Motion-Secondary: NORMAN CARVETH VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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PO BOX 6159
NOVATO, CALIFORNIA 94948-6169
(415) 898.1555

ATTORNEYS ATLAW
222 RUSH LANDING ROAD

BRAYTON®PURCELL LLP
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ALAN R. BRAYTON, ESQ., 8.B. #73685
DAVID R. DONADIO, ESQ., S.B. #154436

ANNE T. ACUNA, ESQ., 8.B. #245369 ELECTRONICALLY
BRAYTON%PURCELL LLP FILED
Attomeys at Law Superior Court of California,
222 Rusa Landing Road Lis avons
.O. Box
Novato, California 94948-6169 JAN 28 2010
(415) 898-1555 GORDON PARK-LI, Clerk
Tentative Ruling Contest Email: contestasbestos TR @braytonlaw.com BY: ANNIE PASCUAL clerk
eputy Cle

Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

NORMAN CARVETH, ) ASBESTOS
} No. CGC-08-274677
’ Plaintiff,
) | PLAINTIFF’S SEPARATE STATEMENT
vs. OF DISPUTED MATERIAL FACTS IN
OPPOSITION TO DEFENDANT
ASBESTOS DEFENDANTS (BP) ) CUMMINS INC.’S MOTION FOR

SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY
ADJUDICATION

Date: February 11, 2010

Time: 9:30 a.m.

Dept: 220, Hon. Harold E. Kahn

Trial Date: March 15, 2016

Action Filed: May 29, 2008

Pursuant to California Code of Civil Procedure § 437c(b), plaintiff submits the following

Separate Statement of Disputed Material Facts in Opposition to Defendant CUMMINS INC.’s
Motion for Summary Judgment or, in the alternative, Summary Adjudication.

PLAINTIFF’S DISPUTED

MATERIAL FACTS SUPPORTING EVIDENCE

1. Plaintiff, NORMAN CARVETH, 1. Deposition of Norman Carveth at 62:18-

worked as a mechanic for the Maintenance 25; 64:10-25; 73:10-20; attached as

Department of Keokuk Electro Metals Exhibit A to the Declaration of Anne T,

(Keokuk) in Rock Island, Washington, Acufia; Declaration of Norman Carveth,
yom 1950 to 1959. His job duties included attached as Exhibit B to the Acufia Decl. at

performing mechanical repairs and q3-

maintenance on various equipment,
furnaces, forklifts and trucks.

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PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CUMMINS INC."S.
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONCw NM DA UH BR BW LH

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2. Mr. CARVETH rebuilt two diesel
engines at Keokuk, which involved the
removal and replacement of engine head
gaskets, Each engine overhaul took
approximately one to two weeks. That
work was performed in an enclosed
maintenance shop that was 40 feet by 40
feet in dimension, with 12 foot ceilings,
without nmch ventilation.

3. Mr. CARVETH did not wear a mask or
any respiratory protection during his work
at Keokuk.

4. When installing engine head gaskets, it
was part of his usual practice to trim the
edges of the gasket material with a metal
file to make sure that the gaskets fit
properly onto the gasket surface. Tt is more

ikely than not that Mr. CARVETH did that
during the two. engine overhauls he
performed at Keokuk. In doing that work,
some dust was generated. Mr. CARVETH
was able to feel the dust on his fingertips
when he handled the gaskets.

5. All of the replacement parts for the
diesel engines Mr. CARVETH rebuilt at
Keokuk, including the asbestos-containing
head gaskets, came from a Cummins Diesel
dealership in Wenatchee, Washington,
approximately 10 miles from Keokuk.

6. Athis deposition, Mr. CARVETH was
never asked how he knew that the
replacement engine head gaskets came from
Cummins Diesel in Wenatchee. He was
also not asked any questions about the
packaging of the new gaskets that he

andled and installed onto the two diesel
engines at Keokuk. Mr. CARVETH was
only asked whether he personally ordered or
picked up parts from Cummins Diesel in
‘Wenatchee or whether he had ever spoken
with anyone employed by Cummins.

7. Had Mr. CARVETH been asked how he
knew that the replacement gaskets for the
two diesel engines he rebuilt at Keokuk
were from Cummins Diesel in Wenatchee,
he would have testified that he gained that
knowledge not only from his conversations
with his co-workers who ordered and
picked up the parts from Keokuk

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2. Deposition of Norman Carveth at 65:1-
6; 66:1-2; 66:11-18; 67:6-10; 71:1-19; 77:9-
24; 78:25-79:6; 80:17-81:25; attached as
Exhibit A to the Declaration of Anne T.
Acufia; Declaration of Norman Carveth,
attached as Exhibit B to the Acufia Decl. at

4q4.

3. Deposition of Norman Carveth at 71:1-
7; attached as Exhibit A to the Declaration
of Anne T. Acufia; Declaration of Norman
Carveth, attached as Exhibit B to the Acufia
Decl. at € 4. .

4. Declaration of Norman Catveth,
attached as Exhibit B to the Acufia Decl. at

q8.

5. Deposition of Norman Carveth at 65:10-
23; 76:7-133 77:9-24; 19:14-17, 79:20-22:
82:4-1Sattached as Exhibit A to the
Declaration of Anne T. Acufia; Declaration
of Norman Carveth, attached as Exhibit B
to the Acufia Decl. at 4 5. :

6. Deposition of Norman Carveth at 78:6-
13; 82:16-24; attached as Exhibit A to the
Declaration of Anne T. Acufia; Declaration
of Norman Carveth, attached as Exhibit B
to the Acufia Decl. at 4 6.

7. Declaration of Norman Carveth,
ye as Exhibit B to the Acuiia Decl. at

ATA

PLAINTIFF'S SEPARATE STATEMEN? OF DISPUTED MATERIAL PACTS IN OPPOSITION TO DEFENDANT CUMMINS INC.’S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADIUDICATIONee
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throughout his employment there, but also
from seeing the packaging of the
replacement gaskets. The gaskets that he
installed on the two diesel engines at
Keokuk came in a box containing three
engine head gaskets. The name “Cummins”
and “Wenatchee, Washington” was written
on the exterior of the box.

8, Defendant CUMMINS INC. admits that
it sold its engines and related parts and
components to related dealers and .
distributors. CUMMINS INC, also admits
that between 1930 and 1985, it marketed
asbestos-containing gaskets that were
purchased from -various manufacturers,
including Dana Corp; Fel-Pro, Inc.;
Vellumoid Division of Federal Mogul;
Armstrong Cork Co.; F.D. Farnam Co.;
Wolveringe Fabricating Co.; Coopers
Payen, Lid.; Latex Fiber Industries, Inc.;
and Nicolet Industries, Inc. According to
CUMMINS’s discovery Tesporises, it did
not phase out asbestos-containing gaskets
until the 1980s.

9. Gaskets manufactured for use in various
automotive applications, such as in the
engine head, intake manifold, and exhaust
manifold almost always contained asbestos
from the 1950s until the late 1980s. Head
gaskets, intake manifold gaskets, and
exhaust manifold gaskets are exposed to
high heat routinely and, because of this,
during that time, period they contained -
asbestos as the main insulating material to
resist thermal damage.

10. The edges of new gasket material
reveal friable bundles of asbestos fibers that
can be released by mere handling. The
exposure created by handling a new
asbestos-containing gasket is substantial
and more likely than not increases the risk
of developing an asbestos-related disease.
Fiber release potential is increased when the
gasket is cut and trimmed,

11. When Mr. CARVETH performed the
two engine overhauls at Keokuk between
1950 and 1959, the handling and trimming
of the new engine head gaskets that he
installed would have released asbestos
fibers and become airborne in the course of
his activities,

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8. Defendant CUMMINS INC.’s Amended
Responses to Plaintiff's Standard
Interrogatories (G.O. 129), attached as
Exhibit C to the Acufia Decl. at 20:22-25;
22:23-23:4; 23:24-27.

9. Declaration of Kenneth Cohen, attached
as Exhibit E to the Acufia Decl. at 7.

10. Declaration of Kenneth Cohen,
attached as Exhibit E to the Acufia Decl. at

q8.

11. Declaration of Kenneth Cohen,
attached as Exhibit E to the Acufia Decl, at

411, 12.

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PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CUMMINS INC.'S
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATIONDw nN aw & WN

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12. NORMAN CARVETH was exposed to
and breathed respirable asbestos fibers
while handling and trimming the new
engine head gaskets he installed during the
two engine overhauls he performed at
Keokuk between 1950 and 1959. This is
especially so given that Mr. CARVETH
performed that work in a small, enclosed,
poorly ventilated maintenance shop and
Mr. CARVETH was not wearing a mask or
any breathing rotection. Thus,

Mr. CARVETH’s handling and
manipulation of those gaskets increased his
risk of developing an asbestos-related
disease.

13. At his deposition, Mr. CARVETH
identified his co-workers at Keokuk: Steve
Lancaster (Waterville), Barney Lancaster
(East Wenatchee), and a Mr. Melcher.

14. There is no evidence before the Court
that defendant attempted to interview or
notice the depositions of any of

Mr. CARVETH’s co-workers.

Dated: [- 22-2010

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12. Declaration of Norman Carveth,
attached as Exhibit B to the Acuiia Decl. at
49. Declaration of Kenneth Cohen,
attached as Exhibit E to the Acufia Decl. at
413.

13. Deposition of Norman Carveth at
71:11; 71:17-22, attached as Exhibit A to
the Declaration of Anne T. Acufia.

14. Defendant’s Separate Statement of
Undisputed Facts and moving papers in its
entirety.

BRAYTON*%PURCELL LLP

T Acufia
s for Plaintiff

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PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CUMMINS INC.'S:
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION