Untermann v. D. Zelinsky & Sons CA1/4

Filed 3/18/16 Untermann v. D. Zelinsky & Sons CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
CHERYL UNTERMANN,
Plaintiff and Appellant,
A137513
v.
D. ZELINSKY & SONS, INC., (City & County S.F.
Super. Ct. No. CGC11275881)
Defendant and Respondent.
The trial court granted summary judgment to defendant D. Zelinsky & Sons, Inc.
(Zelinsky) in an asbestos action brought by plaintiff Melvin Desin.1 On appeal, plaintiffs
contend the court erred by finding Zelinsky met its initial burden of production, by
finding plaintiffs did not meet their burden, and by excluding from evidence their expert
witness declaration. We shall affirm the judgment.
I. BACKGROUND
Desin was an electrician. He alleged he was exposed to asbestos while working at
various job sites and that as a result he developed mesothelioma, an asbestos-related
illness.
During the 1960’s through the early 1970’s, Desin worked alongside painters
employed by Zelinsky, a painting contractor, on seven or eight occasions. According to
1
During the pendency of this appeal, Melvin Desin died. His death certificate lists
mesothelioma as the cause of death. We have appointed his daughter Cheryl Untermann
as his successor in interest on appeal. (See Code Civ. Proc., §§ 377.20, subd. (a), 377.30,
377.31.) To avoid confusion, we shall refer to both Desin and Untermann as plaintiffs,
although technically Untermann is the sole plaintiff.
1
Desin’s deposition testimony, Zelinsky workers patched and sanded walls and joint
compound in his presence, at a distance of two or three feet. He did not know the brand
name, manufacturer, or supplier of any wall materials Zelinsky workers sanded in his
presence or of any joint compound they applied in his presence. Desin could not identify
any particular year in which he worked with Zelinsky employees, and he had no
recollection of a specific instance in which Zelinsky employees sanded walls. He did not
know whether he was exposed to asbestos as a result of Zelinsky’s activities.
In a declaration submitted in opposition to Zelinsky’s motion for summary
judgment, Desin averred that he worked around Zelinsky painters on new construction as
well as remodels and that he worked as close as two feet from Zelinsky painters while
they sanded joint compound after they applied it to drywall. Zelinsky painters would
apply a coat of joint compound, let it dry, then sand the joint compound to smooth it out,
and repeat the process. Visible fine dust produced by the sanding would end up on
Desin’s clothing, face, and hair and on the job site floor.
Desin also submitted an expert declaration of William M. Ewing, an industrial
hygienist (the Ewing declaration), who opined that Zelinsky workers more likely than not
exposed Desin to asbestos. The Ewing declaration included the following: Work with
asbestos generates dust that remains in the air for hours before setting on the ground, and
that can be re-suspended when the area is swept. (Paragraph 6.) In commercial and
residential construction, after drywall is hung, the joints between the boards are taped
with paper and reinforced with joint compound. After each coat of joint compound dries,
it is sanded, a process that generates visible debris and dust, which is swept. (Paragraph
10.) Significant exposures to asbestos occur when asbestos-containing joint compound
powder is mixed with water and when the joint compound is sanded. (Paragraph 11.)
Ewing explained that he had a bachelor’s degree in biology and had taken
numerous courses in industrial hygiene, toxicology, and indoor air quality environmental
site assessments. He held certificates pursuant to the Asbestos Hazard Emergency
Response Act (AHERA) as an inspector, management planner, project designer, and
project supervisor. His experience included publishing approximately 20 papers “related
2
to asbestos,” serving on committees within the National Asbestos Council, conducting
more than 300 industrial hygiene field operations, conducting surveys of over 2,000
buildings, and providing expert testimony in asbestos-related workers’ compensation,
personal injury, and wrongful death cases. He had been employed as an industrial
hygienist since 1978, and had “focused primarily on asbestos since 1978.” He had
“conducted training, technical assistance, and research on asbestos in buildings.” He had
been an advisor to the AHERA Regulatory Negotiation Committee, which made
regulatory decisions on what asbestos-containing products should be regulated and how
exposure should be monitored.
Ewing stated that by the early 1970’s, the Consumer Product Safety Commission
had estimated that there were over 3,000 asbestos-containing products, including, among
many others, drywall and joint compounds. Ewing averred he was familiar with when
“these products” were commercially available and when non-asbestos substitutes came
into widespread use. (Paragraph 5.) According to Ewing, the first U.S. patent for an
asbestos-free joint compound was filed in July 1973 and awarded in June 1975. Ewing
asserted that joint compound products “nearly universally” contained asbestos before the
mid-1970’s, and continued to do so until asbestos use was banned by the Consumer
Product Safety Commission, effective 1978. (Paragraph 8.)2 As a result of the ban, most
manufacturers removed asbestos from their products, and it “seem[ed] likely that
remaining stocks of asbestos-containing joint compound would have been used up in the
ensuing months or year.” (Paragraph 9.)
Ewing had reviewed a 1980 article entitled “Occupational Exposure in the
Drywall Taping Process,” by D.K. Verma and C.G. Middleton, which indicated that there
were three types of joint compounds: taping, topping, and all-purpose, and that
compounds of each type contained asbestos through the mid-1970’s. (Paragraph 12.)
Another article Ewing had reviewed, “Drywall Construction and Asbestos Exposure,” by
Alf Fischbein, M.D., Arthur N. Rohl, Ph.D., Arthur M. Langer, Ph.D., and Irving J.
2
Aside from a footnote citing an article we will discuss later, Ewing did not refer
to any facts or knowledge supporting this statement.
3
Selikoff, M.D., published in 1979, stated that “ ‘either chrysotile or amphibole asbestos,
or both, have been found in 13 out of 15 industrial products; analysis of spackle
compounds . . . has demonstrated that they also frequently contain from 5% to 12% by
weight of asbestos minerals, as well as quartz,’ ” and that “ ‘asbestos-free materials were
not widely introduced in the trade until very recently.’ ” Ewing stated that these articles
supported his opinion that the joint compound sanded by Zelinsky painting contractors in
Desin’s presence in the 1960’s and early 1970’s contained asbestos. (Paragraph 13.)
Ewing also based his opinion that Zelinsky workers sanded asbestos-containing
joint compound in Desin’s presence on Desin’s interrogatory responses (specifically
response number 7), on his review of deposition transcripts of persons most
knowledgeable and manufacturer disclosures published in the Federal Register, 55 F.R.
5144 (Feb. 13, 1990), in which certain manufacturers admitted that from at least the
1960’s to the early 1970’s their drywall products and joint compound contained asbestos,
and on his review of deposition transcripts of defense experts in other cases. (Paragraphs
14–18.) Ewing had also reviewed Desin’s declaration. Based upon all of the matters
recited in his declaration, Ewing concluded that the joint compound to which Desin was
exposed by Zelinsky workers sanding it “more likely than not” contained asbestos and
that he was exposed to a significant concentration of asbestos fibers from the resulting
dust. (Paragraphs 19–22.)
In the interrogatory response that Ewing had reviewed, response number 7, Desin
had been asked to identify every document that pertained or related to his alleged
exposure to asbestos-containing products distributed, supplied, handled, disturbed, or
utilized by Zelinsky. As pertinent here, in response Desin identified “all of KELLY-
MOORE’s Responses to General Order Nos. 17 and 129” and the deposition transcripts
of Michael Zelinsky, a former employee and estimator for Zelinsky, taken in 2006 in
another case, Betti v. American Biltrite (Betti). According to the interrogatory responses,
Michael Zelinsky had testified that he purchased Kelly-Moore joint compounds and mud
and Paco products, and that Zelinsky used Kelly-Moore “ ‘most of all’ . . . because ‘it
was the cheapest.’ ” The interrogatory response also stated that Kelly-Moore’s person
4
most knowledgeable had testified, in other lawsuits, that Paco products contained
asbestos from 1960 to 1978 and that efforts to remove asbestos did not begin until the
early 1970’s; that William E. Longo had prepared reports and studies indicating Kelly-
Moore Paco joint compound contained asbestos; and that Kelly-Moore acquired Paco in
1960. The interrogatory responses noted that a 1975 article by Rohl, Langer, Selikoff,
and William J. Nicholson stated that analysis of 10 industrial drywall taping compounds
showed that 9 contained chrysotile, and that the 1979 article by Fischbein, Rohl, Langer,
and Selikoff reported that of 15 drywall taping and spackling compound, 13 contained
asbestos.
In reply, Zelinsky submitted further excerpts of the 2006 deposition of Michael
Zelinsky in the Betti case, in which he testified he worked as an estimator for Zelinsky
beginning in 1963, began working as a painter from approximately 1968 through 1969,
and worked as a purchasing agent for a year in 1970 or 1971. During the time he was an
estimator, he saw Kelly-Moore products used on his jobs no more than 10 percent of the
time. He could not estimate the amount of Paco joint compound he ordered on behalf of
Zelinsky, but could not recall ordering any type of joint compound other than Paco when
he was a purchasing agent in 1970 or 1971. Drywall work was not a large part of
Zelinsky’s business.
Zelinsky objected to portions of Desin’s declaration and the Ewing declaration.
As to Desin’s declaration, the trial court sustained objections to his statements that while
working as an electrician in the 1960’s to early 1970’s, he worked at job sites where
Zelinsky painters worked alongside him; that Zelinsky painters normally applied more
than one coat of joint compound, sanding it after each application, and using either a pole
sander or hand sandpaper; and that the resulting fine dust ended up on his clothes, dust,
hair, and the job site floor. The trial court also sustained Zelinsky’s objections to each of
5
the paragraphs of the Ewing declaration already summarized in this opinion.3
(Paragraphs 5–6 & 8–22.)
The trial court granted the motion for summary judgment and entered judgment in
Zelinsky’s favor.
II. DISCUSSION
A. Standard of Review
“We review a grant of summary judgment de novo. [Citation.] In performing our
de novo review, we employ a three-step analysis. ‘First, we identify the issues raised by
the pleadings. Second, we determine whether the movant established entitlement to
summary judgment, that is, whether the movant showed the opponent could not prevail
on any theory raised by the pleadings. Third, if the movant has met its burden, we
consider whether the opposition raised triable issues of fact.’ [Citations.] To shift the
burden, the defendant must conclusively negate a necessary element of the plaintiff’s
case or demonstrate there is no triable issue of material fact requiring a trial. [Citation.]
If the evidence does not support judgment in the defendant’s favor, we must reverse
summary judgment without considering the plaintiff’s opposing evidence. [Citation.]
Any evidence we evaluate is viewed in the light most favorable to the plaintiff as the
losing party; we strictly scrutinize the defendant’s evidence and resolve any evidentiary
doubts or ambiguities in the plaintiff’s favor. [Citation.]” (Barber v. Chang (2007)
151 Cal. App. 4th 1456, 1462–1463.)
Thus, in considering a motion by a defendant, “ ‘we determine with respect to
each cause of action whether the defendant seeking summary judgment has conclusively
negated a necessary element of the plaintiff’s case, or has demonstrated that under no
hypothesis is there a material issue of fact that requires the process of trial . . . .’ (Guz[ v.
Bechtel National, Inc. (2000)] 24 Cal.4th [317,] 334.) [A defendant bears] the burden ‘to
make a prima facie showing of the nonexistence of any triable issue of material fact; if he
carries his burden of production, he causes a shift, and the opposing party is then
3
The trial court’s signed ruling on the objections, filed June 29, 2012, is found at
Volume 4, pages 944–963 of the Appellant’s Appendix.
6
subjected to a burden of production of his own to make a prima facie showing of the
existence of a triable issue of material fact.’ (Aguilar[ v. Atlantic Richfield Co. (2001)]
25 Cal.4th [826,] 850 [(Aguilar)], italics added.)” (Hawkins v. Wilton (2006)
144 Cal. App. 4th 936, 940; see Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832,
840 [responding plaintiff has no evidentiary burden unless moving defendant has first
met initial burden].) In order to meet its burden on a claim for which the plaintiff would
have the burden of proof by a preponderance of the evidence, “the defendant must
present evidence that would preclude a reasonable trier of fact from determining that it
was more likely than not that the material fact was true [citation], or the defendant must
establish that an element of the claim cannot be established, by presenting evidence that
the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ ” (Kahn
v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1003; and see Aguilar,
25 Cal.4th at p. 850.)
“ ‘A different analysis is required for our review of the trial court’s . . . rulings on
evidentiary objections. Although it is often said that an appellate court reviews a
summary judgment motion “de novo,” the weight of authority holds that an appellate
court reviews a court’s final rulings on evidentiary objections by applying an abuse of
discretion standard. [Citations.]’ [Citation.]” (Miranda v. Bomel Construction Co., Inc.
(2010) 187 Cal. App. 4th 1326, 1335 (Miranda); accord, Serri v. Santa Clara University
(2014) 226 Cal. App. 4th 830, 852.) We find such an abuse of discretion only if the trial
court has exceeded the bounds of reason. (DiCola v. White Brothers Performance
Products, Inc. (2008) 158 Cal. App. 4th 666, 679.) We consider and construe liberally
only admissible evidence in deciding whether there is a triable issue of fact. (Bozzi v.
Nordstrom, Inc. (2010) 186 Cal. App. 4th 755, 761.)
B. Zelinsky Shifted the Burden
Zelinsky’s motion for summary judgment was made on the ground that plaintiffs
had failed to produce any admissible evidence showing Desin was exposed to asbestos
supplied, distributed, handled, disturbed, or utilized by Zelinsky. Plaintiffs contend
7
Zelinsky’s evidentiary showing was insufficient to shift the burden to raise a triable issue
of fact.
“A plaintiff claiming asbestos-related injuries must establish some exposure to the
asbestos-containing product or activity for which the defendant is responsible. [Citation.]
If there has been no exposure, the plaintiff cannot demonstrate that the defendant caused
his or her injuries. [Citation.]” (Collin v. CalPortland Co. (2014) 228 Cal. App. 4th 582,
589 (Collin).) Thus, “[a] threshold issue in asbestos litigation is exposure to the
defendant’s product. The plaintiff bears the burden of proof on this issue. [Citations.] If
there has been no exposure, there is no causation. [Citation.] Plaintiffs may prove
causation in an asbestos case by demonstrating that the plaintiff’s or decedent’s exposure
to the defendant’s asbestos-containing product in reasonable medical probability was a
substantial factor in contributing to the aggregate dose of asbestos the plaintiff or
decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.
[Citation.]” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal. App. 4th 1098, 1103; see
Rutherford v. Owens-Williams, Inc. (1997) 16 Cal. 4th 953, 976–977.) Direct evidence of
exposure is not required; rather, the plaintiff may show from circumstantial evidence that
defendant’s asbestos-containing product was “sufficiently prevalent” at the work site to
warrant an inference that he was exposed to it in the course of his work with or around
asbestos. (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal. App. 4th 1409, 1420.)
In support of its motion, Zelinsky submitted evidence showing Desin worked
alongside Zelinsky painters on seven or eight occasions from the 1960’s to the early
1970’s, but that he did not recall a specific instance in which Zelinsky employees sanded
walls or a particular year in which he worked with Zelinsky employees. He did not know
the brand name, manufacturer, or supplier of any materials Zelinsky workers sanded or
applied in his presence and did not know whether Zelinsky’s activities exposed him to
asbestos. Desin’s interrogatory responses indicated that many drywall and spackling
products before 1978 contained asbestos, that Zelinsky obtained products from Paco and
Kelly-Moore, and that Paco’s drywall products contained asbestos. However, the
responses do not indicate that all such products contained asbestos or that Zelinsky
8
obtained all of its drywall products from Paco. Nor do the responses indicate plaintiffs
possessed admissible evidence of the contents of Paco or Kelly-Moore products.
Plaintiffs draw our attention to no case in which a similar showing has been held
insufficient to shift the burden on summary judgment in an asbestos case. A defendant
can meet its burden on summary judgment by showing, through deposition testimony or
the plaintiffs’ factually devoid responses to comprehensive discovery justifying an
inference of an absence of evidence, that the plaintiffs cannot establish an element of
their case. (Casey v. Perini Corp. (2012) 206 Cal. App. 4th 1222, 1228–1231 (Casey);
Andrews v. Foster Wheeler LLC (2006) 138 Cal. App. 4th 96, 102–103 (Andrews).)
Casey, decided by this division, is instructive. The decedent there, John Casey, worked
as a plumber and pipefitter at numerous jobsites, and was later diagnosed with
mesothelioma. The defendant, Perini Corporation, had allegedly been the general
contractor at three of those jobsites. (Casey, supra, 206 Cal.App.4th at p. 1225.) Casey’s
deposition testimony revealed that he did not know if any of the products he used or
others used in his presence contained asbestos, he could not identify the brand name,
manufacturer, or supplier of any materials that generated dust later swept up or disturbed
by Perini workers, and he did not know if the dust to which he was exposed contained
asbestos. (Id. at pp. 1225–1226.) The plaintiffs’ interrogatory responses claimed that
Casey had been exposed to asbestos-containing surfacing materials at the jobsites, but
never identified the brand name or suppliers of any surfacing materials used at the
jobsites, provided no evidence regarding the contents of the construction materials used
at the jobsites, and did not identify anyone with knowledge of the contents of such
materials. (Id. at p. 1226.)
The trial court granted Perini’s motion for summary judgment, and this court
affirmed the judgment. (Casey, supra, 206 Cal.App.4th at pp. 1225, 1228.) We reasoned
that Casey himself had no knowledge of whether the products used or disturbed in his
presence contained asbestos, and that plaintiffs’ interrogatory responses did not state
“specific facts showing that Casey was actually exposed to asbestos and/or asbestos-
containing products due to Perini’s activities” and failed to identify the products to which
9
he was exposed or the extent of his exposure. (Id. at pp. 1230–1231.) Thus, we
concluded, plaintiffs’ discovery responses stated in effect that they lacked specific facts
supporting their claims, and Perini met its initial burden of presenting evidence to make a
prima facie case that there were no triable issues of fact regarding causation. (Id. at
p. 1231.)
We conclude that Zelinsky has similarly met its initial burden here. Desin’s own
testimony showed he did not know if he had been exposed to asbestos as a result of
Zelinsky’s activities, that he could not recall any particular time or job in which he
worked in proximity with Zelinsky workers, and that he did not know the brand name,
supplier, or manufacturer of any materials they applied or sanded in his presence. The
discovery responses indicate that Paco products contained asbestos and that Zelinsky
used Kelly-Moore products, but they do not show that drywall products used by Zelinsky
during the 1960’s and early 1970’s necessarily contained asbestos, and they do not
indicate that plaintiffs possessed or were likely to possess admissible evidence that Desin
was exposed to asbestos as a result of exposure to Paco products disturbed by Zelinsky.
C. Desin Did Not Meet His Burden
The burden thus shifted to Desin to demonstrate a triable issue of fact as to
whether he was exposed to asbestos-containing dust as a result of Zelinsky’s activities.
Plaintiffs acknowledge that the question of whether the dust Desin encountered contained
asbestos may only be answered by an expert. The trial court, however, sustained
Zelinsky’s objections to the statements in the Ewing declaration that were offered to
provide that evidence. We must decide whether the court abused its discretion in doing
so.
“ ‘ “An expert opinion has no value if its basis is unsound. [Citations.] . . .
Evidence Code section 801, subdivision (b), states that a court must determine whether
the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in
forming an opinion upon the subject to which his testimony relates.’ ” ’ ” (Garrett v.
Howmedica Osteonics Corp. (2013) 214 Cal. App. 4th 173, 186, italics omitted; and see
Korsak v. Atlas Hotels, Inc. (1992) 2 Cal. App. 4th 1516, 1524 [“[H]earsay information of
10
a type reasonably relied upon by professionals in the field in forming an opinion on the
subject may be used to support an expert opinion”].) Thus, under Evidence Code
sections 801 and 802,4 “the trial court acts as a gatekeeper to exclude expert opinion
testimony that is (1) based on matter of a type on which an expert may not reasonably
rely, (2) based on reasons unsupported by the material on which the expert relies, or
(3) speculative.” (Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal. 4th 747, 771–772.) The court does not weigh the persuasiveness of an expert
opinion: “Rather, the court must simply determine whether the matter relied on can
provide a reasonable basis for the opinion or whether that opinion is based on a leap of
logic or conjecture.” (Id. at p. 772.) As this court explained in Casey, “an expert’s
opinion ‘ “may not be based on assumptions of fact that are without evidentiary support
or based on factors that are speculative or conjectural, for then the opinion has no
evidentiary value and does not assist the trier of fact. [Citation.] 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. [Citations.]” [Citation.]’ [Citation.]”
(Casey, supra, 206 Cal.App.4th at p. 1233.)
In its objections to the pertinent statements in the Ewing declaration, Zelinsky
contended, in broad outline, that the statements lacked either personal knowledge or other
foundation and that they were irrelevant because Desin had not identified the brand,
manufacturer, supplier, or composition of any joint compound Zelinsky workers had used
in his presence. Zelinsky contended that even if many available joint compounds
contained asbestos, the Ewing declaration showed that non-asbestos-containing joint
4
Evidence Code section 802 provides: “A witness testifying in the form of an
opinion may state on direct examination the reasons for his opinion and the matter
(including, in the case of an expert, his special knowledge, skill, experience, training, and
education) upon which it is based, unless he is precluded by law from using such reasons
or matter as a basis for his opinion. The court in its discretion may require that a witness
before testifying in the form of an opinion be first examined concerning the matter upon
which his opinion is based.”
11
compounds were also available during the relevant time period and the declaration,
therefore, did not provide a basis to conclude that Zelinsky workers actually exposed
Desin to asbestos-containing products.
Bearing in mind the breadth of the trial court’s discretion in making evidentiary
rulings (Miranda, supra, 187 Cal.App.4th at p. 1335), we find no abuse of that discretion
here. We first note that although Ewing described his general background and training,
nothing in that recitation appears to qualify him to opine on drywall work or the
composition of joint compounds. In this respect, his declaration stands in contrast to that
at issue in Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal. App. 4th 1577, upon
which plaintiffs rely; the expert there had extensive relevant work experience, consisting
of 25 years working as a pipe coverer, insulator, and asbestos worker, in addition to being
certified and trained about safety issues related to asbestos. (Id. at p. 1586, fn. 4.) This
experience, the appellate court concluded, provided an adequate foundation for the
expert’s opinion that the installation of certain machines in 1974 required removal of
insulation that more likely than not contained asbestos. (Ibid.)
We are not persuaded that the trial court abused its discretion in concluding
Ewing’s opinions lacked foundation. Ewing stated he was familiar with when over 3,000
different asbestos-containing products (including thermal system insulation, gaskets and
packing, asbestos-cement pipe, refractory materials, fireproofing, drywall and joint
compounds, asbestos-cloth products, floor tiles, and roofing materials) were
commercially available and when non-asbestos substitutes came into widespread use.
This generalized statement of familiarity with a host of products does not demonstrate
that Ewing had specific knowledge about all joint compounds, and hence does not
provide an adequate foundation for Ewing’s opinion that Desin was exposed to asbestos
by Zelinsky workers or that joint compound “nearly universally contained asbestos”
before the mid-1970’s.
Nor do the other materials upon which Ewing relied fill the gap. He referred to
depositions of other expert witnesses taken in different cases. However, the foundation
of those witnesses’ opinions cannot be adequately discerned from this record. Moreover,
12
the witnesses in those cases had no knowledge of the types or composition of joint
compounds sanded in Desin’s presence.
Ewing also relied on two articles. One of them, “Occupational Exposure to
Asbestos in the Drywall Taping Process,” by Verma and Middleton, was based on an
investigation in the Canadian province of Alberta begun in 1975. The article reports that
during the study period, “most joint compounds were said to contain between 3–6% of
chrysotile asbestos by weight,” and that “[t]hree types of joint compounds are available:
taping, topping, and all purpose, all of which contain asbestos.” This article does not
establish that all—or even most—joint compounds available from the 1960’s through
early 1970’s at the work sites Desin shared with Zelinsky employees contained asbestos.
The other article upon which Ewing relies, “Drywall Construction and Asbestos
Exposure,” by Fischbein et al., published in 1979, states that asbestos had been found “in
13 out of 15 industrial products” and that “asbestos-free materials were not widely
introduced into the trade until very recently.” These statements, however, do not indicate
the total number of joint compound products available during the 1960’s through early
1970’s, and in any case, they demonstrate that not all joint compounds contained
asbestos.5
Ewing also pointed to Desin’s own interrogatory response number 7 and other
interrogatory responses and depositions. However, he provided no “ ‘ “reasoned
explanation’ ” ” of why this discovery leads to his ultimate conclusion. (Casey, supra,
206 Cal.App.4th at p. 1233.) Moreover, as we have explained, the Ewing declaration
indicates on its face that even if most drywall products contained asbestos before the late
1970’s, non-asbestos-containing products were also available. In light of Ewing’s lack of
5
Ewing also relied on disclosures of asbestos-containing products made by
manufacturers pursuant to the Asbestos Information Act of 1988, Pub. Law 100–577,
which “requires former and current manufacturers and processors of certain asbestos
products to submit information identifying their products to the [Environmental
Protection Agency].” (55 Fed.Reg. 5144.) The fact that manufacturers disclosed
products that did contain asbestos, however, does not mean that there were no other joint
compounds that did not contain asbestos.
13
knowledge of the particular products to which Desin was exposed, we conclude the trial
court did not abuse its discretion in excluding the substantive portions of his declaration.
Plaintiffs also argue that Michael Zelinsky’s testimony in the Betti case provides
evidence that Desin was exposed to asbestos-containing Paco or Kelly-Moore joint
compounds. Michael Zelinsky did testify that Zelinsky bought “ ‘mostly Kelly-Moore
mud’ ” because it was the “ ‘cheapest’ ” and that he could not recall purchasing any type
of joint compound other than Paco when he was a purchasing agent in 1970 or 1971.
However, Desin was unable to identify any particular year in which he worked with
Zelinsky employees, and Michael Zelinsky’s testimony as to the joint compound he
purchased for Zelinsky during one year in 1970 or 1971 does not show that it was more
likely than not that Zelinsky employees exposed Desin to Paco products during the seven
or eight occasions he worked alongside them in unspecified years in the 1960’s and early
1970’s.6
In the absence of admissible evidence that Desin was exposed to asbestos-
containing products as a result of the activities of Zelinsky employees, we conclude
plaintiffs failed to carry the burden to show a triable issue of material fact.
III. DISPOSITION
The judgment is affirmed.
6
Michael Zelinsky’s testimony is, in any event, inadmissible hearsay because
defendant here was not represented at that deposition taken in an entirely different case,
and Desin has not offered any grounds for its admissibility. (Evidence Code § 1291.)
14
_________________________
Rivera, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Streeter, J.
15
A137513
16