Aguirre v. Rippy CA2/5 ( 2015 )

Filed 10/23/15 Aguirre v. Rippy CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JENNIE AGUIRRE et al., B257260
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC450023)
v.
FRANCINE RIPPY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
L. Fruin, Jr., Judge. Affirmed.
Park & Sylva, Daniel E. Park, Shahram Shayesteh, Christopher C. Cianci; Daniel
E. Park Law Corporation, Daniel E. Park, Shahram Shayesteh, Christopher C. Cianci, for
Plaintiffs and Appellants.
Squire Patton Boggs, Chris M. Amantea, Adam R. Fox, Helen H. Yang; Dinsmore
& Sandelmann, Frank Sandelmann, for Defendant and Respondent.
INTRODUCTION
Plaintiffs and appellants Jennie Aguirre, Glenn DiCaro, Judy Gilleland, Rosemary
Islava, Aliyah Islava, Ruth Linnea Karmelich, Ruben Lopez, and Olivia Santos
(plaintiffs) brought an action against, inter alia, defendant and respondent Francine Rippy
(defendant) concerning the alleged chemical contamination of their workplace.1 The trial
court granted defendant’s motion for summary judgment (summary judgment motion)
with respect to the fifth amended complaint. On appeal, plaintiffs contend that the trial
court erred in granting summary judgment because there are triable issues of material fact
as to their causes of action for negligence, strict liability for ultrahazardous activity, and
public nuisance. Plaintiffs also contend that defendant failed to meet her burden of proof
in demonstrating that they cannot establish causation and there is a triable issue of
material fact with respect to causation. We affirm.
BACKGROUND
In their fifth amended complaint, plaintiffs asserted causes of action for
negligence, strict liability for ultrahazardous activity, and public nuisance alleging that
Omega Chemical Corporation (Omega) illegally stored and dumped chemicals on two
parcels of land—12504 and 12512 Whittier Boulevard in the City of Whittier,
California—that later became known as the Omega Chemical Superfund Site (Omega
Site). Fred R. Rippy, Inc. owned the property at 12504 Whittier Boulevard from 1963
until 1966 when it transferred its ownership interest to its then president Fred R. Rippy,
defendant’s husband. In 1986, Mr. Rippy transferred ownership of 12504 Whittier
Boulevard to the Fred R. Rippy Trust (Rippy Trust). Defendant and Mr. Rippy owned
the property at 12512 Whittier Boulevard from about June 1984 to October 1986, when
1 Plaintiffs alleged that Aliyah Islava’s mother Rosemary Islava worked in the
workplace when Aliyah was in gestation.
2
they transferred the property to the Rippy Trust.2 From 1976 until 1987, Omega leased
12504 Whittier Boulevard. In 1987, the Rippy Trust granted ownership of 12504 and
12512 to Omega.
According to plaintiffs, from 1976 to 1991, Omega operated a spent solvent and
refrigerant recycling and treatment facility on the Omega Site. The facility treated
commercial and industrial solid and liquid waste consisting of chlorinated and aromatic
solvents and other hydrocarbons and chlorofluorocarbons and operated as a transfer
station for the storage and consolidation of waste for shipment to other treatment and/or
disposal facilities. The facility stored large quantities of waste on the property. The
improper storage and handling of the waste, including leaking storage tanks and spills,
resulted in contamination of the soil and groundwater. According to the Environmental
Protection Agency (EPA), the toxic chemicals migrated through the soil as gas and
entered adjacent buildings through cracks in basements, foundations, sewer lines, and
other channels.
Plaintiffs alleged that during the time that defendant owned 12512 Whittier
Boulevard, the property had been and was contaminated, which contamination was
visible in aerial photographs. Plaintiffs claimed that the spillage and staining on 12512
Whittier Boulevard was caused or contributed to by Omega’s operations on that property
or on 12504 Whittier Boulevard. They alleged that any reasonable, diligent property
owner would have noticed and been aware of the significant spillage and staining on
12512 Whittier Boulevard, and that defendant knew or should have known of the
contamination
According to plaintiffs, during the time that defendant owned 12512 Whittier
Boulevard, the Los Angeles County Health Department sent a number of violation
notices concerning soil and groundwater contamination at or around 12504 Whittier
Boulevard caused by Omega’s operations. As owner of an adjacent property, defendant
knew or should have known about the contamination and the public notices concerning
2 Defendant may have retained some interest in the property as she released and
quitclaimed her interest in the property to the Rippy Trust in September 1987.
3
12504 Whittier Boulevard and the effect that such contamination would have on her and
other surrounding properties. Moreover, during defendant’s ownership of 12512 Whittier
Boulevard, environmental investigative work was conducted on 12504 Whittier
Boulevard, which investigative work found “ground/soil surface and subsurface
contamination at the Omega Site.” Defendant knew or should have known about the
investigative work.
Defendant failed to investigate to determine the spread of the contamination to
adjacent properties, plaintiffs claimed, despite having notice of the contamination and the
need for such an investigation. Defendant had a duty to investigate and mitigate the
contamination on her property.
Except for Aliyah Islava, plaintiffs alleged that they worked at the Tri-Cities
Regional Occupational Program (ROP), which occupied the property at 12519 East
Washington Avenue (ROP Site) across the street from the Omega Site, and that they were
exposed to chemicals that migrated from the Omega Site to the ROP Site through the soil
and groundwater.3 Plaintiffs further alleged that defendant acquired ownership of the
ROP Site in 1977 and leased it to the ROP from November 1998 to 2012. They
contended that defendant had notice that the Omega Site contamination had reached the
ROP Site but failed to investigate and mitigate the contamination on the property in a
timely manner or to warn them of the foreseeable harm. As a result of the contamination
to which they claimed they were exposed, plaintiffs alleged they suffered from the
following: Ms. Aguirre—neuralgia, abnormal cells on her cervix, a two centimeter cyst
in her ovary, Eagle Syndrome, and thyroid cysts; Mr. DiCaro—esophageal cancer; Ms.
Gilleland—thyroid cancer, a cyst on her ovary, cervical discharge, breast cancer, and
several lipoma tumors in her neck; Rosemary Islava—a severe rash, redness, and itching
all over her body resulting in blisters during her pregnancy with Aliya; Aliya Islava—
medulloblastoma (brain cancer); Ms. Karmelich—breast cancer and lymphoma in her
3 See footnote 1 above.
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lungs and bones; Mr. Lopez—benign tumors on his head and neck; and Ms. Santos—
monoclonal gammopathy.
According to plaintiffs, defendant was serving or had served as a board of
directors board member, president, and chief executive officer (CEO) of Fred R. Rippy,
Inc. She was Fred R. Rippy, Inc.’s CEO in 1998 when it leased the ROP Site to the ROP.
As CEO, defendant would or should have known of investigations conducted by the EPA
and by consultants hired by the Fred R. Rippy Trust and the results of those
investigations. Defendant knew or should have known that the Omega Site was
contaminated before Fred R. Rippy, Inc. leased the ROP Site to the ROP. Despite
requests from the ROP “for such knowledge,” defendant failed to inform the ROP of the
contamination. In 1999, defendant was aware of evidence that suggested that the use of
chemicals and solvents at the Omega Site contributed to groundwater contamination that
had spread “down-gradient” of the Omega Site and failed to inform the ROP.
Despite her knowledge of the contamination, defendant failed to take any action to
investigate or to assist in the investigation of the Omega Site or the ROP Site. She
further failed to take any action to mitigate or remediate or to assist in any mitigation or
remediation efforts at the Omega Site or the ROP Site. She also failed to notify the ROP,
plaintiffs, or any of the ROP’s employees of the contamination.
In light of the allegations in the fifth amended complaint, defendant moved for
summary judgment asserting the following five undisputed material facts: (1) defendant
never had an interest in, operations on, or the ability to control 12504 Whittier Boulevard
or the ROP Site; (2) defendant’s only interest in 12512 Whittier Boulevard was as a joint
tenant with her husband from June 7, 1984, through October 1, 1986; (3) during her
ownership of 12512 Whittier Boulevard, defendant was never made aware that
contamination from any source posed a threat to human health to persons within the
buildings on the ROP Site, or likely would pose such a threat in the future; (4) defendant
never released to soil or groundwater anywhere trichloroethylene, perchloroethylene,
methylene chloride, or benzene; and (5) plaintiffs claimed adverse health effects were not
caused by their exposures at the ROP Site to trichloroethylene, perchloroethylene,
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methylene chloride, or benzene. Defendant repeated and relied on those same facts with
respect to each of plaintiffs’ causes of action.
In support of its summary judgment motion, among other evidence, defendant
submitted a report from Barbara D. Beck, Ph.D., DABT (Diplomate, American Board of
Toxicology), FATS (Fellow, Academy of Toxicological Sciences), a toxicologist who
specialized in human health risk assessment. Dr. Beck performed hypothetical cancer
and non-cancer risk assessments in accordance with EPA guidelines and toxicity criteria
and California cancer and non-cancer toxicity levels using plaintiffs’ respective
employment histories and indoor air data information for the ROP Site during the period
from March 2010 to December 2012. She “[q]ualitatively and quantitatively evaluated
the potential for causal associations between exposures to the [chemicals of concern4]
and Plaintiffs’ claimed health effects.”
Dr. Beck opined that the cumulative cancer risks—i.e., the sum of all risks posed
by the chemicals of concern—did not exceed the EPA’s or California’s de minimis or
“acceptable” risk ranges and the non-cancer risk did not exceed a “hazard index of 1, a
level below which no adverse health effects [were] expected.” Dr. Beck’s findings
supported the conclusion that the plaintiffs’ potential exposure to the chemicals of
concern had “posed negligible cancer or non-cancer risks to any Plaintiff.”
Dr. Beck also considered each plaintiff’s specific health claims, the plaintiff’s
length of employment at the ROP Site, and where in the ROP Site the plaintiff worked.
She then evaluated the potential for “causal associations” between exposure to the
chemicals of concern and the plaintiffs’ claimed health effects. Based on her evaluations,
she found that there was no “reliable qualitative and/or quantitative evidence that a causal
association exist[ed] between Plaintiffs’ potential exposures to the [chemicals of concern]
and the claimed health effects.” Dr. Beck “conclude[d], to a reasonable degree of
scientific certainty, that it [was] highly unlikely that Plaintiffs’ potential exposures to [the
chemicals of concern] in indoor air at the ROP . . . buildings could have caused or
4 Dr. Beck identified the “chemicals of concern” as tetracholoroethylene (apparently
another name for perchloroethylene), trichloroethylene, benzene, and methylene chloride.
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actually caused their claimed health effects or could cause adverse health effects in the
future. Furthermore, there [was] no reasonable basis to conclude otherwise.”
Plaintiffs filed objections and a motion to strike all or parts of Dr. Beck’s
declaration and report. The trial court did not expressly rule on plaintiffs’ objections, but
implicitly overruled them as it relied on Dr. Beck’s report in ruling that there was no
causal link between plaintiffs’ exposure to the chemicals at issue and plaintiffs’ maladies.
In opposition to defendant’s summary judgment motion, plaintiffs submitted a
declaration from Rob C. Hesse, a principal geologist with Soil Water Air Protection
Enterprise (SWAPE), who reviewed the history and extent of hazardous waste releases
from the Omega Site. In a declaration, Mr. Hesse opined that, based on the information
he reviewed, “it is obvious that contamination should have been expected to be
downgradient of the Omega Site as early as 1988, if not earlier.” Mr. Hesse stated, “it
can be reasonably concluded that [defendant] had access to information and knowledge
of possible hazards at the ROP . . . but failed to act responsibly by informing the ROP
tenants and demanding that investigations be conducted to fully assess indoor air risks to
ROP occupants.” Plaintiffs also submitted a supplemental declaration from Mr. Hesse.
The supplemental declaration further addressed the issue of notice.
Plaintiff submitted a report from Paul Rosenfeld, Ph.D., a SWAPE principal and
an expert in the fields of environmental chemistry, risk assessment, contaminant exposure
assessment, contamination investigation, remediation, ecological restoration, and
epidemiological and statistical analysis, who evaluated the toxic air contaminants to
which plaintiffs were exposed at the ROP Site and that addressed opinions Dr. Beck
offered in her report. Dr. Rosenfeld criticized Dr. Beck’s report because the opinions
expressed in it concerning historical exposure at the ROP Site were based on indoor air
monitoring data collected after March 2010, which data primarily included results for
tests performed after mitigation actions were taken at the site. According to Dr.
Rosenfeld, Dr. Beck’s report did not consider historic chemical concentrations in the
ROP Site from 1999 to 2010. Dr. Rosenfeld stated that vapor intrusion modeling
demonstrated that plaintiffs were historically exposed to concentrations of contaminants
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inside the ROP Site buildings that greatly exceeded the levels that Dr. Beck supposed
were present and upon which she based her evaluation. He concluded, therefore, that Dr.
Beck’s analysis was inadequate and unreliable for assessing plaintiffs’ exposures.
Plaintiffs also submitted a report from Vera S. Byers, M.D., Ph.D., an expert in the
fields of environmental toxicology, pharmaceutical toxicology, autoimmune diseases,
exposure of populations to a variety of industrial chemicals including trichloroethylene,
perchloroethylene, and methylene chloride, who opined on the source of plaintiffs’
maladies using contamination exposure levels provided by SWAPE. As to Aliyah Islava,
Dr. Byers concluded that “Rosemary Islava’s exposure to the [perchloroethylene,
tricholorethylene] and methylene chloride at her workplace caused or substantially
contributed to her daughter Aliyah Islava’s medulloblastoma.” With respect to Rosemary
Islava, Dr. Beck stated, “It is my opinion to a reasonable medical probability that the
prolonged exposure of Mrs. Islava to [tricholorethylene] at her workplace was the cause
or a substantial factor contributing to her severe rash.”
With respect to Ms. Gilleland’s and Ms. Karmelich’s breast cancer, Dr. Byers
stated, “In conclusion there is definitely a causal association between exposure to the
three chlorinated hydrocarbons under discussion in this case and breast cancer. I
conclude that exposure to the three chlorinated hydrocarbons in this case was a factor in
the development of breast cancer suffered by these two women.” Dr. Byers opined that
“to a reasonable degree of medical certainty that Ms. Santos’s exposure to the chemicals
in question in this case caused or substantially contributed to her [monoclonal
gammopathy].”
As for Mr. DiCaro’s esophageal cancer, Dr. Byers opined “to a reasonable degree
of medical certainty that the exposure to the chemicals in question in this case was a
factor in Mr. DiCaro’s esophageal cancer. Given, however, the smoking history in this
case, I am unable to quantitate the significance of this factor.” With respect to Ms.
Aguirre’s peripheral neuropathy, Dr. Byers stated, “there is a causal association between
exposure to the three chlorinated hydrocarbons under discussion in this case and
peripheral neuropathy. Without further information I am unable to opine on the
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significance of Ms. Aguirre’s exposure to the chemicals in question in this case in the
causation of her peripheral neuropathy.” Dr. Byers concluded, “to a reasonable degree of
medical certainty that the workplace exposure to the chlorinated hydrocarbons especially
[tricholorethylene] caused or substantially contributed to the Monday morning headaches
suffered by Mr. Lopez” when he went to work and opened up the ROP.
Defendant filed objections to Mr. Hesse’s declaration and supplemental
declaration and Dr. Rosenfeld’s report. Defendant also filed objections to Dr. Byers’s
report. Based on the appellate record plaintiffs provided, it appears that plaintiffs did not
file responses to defendant’s objections. The trial court did not rule on the objections to
Mr. Hesse’s declaration and supplemental declaration and Dr. Rosenfeld’s report and
sustained the objections to Dr. Byers’s report. Plaintiffs do not challenge on appeal the
trial court’s ruling sustaining defendant’s objections to Dr. Byers’s report.
The trial court granted defendant’s summary judgment motion. In its discussion
of plaintiffs’ negligence cause of action, it stated that Dr. Beck’s testimony “to a
reasonable degree of scientific certainty, that ‘it is highly unlikely that Plaintiffs’
potential exposures . . . . could have . . . caused their claimed health effects . . . ’” was
credible. It further stated that “Plaintiffs’ evidence is insufficient to raise a triable issue
as to causation.”
DISCUSSION
Plaintiffs contend that there are triable issues of material fact as to their causes of
action for negligence, strict liability for ultrahazardous activity, and public nuisance.
They also contend that defendant failed to meet her burden of proof in demonstrating that
they cannot establish causation and there is a triable issue of material fact with respect to
causation. We hold that defendant met her burden of proof in demonstrating that
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plaintiffs cannot establish causation and there is no triable issue of material fact with
respect to causation.5
I. Standard of Review
“Summary judgment is granted when the moving party demonstrates that there is
no triable issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for
summary judgment meets its burden of showing that there is no merit to a cause of action
by showing that one or more elements of the cause of action cannot be established or that
there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd.
(p)(2).) We review an appeal of a summary judgment de novo, as the appeal only
involves legal issues. (State of California v. Allstate Ins. Co. (2009) 45 Cal. 4th 1008,
1017 [90 Cal. Rptr. 3d 1, 201 P.3d 1147].)” (Greene v. Bank of America (2015) 236
Cal. App. 4th 922, 932.)
II. Causation
Plaintiffs contend that the trial court improperly placed the burden on them of
demonstrating causation and failed to consider whether defendant made a prima facie
showing that there were no triable issues of material fact with respect to causation. In
addition to that error, plaintiffs contend, the trial court erred in failing to find that they
demonstrated a triable issue of material fact with respect to causation.
A. Defendant Made a Prima Facie Showing That There Are No Triable Issues
of Material Fact as to Causation
A defendant has met its burden of showing that there is no merit to a cause of
action and thus is entitled to summary judgment by showing that one or more elements of
5 Because we hold that plaintiffs cannot demonstrate causation, we need not reach
their claims that there are other triable issues of material fact as to their causes of action
for negligence, strict liability for ultrahazardous activity, and public nuisance.
10
a cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2); Greene v.
Bank of America, supra, 236 Cal.App.4th at p. 932.) Causation is an element in every
tort action. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal. 4th 861,
876.)
Plaintiffs contend that the trial court failed to consider whether defendant made a
prima facie case that they could not prove causation. They claim that defendant failed to
make such a case because defendant’s expert, Dr. Beck, was not qualified to offer
conclusions about plaintiffs’ medical conditions because she was a toxicologist and not a
medical doctor, her report lacked a foundation because she provided a conclusion on
causation without any basis or analysis, and she failed to consider plaintiffs’ long-term
exposure and based her analysis on contamination levels beginning in March 2010.
Apparently, plaintiffs contend that the trial court erred in failing to exclude Dr. Beck’s
report. Whether we review the trial court’s implicit rejection of plaintiffs’ objections to
Dr. Beck’s report de novo or under an abuse of discretion standard (see Reid v. Google,
Inc. (2010) 50 Cal. 4th 512, 535), the trial court properly considered the report.
Dr. Beck did not testify as an expert in medicine and thus did not render her
opinion on causation to a “‘“reasonable medical probability.”’” (See Bockrath v. Aldrich
Chemical Co. (1999) 21 Cal.4th. 71, 79, italics added.) Rather, she testified as an expert
in science and opined “to a reasonable degree of scientific certainty, that it [was] highly
unlikely that Plaintiffs’ potential exposures to [the chemicals of concern] in indoor air at
the ROP . . . buildings could have caused or actually caused their claimed health effects
or could cause adverse health effects in the future.” (Italics added.) Dr. Beck was
qualified to render that opinion. She was a Fellow and Past President of the Academy of
Toxicological Sciences and a Visiting Scientist in the Department of Environment Health
at the Harvard School of Public Health. She had been a Regional Expert in Toxicology
and Chief of the Air Toxics Staff at Region 1 of the EPA. She became a Diplomate of
the American Board of Toxicology—i.e., board certified—in 1988, and specialized in
human health risk assessment. In ruling that plaintiffs could not establish causation, the
trial court found credible Dr. Beck’s opinion to a reasonable degree of scientific certainty
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that it was highly unlikely that plaintiffs’ potential exposures to the chemicals of concern
could have caused their claimed health effects. A trial court has “considerable latitude in
determining the qualifications of an expert and its ruling will not be disturbed on appeal
unless a manifest abuse of discretion is shown.” (People v. Kelly (1976) 17 Cal. 3d 24,
39, abrogated by statute on another point as explained in People v. Wilkinson (2004) 33
Cal. 4th 821, 845-848.)
There was a sufficient foundation for Dr. Beck’s report. In Dr. Beck’s detailed
report, she stated that she relied on case-specific documents such as medical records,
questionnaires, depositions, air quality data, complaints, and Dr. Byers’s and Dr.
Rosenfeld’s declarations; general guidance documents in the fields of toxicology and
risks assessment by the EPA, Agency for Toxic Substances and Disease Registry
(ATSDR), and the California Environmental Protection Agency; environmental and
regulatory documents that included toxicity criteria and secondary toxicological reviews
of the chemicals of concern; and scientific literature on toxicology, epidemiology, and
risk assessment of the relevant chemicals.
As set forth above, Dr. Beck performed hypothetical cancer and non-cancer risk
assessments in accordance with EPA guidelines and toxicity criteria and California
cancer and non-cancer toxicity levels using plaintiffs’ respective employment histories
and indoor air data information for the ROP Site during the period from March 2010 to
December 2012. She considered each plaintiff’s specific health claims, the plaintiff’s
length of employment at the ROP Site, and where in the ROP Site the plaintiff worked.
She then evaluated the potential for “causal associations” between exposure to the
chemicals of concern and the plaintiff’s claimed health effects.
In that evaluation, relying on ATSDR toxicological profiles for the chemicals of
concern, she first “evaluated qualitatively whether scientific evidence exist[ed] to support
a causal relationship between exposures to the [chemicals of concern] and claimed health
effects under any conditions.” Next, she “compared the highest UCLM [upper
confidence limit of the mean] exposure concentrations in the ROP building to [chemicals
of concern]-specific health-based toxicity criteria (reference concentrations, or RfCs) and
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points of departure (PODs). The RfC is an estimate (with uncertainty spanning perhaps
an order of magnitude) of continuous inhalation exposure to the human population
(including sensitive subgroups) that is likely to be without an appreciable risk of
deleterious effects during a lifetime . . . . PODs are ‘the dose-response point that marks
the beginning of a low-dose extrapolation’ . . . to a cancer or non-cancer toxicity
criterion. For air contaminants, the POD is traditionally the lowest concentration at
which adverse effects have been observed in humans or animals, or the highest
concentration at which no adverse effects have been observed. To evaluate the potential
for non-cancer effects, [she] compared UCLM exposure concentrations to the RfC and
POD from which the RfC was derived. . . . To evaluate the potential for cancer effects,
[she] compared UCLM exposure concentrations to the POD serving as the starting point
for deriving US EPA inhalation cancer criteria (i.e., inhalation unit risks).”
In reaching her conclusions, Dr. Beck considered historic chemical exposure
levels. Dr. Beck relied on indoor air data from several rooms in the ROP taken from
March 2010 to December 2012. She then calculated the maximum value for each
chemical of concern for each room. Based on that data, she conducted a hypothetical risk
assessment for the following scenario: a full-time worker at the ROP for 14 years who
was exposed at all times to the highest UCLM concentration for each chemical of
concern. Dr. Beck’s use of actual indoor air data and maximum exposure levels for each
chemical properly considered historic levels of chemical contamination.
Plaintiffs also argue that the trial court held them to an improperly high standard
of proof on summary judgment. Instead, plaintiffs argue, they were only required to raise
a triable issue of material fact as to the causal connection between the alleged
contaminants and their asserted maladies. The trial court did not hold plaintiffs to an
improperly high standard in opposing defendant’s summary judgment motion. With
respect to each of plaintiffs’ causes of action, the trial court expressly stated in its ruling
that plaintiffs failed to establish a material issue of fact. Thus, the trial court applied the
correct standard in ruling on defendant’s summary judgment motion.
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B. Plaintiffs Failed to Demonstrate a Triable Issue of Material Fact as to
Causation
In its ruling granting summary judgment, the trial court stated with respect to
plaintiffs’ negligence cause of action, “In connection with defendant Fred Rippy’s prior
motion for summary judgment, the Court found Dr. Beck’s testimony [i.e., her
conclusion, to a reasonable degree of scientific certainty, that ‘it is highly unlikely that
Plaintiffs’ potential exposures . . . could have . . . caused their claimed health effects . . .’]
to be credible. At the same time, the Court sustained objections to the testimony
provided by Plaintiffs’ expert, Dr. Vera Byers. Defendant’s objections are likewise
sustained here. Dr. Byers’ statements re ‘reasonable medical probability’ are conclusory
only, and are improperly based on ‘associations’ between exposure and certain illnesses,
and speculative SWAPE opinions re the degree and duration of exposure. There is
nothing before the Court in the instant motion to change the Court’s rulings re those
objections. Thus, Plaintiffs’ evidence is insufficient to raise a triable issue as to
causation.”6 Plaintiffs contend that the trial court erred in granting defendant summary
judgment based on its causation ruling because they showed a triable issue of material
fact concerning causation.
As plaintiffs explain in their reply brief, their evidentiary showing on causation
consisted of two parts. First, Mr. Hesse and Dr. Rosenfeld provided evidence of the
levels of chemical exposure that each of the plaintiffs suffered at the ROP Site. Second,
based on that chemical exposure evidence, Dr. Byers “considered whether causal
connections existed between Plaintiffs’ exposure to the subject chemicals and Plaintiffs’
medical conditions or issues with their health.” Dr. Byers’s expert opinion was the only
evidence that specifically addressed that aspect of causation—i.e., that addressed whether
6 Although the trial court stated its ruling on causation in connection with plaintiffs’
negligence cause of action, plaintiffs’ causation theory was the same as to each of their
causes of action—i.e., exposure to the chemicals at issue in this case caused plaintiffs’
maladies. Accordingly, the trial court’s causation ruling applied with equal force to
plaintiffs’ causes of action for strict liability for ultrahazardous activity and public
nuisance.
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there was a causal link between plaintiffs’ alleged exposure to the chemicals at issue in
this case and plaintiffs’ asserted maladies. As set forth above, however, defendant
objected to Dr. Byers’s report, plaintiffs did not respond to those objections, and the trial
court sustained the objections. When the trial court sustained defendant’s objections to
Dr. Byers’s report, Dr. Byers’s report was excluded from plaintiffs’ evidentiary showing.
Plaintiffs have not challenged the trial court’s ruling on appeal. Accordingly, by failing
to respond to the objections to Dr. Byers’s report in the trial court and by failing to
challenge the trial court’s ruling on those objections on appeal, plaintiffs have forfeited
any challenge to the trial court’s ruling. Without Dr. Byers’s opinion on causation,
plaintiffs are unable to show that the trial court erred in finding that plaintiffs failed to
show a triable issue of material fact and thus erred in granting defendant summary
judgment.
DISPOSITION
The judgment is affirmed. Defendant is awarded its own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
BAKER, J.
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