[00:00:04] Speaker 03:
Our last case for argument this morning is Rockwell versus ASCO.

[00:00:44] Speaker 00:
morning you can begin thank you very much your honor may have pleased the court I'm Ted Pelletier here for the plaintiffs and appellants here the Rockwells and I would like to reserve three minutes for a bottle please thank you and then the nine minutes I have I have two different cases here but I'm going to spend most of my time on the Foster Wheeler case I think that's the cleaner case I think it's the stronger case and it's a factual case that I'd like to make for you

[00:01:06] Speaker 00:
to show and take the court exactly to where the evidence is in the record that requires, I believe, a reversal here and shows that there was a tribal issue of fact.

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And that evidence is found just to put it out there at pages 400 to 401 and 408 of volume 3 of the ER.

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And that's the evidence that shows that the only time that Mr. Rockwell worked on boilers in his career was entirely at Camp Pendleton.

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He didn't work on boilers in the Navy.

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And that was the problem that the trial court identified in focusing on the stipulation.

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And so what I'd like to do then is back out and just sort of walk through a little bit for a couple of minutes of why that evidence is, in fact, dispositive.

[00:01:54] Speaker 00:
So his work history was in the Navy.

[00:01:55] Speaker 00:
It was in the Navy for about four years at the start of the 1960s, 1961 to 1965.

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Only that time, only on two ships.

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After that, he worked for 34 years at Camp Pendleton, the Marine base, 1966 to 2000.

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He was a machinist mate in the Navy.

[00:02:10] Speaker 00:
He wasn't a boiler tender.

[00:02:11] Speaker 00:
He became a boiler tender, tending the boilers at Camp Pendleton, and that was for 34 years.

[00:02:17] Speaker 00:
Now, the motion that was brought asserted only

[00:02:20] Speaker 00:
that he was not exposed to any Foster Wheeler boilers at all.

[00:02:23] Speaker 00:
It didn't assert that if he was, it wasn't a sufficient amount to constitute causation under the California standard, which is what applies to the Pendleton exposures, not maritime law.

[00:02:35] Speaker 00:
And up until the final hearing, I'd like to sort of take it through the prism of the hearings that the trial court did and showed what its thought process was and why the evidence I've already cited does, in fact, prove dispositive.

[00:02:44] Speaker 00:
Until the final hearing, the trial court had indicated it was going to deny summary judgment.

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And that's because the California standard for exposure under the Davis versus Honeywell case is that a jury can at least consider expert evidence that any exposure

[00:02:57] Speaker 00:
is sufficient to constitute causation.

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And so the issue was, is it a triable issue of fact, whether he worked on boilers and was exposed, Foster Wheeler boilers, and was exposed at Camp Pendleton.

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And the reason at Camp Pendleton is critical is because the parties did indeed stipulate that the only claims being brought against Foster Wheeler were for Camp Pendleton, not for the Navy.

[00:03:19] Speaker 00:
And so that did in fact need to be shown.

[00:03:22] Speaker 00:
And at that first hearing in June 2022, defense counsel was pretty candid about not only that that's the actual standard, the Davis standard, which is that, and he says at page 4692, this is defense counsel conceding, quote, when it comes down to the exposure testimony, you take everything the plaintiff said as being true, and that turns that into a question of fact.

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And so counsel acknowledges that.

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And there's no dispute on appeal in the appellate brief that that is the, in fact, the proper standard.

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You'll actually see that at the bottom of page 19 of Foster Wheeler's Respondents' Brief.

[00:03:53] Speaker 00:
And so what the court said was, and also, I'm sorry, there's one more thing.

[00:03:57] Speaker 00:
Defense counsel conceded at pages 4688 to 4689 that the Foster Wheeler boilers up until the 1980s did, in fact, contain asbestos parts.

[00:04:07] Speaker 04:
Was it also there was nothing, I mean, the record contained

[00:04:13] Speaker 04:
Unrebutted evidence that there were no foster boiler boilers at Camp Pendleton during the time that, during the period that Mr. Rockwell worked there.

[00:04:25] Speaker 04:
And then that combined with the stipulation, doesn't that just seal that there was no issue of fact as to that?

[00:04:33] Speaker 00:
No, Your Honor, and for two reasons.

[00:04:36] Speaker 00:
Number one, it wasn't unrebutted testimony because Mr. Rockwell testified clearly, and I'm walking through that, that he did work on Foster-Wheeler boilers.

[00:04:43] Speaker 00:
That's a question of fact when put against the evidence that the defense brought forward.

[00:04:47] Speaker 04:
Other than his testimony, what else was there?

[00:04:50] Speaker 04:
Nothing else.

[00:04:53] Speaker 00:
That's the entirety of the plaintiff's testimony, as he specifically recalls, working on boilers throughout his career at Camp Penson.

[00:05:00] Speaker 00:
Among them were Foster-Wheeler boilers.

[00:05:02] Speaker 00:
But then the second answer to your question is you're referring to the center report.

[00:05:06] Speaker 00:
Actually, there's two pieces of evidence.

[00:05:08] Speaker 00:
And I want to show you that they are not dispositive, that under California law and really under federal law on summary judgment, Mr. Rockwell's testimony is enough.

[00:05:17] Speaker 00:
Now, a jury may ultimately disbelieve that, but it is a tribal issue of fact.

[00:05:20] Speaker 00:
But why wasn't the Tracy Declaration or the center report?

[00:05:25] Speaker 00:
Those are the two pieces of defense evidence.

[00:05:27] Speaker 00:
Now, in the briefing,

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Council talked about it being hearsay, but I acknowledge there was not an objection raised to the evidence.

[00:05:35] Speaker 00:
So it's not a miscibility question.

[00:05:37] Speaker 00:
But let's look at the Tracy Declaration and the Center.

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What Tracy says is, we conducted a search of our records, of our contract files, and we, quote, located no contracts to furnish equipment there at Camp Pendleton.

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We located no contracts.

[00:05:50] Speaker 00:
So what does that mean?

[00:05:51] Speaker 00:
It means they located no contracts.

[00:05:53] Speaker 00:
But if you look, it's about a two or three page

[00:05:57] Speaker 00:
declaration from Mr. Tracy.

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You'll find it, ER 1136 and 1137.

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It's five paragraphs.

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And he says, I have knowledge of the practices and procedures involved in the retention of company records of Foster Wheeler.

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But he never explains what those are.

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He never says, and those processes were that we keep everything.

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And if any piece of equipment went out, we had a contract for it.

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And it would have been in our files.

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It's not there.

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So really all he says is, we didn't find anything.

[00:06:24] Speaker 00:
But there's no foundation for what that means.

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It doesn't establish.

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that nothing exists, that there are no such contracts.

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He also says that we didn't locate any contracts to furnish equipment there.

[00:06:36] Speaker 00:
There's no evidence in this record that that's the only way Foster Wheeler boilers would have been at Camp Pendleton is if they were furnished directly by Foster Wheeler.

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There's no evidence that perhaps Foster Wheeler sold and furnished them somewhere else and they were moved from some other marine base or elsewhere.

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or that somebody else did the furnishing, but they originally came from Foster Wheeler.

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So the Tracy Declaration doesn't really establish, Your Honor, that it's unrebutted that there was nothing there.

[00:07:01] Speaker 04:
But it also was not objected to, right?

[00:07:03] Speaker 00:
Correct.

[00:07:03] Speaker 00:
It's admissible on this motion.

[00:07:06] Speaker 00:
It was not objected to.

[00:07:06] Speaker 00:
What I'm saying is it's not dispositive.

[00:07:08] Speaker 00:
It doesn't defeat a tribal issue of fact.

[00:07:11] Speaker 00:
But you're right.

[00:07:11] Speaker 00:
It was not objected to.

[00:07:12] Speaker 00:
But what I'm saying is that the weight of it is not sufficient to win on summary judgment.

[00:07:17] Speaker 00:
And then if you look at the Center report, and again, this was also not objected to.

[00:07:21] Speaker 00:
It's just a letter.

[00:07:22] Speaker 00:
There's nothing under oath.

[00:07:23] Speaker 00:
So it's admissible here.

[00:07:25] Speaker 00:
But I believe it's Mr. Center.

[00:07:27] Speaker 00:
His name's Jocelyn, but I believe it's Mr. Center.

[00:07:30] Speaker 00:
He says, I think it's reasonably probable there were no Foster Wheeler boilers at Camp Pendleton as an expert.

[00:07:37] Speaker 00:
Well, what did he rely on?

[00:07:38] Speaker 00:
He relied on the Tracy Declaration, which really didn't establish much of anything.

[00:07:43] Speaker 00:
And then he says, and I went there and I talked to some people.

[00:07:46] Speaker 00:
Discussions with current Camp Pendleton facilities management maintenance department personnel is at 1139 of the record Well, who did he talk to?

[00:07:57] Speaker 00:
How did they know what had been there for the last for 34 years from 1966 to 2000?

[00:08:01] Speaker 00:
He apparently went there in 2022 and talked to some people he didn't say or nothing establishes that they are the type of people who would have known anything about the past and

[00:08:10] Speaker 00:
He also acknowledges, and everybody does in the record, but you'll find at footnote four of his letter, there were over 480 boilers in buildings spread over 200 square miles of Camp Pendleton.

[00:08:22] Speaker 00:
I think we've all driven through there.

[00:08:23] Speaker 00:
It's a huge area.

[00:08:25] Speaker 00:
And so nothing establishes from Center that the people he spoke to knew every piece of equipment out there, let alone every piece of equipment that was there from 1966 to 2000.

[00:08:35] Speaker 00:
So in answer to your honor's question, those two pieces of evidence to which you, I believe, are referring

[00:08:41] Speaker 00:
aren't dispositive here.

[00:08:42] Speaker 00:
There are evidence that can be considered.

[00:08:44] Speaker 00:
On the other side, you have Mr. Rockwell saying, I worked on Foster Wheeler Boilers.

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And he says he did it at Camp Pendleton.

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And that's what I want to show you.

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And that's the tribal issue of fact that we have.

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And so where I left off, the trial court in the first hearing had said, I'm probably going to rule against you.

[00:09:01] Speaker 00:
How could I rule for you on summary judgment when the evidence from him is that he remembers Foster Wheeler Boilers?

[00:09:09] Speaker 00:
And she continued, or sorry, he continued the hearing to allow Foswell to say, can you find me a case that that's not the California standard, that Davis's every exposure is not the California standard?

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And we went off to a second hearing.

[00:09:21] Speaker 00:
And then at the second hearing a month later, nothing had changed.

[00:09:23] Speaker 00:
The record doesn't reflect anything else being filed, any new evidence, but the court

[00:09:27] Speaker 00:
Now it's focused on the stipulation.

[00:09:29] Speaker 00:
And you'll recall that the stipulation was that the claims of the Rockwells against Foster Wheeler were only based on Camp Pendleton.

[00:09:37] Speaker 00:
But factually, that didn't change anything, because that's the only place he ever worked on boilers.

[00:09:42] Speaker 00:
There's no dispute here.

[00:09:43] Speaker 04:
He testified, he said, in all the years, in all the Navy and Camp Pendleton, it all runs together.

[00:09:52] Speaker 04:
But Foster Wheeler boilers was in there sometime, someplace.

[00:09:56] Speaker 00:
That's correct.

[00:09:58] Speaker 00:
That's correct.

[00:09:58] Speaker 00:
And that piece of evidence standing alone is not enough to get me over the hurdle.

[00:10:02] Speaker 00:
But what is, is the testimony that the only time he worked on boilers at all was in Camp Pendleton.

[00:10:09] Speaker 00:
And so that you'll find at ER 400.

[00:10:12] Speaker 00:
And this evidence was on the Foster-Wheeler motion.

[00:10:18] Speaker 00:
It was brought in in opposition to Foster-Wheeler.

[00:10:20] Speaker 00:
Er 400 and what happened was council was excuse me walking through Various pieces of equipment.

[00:10:26] Speaker 00:
How about separators?

[00:10:27] Speaker 00:
How about turbines?

[00:10:28] Speaker 00:
Yes, I'm familiar with those and now reading from er 400 question Are you familiar with boilers answer boilers lots and lots of different boilers question when you were in the Navy?

[00:10:37] Speaker 00:
Did you work on the things that I just asked if you were familiar with except for the boilers?

[00:10:42] Speaker 00:
Yes question the boilers because you were not you were not a BT.

[00:10:46] Speaker 00:
You were not a boiler tender and

[00:10:47] Speaker 00:
Answer, I was not a BT.

[00:10:48] Speaker 00:
I was never really in the boiler rooms.

[00:10:50] Speaker 00:
We were strictly, they were separated.

[00:10:52] Speaker 00:
That's the Navy.

[00:10:53] Speaker 00:
He goes on.

[00:10:54] Speaker 00:
These were separated by bulkheads, right?

[00:10:56] Speaker 00:
And my understanding of that is it's sort of a big blocker in the ship.

[00:10:59] Speaker 00:
You don't even get into the area beyond the bulkhead.

[00:11:02] Speaker 00:
And he says, yes.

[00:11:03] Speaker 00:
Question, would you ever go over the bulkheads to get to the boiler areas in the Navy?

[00:11:07] Speaker 00:
Answer, there was times to visit somebody or pass on information, but it wasn't a normal thing to be there.

[00:11:12] Speaker 00:
That's at 400 to 401.

[00:11:13] Speaker 00:
He didn't work on boilers in the Navy.

[00:11:16] Speaker 00:
So when he says throughout my career, I remember working on boilers and there were Foster Wheeler boilers, that's all he's talking about because he didn't do it in the Navy.

[00:11:24] Speaker 00:
If you look at page 408, same testimony, they're again asking, where did you work on things?

[00:11:29] Speaker 00:
How about turbines?

[00:11:30] Speaker 00:
Turbines?

[00:11:31] Speaker 00:
It was the Navy in Camp Pendleton.

[00:11:33] Speaker 00:
How about boilers?

[00:11:34] Speaker 00:
Answer, boilers, all types, shapes, and this was all Camp Pendleton.

[00:11:39] Speaker 00:
We had them in like hundreds of buildings, a lot of them.

[00:11:42] Speaker 00:
Almost all of them had a boiler or two.

[00:11:43] Speaker 00:
They weren't all the same.

[00:11:44] Speaker 00:
There was every make and model you could think of on the base.

[00:11:48] Speaker 00:
That's the only place he did work.

[00:11:50] Speaker 00:
And that's the combination, Your Honor, that comes together.

[00:11:54] Speaker 00:
And if you look at page 434 to 435 of the record, he was then asked, just because you can't remember a single instance or specific instance you worked on or around others who were working on every single boiler, doesn't mean it doesn't happen, does it?

[00:12:09] Speaker 00:
answer, no, it don't.

[00:12:11] Speaker 00:
There was so many, like I say, especially at Pendleton, we had hundreds of boilers, all different mixed models and sizes.

[00:12:17] Speaker 00:
We was working on them all the time to come at different times.

[00:12:20] Speaker 00:
It was just what we did.

[00:12:21] Speaker 00:
It was always doing the same type of work.

[00:12:23] Speaker 00:
And so what the trial court did, the district court rather, is it said, well, your entire career, maybe that was just the four years of the Navy.

[00:12:31] Speaker 00:
In fact, the court said at page 4709, there's a possibility that it was only in the Navy.

[00:12:36] Speaker 00:
Well, even that possibility wouldn't be enough.

[00:12:39] Speaker 00:
It's kind of a remote inference to think that when he says my entire career, I worked on Boilers, he only met the first four years of his career.

[00:12:45] Speaker 00:
But his testimony actually establishes that that's the only work that he did.

[00:12:50] Speaker 00:
The only time, the only place that he did the work was actually at Camp Pendleton itself, Your Honor.

[00:12:54] Speaker 00:
I've got just a couple minutes, a minute left, and I would like to touch quickly on Asko and Fisher, and then I can finish up on rebuttal.

[00:13:00] Speaker 00:
It's a tougher case.

[00:13:01] Speaker 00:
I have to acknowledge that.

[00:13:02] Speaker 00:
I'm up against an abusive discretion standard on the denial of the motion to withdraw the admissions.

[00:13:08] Speaker 00:
A couple things to highlight, which is why I think that discretion was in fact abused here, because it's things that sort of erode the trial court's ruling as to why it thought that the motion should be denied.

[00:13:20] Speaker 00:
The biggest is the showing of prejudice.

[00:13:22] Speaker 00:
You know, it's the two-pronged test under Conlon and Hanley.

[00:13:24] Speaker 00:
for whether to allow withdrawal of admissions.

[00:13:28] Speaker 00:
Nobody really disputes the first element, but, excuse me, ASCO and Fisher come in and say, we were prejudiced, we didn't do some things.

[00:13:34] Speaker 02:
There's really no evidence of that.

[00:13:36] Speaker 02:
The problem from my perspective is that there was a delay before filing the motion to withdraw the admission.

[00:13:43] Speaker 02:
So, I mean, why wasn't that filed immediately?

[00:13:45] Speaker 00:
The motion to withdraw by inadvertence of the council and and and the case that we're making is that it was inadvertent It was miss mistake, but it wasn't bad faith and that was sort of Written into the trial courts of the district courts order was I agree with defendants that this was done ton of in bad faith there was some tactical advantage to be gained and Frankly, your honor knew I'm sure that district court was very disappointed in how a trial council handled it throughout the thing but in an area where

[00:14:15] Speaker 00:
Admissions are being deemed to stuff that the evidence that it was already in the possession of defendants a year earlier just contradicts completely.

[00:14:24] Speaker 00:
Admit that you don't have an asbestos-related disease.

[00:14:26] Speaker 00:
Well, of course he did.

[00:14:27] Speaker 00:
He's died of it now.

[00:14:29] Speaker 00:
Admit that you weren't exposed to our products.

[00:14:32] Speaker 00:
Well, he's already testified that he was.

[00:14:34] Speaker 00:
So there was no tactical advantage being gained.

[00:14:36] Speaker 00:
There was really no bad faith.

[00:14:38] Speaker 00:
You know if the district court still had discretion and there's really nothing I can do about that But to me that sort of erodes the foundation of why the trial court saw fit it was the combination of the delay as your honor pointed out and The apparent prejudice and I think if you look there's just there really wasn't any prejudice I can address that again on rebuttal after I hear from what counsel has to say, okay I'll give you a minute on rebuttal.

[00:15:01] Speaker 00:
I appreciate that very much.

[00:15:02] Speaker 00:
Thank you.

[00:15:02] Speaker 00:
I

[00:15:20] Speaker 01:
Good morning, Edward Hugo for Foster Wheeler.

[00:15:24] Speaker 01:
Senior District Court Judge George Wu issued a very detailed, very well reasoned, 10 page, 10 foot note opinion where he held that Foster Wheeler's cross examination of the plaintiff was determinative.

[00:15:43] Speaker 01:
He was right.

[00:15:44] Speaker 01:
100% right.

[00:15:45] Speaker 01:
Foster Wheeler's cross-examination of Mr. Rockwell indicated and specifically proved that he had no evidence of exposure to a Foster Wheeler asbestos-containing boiler at Camp Pendleton.

[00:16:06] Speaker 01:
The applicable law is the California case of Turley versus Vermillion

[00:16:13] Speaker 01:
that holds it is plaintiff's burden to establish that defendant's product was definitely at his work site and was sufficiently prevalent to warrant an inference the plaintiff was exposed to it during his work.

[00:16:32] Speaker 01:
There is no evidence, and I mean zero, zip, nada, and none, that there was a Foster Wheeler boiler at Camp Pendleton at any point in time.

[00:16:45] Speaker 01:
None.

[00:16:47] Speaker 01:
Now, Hugo Parker's cross-examination of the plaintiff was direct.

[00:16:54] Speaker 01:
It was over and over again asking a very simple question.

[00:17:00] Speaker 01:
Can you tell me that you were exposed to a asbestos-containing Foster Wheeler boiler either worked on, or let me expand, or around at Kent Pendleton?

[00:17:13] Speaker 01:
And the plaintiff couldn't do it.

[00:17:16] Speaker 01:
Simple as that.

[00:17:17] Speaker 01:
This is a case of absence of evidence.

[00:17:22] Speaker 01:
The court held two hearings, had multiple briefings, and wrote one of the longest, best reasoned opinions that you could find in a motion for summary judgment.

[00:17:34] Speaker 01:
It's simple as that.

[00:17:37] Speaker 01:
If there are no questions, I'd only add that this is a reoccurring issue, and I couldn't find a Ninth Circuit opinion

[00:17:45] Speaker 01:
on this rather narrow issue of the law of exposure.

[00:17:49] Speaker 01:
And I think there should be.

[00:17:51] Speaker 01:
So if you have the time and the inclination, this is something that litigants would benefit from in this litigation.

[00:17:58] Speaker 01:
Thank you.

[00:17:59] Speaker 03:
Thank you.

[00:18:17] Speaker 05:
May it please the court?

[00:18:19] Speaker 05:
I'm Margaret Johnson, and I represent the appellees, defendants and appellees, ASCO and Fisher Controls.

[00:18:27] Speaker 05:
We urge the court to affirm the trial court, the district court's denial of the plaintiff's motion to withdraw admissions, and affirm also the judgment that followed.

[00:18:40] Speaker 05:
My friend talked about the question of prejudice in response to Judge Thomas's question.

[00:18:47] Speaker 05:
and the fact of the delay.

[00:18:50] Speaker 05:
I want to backtrack just a little bit.

[00:18:52] Speaker 05:
One thing we agree on here is that the Conlon case is controlling.

[00:18:56] Speaker 05:
That's without a doubt.

[00:18:57] Speaker 05:
And Conlon specifically says, first of all, the two factors for FRCP 36B, that it must promote the end of justice, to have the case heard on the merits, and then prejudice.

[00:19:11] Speaker 05:
But that case specifically says the district court may consider, I'm quoting from page 622 of the opinion, the district court may consider other factors, including whether the moving party can show good cause for the delay and whether the moving party appears to have a strong case on the merits.

[00:19:33] Speaker 05:
Even if there's any concern about the prejudice factor, even if the court was erred in finding that there was prejudice to my clients, that does not end the question here.

[00:19:46] Speaker 05:
But we don't concede the fact that there was indeed prejudice.

[00:19:50] Speaker 05:
And again, as my colleague pointed out, the court's long tentatives in this case, the 10-page tentative, not just

[00:20:01] Speaker 05:
First time the case came up for hearing in May of 2022, but again, after allowing, briefing on the motion to withdraw, another tentative, again, very, very detailed, specifying exactly what that prejudice was.

[00:20:17] Speaker 05:
And what we have here is delay, as just Thomas pointed out.

[00:20:22] Speaker 05:
We're talking months of delay.

[00:20:24] Speaker 05:
between the time they supposedly found out that they failed to serve the discovery.

[00:20:29] Speaker 05:
We're talking after there was actually a meet and confer where we said, hey, we're going to file a summary judgment motion based upon these admissions.

[00:20:39] Speaker 05:
And after a fact discovery closed, after expert discovery closed, after the time for filing motions and limiting past, that's when we, and on the eve of trial, a month before trial is when this finally came up for hearing.

[00:20:53] Speaker 05:
The trial court, the district court, did not err in finding that all of these factors

[00:21:00] Speaker 05:
prejudiced my clients.

[00:21:01] Speaker 05:
Moreover, it wasn't just a denial of RFAs.

[00:21:05] Speaker 05:
Again, in the record and also in the court's opinion, tentative which it adopted as its order, expressly stated

[00:21:14] Speaker 05:
Not only did my client serve requests for admissions, but they also served special interrogatories and requests for production.

[00:21:22] Speaker 05:
And even to the day of the hearing when this motion was granted, when the summary judgment was granted, there was no response served, not even to the RFAs.

[00:21:31] Speaker 05:
No denials, nothing served.

[00:21:33] Speaker 05:
So the trial court was correct when it said, and I borrow the word from the actual district court's mouth, torpedoed, plaintiffs torpedoed my client's ability to prepare for trial.

[00:21:47] Speaker 05:
There was prejudice.

[00:21:49] Speaker 05:
But let me go to the next point.

[00:21:51] Speaker 05:
Even if we did not establish prejudice, even if the trial court erred in saying that there was prejudice, these other factors, the delay, no excuse for the delay.

[00:22:02] Speaker 05:
That's a factor in the Conlin that this court has said it may consider.

[00:22:07] Speaker 05:
And also, whether the moving party appears to have a strong case on the merits, that kind of ties into factor one, perhaps.

[00:22:15] Speaker 05:
But we've shown here on the record, and as pointed out for Kent Pendleton with respect to Foster Wheeler,

[00:22:23] Speaker 05:
The best the plaintiff could come up with was his handwritten list.

[00:22:27] Speaker 05:
He wasn't even sure if ASCO was a pump or a valve or a gasket or something else.

[00:22:34] Speaker 05:
He wasn't sure where he worked with anything, when he worked with it,

[00:22:38] Speaker 05:
how often he worked with it, he could provide absolutely no specifics.

[00:22:45] Speaker 05:
My friend focuses on the fact that one of the RFA said that you don't have a, plaintiff, you don't have an asbestos-related disease.

[00:22:54] Speaker 05:
I don't think that's really the one we should focus on.

[00:22:56] Speaker 05:
There were very specific other ones, including that the plaintiffs have no documents, RFA number two, to support their contention that they were exposed to an asbestos-containing product of my clients.

[00:23:08] Speaker 05:
or and they have no witnesses.

[00:23:12] Speaker 05:
Those are, and documents, those are very specific.

[00:23:15] Speaker 05:
Even if we allow a withdrawal of the RFA as to whether or not there's an asbestos related disease, we have these RFAs, we have special interrogatories, we have requests for production asking for evidence because we know the plaintiff's own testimony is not sufficient.

[00:23:36] Speaker 05:
It's just speculation that may be sometimes somewhere or wherever.

[00:23:40] Speaker 05:
And whether you're talking about California law or you're talking about maritime law, that is just not sufficient to establish a trialable issue.

[00:23:50] Speaker 05:
So with that, Your Honor, we would ask that the court affirm the denial and the motion for relief and also summary judgment.

[00:23:59] Speaker 03:
Thank you very much.

[00:24:00] Speaker 05:
Thank you.

[00:24:07] Speaker 00:
Thank you once again, Your Honor.

[00:24:08] Speaker 00:
It's just on Foster Wheeler.

[00:24:10] Speaker 00:
I just want to remember we're on summary judgment here.

[00:24:12] Speaker 00:
And although the testimony of Mr. Rockwell alone is all we have, it is enough to get to a jury.

[00:24:18] Speaker 00:
Now, the jury may find that he's not credible, but they may also find that he is credible, that he remembers over 34 years.

[00:24:24] Speaker 00:
I did boilers every day.

[00:24:26] Speaker 00:
That's what I did.

[00:24:27] Speaker 00:
I was a boiler tender, and that was the work that we did.

[00:24:29] Speaker 00:
And yeah, I remember Foster Wheeler.

[00:24:31] Speaker 00:
The jury might not believe it.

[00:24:32] Speaker 00:
The jury also might allocate just a tiny bit of fault to Foster Wheeler.

[00:24:35] Speaker 00:
But on summary judgment, it is enough.

[00:24:38] Speaker 00:
And let's remember that the trial court found the stipulation critical here.

[00:24:42] Speaker 00:
Before focusing on the stipulation, the court had said, I can't rule in your favor.

[00:24:45] Speaker 00:
There is a tribal issue.

[00:24:47] Speaker 00:
But then came back in the last hearing and said at page 4708, if there had not been the stipulation, I wouldn't have reached the same determination.

[00:24:54] Speaker 00:
I would not have granted summary judgment for Foster Wheeler.

[00:24:58] Speaker 00:
That was the court's basis, because the court thought, well, maybe it was possibility that it all happened in those first four years.

[00:25:04] Speaker 00:
But I've shown you factually that there is no possibility in the record.

[00:25:07] Speaker 00:
And so if the trial court had understood that, I think he would have reached a different result.

[00:25:13] Speaker 00:
I think you all should as well, and I really thank you for the time.

[00:25:16] Speaker 03:
Thank you very much.

[00:25:17] Speaker 03:
We thank both counsel for their arguments this morning.

[00:25:19] Speaker 03:
This case is submitted, and we stand in recess until tomorrow morning.

[00:25:23] Speaker 03:
Thank you.