Harris v. Thomas Dee Engineering Co., Inc.

Filed 9/2/21; Opinion following rehearing
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
BETH HARRIS et al.,
Plaintiffs and Appellants,
A153106
v.
THOMAS DEE ENGINEERING (Alameda County
CO., INC., Super. Ct. No. RG14725868)
Defendant and Respondent.
In this asbestos case, Beth Harris and her children (Plaintiffs) appeal
the trial court’s grant of summary judgment in favor of defendant Thomas
Dee Engineering Company (Thomas Dee). We conclude that the trial court
erred in its evaluation of an expert declaration submitted by Plaintiffs in
opposition to Thomas Dee’s motion and that there is a triable issue whether
Thomas Dee’s refractory work on a United States Navy ship exposed
decedent Michael Harris to asbestos. Accordingly, we reverse the grant of
summary judgment.1
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of part III.
1 In a separate order filed the same day, the trial court granted summary
judgment in favor of defendant Triple A Machine Shop, Inc. In June 2019,
this court reversed that order. (Beth Harris et al. v. Triple A Machine Shop,
Inc. et al. (June 26, 2019, A153794) [nonpub. opn.] (Triple A Machine Shop).)
The present appeal was stayed between February 2019 and April 2021
during Thomas Dee’s Chapter 11 bankruptcy proceeding.
1
BACKGROUND2
Mr. Harris was diagnosed with mesothelioma in March 2014. Two
months later, he and his wife Beth Harris filed a personal injury complaint
against numerous defendants alleging causes of action for negligence, strict
liability, and loss of consortium. Mr. Harris passed away in October 2014. In
July 2015, Mrs. Harris and her children amended the complaint to assert
wrongful death and survival claims.
In June 2017, Thomas Dee moved for summary judgment on the issue
of exposure. The motion stated, “This motion for summary judgment is made
. . . on the grounds that the undisputed evidence establishes that plaintiffs
are unable to establish the essential element of causation in that plaintiffs
are unable to establish that plaintiffs’ decedent was exposed to asbestos by an
act or omission of [Thomas] Dee as alleged in the complaint. Because
plaintiffs will be unable to establish any causal connection between plaintiffs’
injuries and [Thomas] Dee’s claimed operations as a boiler refractory
contractor, plaintiffs’ claims fail as a matter of law.” Thomas Dee also moved
for summary adjudication on strict liability and punitive damages issues.
Plaintiffs’ claims arise out of Mr. Harris’s alleged exposure to asbestos
while he served in the U.S. Navy, specifically during repairs aboard the
U.S.S. San Jose at the Triple A Machine Shop in San Francisco during Fall
1973. From August 1973 to May 1974, Mr. Harris worked on the U.S.S. San
Jose as a hull maintenance technician. Mr. Harris’s duties included
maintaining and repairing the ship’s fire system, which ran through the
entire ship. In addition to his daily shift working as a hull technician, Mr.
Harris was responsible for “ ‘standing watch ’ ” four hours about every other
2Portions of this background summary are taken from this court’s decision in
Triple A Machine Shop.
2
day. His watch duties required him to “ ‘patrol every part of the ship’ ” to
check for leaks and fires, among other things.
Thomas Dee is a contractor that works with “refractory brick, mortar
and castable cement situated on the inside of boilers.” Thomas Dee
performed repairs on boilers aboard the U.S.S. San Jose during the Fall 1973
repair period. The first part of the job required Thomas Dee to “ ‘tear out’ ”
the existing insulation and refractory material. Plaintiffs’ expert opined that
the “approximately 200 feet of insulation block removed from the three
boilers . . . more likely than not contained asbestos.”
During the Fall 1973 repairs, Mr. Harris witnessed non-Navy
personnel performing work aboard the ship. Mr. Harris testified he worked
in the boiler room and also saw other people working in the boiler room. He
did not see anyone working on the boilers.
William Ewing, a certified industrial hygienist, was Plaintiffs’ expert
witness regarding asbestos exposure. In his deposition, he was asked about
Mr. Harris’s testimony that he did not see any boiler work performed on the
U.S.S. San Jose. Mr. Ewing testified, “If he wasn’t present when the work
was done, then I don’t think there’d be any issue regarding any exposure.”
Despite that testimony, in a declaration submitted by Plaintiffs in opposition
to the summary judgment motion, Mr. Ewing opined that Mr. Harris “did not
need to be present at the exact time that the insulation block was being
removed, swept up, and/or installed by Thomas [Dee] workers to be exposed.”
Instead, the removal of the asbestos-containing refractory materials from the
boilers would have exposed Mr. Harris to asbestos whenever he was in the
boiler room because asbestos fibers can remain suspended for up to 80 hours
before settling out of the air and because the fibers can be continuously re-
suspended through a phenomenon known as “re-entrainment.” Mr. Ewing
3
stated, “This cycle of re-suspension is well-documented and is generally
accepted in the industrial hygiene field. . . . There is near universal
agreement that asbestos fibers persist in the environment almost indefinitely
and thus can represent a continuous potential source of exposure when
present in buildings or other enclosed spaces.”
In moving for summary judgment, Thomas Dee argued that, because
Mr. Harris testified he did not see anyone working on the boilers, and,
because Plaintiffs’ expert testified Mr. Harris would not have been exposed to
asbestos if he was not present when the work was being done, summary
judgment should be granted. On reply, it argued Mr. Ewing’s declaration
about the re-entrainment phenomenon had to be disregarded because it
contradicted his deposition testimony and because an expert may not testify
to opinions not disclosed during his or her deposition.
Following a hearing, the trial court granted Thomas Dee’s motion for
summary judgment. The court’s order states: “Plaintiffs’ discovery responses
do not specify any facts suggesting that they can produce admissible evidence
that [Mr. Harris] was in the boiler room in which the ship’s boilers were
located, and where [Thomas] Dee would have performed its refractory work,
while employees of [Thomas] Dee were manipulating asbestos-containing
refractory materials, or at any specific time shortly after such work when
such fibers might still be subject to exposure.” With respect to Mr. Ewing’s
declaration, the court stated that it “rejects plaintiffs’ attempt to create a
factual issue by offering [their expert’s] ‘re-entrainment’ theory, disclosed in
his declaration submitted in opposition to the instant motion. The
declaration offers a new, previously not disclosed opinion that is contradicted
by his deposition testimony.” The court did not address Thomas Dee’s
4
summary adjudication issues, which were rendered moot by the grant of
summary judgment.
The trial court entered judgment in favor of Thomas Dee. The present
appeal followed.
DISCUSSION
Plaintiffs argue that the trial court erred in refusing to give weight to
their expert’s declaration and that the declaration demonstrates there is a
triable issue whether Thomas Dee’s activities exposed Mr. Harris to asbestos.
We agree.
I. Governing Law and Standard of Review
Summary judgment is appropriate “if all the papers submitted show
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).)3 “[T]he party moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law…. There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to find
the underlying fact in favor of the party opposing the motion in accordance
with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850, fns. omitted (Aguilar).) In ruling on the motion,
the court must draw all reasonable inferences from the evidence in the light
most favorable to the opposing party. (Id. at p. 843.)
“The defendant is not required conclusively to negate an element of the
plaintiff’s cause of action. The defendant need only show the plaintiff cannot
establish at least one element of the cause of action, such as by showing the
3 All undesignated statutory references are to the Code of Civil Procedure.
5
plaintiff does not possess, and cannot reasonably obtain, needed evidence.”
(Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438.) The burden
then shifts to the plaintiff to show a triable issue of material fact exists.
(§ 437c, subd. (p)(2).) “The plaintiff . . . shall not rely upon the allegations . . .
of its pleadings . . . but, instead, shall set forth the specific facts showing that
a triable issue of material fact exists . . . .” (Ibid.) We review a decision on a
summary judgment motion de novo. (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 768 (Saelzler).)
II. The Trial Court Erred In Declining to Give Any Weight to Mr. Ewing’s
Declaration
As noted previously, the trial court “reject[ed] plaintiffs’ attempt to
create a factual issue by offering” Mr. Ewing’s declaration in opposition to
Thomas Dee’s summary judgment motion, because the re-entrainment theory
of exposure was not disclosed in the expert’s earlier deposition and because it
was in conflict with his deposition testimony.4 The trial court erred.
We first reject Thomas Dee’s contention that the trial court properly
disregarded5 Mr. Ewing’s declaration because the re-entrainment theory of
exposure was not disclosed in his deposition. Thomas Dee relies on the
decision in Jones v. Moore (2000) 80 Cal.App.4th 557, which states, “When an
4 The trial court also stated elsewhere in its decision that there was no
“factual foundation” for the re-entrainment theory. Thomas Dee suggests the
lack of foundation was the absence of testimony Mr. Harris was in the boiler
room at a specific time after performance of Thomas Dee’s work, but the re-
entrainment theory as described in Mr. Ewing’s declaration did not require
such evidence.
5 Thomas Dee asserts the trial court “excluded” Mr. Ewing’s declaration. As
explained below (pp. 10-11, post), the more accurate characterization of the
trial court’s ruling is that the court admitted, but then disregarded or gave no
weight to the declaration in determining whether there is a triable issue of
fact.
6
expert deponent testifies as to specific opinions and affirmatively states those
are the only opinions he intends to offer at trial, it would be grossly unfair
and prejudicial to permit the expert to offer additional opinions at trial.” (Id.
at p. 565 (italics added).) Jones and similar cases stand for the proposition
that “a party’s expert may not offer testimony at trial that exceeds the scope
of his deposition testimony if the opposing party has no notice or expectation
that the expert will offer the new testimony, or if notice of the new testimony
comes at a time when deposing the expert is unreasonably difficult.”
(Easterby v. Clark (2009) 171 Cal.App.4th 772, 780, italics omitted.) But here
we are concerned with an expert’s opinions in a declaration in opposition to
summary judgment, not trial testimony.6
We recognize that in evaluating a motion for summary judgment the
court must consider only those declarations that set forth evidence admissible
at trial. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541
(Perry).) However, Thomas Dee construes Perry too broadly. There, the
Supreme Court stated it was of “determinative importance” that the
summary judgment statute provided that declarations “ ‘shall set forth
admissible evidence.’ ” (Id. at p. 541, quoting § 437c, subd. (d).) The court
concluded expert declarations could not be considered on summary judgment
where the experts’ testimony would be inadmissible at trial because they had
not been disclosed within the statutory time for exchanging expert witness
information. (Id. at pp. 542-543.) In Perry, the party opposing summary
judgment could have sought statutory relief from its failure to disclose, but
6Thomas Dee mistakenly asserts that McCoy v. Gustafson (2009) 180
Cal.App.4th 56, applied Jones in the summary judgment context. Instead,
the trial court there granted a motion in limine prohibiting an expert from
offering an opinion at trial on a topic on which he did not opine during his
deposition. (Id. at pp. 95–98.)
7
absent the granting of such relief the experts’ testimony was barred under
the express statutory language. (Id. at pp. 541-542; see also § 2034.300.)
In contrast, in the present case, Thomas Dee cites no statute that
renders Mr. Ewing’s testimony inadmissible at trial. Further, as Thomas
Dee acknowledges, at trial the court has discretion to admit an opinion the
expert did not disclose in his or her deposition. If appropriate notice of a new
expert opinion is provided, the opinion may be admissible, and “the fact that
an expert’s testimony at trial differs from his deposition testimony goes to the
expert’s credibility; it does not, without some further evidence of prejudice to
the opposing party, serve as ground for exclusion.” (Easterby v. Clark, supra,
171 Cal.App.4th at p. 781.) That is, the testimony is admissible unless the
determination is made at trial that admission of the testimony would be
prejudicial. Thus, Mr. Ewing’s testimony was not, at the time of the
summary judgment motion, inadmissible at trial.
The California Supreme Court’s recent decision in Sweetwater Union
High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, supports our
conclusion that Thomas Dee misconstrues Perry’s breadth. In Sweetwater,
the court applied Perry in its analysis of the second prong of an anti-SLAPP
motion, which is “ ‘a summary-judgment-like procedure.’ ” (Sweetwater, at p.
945.) Sweetwater noted that courts considering both summary judgment and
anti-SLAPP motions may only rely on “evidence potentially admissible at
trial presented in the proper form.” (Id. at p. 945, italics added.) The court
held that grand jury transcripts proffered by the plaintiff satisfied that
requirement, drawing a comparison to the circumstances in Perry. (Ibid.)
Sweetwater explained that in Perry “the failure to comply with the disclosure
statute rendered the evidence incurably inadmissible at trial,” while the case
under consideration involved “evidence that is potentially admissible at
8
trial.” (Sweetwater, at pp. 948–949.) The court observed that “there is no
categorical bar to statements contained in the grand jury transcript and plea
forms,” and “there are no undisputed factual circumstances suggesting the
evidence would be inadmissible at trial.” (Id. at p. 949.) Further, Sweetwater
cited with approval other cases that “support the distinction between
evidence that may be admissible at trial and evidence that could never be
admitted.” (Id. at 948.) Like Sweetwater and those cases, in the present case
there is no categorical bar to admission of the challenged aspects of Mr.
Ewing’s testimony, and there are no undisputed circumstances showing
inadmissibility. Indeed, even if the re-entrainment theory was new, given
that it was disclosed well before trial, there was little basis for the court
below to conclude that the expert’s opinion was “incurably inadmissible” at
trial. Accordingly, Perry is distinguishable.
We also reject Thomas Dee’s argument that the trial court’s order was
proper under the California Supreme Court’s decision in D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1 (D’Amico), because the statements in
Mr. Ewing’s declaration regarding the re-entrainment theory of exposure
contradicted his deposition testimony. In D’Amico, the court considered how
to apply the “well-established rules governing summary judgment
procedure”—in particular the proposition that doubts should be resolved in
favor of the party opposing the motion—in a context where a party’s
discovery responses suggest “ ‘ “there is no substantial issue to be tried.” ’ ”
(Id. at pp. 20–21.) The court reasoned that “when discovery has produced an
admission or concession on the part of the party opposing summary judgment
which demonstrates that there is no factual issue to be tried, certain of those
stern requirements applicable in a normal case are relaxed or altered in their
operation.” (Id. at p. 21.) The court then quoted language from a prior court
9
of appeal decision, stating, “ ‘[w]here . . . there is a clear and unequivocal
admission by the plaintiff, himself, in his deposition’ ” and the plaintiff
contradicts that admission in a subsequent declaration, “ ‘we are forced to
conclude there is no substantial evidence of the existence of a triable issue of
fact.’ ” (Id. at p. 21, quoting King v. Andersen (1966) 242 Cal.App.2d 606,
610.)
The D’Amico court explained its reasoning as follows: “As the law
recognizes in other contexts [citation] admissions against interest have a very
high credibility value. This is especially true when, as in this case, the
admission is obtained not in the normal course of human activities and
affairs but in the context of an established pretrial procedure whose purpose
is to elicit facts. Accordingly, when such an admission becomes relevant to
the determination, on motion for summary judgment, of whether or not there
exist triable issues of fact (as opposed to legal issues) between the parties, it
is entitled to and should receive a kind of deference not normally accorded
evidentiary allegations in affidavits.” (D’Amico, supra, 11 Cal.3d at p. 22.)
Thomas Dee asserts, “D’Amico stands firmly for the proposition that a
declaration offered to directly controvert the declarant’s deposition testimony
is inadmissible.” We disagree. In D’Amico, the California Supreme Court did
not hold that declarations contradicting discovery responses must be
“excluded.” Rather, the court stated only that such declarations may be
insufficient to create a triable issue of fact. The trial court’s order in the
present case is consistent with this understanding of D’Amico. Thus, the
order does not state that the declaration is inadmissible. Instead, the trial
court declined to give the declaration any weight in its analysis of whether
there is a triable issue of fact as to exposure.
10
Properly understood, D’Amico does not state a rule regarding the
admissibility of evidence; instead, the case provides guidance in determining
whether a declaration that contradicts prior discovery responses is sufficient
to create a triable issue of fact.7 This is relevant to our standard of review:
“The existence of a triable issue of fact is a legal question that we review de
novo.” (Brome v. The Department of the California Highway Patrol (2020) 44
Cal.App.5th 786, 794; see also Saelzler, supra, 25 Cal.4th at p. 768.)
Accordingly, regardless of the appropriate standard of review of evidentiary
rulings on summary judgment, we review de novo the trial court’s conclusion
that, under D’Amico, Mr. Ewing’s declaration was insufficient to establish a
triable issue of fact.8
7 To this limited extent we disagree with statements in prior published cases
that may be read to suggest D’Amico states a rule regarding the admissibility
of evidence. (See, e.g., Taylor v. Financial Casualty & Surety, Inc. (2021)
____ Cal.App.5th ____, ____ (2021 WL 3627529 at p. *7) [concluding
declaration not “inadmissible” under D’Amico]; Turley v. Familian Corp.
(2017) 18 Cal.App.5th 969, 983 (Turley) [stating, “applying D’Amico properly,
courts have held that the court may exclude the evidence where the
declaration and the discovery responses are ‘contradictory and mutually
exclusive’ ”]; Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 143-
144 (Ahn) [referring to the trial court’s “evidentiary” ruling in “excluding the
declaration”]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120
[“most of plaintiff’s declaration is inadmissible”].)
8 We recognize that Mackey v. Trustees of California State University (2019)
31 Cal.App.5th 640 (Mackey), expressly held the abuse of discretion standard
of review applied to the trial court’s rulings on “ ‘evidentiary objections’ ”
under D’Amico. (Id. at pp. 657, 659.) And at least two other decisions that
viewed D’Amico as stating a rule regarding the admissibility of evidence
acknowledged uncertainty regarding the standard of review on summary
judgment. (Turley, supra, 18 Cal.App.5th at p. 978 [acknowledging debate
regarding standard of review of evidentiary rulings, but stating result the
same under either de novo or abuse of discretion standard]; Ahn, supra, 223
Cal.App.4th at p. 144 [same].) For the reasons stated above, we respectfully
disagree with Mackey’s conclusion that a trial court’s ruling under D’Amico is
11
We also disagree with Thomas Dee’s apparent suggestion that, even if
D’Amico does not require the exclusion of a declaration, the decision does
require that a trial court give no weight to portions of a declaration
contradicting a declarant’s deposition testimony in any respect. The court in
Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1514, cautioned
that, although “admissions of a party obtained through discovery receive an
unusual deference in summary judgment proceedings, and, absent a credible
explanation, prevail over that party’s later inconsistent declarations[,]
[citation] . . . later cases have cautioned that D’Amico should not be read ‘as
saying that admissions should be shielded from careful examination in light
of the entire record.’ ”
In the present case, the contradiction between Mr. Ewing’s declaration
and his deposition testimony does not eliminate the declaration’s evidentiary
value.9 The stated rationale for the D’Amico rule is that “admissions against
interest have a very high credibility value.” (D’Amico, supra, 11 Cal. 3d at p.
22.) And this is particularly true where a deponent testifies regarding a
factual matter within his or her personal knowledge and arguably contradicts
the testimony in a declaration. (See, e.g., Turley, supra, 18 Cal.App.5th at p.
983 [testimony regarding personal knowledge of types of gaskets used by
mechanics]; Ahn, supra, 223 Cal.App.4th at p. 147 [factual disputes
regarding trucking services agreement]; Benavidez v. San Jose Police Dept.
reviewed for abuse of discretion. In any event, we would reverse even if we
were to review the trial court’s decision under the deferential abuse of
discretion standard: D’Amico provided neither a basis to exclude nor to
entirely disregard the challenged testimony at the summary judgment stage.
9 Plaintiffs dispute that Mr. Ewing’s declaration contradicted his deposition
testimony. We assume for purposes of this decision that the trial court did
not err in that respect.
12
(1999) 71 Cal.App.4th 853, 861–862 [dispute as to what plaintiff told police
officers and knew about officers’ intentions]; Mason v. Marriage & Family
Center (1991) 228 Cal.App.3d 537, 546 (Mason) [dispute as to date of injury];
Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [plaintiffs’
admissions regarding loan terms], overruled on other grounds in Riverisland
Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55
Cal.4th 1169, 1182.)10 In contrast, in the present case, Mr. Ewing’s
declaration relates a scientific theory that he apparently did not discuss in
his deposition, and his statements in the declaration do not contradict any
prior testimony regarding facts he observed. (Cf. Price, at p. 482 [observing
that, under D’Amico, “self-serving declarations of a party” cannot overcome
“credible admissions on deposition”]; Benavidez, at pp. 862-863 [disregarding
contradictory statements in a declaration and observing, “Either [the
plaintiff] did not say anything or she asked to go to a shelter; either she
thought the officers were staying to protect her or she thought they were
leaving.”].)
It is instructive to compare the present case with Jacobs v. Fire Ins.
Exchange (1995) 36 Cal.App.4th 1258, which did apply D’Amico to disregard
an expert’s opinion that contradicted prior deposition testimony.11 That case
10 Notably, in Turley, Ahn, and Mason, the courts still gave weight to the
declarations at issue because there was no direct contradiction or because
other evidence supported the credibility of the challenged declaration.
11 Given that D’Amico’s stated rationale is the special “deference” accorded to
party “admissions against interest” (D’Amico, supra, 11 Cal.3d at p. 22), it is
arguably appropriate to apply the decision less stringently when the
declaration and prior deposition testimony is from a non-party. Nevertheless,
for purposes of the present appeal, we assume D’Amico properly can be
applied to give no weight to a declaration by a non-party in appropriate
circumstances.
13
was an insurance coverage action related to an assault, where applicability of
a coverage exclusion turned on the willfulness of the assault. (Jacobs, at p.
1261.) The court stated it was proper to “disregard” an expert’s declaration
where the expert contradicted his prior deposition testimony about whether
the assailant had “ ‘capacity to understand the nature and consequences of
his actions.’ ” (Id. at p. 1270.) However, in that case, the expert’s declaration
disclosed no basis for the difference between the opinion offered during the
deposition and in the declaration. (Ibid.) In contrast, in the present case,
Mr. Ewing’s declaration explained the difference in his opinion by referencing
the re-entrainment theory, which he stated is widely accepted in the scientific
community.
“Summary judgment is proper only if all the papers submitted on the
motion show there are no genuine issues of material fact requiring a trial.”
(Ahn, supra, 223 Cal.App.4th at pp. 145–146.) In the present case, Mr.
Ewing’s declaration showed there was in fact a triable issue as to exposure
under the re-entrainment theory, even if he neglected to mention that
phenomenon during his deposition. Accordingly, unlike in Jacobs, the trial
court was not presented with a declaration that flatly contradicted deposition
testimony and provided no basis to conclude that the opinion expressed in the
declaration was actually the valid one. D’Amico does not require a court to
give no weight to a declaration “where there is a ‘reasonable explanation for
the discrepancy’ or ‘countenance ignoring other credible evidence that
contradicts or explains that party’s answers or otherwise demonstrates there
are genuine issues of factual dispute.’ ” (Mackey, supra, 31 Cal.App.5th at p.
658; see also Ahn, at pp. 144–145 [“Courts have consistently refused to apply
the D’Amico rule . . . when [other] evidence adduced on the motion credibly
explains or contradicts a party’s earlier admissions.”]; Mason, supra, 228
14
Cal.App.3d at pp. 545–546 [declining to “ignore” plaintiff’s declaration under
D’Amico where “the trier of fact could reasonably conclude that the initial
interrogatory response was . . . a simple mistake”].)
In the present case, it is for the ultimate factfinder to decide what
weight to give Mr. Ewing’s testimony regarding the re-entrainment theory in
light of his deposition testimony.12 But the trial court erred in refusing to
give the declaration any weight.
III. The Ewing Declaration Creates a Triable Issue Whether Thomas Dee’s
Work Exposed Mr. Harris to Asbestos
“In the context of asbestos litigation, a plaintiff must demonstrate
exposure to a defendant’s product and biological processes from the exposure
which result in disease. . . . [T]he proper analysis is to ask whether the
plaintiff has proven exposure to a defendant’s product, of whatever duration,
so that exposure is a possible factor in causing the disease and then to
evaluate whether the exposure was a substantial factor.” (Lineaweaver v.
Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415–1416.) In the present
case, Thomas Dee moved for summary judgment on the issue of exposure;
accordingly, we do not address whether any exposure was a substantial factor
in bringing about Mr. Harris’s mesothelioma. (See Johnson v. ArvinMeritor,
Inc. (2017) 9 Cal.App.5th 234, 240 (Johnson).) Proof of exposure requires
“circumstantial evidence . . . sufficient to support a reasonable inference of
exposure.” (Lineaweaver, at p. 1420.) “[A] plaintiff has no obligation to prove
a specific exposure to a specific product on a specific date or time. Rather, it
12 Thomas Dee may request an opportunity to further depose Mr. Ewing, and
the discrepancy between his initial deposition testimony and his declaration
may be the subject of cross-examination at trial. We leave it to the discretion
of the trial court to dictate the terms of any further discovery, including
allocation of the expense of any additional deposition.
15
is sufficient to establish ‘that defendant’s product was definitely at his work
site and that it was sufficiently prevalent to warrant an inference that
plaintiff was exposed to it’ during his work there.” (Turley, supra, 18
Cal.App.5th at p. 985, quoting Lineaweaver, at p. 1420.)13
In moving for summary judgment, Thomas Dee relied on the deposition
testimony of Mr. Ewing and Mr. Harris to argue there was no evidence it
exposed Mr. Harris to asbestos. Most particularly, Thomas Dee relied on Mr.
Harris’s testimony that he did not observe anyone working on the boiler
when he was in the boiler room on the U.S.S. San Jose and Mr. Ewing’s
testimony that, if Mr. Harris “wasn’t present when the work was done, then I
don’t think there’d be any issue regarding any exposure.”
Assuming without deciding that this evidence was sufficient to shift the
burden to Plaintiffs (see Aguilar, supra, 25 Cal.4th at p. 850), the evidence
presented in opposition to the motion creates a triable issue whether Thomas
Dee exposed Mr. Harris to asbestos. First, Plaintiffs demonstrated there was
a triable issue whether the refractory material removed by Thomas Dee
contained asbestos. Specifically, Mr. Ewing’s declaration stated that a bid
estimate sheet prepared by Thomas Dee for brickwork repairs to three boilers
on the U.S.S. San Jose referred to the removal of “approximately 200 feet of
insulation block.” And he opined that the “insulation block to be removed
from the three boilers more likely than not contained asbestos.” Thomas Dee
points to deposition testimony in which Mr. Ewing admitted he was not sure
whether the material contained asbestos, but that testimony is not
13We disagree with Plaintiffs’ contention that the plaintiff in an asbestos
case merely has to prove a possibility of exposure. Instead, as this court
explained in Johnson, supra, 9 Cal.App.5th at p. 245, the plaintiff must prove
a probability of exposure.
16
inconsistent with his averment that it likely did contain asbestos, based on
his “review[] [of] safety and industrial hygiene literature concerning the use
of asbestos[-]containing insulation block at worksites such as shipyards, ships
and industrial applications” and his review of interrogatory responses from
“insulation block manufacturers.”
Next, as Thomas Dee apparently does not dispute, Plaintiffs presented
evidence Mr. Harris worked in the boiler room in his capacity as a hull
maintenance technician, in addition to being in the boiler room on watch.
Under the re-entrainment theory of exposure, that gives rise to a reasonable
inference of exposure, even absent evidence that Mr. Harris was present
when Thomas Dee was removing refractory material from the boilers. As
explained in Mr. Ewing’s declaration, “There is near universal agreement
that asbestos fibers persist in the environment almost indefinitely and thus
can represent a continuous potential source of exposure when present in
buildings or other enclosed spaces.”
Thomas Dee argues that Plaintiffs cannot prove exposure if there is no
evidence that Mr. Harris was present when Thomas Dee was removing
refractory material from the boilers. Thus, Thomas Dee contends, “the
decedent’s testimony creates the inference that there was no boiler work
ongoing when he was present. Importantly, [Plaintiffs’] certified industrial
hygienist, William Ewing stated at deposition [that] if decedent was not
present when work was performed, he would not have been exposed to
asbestos.” However, because Mr. Ewing’s declaration regarding the re-
entrainment theory of exposure must be considered in determining whether
there is a triable issue, Thomas Dee’s argument fails.14
14Thomas Dee requests that this court also consider 21 other evidentiary
objections it presented below that it asserts the trial court did not reach.
17
Viewed in the light most favorable to Plaintiffs (Aguilar, supra, 25
Cal.4th at p. 843), the evidence supports a reasonable inference that Thomas
Dee workers disturbed asbestos-containing materials as part of their repair
work on the U.S.S. San Jose in Fall 1973, and that Mr. Harris was exposed to
it due to re-entrainment of the asbestos fibers. It is, of course, for the jury to
decide whether the evidence of exposure is sufficient to prevail at trial, but at
summary judgment we must resolve “ ‘any evidentiary doubts or ambiguities
in plaintiff’s favor.’ ” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th
96, 100; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839
[“ ‘Any doubts about the propriety of summary judgment . . . are generally
resolved against granting the motion, because that allows the future
development of the case and avoids errors.’ ”].)
DISPOSITION
We reverse the order granting summary judgment in favor of Thomas
Dee. Plaintiffs are entitled to costs on appeal. (Cal. Rules of Court, rule
8.278(a).)
However, “[I]t is not appropriate to incorporate by reference, into a brief,
points and authorities contained in trial court papers, even if such papers are
made a part of the appellate record.” (Colores v. Board of Trustees (2003) 105
Cal.App.4th 1293, 1301, fn. 2; accord York v. City of Los Angeles (2019) 33
Cal.App.5th 1178, 1188, fn. 4.) Thomas Dee also moved below for summary
adjudication on two issues, but the company has made no request of this
court with respect to those issues on appeal.
18
_______________________
SIMONS, ACTING P.J.
We concur:
____________________________
BURNS, J.
____________________________
RODRIGUEZ, J.*
A153106
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
19
Alameda County Superior Court, Case No. RG14725868
Trial Judge: The Honorable Brad Seligman
The Arkin Law Firm, Sharon J. Arkin; Levin Simes LLP, William Levin and
Timothy Pearce, for Plaintiffs and Appellants.
WFBM, LLP, Michael T. McCall, Margaret F. Mahaffey, and Anne C. Gritzer,
for Defendant and Respondent.
20