Ochoa v. SPX Cooling Technologies CA1/1 ( 2023 )

Filed 7/20/23 Ochoa v. SPX Cooling Technologies CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
JO ANN OCHOA, et al.,
Plaintiffs and Appellants, A164054
v. (Alameda County
SPX COOLING TECHNOLOGIES, Super. Ct. No.
INC., et al., RG20075699)
Defendants and Respondents.
Daniel Ochoa (Ochoa), a former HVAC technician and pipefitter,
passed away after contracting mesothelioma. He was married to plaintiff Jo
Ann Ochoa and was the legal guardian of plaintiff Arianna Alyssa Huerta.
Plaintiffs appeal from a summary judgment entered in favor of defendants
Baltimore Aircoil Company (BAC), and SPX Cooling Technologies, Inc.
(SPX),1 manufacturers of HVAC cooling towers. They maintain there are
triable issues of fact as to whether Ochoa was exposed to asbestos while
working on BAC and Marley cooling towers. We affirm.2
SPX is the successor-in-interest to Marley Cooling Tower Company
1
(Marley), which was acquired by United Dominion Industries, Ltd. (UDI) in
1993. SPX acquired UDI in 2001.
Plaintiffs also appealed from the summary judgment entered in favor
2
of Keenan Properties, Inc. (Keenan). They filed a notice of settlement as to
Keenan on May 26, 2022, but no request for dismissal has been filed in this
1
BACKGROUND
The Cooling Towers
Cooling towers “cool water from an industrial process, either an air
conditioning system or some other kind of industrial process, where heat
rejection is required.” Air enters through louvers on the outside of the
towers. Hot water is sprayed out at the top of the tower over the “wet deck,”
which consists of stacked, corrugated material located on the inside of the
towers. This cools the water, which is then collected in the bottom of the unit
and recirculated.
Ochoa began working on cooling towers as an apprentice in the 1970’s.
He recalled working on BAC and Marley cooling towers, but for the most part
was unable to identify which brand he worked on at a particular site. Ochoa
did not “know whether any cooling tower that [he] worked on at any time in
[his] career contained asbestos.”
Ochoa’s work involved cleaning and maintenance. He explained “if
they called for us to go work on a cooling tower, we [had] to go and get it
fixed, whatever it is. It [had] to be . . . [¶] . . . [¶] . . . repaired, fixed, cleaned,
align belts, louvered, clean the louvers top and bottom, scrape it all off, all the
particles on the towers, the [BAC] or the Marley Cooling Tower.” Ochoa
testified “[e]very time we had to work on a cooling tower you would have
dust.” After scraping the louvers of the cooling towers, he would “be
breathing the product from these towers that . . . was, I guess, maybe fungus.
It would be whatever is left on the towers[,] because of the chemicals they put
in the water to keep the water as clean as possible.” Wet “mud” would get on
court. Plaintiffs have raised no issues regarding Keenan in their briefing on
appeal.
2
his clothing, and he would let it dry before he scraped it off. The material
came from both BAC and Marley cooling towers.
BAC Cooling Towers
BAC manufactured louvered cooling towers beginning in the 1960’s and
continuing through the 2000’s. The louvers were made of galvanized steel
until the 1980’s and of fiberglass after that. BAC never manufactured cooling
towers with louvers containing asbestos. It used galvanized steel for the
outer casing of its towers, not asbestos-containing material. None of the fan
bearings, fan blades, float valves or fan belts in BAC cooling towers contained
asbestos.
Between 1973 to about 1979, BAC manufactured some cooling towers
with asbestos in the “wet deck.” The “wet deck” was located “entirely within
the main compartment of the cooling tower” and was at least six inches from
the towers’ exterior casing and louvers. The louvers could be accessed
“without making any contact with the . . . wet deck contained in the interior
of the cooling tower.” There were also “certain [BAC] cooling towers [that]
utilized caulking and tape as sealants. The caulking and/or tape on some
models may have contained asbestos.”
Ochoa could not recall whether he had ever dismantled or accessed the
interior of a BAC cooling tower. He would “work[] on these towers that
need[ed] to be scraped, remove the water or clean the sump or change the
belts, oil them, lin[e] the bearings, make sure the shafts are straight, didn’t
need to be replaced.” He may have assisted in installing a new BAC tower,
but identified only work done on the outside of the tower. Ochoa could not
recall any specific location where he believed he had worked on a BAC tower.
BAC’s “person most knowledgeable” submitted a declaration stating
none of the work described by Ochoa on BAC towers “would involve any
3
asbestos containing component or the disruption of any asbestos-containing
component to perform.” The “scraping of the galvanized steel sides of a [BAC]
cooling tower would not have resulted in the release of asbestos, and the
material being scraped off the sides would have been a combination of
calcium scale, particulate and biological matter pulled into the tower by the
fan and/or accumulating in the recirculating water.” Similarly, any material
Ochoa would have cleaned “from the sump pan at the bottom of the cooling
tower would have been a combination of organic and sedimentary in
nature. . . . There would not be any measurable amount of asbestos found
within the material being cleaned out of the [BAC] sump pan.”
Marley Cooling Towers
Marley has manufactured and erected cooling towers since the mid-
1930’s. Prior to the early 1950’s, it did not use asbestos-containing
components in its cooling towers. In 1955, it “issued the first engineering
specification authorizing the use of asbestos cement board (‘ACB’), in its
towers for use as casing, louvers and decking.” Beginning in 1964, materials
containing asbestos were also used in some “fill and . . . drift eliminators.” In
March 1986, Marley stopped manufacturing asbestos-containing cooling
towers and stopped supplying asbestos-containing spare parts.
During the 1955–1986 time period, Marley also manufactured entirely
asbestos-free cooling towers. The asbestos-free cooling towers had casing,
louvers and fan decks composed of wood, glass-reinforced plastic, aluminum,
or steel. The asbestos-free drift eliminators and fill were made of “wood,
neoprene-coated non-asbestos containing kraft paper and/or plastic (‘PVC’).”
When working on the Marley towers, Ochoa testified he would “clean
them, maintain them, set the valves that need to be replaced, replace them,
oil the bearings, replace bearings . . . [s]ometimes . . . the shaft will have to be
4
removed completely, rebuilt to accept the new fan belt, towers, whatever had
to be replaced with the shaft that was attached to it.” To clean the cooling
towers, Ochoa would scrape the louvers with a large putty knife on a long
pole, power wash the tower’s fill, and clean mud out of the cooling tower’s
sump pan at the bottom of the tower with a vacuum and putty knife. Ochoa
testified the material he scraped off the louvers was “maybe fungus” or “mud,
bacteria, whatever.”
Work Sites
Ochoa identified the Huntington Library as a site where he worked on
steam lines and “[p]ackage units, towers.”3 SPX produced records showing a
Marley cooling tower had been shipped to that site in 1956. The work Ochoa
described at that site was all related to the package units and the steam
lines.
Ochoa also testified he worked on Marley and BAC cooling towers
during his time at WeatherRight, doing mechanical and cleaning
maintenance. On the Marley cooling towers, Ochoa replaced valves, oiled
bearings, replaced bearings, removed shafts for rebuilding, and possibly
installed a new fan belt.
The Summary Judgment Motion
Defendants moved for summary judgment on the ground there was no
evidence Ochoa was exposed to asbestos from their products as a result of his
work. The trial court granted the motion and entered judgment accordingly.
As to SPX, the trial court stated “Plaintiffs have not shown that they
have or can reasonably obtain evidence to show that [Ochoa] was exposed to
Ochoa described package units as “like if you have a box, and
3
everything is in . . . that box to function correctly. . . . A package unit is like
if you have one room and you want to keep that room at a certain
temperature, that’s a package unit that controls that room only.”
5
asbestos-containing components on Marley cooling towers that he worked on.
Nor is there evidence on this record that the type of work [Ochoa] performed
would have inevitably caused him to be in contact with and exposed to
asbestos dust from asbestos-containing components that might have been on
Marley cooling towers that he worked on.”
As to BAC, the trial court stated “while Plaintiffs have evidence that
[Ochoa] worked on BAC cooling towers and that some BAC cooling towers
had asbestos-containing components, Plaintiffs have not explained or
provided evidence showing that the work [Ochoa] performed on BAC cooling
towers would have exposed him to asbestos. Plaintiffs have not shown how
the maintenance, cleaning or repair described by [Ochoa] would have exposed
him to asbestos from the fill, or that his work involved working on any
asbestos-containing caulk or tape. As such, Plaintiffs have not raised a
triable issue of facts as to threshold exposure on this record.”
DISCUSSION
“ ‘On an appeal from an order granting summary judgment, we
independently examine the record to determine whether there are any triable
issues of material fact. [Citation.] In performing our review, we view the
evidence in the light most favorable to plaintiffs as the losing parties,
resolving any evidentiary doubts or ambiguities in their favor.’ (McGonnell v.
Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1102 . . . (McGonnell).)”
(Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 251 (Shiffer).)
“In the context of a cause of action for asbestos-related latent injuries,
the plaintiff must first establish some threshold exposure to the defendant’s
defective asbestos-containing products, and must further establish in
reasonable medical probability that a particular exposure or series of
exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in
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bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953, 982, fn. & italics omitted (Rutherford).)
Plaintiffs bear the burden of “ ‘ “demonstrating that exposure to . . .
asbestos products was, in reasonable medical probability, a substantial factor
in causing or contributing to [the] risk of developing cancer.” (Rutherford[,
supra,] 16 Cal.4th [at pp.] 957–958. . . .) . . . “[Plaintiffs] cannot prevail . . .
without evidence [of exposure] to asbestos-containing materials
manufactured or furnished by [a defendant] with enough frequency and
regularity as to show a reasonable medical probability that this exposure was
a factor in causing the plaintiff’s injuries.” [Citations.] “While there are
many possible causes of any injury, ‘ “[a] possible cause only becomes
‘probable’ when, in the absence of other reasonable causal explanations, it
becomes more likely than not that the injury was a result of its action.” ’ ” ’ ”
(Shiffer, supra, 240 Cal.App.4th at p. 251.)
Defendants, as the parties moving for summary judgment, had the
burden of showing that one or more elements of the plaintiffs’ causes of action
could not be established. (Code Civ. Proc., § 437c, subd. (o)(1); McGonnell,
supra, 98 Cal.App.4th at pp. 1102–1103.) The “ ‘party moving for summary
judgment bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact; if [it] carries
[its] burden of production, [it] causes a shift, and the opposing party is then
subjected to a burden of production of [its] own to make a prima facie
showing of the existence of a triable issue of material fact.’ [Citation.]
Circumstantial evidence supporting a defendant’s summary judgment motion
‘can consist of “factually devoid” discovery responses from which an absence
of evidence can be inferred,’ but ‘the burden should not shift without
7
stringent review of the direct, circumstantial and inferential evidence.’ ”
(Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.)
Plaintiffs maintain defendants did not meet their initial burden,
asserting their discovery responses were not factually devoid of evidence of
Ochoa’s exposure to asbestos in defendants’ products.
Ochoa testified at his deposition he did not know if any cooling tower he
worked on contained asbestos.4 Although he remembered working on both
BAC and Marley cooling towers, he was generally unable to identify which
brand of tower he worked on at a particular jobsite. He explained cooling
towers “are practically all made the same, whether it’s Baltimore Cooling
Tower or Marley. They all look alike, you know.”
Ochoa testified he worked on BAC cooling towers scraping the louvers,
cleaning the sump pan, changing and oiling the belts, lining the bearings,
and making sure the shafts were straight. He may have assisted in installing
a new BAC tower, but only identified work done on the outside of the tower.
Neither Ochoa nor plaintiffs produced any evidence there was asbestos in the
parts of the BAC towers on which Ochoa worked, or any evidence that the
work about which he testified on the towers “involve[d] any asbestos[-
]containing component or the disruption of any asbestos-containing
component. . . .” Although Ochoa testified his work scraping louvers on the
cooling towers produced dust, neither he nor plaintiffs produced any evidence
it was asbestos dust.
Moreover, BAC presented affirmative evidence that none of the work to
which Ochoa testified would have resulted in his exposure to asbestos. This
4 Generally, “[s]tatements made in a deposition govern and prevail
over contrary declarations.” (Turley v. Familian Corp. (2017) 18 Cal.App.5th
969, 976 (Turley).)
8
was principally provided by the declaration of David Hutton, its “person most
knowledgeable,” as well as his “further declaration” submitted by BAC with
its reply brief “to assist the Court with better understanding of two key
components of a cooling tower: namely the louvers and the MNA wet-deck.”
(Capitalization & underscoring omitted.) Plaintiffs objected that Hutton’s
second declaration was “inappropriate for consideration,” citing San Diego
Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316. That
case recognized “[w]hether to consider evidence not referenced in the moving
party’s separate statement rests with the sound discretion of the trial court,
and we review the decision to consider or not consider this evidence for an
abuse of that discretion.” (Ibid.) Because BAC submitted this declaration “to
fill gaps in the original evidence created by the opposition,” plaintiffs have
not demonstrated the trial court abused its discretion in overruling their
objection and considering the declaration. (Los Angeles Unified School Dist.
v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 499.)5
5 At oral argument, counsel advanced a new argument as to why the
trial court assertedly abused its discretion in allowing the Hutton
declaration—because Hutton had been deposed as BAC’s person most
knowledgeable but had prepared the declaration not as a person most
knowledgeable but as an individual with personal knowledge about the
construction and operation of BAC the cooling towers. According to counsel,
this infringed plaintiffs’ “due process” rights because they never had the
opportunity to depose Hutton as an individual with personal knowledge.
However, plaintiffs forfeited this contention by failing to make it below or in
their opening brief. “ ‘ “[D]efendant’s failure to make a timely and specific
objection” on the ground asserted on appeal makes that ground not
cognizable.’ ” (People v. Valdez (2012) 55 Cal.4th 82, 130; see People v. Carter
(2003) 30 Cal.4th 1166, 1201 [“Because defendant objected at trial . . . to the
question . . . only on relevancy grounds, he forfeited the constitutional claims
he now seeks to raise.”].)
9
Ochoa also testified he “probably” worked on a BAC cooling tower
during his time at LA Trade Tech and WeatherRight, doing mechanical and
cleaning maintenance. He replaced valves, oiled bearings, replaced bearings,
removed shafts for rebuilding, and possibly installed a new fan belt. But
neither he nor plaintiffs produced any evidence those parts contained
asbestos or that he was exposed to asbestos while working on those parts.
At oral argument, plaintiffs’ counsel focused on a health and safety
study by BAC in the 1970’s that showed asbestos fibers were released in “the
breathing zones of the workers.” Counsel asserted this permitted an
“inference” that Ochoa was exposed to asbestos. However, Hutton’s
uncontradicted deposition testimony explained this particular study was done
at the BAC manufacturing facility, not at any post-manufacturing
installation site, let alone a site where Ochoa worked. Furthermore,
although plaintiffs had a full opportunity to question Hutton about the
sources of the detected fibers reported in the manufacturing plant study, they
asked no such questions. Accordingly, the record contains no evidence even
as to the source of the fibers detected at the manufacturing plant.
As to Marley, neither Ochoa nor plaintiffs produced any evidence he
worked on any Marley tower with asbestos-containing parts. Although some
Marley towers during the relevant time period had asbestos-containing parts,
other Marley towers were asbestos-free.
SPX records showed a Marley cooling tower had been shipped in 1956
to the Huntington Library in San Marino, a worksite Ochoa identified. But
he further testified only about work on “steam lines” and “package unit[s],”
not on a cooling tower at that site. Moreover, he testified the louvers on the
cooling towers which he recalled scraping, and the fill he recalled washing,
were made of metal or wood. Again, neither Ochoa nor plaintiffs produced
10
any evidence those parts contained asbestos, or that the work Ochoa did on
those cooling towers would result in contact with asbestos.
The court in Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222,
considered similarly deficient discovery responses. In that case, the plaintiff
“admitted that he did not know what materials contained asbestos and what
materials did not. Rather, he assumed there was ‘probably asbestos in
whatever they were cleaning up.’ He was unable to recall the name of any
products used at the jobsites. [Plaintiff’s] deposition made clear that he had
no knowledge about whether any of the products that others used or
disturbed in his presence contained asbestos. Specifically, he was unable to
give a definitive answer when asked if he had any information or knowledge
that he was exposed to asbestos through the activities or inaction of
[defendant].’ ” (Id. at p. 1229.) The responses “d[id] not state specific facts
showing that [he] was actually exposed to asbestos and/or asbestos-
containing products due to [defendants’] activities. Rather, [his] answer[s]
assume[d], without any evidentiary support, that the dust and debris
allegedly disturbed . . . contained asbestos.” (Id. at p. 1230, italics omitted.)
Thus, “[Defendant] met its initial burden of presenting evidence sufficient to
make a prima facie case showing that triable issues of fact did not exist
regarding causation. [Citation.] Therefore, the burden shifted to plaintiffs to
establish a triable issue of fact regarding causation.” (Id. at p. 1231.)
Similarly in McGonnell, the plaintiff brought an action based on alleged
exposure to asbestos-containing products while working at California Pacific,
naming numerous defendants including Kaiser Gypsum and Kaiser Cement.
(McGonnell, supra, 98 Cal.App.4th at p. 1100.) Plaintiff’s deposition
testimony “showed [he] would cut into walls and disturb building materials
. . . [but there was] little evidence that [plaintiff] disturbed Kaiser products,
11
and virtually no evidence he had disturbed Kaiser products containing
asbestos.” (Id. at p. 1104.) Plaintiff’s evidence “suggest[ed] that Kaiser
Cement products might have been used once on a construction project at
California Pacific. There is no evidence, however, that these products
contained asbestos at the time of their use. Deposition excerpts from a
contractor and building materials supplier showed Kaiser Cement plastic
(stucco) cement might have been delivered for use on a project at California
Pacific in the late 1970’s. . . . [A]s defendants point[ed] out, plastic cement is
applied to exterior walls for a stucco finish, and there was no evidence
[plaintiff] worked with or around stucco.” (Id. at p. 1105.)
The McGonnell court concluded “It is not enough to produce just some
evidence. The evidence must be of sufficient quality to allow the trier of fact
to find the underlying fact in favor of the party opposing the motion for
summary judgment. [Citation.] All that exists in this case is speculation
that at some time [plaintiff] might have cut into a wall that might have
contained Kaiser joint compound that might have contained asbestos. The
evidence creates only ‘a dwindling stream of probabilities that narrow into
conjecture.’ ” (McGonnell, supra, 98 Cal.App.4th at p. 1105.)
Similarly in this case, Ochoa did not testify he worked on any cooling
towers that contained asbestos. As to the BAC towers, although there was
evidence they contained certain asbestos-containing parts, the louvers and
outer casings of the towers did not, and the work to which Ochoa testified
would not have exposed him to asbestos. As to the Marley cooling towers,
some contained asbestos components. But Ochoa testified he cleaned the
louvers of the towers, and neither he nor defendants produced any evidence
the louvers contained asbestos and cleaning would release asbestos dust.
12
Indeed, he testified the louvers were made of “metal or wood” and the
material he scraped off was “maybe fungus” and mud.
Relying on Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th
1577 (Ganoe) and Turley, supra, 18 Cal.App.5th 969, plaintiffs claim they did
submit sufficient evidence of Ochoa’s exposure to defendants’ asbestos-
containing products to raise a triable issue. Both cases are distinguishable.
In Turley, the plaintiff alleged he was exposed to defendant’s asbestos-
containing pipe products at three locations during his career. (Turley, supra,
18 Cal.App.5th at pp. 971–972.) He also identified individuals with
knowledge of this exposure, including his co-worker, Scott. (Id. at pp. 972,
973–974.) Scott submitted a declaration stating he worked with plaintiff for
about six years, that he was the person responsible for ordering and
distributing materials, and that “ ‘when those products came in, . . . the
packing slip, it listed the material, what it was. It also had the vendor name
on it and [defendant’s] name was on those packing slips.’ ” (Id. at pp. 974–
975.) On “ ‘many occasions’ the replacement gaskets that [plaintiff] was
exposed to while working . . . were asbestos-containing-and supplied by
[defendant].” (Id. at p. 974.) The plaintiff also submitted “specific portions of
Scott’s deposition” that “ ‘affirmed the statements in his declaration. . . .” (Id.
at p. 975.) Scott further testified he had seen the plaintiff “ ‘pull a gasket,’ ”
and observed him “ ‘in close proximity to different mechanics while working
on these gaskets.’ ” (Ibid.)
The Court of Appeal reversed the summary judgment in favor of the
defendant, stating “Scott’s testimony established that [defendant]-supplied
asbestos-containing gaskets were frequently used at [plaintiff’s] worksite
throughout the five years that Scott was the person ordering, procuring, and
distributing such products to the sites—and that [plaintiff] used them.”
13
(Turley, supra, 18 Cal.App.5th at p. 981.) The record here is not remotely
comparable.
In Ganoe, the plaintiff contracted mesothelioma after working in a
Goodyear Tire & Rubber Company plant from 1968–1979. (Ganoe, supra,
227 Cal.App.4th at p. 1579.) His initial discovery responses did not identify
defendant Metalclad Insulation Corp. as a supplier. His “sole product
identification witness” had “ ‘never heard of’ Metalclad,” and Metalclad’s
“person most knowledgeable” submitted a declaration stating “ ‘Metalclad has
no information, documents to suggest, or knowledge of having ever performed
any work or supplied materials to be used at [Goodyear].” (Ibid.) However,
after Metalclad filed its motion for summary judgment, it produced a newly
discovered document showing it had “performed insulation work on steam
piping at the Goodyear plant in 1974.” (Id. at pp. 1579–1580.) Thereafter,
the plaintiff served amended discovery responses identifying a new machine
installed at Goodyear in 1974 “which required ‘new steam pipes [] to be
installed and insulated as well as tied into the existing insulated piping and
machinery’ ” and the “ ‘removal of old insulation released in the air asbestos-
containing dust that . . . [plaintiff] breathed.’ ” (Id. at p. 1580.) The amended
responses also stated the only work involving insulation performed in 1974 at
the plant was “ ‘the work associated with the installation of the new Banbury
and lay-down machines and associated piping’ ” and Metalclad “performed
insulation work on steam piping in 1974 at the Goodyear plant.” (Ibid.) The
trial court granted summary judgment, ruling the belatedly produced
document “did not show that [Metalclad] had performed work in the vicinity
of [plaintiff] as it did not identify ‘specific dates when, and locations within
the plant where, the work occurred.’ ” (Id. at p. 1581.) Although a co-worker
14
“saw ‘outside contractors’ perform insulation work,” the worker “did not
identify Metalclad as one of those contractors.” (Ibid.)
The Court of Appeal reversed, concluding Metalclad had not met its
burden. (Ganoe, supra, 227 Cal.App.4th at p. 1582.) The court first observed
it was “unclear whether the trial court considered plaintiff’s amended
response to Metalclad’s discovery when it made [its] determination,” and “[i]t
would be inequitable to allow a moving party to withhold relevant discovery
and then meet its burden on summary judgment without consideration of
such newly discovered evidence or the opposing party’s response to that
evidence.” (Id. at pp. 1582–1583.) The court further observed that, assuming
the trial court properly considered the plaintiff’s amended discovery
responses, this discovery contained specific facts showing Metalclad had
exposed plaintiff to asbestos. (Id. at p. 1584.) Thus, the evidence
“present[ed] more than mere speculation of causation”—“there was evidence
Metalclad performed insulation work on steam piping at the Goodyear plant
in 1974, that the only construction work requiring the installation of
insulation at the Goodyear plant in 1974 occurred in Department 132 when a
new Banbury machine and ‘lay-down machine’ were installed, that the
installation of those machines also required the removal of old insulation,
and that [plaintiff] worked in that department, was present during the repair
of the steam lines’ insulation and breathed in the resulting dust.
Furthermore, according to plaintiff’s expert, it was more likely than not that
the old insulation removed during this process contained asbestos. Viewed in
its best light, this evidence supported a reasonable inference that plaintiffs
could show causation.” (Id. at p. 1586, fn. omitted.) Again, the record in the
instant case is not comparable.
15
Indeed, plaintiffs acknowledge their lack of production of evidence as to
which brand of cooling tower Ochoa worked on at specific sites and whether
those cooling towers contained asbestos. But they claim, without legal
citation, this is only relevant to “credibility and apportionment.” However,
without the threshold evidence of exposure, there is nothing to apportion.
Plaintiffs have not alleged market share liability,6 and they do not explain
how Ochoa’s inability to identify the manufacturers of the towers on which he
worked or whether they contained asbestos is relevant only to credibility.
In sum, there must be more than some evidence that plaintiff worked
on some cooling tower that might have contained an asbestos-containing part,
without any evidence of asbestos exposure. But that is all the record
evidence shows here.
DISPOSITION
The judgment is affirmed. Costs on appeal to respondents.
6 “ ‘ “ ‘Under this doctrine, the traditional prerequisite of identifying
the manufacturer of the injury-causing product is eliminated when the
product is a generic item produced by several manufacturers. In such cases,
plaintiffs need only allege inability to identify the actual manufacturer and
join as defendants those manufacturers that compose a “substantial share” of
the market. . . . Th[e] theory shifts the burden of proof to each manufacturer
to prove its innocence. . . . [¶] If . . . plaintiff successfully establishes liability,
damages are simply apportioned among defendants on the basis of each
defendant’s share of the product market. . . . A defendant can avoid liability
only by proving that it did not produce the specific product that harmed the
plaintiff.’ ” ’ ” (Ferris v. Gatke Corp. (2003) 107 Cal.App.4th 1211, 1215, fn.
1.)
16
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Bowen, J.*
**Judge of the Contra Costa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A164054, Ochoa et al. v. SPX Cooling Technologies et al.
17