On July 01, 2008 a DEFENDANT DOUGLASS INSULATIONS EVIDENCE REGARDING STRICT LIABILITY (TRANSACTION ID # 51196974) FILED BY DEFENDANT DOUGLASS INSULATION COMPANY, INC. was filed involving a dispute between Olson, Donald, Olson, Flora, Olson, Jack, and 3M Company, Albay Construction Company, All Asbestos Defendants, Allis-Chalmers Corporation Product Liability Trust, American Conference Of Governmental Industrial, Anderson, Rowe & Buckley Inc., Asbestos Corporation Ltd., Asbestos Defendants, Asbestos Manufacturing Company, Atlantic Richfield Company, Auto Friction Corporation, Auto Specialties Manufacturing Company, Bayer Cropscience, Inc., Bechtel Corporation, Bell Asbestos Mines Ltd., Borgwarner Morse Tec, Inc., Brassbestos Brake Lining Company, Bridgestone Firestone North American Tire, Llc, Bucyrus International, Inc., Cahill Construction Co., Inc., Cahill Construction Services, Inc., Cahill Contractors, Inc., Cbs Corporation, Cbs Corportion, A Delaware Corporation,, C.C. Moore & Co. Engineers, Chevron Products Company, Chevron U.S.A. Inc., Consolidated Insulation, Inc., Crown Cork & Seal Co., Inc., Daimlerchrysler Corporation, Dana Companies, Llc, Dana Companies, Llc Erroneously Sued Herein As, Designated Defense Counsel, Dillingham Construction N.A., Inc., Does 1-8500, Donner Lake Lumber Company, Douglass Insulation Company, Inc., Emsco Asbestos Company, Exxon Mobil Corporation, Fdcc California, Inc., Fibre & Metal Products Company, Fluor Corporation, Forcee Manufacturing Corporation, Ford Motor Company, Foster Wheeler Llc, Gatke Corporation, General Dynamics Corporation, General Electric Co., General Motors Corporation, Georgia-Pacific Consumer Products Lp, Goodmand Lumber Company, Haas And Haynie Corporation, Hamilton Sunstrand Corporation, H. Krasne Manufacturing Company, Honeywell International, Inc., Honeywell International,Inc. Fka Alliedsignal,Inc., Hopeman Brothers Inc., Ingersoll-Rand Company, Insulectro, Italian Swiss Colony, J.T. Thorpe & Son, Inc., Kirtland Enterprise Group, Inc., Konocti Harbor Resort & Spa, Lasco Brake Products, Lear Siegler Diversified Holdings Corp., L.J. Miley Company, Macarthur Company, Marconi Plastering Company, Inc., Maremont Corporation, Metalclad Insulation Corporation, Metropolitan Life Insurance Company, Mill Valley Auto Parts, Inc., Molded Industrial Friction Corporation, Monsanto Company, Sued As "Pharmacia Corporation, Morton International, Inc., National Transport Supply, Inc., Oakfabco, Inc., Oscar E. Erickson, Inc., Pacific Gas And Electric Company, Parker-Hannifin Corporation, Pharmacia Corporation, Plant Insulation Company, Pneumo Abex Llc, Pratt & Whitney, Quintec Industries, Inc., Rapid-American Corporation, Riley Power Inc.,, Riteset Manufacturing Company, Rossendale-Ruboil Company, Santa Fe Braun, Inc., Sequoia Ventures Inc., Shell Oil Company, Sikorsky Aircraft Corporation, Silver Line Products, Inc., Southern Friction Materials Company, Standard Motor Products, Inc., Standco, Inc., Stuart-Western, Inc., Temporary Plant Cleaners, Inc., The Budd Company, The Folger Coffee Company, Thomas Dee Engineering Company, Timec Company, Inc., Todd Shipyards Corporation, Tosco Corporation, Tosco Corporation Erroneously Sued And Served As, Trane Us, Inc. Fka American Standard, Inc., Triple A Machine Shop, Inc., Truckee-Tahoe Lumber Company, Uniroyal Holding, Inc., United Technologies Corporation, Universal Friction Materials Company, Unocal Corporation, U.S. Spring & Bumper Company, Western Asbestos Company, Western Macarthur Company, Wheeling Brake Block Manufacturing Company, Zurn Industries, Llc, for civil in the District Court of San Francisco County.
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ATTORNEYS AT LAW Selman Breitman Lip 28 2706171 166.25888 MARK A. LOVE (SBN 162028), mlove@selmanbreitman.com ELECTRONICALLY RHONDA L. WOO (SBN 168374), rwoo@selmanbreitman.com F ILE D SELMAN BREITMAN LLP Seperer Court of California, 33 New Montgomery, Sixth Floor ounty of San Francisco San Francisco, CA 94105 MAR 18 2013 Telephone: (415) 979-0400 Clerk of the Court Facsimile: (415) 979-2099 BY: ALISON AGBAY Deputy Clerk Attomeys for Defendant DOUGLASS INSULATION COMPANY, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION FLORA OLSON, as Wrongful Death Heir, and Case No. CGC-08-274720 as Successor-in-Interest to JACK OLSON, Deceased; and DONALD OLSON, as Legal DEFENDANT DOUGLASS Heir of JACK. OLSON, Deceased, INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE Plaintiffs, REGARDING STRICT LIABILITY v. Motion in Limine No, 1 TRANE US, INC., et al., Action Filed: July 01, 2008 Defendants. Trial Date: In Trial Defendant DOUGLASS INSULATION COMPANY, INC. (hereinafter " DOUGLASS "), an insulation contractor, submits the following motion in limine to exclude reference to a strict liability cause of action theory by plaintiffs and their counsel. I STATEMENT OF FACT In plaintiffs’ Supplemental/Amended Responses to Interrogatories, Set Nos. One and Two, dated October 27, 2011 and verified on November 3, 2011, plaintiffs could not identify DOUGLASS at any job site. See Declaration of Rhonda L. Woo ("Woo Decl."), Exhs. A, B. At deposition, decedent Jack Olson testified that the only job site that he could recall seeing DOUGLASS insulators was in the early 1950s at a hospital in San Francisco on Parnassus. See Woo Decl., Exh. C, 970:20-975:6, 999:19-24. DEFENDANT DOUGLASS INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITY,2 3 4 5 6 7 8 9 10 & 11 — 5 s 12 e213 ms og 14 e z 15 ae 16 & 17 wn 18 19 20 21 22 23 24 25 26 27 28 270617.t 166.2588 Plaintiffs have yet to designate any portion of DOUGLASS' GO 129 responses but we anticipate that they will similar portions that were designated in Wiley and Ellen Utterback, San Francisco Superior Court Case No. CGC-09-275121. See Woo Decl., Exh. D. Response to Interrogatory Nos. 3, 4, 5, indicate that DOUGLASS operated from 1962 to 1994 and operated as Douglass Insulation Company during an unknown time frame. See Woo Decl., Exhs. E, 4:16-5:6; F, 2:1-13. Response to Interrogatory No. 30 is as follows: Douglass Insulation was in the business of installing insulation, not selling insulation. On rare occasions, Douglass Insulation sold a piece of insulation to a customer as an accommodation. As an occasional seller who engaged in a few isolated transactions, Douglass Insulation is not a "seller" of asbestos-containing products under the Strict Liability Doctrine. Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 254; Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, 187-188; Rest. 2d Torts, §402A, Com. f. Therefore, Douglass Insulation objects to this interrogatory on the grounds that it seeks information which is irrelevant and not calculated to lead to the discovery of relevant evidence. Without waiving this objection, Douglass Insulation responds as follows: Yes as to subsection E. No as to all other subsections, See Woo Decl., Exhs, D; E, 15:18-28; F, 7:11-25. In the Utterback case, plaintiffs’ counsel designated certain portions of DOUGLASS' GO 129 response dated August 25, 1997, Interrogatory No. 31, wherein DOUGLASS identified a total of 10 sales of asbestos-containing products between 1963- 1966 totaling $337.09, wherein there is no evidence that DOUGLASS sold any of these products to the Parnassus job site. See Woo Decl., Exhs. D; E,16:1-17:18; F, 7:26-13:4. In the Utterback case, plaintiffs’ counsel designated certain portions of DOUGLASS’ GO 129 response dated October 14, 1997, Interrogatory No. 33, wherein none of the job sites indicated work in the early 1950s in a boiler room at this Parnassus job site. See Woo Decl., Exhs. E, 19:24-20:22; G; H, 37:20-46:21. n the Utterback case, plaintiffs’ counsel designated certain portions of DOUGLASS’ DEFENDANT DOUGLASS INSULATION’S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITYOo eo WA Selman Breitman LLP ATTORNEYS AT LAW 28 2706174 166.28888 GO 129 response dated November 18, 1997, Interrogatory No. 33, wherein none of the job sites indicated work in the early 1950s in a boiler room at this Parnassus job site. See Woo Deel., Exhs. E, 19:24-20:22; I; J, 36:19-45:21, In this case, plaintiffs have yet to designate testimony against DOUGLASS but DOUGLASS anticipates that plaintiffs will designate similar, if not identical testimony, as was designated in the Utterback case, wherein none of the testimony address any work at the Parnassus job site. See Woo Decl., Exhs, K, L, M, N, O, P. IL ARGUMENT A. SERVICE PROVIDERS ARE NOT SUBJECT TO STRICT LIABILITY DOUGLASS was an outside contractor that performed services. DOUGLASS was not a manufacturer, designer or supplier of asbestos-containing products. It is well-settled that a strict liability action only lies against the designers and manufacturers of a defective product, as well those engaged in the business of selling such a product. In Greenman v. Yuba Power Products, Inc. (1963) $9 Cal.2d 57, 62, the California Supreme Court held that the manufacturer of a product was strictly liable in tort by placing its product on the market, knowing that it will be used without inspection for defects, and causes harm to a person or property. The rationale was that the costs of the injury were better borne by the manufacturer than by the injured person. Jd. at 63. After Greenman, the California courts extended strict liability beyond manufacturers, including "anyone identifiable as 'an integral part of the overall producing and marketing enterprise" or chain of commerce. Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4"" 1527, 1534 (citing Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262). Thus, strict products liability in California has been expanded to include manufacturers, wholesalers, distributors, retailers, bailors, and lessors. See Vandermark, at 262 (retailer subject to strict liability); Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 250-251 (wholesalers, distributors and retailers subject to strict liability); Price v. Shell Oil Company (1970) 2 Cal.3d 245, 253 (bailors and lessors are subject to DEFENDANT DOUGLASS INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITY2 3 4 5 6 7 8 9 0 a 1 we Sg: a= 13 =< ee 14 ai SE 16 a n 8 9 20 21 22 23 24 25 26 27 28 270617.1 166.2588 strict liability). California law is clear that contractors and subcontractors that provide services are not subject te strict products liability. See Jimenez v. Superior Court (2002) 29 Cal.4 473, 479, citing Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 677; see also Gagne v. Beriran (1954) 43 Cal.2d 481, 487 (those who sell services are not liable in absence of negligence or intentional misconduct); Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 345 (negligence, not strict liability, governs services). Even if a contractor installs an allegedly defective product, which it neither manufactures nor is in the business of selling, the contractor is not subject to strict liability. Monte Vista Development Corp. v. Superior Court (1991) 226 Cal.App.3d 1681, 1687. In Monte Vista, the plaintiff filed an action for negligence and strict product liability against, among other defendants, the tile subcontractor, Willey Tile Company. /d. at 1683. The plaintiff claimed that the soap dish installed by Willey Tile Company broke when she used the soap dish to brace herself in cleaning her bath tub, causing a severe laceration. Id. at 1683-1684. In determining whether Willey Tile Company could be held strictly liable, the Monte Vista court focused on whether Willey Tile Company was an entity engaged in the business of selling soap dishes within the meaning of Section 402A of the Restatement of (Second) Torts: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, 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. Id. at 1687 (emphasis added) Applying Section 402A, subdivision 1(a) of the Restatement of (Second) Torts, the court found that Willey Tile Company was not in the business of selling soap dishes or DEFENDANT DOUGLASS INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITY2 3 4 5 6 7 8 9 0 BS 1 ol gg. 7 ee 3 a oe i Mz 1s o 17 1 8 9 20 2 22 23 24 25 26 27 28 2706171 166.25888 other fixtures. /d. It simply purchased the soap dish to complete its service contract to install tiles and fixtures. Jd. Here, plaintiffs sued DOUGLASS for injuries from alleged removal and/or installation of asbestos-containing insulation in decedent's presence. DOUGLASS was an insulation contractor, engaged in the business of performing insulation services as specified by either the general contractor and/or a property owner. DOUGLASS either purchased the materials it used on its projects or had materials supplied to Defendant by the individual or entity that contracted with Defendant. As a service provider, Defendant is not subject to strict liability or strict liability-related theories. Accordingly, under Monte Vista , strict products liability cannot be imposed on Defendant purely for installing insulation. B. DOUGLASS INSULATION WAS NOT A SUPPLIER Strict liability does not apply to isolated transactions but does apply to sellers found to be in the business of manufacturing or retailing. Ortiz v. HPM Corp. (1991) 234 Cal. App.3d 178, 187-188 (citing Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 254). Here, should the Court allow plaintiffs to rely upon certain DOUGLASS GO 129 responses, the responses would only show, at best, any sales of an asbestos-containing product were isolated transactions. Specifically, in DOUGLASS' history from 1962 to 1994, DOUGLASS made a total of 10 sales amounting to $337.09, wherein there is no evidence that DOUGLASS sold any of these products to the Parnassus job site in the early 1950s. fit iif fit ‘ff fii} iid M1 DEFENDANT DOUGLASS INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITY2 3 4 5 6 7 8 9 10 ms i wm Bs 12 a2 2B = oe 14 ae 15 SE 6 n 18 19 20 21 22 23 24 25 26 27 28 270617.1 166,25888 HI. CONCLUSION DOUGLASS respectfully requests the court to exclude any reference by plaintiffs and their counsel regarding strict liability against DOUGLASS. DATED: March 18, 2013 SELMAN BREITMAN LLP By: / s / RHONDA L. WOO MARK A. LOVE RHONDA L. WOO Attorneys for Defendant DOUGLASS INSULATION COMPANY, INC. DEFENDANT DOUGLASS INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITYA oe SD Selman Breitman Lip ATTORNEYS AT LAW 28 270617.) 166.25888 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO Tam employed in the County of San Francisco, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 33 New Montgomery, Sixth Floor, San Francisco, CA 94105. On March 18, 2013, I served the following document(s) described as DEFENDANT DOUGLASS INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITY on the interested parties in this action as follows: BY ELECTRONIC SERVICE: by transmitting a copy of the foregoing document(s) via internet/electronic mail to LEXIS/NEXIS for service on all parties in this case via their e-mail addresses, pursuant to court order. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 18, 2013, at San Francisco, California. Cs CELIZABETH R. SAUNDER: DEFENDANT DOUGLASS INSULATION'S MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING STRICT LIABILITY.