O'Leary v. Dillingham Construction CA1/1 ( 2016 )

Filed 2/18/16 O’Leary v. Dillingham Construction CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BETTY O’LEARY,
Plaintiff and Appellant,
A142848
v.
DILLINGHAM CONSTRUCTION N.A., (San Francisco City & County
INC., Super. Ct. No. CGC-11-275803)
Defendant and Respondent.
Plaintiff Betty O’Leary has maintained this action for asbestos exposure on behalf
of her late husband, Michael O’Leary (O’Leary). One of the many defendants,
Dillingham Construction N.A., Inc. (Dillingham), moved for summary judgment. The
pivotal issue was whether the insulation swept into the air by Dillingham laborers in the
early 1970’s, near where O’Leary was working, contained asbestos. Plaintiff’s expert, a
certified asbestos consultant, reviewed a physical description of the insulation and
employed his special knowledge of insulation materials use in and around the early
1970’s. He had “no doubt” the insulation O’Leary inhaled contained asbestos. The trial
court, however, ruled the expert’s opinion was too speculative and excluded it. Without
this testimony, plaintiff had no evidence the insulation contained asbestos, and therefore
no case. The trial court therefore granted summary judgment to Dillingham.
Plaintiff appeals, challenging the trial court’s rejection of her expert’s testimony.
We conclude the declaration was sufficient, and reverse.
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BACKGROUND
The only evidence of O’Leary’s exposure to insulation dust comes from his former
colleague, James Hetzel, who authored a declaration in opposition to Dillingham’s
motion for summary judgment.
According to Hetzel, he and O’Leary were riggers “from the 1970s into the late
1980s . . . at the Tosco Refinery, Avon, CA where [they] worked on shut-downs.”
O’Leary was Hetzel’s supervisor. O’Leary not only inspected the work of Hetzel’s crew,
he also did “hands-on work” alongside him. During rigging work, they disturbed
insulation on heavy equipment. Also, many other workers around them would, during
shut-downs, disturb “the old insulation on” nearby “steam lines and large machinery.”
During the “early to mid 1970s,” Hetzel saw Dillingham employees sweep “dust and
debris from the old thermal insulation that had been removed from steam lines and large
machinery” at times as close as five or 10 feet from O’Leary. The “old insulation was
white to off-white, the outer part would be darker in color from age, it was crumbly and
brittle and there were visible fibers when you see the broken pieces up close.” This
insulation was “a different color and texture to what . . . was patched on piping and
equipment much more recently.”
Plaintiff’s expert Charles Ay is a state-certified asbestos consultant who has been
inspecting residential, commercial, and industrial buildings for asbestos for over 30 years,
since 1984. Before that, Ay worked for 25 years, from 1956 until 1981, as an insulator in
refineries, power plants, other buildings, and ships where he had experience with a wide
range of both asbestos-containing and asbestos-free insulation products. For his state
certification, Ay keeps current with asbestos literature and completes mandatory
continuing education annually. He has taken numerous courses in how to identify
asbestos-containing material. Additionally, Ay has “researched materials used to make
insulation, and ha[s] examined and tested” for asbestos “various types of insulation
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materials found in industrial settings, including refineries.” He thus claims “the ability to
recognize asbestos versus non-asbestos-containing thermal insulation materials.”
In this case, Ay offered an analysis based on Hetzel’s observations of the “old”
insulation being removed near O’Leary by Dillingham employees. Ay cataloged the
observations: the insulation came off of refinery steam lines and large machinery, was
white to off-white in color, had a darker outer part because of age, was crumbly and
brittle, had visible fibers in broken-off pieces, and was different in color and texture from
insulation that put on much more recently.
Then, Ay opined this “thermal insulation . . . more likely than not” contained
asbestos. Based on Hetzel’s observations, the insulation “could only have been a calcium
silicate or ‘85% mag.’ ” All 85 percent mag insulation contained asbestos. “Calcium
silicate sometimes did, but sometimes did not. Calcium silicate is an off-white to light
grey, sectional material which is harder and darker in color than 85% magnesia. The
asbestos-containing varieties were extremely hard and required vigorous sawing to
penetrate the material, whereas the non-asbestos-containing varieties are less hard, less
rigid, easier to cut, and readily break apart during rough handling.”
That some calcium silicate was asbestos free was irrelevant to Ay, given the
timing of Hetzel’s observations. Both 85 percent mag and calcium silicate “always had
asbestos as a component throughout the 1950’s and 1960’s and into the early 1970’s
when the first non-asbestos containing pipe covering and block insulation were first
introduced.” Further, Ay opined that the use of asbestos-containing thermal insulation
across a variety of settings was “virtually identical[,] at least up to approximately 1974
when no new asbestos thermal insulation was installed.” Accordingly, Ay had “no doubt
. . . the pipe and block insulation . . . was asbestos containing and was applied during
years when such materials were prevalent.”1
1
We deny Dillingham’s request for judicial notice, filed January 11, 2016, of a
minute order further reflecting the trial court’s ruling on the admissibility of the Ay
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DISCUSSION
“ ‘A defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff’s asserted causes of action can prevail.’ ”
(Sherman v. Hennessy Industries, Inc. (2015) 237 Cal. App. 4th 1133, 1138.) Generally,
the defendant must first make a prima facie showing that there is no triable issue of
material fact. If successful, the burden of production shifts to the plaintiff, who must then
make a prima facie showing that there is a triable issue. (Ibid.)
For the most part, review of a summary judgment is de novo. (Ahn v. Kumho Tire
U.S.A., Inc. (2014) 223 Cal. App. 4th 133, 136.) As to the proffered evidence, we, like the
trial court, strictly construe the moving party’s evidence while liberally construing the
opponent’s. (Id. at p. 137.) However, we “disregard evidence to which a sound objection
was made” in the trial court and we “consider any evidence to which no objection or an
unsound objection was made.” (Id. at pp. 136–137.) Although an open question, the
weight of California appellate court authority holds that we review a trial court’s
summary judgment evidentiary rulings for an abuse of discretion rather than de novo.
(Id. at pp. 143–144.) Even so, it remains an abuse of discretion to rest an evidentiary
ruling on an error of law, a matter which we would determine de novo. (See ibid.; Shuts
v. Covenant Holdco LLC (2012) 208 Cal. App. 4th 609, 617.)
Here, there is no dispute on appeal that Dillingham met its initial burden; rather,
the focus is on plaintiff’s evidence. All also agree, at least for summary judgment, that
the declaration of O’Leary’s colleague, Hetzel, establishes Dillingham exposed O’Leary
to dust originating from insulation removed from steam lines and large machinery in the
Declaration. The request is exceedingly untimely. In any event, the minute order does
not assist or change our analysis in this case. (Stockton Citizens for Sensible Planning v.
City of Stockton (2012) 210 Cal. App. 4th 1484, 1488 [judicial notice of irrelevant
materials denied].)
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early 1970’s. The question is whether the declaration of Charles Ay is sufficient to raise
a triable issue this insulation contained asbestos.
A qualified expert is not free “to express any opinion within the area of expertise.”
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1117
(Jennings); Powell v. Kleinman (2007) 151 Cal. App. 4th 112, 123 (Powell).) A trial court
can exclude an expert’s opinion as speculative, lacking foundation, or without sufficient
certainty. (Powell, supra, 151 Cal.App.4th at p. 123.) Such opinions have “no
evidentiary value.” (Jennings, at p. 1117.) “ ‘Moreover, an expert’s opinion rendered
without a reasoned explanation of why the underlying facts lead to the ultimate
conclusion has no evidentiary value because an expert opinion is worth no more than the
reasons and facts on which it is based.’ ” (Powell, at p. 123.) This latter requirement,
however—for a reasoned explanation—is more stringently enforced against the party
seeking summary judgment than against the party opposing it. Given the obligation to
liberally construe the opposing party’s evidence, that party’s expert need not provide the
same level of explanatory details. (Id. at pp. 125–126; see also Brown v. Ransweiler
(2009) 171 Cal. App. 4th 516, 529.)
The expert opinion of Charles Ay regarding the insulation’s asbestos content is not
speculative or lacking in foundation as Dillingham claims. Ay had an eyewitness’s
description of the insulation. Ay also knew the insulation was removed from steam pipes
and machinery over a span of years beginning in the early 1970’s. From these facts, and
based on his knowledge of insulation materials used in various industrial contexts,
including in refineries, Ay concluded the insulation contained asbestos.
Ay reasoned the insulation could only be of two types: 85 percent mag or calcium
silicate. 85 mag always contained asbestos. Calcium silicate sometimes contains
asbestos. But “into the early 1970s,” calcium silicate “always had asbestos as a
component.” Only in 1974 was a non-asbestos variety installed. It was in the early
1970’s, however, that O’Leary came into contact with what was already “old” insulation
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which was not being applied, but removed. Ay therefore had “no doubt” the insulation
“was asbestos containing and was applied during years when such materials were
prevalent.”
In another recent asbestos case, the Second District concluded a similar
declaration by Ay was not speculative and sufficient, in tandem with fact declarations by
the plaintiff and a coworker, to defeat summary judgment. (Ganoe v. Metalclad
Insulation Corp. (2014) 227 Cal. App. 4th 1577, 1586 & fn. 4 (Ganoe).) The fact
declarations established that the installation of new Banbury and lay-down machines at a
Goodyear plant in 1974 involved repair of chalky insulation that produced dust. (Id. at p.
1580.) Ay opined the disturbed insulation more likely than not contained asbestos. (Id.
at p. 1581.) According to Ay, “ ‘prior to 1972 a rigid, whitish, chalky, pre-formed half
round pipe covering was almost certainly asbestos-containing,’ and that ‘if the material
was used for hot pipes in industrial settings, such as a tire manufacturing plant, then’
‘[t]he probability in such circumstances would exceed ninety-nine percent that the
material contains asbestos.’ ” (Ibid.)
The appellate court concluded “Ay’s experience provided an adequate foundation
for this opinion. Nor was it speculative for Ay to conclude that installation of the new
machines involved the removal of insulation, or that, in 1974, old insulation removed
from ‘chalky’ ‘hot pipes used in industrial settings’ more likely than not contained
asbestos.” (Ganoe, supra, 227 Cal.App.4th at p. 1586, fn. 4.) Viewing the fact
declaration and the expert declaration most favorably for the plaintiff, the appellate court
concluded the trial court erred in granting summary judgment on the plaintiff’s exposure
claim. (Id. at pp. 1579, 1586.)
True, the date for exposure in Ganoe, 1974, was somewhat more precise than in
the instant case. But a “[p]laintiff must prove the fact, not the date, of exposure.” (Collin
v. CalPortland Co. (2014) 228 Cal. App. 4th 582, 595.) Here, Ay at least knew removal of
the old insulation was occurring in the early 1970’s (an earlier window than the 1974
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timeframe in Ganoe), when old insulation, and even then-current insulation, was asbestos
containing. Thus, this is not a case, like Collin, in which the alleged victim could not
even approximate when in a 45-year career he encountered the defendant’s substance,
which early on would have contained asbestos but later on would have been asbestos-
free. (Id. at pp. 586, 594–596.)
Just last year, another division of the Second District concluded a jury finding of
asbestos exposure was supported by evidence in many ways weaker than the Hetzel and
Ay declarations in this case. (Soto v. BorgWarner Morse TEC Inc. (2015)
239 Cal. App. 4th 165, 203–205 (Soto).) Plaintiff’s experts “collectively testified
(1) [defendant’s smelting plant] likely had thermal insulation in place in the 1940’s and
1950’s, (2) a majority of the thermal insulating products used in the United States during
that time contained asbestos, (3) individuals exposed to thermal insulation face an
increased risk of mesothelioma, and (4) this is particularly true where the insulation
contained asbestos.” (Id. at pp. 204–205.)2 “This evidentiary chain is perhaps not robust,
but, when viewed in the light most favorable to the jury’s finding,” the Second District
concluded it was “adequate to support that finding.” (Id. at p. 205.)
Dillingham cites an older case, Andrews v. Foster Wheeler LLC (2006)
138 Cal. App. 4th 96 (Andrews), which considered another Charles Ay declaration and
concluded it could not stave off summary judgment. In Andrews, the plaintiff claimed
asbestos exposure in 1966 while aboard a naval vessel, the USS Brinkley Bass.
(Andrews, at pp. 99–100.) According to the plaintiff and his experts, the asbestos came
from Foster Wheeler gaskets in condensers that had been installed in the ship’s boiler
room in 1945, nearly 20 years before. (Id. at pp. 99–100, 108.) Ay reasoned “ ‘[p]acking
2
One expect also testified, quite vaguely, that he knew the plant “ ‘has asbestos-
containing products,’ ” but this testimony is not explained or elaborated on in the court’s
opinion, and the court did not include it in the “evidentiary chain” linking plaintiff to
asbestos at the plant. (Soto, supra, 239 Cal.App.4th at pp. 176, 203–205.)
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and gaskets used in naval applications commonly contained asbestos from the 1940’s
until at least the early 1970’s.’ ” (Id. at p. 111.) He went on, “based on his work on the
ship in the 1960’s (although it was not shown that Foster Wheeler’s condensers were
[still] onboard the ship at that time), he understood that asbestos was ‘required’ for the
ship’s condensers.” (Ibid.)
The first item of note about Andrews is that the court did not rule Ay’s declaration
lacked foundation or was speculative. Rather, the court concluded the plaintiffs were the
ones speculating beyond what Ay’s declaration permitted. (Andrews, supra,
138 Cal.App.4th at p. 111.) Indeed, Ay’s testimony in Andrews differs from his
testimony here. In Andrews, Ay could only say the gaskets at issue “commonly”
contained asbestos during the relevant timeframe. And while Ay could say the
condensers would “require” asbestos based on what he saw on ships in the 1960’s, that
was not the relevant timeframe. (Ibid.) Furthermore, the Andrews plaintiffs had far more
serious evidentiary troubles aside from whether the gaskets contained asbestos. The only
evidence of Foster Wheeler condensers onboard were ship schematics; if the initial
condensers were Foster Wheeler, the evidence suggested they were replaced with other
products 16 years before the relevant time period, and there was no evidence the
condensers were actually manipulated at any time that would have produced asbestos
dust—only speculation that such manipulation was likely to occur and likely to result in
respirable asbestos. (Ibid.) Those troubles are not present in this case.
Accordingly, the instant case falls in the Ganoe and Soto camp, and Ay’s
declaration was sufficient to raise a triable issue precluding summary judgment.
DISPOSITION
The judgment is reversed. Costs to appellant.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
A142848, O’Leary v. Dillingham Construction N.A., Inc.
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