Document JNj79JggB6Qn5z54LVn2Bkmze

1 The Honorable Sharon Armstrong Hearing Date: Friday, February 17, 2006 2 Tiime: 3:30 p.m. With Oral Argument 3 4 5 6 7 8 9 10 11 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON 12 IN AND FOR THE COUNTY OF KING 13 14 RANA FRENCH, as Personal Representative on 15 the Estate of RALPH DALE, Case No. 05-2-09268-8SEA 16 Plaintiff, 17 v. 18 SAGERHAGEN HOLDINGS, INC., et al. DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE 19 Defendants. 20 I. RELIEF REQUESTED 21 In her Response to Warren Pumps' Motion for Summary Judgment, plaintiff largely 22 rehashes arguments which have been soundly rejected on multiple occasions by Washington 23 courts, including this Court.1 Plaintiff offers no new arguments to explain why a pump 24 25 1 In her Response, plaintiff claims that she is seeking "punitive damages from Warren Pumps." (Plaintiffs Response, p.2). Plaintiff has not alleged a claim for punitive damages, and it is well 26 established that punitive damages cannot be recovered in Washington. PAGE 1 - DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE Steven V. Rizzo, P.C. Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503) 229-1819 1 manufacturer such as Warren Pumps should be held liable for products that it neither made nor 2 sold. In addition, plaintiff relies on decedent's responses to leading questions from his 3 perpetuation deposition testimony even though Warren Pumps never had an opportunity to cross 4 examine him, and was given an inadequate time to fully develop his testimony during a 5 discovery deposition. Finally, plaintiff relies on numerous articles and publications that provide 6 no notice to Warren Pumps prior to 1973 (the last year that decedent worked for the Ketchikan 7 Pulp Mill) that asbestos-containing gaskets and/or packing may have ever presented a risk of 8 harm. Accordingly, Warren Pumps moves to strike this inadmissible evidence from the record. 9 II. MOTIONS TO STRIKE 10 When considering a Motion for Summary Judgment, a Court is permitted to consider 11 only that evidence that "would be admissible in evidence * * * ." CR 56(e). Numerous exhibits 12 submitted by the plaintiff in her Response to Warren Pumps' Motion for Summary Judgment do 13 not consist of admissible evidence and should not be considered. "A court may not consider 14 inadmissible evidence when ruling on a motion for summary judgment." King County Fire 15 Protection Districts #16. #36 and #40 v. Housing Auth. of King County. 123 Wash.2d 819, 826, 16 872 P.2d 516 (1994). 17 1. Motion to Strike Plaintiffs Exhibit "C" (Perpetuation Deposition Testimony of Ralph Dale) 18 Warren Pumps moves the Court for an Order striking the perpetuation deposition 19 testimony of decedent Ralph Dale. Warren Pumps based this motion on the grounds that it did 20 not have an opportunity to cross examine decedent with respect to his perpetuation deposition 21 testimony, and it did not have an adequate opportunity to conduct a discovery deposition of him 22 with respect to its own products. 23 This matter was filed on March 21, 2005 against Warren Pumps and numerous other 24 defendants. Plaintiffs perpetuation deposition occurred one month later on April 21, 2005. 25 (Supp. Mattingly Dec., Ex. H). At the conclusion of that deposition, counsel for the defendants 26 reserved the right to cross examination pending the completion of a discovery deposition. (Id. PAGE 2- DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO Steven V. Rizzo, P.C. Lincoln place, Suite 350 1620 S.W; Taylor Street Portland, Oregon 97205 Telephone: (503) 229-1819 1 at p. 113). 2 Plaintiffs discovery deposition began after his perpetuation deposition on April 21, 3 2005, and it continued on April 22, 28, and 29, 2005. Warren Pumps was unable to ask any 4 questions until April 29 due to the length of the examinations by several other defendants. 5 Because many defendants (including Warren Pumps) had not had an opportunity to examine 6 plaintiff, his counsel advised that she would "go around the room and give everybody 30 7 minutes." (Supp. Mattingly Dec., Ex. Iat pp.5-6). A moment later, she reiterated that "after 30 8 minutes, I'll stop each person and we'll go and the next, and we'll keep going around the room 9 until we're done." (Id. at p.6). 10 During Warren Pumps' examination of plaintiff during his discovery deposition, after 11 questioning that totaled only 24 pages of transcript, plaintiffs counsel advised Warren Pumps 12 counsel as follows: "Steve, we have to move it around, so finish your questions." (Supp. 13 Mattingly Dec., Ex. I at p.49). , 14 At the end of the day on April 29, 2005, counsel for defendants noted for the record that 15 the defendants had made their best effort to examine plaintiff within the limitations permitted by 16 his counsel, but that there were still many areas that needed to be addressed. (Supp. Mattingly 17 Dec., Ex. I at p. 185-186). Warren Pumps further stated on the record: 18 MR. RIZZO: This is Steve Rizzo, just to go on the record, what I would like to do is point out that I don't believe the perpetuation deposition is currently able to be used as 19 evidence in light of the fact that there's been no cross. And I think that that's at least in part caused by the fact that the discovery deposition, was extenuated for health reasons, 20 and based on the number of defense counsel. And so even that I would say is subject o our reservation to object to that in the even [sic] that the Plaintiff will attempt to use that, 21 if we're not capable of finishing one or both of the (indiscernible)." 22 (Supp. Mattingly Dec., Ex. I at pp. 186-187). 23 No dates for either the completion of plaintiffs discovery deposition or cross 24 examination on his perpetuation deposition were provided by plaintiff. He died on June 23, 25 2006, with his perpetuation deposition incomplete and Warren Pumps never having had the 26 opportunity to cross-examine him. PAGE 3 - DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE Steven V. Rizzo, P.C. Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819 1 The transcripts from decedent's perpetuation deposition constitute hearsay, ER 801(c). 2 As a general rule, hearsay evidence is inadmissible. ER 802. Among the exceptions to the 3 hearsay rule is former testimony from a declarant who is unavailable for trial. ER 804(b)(1). 4 For former testimony to be admissible against a party as an exception to the hearsay rule, either 5 that party or a predecessor-in-interest must have had an opportunity and similar motive to 6 develop the declarant's testimony by direct, cross, or redirect examination. Id. 7 Plaintiffs perpetuation deposition testimony was not subject to cross-examination by 8 any defendant. Rather, plaintiff conducted the perpetuation deposition at a time when 9 defendants had very little information about the plaintiffs claims against them and at a time 10 when they had not had an opportunity to gather sufficient information to allow them to conduct 11 a meaningful cross-examination. Indeed, the defendants expressly reserved their right to 12 conduct a cross-examination of plaintiffs perpetuation deposition, but they were unable to 13 exercise that right due to plaintiffs failure to provide dates for the completion of testimony and 14 his subsequent passing. Accordingly, decedent's testimony should now be stricken from the 15 record as inadmissible hearsay. ER 802; ER 804(b)(1). 16 In addition, under Article I, Sec. 3 of the Washington Constitution, "[n]o person shall be 17 deprived of life, liberty, or property, without due process of law." Due process guarantees the 18 right to a full and fair hearing. Olympic Forest Products. Inc, v. Chaussee Com.. 82 Wash.2d 19 418, 422, 511 P.2d 1002 (1973). Although the scope of due process can vary among different 20 types of proceedings, "cross examination is an integral part of both criminal and civil judicial 21 proceedings." Baxter v. Jones. 34 Wash.App. 1, 3, 658 P.2d 1274 (1983). Prior testimony must 22 be stricken where an adverse party is unable to complete an effective cross-examination. See 23 Rutger v. Walken, 19 Wash.2d 681, 143 P.2d 866 (1943); Thomas v. Dower. 162 Wash. 54, 297 24 P. 1094(1931). 25 In Baxter, the Court of Appeals held that, although trial courts are given considerable 26 latitude in limiting the scope of cross examination, fundamental fairness required that the case PAGE 4- DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE ^ peven v. Rizzo, P *C. Lincoln Place, Suite 350 1620 S. w. Taylor Street Portland, Oregon 97205 telephone: (503) 229-1819 1 be remanded for a new trial where the trial court precluded the plaintiff from cross-examining 2 the defendant on issues pertinent to the plaintiffs claims. Baxter, 34 Wash.App. at 3-4. Here, 3 plaintiffs counsel limited the defendants' examination of many defendants, including Warren 4 Pumps, in his discovery deposition. More importantly, dates for the completion of his 5 discovery deposition or the cross-examination on his perpetuation deposition were never given. 6 In light of his inability to provide any testimony to identify any work with or around 7 Warren Pumps in his discovery deposition, cross-examination of plaintiff would have been vital 8 to Warren Pumps' defense. Accordingly, pursuant to the Washington's due process 9 requirements, decedent's perpetuation deposition transcript should be stricken. 10 Finally, this Court has previously addressed the issue presented in this motion and has 11 stricken the decedent's deposition transcripts with respect to two (2) similarly situated parties. 12 (Supp. Mattingly Dec., Ex. J). The same result should apply for Warren Pumps. 13 2. Motion to Strike Plaintiffs Exhibits "K" Through "S" 14 Plaintiff offers into evidence numerous portions of articles, abstracts, and similar 15 documents that constitute inadmissible hearsay and are inadmissible under ER 401, ER 402, and 16 403. 17 Plaintiff purportedly offers these articles to establish that Warren Pumps had knowledge 18 of the risks associated with certain asbestos-containing products as far back as the 1940's and 19 1950's. However, the articles do not make any mention of the specific type of product at issue 20 with respect to Warren Pumps (gaskets) and there is no indication from plaintiff as to how these 21 documents would convey knowledge to Warren Pumps as to any health risks associated with 22 gaskets. Moreover, even if the articles were somehow relevant, plaintiff fails to establish that 23 Warren Pumps was aware of the articles or was in a position to learn of them. 24 In addition, the articles at issue all constitute hearsay and are inadmissible. ER 801(c); 25 ER 802. They have not been properly authenticated, and they are not admissible under any 26 exception to the hearsay rule. PAGE 5 - DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE STEVEN V. RiZZO, P.C. Lincoln Place, Suite 350 1620 S.W, Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819 1 3. Motion to Strike Plaintiffs Exhibits "T" Through "X" 2 Plaintiffs exhibits "T" through "X" consist of a series of five (5) articles from the 3 Southern Power and Industry publication from 1945 and 1945. These exhibits should be 4 stricken as inadmissible on the grounds that they constitute inadmissible hearsay, are not 5 relevant, and ER 403. 6 Of these articles, three (3) do not even mention asbestos; Exhibit T, U, and V. Since 7 these articles do not even mention asbestos and otherwise contain no information pertinent to 8 this litigation, they are irrelevant and should be stricken. ER 401, 402, 403. Moreover, the 9 articles constitute inadmissible hearsay. ER 801(c), 802. 10 The final two (2) articles, Exhibits "W" and "X," mention asbestos, but only in passing. 11 No reference is made to the specific product at issue with respect to Warren Pumps (gaskets), 12 and plaintiff makes no attempt to explain how these articles are expected to notify a party such 13 as Warren Pumps that gaskets could present a risk of harm. Accordingly, these articles should 14 be stricken from the record on the grounds that they are not relevant and constitute inadmissible 15 hearsay. ER 401,402, 403, 801(c), 802. 16 III. EVIDENCE RELIED UPON 17 In addition to the evidence previously identified in its Motion for Summary Judgment, 18 Warren Pumps relies on the Supplemental Declaration of J. Michael Mattingly in Support of 19 Defendant Warren Pumps, LLC's Motion for Summary Judgment. 20 IV. ARGUMENT 21 In her Response to Warren Pumps' Motion for Summary Judgment, plaintiff simply 22 reiterates arguments that have been considered and rejected by this Court on numerous 23 occasions, including in this case for other defendants. Plaintiff offers no new argument nor any 24 compelling reason why this Court should rule differently from its prior common sense rulings 25 on the issues before the Court on many prior occasions. 26 //// ' PAGE 6- DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE Steven V. Rjzzo, PC. Lincoln Peace, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819 1 I. Plaintiff Has Failed to Offer Admissible Evidence that He Was Ever Exposed to an Asbestos-Containing Product Made or Sold by Warren Pumps. 2 As noted above, Warren Pumps has moved the Court for an Order striking decedent's 3 perpetuation deposition testimony on several grounds. If granted, then plaintiffs testimony is 4 insufficient to establish any exposure to a Warren Pumps pump, much less one with some 5 asbestos-containing components. 6 In Lockwood v. ACandS. Inc.. 109 Wash.2d 235, 245, 744 P.2d 605, 612 (1987), the 7 Supreme Court expressly held that a plaintiff must offer admissible evidence to support an 8 inference that respirable fibers from the defendant's product were present where the plaintiff 9 worked. The plaintiff must establish a reasonable connection between the injury, the product 10 causing the injury, and the manufacturer or seller of that product. Id. Notably, plaintiff does 11 not even attempt to distinguish these fundamental holdings from the Washington Supreme 12 Court's Lockwood opinion. 13 The Supreme Court's Lockwood opinion further holds that the mere presence of a 14 manufacturer's product at the plaintiffs work site is not enough by itself. Rather, the mere 15 presence of the product only creates a possibility that the product caused the plaintiffs injury. 16 The Supreme Court instructed that trial courts must scrutinize the plaintiffs proof of causation 17 to determine whether there is sufficient evidence of actual exposure. Lockwood. 109 Wash.2d 18 at 247. 19 Decedent's own discovery deposition testimony establishes that he had no recollection 20 of ever being in the vicinity of a Warren Pumps pump when it was being repaired, whether 21 during the mill's operation, a shutdown, or repair in the shop. (Mattingly Dec., Ex. C at pp.39 22 40, 45-46). Indeed, this is not surprising in light of the fact that the Ketchikan Pulp mill covers 23 approximately ten (10) acres and encompasses approximately twenty-five (25) buildings. 24 (Mattingy Dec., Ex. C at pp.31-32). 25 Decedent further acknowledged that he had no knowledge whether any Warren Pumps 26 pump included an asbestos-containing component. (Id at p.46). Moreover, he testified that the PAGE 7- DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE Steven V. Rizzo, P.C. Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819 1 pumps at the Ketchikan Pulp Mill arrived without any flange gaskets or insulation, (Id. at p. 10; 2 Ex. B at pp. 112-114). The decisions whether to insulate pumps, the type of insulation used, and 3 the types of flange gaskets to use were made by the mill, not the pump manufacturers. 4 (Mattingly Dec., Ex. B at pp.l 12-113). Accordingly, assuming that any of the products that the 5 Ketchikan Pulp Mill or its employees chose to use in conjunction with a Warren Pumps pump 6 contained asbestos, those asbestos-containing products were not made or sold by Warren 7 Pumps. It cannot be held liable for other manufacturers gaskets or insulation. 8 With respect to packing, a third type of component frequently identified by plaintiffs 9 with respect to pumps, the record is silent. Decedent did not testify about the replacement of 10 packing in a Warren Pumps pump, and even if he had, there is no evidence in the record to 11 suggest that any such pump's packing contained asbestos. 12 Since plaintiff is unable to identify any exposure to an asbestos-containing Warren 13 Pumps pump, summary judgment is appropriate. 14 II. Warren Pumps Did Not Owe a Duty to Warn With Respect to Products that it Neither Made Nor Sold. 15 Plaintiff, as in case before, seeks to hold Warren Pumps (and other defendants) liable 16 under a theory that they owed a duty to warn users of the risks associated with products that 17 Warren Pumps neither made nor sold. Plaintiffs novel theory, rejected by this Court on many 18 prior occasions, has not been recognized by any Washington court, and the reported opinions 19 from other courts have almost uniformly rejected her theory.2 20 The only Washington cases cited by plaintiff in support of her theory that a 21 manufacturer owes a duty to warn with respect to other manufacturers products are easily 22 distinguishable. In Bich v. General Electric. 27 Wash.App. 25, 614 P.2d 1323 (1980), the 23 plaintiff was injured when a transformer manufactured by defendant GE exploded. The cause 24 25 2 Because the overwhelming (if not universal) weight of reported opinions supports Warren Pumps, plaintiff relies instead on several unreported opinions from trial courts in other states. Such authority is 26 not permitted in Washington and should be given no consideration in this case. PAGE 8- DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE Steven V. Rizzo, P.C, Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 TELEPHONE: (503) 229-1819 1 of the explosion was a fuse manufactured by Westinghouse that had been substituted into the 2 GE transformer after the product had left GE's control. Among other theories, plaintiff 3 contended that GE was liable for failure to warn about the substitution of a Westinghouse fuse 4 with certain time delay properties. The Court of Appeals held that GE did not have a duty to 5 warn of the risk created by the Westinghouse fuse, although it could be held liable for the risks 6 associated with the time-delay characteristics of its own fuse. Plaintiff never explains how this 7 ruling purports to support her position that, unlike GE, Warren Pumps should be held liable for 8 not warning about products that it neither made nor sold. Warren Pumps was in the business of 9 manufacturing and selling pumps, not gaskets. 10 The Court of Appeals' opinion in Parkins v. Van Doren Sales. Inc.. 45 Wash.App. 19, 11 724 P.2d 389 (1986), is even more attenuated to the issues presented in this case. In Parkins, 12 the defendant sold various components to plaintiffs employer that it knew or should have 13 known could be assembled into a conveyer belt. When the defendant sold fully manufactured 14 conveyer belts, it included guards and a warning at a certain point where the belt was fed over a 15 roller called a "nip point." However, no guards or warning were supplied with the components 16 that were sold to plaintiffs employer. Plaintiff was injured when her arm was caught in a nip 17 point. The Court of Appeals held that the defendant could be held liable because the parts that 18 it sold were designed to be assembled in one unique way, and that design did not incorporate 19 guards or warnings. Notably, and unlike the case before this Court, the plaintiff was not 20 seeking to hold the defendant liable for products made or sold by some other manufacturer. 21 Plaintiff offers no other persuasive argument why Warren Pumps should be held liable 22 for products that it neither made nor sold. Summary judgment is appropriate. 23 III. Plaintiff Has Failed to Establish That He Was In the Presence of Any Warren Pumps Pump When an Original Internal Gasket Was Removed. 24 In a final attempt to salvage this claim, plaintiff points to a record showing that Warren 25 Pumps supplied a single pump that may have included internal asbestos-containing gaskets to 26 the Ketchikan Pulp Mill in 1953. However, plaintiffs claims still fails because, as shown PAGE 9- DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE , Steven V. Rizzo, p.c. Lincoln Place, Suite 350 1620 S.w. Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819 1 above, there is simply no admissible evidence that decedent was ever in the vicinity of that 2 particular pump when the original internal gaskets were removed (if ever). 3 Of even more concern, decedent was not continuously employed by the Ketchikan Pulp 4 Mill after the pump's delivery in 1953. Indeed, decedent did not work at the mill from 1954 5 (after the construction of the mill was completed) through 1956, and again did not work at the 6 mill from 1957 through 1959. It is entirely speculative for plaintiff to suggest that the decedent 7 would have been present during the first occasion when internal gaskets were removed from a 8 Warren Pumps pump (if they were, in fact, ever removed). Under Washington law, a claim that 9 rests solely on speculation will not survive a motion for summary judgment. Marshall v. Bally's 10 Pacwest. Inc., 94 Wash.App. 372, 381, 972 P.2d 475 (1999). Because plaintiffs have no 11 admissible evidence showing that decedent was ever exposed or harmed by any asbestos12 containing products manufactured, sold, leased, distributed or certified by Warren Pumps, 13 plaintiffs claims against Warren Pumps should be dismissed. 14 CONCLUSION 15 For the reasons stated above, the Court should grant Warren Pumps, LLC's Motion for 16 Summary Judgment. 17 Dated: February 16, 2006. 18 Respectfully submitted, 19 STEVEN V. RIZZO, P.C. 20 21 22 Michael Miftingly, W$d3A# 33452 Attorney for Warren Pum ^s, LLC 23 24 25 26 PAGE 10- DEFENDANT WARREN PUMPS, LLC'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MOTIONS TO STRIKE Steven V. Rizzo, P.C. Lincoln place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819 1 2 3 4 5 6 7 8 SUPERIOR COURT FOR THE STATE OF WASHINGTON 9 FOR THE COUNTY OF KING 10 RANA FRENCH, as Personal Representative of 11 the Estate of RALPH DALE, Case No. 05-2-09268-8SEA 12 Plaintiff, 13 v. DECLARATION OF AND/OR MAILING DELIVERY 14 SABERHAGEN HOLDINGS, INC., et al.. 15 Defendants. 16 I am employed by the law firm of Steven V. Rizzo, P.C. in Portland, Oregon. I am over 17 the age of eighteen years and not a party to the subject cause. My business address is Lincoln Place, Suite 350, 1620 SW Taylor Street, Portland, OR 97205. 18 On the date below, I caused to be served Defendant Warren Pumps, LLC's Reply to 19 Plaintiffs Response to Motion for Summary Judgment And Motion to Strike on all parties in this action by transmitting a true copy thereof in the following manner unless otherwise 20 indicated. 21 I. Via US Mail 22 23 Matthew Bergman Bergman & Frockt 24 The Hoge Building, Suite 1601 705 Second Avenue 25 Seattle, WA 98104 Counsel for Plaintiff 26 Michelle B. Norton Waters & Kraus, LLP 3219 McKinney Avenue Suite 3000 Dallas, TX 75204 Council for Plaintiff PAGE 1 - DECLARATION OF DELIVERY AND/OR MAILING Steven V. Rizzo, P.C. Lincoln Place, Suite 350 1620 S.W. Taylor Street Portland, Oregon 97205 . Telephone; (503)229-1819 1 J. Conard Metcalf 2 Trine & Metcalf, PC 1435 Arapahoe Avenue 3 Boulder, CO 80302 Counsel for Plaintiff Timothy K. Thorson Carney, Badley, Smith & Spellman 701 Fifth Avenue, Suite 3600 Seattle, WA 98104 Counsel for Saberhagen Holdings, Inc. 4 5 II. Via E-mail 6 Barry Mesher Lane Powell Spears Lubersky James E. Home Kingman, Peabody, Pierson & Fitzharris, P.S. 1420 Fifth Avenue, Suite 4100 7 Seattle, WA 98101-2338 505 Madison Street, Suite 300 Seattle, WA 98104 8 Counsel for Chicago Bridge & Iron Counsel for IMO Industries Company 9 Kenneth Petty 10 Williams, Kastner & Gibbs Two Union Square, Suite 4100 11 601 Union Street Seattle, WA 98101 12 Counsel for General Electric 13 I declare under penalty of perjury and under the laws of the State of Washington (RCW 9A.72.085) that the foregoing is true and correct. 14 )/ 15 Executed at Portland, Oregon, thiis.Jw day of February, 2006. .... ,,.."'7 16 17 ''"O-"".. Rosanna Santos 18 Litigation AsSistan 19 20 21 22 23 24 25 26 PAGE 2 - DECLARATION OF DELIVERY AND/OR MAILING Steven V. Rizzo, P.C. Lincoln Place, Suite 3S0 1620 S.W. Taylor Street Portland, Oregon 97205 Telephone: (503)229-1819