O'NEIL v. CRANE COMPANYAppellants' Supplemental Letter BriefCal.January 10, 2011 r e o E eSUPR NE COURT COPY January 7, 2011 Via Overnight Delivery Chief Justice Cantil-Sakauye and SUPREMEcourt Associate Justices FILE . Supreme Court of California "4 ed 350 McAllister Street San Francisco, California 94102-4797 JAN 10 201 Fredayicic K Obie a <4 APA, h paloy FS : RE: O'Neil v. Crane Co., et al. eh Clerk Case No. 8177401 Dear Chief Justice Cantil-Sakauye and Associate Justices: Plaintiffs and Appellants Barbara O’Neil, et al. respectfully invite this Court’s attention to recently published authority bearing directly on the issue pending before this Court, to wit, whether a manufacturer is responsible for ' foreseeable dangerous combinations of its own product and products supplied by others. The attached Opinions & Orders are from companion cases in the Southern District ofNew York, Curry v. American Standard, et al., Case No. 7:08-CV-10228 and Gitto v. A.W. Chesterton, et al. Case No. 7:07-CV-04771, and directly address the issue before this court. The court denied the defendant manufacturers’ motions for summary judgment, concludingthat ‘‘a manufacturer’s liability for third-party produced component parts must be determined by the degree to which injury from the componentparts is foreseeable to the manufacturer.” (Curry, Opn, p. 3; Gitto, Opn. p. 3.) The Curry and Gitto cases address authorities cited and discussed by Appellants and Respondentsin this matter, Rastelli v. Goodyear Tire & RubberCo, (N.Y. 1992) 591 N.E.2D 222 and Berkowitz v. A.C. & S., Inc. (N.Y. App.Div. 2001) 288 A.D.2d 148, and reconciled the “divergent holdings” of the Rastelli and Berkowitz cases “as resting on consistent application of the same foreseeability principle.” (/d., p. 2-3.) WATERS, KRAUS & PAUL ATTORNEYS AND COUNSELORS PARTNERS C. AndrewWaters (cs, DC. NC. TX} Peter A. Kraus(1%. vay Charles S. Siegel crx) Troyce G. Wolf wry, 7% Michae! L. Armitage (ca, La) B. Scott Kruka ™ Leslie C, MacLean 7) Charles E. Vatles ctx, Tx) Paul C. Cook (ca) Gary M.Paul(ca) Michelle Whitman cx) Kyla Gail Cole cx) John S. Janofsky ica. pe) Michael B. Gurien (ca) Scott L. Frost (ca. GA. IN, KY, TX) Greg W. Lisemby 7% Loren Jacobson (ny, TX) ASSOCIATES Joy Sparling «Ly Kevin MM, Loew (ca) Julie L. Celum (rx) Dimitri N. Nichols (ca) BennoAshrafi (ca) Mark Bratt (ca) Demetrios T. Zacharopouios (Mo) Jacqueline G. Badders (oj Susannah B. Chester mm Jillian Rice-Loew (ca) Cindy Young (cay Brent Zadorozny(ca} Melanie J. Gamer(00, 40, NJ.NY} Gibbs C. Henderson(1x) Tae Kim (cay Carrie B. Waters mm Laurel Halbany(ca) Katherine N. Williams (ca. 1% Mark Linder(ca, T) Ari Friedman(ca) Jason Marks(ca) Banafsheh Saifollahi(mp) Joanna A. Hojdus (FL. no Jennifer L Melntosh (ca) AndrewSeitz ica) Elizabeth A. Davis (ca) Peter Klausner ica) OF COUNSEL Kevin E. Oliver rx William Galerston (1,1 Randall L. lola (&, ok, Dg George G. Tankard {II (00, sa. Mo, PA, ingrid Evans (cA. pc. NY) Jonathan A. George(ca, TX va) Wm. Paul Lawrence I (La. D wa? David Bricker (ca) LOS ANGELES: 222 NORTH SEPULVEDA BOULEVARD SUITE 1900 EL SEGUNDO, CALIFORNIA 90245. TEL 310 414 8146 FAX 310 414 8156 SAN FRANCISCO: 711 VANNESS AVENUE SUITE 220 SAN FRANCISCO, CALIFORNIA 94102 TEL 800 226 9880 FAX 214 777 0470 BALTIMORE: 315 NORTH CHARLES STREET BALTIMORE, MARYLAND 21201 TEL 410 5281153 FAX 410 528 1006 DALLAS: 3219 McKINNEY AVENUE DALLAS, TEXAS 75204 TEL 214 357 6244 FAX 214 357 7252 Chief Justice Cantil-Sakauye and Associate Justices January 7, 2011 Page 2 Plaintiffs attach copies of the Curry and Gitto cases hereto for the Court’s convenience. Verytruly yours, Paul C. Cook Attorney for Plaintiffs and Appellants Barbara O’Neil, et al. ec: See Attached Service List EXHIBIT Case 7:08-cv-10228-JSG Document 40 Filed 12/06/10 Page 1 of 4 UNITED STATESDISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MICHAEL CURRY,et al., CASE NO.7:08-CV-10228 Plaintiffs, v. | OPINION & ORDER [Resolving Doc. Nos. 29, 34] AMERICAN STANDARD,et al., Defendants. JAMESS. GWIN, UNITED STATES DISTRICT JUDGE: In this asbestos-related personal injury case, Defendant Crane Co. moves for summary judgmentonthe issue ofCrane’s liability for asbestos-containing products used in conjunction with its own. [Doc. 29.] Crane also objects to this matter beingsetfortrial prior to the resolutionofits summary judgment motion. [Doc. 34.] For the following reasons, the Court DENIES Defendant Crane’s motion for summary judgment and DENIES Crane’s request to rescheduletrial. Upon remand to this Court from the Eastern District of Pennsylvania Multi-District Litigation Court, Judge Eduardo C. Robreno reserved summary judgment on the issue of Crane’s liability for third-party asbestos-containing products. Curry v. Am. Std., No. 2:09-CV-65685, Doc. 59 at 12 (E.D. Pa.). Judge Robreno otherwise denied Crane’s motion for summary judgment, finding a genuine issue ofmaterial] fact as to whether Crane packing andinsulation caused Curry’s injuries. Id. at 9. Plaintiff Michael Curry, now deceased, developed mesothelioma while serving on the USS Case 7:08-cv-10228-JSG Document 40 Filed 12/06/10 Page 2 of 4 Case No. 7:08-CV-10228 Gwin,J. Kitty Hawk, where he workedas a fireman apprentice and a boiler manstriker for the United States Navy beginning in 1963. Curry’s duties included cleaning and repairing certain machinery aboard the Kitty Hawk, including valves and operating pumps. Curry testified that in the course of these duties, he was repeatedly exposed to the asbestos-containing products, primarily when he opened up valves to replace gaskets or packing material. Curry added that the Kitty Hawk contained “thousands of valves,” the majority of which Defendant Crane manufactured. [Doc. 29-4 at 20.] Crane says it is not legally responsible for any gaskets, packing, or insulation that the Navy applied or affixed to Crane valvespost-sale. [Doc. 29.| Crane urges that this Court apply the New York Court of Appeals holding in Rastelli v. Goodyear Tire & Rubber Co., 591 N.E. 222 (N.Y. 1992), to relieve the companyofliability for asbestos-containing componentparts used with Crane valves, but not manufactured or installed by Craneitself. In Rastelli, the New York Court of Appeals declined to hold a tire manufacturer liable for injury resulting from a defective mm produced andinstalled by another manufacturer. In so holding,the court noted that the manufacturer “had no role in placing that rim in the stream of commerce, and derived no benefit fromits sale.” Id. at 298. However, in Berkowitz v. A.C. & S., Inc, 288 A.D.2d 148 (N.Y. App. Div. 2001), the New York Appellate Division held that a pump manufacturer could be liable for asbestos-containing insulation manufactured andinstalled by third parties, where the manufacturer knewthat insulation, were it to be used on the pump, would be made of asbestos. Crane characterizes Rastelli and Berkowitz as directly opposed, and Rastelli as necessitating a dismissal of claims against Crane. . However, the Court viewsthese divergent holdingsas resting on consistent application of the same -foreseeability principle. S Case 7:08-cv-10228-JSG Document 40 Filed 12/06/10 Page 3 of 4 Case No. 7:08-CV-10228 Gwin, J. The Court thus finds that a manufacturer’s liability for third-party componentparts must be determined by the degree to which injury from the component parts is foreseeable to the manufacturer. Accordingly, the issue of Crane’s lability for third-party component productsrests in the degree to which Cranecould or did foresee that its own products would be used with asbestos- containing components. Where Crane’s products merely could have been used with asbestos- containing components, the New York Court of Appeals holding in Rastel/i cautions against imposing liability. Yet where, as in Berkowitz, Crane meantits products to be used with asbestos- containing componentsorknew thatits products would be used with such components, the company remains potentially liable for injuries resulting from those third-party manufactured andinstalled components. Crane acknowledgesthatits valves originally included gaskets and packing that contained asbestos. It further admits that these componentparts wouldat times require repair or replacement. [Doc. 29 at 2,n.3.] In opposition to the Defendant’s original motion for summary judgment, filed in the Eastern District ofPennsylvania,the Plaintiffproffered the expert testumony ofAmold Moore, a retired navyengineer. Curry, No. 2:09-CV-65685, Doc. 32-3 (E.D. Pa.). Mooretestified about the normalindustry practiceat the time ofCurry’s employmentat the BrooklynNaval Yard. Moore states that it was normalindustry practice for the bodies ofCrane’s valvesto be insulated in asbestos and that the flanged connections to those valves normally contained gaskets with asbestos content. Id. Further supporting the point that Crane knew that its valves would be matched with asbestosis Crane’s own product catalog. Curry, No. 2:09-CV-65685, Doc. 31-5 (E.D. Pa.). This catalog containsa sectionlisting asbestos containing insulating materialsproduced byJohns-Manvillefor ~ use.with Crane’s valves and: also lists Crane’s own brand of asbestos containing gaskets and packing. Jd. Case 7:08-cv-10228-JSG Document 40 Filed 12/06/10 Page 4 of 4 Case No. 7:08-CV-10228 Gwin,J. The Court finds that the Plaintiff has proffered sufficient evidence to create a triable issue of material fact regarding whether it was foreseeable that Crane’s valves would be used with _asbestos-containing component parts. Accordingly, this Court DENIES Crane’s motion for summary judgment. Furthermore, because the Court has now decided the remaining issue on summary judgment, it finds no reason to continue thetrial date and DENIES Crane’s objection to the scheduling order as moot. IT IS SO ORDERED. Dated: December6, 2010 feXBa— JAMESS. GWIN UNITED STATES DISTRICT JUDGE - EXHIBIT B Case 7:07-cv-04771-JSG Document 47 Filed 12/07/10 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK. SALVATORE GITTO,et al, CASE NO.7:07-CV-04771 Plaintiffs, V. : OPINION & ORDER ; [Resolving Doc. Nos. 40, 42] A.W. CHESTERTON,et al., Defendants. JAMES S. GWIN, UNITED STATESDISTRICT JUDGE: In this asbestos-related personal injury case, Defendant Crane Co. moves for summary judgmentonthe issue ofCrane’s liability for asbestos-containing products used in conjunction with its own products. [Doc. 40.] Crane also objects to this matter being set for trial prior to the resolution of its summary judgment motion. [Doc. 42.] For the following reasons, the Court DENIES Defendant Crane’s motion for summary judgment and DENIES Crane’s request to rescheduletrial as moot. Upon remand to this Court from the Eastern District of Pennsylvania Multi-District Litigation Court, Judge Eduardo C. Robreno reserved summary judgmenton the issue of Crane’s liability for third-party asbestos-containing products. Gitto v. A.W. Chesterton Co. Inc., No. 2:07- CV-73417, Doc. 98 at 1 (E.D. Pa.). Judge Robreno otherwise denied Crane’s motion for summary judgment, finding a genuine issue.ofmaterial fact as to whether Crane packing andinsulation caused Curry’s injuries. [d, Doc. 96at 7-8, Plaintiff Salvatore Gitto, now deceased, developed mesotheliomaasa result of exposure to -l- Case 7:07-cv-04771-JSG Document 47 Filed 12/07/10 Page 2 of 4 Case No. 7:07-CV-04771 Gwin,J. asbestos while employed by the United States Navy as a shipfitter mechanic and shipbuilding and hull machinery inspector Gitto was employed as a shipfitter from 1951 to 1996 and spent the majority of his time working at the Brooklyn Navy Yard. Gitto was responsible for building the structural foundation of new ships, as well as performing structural repairs on re-commussioned older vessels. Specifically, he spent a great deal of time removing asbestos-containing insulation and piping and wasalso present while other tradesmaninstalled new piping and insulation. Specific to Crane and other valve manufacturers, Gitto also recalls building foundations for valves and was present when old valves were broken down. /d., Doc. 93 at 1-9, Doc, 96 at 2-4. Crane says it is not legally responsible for any gaskets, packing, or insulation that the Navy appliedor affixed to Crane valves post-sale. [Doc. 40 at 2.] Crane urges that this Court apply the New York Court of Appeals holding in Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992), to relieve the companyofliability for asbestos-containing componentparts used with Crane valves, but not manufacturedor installed by Craneitself. In Rastelli, the New York Court of Appeals declined to hold a tire manufacturer lable for injury resulting from a defective rim produced andinstalled by another manufacturer. In so holding, the court noted that the manufacturer “had no role in placing that rim in the stream of commerce, and derived no benefit from its sale.” Id, at 298. However, in Berkowitz v. A.C. & S., Inc., 288 A.D.2d.148 (N.Y. App. Div. 2001), a New York Appellate Division court held that a pump manufacturer could be held liable for asbestos- containing insulation manufacturedandinstalled bythird parties, where the manufacturer knewthat ‘insulation, were it to beusedonthe pump, would be made ofasbestos. Cranecharacterizes Rastelli and Berkowitz as directly opposed, and Raste/li as necessitating a dismissal ofclaims against Crane. Case 7:07-cv-04771-JSG Document47 Filed 12/07/10 Page 3 of 4 Case No. 7:07-CV-04771 Gwin,J. However, the Court views these divergent holdingsas resting on consistent application of the same foreseeability principle. The Court thusfinds that a manufacturer’s liability for third-party produced componentparts must be determined bythe degree to which injury from the componentparts is foreseeable to the manufacturer. Accordingly, the issue of Crane’s liability for third-party component productsrests on the degree to which Crane could or did foresee that its own products would be used with asbestos-containing components. Where Crane’s products merely could have been used with asbestos-containing components, the New York Court of Appeals holding in Raste/li cautions against Imposing liability. Yet where, as in Berkowitz, Crane meant its products to be used with asbestos-containing componentsor knewthatits products would be used with such components, the company remains potentially liable for injuries resulting from those third-party manufactured and installed components. Crane acknowledgesthat its valves originally included gaskets and packing that contained asbestos. Gitto, No. 2:07-CV-73417, Doc. 62-6 at 12 (E.D. Pa.). Crane further admits that these componentparts would eventually require repair or replacement. Curry v. American Standard, No. 08-CV-10228, Doc. 29 at 2,n.3, (S.D.N.Y.). In opposition to the Defendant’s original motion for summary judgment, filed in the Eastern District of Pennsylvania, the Plaintiff proffered the expert testimony of Armmold Moore,a retired navy engineer. Gitto, No. 2:07-CV-73417, Doc. 62-4 (E.D. Pa.). Mooretestified about the normal industry practice at the time of Gitto’s employmentat the Brooklyn Naval Yard. Moorestates that it was normal industry practice for the bodies of Crane’s valves to be insulated in asbestos andthat theflanged: connections to those valves normally ~. contained gaskets with asbestos content. Jd.” Further supporting the point that Crane knewthat its valves would be matched with asbestos is Crane’s own product catalog. Gitto, No. 2:07-CV-73417, -3- . Case 7:07-cv-04771-JSG Document47 Filed 12/07/10 Page 4 of 4 Case No. 7:07-CV-04771 Gwin,J. Doc. 62-7 at 12 (E.D. Pa.). This catalog contains a section listing asbestos containing insulating materials produced by Johns-Manville for use with Crane’s valves and alsolists Crane’s own brand ‘of asbestos containing gaskets and packing. Jd. The Court finds that the Plaintiff has proffered sufficient evidence to create a triable issue of material fact regarding whether it was foreseeable that Crane’s valves would be used with asbestos-containing component parts. Accordingly, the Court DENIES Crane’s motion for summary judgment. Furthermore, because the Court has nowdecided the remaining issue on summary judgment, it finds no reason to continuethe trial date and DENIES Crane’s objection to the scheduling order as moot. IT IS SO ORDERED. Dated: December 7, 2010 feABa— JAMESS. GWIN UNITED STATES DISTRICT JUDGE PROOF OF SERVICE STATE OF CALIFORNIA ) ) COUNTY OF LOS ANGELES ) I am over eighteen years of age and not a party to the within action; my business address is 222 North Sepulveda Boulevard, Suite 1900, El Segundo, California. I am employed in Los Angeles County, California. On January 7, 2011, I caused a copy of the following document: Copy ofthe Correspondencesentto the Justices ofthe California Supreme Court re Judicial Notice ofRecently Published Authority in this action by placing the true and correct copies thereof enclosed in sealed envelopes addressed as stated as follows: (By Overnight Express Courier) OVERNITE EXPRESS:(CCP §§1013(c), 2015.5) By placing a true copy thereof enclosed in a sealed envelope,at a station designated for collection and processing of envelopes and packages for overnight delivery by Overnite Express Courier Service as part of the ordinary business practices of Waters, Kraus & Paul described below, addressed to Defendant’s counsel. SEE ATTACHED LIST x (State) I declare under penalty of perjury under the lawsof the State of California that the aboveis true and correct. [-] (Federal) I declare that I am employedin the office of a memberofthe Bar ofthis Court at whose direction the service was made. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at El Segundo,’ California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellationdate or postage meterdate is ‘more than one day after the date of deposit for mailing inthis affidavit. Executed on January 7, 2011, at El Segundo, California. c a Annie Caserma Paralegal Patrick James O'Neil vs. Crane Co. Supreme Court $177401 Wa&K File No. 06-0076- Plaintiffs Service List Warren Pumps, LLC Hepler, Laurie J. CARROLL, BURDICK & MCDONOUGH LLP 44 Montgomery Suite 400 San Francisco, CA 94104 Tel: 415-989-5900 Fax: 415-989-0932 CA Speed Dial 125 Crane Co. Cutting, Curt HORVITZ & LEVY, LLP 15760 Ventura Blvd. 18th Floor Encino, CA 91436-3000 Tel: 818-995-0800 Fax: 818-995-3157 Crane Co. Feyder, Robert E. K&L GATES LLP 10100 Santa Monica Blvd., 7th Floor Los Angeles, CA 90067 Tel: 310-552-5000 Fax: 310-552-5001 CA Speed Dial 118 Ehrlich, Jeffrey Isaac THE EHRLICH LAW FIRM 411 Harvard Ave. Claremont, CA 91711 Tel: 909-625-5565 Fax: 909-625-5477 Page 1 of 1
