Good morning. My name is Harris Jones and I represent the Curtis family. What the district court did in this case is what the jury is supposed to do. The district court weighed the testimony of Mr. Curtis. It could have gone either way, admittedly, and it concluded that based on his testimony, he did not manipulate the asbestos products of the defendants
. I'd like to first address the burden. This is not a CO-TEX versus Cotret case. CO-TEX versus Cotret involved an admission in the form of an interrogatory by the plaintiff that she did not have a witness identifying an exposure by the decedent to the CO-TEX product that issue. That is not what we have today. In this case, the defendants all admit that there is a witness who testified about work with their products
. The defendants all admit that that witness, Mr. Curtis, was available to them because they took his deposition. The defendants didn't meet their burden because all they did was cherry pick selections from Mr. Curtis's deposition without presenting any other evidence, disproving an element of plaintiffs claims. All three MSJs are predicated on one element of plaintiffs claims, not all elements
. The only element attacked by the defendants is did Mr. Curtis manipulate and asbestos component of the defendants products. They do not present any evidence as to whether or not those products contained evidence. They could have brought evidence saying that we've looked at the products described by Mr. Curtis and we know these to be not asbestos contained
. They never presented any evidence that the work described by Mr. Curtis if it did involve the asbestos components of the products could not have caused an asbestos exposure and they did not bring any evidence that if that work caused an asbestos exposure that exposure would be insufficient to cause the disease, mesothelioma. Well, couldn't you have made this case a lot easier if when the Mr. Curtis is now deceased, correct? That's correct. So if you had more if you'd done a better job of straightening out the inconsistencies, I mean if that had been followed up more in terms of the deposition testimony and then also to now you're asking us to consider the deposition testimony of Mr
. Mang them. I don't think it's necessary to consider. I know, but if all of that had gotten in, if the inconsistencies had been discussed a little more in detail at the at when his deposition was taken when he was alive and if that Mr. Mangum's testimony was before us, it would be a lot easier case, wouldn't it? Yes. Okay, so why should we consider the deposition testimony and Mr
. Mangum at this particular stage? I don't think you need to. I think that what Mr. Mangum does is corroborate everything that the decedent said happened. Now what the decedent said happened is he worked with their products. He worked with them in a fashion that caused the release of dust
. He testified that those products were as best as containing and he had foundation for those opinions. His foundation was that he was an electrician of almost 50 years of experience, that he was trained in how to use this equipment and commercial and industrial settings both by the United States Navy and through as a four-year apprenticeship which included two two days of classes a week for the four-year period. He also testified that he could tell the difference between an asbestos and a non- asbestos product by its appearance. And what is important to consider here is that one of the defendants admits in an exhibit. The exhibit is called ABB Power Distribution as Bestus Information
. It is page 408 of the record. This document is very significant. It says that molded asbestos materials were used in ABB art shoots. ABB is the successor to ITT. So whenever Mr
. Curtis describes work with an ITT product that is now an ABB product. ABB says asbestos art shoots had a modeled cement gray white color whereas the non- asbestos material is a more uniform cement gray color. The improved non- asbestos art shoot molding are all black in color. Mr. Curtis says throughout his testimony that the appearance of the cement art shoots and the white swirls in it that could he could see fibers
. He described discolorations within the product which is consistent with the admission of the defendant and the moving party ABB ITE with an asbestos component. All of the defendants admit that the products at issue included asbestos. Two of them say some of them did some of them didn't. That is not sufficient to meet their burden. Schneider Electric which is responsible for the square D components moved on whether or not the plaintiffs could prove that the products were asbestos containing. And the evidence they brought is one that Mr. Curtis said he only worked with square D breakers and no other product. In fact Mr. Curtis testified that he worked with square D motor controllers. At the end of the deposition around page 1100 of a nine day deposition of an elderly man with a cancer that did not take his life because he committed suicide because of the pain and suffering caused by that cancer
. And the evidence they brought is one that Mr. Curtis said he only worked with square D breakers and no other product. In fact Mr. Curtis testified that he worked with square D motor controllers. At the end of the deposition around page 1100 of a nine day deposition of an elderly man with a cancer that did not take his life because he committed suicide because of the pain and suffering caused by that cancer. 1100 or 1200 pages into the deposition when being asked about one particular job site they asked him did you work on circuit breakers for square D he said yes then they said did you work on anything else and he said no. Around page 100 of the 1200 plus day deposition 1200 plus page deposition Mr. Curtis testified he worked on motor controllers that included arc shoots and the defense council never confronted Mr. Curtis with that testimony. This would be very clean for the Attellys had the questioning attorney said well Mr
. 1100 or 1200 pages into the deposition when being asked about one particular job site they asked him did you work on circuit breakers for square D he said yes then they said did you work on anything else and he said no. Around page 100 of the 1200 plus day deposition 1200 plus page deposition Mr. Curtis testified he worked on motor controllers that included arc shoots and the defense council never confronted Mr. Curtis with that testimony. This would be very clean for the Attellys had the questioning attorney said well Mr. Curtis in day one two three six you said that you work with another square D product. Are you saying that that didn't happen and if he said yes you know I thought about it and I never really work with that product well we've got a different situation that is not the situation we have before us. So you rely on El Meldi is that your case for inconsistencies that you're relying on? That's not the only case I know that that particular case can be unpopular in the night and with many justices that's an unpopular case and I understand that the point is I would rely on Nissan fire and marine you've got to resolve all questions of fact and fit fact in favor of the non-moving party and that is not what happened. What this judge said is okay he said in the beginning of the deposition that he worked with this stuff he said at the end of the deposition he didn't work with the stuff I conclude he didn't work with the stuff that is the weighing of evidence that's what jurors do. Let me ask you yes let's assume I mean I've already discussed with you that if the read could have been thicker than it is if certain things have been done with Mr
. Curtis in day one two three six you said that you work with another square D product. Are you saying that that didn't happen and if he said yes you know I thought about it and I never really work with that product well we've got a different situation that is not the situation we have before us. So you rely on El Meldi is that your case for inconsistencies that you're relying on? That's not the only case I know that that particular case can be unpopular in the night and with many justices that's an unpopular case and I understand that the point is I would rely on Nissan fire and marine you've got to resolve all questions of fact and fit fact in favor of the non-moving party and that is not what happened. What this judge said is okay he said in the beginning of the deposition that he worked with this stuff he said at the end of the deposition he didn't work with the stuff I conclude he didn't work with the stuff that is the weighing of evidence that's what jurors do. Let me ask you yes let's assume I mean I've already discussed with you that if the read could have been thicker than it is if certain things have been done with Mr. Magnum and the inconsistencies had been probed a bit more but let's just assume for the sake of argument that if we reversed in this case I'm not saying that we haven't talked about it so I don't know what we're gonna do but would the defendants then be free to move for summary judgment on a different ground on remand such as sufficiency of the medical evidence of causation because it seems that they got denied that. They didn't bring that evidence they said that so they said in their moving papers I have all of the motions for summary judgment in front of me all of them say you can't prove causation because you can't prove product identification and oh by the way this exposure isn't sufficient to cause me is a theliuma they could have brought that motion for summary judgment or more correctly they could have brought that evidence but chose not to the district court sites that the plaintiffs the non-moving party failed to bring a declaration from an industrial hygienist or a medical doctor we would be bringing that in opposition to motions for some or judgment that brought zero evidence on that the burden is on the defendants to bring this evidence so they did make that argument they presented no evidence so it would be up to the district judge I don't think so I think they've shot their bullet and they missed that's what I mean they brought the argument they didn't support it with evidence the motion for summary judgment would be enough is that before is is the causation before us they have made the argument unsupported by evidence that there is insufficient evidence to prove causation I'll hear what they have to say but I don't think that arguments before us if it's not then conceivably they could bring evidence on that and we would bring our evidence on that and there would be a determination that's not what happened in this case the Schneider evidence and let me address one thing brought up in the Cutler Hammer and cited by the judge that at some point at the end of the deposition the the sedent was asked what work he did on these pieces of equipment that included our shoes and at page 1200 and when he the 1200 page marks somewhere around there he testified that he worked with the metal component in the same pages they submitted he talks about filing the art shoes the district court latched on to this testimony at the end despite other testimony even in cross examination I know that the the appellees say well the plaintiff was asked and the plaintiff's attorney was asking softball questions and and sure he went along with it then but when we cross examine them that's when the thing fell apart well not true with ABB ITE the plaintiff testified that this is at page 1226 is there anything about maintaining the larger breakers that you would have that believe that you believe would have exposed you to asbestos answer and this is page 164 of the record I'm sorry cleaning the art suits themselves the contacts anywhere around that blowing them out later on just general cleaning that's another important part there's testimony in the record about the use of compressed air to clean these up asbestos components that is not addressed by the defendants and their appellees and their motions for summary judgment and it's not addressed by the district court secondly another exposure brought in the facts was these as best as components exploded mr. Curtis was an electrician he worked in the navy and in power plants when there was a storm elect lightning would hit things cause electrical equipment to explode including asbestos electrical equipment that he cleaned up that is not addressed in the motions for jump summary judgment nor is it addressed by the district court's order finally on the the testimony dealing with whether or not he recalled sanding the asbestos art suits one defendant admits all of our our suits were asbestos eaten cutler hammer says from 1940 to 1980 all of our suits are asbestos oh and by the way there's other asbestos stuff in our products also but at page 166 which is of the deposition page 1,230 mr. Curtis when being asked about our suits testified that it was made out of probably concrete like I say it looked a lot like this pipe I had run earlier that I found out to be asbestos some of them were white and some of them you could see take out the breaker itself clean it up sand paper it knocked the burrs off of it clean it with a carbon teclic technique chloride or another cleaning agency this information was before the district court this is not information that has been brought in after the motions the court had this these facts and did not consider them and I have to save a minute for a while good morning can you hear me okay my name is Michelle Barnes and I represent Schneider Electric which is also known as Squaredy in this case I'm gonna proceed with the first five minutes and then council for ABB and council for Eden will each take five minutes as well we've tried to divide things up by topics so there's not too much redundancy as well I'll cover most of the product ID issues Mr. Katindall for ABB will cover some of the causation issues and mr
. Magnum and the inconsistencies had been probed a bit more but let's just assume for the sake of argument that if we reversed in this case I'm not saying that we haven't talked about it so I don't know what we're gonna do but would the defendants then be free to move for summary judgment on a different ground on remand such as sufficiency of the medical evidence of causation because it seems that they got denied that. They didn't bring that evidence they said that so they said in their moving papers I have all of the motions for summary judgment in front of me all of them say you can't prove causation because you can't prove product identification and oh by the way this exposure isn't sufficient to cause me is a theliuma they could have brought that motion for summary judgment or more correctly they could have brought that evidence but chose not to the district court sites that the plaintiffs the non-moving party failed to bring a declaration from an industrial hygienist or a medical doctor we would be bringing that in opposition to motions for some or judgment that brought zero evidence on that the burden is on the defendants to bring this evidence so they did make that argument they presented no evidence so it would be up to the district judge I don't think so I think they've shot their bullet and they missed that's what I mean they brought the argument they didn't support it with evidence the motion for summary judgment would be enough is that before is is the causation before us they have made the argument unsupported by evidence that there is insufficient evidence to prove causation I'll hear what they have to say but I don't think that arguments before us if it's not then conceivably they could bring evidence on that and we would bring our evidence on that and there would be a determination that's not what happened in this case the Schneider evidence and let me address one thing brought up in the Cutler Hammer and cited by the judge that at some point at the end of the deposition the the sedent was asked what work he did on these pieces of equipment that included our shoes and at page 1200 and when he the 1200 page marks somewhere around there he testified that he worked with the metal component in the same pages they submitted he talks about filing the art shoes the district court latched on to this testimony at the end despite other testimony even in cross examination I know that the the appellees say well the plaintiff was asked and the plaintiff's attorney was asking softball questions and and sure he went along with it then but when we cross examine them that's when the thing fell apart well not true with ABB ITE the plaintiff testified that this is at page 1226 is there anything about maintaining the larger breakers that you would have that believe that you believe would have exposed you to asbestos answer and this is page 164 of the record I'm sorry cleaning the art suits themselves the contacts anywhere around that blowing them out later on just general cleaning that's another important part there's testimony in the record about the use of compressed air to clean these up asbestos components that is not addressed by the defendants and their appellees and their motions for summary judgment and it's not addressed by the district court secondly another exposure brought in the facts was these as best as components exploded mr. Curtis was an electrician he worked in the navy and in power plants when there was a storm elect lightning would hit things cause electrical equipment to explode including asbestos electrical equipment that he cleaned up that is not addressed in the motions for jump summary judgment nor is it addressed by the district court's order finally on the the testimony dealing with whether or not he recalled sanding the asbestos art suits one defendant admits all of our our suits were asbestos eaten cutler hammer says from 1940 to 1980 all of our suits are asbestos oh and by the way there's other asbestos stuff in our products also but at page 166 which is of the deposition page 1,230 mr. Curtis when being asked about our suits testified that it was made out of probably concrete like I say it looked a lot like this pipe I had run earlier that I found out to be asbestos some of them were white and some of them you could see take out the breaker itself clean it up sand paper it knocked the burrs off of it clean it with a carbon teclic technique chloride or another cleaning agency this information was before the district court this is not information that has been brought in after the motions the court had this these facts and did not consider them and I have to save a minute for a while good morning can you hear me okay my name is Michelle Barnes and I represent Schneider Electric which is also known as Squaredy in this case I'm gonna proceed with the first five minutes and then council for ABB and council for Eden will each take five minutes as well we've tried to divide things up by topics so there's not too much redundancy as well I'll cover most of the product ID issues Mr. Katindall for ABB will cover some of the causation issues and mr. Baronean will cover the issues related to pre-procedure and mr. Magnum's deposition although it appears that may no longer be at issue what plaintiffs have asked that the federal rules of evidence and the federal rules of civil procedure do not apply to asbestos plaintiffs I don't think that's what's going on here I think it's you know it's whether there's some inconsistencies in the statements and they could have done better job of straightening that out but why isn't it up to a jury to determine that you know it only has to be a pretty slim read to go to a jury I think it's important to understand the procedural process a posture of this case this case plaintiffs sued 50 defendants mr. Curtis was deposed over a series of days plaintiffs interrupted that deposition numerous times to say that the time was up nobody could ask any more questions defendants were given an average of 20 minutes to cover 40 years of work history with this individual plaintiffs needed to make sure that the sufficient evidence was in the record 20 minutes there were 50 defendants so there were 50 people who needed to ask questions and so when you broke it down people were given an average of 20 minutes to cross examine the plaintiff plaintiff has a burden of proof in this case on three issues product identification asbestos content and causation it all starts with product identification with respect to um..
. Baronean will cover the issues related to pre-procedure and mr. Magnum's deposition although it appears that may no longer be at issue what plaintiffs have asked that the federal rules of evidence and the federal rules of civil procedure do not apply to asbestos plaintiffs I don't think that's what's going on here I think it's you know it's whether there's some inconsistencies in the statements and they could have done better job of straightening that out but why isn't it up to a jury to determine that you know it only has to be a pretty slim read to go to a jury I think it's important to understand the procedural process a posture of this case this case plaintiffs sued 50 defendants mr. Curtis was deposed over a series of days plaintiffs interrupted that deposition numerous times to say that the time was up nobody could ask any more questions defendants were given an average of 20 minutes to cover 40 years of work history with this individual plaintiffs needed to make sure that the sufficient evidence was in the record 20 minutes there were 50 defendants so there were 50 people who needed to ask questions and so when you broke it down people were given an average of 20 minutes to cross examine the plaintiff plaintiff has a burden of proof in this case on three issues product identification asbestos content and causation it all starts with product identification with respect to um... square d plaintiff was asked to identify the electrical products he worked with he identified five manufacturers after the and square d was not one of them was only after that when his own attorney said didn't you work with square d also that's the identification of square d and how it comes into this case plaintiffs council is then intentionally vague and mixing descriptions of products and components that might be used with products to create this supposed inconsistency and testimony and supposed question of fact the fact is that plaintiff hasn't identified any specific product that's an issue only classes and categories of products we know from his testimony however that just saying that something is a motor starter or something is a breaker doesn't mean that everything that falls within that category is the same square he motor controllers for example were fully enclosed box that's the speaker that's sitting in front of you the arch shoots in those were inside the box and could not be accessed mr. Curtis provides that testimony for us so when he provides general testimony that throughout his career he used all of these manufacturers products and he did the type of work that he explained on arch shoots he's not talking about a specific square d product he's giving just big generalized testimony but why isn't that enough to go to a jury that might be why you win but I mean summary judgment is a pretty you know it's a pretty it's kind of a pretty slim read can put you past it it's a slim read but the problem is we don't like you have a guy here that didn't work around as best host it's not like he didn't have the jobs that would put him in exposure it's not like your product isn't mentioned it just isn't okay from what you see here you could say yeah it's not the strongest case or maybe that's why but there's something there but the test can't be it's not like me as a judge that I'm saying that I worked on your you know that I've never been around any about stuff the test can't be if if you manufacture any product at any time that can change his best is and if that plane if can identify your product therefore you're on the hook it can't that can't be the test if we're looking at general product liability case say for example someone sued Ford and said your airbag killed me you would have to say what the model and what the year of manufacturer or at least a general year of manufacturer that product was so that Ford to come in and say the product you're talking about had an airbag or never had an airbag so that they could actually talk about that product and defend against that product we're not even getting to the first step of identifying what the product is that we're talking about so that Square D or the other manufacturers can come back and say no it didn't we don't get through the first step even if we do get past that first step and we assume that it is a square-de-product that did have an arch-shoot the work that he described was on metal components the work that he described on non-metal components was using a solvent on them there's no evidence in the record that using a solvent on a non-metal component which may or may not be a constant he appears to contradict himself with respect to whether and how he physically handled and sanded certain electronic electrical components there is no specific evidence in the record that he ever did that work of Square D and when he was asked the specific question whether he did do it with Square D his response was no he did not he did not do it with an arch-shoot on a square-de-breaker he did not do it with an arch-shoot on any other product so you can't take a general when you have a specific question there's no conflict it's possible that he did do that work on GE products or Westinghouse products but that doesn't cause there to be liability against Square D unless you have any other questions that are specific to Square D I'm gonna go ahead and pass along to other councils they have sufficient time good morning justice is John Cattardol for ABB you have to know there is no justice on the ninth circuit thank you you're on causation is very much at issue and it is before it was before the district court and it was before this court we know it was before the district court for two reasons one as we set forth in our an ABB's answer or answering brief at page 14 we literally quote from the district court's minute order of April 2013 in which the court said that the motions for summary judgment that we all joined in are for product identification and causation plaintiffs counsel in their papers of trying to sell the court on this was this is about product identification this is about identifying asbestos products not so did the court ruling causation yes or under the court did in fact if you look at the courts ruling July 25 the court devoted some discussion to what we've been talking about this morning which is the rather scattered testimony or inconsistent testimony on what the gentleman did with the products but the court went on and spoke at length for two or three pages about causation in other words even assuming that there was some asbestos in the appellees products he talks about their their expert Charlie I and how his opinion was inadmissible about potential exposure to asbestos from those products the court talked about the fact that plaintiffs failed to meet their burden which they have from birth to death in the case as to prove two things one exposure to asbestos from the defendant's products and two and these are intertwined that the exposure was a substantial factor causing the disease that's where the expert testimony comes in no lay witness can give you that foundation no lay witness can give you that opinion it has to come from an expert plaintiffs lawyers knew that that's why they called on Mr. I but it turns out they brought in a career professional insulator to talk about an electricians experience and he had no foundation to do so there's nothing in his CV nothing in his declaration that says he did he did no testing he couldn't talk about fiber release so causation was before I'm not only as reflected in judge Anderson's ruling granted some rejection but in the minute order saying that these motions will be about product identification and causation and if you look at ABB's notice of their motion for some rejection and the text of our motion we go we talk about causation we point out that the plaintiff has not proven exposure to asbestos from our products but in any event he hasn't proven what that exposure would be if you assume argue window there was asbestos in the product which cases to what the standard of on causation is for this case it's the Lindstrom case from the sixth district it's a 2005 decision it came up in the context of maritime law which plaintiffs counsel admits was the basis for jurisdiction in this case and in that in that decision your honors the Lindstrom court said the following and this is at Lindstrom the AC product liability trust 424 f3rd 488 2005 at page 492 minimum exposure to a defendant's product is insufficient likewise a mere showing that defendant's product was present somewhere at plaintiffs place of work is insufficient rather were a plaintiff relies on proof of exposure to establish that a product was a substantial factor in causing injury the plaintiff must show a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural well but if you say that but what if if we were to conclude that he did show he was exposed then how then that would that infects the district courts ruling that raises the second prong of what the plaintiffs have to prove your honor they have to prove threshold exposure exposure to a product that has asbestos in it that's number one that's under the California Supreme Court standard and Rutherford what if I think that they did what if I think that met that burden then what they would have to prove a trial and what they would have to prove in opposition to some rejudgment is that they have some admissible evidence quantifying it in some way they can't just say I took a piece of sandpaper to an Rxhoot and sometimes it may have had asbestos in it and sometimes it didn't we don't know how much or how often we don't know how much if any fiber was released by these phenolic plastic materials or the cement type Rxhoots there's no there's nothing before there was nothing before the district court and there would have to be something before him or before the jury or there is no way the plaintiff meets the second prong of the standard of causation that it's a big zero they leave us it basically they invite a coin flip and that's what they did with this judge and the district court judge was not going to let them go to the jury and ask them to flip a coin if they had any evidence your honor on that second prong they had to produce it because the the burden shifted to them and they failed to produce that they they went with Charlie eyes deposition or sorry his declaration which was held in admissible and they want with mr. cursus testimony and I think I'll move over from my time sorry your honors Robert Boronion for defendant eating or respond an eating corporation which is here for Cutler Hammer never seen lawyers move that well we're trying I'm looking at the clock and I'm very good by no no well I've actually done a really good job of taking keeping track of each other's times most of the time the first one hogs all the time and least nothing left so I don't want to take your time so look how much time did you think you had it shows 303 no but what did you what were they telling you you would have oh we were gonna split five evenly 15 555 so can we give him five sure okay it's very kind thank you all right well I think a number of the points have been made I can respond to questions the bottom line is this the court has raised an interesting question which is and it's true in these cases and that was what happened here I've done these for over 30 years so I know when you have a massive defendants like this over 50 being sued it's it's it's a very difficult organizational thing to take these depositions and what ends up happening is as the deposition continues plotting along and variable you get into that time crunch where the plaintiffs attorney is saying look we got to get out of here let's go let's go hurry up and people towards the end are getting squeezed and you end up with 10 15 minutes to ask your questions the bottom line is with respect to my client it's very clear that when he was asked specifically as to Cutler Hammer he said that and it's it's cited in the brief it's in the it's tab 36 of the supplemental excerpts 1472 and 1475 and this is that portion I think you're on a referred to earlier where he said very clearly and again sir the question and again sir you've told this this already with respect with regard to other manufacturers of our shoots but you never had to drill or cut or a braid or sand any of those our shoots correct answer I would use a light abrasive sandpaper sometimes question and that's for the carbon build up on the metal part answer yes sir question correct answer right where it contacts question but nothing other than that correct answer right yes sir and then little further on three pages later and as you told us before you never had to drill or cut or a braid any of the materials associated with the arch shoots is that correct answer no sir I did not no sir oh to say that in the beginning there's in consistency I mean this is crystal clear this is putting the exact issue that really the gravamon of this case because in a spestus containing product such as what's alleged here it doesn't matter if this is a spestus containing we said it here none of us are in danger the only time there's a problem is if you do something to it a braid it sand it do something to it to liberate fibers from with and you did say he sanded though well he said he sanded the metal parts and that's what he said that just now and then it goes on to say question I'm talking about the actual contacts themselves you would not varnish or do anything to the context that would damage the surface the context of the metal copper pieces that open and close to allow the electricity to flow when it opens electricity can't flow when it closes electricity can't and he says oh we would work we could use a file on those surfaces question on the metal surface answer on the metal surface sure they were a hundred percent copper if they were pitted in then we wanted to take those pits out because those pits would just got worse question and sir for those arcshoots themselves would you use any kind of cloth or a kind of paper to get the carbon off the arcshoots answer we'd use carbon tetra chloride they had cleaners and they had sprayers CCR makes a bunch of sprays for cleaning context later on in the years they came up with many products to do this job question and those are all solvents correct answer yes yes and then further he says at page I mean at in the in the same record it's for well this is actually from the excerpt from plaintiff tab twelve four seventy nine sir question sir for the bake a light casing do you recall specifically ever having to cut drill sander a braid any bake a light casing associated specifically with cutler hammer equipment answer I can remember touching up the side of the bake a light where the context went together and cleaning that with a solvent and then he goes on to talk about file but he's asked again was that a solvent and he said yes and he said it was true for all manufacturers so the point I'm making and I think the gravamen of this case is and why the district court judge did what he did is because bottom line you just still this case down to its essence the testimony is clear that he did not sand drill cut a braid do something other than to the metal surfaces and that was what the district court judge held and as it was pointed out by my co-defendant under linds you have to weigh the evidence to do that no I think he looked at the testimony when the specific question was asked that you got the specific answer because I think at the beginning of the deposition there was generalized statements made in a patterned boiler plate approach where every defendant's name was substituted a series of four or five questions were asked and each one was cycled through and you got this general testimony but when each defendant sat down and specifically asked as we did specifically for our client and then even asked this question and that would be true for all manufacturers correct and the answer was correct that's pretty happened and that the evidence is clear and that's why the judge did what he did and it's the right ruling and I believe the appeal should be affirmed reverse unless you have any questions all right thank you as council just admitted and the district court admitted in their order the district court disregarded the general testimony of the plaintiff found in the first two volumes of the deposition and gave greater weight to the question in page 1200 or so and decided that the mr. Curtis did not in fact work with the product an issue in a way to release asbestos fibers I would note that no council that approached this podium ever addressed the fact that mr
. square d plaintiff was asked to identify the electrical products he worked with he identified five manufacturers after the and square d was not one of them was only after that when his own attorney said didn't you work with square d also that's the identification of square d and how it comes into this case plaintiffs council is then intentionally vague and mixing descriptions of products and components that might be used with products to create this supposed inconsistency and testimony and supposed question of fact the fact is that plaintiff hasn't identified any specific product that's an issue only classes and categories of products we know from his testimony however that just saying that something is a motor starter or something is a breaker doesn't mean that everything that falls within that category is the same square he motor controllers for example were fully enclosed box that's the speaker that's sitting in front of you the arch shoots in those were inside the box and could not be accessed mr. Curtis provides that testimony for us so when he provides general testimony that throughout his career he used all of these manufacturers products and he did the type of work that he explained on arch shoots he's not talking about a specific square d product he's giving just big generalized testimony but why isn't that enough to go to a jury that might be why you win but I mean summary judgment is a pretty you know it's a pretty it's kind of a pretty slim read can put you past it it's a slim read but the problem is we don't like you have a guy here that didn't work around as best host it's not like he didn't have the jobs that would put him in exposure it's not like your product isn't mentioned it just isn't okay from what you see here you could say yeah it's not the strongest case or maybe that's why but there's something there but the test can't be it's not like me as a judge that I'm saying that I worked on your you know that I've never been around any about stuff the test can't be if if you manufacture any product at any time that can change his best is and if that plane if can identify your product therefore you're on the hook it can't that can't be the test if we're looking at general product liability case say for example someone sued Ford and said your airbag killed me you would have to say what the model and what the year of manufacturer or at least a general year of manufacturer that product was so that Ford to come in and say the product you're talking about had an airbag or never had an airbag so that they could actually talk about that product and defend against that product we're not even getting to the first step of identifying what the product is that we're talking about so that Square D or the other manufacturers can come back and say no it didn't we don't get through the first step even if we do get past that first step and we assume that it is a square-de-product that did have an arch-shoot the work that he described was on metal components the work that he described on non-metal components was using a solvent on them there's no evidence in the record that using a solvent on a non-metal component which may or may not be a constant he appears to contradict himself with respect to whether and how he physically handled and sanded certain electronic electrical components there is no specific evidence in the record that he ever did that work of Square D and when he was asked the specific question whether he did do it with Square D his response was no he did not he did not do it with an arch-shoot on a square-de-breaker he did not do it with an arch-shoot on any other product so you can't take a general when you have a specific question there's no conflict it's possible that he did do that work on GE products or Westinghouse products but that doesn't cause there to be liability against Square D unless you have any other questions that are specific to Square D I'm gonna go ahead and pass along to other councils they have sufficient time good morning justice is John Cattardol for ABB you have to know there is no justice on the ninth circuit thank you you're on causation is very much at issue and it is before it was before the district court and it was before this court we know it was before the district court for two reasons one as we set forth in our an ABB's answer or answering brief at page 14 we literally quote from the district court's minute order of April 2013 in which the court said that the motions for summary judgment that we all joined in are for product identification and causation plaintiffs counsel in their papers of trying to sell the court on this was this is about product identification this is about identifying asbestos products not so did the court ruling causation yes or under the court did in fact if you look at the courts ruling July 25 the court devoted some discussion to what we've been talking about this morning which is the rather scattered testimony or inconsistent testimony on what the gentleman did with the products but the court went on and spoke at length for two or three pages about causation in other words even assuming that there was some asbestos in the appellees products he talks about their their expert Charlie I and how his opinion was inadmissible about potential exposure to asbestos from those products the court talked about the fact that plaintiffs failed to meet their burden which they have from birth to death in the case as to prove two things one exposure to asbestos from the defendant's products and two and these are intertwined that the exposure was a substantial factor causing the disease that's where the expert testimony comes in no lay witness can give you that foundation no lay witness can give you that opinion it has to come from an expert plaintiffs lawyers knew that that's why they called on Mr. I but it turns out they brought in a career professional insulator to talk about an electricians experience and he had no foundation to do so there's nothing in his CV nothing in his declaration that says he did he did no testing he couldn't talk about fiber release so causation was before I'm not only as reflected in judge Anderson's ruling granted some rejection but in the minute order saying that these motions will be about product identification and causation and if you look at ABB's notice of their motion for some rejection and the text of our motion we go we talk about causation we point out that the plaintiff has not proven exposure to asbestos from our products but in any event he hasn't proven what that exposure would be if you assume argue window there was asbestos in the product which cases to what the standard of on causation is for this case it's the Lindstrom case from the sixth district it's a 2005 decision it came up in the context of maritime law which plaintiffs counsel admits was the basis for jurisdiction in this case and in that in that decision your honors the Lindstrom court said the following and this is at Lindstrom the AC product liability trust 424 f3rd 488 2005 at page 492 minimum exposure to a defendant's product is insufficient likewise a mere showing that defendant's product was present somewhere at plaintiffs place of work is insufficient rather were a plaintiff relies on proof of exposure to establish that a product was a substantial factor in causing injury the plaintiff must show a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural well but if you say that but what if if we were to conclude that he did show he was exposed then how then that would that infects the district courts ruling that raises the second prong of what the plaintiffs have to prove your honor they have to prove threshold exposure exposure to a product that has asbestos in it that's number one that's under the California Supreme Court standard and Rutherford what if I think that they did what if I think that met that burden then what they would have to prove a trial and what they would have to prove in opposition to some rejudgment is that they have some admissible evidence quantifying it in some way they can't just say I took a piece of sandpaper to an Rxhoot and sometimes it may have had asbestos in it and sometimes it didn't we don't know how much or how often we don't know how much if any fiber was released by these phenolic plastic materials or the cement type Rxhoots there's no there's nothing before there was nothing before the district court and there would have to be something before him or before the jury or there is no way the plaintiff meets the second prong of the standard of causation that it's a big zero they leave us it basically they invite a coin flip and that's what they did with this judge and the district court judge was not going to let them go to the jury and ask them to flip a coin if they had any evidence your honor on that second prong they had to produce it because the the burden shifted to them and they failed to produce that they they went with Charlie eyes deposition or sorry his declaration which was held in admissible and they want with mr. cursus testimony and I think I'll move over from my time sorry your honors Robert Boronion for defendant eating or respond an eating corporation which is here for Cutler Hammer never seen lawyers move that well we're trying I'm looking at the clock and I'm very good by no no well I've actually done a really good job of taking keeping track of each other's times most of the time the first one hogs all the time and least nothing left so I don't want to take your time so look how much time did you think you had it shows 303 no but what did you what were they telling you you would have oh we were gonna split five evenly 15 555 so can we give him five sure okay it's very kind thank you all right well I think a number of the points have been made I can respond to questions the bottom line is this the court has raised an interesting question which is and it's true in these cases and that was what happened here I've done these for over 30 years so I know when you have a massive defendants like this over 50 being sued it's it's it's a very difficult organizational thing to take these depositions and what ends up happening is as the deposition continues plotting along and variable you get into that time crunch where the plaintiffs attorney is saying look we got to get out of here let's go let's go hurry up and people towards the end are getting squeezed and you end up with 10 15 minutes to ask your questions the bottom line is with respect to my client it's very clear that when he was asked specifically as to Cutler Hammer he said that and it's it's cited in the brief it's in the it's tab 36 of the supplemental excerpts 1472 and 1475 and this is that portion I think you're on a referred to earlier where he said very clearly and again sir the question and again sir you've told this this already with respect with regard to other manufacturers of our shoots but you never had to drill or cut or a braid or sand any of those our shoots correct answer I would use a light abrasive sandpaper sometimes question and that's for the carbon build up on the metal part answer yes sir question correct answer right where it contacts question but nothing other than that correct answer right yes sir and then little further on three pages later and as you told us before you never had to drill or cut or a braid any of the materials associated with the arch shoots is that correct answer no sir I did not no sir oh to say that in the beginning there's in consistency I mean this is crystal clear this is putting the exact issue that really the gravamon of this case because in a spestus containing product such as what's alleged here it doesn't matter if this is a spestus containing we said it here none of us are in danger the only time there's a problem is if you do something to it a braid it sand it do something to it to liberate fibers from with and you did say he sanded though well he said he sanded the metal parts and that's what he said that just now and then it goes on to say question I'm talking about the actual contacts themselves you would not varnish or do anything to the context that would damage the surface the context of the metal copper pieces that open and close to allow the electricity to flow when it opens electricity can't flow when it closes electricity can't and he says oh we would work we could use a file on those surfaces question on the metal surface answer on the metal surface sure they were a hundred percent copper if they were pitted in then we wanted to take those pits out because those pits would just got worse question and sir for those arcshoots themselves would you use any kind of cloth or a kind of paper to get the carbon off the arcshoots answer we'd use carbon tetra chloride they had cleaners and they had sprayers CCR makes a bunch of sprays for cleaning context later on in the years they came up with many products to do this job question and those are all solvents correct answer yes yes and then further he says at page I mean at in the in the same record it's for well this is actually from the excerpt from plaintiff tab twelve four seventy nine sir question sir for the bake a light casing do you recall specifically ever having to cut drill sander a braid any bake a light casing associated specifically with cutler hammer equipment answer I can remember touching up the side of the bake a light where the context went together and cleaning that with a solvent and then he goes on to talk about file but he's asked again was that a solvent and he said yes and he said it was true for all manufacturers so the point I'm making and I think the gravamen of this case is and why the district court judge did what he did is because bottom line you just still this case down to its essence the testimony is clear that he did not sand drill cut a braid do something other than to the metal surfaces and that was what the district court judge held and as it was pointed out by my co-defendant under linds you have to weigh the evidence to do that no I think he looked at the testimony when the specific question was asked that you got the specific answer because I think at the beginning of the deposition there was generalized statements made in a patterned boiler plate approach where every defendant's name was substituted a series of four or five questions were asked and each one was cycled through and you got this general testimony but when each defendant sat down and specifically asked as we did specifically for our client and then even asked this question and that would be true for all manufacturers correct and the answer was correct that's pretty happened and that the evidence is clear and that's why the judge did what he did and it's the right ruling and I believe the appeal should be affirmed reverse unless you have any questions all right thank you as council just admitted and the district court admitted in their order the district court disregarded the general testimony of the plaintiff found in the first two volumes of the deposition and gave greater weight to the question in page 1200 or so and decided that the mr. Curtis did not in fact work with the product an issue in a way to release asbestos fibers I would note that no council that approached this podium ever addressed the fact that mr. Curtis cleaned up after these asbestos products exploded that was not addressed by any of the councils in their motions for summary judgment it was not addressed by the district court and it wasn't addressed in argument nor did they address the fact that compressed air was used to clean these asbestos products I want to ask you a question about the the causation because I am looking at the district court's order and apparently there was an eye declaration that was the district court didn't allow in is that correct or yes wrong okay so and says in its in its decision without the eye declaration plaintiff has no admissible evidence that the seat was exposed to asbestos from defendant's products that was a substantial factor in causing the seat as a Thieleoma so so it seems that causation was not what then I agree with mr. Caterdall that the order setting up the motion for summary judgment said causation was an issue I agree with all all attorneys here that the motions for summary judgment said the word causation and I also agree that according to Nissan fire and marine a moving party may not require the non moving party produce to produce evidence supporting its claim or defense simply by saying that the non moving party has no such evidence and they have all admitted they brought zero evidence on this issue so I wanted to come back to your question of me judge cahillian as to whether or not causation was an issue my answer is yes and ask your question as to whether they would get to bring another motion for summary judgment on causation I would think no they they had their chance it was set up to do it and they brought absolutely no evidence to defend so the district judge it seems like if it's it's not that specifically laid out here but it does sort of seem that the district could throw that in and says without the eye declaration so why are you arguing what's your position about the eye declaration I think it's sufficient but I don't think I need it the plaintiff but it wasn't let in right I agree and why was that said it didn't have foundation for the statements but mr. I is a as best a specialist registered by the state of California but it's not necessary the questions of mr. Curtis in his deposition he testifies that these products were as best as containing within the deposition there is no objection based on foundation to those questions so they can't today object that he didn't have foundation did you claim that it was error to exclude that they I decked this in your brief yes your opening brief yes so the lack of foundation was what were they arguing that because he's not an he's not an expert in causation or no that declaration was offered for the fact as to whether or not the components described by mr. Curtis were as best as containing and the only evidence on this subject is from mr
. Curtis cleaned up after these asbestos products exploded that was not addressed by any of the councils in their motions for summary judgment it was not addressed by the district court and it wasn't addressed in argument nor did they address the fact that compressed air was used to clean these asbestos products I want to ask you a question about the the causation because I am looking at the district court's order and apparently there was an eye declaration that was the district court didn't allow in is that correct or yes wrong okay so and says in its in its decision without the eye declaration plaintiff has no admissible evidence that the seat was exposed to asbestos from defendant's products that was a substantial factor in causing the seat as a Thieleoma so so it seems that causation was not what then I agree with mr. Caterdall that the order setting up the motion for summary judgment said causation was an issue I agree with all all attorneys here that the motions for summary judgment said the word causation and I also agree that according to Nissan fire and marine a moving party may not require the non moving party produce to produce evidence supporting its claim or defense simply by saying that the non moving party has no such evidence and they have all admitted they brought zero evidence on this issue so I wanted to come back to your question of me judge cahillian as to whether or not causation was an issue my answer is yes and ask your question as to whether they would get to bring another motion for summary judgment on causation I would think no they they had their chance it was set up to do it and they brought absolutely no evidence to defend so the district judge it seems like if it's it's not that specifically laid out here but it does sort of seem that the district could throw that in and says without the eye declaration so why are you arguing what's your position about the eye declaration I think it's sufficient but I don't think I need it the plaintiff but it wasn't let in right I agree and why was that said it didn't have foundation for the statements but mr. I is a as best a specialist registered by the state of California but it's not necessary the questions of mr. Curtis in his deposition he testifies that these products were as best as containing within the deposition there is no objection based on foundation to those questions so they can't today object that he didn't have foundation did you claim that it was error to exclude that they I decked this in your brief yes your opening brief yes so the lack of foundation was what were they arguing that because he's not an he's not an expert in causation or no that declaration was offered for the fact as to whether or not the components described by mr. Curtis were as best as containing and the only evidence on this subject is from mr. Curtis who actually worked with the products and was of almost 50 year electrician from the defendants themselves admit that they made as best as products that look just like the ones he described and mr. eyes declaration which was which was struck by the district court I think that was error however I don't think it matters I don't I don't think we need to get to mr. Mangum I don't think we need to get to Charlie I the fact is the defendants friends talking about his own his his own experience yes and so but it can't say what mr. Curtis is is I think there was some confusion at the time mr. I wrote that declaration he said within the declaration that he had not reviewed the discovery responses of well he says I reviewed portions of mr
. Curtis who actually worked with the products and was of almost 50 year electrician from the defendants themselves admit that they made as best as products that look just like the ones he described and mr. eyes declaration which was which was struck by the district court I think that was error however I don't think it matters I don't I don't think we need to get to mr. Mangum I don't think we need to get to Charlie I the fact is the defendants friends talking about his own his his own experience yes and so but it can't say what mr. Curtis is is I think there was some confusion at the time mr. I wrote that declaration he said within the declaration that he had not reviewed the discovery responses of well he says I reviewed portions of mr. Curtis's deposition in which he recalls working with defendants electrical products or something yeah and then he goes and then it's my opinion to a reasonable degree of probability appropriate to the field of as best us consulting that it is more likely than not that mr. Curtis inhaled as best as relates from the defendants products while he worked with them and while standing next to others working with them so it was it was that he didn't the court said that he didn't have expertise he wasn't that was that the problem yes all right thank you the month if I can make one last point both eaten and cutler hammer alleged there was no testimony concerning their products other than that testimony at the end I'll note that ABB ITE does not make that claim because in cross-examination he specifically discussed sanding our shoots eaten the record pages 83 through 88 he described sanding our shoots cleaning up after exploded products and for Schneider Square D pages 91 through 95 of the record the witness describes cleaning as best as our shoots using compressed air and cleaning up after exploded as best as products thank you all right that's it what'd you say you want another minute very briefly you asked you asked counsel whether they had challenged the district courts ruling on Charlie I very specifically in their reply brief at page 24 they state it is for this very reason that plaintiffs did not challenge the district courts erroneous ruling excluding the declaration of Charlie I that was not before this court and also the issue of Charlie I was not only that he did not have expertise but also his opinions were excluded under dobert because he was not relying on any studies in providing his opinions that there was fiber release in the practices that were described by Mr. Curtis I have a will I'll be the traffic yes I go ahead if we didn't know what you have to talk you have to you have to be here because we take your picture and your fingerprint and it's all okay all right two things one is that's a breathalyzer so I was not at the karaoke bar last night your honor so I'm clean two things with regard to Mr. I as he says in his declaration your honors all have it he never even looked at any of the documents specific to our clients he did not and he did not look at the portions of Mr. Curtis's deposition in which the admissions came in about not sanding the archutes and lastly with regard to the last comment from plaintiffs counsel with regard to my client ABB we are claiming that he did not sand any of our archutes and we're relying on the testimony that Mr
. Baroney and just read to you in which the witness Mr. Curtis said my testimony about that applies to all the manufacturers okay I don't go ahead I doesn't matter they didn't meet their burden thank you simple why you can do some calisthenics outside thank you thank yo