,
workplaces, and job descriptions. For example, Hevener sued about 62 defendants,’ and {228 of
his complaint lists about 35 locations of exposure. This is entirely typical. Even if by the time
of trial a single case might proceed only against a smal! fraction of the original defendants, under
Proposition 51 all exposures are relevant and routinely are the subject of evidence offered to the
jury by the then extant defendants as they seek to mitigate their share of any damages. Even
with a single plaintiff the jury would be asked to track scores of workplaces. products, types of
exposures, job descriptions and periods of exposure.
‘atthe hearing plaintiffs’ counsel indicated the omission was Harris from the motions was inadvertent, and she
intends to file a motion to add Harris to Ponting and its consolidated cases discussed below.
? Union Carbide (UCC) calls them “the most superficial and insubstantial aspects of the cases,” Opposition of Union
Carbide Corp. et al., at 2, signed April 19, 2012. One of the factors--type of cancer--is the same for all plaintiffs
(ie., none has cancer and all have the same disease, asbestos). UCC argues the factor is “irrelevant,” fd. at [2, rather
than adopting the other perfectly reasonable interpretation which is that it favors consolidation.For their part, plaintiffs provide tittle detail in their memoranda on the similarity of job
descriptions, and gloss over differences in work sites through the use of general term such as
‘shipyards’ and ‘industrial machinery’.
The governing statute C.C.P. § 1048 permits consolidation if there are common questions
of law or fact. No party can seriously dispute this here. All cases involve substantial evidence of
occupational exposure to asbestos, lung function, diagnosis of asbestosis, disease etiology, the
development of asbestosis, the mechanics of workplace exposure and industrial hygiene, and
‘substantial’ causation, among others. Regardless of the precise periods of exposure attributed to
specific defendants, at trial plaintiffs typically present state of the art testimony on all periods
through and beyond the 1970s. The same legal theories are pressed against the defendants.
Time spent on jury instructions will likely overlap completely, because the same legal issues are
likely to be discussed. The stunning similarity of the numerous defense in /imine motions filed
in one asbestos cases after another is a further symptom of common legal issues, and exemplifies
another area in which time efficiencies can be realized with consolidation. Plaintiffs will use
many of the same experts on the same issues in the cases presented for consolidation.’ The basic
predicate, then, concerning common questions of law and fact, is obviously present. So too
therefore the implied factor of efficiency: overlapping if not entirely congruent voir dire, in
limine motions, jury instructions, same plaintiff's firm, and many of the same experts—all these
strongly suggest efficiencies resulting from consolidation.
* This figure does not include all the federal military entities which also may have had a role in his exposure.
Hevener also ‘sued’ eight thousand five hundred doe defendants
* These experts will be offered to provide testimony on costs of past and future medical care (C. McDonald), state of
the art and exposure, epidemiology and industrial medicine (R. Cohen), behavior of and products containing
asbestos (C. Ay), economic, loss of wages, etc (B. Ben-Zion), and a pulmonologist. Other experts, such as Brody,
Bryer and others also appear on plaintiffs’ list with respect to all cases in e.g. in the Hevener set (group one).The sole remaining issue, then, is jury confusion and prejudice to the defendants who
oppose consolidation. The discussion above demonstrates that the relevant ‘prejudice’ and
confusion is probably not a function of multiple actors putatively responsible for a plaintiff's
illness;° rather, if anything it must be a function of the presence of multiple plaintiffs, for that is
the impact of consolidation in an asbestos case. It follows then that there is likely little or no
prejudice to the extent juries can keep separate the exposure histories of the plaintiffs.
It is worth spending just a short time on Malcolm itself, the case cited by most parties to
these consolidation motions. The trial court’s decision to consolidate was reversed because of a
truly extreme record: pretty much none of the eight factors was present. Six hundred cases were
consolidated (48 went to trial) on the basis of plaintiffs’ work in 40 power plants (among other
locations). Malcolm v. National Gypsum Co., 995 F.2d 346, 348 (2d Cir. 1993). Many cases
were probably not ready for trial, because the trial judge had allowed in third party and fourth
party entities just days before trial. /d at 348-349. Dead and living plaintiffs were involved, five
different plaintiffs’ firms, and various types of cancer were all at issue. E.g. id. at 352. Where
the Malcolm factors are generally met and far fewer plaintiffs are involved—say, five—issues
which appear intractable when 48 plaintiffs go to trial simply do not present the same risk of
prejudice. E.g., Inre Asbestos Litigation, 1998 WL 230950, 4 (S.D.N.Y.,1998) (citing
Malcolm); ACandS, Inc. v. Godwin, 340 Md. 334, 398, 667 A.2d 116, 147 (Md.,1995)(approving
six plaintiffs, 12 defendants, citing Malcolm).
* The number of even the named defendants constantly reduces as time to trial shortens. There is a Kabuki theatre-
like quality to these consolidation motions, to the extent the arguments are based on the multitude of defendants
allegedly in play. As we see below, two groups have already been reduced to a single case, mooting the
consolidation motion as to those groups. The court’s past experience strongly suggests that by the time of voir dire,
the number will be reduced further, and for reasons not entirely express, the cases are likely to resolve entirely just
after jury selection. Over the last 2 % years, of all the cases set for trial, about 23 cases in this Superior Court
actually went to jury selection, and less than half of those went to verdict.Varying time periods too were an issue in Malcolm. This was an issue because state of
the art evidence (relevant to when a given defendant would or would not know [or ought to
know] of the dangers of asbestos, or know how to take protective measures) might differ among
various defendants. For this to be a factor, a defendant would presumably show that the state of
the art evidence in a consolidated trial would be more confusing, or more varied, than at an
unconsolidated trial. If the defendants are already in the cases to be consolidated, or if the
relevant time periods are about the same or there is “substantial overlap among the exposure
periods of the Plaintiffs,” the consolidation may be immaterial. Ja re Asbestos Litigation, 1998
WL 230950, 5 (S.D.N.Y.,1998).
So too with the issue of direct versus indirect exposure. In Malcolm, both were involved,
a factor which contributed to the appellate reversal. But unless defendants establish that the
issues will be implicated in a consolidated trial but not in an unconsolidated trial, this factor
would appear unimportant. Jn re Asbestos Litigation, 1998 WL 230950, 4-5 (S.D.N.Y., 1998).
Again, both the ‘varying time period’ and ‘direct v. indirect exposure’ issues are usually a
function of multiple defendants, not (except incidentally) multiple consolidated plaintiffs.
Malcolm also approved consideration of worksites with the “primary” exposure, but was
unclear how the trial judge had handled this. 995 F.2d at 351. The truth is that the “primary”
site, in the sense of what occupies most of the time at trial, may in a practical sense vary
depending on which defendants are left in the case at the moment (and, as indicated above, the
parties may vary moment to moment). Aside from the issue of keeping track of various worksites
(which we may have in an unconsolidated action), common types of exposures may be as
suggestive of consolidation as common primary locations of exposure. That is, it may be
reasonable to consolidate cases brought by e.g., pipefitters where the means of exposure, types ofproducts at issue, and industrial hygiene issues are common, even if the pipefitters worked in
different locations.
It is instructive to recall the comments of the Second Circuit in Consorti v. Armstrong
World Industries, 72 F.3d 1003 (2d Cir. 1995)° which notes what a peculiar case Malcolm really
was, emphasizing the benefits of consolidation, rejecting the notion that the “incremental
addition of similar cases will reduce the jury's ability to understand and resolve the issues placed
before it,” 72 F.3d at 1007, noting the enormous benefits of a jury well educated about a wide
variety of exposures and conditions, id., and referring to the varied tools which can be used to
assist the jury to distinguish the parties and issues, 72 F.3d at 1008 -1009.
Finally, a word on burden on these sorts of motions. It is fair to impose on plaintiffs the
burden of establishing § 1048's basic predicates: common questions of law and/or fact. It seems
equally fair to impose on defendants the burden of showing prejudice: they are in the best
position to know those facts and voice the harm to them which comes from consolidation; and it
is difficult for plaintiffs to prove a negative other than by mere assertion.’ This assignment of
burden matters, because as we see below defendants suggestion of prejudice is often speculation.
+
B. Discussion of Specific Groups
Groups Three and Four
As a result of settlements groups three and four are now moot. Only Morris remains in
group three, and only Bare/y remains in group four.
“The Supreme Court vacated the judgment for reasons relating to an entirely unrelated issue. See Consorti v.
Owens-Corning Fiberglas Corp., 518 U.S. 1031 (1996), remanding in light of Gasperini v. Center for Humanities,
Inc, 518 US. 415 (1996).
” See generally commentary to Evid. C § 500; 1 Witkin, CALIFORNIA EVIDENCE 4th (2011 supp.) Burden, § 10, p.
49. Cf, Kropp v. Sterling Sav. & Loan Assn., 9 Cal.App.3d 1033, 1047 (1970)(burden to show prejudice on
appellant-party opposing consolidation).20
Group One
Amantite and Lee have resolved. In this group then we have Hevener (defendants
Amcord, Irwin Automotive, Lehigh and Union Carbide); Valdivia (Oxnard, Newton and Union
Carbide); Nash (Amcord, Lehigh, Merlex and Union Carbide) and Lindsey (Union Carbide).
Lehigh and Irwin joined Union Carbide’s opposition, which was filed also on behalf of Perini
(no longer retevant to these motions) and Merlex.
All plaintiffs are in the constructions fields, and all were exposed to construction related
materials; the defendants are makers and suppliers of such materials such as drywall, and stucco;
Union Carbide supplies the asbestos contents for some of those products. Valdivia and Nash both
had some exposure to friction products. Plaintiffs’ exposure to the construction trades though the
professions of e.g., drywaller, laborer, and plaster applicator came at varied but overlapping
periods- the 1950s and 1960s for Valdivia, Hevener for the same period, but also longer, into the
period applicable to Nash (1980s); and Lindsey for the same period (1960s and 1970s).
Union Carbide is in each of the cases, and notes that each plaintiff worked in
“residential/commercial construction sites,” Opposition at 9. But Union Carbide objects to
consolidation.® At argument, Union Carbide’s counsel took the position that consolidation is not
permitted where there are varied sources of exposure in the proposed cases. See also Opposition
at 10 (apparently suggesting requirement of ‘same products at same place”). Under this
reasoning, none of the consolidations proposed here could be permitted, nor would those
approved in for example Jn re Asbestos Litigation 1998 WL 230950, 4 (S.D.N.Y.,1998) (citing
Malcolm), Consorti v. Armstrong World Industries, 72 F.3d 1003 (2d Cir. 1995)(same), in re
Asbestos Litigation, 173 F.R.D. 81, 84 -85 (S.D.N.Y.,1997)(same); Zn re New York Asbestos
* Union Carbide seeks judicial notice in a footnote of its Opposition signed April 19, 2012. The request is vague (“to
the extent relevant”) and not in conformance with CRC 3.1113(1)(separate document). It is denied.26
27
Litg., 145 F.R.D. 644, 653 (S.D.N.Y. 1993)(same), ACandS, Inc. v. Godwin, 340 Md. 334, 398,
667 A.2d 116, 147 (Md.,1995)(same), etc.
Union Carbide also suggests different laws may apply to different cases. Opposition at
13. The suggestion, without any demonstration of its applicability in any of these cases, is not
useful. Union Carbide also speculates that “if” any plaintiff were employed by independent
contractors the analysis of liability would be more complex; and perhaps prejudice might flow if
other cases did not have such an aspect. /d. This suggestion, without demonstration of
applicability, too is not useful.
Hevener and Nash are made for each other: we have, in addition to all the other
commonalities referred to above, the overlap of three defendants; only Merlex is not common,
but Merlex makes no argument other than that presented by Union Carbide. Only Union Carbide
is implicated in Lindsey, and it is difficult to see how other defendants would be prejudiced if the
same jury decided Lindsey's claim, when those other defendants could not share liability.
This leaves Valdivia, where Union Carbide is again sued, but also Oxnard and Newton.
Newton filed no opposition to consolidation, leaving the remaining issue an examination of the
prejudice to Oxnard.
Oxnard argues that time will be spent on exposures to other entities products- for
example, time will be spent on friction products (Irwin Automotive, and others) that do not
concern Oxnard, a retail seller of construction materials, Oxnard Opposition signed May 1, 2012
at 4. This is so, and it would be so in an unconsolidated case: Valdivia was himself allegedly
exposed to friction products. Oxnard also notes disparate periods of exposure depending on the
products at issue; again, this is also true in an unconsolidated action. The only difference is that
in a consolidated action, the jury must distinguish the exposures on a per plaintiff basis, and thisdoes not appear insurmountable with four plaintiffs. Next on the matter of prejudice, Oxnard
suggests that Valdivia spent most of his time in Ventura county, as opposed to other plaintiffs
who worked in various places in the Bay Area. Opposition at 5. This is not of much moment, and
is far less relevant than the similarity of types of work and the means of exposure which all
plaintiffs appear to share to some extent”
Of more concern is Oxnard’s comment on the respective medical conditions of the
plaintiffs. Valdivia is assertedly asymptomatic, and presumably other plaintiffs are not, although
none of the memoranda submitted to me describes the actual discrepancies. Oxnard is concerned
that in a consolidated trial the jury might view obviously sick people who would not be on view
if Valdivia were tried separately. This, Oxnard suggests, would impermissibly suggest a course
of disease. But it might as well strongly favor Oxnard in the suggestion that Valdivia, unlike
other plaintiffs, does not suffer from disease. Oxnard also agrees that whether there are other
plaintiffs on view or not, experts will testify as to the expected course of disease.
In short, Oxnard’s concerns are founded on four matters of speculation: whether other
plaintiffs will actually appear at trial; whether the other plaintiffs are obviously more ill; whether
their condition will be attributable to asbestos (some plaintiffs will be described by defendants as
suffering from other diseases); and whether Oxnard will not in fact benefit from a relatively
healthy looking plaintiff. Oxnard’s specific complaint here-—-that the jury may conclude that
Valdivia’s asbestosis (assuming he has that disease) “will get worse,” Opposition at 6, is also
likely to be the subject of expert testimony in any event. On balance, the speculative harm
outlined by Oxnard does not rise to prejudice.
° Of even less moment are issues raised by Oxnard such as where people will sit in the courtroom.
-12-Group Two
This group now consist of three cases, Husband (582) (with defendants Union Carbide
and York), Pontino (with Likiber and Monterey Mechanical) and DeCarlo (with Auto Parts
Emporium). Union Carbide did not file an opposition in this group of cases. Monterey
Mechanical and Auto Parts, while they generally argue against consolidation, recognize the
common pipefitter profession in Pontino and DeCarlo, as well as the common exposure to
friction products, and suggest that if there is to be any consolidation, those two cases, but not
Husband, be consolidated.
Husband appears to have spent much of his time with drywall installation, and worked as
a carpenter, and equipment operator. While it is not possible to discern it from plaintiffs”
memorandum of points and authorities, the “Exhibit A” accompanying the motion suggests some
work by Husband in the proximity of pipefitters in the 1970s, perhaps including the period 1975-
76, but it is difficult to determine how extensive this work was. Plaintiffs’ memorandum also
argues that all plaintiffs were exposed to a variety of asbestos products associated with York,
Foster, and GE industrial machines, but without further detail, making it difficult to determine
the extent to which these exposures will predominate in any sense of the term.!°
Monterey makes two types of arguments: First that it will be confusing (and so
prejudicial) to have cases in which different medical histories and noneconomic damages will be
presented. Second, that it will be hampered in pressing certain defenses in a consolidated action:
i.e, the defenses that its contribution to exposure was not a substantial factor, that a plaintiff was
a “sophisticated user,” and state of the art.
"° As suggested above, exposures may predominate in the sense of being the focus of Hitigation involving the
defendants actually expected to appear at trial; a type of exposure may also predominate in the sense that much or
most of plaintiff's exposure over his life was associated with a specific type of occupation, and given Proposition 51
regardless of the defendants appearing at trial, we might expect substantial attention be given to that occupation.T take these in order. The first argument proves too much; if it were decisive, few
consolidations would ever be appropriate. I think it is reasonable to expect a jury to keep distinct
the medical histories and pain and suffering of at least a few plaintiffs with the same tools one
would use to keep distinct work histories.'’ See above, discussion of Consorti and In re New
York Asbestos Litg., 145 F.R.D. 644, 653 (S.D.N.Y. 1993)(benefits of having jury able to
compare multiple work sites).'
Monterey does not explain why its defenses will be hampered by consolidation: it
provides nothing on the evidence on the amount (or substantiality) of exposure to its products in
one case verses another; or that one plaintiff but not another might qualify as a sophisticated
user; or that the state of the art evidence, as it might be expected to come in one case, would in
some wise undermine Monterey in one case but not in another. Monterey’s arguments are only
speculation.
For its part, Auto Emporium only joined Ford’s opposition to consolation; Ford itself has
since settled out. It remains unclear which portions of Ford’s papers Auto Emporium believes
apply to its situation. I can only note that for reasons stated above Ford was plainly wrong when
it suggested there are no common questions of facts or law, and at least with respect to Pontino
and DeCario’s extensive pipefitter experience which assertedly led to asbestos exposure, Ford
was wrong when it suggested there were no “common practices,” Malcolm, 995 F.2d at 354.
Ford also speculated that a weak case will benefit from a strong consolidated case, without
suggesting which is which and why, and without explaining why a strong plaintiffs’ case might
not be weakened by a weak consolidated case. Ford also complained that it was the only
"' These are familiar to counsel: Separate binders and notes, groups of exhibits, and the like. See Consorti, 72 F.3d
at 1008-09.defendant accused on the basis of friction products, but it is clear that all the plaintiffs in this
group were allegedly exposed to asbestos containing friction products, and thus it is difficult to
see the assertedly prejudicial consequences of Ford’s (and I assume Auto Emporium’s)
argument.
In short, while there seems to be no good reason to include Husband," there is sufficient
commonality of issues as between Pontino and DeCarlo to support consolidation, and no
demonstration of prejudice from combining these two cases.
c. Conclusion
Four cases grouped for consolidation by plaintiffs including Hevener are consolidated for
trial, comprised of the cases titled Hevener, Valdivia, Nash and Lindsey.'* Two cases grouped
for consolidation by plaintiffs including Husband are consolidated for trial, comprised of the
cases titled Pontino and DeCarlo: the motion is denied as to Husband. The motions for
consolidation regarding Morris, Barley et al., are denied as moot.
II Pretrial Orders
For all cases the subject of the four motions to consolidate discussed above, and without
regard to whether the cases now have or have not been consolidated for trial, the following
deadline apply. These dates are the same because if one case or group of cases settles, the
asbestos case management Judge will send then next case or cases out for trial. At the direction
of the asbestos case management Judge:
° “Consolidation may even lead to a fairer result if it enables a jury to compare one worksite to another.” Inre
Asbestos Litigation, 1998 WL 230950, 4 (S.D.N.Y.,1998), citing /n re Asbestos Litig., 173 F.R.D. 81, 85
($.D.N.Y. 1997),
At argument plaintiffs’ counsel agreed the commonality involved little more than the similarity of work at
industrial sites generally.
* Asa last draft of this memorandum Order was in preparation, [ received a letter from plaintiff's counsel
informing the Court that Mr Lindsey has died. I have assumed the letter was copied to pertinent defense counsel,om NO
Deadlines for each of the (i) unconsolidated cases and (ii) consolidated cases:
* Inlimine motions. Parties should not file motions which, if presented with a notice from
the court under CCP § 127.8, would then be withdrawn,
o Due: June 1, 2012
* Deposition designations, counter designations and objections. Parties should confer on
the best manner in which to present these to the trial judge for rulings, which may be a
single document with a unique color to indicate each party’s designations and objections
o Due: June 1, 2012
¢ Results of meet and confer on Jury questionnaire. The parties should prepare a single
document with all questions listed, and indications of the parties’ objections
© Questionnaire due: June 1, 2012
© Witness list with time estimates and descriptions of testimony sufficiently detailed to
allow the trial judge to set time limits
o Due: June 1, 2012
¢ Estimated jury fees due for each case, or consolidated group of cases, estimated to be
measured by estimated eight week trials: Due June 1, 2012.
All parties must appear in Department 503 of this Court (Hon. T. Jackson) at 11:15 a.m,
June 4, 2012. for trial assignment that day.
4 ween
Curtis E.A, Karnow
Judge Of The Superior Court
Dated: May 3, 2012Superior Court of California
County of San Francisco
MIYO BARLEY, as Wrongful Death Heir,
and as Successor-in-Interest to JACK
BARLEY, Deceased: and KENNETH
BARLEY, THERESA DILLABOUGH,
JOHN BARLEY, as Legal Heirs of JACK
BARLEY, Deceased,
Plaintiffs,
vs.
CRANE CO.; Defendants as Reflected on
Exhibit 1 attached to the Summary Complaint
herein; and DOES 1-8500.
JESSICA MILLER as Successor-in-Interest
to DALE BICKFORD. Deceased,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
RONALD HEVENER ,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
CHARLES HUSBAND,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
ANTHONY PONTINO,
Plaintiff,
VS.
ASBESTOS DEFENDANTS (BeP)
TYRONE SNOW,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
Case No. CGC:
07-274086
08-274601
08-274851
09-275098
09-275165
09-275 188
AsbestosLARRY LEE.
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
EMILIO VALDIVIA,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
CONNIE SOWELS,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BoP)
TERRY DeCARLO,
Plaintiff.
vs.
ASBESTOS DEFENDANTS (BeP)
JAMES NASH,
Plaintiff,
VS.
ASBESTOS DEFENDANTS (BeP)
RONALD BUCKNER,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
ROBERT LINDSEY, SR.,
Plaintiff,
VS.
ASBESTOS DEFENDANTS (BeP)
JAMES GREELY,
Plaintiff,
vs.
09-275220
09-275311
09-275312
09-275333
09-275414
10-275471
10-275492
10-275502ASBESTOS DEFENDANTS (BeP)
DONALD AMANTITE,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
CHARLES BURGIN, SR.,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
GARY MORRIS,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BoP)
GEORGE FOSTER,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BeP)
10-275506
10-275531
10-275625
10-275627
CERTIFICATE OF ELECTRONIC
SERVICE
(CCP 1013(a) & CRC 2060(c))
1, Danial Lemire, a Deputy Clerk of the Superior Court of the County of San Francisco,
certify that I am not a party to the within action.
On May 4, 2012, I electronically served “memorandum order granting in part
plaintiffs’ motions to consolidate and setting certain dates for pretrial submissions” via
LexisNexis File & Serve on the recipients designated on the Transaction Receipt located on the
LexisNexis File & Serve website.
Dated: May 4, 2012
OF THEN! T,
Danial C&ntire, Deputy Clerk
Preview
DOO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet May-04-2012 10:44 am Case Number: CGC-09-275098 Filing Date: May-04-2012 10:44 Filed by: DANIAL LEMIRE Juke Box: 001 Image: 03602564 ORDER CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS 001C03602564 Instructions: Please place this sheet on top of the document to be scanned.San Francisco County Soearier Court MAY 4 ~ 2012 CLERK OF 76 COURT BY: Denty Glerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO MIYO BARLEY. as Wrongful Death Heir, and as Successor-in-Interest to JACK BARLEY, Deceased; and KENNETH BARLEY, THERESA DILLABOUGH, JOHN BARLEY, as Legal Heirs of JACK BARLEY, Deceased, Plaintiffs. vs. CRANE CO,; Defendants as Reflected on Exhibit { attached to the Summary Complaint herein; and DOES 1-8500. JESSICA MILLER as Successor-in-Interest to DALE BICKFORD, Deceased, Plaintiff, vs. ASBESTOS DEFENDANTS (B¢P) RONALD HEVENER , Plaintiff, vs. ASBESTOS DEFENDANTS (BéP) CHARLES HUSBAND, Plaintiff, vs. ASBESTOS DEFENDANTS (B¢P) Case No. CGC: 07-274086 08-274601 08-274851 09-275098 AsbestosANTHONY PONTINO, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) TYRONE SNOW, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) LARRY LEE, Plaintiff, VS. ASBESTOS DEFENDANTS (B¢P) EMILIO VALDIVIA, Plaintiff, VS. ASBESTOS DEFENDANTS (BéP) CONNIE SOWELS, Plaintiff, VS, ASBESTOS DEFENDANTS (BéeP) TERRY DeCARLO, Plaintiff, vs. ASBESTOS DEFENDANTS (B¢P) JAMES NASH, Plaintiff, vs. ASBESTOS DEFENDANTS (Bé¢P) RONALD BUCKNER, Plaintiff, vs. 09-275165 09-275188 09-275220 09-275311 09-275312 09-275333 09-275414 10-275471 twASBESTOS DEFENDANTS (BéP) ROBERT LINDSEY, SR., Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) JAMES GREELY, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) DONALD AMANTITE, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) CHARLES BURGIN, SR., Plaintiff, vs. ASBESTOS DEFENDANTS (B¢P) GARY MORRIS, Plaintiff, vs. ASBESTOS DEFENDANTS (BeéP) GEORGE FOSTER, Plaintiff, V5. ASBESTOS DEFENDANTS (Be¢P) 10-275492 10-275502 10-275506 10-275531 10-275625 10-275627 MEMORANDUM ORDER GRANTING IN PART PLAINTIFFS’ MOTIONS TO CONSOLIDATE AND SETTING CERTAIN DATES FOR PRETRIAL SUBMISSIONSIntroduction Plaintiffs have moved to consolidate (for trial) a series of cases into four groups. In what I will term group one: Hevener, Lee, Valdivia, Nash, Lindsey and Amantite; in group two: Husband, Pontino, Snow, DeCarlo, and Greeley. Group three would consist of Burgin, Buckner, Morris and Foster, and group four would consist of Barley and Miller/Bickford. J held over an hour and half of hearings on the motions on April 27, 2012. Counsel for Oxnard indicated issues with service of the motions, and asked for time until May 1, 2012 to file an opposition, and presented oral opposition at the hearing. The matters were all deemed submitted as of May 1, 2012. The cases at issue here all are included in the informal groupings created by plaintiffs’ counsel, i.e., groups Nos. 581, 582, 584, 591, 594 and 595. Certain cases within those groups were not however the subject of the motions decided here, for a variety of reasons. Those cases are Cicone (group 582); Pierce (group 591), Santa (group 594) and Harris (group 595).! Below, in § J, ] discuss the consolidation motions. In § I, I set forth certain case management and pretrial preparation orders, and set down a hearing for June 4, 2012 in Department 503 of this Court. I. Consolidation A. General Discussion The parties invoke Malcoim v. National Gypsum Co., 995 F.2d 346 (1993) and its now classic eight factor test. (Malcolm was decided under the federal equivalent of our C.C.P. § 1048, ie, F.R.C.P. 42(a).) The factors in brief are: commonality of worksite, similar occupations,similar exposure times, types of diseases, whether plaintiffs are living or not, status of discovery, whether plaintiffs are represented by the same counsel, and type of cancer. These factors, and the implied factor of jury confusion, are designed to order presentation on the two competing interests presented by consolidation motions: efficiency and prejudice. Typically (and understandably) the parties focus on the Malcolm factors that favor their position, and brush off the significance of the others. So for example plaintiffs accurately note that the plaintiffs have (at least at some times during their career) similar occupations; the same disease (asbestosis); are all alive, the fact that discovery is done in al] cases and the case are ready for trial; that the same law firm represents all of them, and that cancer is not a factor in all cases. Defendants dismiss these latter factors as of only marginal relevance,” and concentrate on the number of different worksites and jobs that would be involved in a consolidated action; and of course these are Jegion. But they are legion whether a case is consolidated or not, because even a single asbestos case normally involves a large number of defendants, types of exposure, workplaces, and job descriptions. For example, Hevener sued about 62 defendants,’ and {228 of his complaint lists about 35 locations of exposure. This is entirely typical. Even if by the time of trial a single case might proceed only against a smal! fraction of the original defendants, under Proposition 51 all exposures are relevant and routinely are the subject of evidence offered to the jury by the then extant defendants as they seek to mitigate their share of any damages. Even with a single plaintiff the jury would be asked to track scores of workplaces. products, types of exposures, job descriptions and periods of exposure. ‘atthe hearing plaintiffs’ counsel indicated the omission was Harris from the motions was inadvertent, and she intends to file a motion to add Harris to Ponting and its consolidated cases discussed below. ? Union Carbide (UCC) calls them “the most superficial and insubstantial aspects of the cases,” Opposition of Union Carbide Corp. et al., at 2, signed April 19, 2012. One of the factors--type of cancer--is the same for all plaintiffs (ie., none has cancer and all have the same disease, asbestos). UCC argues the factor is “irrelevant,” fd. at [2, rather than adopting the other perfectly reasonable interpretation which is that it favors consolidation.For their part, plaintiffs provide tittle detail in their memoranda on the similarity of job descriptions, and gloss over differences in work sites through the use of general term such as ‘shipyards’ and ‘industrial machinery’. The governing statute C.C.P. § 1048 permits consolidation if there are common questions of law or fact. No party can seriously dispute this here. All cases involve substantial evidence of occupational exposure to asbestos, lung function, diagnosis of asbestosis, disease etiology, the development of asbestosis, the mechanics of workplace exposure and industrial hygiene, and ‘substantial’ causation, among others. Regardless of the precise periods of exposure attributed to specific defendants, at trial plaintiffs typically present state of the art testimony on all periods through and beyond the 1970s. The same legal theories are pressed against the defendants. Time spent on jury instructions will likely overlap completely, because the same legal issues are likely to be discussed. The stunning similarity of the numerous defense in /imine motions filed in one asbestos cases after another is a further symptom of common legal issues, and exemplifies another area in which time efficiencies can be realized with consolidation. Plaintiffs will use many of the same experts on the same issues in the cases presented for consolidation.’ The basic predicate, then, concerning common questions of law and fact, is obviously present. So too therefore the implied factor of efficiency: overlapping if not entirely congruent voir dire, in limine motions, jury instructions, same plaintiff's firm, and many of the same experts—all these strongly suggest efficiencies resulting from consolidation. * This figure does not include all the federal military entities which also may have had a role in his exposure. Hevener also ‘sued’ eight thousand five hundred doe defendants * These experts will be offered to provide testimony on costs of past and future medical care (C. McDonald), state of the art and exposure, epidemiology and industrial medicine (R. Cohen), behavior of and products containing asbestos (C. Ay), economic, loss of wages, etc (B. Ben-Zion), and a pulmonologist. Other experts, such as Brody, Bryer and others also appear on plaintiffs’ list with respect to all cases in e.g. in the Hevener set (group one).The sole remaining issue, then, is jury confusion and prejudice to the defendants who oppose consolidation. The discussion above demonstrates that the relevant ‘prejudice’ and confusion is probably not a function of multiple actors putatively responsible for a plaintiff's illness;° rather, if anything it must be a function of the presence of multiple plaintiffs, for that is the impact of consolidation in an asbestos case. It follows then that there is likely little or no prejudice to the extent juries can keep separate the exposure histories of the plaintiffs. It is worth spending just a short time on Malcolm itself, the case cited by most parties to these consolidation motions. The trial court’s decision to consolidate was reversed because of a truly extreme record: pretty much none of the eight factors was present. Six hundred cases were consolidated (48 went to trial) on the basis of plaintiffs’ work in 40 power plants (among other locations). Malcolm v. National Gypsum Co., 995 F.2d 346, 348 (2d Cir. 1993). Many cases were probably not ready for trial, because the trial judge had allowed in third party and fourth party entities just days before trial. /d at 348-349. Dead and living plaintiffs were involved, five different plaintiffs’ firms, and various types of cancer were all at issue. E.g. id. at 352. Where the Malcolm factors are generally met and far fewer plaintiffs are involved—say, five—issues which appear intractable when 48 plaintiffs go to trial simply do not present the same risk of prejudice. E.g., Inre Asbestos Litigation, 1998 WL 230950, 4 (S.D.N.Y.,1998) (citing Malcolm); ACandS, Inc. v. Godwin, 340 Md. 334, 398, 667 A.2d 116, 147 (Md.,1995)(approving six plaintiffs, 12 defendants, citing Malcolm). * The number of even the named defendants constantly reduces as time to trial shortens. There is a Kabuki theatre- like quality to these consolidation motions, to the extent the arguments are based on the multitude of defendants allegedly in play. As we see below, two groups have already been reduced to a single case, mooting the consolidation motion as to those groups. The court’s past experience strongly suggests that by the time of voir dire, the number will be reduced further, and for reasons not entirely express, the cases are likely to resolve entirely just after jury selection. Over the last 2 % years, of all the cases set for trial, about 23 cases in this Superior Court actually went to jury selection, and less than half of those went to verdict.Varying time periods too were an issue in Malcolm. This was an issue because state of the art evidence (relevant to when a given defendant would or would not know [or ought to know] of the dangers of asbestos, or know how to take protective measures) might differ among various defendants. For this to be a factor, a defendant would presumably show that the state of the art evidence in a consolidated trial would be more confusing, or more varied, than at an unconsolidated trial. If the defendants are already in the cases to be consolidated, or if the relevant time periods are about the same or there is “substantial overlap among the exposure periods of the Plaintiffs,” the consolidation may be immaterial. Ja re Asbestos Litigation, 1998 WL 230950, 5 (S.D.N.Y.,1998). So too with the issue of direct versus indirect exposure. In Malcolm, both were involved, a factor which contributed to the appellate reversal. But unless defendants establish that the issues will be implicated in a consolidated trial but not in an unconsolidated trial, this factor would appear unimportant. Jn re Asbestos Litigation, 1998 WL 230950, 4-5 (S.D.N.Y., 1998). Again, both the ‘varying time period’ and ‘direct v. indirect exposure’ issues are usually a function of multiple defendants, not (except incidentally) multiple consolidated plaintiffs. Malcolm also approved consideration of worksites with the “primary” exposure, but was unclear how the trial judge had handled this. 995 F.2d at 351. The truth is that the “primary” site, in the sense of what occupies most of the time at trial, may in a practical sense vary depending on which defendants are left in the case at the moment (and, as indicated above, the parties may vary moment to moment). Aside from the issue of keeping track of various worksites (which we may have in an unconsolidated action), common types of exposures may be as suggestive of consolidation as common primary locations of exposure. That is, it may be reasonable to consolidate cases brought by e.g., pipefitters where the means of exposure, types ofproducts at issue, and industrial hygiene issues are common, even if the pipefitters worked in different locations. It is instructive to recall the comments of the Second Circuit in Consorti v. Armstrong World Industries, 72 F.3d 1003 (2d Cir. 1995)° which notes what a peculiar case Malcolm really was, emphasizing the benefits of consolidation, rejecting the notion that the “incremental addition of similar cases will reduce the jury's ability to understand and resolve the issues placed before it,” 72 F.3d at 1007, noting the enormous benefits of a jury well educated about a wide variety of exposures and conditions, id., and referring to the varied tools which can be used to assist the jury to distinguish the parties and issues, 72 F.3d at 1008 -1009. Finally, a word on burden on these sorts of motions. It is fair to impose on plaintiffs the burden of establishing § 1048's basic predicates: common questions of law and/or fact. It seems equally fair to impose on defendants the burden of showing prejudice: they are in the best position to know those facts and voice the harm to them which comes from consolidation; and it is difficult for plaintiffs to prove a negative other than by mere assertion.’ This assignment of burden matters, because as we see below defendants suggestion of prejudice is often speculation. + B. Discussion of Specific Groups Groups Three and Four As a result of settlements groups three and four are now moot. Only Morris remains in group three, and only Bare/y remains in group four. “The Supreme Court vacated the judgment for reasons relating to an entirely unrelated issue. See Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031 (1996), remanding in light of Gasperini v. Center for Humanities, Inc, 518 US. 415 (1996). ” See generally commentary to Evid. C § 500; 1 Witkin, CALIFORNIA EVIDENCE 4th (2011 supp.) Burden, § 10, p. 49. Cf, Kropp v. Sterling Sav. & Loan Assn., 9 Cal.App.3d 1033, 1047 (1970)(burden to show prejudice on appellant-party opposing consolidation).20 Group One Amantite and Lee have resolved. In this group then we have Hevener (defendants Amcord, Irwin Automotive, Lehigh and Union Carbide); Valdivia (Oxnard, Newton and Union Carbide); Nash (Amcord, Lehigh, Merlex and Union Carbide) and Lindsey (Union Carbide). Lehigh and Irwin joined Union Carbide’s opposition, which was filed also on behalf of Perini (no longer retevant to these motions) and Merlex. All plaintiffs are in the constructions fields, and all were exposed to construction related materials; the defendants are makers and suppliers of such materials such as drywall, and stucco; Union Carbide supplies the asbestos contents for some of those products. Valdivia and Nash both had some exposure to friction products. Plaintiffs’ exposure to the construction trades though the professions of e.g., drywaller, laborer, and plaster applicator came at varied but overlapping periods- the 1950s and 1960s for Valdivia, Hevener for the same period, but also longer, into the period applicable to Nash (1980s); and Lindsey for the same period (1960s and 1970s). Union Carbide is in each of the cases, and notes that each plaintiff worked in “residential/commercial construction sites,” Opposition at 9. But Union Carbide objects to consolidation.® At argument, Union Carbide’s counsel took the position that consolidation is not permitted where there are varied sources of exposure in the proposed cases. See also Opposition at 10 (apparently suggesting requirement of ‘same products at same place”). Under this reasoning, none of the consolidations proposed here could be permitted, nor would those approved in for example Jn re Asbestos Litigation 1998 WL 230950, 4 (S.D.N.Y.,1998) (citing Malcolm), Consorti v. Armstrong World Industries, 72 F.3d 1003 (2d Cir. 1995)(same), in re Asbestos Litigation, 173 F.R.D. 81, 84 -85 (S.D.N.Y.,1997)(same); Zn re New York Asbestos * Union Carbide seeks judicial notice in a footnote of its Opposition signed April 19, 2012. The request is vague (“to the extent relevant”) and not in conformance with CRC 3.1113(1)(separate document). It is denied.26 27 Litg., 145 F.R.D. 644, 653 (S.D.N.Y. 1993)(same), ACandS, Inc. v. Godwin, 340 Md. 334, 398, 667 A.2d 116, 147 (Md.,1995)(same), etc. Union Carbide also suggests different laws may apply to different cases. Opposition at 13. The suggestion, without any demonstration of its applicability in any of these cases, is not useful. Union Carbide also speculates that “if” any plaintiff were employed by independent contractors the analysis of liability would be more complex; and perhaps prejudice might flow if other cases did not have such an aspect. /d. This suggestion, without demonstration of applicability, too is not useful. Hevener and Nash are made for each other: we have, in addition to all the other commonalities referred to above, the overlap of three defendants; only Merlex is not common, but Merlex makes no argument other than that presented by Union Carbide. Only Union Carbide is implicated in Lindsey, and it is difficult to see how other defendants would be prejudiced if the same jury decided Lindsey's claim, when those other defendants could not share liability. This leaves Valdivia, where Union Carbide is again sued, but also Oxnard and Newton. Newton filed no opposition to consolidation, leaving the remaining issue an examination of the prejudice to Oxnard. Oxnard argues that time will be spent on exposures to other entities products- for example, time will be spent on friction products (Irwin Automotive, and others) that do not concern Oxnard, a retail seller of construction materials, Oxnard Opposition signed May 1, 2012 at 4. This is so, and it would be so in an unconsolidated case: Valdivia was himself allegedly exposed to friction products. Oxnard also notes disparate periods of exposure depending on the products at issue; again, this is also true in an unconsolidated action. The only difference is that in a consolidated action, the jury must distinguish the exposures on a per plaintiff basis, and thisdoes not appear insurmountable with four plaintiffs. Next on the matter of prejudice, Oxnard suggests that Valdivia spent most of his time in Ventura county, as opposed to other plaintiffs who worked in various places in the Bay Area. Opposition at 5. This is not of much moment, and is far less relevant than the similarity of types of work and the means of exposure which all plaintiffs appear to share to some extent” Of more concern is Oxnard’s comment on the respective medical conditions of the plaintiffs. Valdivia is assertedly asymptomatic, and presumably other plaintiffs are not, although none of the memoranda submitted to me describes the actual discrepancies. Oxnard is concerned that in a consolidated trial the jury might view obviously sick people who would not be on view if Valdivia were tried separately. This, Oxnard suggests, would impermissibly suggest a course of disease. But it might as well strongly favor Oxnard in the suggestion that Valdivia, unlike other plaintiffs, does not suffer from disease. Oxnard also agrees that whether there are other plaintiffs on view or not, experts will testify as to the expected course of disease. In short, Oxnard’s concerns are founded on four matters of speculation: whether other plaintiffs will actually appear at trial; whether the other plaintiffs are obviously more ill; whether their condition will be attributable to asbestos (some plaintiffs will be described by defendants as suffering from other diseases); and whether Oxnard will not in fact benefit from a relatively healthy looking plaintiff. Oxnard’s specific complaint here-—-that the jury may conclude that Valdivia’s asbestosis (assuming he has that disease) “will get worse,” Opposition at 6, is also likely to be the subject of expert testimony in any event. On balance, the speculative harm outlined by Oxnard does not rise to prejudice. ° Of even less moment are issues raised by Oxnard such as where people will sit in the courtroom. -12-Group Two This group now consist of three cases, Husband (582) (with defendants Union Carbide and York), Pontino (with Likiber and Monterey Mechanical) and DeCarlo (with Auto Parts Emporium). Union Carbide did not file an opposition in this group of cases. Monterey Mechanical and Auto Parts, while they generally argue against consolidation, recognize the common pipefitter profession in Pontino and DeCarlo, as well as the common exposure to friction products, and suggest that if there is to be any consolidation, those two cases, but not Husband, be consolidated. Husband appears to have spent much of his time with drywall installation, and worked as a carpenter, and equipment operator. While it is not possible to discern it from plaintiffs” memorandum of points and authorities, the “Exhibit A” accompanying the motion suggests some work by Husband in the proximity of pipefitters in the 1970s, perhaps including the period 1975- 76, but it is difficult to determine how extensive this work was. Plaintiffs’ memorandum also argues that all plaintiffs were exposed to a variety of asbestos products associated with York, Foster, and GE industrial machines, but without further detail, making it difficult to determine the extent to which these exposures will predominate in any sense of the term.!° Monterey makes two types of arguments: First that it will be confusing (and so prejudicial) to have cases in which different medical histories and noneconomic damages will be presented. Second, that it will be hampered in pressing certain defenses in a consolidated action: i.e, the defenses that its contribution to exposure was not a substantial factor, that a plaintiff was a “sophisticated user,” and state of the art. "° As suggested above, exposures may predominate in the sense of being the focus of Hitigation involving the defendants actually expected to appear at trial; a type of exposure may also predominate in the sense that much or most of plaintiff's exposure over his life was associated with a specific type of occupation, and given Proposition 51 regardless of the defendants appearing at trial, we might expect substantial attention be given to that occupation.T take these in order. The first argument proves too much; if it were decisive, few consolidations would ever be appropriate. I think it is reasonable to expect a jury to keep distinct the medical histories and pain and suffering of at least a few plaintiffs with the same tools one would use to keep distinct work histories.'’ See above, discussion of Consorti and In re New York Asbestos Litg., 145 F.R.D. 644, 653 (S.D.N.Y. 1993)(benefits of having jury able to compare multiple work sites).' Monterey does not explain why its defenses will be hampered by consolidation: it provides nothing on the evidence on the amount (or substantiality) of exposure to its products in one case verses another; or that one plaintiff but not another might qualify as a sophisticated user; or that the state of the art evidence, as it might be expected to come in one case, would in some wise undermine Monterey in one case but not in another. Monterey’s arguments are only speculation. For its part, Auto Emporium only joined Ford’s opposition to consolation; Ford itself has since settled out. It remains unclear which portions of Ford’s papers Auto Emporium believes apply to its situation. I can only note that for reasons stated above Ford was plainly wrong when it suggested there are no common questions of facts or law, and at least with respect to Pontino and DeCario’s extensive pipefitter experience which assertedly led to asbestos exposure, Ford was wrong when it suggested there were no “common practices,” Malcolm, 995 F.2d at 354. Ford also speculated that a weak case will benefit from a strong consolidated case, without suggesting which is which and why, and without explaining why a strong plaintiffs’ case might not be weakened by a weak consolidated case. Ford also complained that it was the only "' These are familiar to counsel: Separate binders and notes, groups of exhibits, and the like. See Consorti, 72 F.3d at 1008-09.defendant accused on the basis of friction products, but it is clear that all the plaintiffs in this group were allegedly exposed to asbestos containing friction products, and thus it is difficult to see the assertedly prejudicial consequences of Ford’s (and I assume Auto Emporium’s) argument. In short, while there seems to be no good reason to include Husband," there is sufficient commonality of issues as between Pontino and DeCarlo to support consolidation, and no demonstration of prejudice from combining these two cases. c. Conclusion Four cases grouped for consolidation by plaintiffs including Hevener are consolidated for trial, comprised of the cases titled Hevener, Valdivia, Nash and Lindsey.'* Two cases grouped for consolidation by plaintiffs including Husband are consolidated for trial, comprised of the cases titled Pontino and DeCarlo: the motion is denied as to Husband. The motions for consolidation regarding Morris, Barley et al., are denied as moot. II Pretrial Orders For all cases the subject of the four motions to consolidate discussed above, and without regard to whether the cases now have or have not been consolidated for trial, the following deadline apply. These dates are the same because if one case or group of cases settles, the asbestos case management Judge will send then next case or cases out for trial. At the direction of the asbestos case management Judge: ° “Consolidation may even lead to a fairer result if it enables a jury to compare one worksite to another.” Inre Asbestos Litigation, 1998 WL 230950, 4 (S.D.N.Y.,1998), citing /n re Asbestos Litig., 173 F.R.D. 81, 85 ($.D.N.Y. 1997), At argument plaintiffs’ counsel agreed the commonality involved little more than the similarity of work at industrial sites generally. * Asa last draft of this memorandum Order was in preparation, [ received a letter from plaintiff's counsel informing the Court that Mr Lindsey has died. I have assumed the letter was copied to pertinent defense counsel,om NO Deadlines for each of the (i) unconsolidated cases and (ii) consolidated cases: * Inlimine motions. Parties should not file motions which, if presented with a notice from the court under CCP § 127.8, would then be withdrawn, o Due: June 1, 2012 * Deposition designations, counter designations and objections. Parties should confer on the best manner in which to present these to the trial judge for rulings, which may be a single document with a unique color to indicate each party’s designations and objections o Due: June 1, 2012 ¢ Results of meet and confer on Jury questionnaire. The parties should prepare a single document with all questions listed, and indications of the parties’ objections © Questionnaire due: June 1, 2012 © Witness list with time estimates and descriptions of testimony sufficiently detailed to allow the trial judge to set time limits o Due: June 1, 2012 ¢ Estimated jury fees due for each case, or consolidated group of cases, estimated to be measured by estimated eight week trials: Due June 1, 2012. All parties must appear in Department 503 of this Court (Hon. T. Jackson) at 11:15 a.m, June 4, 2012. for trial assignment that day. 4 ween Curtis E.A, Karnow Judge Of The Superior Court Dated: May 3, 2012Superior Court of California County of San Francisco MIYO BARLEY, as Wrongful Death Heir, and as Successor-in-Interest to JACK BARLEY, Deceased: and KENNETH BARLEY, THERESA DILLABOUGH, JOHN BARLEY, as Legal Heirs of JACK BARLEY, Deceased, Plaintiffs, vs. CRANE CO.; Defendants as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500. JESSICA MILLER as Successor-in-Interest to DALE BICKFORD. Deceased, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) RONALD HEVENER , Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) CHARLES HUSBAND, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) ANTHONY PONTINO, Plaintiff, VS. ASBESTOS DEFENDANTS (BeP) TYRONE SNOW, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) Case No. CGC: 07-274086 08-274601 08-274851 09-275098 09-275165 09-275 188 AsbestosLARRY LEE. Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) EMILIO VALDIVIA, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) CONNIE SOWELS, Plaintiff, vs. ASBESTOS DEFENDANTS (BoP) TERRY DeCARLO, Plaintiff. vs. ASBESTOS DEFENDANTS (BeP) JAMES NASH, Plaintiff, VS. ASBESTOS DEFENDANTS (BeP) RONALD BUCKNER, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) ROBERT LINDSEY, SR., Plaintiff, VS. ASBESTOS DEFENDANTS (BeP) JAMES GREELY, Plaintiff, vs. 09-275220 09-275311 09-275312 09-275333 09-275414 10-275471 10-275492 10-275502ASBESTOS DEFENDANTS (BeP) DONALD AMANTITE, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) CHARLES BURGIN, SR., Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) GARY MORRIS, Plaintiff, vs. ASBESTOS DEFENDANTS (BoP) GEORGE FOSTER, Plaintiff, vs. ASBESTOS DEFENDANTS (BeP) 10-275506 10-275531 10-275625 10-275627 CERTIFICATE OF ELECTRONIC SERVICE (CCP 1013(a) & CRC 2060(c)) 1, Danial Lemire, a Deputy Clerk of the Superior Court of the County of San Francisco, certify that I am not a party to the within action. On May 4, 2012, I electronically served “memorandum order granting in part plaintiffs’ motions to consolidate and setting certain dates for pretrial submissions” via LexisNexis File & Serve on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. Dated: May 4, 2012 OF THEN! T, Danial C&ntire, Deputy Clerk