Motion,Ex Parte: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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Dean Pollack, State Bar No. 176440
Raymond A. Greene, IIL, State Bar No. 131510 .
BURNHAM BROWN ELECTRONICALLY

A Professional Law Corporation .

P.O. Box 119 FILED.
Oakland, California 94604-0119 Superior Court of California,
we , County of San Francisco
1901 Harrison Street, 14th Floor NOV 29 2011
Oakland, California 94612 Clerk of the Court
Telephone: (510) 444-6800 BY: WILLIAM TRUPEK
Facsimile: (510) 835-6666. Deputy Clerk

Attomeys for Defendant
YORK INTERNATIONAL CORPORATION

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
CHARLES HUSBAND, ‘ , No, CGC-09-275098
Plaintiff, MOTION IN LIMENE NO, 1

v. DEFENDANT YORK
INTERNATIONAL CORPORATION’S.
ASBESTOS DEFENDANTS (B“P), MOTION IN LIMINE TO PROHIBIT
EVIDENCE AND ARGUMENT
Defendants. REGARDING ITS ALLEGED
LIABILITY FOR “AFFIXED” OR
“REPLACEMENT” PARTS

Date: November 15, 2011
Time: 9:30 a.m.

Dept.: 503

Judge: Hon. Teri L. Jackson

Complaint Filed: March 2, 2009
Trial Date: November 15, 2011

I INTRODUCTION
Defendant York International Corporation (“York”) hereby respectfully moves this Court

in limine for an order prohibiting Plaintiff Charles Husband (“Plaintiff”) from introducing
evidence or offering arguments regarding York's alleged liability for affixed or replacement

parts that were not designed, manufactured, supplied or installed by York. The court in Taylor

y. Elliot Turbomachinery Co.. Inc., 171 Cal. App. 4th 564, 576 (2009) held that equipment
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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO PROHIBIT EVIDENCE AND CGC-09-275098

ARGUMENT REGARDING ITS ALLEGED LIABILITY FOR “AFFIXED” OR “REPLACEMENT” PARTS,=

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manufacturers cannot be held liable for alleged defects in after affixed or replacement parts that
were not manufactured or supplied by the manufacturer. Accordingly, this motion is made on
the grounds that York is not legally responsible for after-affixed or internal/external replacement
parts allegedly used in association with its equipment that were manufactured and distributed by
third parties.

UU. = PERTINENT FACTS

Plaintiff claims he suffered physical injuries as a result of an alleged exposure to
asbestos. With regard to York, and as is relevant for purposes of this motion, Plaintiff claims he
was exposed to asbestos-containing component parts and materials, such as gaskets on York
and/or Frick air conditioning compressors while working weekends for his father’s business,
Whalen Engineering, from the late 1950’s to the early 1960°s. Plaintiff claims he had to wash,
clean and disassemble the compressors so he could eventually scrape asbestos-containing
gaskets off the units.

The plaintiff has stated that approximately 30% of the compressors he worked on during
this period were York brand while an additional 15% to 20% were Frick brand. Plaintiff did not
identify the manufacturer of many of the other gaskets or other parts he removed. (See Exhibit
A, plaintiff's deposition, p.81:1-5 and p.109:13-16.)

I. LEGAL ARGUMENT

A. Equipment Manufacturers Are Not Strictly Liable For Allegedly
Defective Affixed or Replacement Parts They Did Not Supply

A manufacturer cannot be held strictly liable for a plaintiff's exposure to asbestos
derived from asbestos-containing replacement parts that are used in conjunction with its product
but that it did not manufacture or supply. Taylor v, Elliott Turbomachinery Co. Ing., 171 Cal.
App. 4th 564 (2009). Specifically, in the context of strict liability, the Taylor court held that
equipment manufacturers have no duty to warn of dangers inherent in the asbestos-containing
materials used with their products that were manufactured and supplied by entities other than the
manufacturer. In addition, York cannot be held strictly liable to Plaintiff for any alleged design

or manufacturing defect associated with after affixed parts York did not manufacture or supply.

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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO PROHIBIT EVIDENCE AND. CGC-09-275098
ARGUMENT REGARDING ITS ALLEGED LIABILITY FOR “AFFIXED” OR “REPLACEMENT” PARTS:2. eo NY A Rh FF BN

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In Taylor, the court further acknowledged that:

[I]t would be inappropriate to impose strict liability on an entity that is not a part
of the manufacturing or marketing enterprise of the allegedly defective product
that caused the injury in question. Entities outside the original chain of
distribution of the allegedly defective product are not to be held strictly liable for
defects because imposing liability of them would serve none of the policies that
justify the doctrine.

Id, at 577 (citing Peterson v. Sup. Ct, 10 Cal, 4th 1185, 1188 (1995)).

Notwithstanding these liability limitations, it is anticipated that Plaintiff will argue, directly or
impliedly, that York should be liable with respect to exposures allegedly derived from gasket
materials affixed to or used in association with its products that were manufactured or supplied
by third parties. Thus, to the extent Plaintiff has failed to demonstrate that such materials were
original to any piece of York equipment at issue or that they were otherwise manufactured or
supplied by York, York cannot be held strictly liable.

Plaintiff has not presented admissible evidence that many of the gaskets or other parts he
removed at Whalen Engineering were manufactured or supplied by York. Pursuant to the rules
established in Taylor and elsewhere, testimony or argument directly alleging or inferring to such
gaskets as a part of York’s equipment or being the responsibility of York is irrelevant to York’s
liability, if any, and may prejudice York by confusing and misleading the jury as to its
responsibility for these after affixed parts. Accordingly, argument or testimony associating York
with such replacement parts should be excluded.

B. Equipment Manufacturers Are Not Negligent With Respect To
Allegedly Defective Replacement Parts They Did Not Manufacture
Or Supply

With regard to a theory of liability based on negligence, the Taylor court held similarly
as with respect to strict liability. The court determined that a defendant is not liable for failing to
warn of defects in another entity’s asbestos-containing products when the “allegedly culpable
conduct is the failure to warn of a danger arising from other manufacturer’s products...” Id. at
594 (emphasis added). The court further noted that “the conduct of the manufacturer and

suppliers of the asbestos-containing material...actually encountered” were “in the best position

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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO PROHIBIT EVIDENCE AND CGC-09-275098
ARGUMENT REGARDING ITS ALLEGED LIABILITY FOR “AFFIXED” OR “REPLACEMENT” PARTSVe oe AW A HR FF BW Pe

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to investigate and warn of the dangers posed by their products.” Id. at 395. The court noted that
the policy of preventing further harm would not be advanced by finding a party responsible for
failing to warn about the dangers of another manufacturer’s products because such parties would
have “no ability to control the types of products that were used with their equipment so long
after it was sold.” Id. Finally, the court held that imposing a duty to warn under these

circumstances was inappropriate because:

[d]efendants whose products happen to be used in conjunction with defective
products made or supplied by others could incur liability not only for their own
products, but also for every other product with which their product might
reasonably be used. The policy considerations that militate against imposition of
strict liability in this situation apply with equal force in the context of negligence.

Id. at 595-596.

In addition, an equipment manufacturer cannot be held liable under the theory that it
negligently designed or manufactured any asbestos-containing product that was used in
association with its equipment but that it did not manufacture or supply. Indeed, “{a]
manufacturer/seller of a product is under a duty to exercise reasonable care in its design so that it
can be safely used as intended by its buyer/consumer.” Williams v. Beechnut Nutrition Corp.,
185 Cal. App. 3d 135, 141 (1986) (emphasis added),

Accordingly, any argument or testimony alleging or inferring that York was negligent
with respect to exposures derived from after affixed or replacement parts it did not manufacture
or supply is equally irrelevant to the issue of York's potential liability. In addition, any such

testimony is potentially prejudicial and should, therefore, be excluded.

c. The Admission Of Evidence Regarding York’s Liability For
“Affixed” Or “Replacement” Parts Will Be Prejudicial To York
Pursuant To Evidence Code Section 352

Evidence Code section 352 provides the court discretion to exclude evidence “if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” As discussed above, York is not legally

responsible for affixed or replacement parts that were manufactured and distributed by third
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DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO PROHIBIT EVIDENCE AND CGC-09-275098,
ARGUMENT REGARDING ITS ALLEGED LIABILITY FOR “AFFIXED” OR “REPLACEMENT” PARTSCe a KDR He & HB NH

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parties. As such, the admission of such evidence would be unduly prejudicial and would create a
substantial danger of misleading the jury regarding York’s potential liability. Accordingly,
evidence of “affixed” or “replacement” parts should be excluded pursuant to Evidence Code

section 352.

Iv, CONCLUSION
For the foregoing reasons, York respectfully requests that this Court prohibit all attorneys
and witnesses from introducing evidence or making argument intended to establish York’s

alleged liability for “affixed” or “replacement” parts.

DATED: November » 2011 BURNHAM BROWN

By. Mou

RAYMOND A. GREENE, IIT

Attorneys for Defendant
YORK INTERNATIONAL CORPORATION

T1484

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‘DEF. YORK INTERNATIONAL CORPORATION'S MOTION IN LIMINE TO PROHIBIT EVIDENCE AND CGC-09-275098
ARGUMENT REGARDING 118 ALLEGED LIABILITY FOR “AFFIXED” OR “REPLACEMENT” PARTSRe: Charles Husband v. Asbestos Defendants (BP)
Court: San Francisco Superior Court
Action No: CGC-09-275098

PROOF OF SERVICE OF ELECTRONIC SERVICE

I declare that I am over the age of 18, not a party to the above-entitled action, and
am an employee of Burnham Brown whose business address is 1901 Harrison Street,
14% Floor, Oakland, Alameda County, California 94612 (mailing address: Post Office
Box 119, Oakland, California 94604).

On the date executed below, I electronically served the document(s) via
LexisNexis File & Serve described as:

DEFENDANT YORK INTERNATIONAL CORPORATION’S MOTION IN
LIMINE TO PROHIBIT EVIDENCE AND ARGUMENT REGARDING ITS
ALLEGED LIABILITY FOR “AFFIXED” OR “REPLACEMENT” PARTS

on recipients designated on the Transaction Receipt located on the LexisNexis File &
Serve website. I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct and was executed on November 29, 2011,
at Oakland, California.

‘Linda Andrew-Marshall

1040060

PROOF OF SERVICE CGC 09-275098