Oct 01, 2014

TENTATIVE RULINGS
SPECIAL SET LAW & MOTION CALENDAR
Wednesday, September 24, 2014, 10:00 a.m.
Courtroom 17 – Hon. Gary Nadler
3035 Cleveland Avenue, Suite 200, Santa Rosa
 

 

Telephonic appearances ARE permitted for this calendar by contacting CourtCall directly at (888) 882-6878.

The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, September 23, 2014.

 

 

1. SCV-253530, Metcalf v. Associated Insulation of California

DEFENDANT INDIAN HEAD INDUSTRIES, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION:

Defendant Indian Head Industries, Inc.’s (“Indian Head”) motion for summary judgment, or in the alternative for summary adjudication, is denied.

Indian Head’s request for judicial notice is granted. The court notes, as has been noted by Plaintiffs, that the operative complaint is the first amended complaint filed after this court granted leave to amend in September, 2013.

Indian Head shows Plaintiffs did not know of the “Indian Head” brand name or identify it with asbestos exposure, and Plaintiffs had heard the name “Detroit Gasket” but some did not know anything about it or whether Decedent used Detroit Gasket (“DG”) items; Plaintiff Thomas Metcalf, Jr. (“TMJ”) knew Decedent had worked on several different vehicles and specifically remembered “Detroit” items used on at least two, a Model A and 1965 El Camino. Facts 4-6, 8.

Plaintiff Richard Metcalf saw at least one exhaust manifold gasket associated with Decedent’s Model A which had “Detroit” on it, but he knew nothing else about the label or whether it contained asbestos; Plaintiff TMJ believed Decedent used DG gaskets because as a child he saw “Detroit” on gasket packages, and maybe a gasket which Decedent was using, but otherwise his memory of the specifics of items used on the Model A or 1965 El Camino was unclear; TMJ remembers Decedent performing various gasket work on the El Camino on at least three occasions in the early to mid-1980s; TMJ stated that Decedent obtained the El Camino about 1979 and sold it in the late 1980s to early 1990s; TMJ did not know the history or mileage of the Model A or El Camino; Decedent and TMJ installed 6 Detroit exhaust gaskets on the car; Decedent and TMJ would spend about 70 minutes cutting and fitting the gaskets; work on exhaust gaskets for the El Camino would take up to 2-½ hours; and Decedent installed Detroit gaskets on the Model A 3 or 4 times from 1978 on. Facts 7, 9-17, 25.

TMJ could not recall specific dates of work on the car; TMJ did not know the date or age of the gaskets; TMJ could not remember details of logo or writing on the gaskets; TMJ remembered Decedent doing gasket work on a 1942 Willys but did not know if this involved a “Detroit” gasket. Facts 18-24.

In interrogatories Plaintiffs provided extensive information about use of Detroit Gaskets, that Indian Head had stated in interrogatories that at least some of its gaskets contained asbestos; and that expert analysis of some DG gaskets Decedent owned revealed asbestos. The responses do not state expressly if Plaintiffs actually and affirmatively knew if the gaskets Decedent used contained asbestos, but the responses showed that gaskets remaining in a container of DG gaskets, some of which Decedent had used, were found to contain asbestos. Plaintiffs identified only themselves as having relevant knowledge; Plaintiffs produced in discovery a DG gasket kit set and gaskets in the set were tested, revealing asbestos, but the gaskets which Decedent had used from the set were not available for testing. Facts 25-30.

Indian Head’s person most knowledgeable (“PMK”) testified that to his knowledge DG gaskets from 1968 to 1984 only contained the logo “DG” on the gaskets themselves and did not actually state “Detroit” on the gaskets, but only some DG gaskets in the 1960s to 1980s, perhaps 25% to 50%, contained asbestos; DG began phasing out asbestos in 1984 and no longer used it by 1989; the PMK’s declaration states that before 1984 DG did not make “aftermarket replacement” gasket kits of the type Plaintiffs describe, but his deposition testimony is inconsistent with this and shows that DG gaskets were available and used; DG made gaskets with and without asbestos. Facts 31-37.

Indian Head, regardless of the evidentiary showing, fails to establish certain key facts. It does not establish #3 claiming that Plaintiffs’ claims are “limited” to the gaskets used on the Model A and El Camino. The evidence shows only that Plaintiffs can only specifically remember DG/Detroit gaskets being used, but that Decedent did gasket work on several other cars. Indian Head fails to establish #6 purporting to show that Plaintiff Richard Metcalf was unfamiliar with “Detroit Gasket” and had no information about Decedent using such products since Richard actually stated the contrary in the evidence cited. It fails to establish a similar statement in #7. It fails to establish the assertion in #11 that TMJ stated that the only “Detroit” gaskets Decedent used were exhaust gaskets, since the evidence states no such thing and in fact evidence cited throughout indicates that he used other Detroit or possible DG gaskets. Indian Head fails to establish in #27 that Plaintiffs’ interrogatory responses contained no specific information about possible asbestos in DG gaskets used by Decedent. It fails to show in #28 that Plaintiffs’ interrogatory responses state that “Detroit” gaskets used could not have been DG items. They fail to show in #31 that no DG gaskets ever had the word “Detroit” on them since the evidence states nothing of the sort.

Plaintiffs establish all of their facts. These, and in response to facts 3, 6, 7, 8, 11, 15, 18, 27, 29-37, show that Plaintiffs’ deposition testimony, declarations, and discovery responses state that Decedent used various gaskets on various automobiles and specifically Plaintiffs saw Decedent use gasket with a box label “Detroit”; Indian Head’s PMK states that DG gaskets came in boxes labelled “Detroit”; Plaintiffs had and produced a “Detroit” box of DG gaskets, some of which Decedent had used; the gaskets still in the box tested positive for asbestos; the PMK recognized them as DG gaskets and stated that they were “100 percent” asbestos; the PMK stated at various times different information about when DG gaskets had asbestos, ultimately giving an unclear picture aside from the fact that many DG gaskets had asbestos until about 1989, and at some times most or all of certain types of gaskets contained asbestos; an expert states that Decedent would have been exposed to asbestos when handling, drilling, fitting, and installing the gaskets; and another expert opines that the amount of asbestos to which Decedent would have been exposed in the gaskets was sufficient to raise a threat of mesothelioma, the exposure may be cumulative with other sources, and unlike asbestosis, only a small exposure is needed to create the potential for mesothelioma, which is what killed Decedent.

Considering the foregoing, Indian Head does not meet its burden. Indian Head’s first argument that Plaintiffs lack supporting evidence fails because, as noted above, Indian Head’s own evidence and facts consisting mostly of information obtained from Plaintiffs in discovery, shows that two Plaintiffs knew of Decedent using gaskets repeatedly on automobiles and that they saw the label “Detroit” on packages and/or gaskets; one Plaintiff, TMJ, personally was involved in working with the gaskets with Decedent; and Plaintiffs produced a box with the label “Detroit” containing gaskets; the box was only partially full, with some gaskets from the set missing; Plaintiffs stated that Decedent had used the gaskets; an expert tested the gaskets remaining and found asbestos in them; Defendant’s own PMK identified the box as a box of the company’s gaskets and stated that they were “100 percent asbestos.” Indian Head also provides evidence that is unclear about when it stopped using asbestos, and what types of gaskets had asbestos. As to this point, Plaintiffs provide additional evidence showing that they in fact saw Decedent using the “Detroit” gaskets, and specifically the items from the tested box, and that the box contained asbestos DG items.

Indian Head’s second argument that the asbestos exposure from the gaskets could not have harmed Decedent fails because the evidence is incomplete and does not cover the full claim. Notably, it only refers to an opinion based on one type of exhaust gasket and does not consider other gaskets which Decedent may have used. It also does not address the cumulative nature of the exposure.

Plaintiffs provide evidence from their expert opining that the exposure was sufficient to raise the threat of mesothelioma, not asbestosis, because the former may arise with only low levels of exposure.

The court has reviewed Indian Head’s reply papers. Preliminarily, the court notes the requirements of the California Rules of Court with regard to objections. Rule 3.1354 requires that objections “must be served and filed separately from the other papers” and “must not be restated or reargued in the separate statement.” In its reply papers, Indian Head submits objections to the evidence submitted in opposition. This separate document contains objections that are not numbered consecutively, and fails to include the specificity required by CRC Rule 3.1354(b) sections (1) through (4). Indian Head included objections which were numbered consecutively, but which otherwise fail to comply. Notably, this is contained in its separate statement, which alone is prohibited by the applicable Rule of Court. Finally, no proposed order was submitted as required by Rule 3.1354(c). The court declines to rule on these objections for the reasons stated. Hodjat v. State Farm Mutual Automobile Insurance Co. (2012) 211 Cal.App.4th 1, 8–9.

The motions are denied in full.


DEFENDANT CERTAINTEED CORPORATION’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION:

Defendant CertainTeed Corporation’s (“CertainTeed”) motion for summary judgment, or in the alternative for summary adjudication, is denied in full.

With regard to Plaintiffs’ objections, the court rules as follows.

(Cotton Declaration): Objections 1 and 2 are sustained. These statements are not evidence, but rather are argument and are improper legal conclusions without evidence. See Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1187.

(Stevenson Declaration): Objections 1 through 4 are overruled. The court notes, however, that this testimony is not alone dispositive, and the mere fact that Stevenson does not remember seeing Decedent using or near work on asbestos pipe does not mean that it did occur; the objections, in any event, do not change the outcome of these motions.

The moving party argues that Plaintiffs lack, and cannot reasonably produce, evidence showing that Decedent was exposed to CertainTeed product containing asbestos, and that the evidence negates a finding of such exposure. CertainTeed fails to meet its burden, as the evidence cited in its own facts demonstrates that Decedent worked at the Sonoma County Water Plant starting in 1980 as a steamfitter working with pipe. Documents which Plaintiffs produced in discovery demonstrate that as of 1978 and 1979 asbestos pipe was required and CertainTeed provided asbestos pipe for such projects. See facts 11-12, 17-35, 67-69; evidence cited therein. The evidence of Stevenson regarding what he remembers or saw Decedent being involved in is not here conclusive since it is incomplete as to Plaintiffs’ claims leaving gaps and does not directly negate the possibility that Decedent was exposed to CertainTeed asbestos products at the plant site. The court notes that CertainTeed shows that Decedent stipulated in a deposition in his own prior personal injury lawsuit against other parties, to which CertainTeed and Plaintiffs herein were not parties, that he was not contending that he had been exposed to asbestos at the plant jobsite. See facts 16, 39, 47-48. This is not conclusive as to the matter presently before the court. Moreover, Plaintiffs create triable issues by showing that Decedent either worked with, or was working in the immediate vicinity of those working with, asbestos pipe at the water plant, while CertainTeed supplies asbestos pipe for that project. Facts 6, 8, 14, 18, 29, 38, 44, 55, 59, 61, 64, 70-74, 76, 80-84, 104-106; Plaintiffs’ Facts 1-13; evidence cited therein.

 

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