Motion,Ex Parte: LOUIS CASTAGNA VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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BRYDON

Huco & PARKER:
135 MAIN Sreteer
207 FLOOR
Sen Francisca, CA 94105

Edward R. Hugo [Bar No. 124839]
James C. Parker [Bar No. 106149]

Shelley K. Tinkoff [Bar No. 187498]
BRYDON HUGO & PARKER ELECTRONICALLY
135 Main Street, 20" Floor FILED
‘San Francisco, CA 94105 Superior Court of California,
Telephone: (415) 808-0300 County of San Francisco
Facsimile: (415) 808-0333 OCT 01 2010
Email: tinkoff@bhplaw.com Clerk of the Court
BY: JUANITA D. MURPHY
Attorneys for Defendant Deputy Clerk
FOSTER WHEELER LLC

SUPERIOR COURT — STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

LOUIS CASTAGNA, (ASBESTOS)
Case No, CGC-07-274230
Plaintifé,
DEFENDANT FOSTER WHEELER LLC’S
vs. MOTION IN LIMINE TO PRECLUDE
TESTIMONY OR EVIDENCE REGARDING
ASBESTOS DEFENDANTS (BP), NAVAL ASBESTOS EXPOSURE UNDER
THE SOPHISTICATED USER DOCTRINE
Defendants.
[26]

1 INTRODUCTION
Defendant FOSTER WHEELER LLC (“Defendant”) hereby moves in limine to

preclude testimony and evidence regarding all such naval exposure under the
“sophisticated user doctrine,” as recently adopted by the California Supreme Court in
Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56.

Plaintiff alleges he was exposed to asbestos from Defendant’s equipment while
working on United States Navy vessels. By the 1920s, and certainly by the time Plaintiff
was working aboard Naval vessels, the Navy had become extremely knowledgeable about
the potential health hazards of asbestos, exercised full control over how to best reduce the
risks of such hazards to its military and civilian workforce, and did not expect any

manufacturer to issue warnings to its workforces, according to the undisputed testimony of
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155 Many Steer
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San Franciaes, CA O4105

Samuel Forman, M.D. and Lawrence Betts, M.D., CIH. Thus, Plaintiff's claim against

Defendant's in this action are barred by the sophisticated user doctrine.

0. ARGUMENT
A. The Sophisticated User Doctrine Exempts The Manufacturer’s Duty

To Warn Not Only The Uset/Purchaser But Also Employees Of The
User And Other Foreseeable End Users

Where the injured party is an employee, and was allegedly injured by a
manufacturer’s product in the course and scope of employment, the duty to warn runs
from the manufacturer to the employer, not to the employee.

In Johnson, the Supreme Court relied upon and discussed at length Fierro v.
International Harvester Co. (1982) 127 Cal.App.862, and In re Asbestos Related Asbestos Cases
(N.D, Cal.1982) 543 F.Supp 1142. Both cases, Fierro and In re Asbestos, in analyzing a
manufacturer's duty to warn, as affected by the sophisticated user doctrine, apply the duty
(if it exists) from the manufacturer to the employer, not the employee.

In Fierro, the decedent was employed by Luer Packing Co. (Fierro, supra, 127
Cal.App. at p. 865.) Leur purchased a skeleton truck from International Harvester, which
Leur modified by installing a refrigeration unit to the chassis. (Id. at p. 865.) Decedent was
driving the truck when a tire blew out, causing the vehicle to roll over, and gasoline to spill
from the tank and catch fire. (Ibid.) At trial, plaintiffs sought a jury instruction to the effect
that International had a duty to warn Leur that attaching a power cable from the
refrigeration unit to the battery of the vehicle might create a fire hazard. (Id. at p. 866.) In
affirming the trial court's rejection of the proposed instruction, the Court of Appeal stated,
“A sophisticated organization like Leur does not have to be told that gasoline is volatile
and that sparks from an electrical connection or friction can cause ignition.” (Ibid.) The
Court of Appeal also noted that there was no evidence that any feature of the skeleton
truck was unique or contained any capability or component that was known to
International but not known to Leur. (Ibid.) The Court of Appeal concluded that “the

absense of a warning to Leur did not substantially or unreasonably increase any danger

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DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR
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BRYDON

Huco & PARKER
135 MAIN STREET
30 F10R
San Yranciseo, CA 94105

that may have existed in using the International unit and Leur’s failure to guard against
those eventualities did not render the International unit defective.” (id. at pp. 866-867.)

Similarly, in Jn re Asbestos, plaintiffs were insulators and shipyard workers
employed by the US Navy when they were allegedly exposed to asbestos. (In re Asbestos,
supra, 543 F.Supp. at p. 1150.) The court found that defendant-manufacturers of asbestos-
containing products could assert the sophisticated user affirmative defense to plaintiffs’
strict liability claims based upon manufacturer’s failure to warn. (Ibid.) The court noted
that under California law, defendants could assert that the Navy’s negligence in failing to
provide their employees with a safe working environment constituted a superseding cause
which relieves the defendant of strict liability. (Id., citing Cronin v. J.B.E. Olson Corp. 8
Cal.3d 121, 133.) As the court went on to note, the sophisticated user doctrine is very
similar in principal to the superceding cause defense. As applied in In re Asbestos,
defendants asserted that “the Navy was a ‘sophisticated user’ of asbestos products — that is,
that the Navy, as an employer, was as aware of the dangers of asbestos as were defendants
and that the Navy nonetheless misuesd the products, thereby absolving the defendants of
liability for failure to warn the Navy's employees of the products’ danger.” (Id. at 1151;
emphasis added].) The court refused to strike defendant's sophisticated user defense.

The Supreme Court in Johnson also favorably cited several cases from other
jurisdictions that hold that a manufacturer has no duty to warn an employer, or its
employees, of the dangers associated with the manufacturer’s product when the employer
is a sophisticated user of the product and already aware of the dangers. (Johnson, supra,

43 Cal 4th at 66; citing Antcliff v. State Employees Credit Union (1982) 414 Mich.624
{manufacturer of scaffold had no duty to give instructions for safe rigging and thus was not
liable to worker injured when scaffold gave way]; Akin v. Ashland Chemical (10" Cir.1988)
156 F.3d 1030, 1037 [manufacturer of chemical had no duty to warn Air Force of dangers of
chemical exposure and was not liable to Air Force employee who suffered injury from

exposure]; Strong v. E.L. Du Pont de Nemours Co. Inc, (8 Cir.1981) 667 F.2d 682, 686-687

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DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR
EVIDENCE REGARDING NAVAL ASBESTOS EXPOSURE UNDER THE SOPHISTICATED USER
DOCTRINE [26]28

BRYDON

Huco & PARKER
135 Macy STREET
20H FLGOR.

‘Sen Francieco, CA M4105

[natural gas pipe manufacturer had no duty to warn natural gas utility, or its employees, of
well known gas line dangers].) These decisions impliedly recognize the duty of an
employer to provide adequate training and a safe environment to its employees, the
superceding negligence of the employer in failing to do so, and the impracticality, or even.
impossibility, of requiring a manufacturer to reach out to every employer’s employee with
information already known to the employer.

The sophisticated user defense, and the conceptually-related superceding cause
defense, are both based on the premise that the absence of a warning was not the cause of
injury. Where, as here, the employer is a sophisticated user of a product and is well aware
of the dangers associated with a product, the manufacturer has no duty to warn the
employer or its employees, of dangers already known to the employer. It is the employer's
duty, not the manufacturer’s, to inform and train its employees, and provide them with a
safe working environment in light of the known dangers. Here, it is undisputed that the
U.S. Navy was in the forefront concerning occupational health issues regarding exposure to
asbestos. And, the “Navy always has reserved for itself exclusive decision making on what
hazards it recognizes in its workplaces and how best to control them ...” (UMF No. 11
{emphasis added].) Therefore, Defendant had no duty to warn the Navy, or Navy
employees, of dangers associated with exposure to asbestos. Asbsent a duty, Defendant

cannot be liable to Plaintiff under any of the causes of action in the Complaint.

B. The United States Navy Was A Sophisticated User Of Asbestos-
Containing Products

1. Forman Testimony Re Navy Knowledge and Control

Defendant's expert witness, Samuel Forman, M.D,, testified in a similar case filed by
Waters & Kraus, LLP. At his deposition, Dr. Forman set forth his education, training and
experience in the field of occupational medicine with the U.S. Navy, including his tenure
in the Navy Environmental Health Center. (Deposition of Samuel Forman, M.D. in Susan

M. Janes, et al. v. A.W. Chesterton Company, et al., San Francisco Superior Court No. 434604,

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Huco & PARKER
185 MAIN SYREDT
20 FLOOR
San Francisca, CA 91105

and Louise L. Galassi, et al. v.. A.W. Chesterton Company, et al., San Francisco Superior Court
No. 434604 (the “Forman Depo.”), taken April 24, 2008.) During his tenure as a medical
officer in the U.S. Navy, Dr. Forman was tasked, by the Navy, “to establish the state of the
art for industrial hygiene and occupational medicine in general, and with specific
teference to the asbestos issue.” (Forman Depo., at 64:10-23.)

Based on his subsequent research, Dr. Forman testified:

[F]rom the 1920s going forward the Navy parallcled the general
state of the art for asbestos airborne dust hazard recognition and
controls, and at times led the state of the art on that knowledge.
(Forman Depo., Exhibit A, at 40:13-17.)

Some of the articles and studies that Dr. Forman cited in support of his testimony

regarding the Navy’s leadership role in the state of the art for asbestos hazards include:

+ United States Naval Medical Bulletin (1922) (“establishing a very early knowledge
of potential asbestos related hazards in the Navy at the leadership level and
applyin to all locations, including the ones that Mr. Galassi started to work in
almost 40 years later” (Forman Depo., Exhibit A, at 26:8-12.)

+ United States Navy Department Bureau of Medicine and Surgery report of the
Surgeon General, U.S. Navy (1939) (“The Surgeon General's report, and the other
documents J cited from that era, represent continuing and expanding knowledge of
potential disease related outcomes linked to airborne asbestos exposure from
thermal insulation, going into World War II.”) (Korman Depo., Exhibit A, at 26:8-
12)

+ “Industrial Hygiene and the Navy National Defense,” War Medicine (1940) (“It reflects
the recognition, even prior to World War IL, that had been in place for some years,
since the 1920s, that airborne asbestos dust could be related to adverse health
outcomes, specifically the ones that the Navy was concerned with, was scarring
disease of the lungs, and focused in on workers applying thermal insulation and
lagging.”) (Forman Depo., Exhibit A, at 30:10:16)

+ United States Maritime Commission Regarding Minimum Requirements For
Industrial Health And Safety In Shipyards (stenographer's minutes) (1942) (“That
document sets out expectations for safety in industrial hygiene, authorized at the
highest level of both the Navy and Maritime Commission, for use in the maritime
industries during World War IL. It reflects a further step along the road of the Navy
recognizing potential hazards, and even a listing of teading authorities, such as
professor Philip Drinker from Harvard University, to assist it in setting out, up until
that point, the most detailed federal expectations ever set out for industrial hygiene
and safety in this industry. Potential airborne asbestos dust hazards from thermal
insulation are a part of the minimum requirements program, and in that sense
reflects the state of knowledge and the state of the art in mid World War IL”)
(Forman Depo., Exhibit A, at 33:6-19.)

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San Francisco, CA 94105

In addition, not only was the U.S. Navy well aware of the hazards of asbestos to its
employees engaged in ship construction and repair, the “Navy always has reserved for
itself exclusive decision making on what hazards it recognizes in its workplaces and how
best to contral them ...” (Forman Depo., Exhibit A, at 82:6-8 [emphasis added].)

Based on the foregoing, the Navy did not expect an equipment manufacturer to play

any role in advising it of occupational health issues:

The way the Navy’s program was set up and executed, and the
expectations of the people within it, had no place for advice on
long-term occupational health issttes arising from equipment
manufacturers. trorman Depo., Exhibit A, at 82:17-20.)

2. Betts Testimony re Navy Knowledge

Another former Navy medical officer, Lawrence Stilwell Betts, M.D., CIH, makes the
same points as Forman regarding the Navy’s leadership role in the state of the art
concerning asbestos health hazards.

Based upon his scientific and medical training, and three decades as a Navy officet,
Dr, Betts is familiar with the industrial products that were used by the Navy and the Navy
work environments, both ashore and afloat. He is also familiar with the history and
practice of the Navy occupational health program from before World War II to the present.
(Declaration of Lawrence Stilwell Betts in Support of Foster Wheeler Energy Corporation’s
Notice of Removal in Willie Scott, et al. v. A.W. Chesterton Company, et al., United Sintes
District Court, Northern District of California.)

According to Dr. Betts:

Based upon that scientific and medical knowledge, the U.S.
Government generally, and the Navy specifically, by the early to
mid 1940s had already developed an active and robust program to
control exposure to asbestos concentrations recognized to be
harmful, and medically monitored personnel exposed to those
levels. Additionally, the Navy established engineering control
procedures (including isolation, exhaust ventilation, wet methods,
and process changes to minimize dust release) and training, and
required the use of respiratory protection for personnel considered
to be at risk of excessive exposure during dusty operations.

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Huo & PARKER
135 Main STREET
200" FLOOR
Sen Freneises, CA 99105

[{] The information possessed. by the U.S. Government during this
period (and the comprehensive occupational health program based
upon this information), and thereafter and until such time as
[plaintiff's] work on Navy vessels ended, with respect to the
specification and use of asbestos, and the health hazards associated.
with its use aboard Navy vessels, far exceeded the information that
possibly could have been provided by a boiler manufacturer such
as Foster Wheeler. (Betts Decl., at 1] 5 and 6.)

As established by Dr. Forman and Dr. Betts, the U.S. Navy was at the forefront of
state of the art knowledge regarding asbestos hazards and the Navy “reserved for itself
exclusive decision making on what hazards it recognizes in its workplaces and how best to

control them.”

3. Courts in California and Other Jurisdictions Have Held that the Navy was a
Sophisticated Liser

The Johnson Court based its holding on a federal case involving a lawsuit by former
United States Navy employees for damages based on their exposure to asbestos during
their employment by the Navy. (See Johnson, supra, 43 Cal.4th at 61 (citing In re Related
Asbestos Cases (N.D. Cal. 1982) 543 F. Supp. 1142, 1151 [hereinafter “In re Asbestos”].) The
Court favorably cited In re Asbestos, going so far as to state that “we find their reasoning
persuasive in adopting the sophisticated user defense in our jurisdiction.” (Johnson, supra,
43 Cal.4th at p. 69.) Based on I re Asbestos, the Johnson Court adopted the sophisticated
user doctrine as a complete defense in a case of first impression in California.

The I re Asbestos decision warrants special consideration here, not only because the
Johnson Court adopted the “sophisticated user” doctrine based on that decision, but also
because the fact pattern in In re Asbestos is identical to the fact pattern in the instant case:
both cases are asbestos-related actions filed by shipyard workers who were Navy
employees. Significantly, the federal court in In re Asbestos, anticipating Johnson, allowed
the defendants to present an affirmative defense that the United States Navy was a
“sophisticated user” of asbestos products, was as aware of the dangers of asbestos as

defendants, and had nonetheless misused the products, thereby absolving the defendants

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an Francisco, CA 94105

from any failure to warn the Navy’s employees of the product dangers. (In re Asbestos,
supra, 543 F.Supp. at 1151.)

Aside from In re Asbestos Cases, cases from other jurisdictions have also held that the-
United States Navy is a sophisticated user/purchaser of asbestos-containing products.
(See, e.g., : Nesbiet v. General Electric Co, (S.D.N.Y. 2005) 399 F.Supp.2d 205; Machnik v.
Buffalo Pumps Inc. (D. Conn. 2007) 506 F.Supp.2d 99.)

In Nesbiet v. General Electric Co. (8.D.N.Y. 2005) 399 F.Supp.2d 205, the plaintiff sued
General Electric Company (“GR”) on the theory that it failed to warn of the dangers
relating to asbestos used as insulation in its marine steam turbines. The court rejected
plaintiff's claim, and instead relied on the Affidavit of Ben J. Lehman, Rear Admiral U.S.
Navy, Retired, which stated:

In the 1940s and afterward, the Navy had complete control over
every aspect of each piece of equipment. Military specifications
governed every characteristic of the equipment used on Navy
ships, including the instructions and warnings... This control
included the decision of what warnings should or should not be
included... Furthermore, the Navy had specifications as to the
nature and content of all written material that was delivered with
each piece of equipment, including turbines, The Navy was
intimately involved with and had final approval of all ... safety
and hazard information and any other written information that
accompanied a piece of equipment. The Navy determined the
nature of the hazards to be subject to any precautionary labelin
and the content of any such labeling. I short, the Navy dictate
every aspect of the ... warnings associated with its ships and did
not permit deviation from any of its contractors.”

(id. at 208 {emphasis added].)

Based on this evidence, the Nesbiet court concluded that “GE did not provide a
warning concerning the dangers of asbestos because the Navy did not permit any such
warning.” (Nesbiet, 399 F.Supp.2d at p. 208.) Further, Lehman’s assertions were applicable
to all Navy vendors, not just to GE. As the court noted, Lehman’s “affidavit raises the
inference that the Navy prohibited warnings about asbestos because, based on Lehman’s

knowledge and experience, the Navy exercised complete control over all warnings placed

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San Francisco, CA 94105

on equipment or in accompanying technical manuals by its contractors.” (Ibid. [emphasis in
original].)

Nesbiet was followd by Machnik v. Buffalo Pumps Inc. (D. Conn. 2007) 506 F.Supp.2d
99. In Machnik, the plaintiff (a machinist’s mate in the Navy from 1949 to 1952) brought
action against military contractors, alleging they violated their duty to warn him of the
hazards of asbestos exposure. The Machnik court held that the defendants were under no
duty to warn. Quite the opposite, the court held “that the Navy exercised complete control
over every aspect of all equipment supplied by contractors, including warnings, and that
any materials or equipment supplied that was inconsistent with the Navy's specifications
would have been rejected.” (Id. at 103 [emphasis added].) In so holding, the court relied on
another Affidavit from Admiral Lehman:

[The [Lehman] affidavit states that any materials supplied by a
contractor that were not entirely consistent with the Navy’s
extensive specifications probably would have been rejected.
From this, the inference can be drawn that if Machnik was
exposed to GE’s products while on board a Navy ship, that
equipment fully complied with the Navy's detailed specifications
concerning both design and warnings. “In short, the Nav,
dictated every aspect of the design, manufacture, installation,
overhaul, written documentation and warnings associated with
its ships and did not permit deviation from any of its
contractors.”

(Machnik, 506 F.Supp.2d at pp. 103-104, quoting Lehman Aff., 4 5 [emphasis added].) In
addition, the court relied on another affidavit from Dr. Lawrence Stilwell Betts, which

confirmed:

..that the Navy “was well aware of the health hazards
associated with the use of asbestos from. the early 1920s” through
a review of available military documents and other relevant
publications. Further, Betts’s affidavit provides a basis for
concluding that the Navy, and not military contractors, was in
the best position to know of the health hazards related to
asbestos.

(Machnik, 506 F.Supp.2d at 104, quoting Betts Aff., Uf 27-33.)

Based on this evidence, the Machnik Court concluded that:

GE sufficiently established, for purposes of this motion, that the
Navy’s specifications precluded GE from including warnings

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with the equipment it supplied. In turn, this establishes that GE
did not provide warnings about asbestos because it was acting
under the direction of the Navy.

(Machiik, 506 F.Supp.2d at p. 104.)

Similarly, in Akin v. Ashland Chemical (10th Cir. 1998) 156 F.3d 1030, 1037, Air Force
employees brought a toxic tort case alleging that they were injured while cleaning jet
engine parts due to low-level, chronic exposure to defendants’ chemicals. The Akin court
held that the United States Air Force was a “knowledgeable purchaser” and affirmed

summary judgment for the defendant manufacturers:

Because of the wealth of research available, the ability of the Air
Force to conduct studies, and its extremely knowledgeable staff,
we find that the Air Force easily qualifies as a “knowledgeable

urchaser” that should have known the risks involved with low-
evel chemical exposure. Employees of the Air Force are also
deemed to possess the necessary level of sophistication, so that
defendants had no duty to warn the Air Force or its employees of
the potential hazards.

(Id. at 1037.)

The holding in Johnson applies with even more force to the United States Navy. The
Akin court accepted, as a matter of course, that the air force was a sophisticated user.
Certainly, there was no discussion of the evidence establishing the Air Force’s knowledge.
In this case, however, there is evidence in the form of expert witnesses testimony that not
only was the Navy aware of asbestos hazards, it was at the forefront of the state of the art
on asbestos hazards and authored many of the papers discussing those hazards (see
testimony of Forman and Betts, supra).

The United States Navy, like the United States Air Force in Akin, easily qualifies as a
“knowledgeable purchaser.”, And as in Akin, the Navy and its employees must also be
deemed to possess the necessary level of sophistication so that Foster Wheeler had no duty
to warn them of the potential hazards of asbestos.

In the instant case, Plaintiff argues that he was not sophisticated about the hazards
of asbestos. But when Plaintiff's employer, the United States Navy, is clearly sophisticated

and in the business of selecting whom to train on its equipment, it is reasonable for a
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military contractor, like Defendant, to rely on the Navy to reasonably select and train its
employees, and to take appropriate precautions to protect those working on ships.
Furthermore, Plaintiff cannot overlook the historic reality that the Navy neither expected
nor permitted a private manufacturer to place warnings on products to be installed aboard
its combat ships (except warnings for immediate or catastrophic events).

Therefore, applying the sophisticated user defense to the facts of this case,
Defendant's duty to warn, if owed to anyone, was owed only to the United States Navy,
and was either discharged by Defendant to the Navy, or clse was unnecessary due to the
Navy's own knowledge of the hazards of asbestos.

CG The Sophisticated User Doctrine Employs An Objective Standard

The Court rejected a subjective “what the plaintiff actually knew” standard in favor
of an objective, what he “knew or should have known” standard. This means the plaintiff
cannot avoid the defense even if he was personally ignorant of the dangers of the product.
“It would be nearly impossible for a manufacturer to predict or determine whether a given
user or member of the sophisticated group actually has knowledge of the dangers because
of the infinite number of user idiosyncrasies.” (Johnson, supra, 43 Cal.4th at 71.) The “knew
or should have known” standard focuses on “the general population of sophisticated users
and conforms to the defense’s purpose to eliminate any duty to warn when the expected
‘user population is generally aware of the risk at issue.” (Ibid.) Thus, “under the
sophisticated user defense, the inquiry focuses on whether the plaintiff knew, or should
have known, of the particular risk of harm from the product giving rise to the injury.”
(Ibid.) The plaintiff's or decedent's lack of knowledge is irrelevant. (Ibid.)

The Navy had become aware of the potential hazards of asbestos-containing
products made for use on ships and at shipyards years or decades before Plaintiff worked
aboard ships. The Navy was undisputably a sophisticated user of asbestos-containing
materials, including those associated with Defendant's products. As established by the

testimony of two experts in Navy state of the art issues, as well as a plethora of Navy

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publications, the Navy was in the forefront of industrial hygeine and occupational
medicine regarding exposure to asbestos. Thus, Defendant had no duty to warn the Navy
of the known hazards associated with asbestos.

The plaintiffs in Rollin alleged that their decedent, while employed by Mobil Oil
Company, was exposed to asbestos from a Foster Wheeler boiler, an Elliott Company turbine
and Yarway Corporation valves. The jury retumed a verdict for plaintiffs, but one month later the
California Supreme Court issued its decision in Jolson. The defendants submitted motions for

JINOV and for new trial based on Johnson. As the Rollin court noted,

Here, even if Mobil was knowledgeable about the dangers of
asbestos-containing products, Mr. Rollin testified he was not.

The Johnson decision, however, cited with approval lower court
decisions that applied the “sophisticated user” defense to bar
claims by employees because their employers, as the purchaser of
the allegedly dangerous product, were aware of the product's
hazards. See, Fierro v. International Harvester Co. (1982) 127

Cal. App.3d 862, 866 (dicta); and In re Related Asbestos Cases (N.D.
Cal. 1982) 543 F. Supp. 1152.

(Rollin Rulings, at p. 4.)
The Rollin Court noted that the issue was simply whether the product in question
was sold to a “sophisticated user.” If so, the sophisticated user defense applies, regardless

of any claim that the decedent himself lacked knowledge.

Therefore, because Mobil is a sophisticated user of asbestos
products during the relevant time period, the sophisticated user
doctrine and defense requires that judgment be entered for
Foster Wheeler as a matter of law.

(Id. at 5.)
Mt
fil
Wy
Mit
If
Hil

122

DEFENDANT FOSTER WHEELER LLC’S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR,
EVIDENCE REGARDING NAVAL ASBESTOS EXPOSURE UNDER THE SOPHISTICATED USER

DOCTRINE [26]—

ao 8 &@ KN

woe NN

BRYDON:

HUGO & PARKER
135 MAIN STREET
20M FLOOR
San Francis, CA MTD:

TU. CONCLUSION
Plaintiff's claims of exposure aboard naval vessels should be barred because Plaintiff

and the U.S Navy were sophisticated users of asbestos and asbestos-containing products.

Dated: September 30, 2010 BRYDON HUGO & PARKER

By: /s/ Shelley K. Tinkoff
Edward R. Hugo
James C. Parker
Shelley K. Tinkoff
Attorneys for Defendant
FOSTER WHEELER LLC

13

“DEFENDANT FOSTER WHEELER LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY OR
EVIDENCE REGARDING NAVAL ASBESTOS EXPOSURE UNDER THE SOPHISTICATED USER
DOCTRINE [26]