Motion,Ex Parte: JAMES KENNEDY et al VS. A.W. CHESTERTON COMPANY et al

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JEFFERY J. FADEFF, ESQ. (SBN 111497)
MYLES B. SOLOMON, ESQ. (SBN 232210)

BASSI. MARTIN, ERLIN &BLUM LLP ELECTRONICALLY

351 California Street, Suite

san Fr ancisco, Gis) 397-9006 cote PB ornia,
eiephone: '

Faostmile: (415) 397-1339 County of San Francisco

NOV 04 2008
Attorneys for Defendant GORDON PARK-LIL Clerk
iT. THORPE & SON, INC: BY: JUANITA D. MURPHY
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

JUNKO KENNEDY, individually and on ) Case No. 450556
Behalf of the Estate of JAMES W. )
KENNEDY, decedent; CAROLYN } DEFENDANT J.T. THORPE & SON,
CAMERON, JAMES B, KENNEDY AND INC'S MOTION IN LIMINE TO
DOES ONE through TEN, inclusive, ) PROHIBIT EVIDENCE THAT ST.
Plaintiffs, ; THORPE & SON, INC. IS A STRICT
) PRODUCTS LIABILITY DEFENDANT
vs. )
} Trial Date: | November 10, 2008
A.W. CHESTERTON COMPANY, et al., Time: iid$am.
ts. Dept.: 206
Defendants } Judge: Honorable David Ballati
)
)

L INTRODUCTION

Plaintiffs PINKO KENNEDY, CAROLYN CAMERON, and JAMES B. KENNEDY
(“Plaintiffs”) intend to introduce evidence on, and allege a strict products liability claim
against, J. T. THORPE & SON. INC, (hereafter “JTTS”). JTTS hereby moves this Court for an
order precluding the application of strict products liability to this defendant. ITTS is not a
manufacturer, seller, or distributor of asbestos-containing products, as construed by the

Restatement (Second) of Torts Section 402A, California law, and other jurisdictions. In Monte

Vista Dev. Corp. v. Super. Ct. 226 Cal. App. 3d 1681, 1687 (1991), the court of appeal held
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that strict products liability does not apply to a subcontractor who is not a seller within the
meaning of the rule imposing strict products liability. Moreover, courts have declined to apply
strict liability where the transaction’s service aspect predominates and any product supplied is
merely incidental to a contract and the provision of the service. Services, even when provided
commercially, are not products. Based on the holding in Monte Vista, analogous California
law, and case law in other jurisdictions, this court should grant this motion to preclude a claim

for strict products Hability against JTTS.

iW. FACTUAL BACKGROUND
Plaintiffs are alleging that decedent JAMES W. KENNEDY (“Decedent”) developed

mesothelioma as a result of exposure to asbestos against JTTS while he was working as a
machinist at various locations.

JTTS was incorporated in California in 1922 and since that time has specialized in the
installation and repair of refractory materials inside high temperature units such as furnaces and
boilers, primarily in Northem California. Any new installation or repair work performed by
JTTS was ultimately governed by the terms and conditions of new installation and/or
maintenance contracts that JTTS had with its customers. Refractory materials by definition do
not contain asbestos and any asbestos containing materials that may have been used by JTTS.

There is no other connection between this plaintiff and JTTS. The issue is whether

ITTS is subject to strict products liability for their work as refractory contractors.

Th. ARGUMENT

A. THe GREENMAN RULE AND RESTATEMENT (SECOND) OF TORTS SECTION

402A ONLY Arey TO MANUFACTURERS, SELLERS, RETAIL DEALERS OR

DISTRIBUTORS Or DEFECTIVE PRODUCTS.

The strict products liability doctrine was established in California through Greenman v.
Yuba Power Prods.. Inc. (1963) 59 Cal. 2d 57, 62. In Greenman, the California Supreme Court

held that a “manufacturer is strictly liable in tort when an article he places on the markei,

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knowing that it is to be used without inspection for defects, proves to have a defect that causes
injury to a human being.” Id, at 62. The strict liability theory was then embodied in the
Restatement (Second) of Torts, section 402A. RESTATEMENT (SECOND) OF Torts § 402(A)
(1997), 6B. E. WITKIN, SUMMARY OF CALIFORNIA LAW § 1243 (9th ed. 1988). Section 402A of
the Restatement (Second) of Torts provides in pertinent part: “(1) One whe sells any product in a
defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for
physical harm thereby caused to the ultimate user or consumer . . . If (a) the seller is engaged in
the business of selling such a product, and (b) it is expected to and does reach the user or
consumer without substantial change in the condition in which it is sold. (2) The rule stated in
Subsection (1) applies although (a) the seller has exercised all possible care in the preparation
and sale of his product, and (b) the user or consumer has not bought the product from or entered
into any contractual relation with the seller.” RESTATEMENT (SECOND) OF TorTs § 402(A).
California has adopted the Restatement (Second) of Torts section 402A. Barth v. B.F. Goodrich
Tire Co., 265 Cal. App. 2d 228, 250 (1968); Jenkins v. T&N PLC, 45 Cal. App. 4th 1224, 1228
(1996).

The doctrine of strict products liability applies to all persons in the chain of distribution
of a defective product, including manufacturers, wholesalers and retailers. Soule v. Gen. Motors
Corp., 8 Cal. 4th 548, 560 (1994); Bay Summit Cmty. Ass’n v. Shel! Oil Co., 51 Cal, App. 4th
762, 773 (1996). Strict products liability is imposed on retailers because, “like manufacturers,
[they] are engaged in the business of distributing goods to the public. They are an integral part
of the overall producing and marketing enterprise that should bear the cost of injuries resulting
from defective products.” Arena v. Qwens-Corning, 63 Cal. App. 4th 1178, 1197 n.12 (1998).
“In some cases the retailer may be the only member of that enterprise reasonably available to the
injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the
product is safe or may be in a position to exert pressure on the manufacturer to that end; the
retailer’s strict Liability thus serves as an added incentive to safety.” Id. (citing Vandermark y.
Ford Motor Co., 61 Cal. 2d 256, 262(1964).

HU

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“Most significantly, courts have been mindful that the strict ability doctrine derives
from judicially perceived public policy considerations and therefore should not be expanded
beyond the purview of these policies.” Bay Summit, 51 Cal. App. 4th at 774. Labels such as
“wholesaler,” “retailer,” and “distributor” have an important and inescapable role in the case law
relevant to the identification of culpable links in the product liability chain. The chain analogy,
however, is but a tool and the court must consider substance over form.

No matter what the label, it is the substance of the function not its designated label that
normally determines whether a defendant may be held strictly liable. “The courts have eschewed
legal labels and have taken a very practical approach, focusing on the actual connection between
the defendants’ activities and the defective product . . . [and] the defendant’s legal status or
formal relationship with the manufacturer or the consumer is not dispositive.” Bay Summit, 51
Cal. App. 4th at 774.

The Restatement (Second) of Torts, section 19 provides: “(b) Services, even when
provided commercially, are not products.” California courts have not extended the scope of
strict liability to transactions whose primary objective are obtaining services and have declined
to apply strict liability where the transaction’s service aspect predominates and any product sale
is merely incidental to the provision of the service. RESTATEMENT (SECOND) OF TorTs § 19
(1997); Pierson v. Sharp Mem’l Hosp., Inc., 216 Cal. App. 3d 340, 344 (1989); Hyland
Therapeutics v. Super. Ct., 175 Cal. App. 3d 509, 513 (1985); Endicott v. Nissan Motor Corp.

73 Cal. App. 3d 917, 930 (1977). “A service is no more than direct human action or human
performance . .. . In light of the infinite subtle nuances of human performance, the law
reasonably imposes only a standard of negligence rather than strict liability in the provision of

human services.” Pierson, 216 Cal. App. 3d at 345.

B. CALIFORNIA AND OTHER JURISDICTIONS HOLD THAT STRICT PRODUCTS

Liabitiry Dogs NoT AppLy To A DEFENDANT Woo Is Not A SELLER WITHIN)

THe MEANING OF THE RULE IMposinG Strict LIABILITY.

To classify JTTS as a “seller” of a product would require this court to distort and

expand existing California precedent which holds that a contractor or sub-contractor is not a
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“seller” within the scope of Section 402A, and is therefore not liable for any component part it
may supply in compliance with the performance of a job or service.

In Monte Vista, the court affirmed summary adjudication, holding that a subcontractor
who was in the business of installing commercial and residential ceramic tile was not strictly
liable for supplying a defective soap dish since it was not in the business of selling soap dishes.
Pursuant to the terms of the accepted bid, defendant was to install soap dishes and other tile
fixtures it purchased from a third-party supply company. The bid did not specify the type or
brand of soap dish to be installed. The court also noted that the defendant was not in the
business of manufacturing soap dishes nor did it have any financial interest in completion of the
job, except for the monies due pursuant to the bid. 1d. at 1684.

The focus of the court’s analysis was whether defendant came within the chain of
commerce as a supplier of the soap dish to the extent that it became strictly liable for the
defective item. Monte Vista, 226 Cal. App. 3d at 1687. The court reasoned that since there was
no evidence that defendant was in the business of selling soap dishes or other fixtures, that it
purchased all of its fixtures in order to complete its subcontract with the developer, that it did not
matter to defendant who supplied the fixtures, and that it was defendant's job simply to do the
work, that defendant was not subject to strict liability under the guidelines of the Restatement
(Second) of Torts. Id.

In La Jolla Village Homeowner's Ass'n. Inc. v. Super. Ct, 212 Cal. App. 3d 1131 (1989),
the court of appeal affirmed the trial court’s ruling granting a judgment on the pleadings without
leave to amend and striking plaintiff's causes of action for strict liability and nondisclosure as to
all subcontractors. The court acknowledged that although strict liability had been recently
extended to developers of large property developments and tract homes, it refused to extend the
strict liability doctrine to a subcontractor hired by the developer to perform a particular duty:
“No reported California case has held that a subcontractor hired by a developer can be held
strictly liable for defects in a mass-produced housing project and we decline to do so now.” Id. at
1144. As the court of appeal stated,
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In the typical general contracior/developer-subcontractor relationship, the general
is the principal in charge of the planning, designing, constructing, supervising,
inspecting and then selling of the residential units. The general hires
subcontractors to carry out the planning, designing, and constructing of the units.
Normally, numerous subcontractors will be retained by the general to assist on the
project before the residential units are finished products ready for mass
consumption, The subcontractors usually follow set plans and specifications
given to them by the general contractor to do a particular job or “component part”
in the “manufacturing of the product” and leave the project when that job is
completed and approved by the general. The subcontractor customarily performs
one task which is integrated into a whole. It does not control the trades which
precede or follow it on the job. For example, the subcontractor who lays tile in an
entryway has no choice but to accept the cement slab or the wooden footing
which has previously been installed by other subcontractors, and it cannot control
the stucco applicator that comes on the project after it leaves the project.
id.

The court found persuasive the fact that subcontractors in a construction project have no control

over the whole "product" nor do they have control over the component part for which the sub-

contractor was hired io perform because they generally work to the plans of the developer. Jd.
In Stuart v. Crestview Mut. Water Co., 34 Cal. App. 3d 802, 811 (1973), while holding

the developer strictly liable, the court refused to hold the “subcontracting” engineers who
designed the defective water system strictly liable. The court of appeai stated: “We cannot. . .
find any bases for holding the engineers on a strict liability theory. They rendered a professional
service and are in no sense analogous to manufacturers who place products on the market and
who are, therefore, in the best position to spread the cost of injuries resulting from defective
products, [Citations.} . . ."[The] well settled rule in California is that where the primary objective
of a transaction is to obtain services, the doctrines of implied warranty and strict lability do not
apply [citation]... .’” Id. at 811.

Other jurisdictions which have addressed this issue have reached the same result, even
where a contractor or subcontractor may have supplied products in performing its work under a
contract. In Maack v. Res. Design & Consir., Inc. 875 P.2d 570, 581 (Utah App. 1994),
plaintiffs alleged the exterior components of a residence - the stucco, membranes, and adhesives
- built by the defendants were defective, and defendants were therefore strictly liable for
damages under section 402A.

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This claim was rejected by the trial court on the basis that the defendants were not
“sellers.” Id. The Court of Appeals of Utah agreed, stating that

We find no reason to disturb the trial court’s conclusion . . . that [the Defendants} were
not “sellers” or manufacturers of the component parts of the exterior of the house. The
[Plaintiffs] claim, nonetheless that [the Defendants] were “sellers” of the component parts
because the contract . . . specified that [the Defendants] would be on a cost of work plus
fee basis. However. this inclusion of the cost of materials seems to have been solely for
the purpose of calculating a fee for the work done. The evidence is undisputed that [the
Defendants] were construction contractors whe simply utilized these component parts

when constructing the residence - they were not in the business of selling stucco,
adhesives, or membranes on wholesale or retail basis.

Id. (emphasis added).
Another example is Delta Refining Co. v. Procon, Inc., 552 $.W.2d 387 (Tenn. Ct. App.

1976), where a fire occurred at an oil refinery due to a defective pump purchased and installed by|
a general contractor under a general construction contract with the oil refinery. The oil refinery
brought suit against the manufacturer of the pump and the contractor. Id, The trial court granted
a directed verdict in favor of the contractor, and the plaintiff appealed. Id. The Tennessee Court
of Appeals affirmed the judgment. Jd, The appeals court held that the contractor was not liable
under the strict lability doctrine as a seller of the pump because the contractor was not in the
business of selling such pumps, but had merely contracted with the oil refinery to purchase and
install the pump which the codefendant was to build according to specifications furnished by the
oil refinery. Id. at 388.

In Seordino v. Hopeman Bros,. Inc., 662 So. 2d 640, 642 (1995), the Supreme Court of
Mississippi, relying on Restatement (Second) of Torts Section 402A, the reasoning outlined in
Monte Vista, and decisions of other jurisdictions, rejected a strict liability claim against an
independent contractor that installed and supplied asbestos paneling on board ships as required
under its subcontract. The court concluded that a joiner subcontractor in the business of
installing shipboard furniture, beds, box berthing, non-structural bulkheads, overheads and
installation was not a manufacturer or a seller under Section 402A or liable under a negligence

claim for failure to warn. Id.

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In Scordino, former employees of Ingalls Shipyard Corporation alleged that while
employed at Ingalls they were exposed to asbestos, which was a component of marinite and
micarta, a fire-resistant wall paneling supplied and installed by defendant Hopeman Brothers,
Inc. (“Hopeman”). The plaintiffs claimed that irreparable and progressive lung damage was
caused due to being exposed to the dust generated by the installation of the paneling and, that
during this exposure period, they had no reason to believe or otherwise have knowledge that the
Marinite was dangerous when inhaled or otherwise ingested. The plaintiffs alleged that
Hopeman, among others, knew or should have known about the dangers of asbestos and had
failed to warn the plaintiffs about said dangers by ignoring or actively and fraudulently
concealing the danger. Thus, the plaintiffs alleged Hopeman was negligent and strictly liable for
its conduct, which resulted in their injury. In response, Hopeman claimed that because it was an
installer and not a seller or manufacturer of asbestos, it was neither negligent nor strictly liable.

At trial, following the testimony of witnesses for the plaintiffs and Hopeman, Hopeman
moved for a directed verdict that the trial court granted. The trial court reasoned that the micarta
and marinite installed by Hopeman was not Hopeman’s product. Rather, the trial court
concluded, Hopeman was “a subcontractor of labor to assemble and install various materials”
pursuant to the subcontract which contained exact specifications. Plaintiffs appealed.

The Scordino court’s refusal to extend strict liability to an independent contractor on facts
remarkably similar to the issues in this case is compelling:

The facts of this case are: (1) that Hopeman is in the business of joiner
subcontracting, i.e., building the interior outfitting of a ship which consisted of
installing shipboard furniture, beds, box berthing, non-structural bulkheads,
overheads, insulation, etc.; (2) that the materials Hopeman purchased to fulfill a
joiner subcontract were not purchased for resale; (3) that the services and
materials Hopeman provided were specified in the contract with Ingalls and the
vessel owners; and (4) that the total price of a job included both the services and
materials that were provided. Based on this evidence, it is clear that Hopeman
was not a seller in the business of selling Micarta and Marinite. Rather, as a
subcontractor, Hopeman merely supplied the materials to complete the service for
which it was hired pursuant to the contract between the parties. It follows that
Hopeman is not strictly liable under the Restatement. [402A].

Id.

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Other cases which follow this rule include: Freitas v. Twin City Fisherman’s Coop. Ass'n 452

S.W.2d 931 (Tx. Ct. App. 1970); Trustees of Columbia Univ. in the City of New York v.

Gwathnmey Siegel & Assocs. Architects, 601 N.Y.S.2d 116 (1993); Sapp v. Morton Bidgs.. Inc.,]

973 F.2d 539 (7th Cir. 1992); Chenango Ind. Dev. Agency v. Lockwood Greene Eng’rs. Inc.,
494.N.Y.S.2d 832, 834 (1985), appeals dismissed, 500 N.Y.S.2d 1027 (1986) (affirming
dismissal of strict liability count against roofer that installed defective roofing material, and
explaining that roofer “was engaged primarily to install [the] material and that any transfer of
personal property was purely incidental to the performance of this service”).

Cc RESTATEMENT (SECOND) OF TorTS SECTION 4024 Dors Not AppLy To
OCCASIONAL SELLERS OR INSTALLERS OF PRODUCTS WiTHIN CONTRACT

SPECIFICATIONS.

Even though JITS cannot be classified as a “seller,” the textual Jimitation of section
402A that the supplier be in the business of selling or supplying the product has also been
applied to exclude from its reach the occasional seller. Oliver v. Super. Ct, 211 Cal. App. 3d 86,
89 (1989) (stating “doctrine of strict products liability does not apply to ‘the occasional
construction and sale of residences’”); RESTATEMENT (SECOND) OF TorTs § 402A cmt. (f)
(exempting from rule that “occasional seller” whe is not engaged in activity as a regular part of
its business).

Courts have refused to hold a defendant strictly liable even when the defendant could be
technically viewed as a “link in the chain” in getting the product to the consumer market.
Peterson v. Super. Ct., 10 Cal. 4th 1185, 1210 (1995) (determining that landlords and hotel
proprietors are not strictly liable for product defects as policy justifications underlying strict
liability doctrine are inapplicable); Tauber-Ayons Auctioneers Co. v. Super. Ct., 101 Cal. App.
3d 268, 281-282 (1980) (noting that secondhand dealer is not strictly liable for defectively-used
product); Lemley v. J & B Tire Co., 426 F. Supp. 1378, 1379 (W.D. Pa. 1977); McKenna v. Art
Pearl Works, Inc., 225 Pa. Super. 362, 365 n.2 (Pa. Super. Ct.1973).

in Griffin Industries, Inc. y. Jones, 975 S.W. 2d 100, 102 (Ky.1998), the Kentucky

Supreme Court applied the “occasional seller” exception of Restatement (Second) of Torts,
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Section 402A, comment (f), and rejected a strict liability claim against defendant: “The
otherwise valuable rule of strict liability does not apply to the occasional seller of an allegedly
defective product. When a product is sold only on an occasion or incident to the business of the
seller, the transaction does not come within the purview of the doctrine of strict liability.” Id. at
103.

Moreover, a party who provides nonprofessional services such as repair, maintenance and
service, while subject to liability for negligence, is not usually subject to strict products liability.
Lemley, 426 F. Supp. at 1379; Hoffman v. Simpiot Aviation, Inc, 539 P.2d 584 (Idaho 1975);
Steckal v. Haughton Elevator Co. 59 N.Y.2d 628 (1983).

Lemley involved an action brought against a repairman for injuries sustained as a result
of negligent installation of new brake shoes and a self-adjusting mechanism. In granting
defendant's partial summary judgment for dismissal of the strict liability claims, the Lemley
court held that while the term "sellers" had been interpreted to include retailers and
manufacturers, as well as wholesalers, distributors and suppliers, it had not been expanded to
include persons who supply a service. Id. at 1379. The district court reasoned that the social
policy of protecting consumers against the mass producer or distributor did not apply in this case.
Id. at 1380.

Similarly, in Hoffman, the idaho Supreme Court refused to extend the rule of strict
products liability beyond sales and into the area of personal services. In that case, plaintiff
contracted with the defendant aviation repair company to repair a vintage aircraft. Based upon
its analysis of Section 402A and related case law, the court declined to apply strict liability in tor
to personal services by finding claims against a party that performed personal services are
fundamentaily different from claims against a mass producer of a defective product. Id. at 587.
The court reasoned it nearly impossible to prove negligence against the manufacturer of a mass
produced defective product because it is extremely difficult to identify the individuals whose
conduct caused the defect. In contrast, the beneficiary of personal services comes into direct
contact with the one offering the service and can easily determine what work was performed and
who performed it.

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In Steckal, the New York Court of Appeals considered the applicability of strict products

liability when plaintiff was injured while riding in a defective elevator. The court held that the
fact that the defendant beth supplied and serviced the elevator did not warrant imposing strict
liability for a defect that developed after installation was complete. Id. at 628.

A contractor or installer will not be held strictly liable where it is determined its activity

amounts, at most, to that of an occasional seller. In Barham v. Turner Constr. Co. 803 S.W. 2d

731 (Tex. Ct. App. 1990), the defendant general contractor was held not strictly liable for
injuries caused by steel columns purchased from a third party and used in the construction of a
building. The court found nothing to indicate the contractor did anything more than selis its
general contracting services. Id. at 738. At most, the court reasoned, the contractor was an
“occasional seller” of components of buildings and was not engaged in the sale of steel columns
as part of its business and, therefore, the underlying principles of strict liability did not apply. Id.

Similarly, in Mini Mart, Inc. v. Direct Sales Tire Co., 876 F.2d 63 (8th Cir.1989),
applying South Dakota law, the court held the defendant company that installed the defective
underground storage tank at a plaintiff's store could not held strictly liable, even where plaintiff
purchased the tank from defendant, because there was no evidence to show the defendant was in
the business of selling tanks.

D. Strict Propucts Liapitity Does NoT AppLy To JTTS.

JTTS, as an independent contractor, performed work as specified by the United States
Navy as part of a massive and historic shipbuilding effort during World War IL JTTS was a
brickwork contractor, not a seller of products. Consistent with standards articulated in Monte
Vista and holdings in other jurisdictions, JTTS is not subject to strict products liability under the
Restatement (Second) of Torts, Section 402A. JITS specialized in the installation of refractory
products pursuant to contract. There is no basis for imposing strict liability where the products
and materials used were incidental to providing the service of refractory installation, Anything
used on these ships had to conform to rigid specifications issued by the United States Navy.

JTTS was not in business as a refractory supplier and did not provide any materials to the U.S
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Navy beyond that which they installed on the vessels themselves. Thus, any sales by JTTS were
incidental to the work they performed in installing the products. California and other
jurisdictions have consistently refused to apply the doctrine of strict liability to situations where
the service was the predominant factor and the supply of a product is incidental to the
performance of the contract.

Finally, the public policy reasons underlying the application of strict liability in tort do

not apply to JTTS. A purpose of strict liability is the promotion of product safety. Greenman,

59 Cal. 2d at 63; Vandermark, 61 Cal. 2d at 262; Bay Summit, 51 Cal. App. 4th at 772-73;

Escola v. Coca Cola Bottling Co, 24 Cal. 2d 453, 462 (1944) (Traynor, J., concurring) (stating
that “{p]ublic policy demands that responsibility be fixed wherever it will most effectively
reduce the hazards to life and health inherent in defective products that reach the market.”) In
Bay Summit, the court of appeal noted that

Viewing the existing case law and the policies underlying the doctrine, we agree
with Shelf that the mere fact an entity “promotes” or “endorses” or “advertises” a
product does not automatically render that entity strictly liable for a defect in the
product. It would be unlikely that such defendant could significantly affect
product safety or that the defendant could effectively spread the risk of the cost of
protection.

Bay Summit, 51 Cal. App. 4th at 775-76 (emphasis added; citations omitted).

Applying strict liability to JTTS in this instance would not serve to protect the consumer
from produced and distributed defective products, a policy that is at the heart of sirict liability
theory. Further, such a holding would set a precedent that no California court has ever adopted
or recognized. JITS was not in a position to control defects in asbestos-containing products or
to spread the cost through pricing. This is particularly true in this case where the United States
Navy specified the materials to be used based on rigid military specifications as part of a wartime)
military buildup. Having to incorporate potential strict liability costs into JTTS’ job bids, given
its specialized market, would prevent it from remaining competitive in the installation business.
For this reason, JTTS could not recuperate its costs of compensating asbestos-related injuries by
increasing its prices.
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DEFENDANT | T THORPE & SON, INC ‘S MOTION IN LIMINE TO PROHIBIT EVIDENCE THAT J T THORPE & SON, INC ISA
STRICT PRODUCTS LIABILITY DEFENDANTOo ON DA NH BR WN

RRR Nett
we NM = OS Oo MM TDK RH B&F WN SF OS

Assuming for the sake of discussion that JTTS occasionally recommended a particular
asbestos-containing product based on its performance standards, courts hold occasional sellers of
building components who are not engaged in the sale of such products as a part of their overall
business are not strictly liable for any resulting injuries. Finally, even where an installer such as
SITS may have merely supplied materials within the specifications and plans of another, strict

liability does not apply.

IV. CONCLUSION
The policies articulated by the Greenman rule and Restatement (Second) of Torts Section
402A do not apply to JTTS. For the reasons discussed above, JTTS respectfully requests that its

motion to preclude plaintiffs from proceeding against it under strict products liability be granted.

Date; November .* , 2008 BASSI, MARTINI, EDLIN & BLUM LLP

Maln—
Myles B. Solorhon, Esq. (SBN 232210)
Attorneys for,Defendant
LT. THORPE & SON, INC.
BASSI, MARTINI EDLIN & BLUM LLP
351 California Street, Suite 200

San Francisco, CA 94104
Telephone:(415) 397-9006

By:

59289

3

DEFENDANT 1 T THORPE & SON, INC 'S MOTION IN LIMINE TO PROHIBIT EVIDENCE THAT JT THORPE & SON, INC ISA
STRICT PRODUCTS LIABILITY DEFENDANTSo OU wm NI DR BR YY

peek et
eo WD A Bw NH

19

Re: Junko Kennedy, et al. y. A.W. Chesterton Company, ef al.
San Francisco County Superior Court Case No. 450556

PROOF OF SERVICE — ELECTRONIC TRANSMISSION

STATE OF CALIFORNIA/COUNTY OF San Francisco

lam a citizen of the United States and an employee in the County of San Francisco. |
am over the age of eighteen (18) years and not a party to the within action. My business
address is BASSI, MARTINI, EDLIN & BLUM LLP, 351 California Street, Suite 200, San
Francisco, Califernia 94104.

On the date executed below, | electronically served the document(s) via LexisNexis
File & Serve, described below, on the recipients designated on the Transaction Receipt located
on the LexisNexis File & Serve website.

DEFENDANT J.T. THORPE & SON, INC.’S MOTION IN LIMINE TO

PROHIBIT EVIDENCE THAT LT. THORPE & SON, ENC. IS A STRICT
PRODUCTS LIABILITY DEFENDANT

On the following parties:
SEE SERVICE LIST PROVIDED BY LEXIS-NEXIS
I declare under penalty of perjury that the foregoing is true and correct and that this

document is executed on November 4, 2008, at San Francisco, California.

isl ROSE WARREN
ROSE WARREN

5385
i

PROOF OF SERVICE