Order: MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al

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Case Number: CGC-02-414536
Filing Date: Feb-18-2004 11:46
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ORDER

MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al

001C00893398

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P. RICHARD COLOMBATTO, ESQ., NO. 79895
GREGORY S. ROSSE, ESQ., NO. 157965

MABI H. ELLIS, ESQ., NO. 205246 F L E D
COLOMBATTO, KLIMENKO & ROSSE
130 Sutter Street, 7" Floor nly Superior Court

San Francisco, California 94104 : FEB 1 6 2004
Telephone: (415) 391-6182

phone Go

Facsimile: (415) 391-2904 % Ri Ue K-L, Clerk
Attorneys for Defendant Clerk
METALCLAD INSULATION CORPORATION

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

MARY M. WILLIAMS, et al., Case No. 414536
Plaintiffs, [PROPQSED] ORDER GRANTING
METALCLAD INSULATION
v. CORPORATION’S MOTION FOR
SUMMARY JUDGMENT
A.W. CHESTERTON COMPANY, et al., Date: February 5, 2004
Time: 9:30 a.m.
Defendants. Dept.: 302

Judge: Hon. Ronald Quidachay
Filed: November 8, 2002
Trial: January 5, 2004

130 Sutter Street, Seventh Floor
San Francisco, California 94104

Colombatto, Klimenko & Rosse

The Motion of METALCLAD INSULATION CORPORATION for Summary Judgment
came on for hearing on February 5, 2004, in Room 302 of the Superior Court in the County of San
Francisco. Plaintiffs MARY M. WILLIAMS, RAQUEL L. WILLIAMS, JUVON D.
WILLIAMS, KIMBERLY C. WILLIAMS and MICHELLE DeLEON (“Plaintiffs”) and
Defendant METALCLAD INSULATION CORPORATION appeared by their counsel of record;

Having read and considered the moving, opposing and reply papers and supporting evidence
filed therewith, as well as the argument of counsel;
Defendant’s Separate Statement of Undisputed Material Facts, the Declaration of David

Scott and the other supporting evidence attached to the Declaration of Mabi H. Ellis, shifted the

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burden to raise a triable issue of material fact to Plaintiffs;

Defendant’s evidentiary objections to the Declaration of Charles Ay in support of Plaintiffs’
Opposition to Metalclad Insulation Corporation’s Motion for Summary Judgment, made by way of
Defendant’s reply memorandum and during oral arguments are sustained;

Plaintiffs’ Opposition, Response to Separate Statement of Undisputed Material Facts, and
the exhibits attached thereto, failed to produce admissible evidence to raise a triable issue of
material fact that Defendant Metalclad Insulation Corporation sold, supplied, distributed, or

installed any asbestos-containing products to which Decedent was exposed; THEREFORE,

Undisputed Material Fact Supporting Evidence

1. The instant asbestos-related wrongful death 1. Plaintiffs’ Complaint for Damages.
action was filed with the above-entitled
Court by Plaintiffs MARY M. WILLIAMS,
RAQUEL L. WILLIAMS, JUVON D.
WILLIAMS, KIMBERLY C. WILLIAMS
and MICHELLE DeLEON (hereinafter
“Plaintiffs”) against numerous parties,
including Defendant METALCLAD
INSULATION CORPORATION
(hereinafter “Metalclad”).

2. Plaintiffs’ motion for trial preference was 2. Declaration of Mabi H. Ellis in Support of
granted on September 16, 2003 pursuant to Metalclad’s Motion for Summary Judgment
C.C.P. Section 36(b), and the Court set the (‘Ellis Decl.”).
trial date for January 5, 2004. During the
said hearing, Plaintiffs and defendants
stipulated on the record that a defendant’s
motion for summary judgment may be
heard up to 15 days before the trial date, on

15 days notice.

3. Plaintiffs have served responses to 3. Plaintiffs’ Responses to the General Order
Metalclad’s Specially Prepared Standard Asbestos Wrongful Death
Interrogatories, Metalclad’s Form Interrogatories, Set One, attached as Exhibit
Interrogatories, Metalclad’s Request for “A” to Ellis Decl.; Plaintiffs’ Responses to
Production of Documents, Metalclad’s the General Order Standard Asbestos
Request for Admissions, and the General Wrongful Death Interrogatories, Set Two,
Order Standard Asbestos Personal Injury attached as Exhibit “B” to Ellis Decl.;
Interrogatories, Set One and Set Two. Metalclad's Specially Prepared

Interrogatories, attached as Exhibit “C” to

Mary Williams, et al. v. A.W. Chesterton Company, et al. SFSC No. 414536 2

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Undisputed Material Fact Supporting Evidence

Ellis Decl.; Plaintiffs’ Responses to
Metalclad's Specially Prepared
Interrogatories, attached as Exhibit “D” to
Ellis Decl.; Plaintiffs’ Responses to
Metalclad’s Judicial Council Form
Interrogatories, attached as Exhibit “E” to
Ellis Decl.; Plaintiffs’ Responses to
Metalclad’s Request for Admissions,
attached as Exhibit “F” to Ellis Decl.;
Plaintiffs’ Responses to Metalclad’s
Request for Production of Documents,
attached as Exhibit “G” to Ellis Decl.

4. In response to Metalclad’s Specially 4. Metalclad's Specially Prepared
Prepared Interrogatories (“Metalclad’s Interrogatories, attached as Exhibit “C” to
Interrogatories”) that requested Plaintiffs to Ellis Decl.; Plaintiffs’ Responses to
identify the job sites where they are alleging Metalclad's Specially Prepared
that Decedent was exposed to asbestos- Interrogatories, attached as Exhibit “D” to

containing products supplied or installed by Ellis Decl.
Metalclad, they recited his entire work
history, starting from 1966 to 1997.

5. This list of jobsites is identical to the one 5. Plaintiffs’ Responses to the General Order

included in Plaintiffs’ Responses to the Standard Asbestos Wrongful Death
General Order Standard Asbestos Interrogatories, Set One, attached as Exhibit
Interrogatories, Set One. “A” to Ellis Decl.; Plaintiffs’ Responses to

the General Order Standard Asbestos
Wrongful Death Interrogatories, Set Two,
attached as Exhibit “B” to Ellis Decl.;
Plaintiffs’ Responses to Metalclad's
Specially Prepared Interrogatories, attached
as Exhibit “D” to Ellis Decl.

6. Metalclad requested that Plaintiffs identify 6. Metalclad's Specially Prepared
witnesses and documents that support their Interrogatories, attached as Exhibit “C” to
contention that Decedent was exposed to Ellis Decl.
asbestos-containing materials supplied or
installed by Metalclad at the identified

jobsites.
7. In response, Plaintiffs have literally attached 7. Plaintiffs’ Responses to the General Order
the same lengthy “product identification Standard Asbestos Wrongful Death
witness phonebook” their counsel attached Interrogatories, Set Two, attached as
to Plaintiffs’ Responses to the General Exhibit “B” to Ellis Decl.; Plaintiffs’
Order Standard Asbestos Interrogatories, Responses to Metalclad's Specially Prepared
Set Two for all defendants. Interrogatories, attached as Exhibit “D” to
Mary Williams, et al. v. A.W. Chesterton Company, et al. SFSC No. 414536 23-

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Undisputed Material Fact

Set Two for all defendants.

8. Plaintiff Mary Williams, Decedent’s
surviving spouse, testified at her deposition
that she has never heard of Metalclad.

9. Since an affidavit of Charles Ay submitted
in an unrelated plaintiff's case is referenced
in Plaintiffs’ responses to Metalclad’s
Interrogatories, Metalclad has deposed Mr.
Ay as a percipient witness in the instant
case.

10. Mr. Ay was employed at Long Beach Naval
Shipyard (“LBNS”) from 1960 to 1981 as
an insulator.

11. Mr. Ay testified that he does not know the
Decedent.

12. Furthermore, with regards to each and every
vessel Decedent allegedly worked onboard,
Mr. Ay either: 1) was not familiar the
vessel; or 2) believes he worked on the
vessel, but did not recall the actual dates he
worked onboard the vessel, and did not
know the supplier of the insulation materials
he used.

13. Charles Ay previously testified that the
shipyard obtained its regular supply of
insulation materials from the General
Service Administration (“GSA”), the
government direct supply system. The GSA
obtained the insulation materials directly
from the manufacturers to keep costs low.
Local suppliers, including Metalclad,
Thorpe, AC&S and OCF, would supply
insulation materials to supplement LBNS’s
regular supply. All the insulation materials
were stored in a common storage area and
pulled on a need basis, and there was no
way to tell which materials from the GSA,

MAIL FU UU 0d Se Wt

Supporting Evidence
Ellis Decl.

8. Declaration of Roger P. Downes in Support
of Metalclad’s Motion for Summary
Judgment (“Downes Decl.).

9. Plaintiffs’ Responses to Metalclad's
Specially Prepared Interrogatories, attached
as Exhibit “D” to Ellis Decl.; Transcript and
Concordance of the deposition of Witness
Charles Ay, taken on October 16, 2003,
attached as Exhibit “I” to Ellis Decl.

10. Transcript and Concordance of the
deposition of Witness Charles Ay, p. 18,
taken on October 16, 2003, attached as
Exhibit “T” to Ellis Decl.

1

. Transcript and Concordance of the
deposition of Witness Charles Ay, taken on
October 16, 2003, p. 21, attached as Exhibit
“T” to Ellis Decl.

12. Transcript and Concordance of the
deposition of Witness Charles Ay, taken on
October 16, 2003, pp. 22-47, attached as
Exhibit “I” to Ellis Decl.

13. Transcript and Concordance of the
deposition of Charlie Ay, taken on
December 27, 2001 in the case of Polly and
Brad Burns v. Raybestos-Manhattan, et al.,
San Francisco Superior Court Case No.
320774, attached as Exhibit “J” to Ellis
Decl.

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installed on a specific ship that came into
LBNS.
14. Mr. Ay also previously testified that he does 14. Transcript and Concordance of the
not have any personal knowledge as to deposition of Charlie Ay, taken on
which Naval ships Metalclad’s materials September 23, 2002 in the case of Otis and
were installed. Emestine Lawson vs. Asbestos Defendants

(BHC), San Francisco Superior Court Case
No. 320554, attached as Exhibit “K” to Ellis

Decl.
15. Metalclad has no information that it ever 15. Declaration of David Scott, attached as
performing work onboard any vessels, Navy Exhibit “H” to Ellis Decl.

or civilian.

IT IS HEREBY ORDERED THAT DEFENDANT METALCLAD INSULATION
CORPORATION’S MOTION FOR SUMMARY JUDGMENT IS GRANTED.

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Judge of the San Francisco Superior Court
Honorable Ronald Quidachay

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Mary Williams, et al. v. A.W. Chesterton Company, et al. SFSC No. 414536 5.
Metalclad Insulation Corporation’s Proposed Order for Summary Judgment