Quiroz v. BNSF Railway CA2/4

Filed 6/24/15 Quiroz v. BNSF Railway CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TERESA QUIROZ et al., B250165
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC460217/JCCP
v. 4674)
BNSF RAILWAY COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Emilie H. Elias, Judge. Affirmed.
Waters Kraus & Paul, Paul C. Cook and Michael B. Gurien for Plaintiffs and
Appellants.
SIMS Law Firm and Selim Mounedji for Defendant and Respondent.
Plaintiffs Teresa Quiroz, on her own behalf and as successor in interest to
decedent Benjamin P. Thoms (Thoms), Tamara A. Rose, and Donald P. Thoms
appeal from a summary judgment granted in favor of defendant BNSF Railway
Company (BNSF) on plaintiffs’ complaint for claims related to Thoms’ alleged
exposure to asbestos while working for BNSF. We conclude, as did the trial court,
that plaintiffs failed to establish a triable issue of material fact regarding whether
Thoms was exposed to asbestos during his BNSF employment. We therefore
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Thoms worked for BNSF and its predecessor, the Atchison Topeka and
Santa Fe Railway Company (ATSF), from 1966 to 2004. Initially, he worked as a
switchman in ATSF’s railroad yard in Barstow, switching train cars to different
tracks. Later he worked as a brakeman and a conductor.
Thoms was diagnosed with mesothelioma in December 2010. The initial
complaint was filed in April 2011, his deposition was taken in July 2011, and he
died in September 2011. In December 2011, plaintiffs filed the operative first
amended complaint (hereafter the complaint) for wrongful death against several
defendants, including BNSF, alleging causes of action for negligence, strict
liability, false representation, intentional tort/intentional failure to warn. Plaintiffs
further alleged causes of action against BNSF for premises liability and for liability
under the Federal Employers Liability Act (FELA).1 BNSF is the sole remaining
defendant.
1
FELA provides in part: “Every common carrier by railroad while engaging in
commerce . . . shall be liable in damages to any person suffering injury while he is
employed by such carrier in such commerce, or, in case of the death of such employee, to
his or her personal representative, for the benefit of the surviving widow or husband and
2
BNSF demurred to the complaint on the ground that FELA was the
exclusive remedy against a railroad employer for the death of or injury to a railroad
employee. The parties entered into a stipulated order to proceed only on the FELA
claim and dismiss the causes of action for negligence, strict liability, false
representation, intentional tort/intentional failure to warn, and premises liability.
BNSF moved for summary judgment as to the sole remaining claim under
FELA. BNSF’s motion for summary judgment argued that plaintiffs were required
but failed to prove negligence under FELA, that plaintiffs did not have and could
not provide evidence to establish Thoms’ exposure to asbestos while employed by
BNSF, and that plaintiffs’ claims were preempted by the Locomotive Boiler
Inspection Act and the Safety Appliance Act. Plaintiffs opposed the motion and
filed evidentiary objections to BNSF’s declarations. Plaintiffs also filed a
declaration by Phillip John Templin, an industrial hygienist. The trial court
sustained plaintiffs’ evidentiary objections, and the admissible evidence will be
discussed in more detail below.
The court granted BNSF’s summary judgment motion. The trial court
rejected BNSF’s argument that the FELA claim was preempted by the other
statutes cited by BNSF, but held that plaintiffs had failed to raise a triable issue
whether Thoms was exposed to asbestos during his employment with BNSF. The
court entered judgment in favor of BNSF.
children of such employee . . . for such injury or death resulting in whole or in part from
the negligence of any of the officers, agents, or employees of such carrier, or by reason of
any defect or insufficiency, due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or other equipment.” (45 U.S.C. § 51.)
“‘To prevail on a FELA claim, a plaintiff must “prove the traditional common law
elements of negligence: duty, breach, foreseeability, and causation.”’ [Citation.]”
(Southern California Regional Rail Authority v. Superior Court (2008) 163 Cal.App.4th
712, 739.)
3
DISCUSSION
Plaintiffs contend the trial court erred in finding that BNSF had shifted the
burden of production on summary judgment, and that plaintiffs had not raised a
triable issue of material fact.2 We disagree.
I. Summary Judgment Standard
“‘We review the trial court’s summary judgment rulings de novo, viewing
the evidence in a light favorable to the plaintiff as the losing party, liberally
construing the plaintiff’s evidentiary submission while strictly scrutinizing the
defendant’s own showing, and resolving any evidentiary doubts or ambiguities in
the plaintiff’s favor.’ [Citation.]
“A motion for summary judgment must be granted ‘if all the papers
submitted show that there is no triable issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.’ (Code Civ. Proc.,
§ 437c, subd. (c).) A defendant has met its burden of showing that a cause of
action has no merit if it has shown that one or more elements of the cause of action
cannot be established, or that there is a complete defense to that cause of action.
Once the defendant has met that burden, the burden shifts to the plaintiff to show a
triable issue of one or more material facts exists as to that cause of action.
[Citations.]
2
BNSF contends that plaintiffs lack standing to pursue a FELA claim because
FELA claims can be brought only by the employee’s “personal representative, for the
benefit of the surviving widow or husband and children of such employee.” (45 U.S.C.
§ 51.) Because we affirm the grant of summary judgment on other grounds, we need not
consider this issue.
4
“‘In determining whether the papers show that there is no triable issue as to
any material fact the court shall consider all of the evidence set forth in the papers
. . . and all inferences reasonably deducible from the evidence . . . .’ (Code Civ.
Proc., § 437c, subd. (c).) In some instances, however, ‘evidence may be so lacking
in probative value that it fails to raise any triable issue.’ [Citation.]” (Whitmire v.
Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084 (Whitmire).)
“‘A threshold issue in asbestos litigation is exposure to the defendant’s
product. . . . If there has been no exposure, there is no causation.’ [Citation.]
Plaintiffs bear the burden of ‘demonstrating that exposure to . . . asbestos products
was, in reasonable medical probability, a substantial factor in causing or
contributing to [Thoms’] risk of developing cancer.’ [Citation.] ‘Factors relevant
to assessing whether such a medical probability exists include frequency of
exposure, regularity of exposure and proximity of the asbestos product to
[Thoms].’ [Citation.] Therefore, ‘[plaintiffs] cannot prevail against [BNSF]
without evidence that [Thoms] was exposed to asbestos-containing materials
manufactured or furnished by [BNSF] 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.]” (Whitmire, supra, 184 Cal.App.4th at p.
1084; see also Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 968-969
(Izell)[“‘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 bringing about the injury.’”].) We conclude
that plaintiffs have failed to establish the threshold exposure to any asbestos-
containing products.
5
II. BNSF Met Its Initial Burden
“A defendant moving for summary judgment is entitled to summary
judgment if he or she either conclusively negates an element of the plaintiff’s cause
of action, or shows that the plaintiff cannot establish at least one element of the
cause of action. [Citation.]” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156,
176, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) “[T]he
defendant may show through factually devoid discovery responses that the plaintiff
does not possess and cannot reasonably obtain needed evidence. [Citations.]”
(Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 587-588 (Collin).) Here,
BNSF showed that plaintiffs did not possess and could not reasonably obtain
needed evidence regarding Thoms’ exposure to asbestos during his BNSF
employment.3
According to plaintiffs, Thoms was exposed to asbestos in three aspects of
his employment with BNSF: changing railcar brake shoes, being in the vicinity of
3
Plaintiffs argue extensively that BNSF failed to satisfy its initial burden by
affirmatively negating an element of plaintiffs’ cause of action, discussing purported
infirmities in the declarations submitted by BNSF from Larry Liukonen, James Shea, and
David Malter. We need not consider this issue, because we conclude that BNSF has
successfully shown that plaintiffs do not possess and cannot reasonably obtain needed
evidence. (Collin, supra, 228 Cal.App.4th at p. 587.) The trial court sustained plaintiffs’
objections to statements in Liukonen’s, Shea’s, and Malter’s declarations based on, inter
alia, lack of foundation, inadmissible hearsay, and failure to set forth admissible
evidence. BNSF has not challenged the court’s evidentiary rulings. In determining
whether BNSF has met its burden on summary judgment, we consider only the evidence
that was admitted. (See Belasco v. Wells (2015) 234 Cal.App.4th 409, 419 [in reviewing
the trial court’s grant of summary judgment, we consider “‘all of the evidence the parties
offered in connection with the motion (except that which the court properly excluded)
and the uncontradicted inferences the evidence reasonably supports.’”].)
6
insulation removal from refrigerator cars, and staying in a boarding house run by
the railroad that had insulation-covered pipes in the room where he slept.
Thoms’ work as a brakeman involved inspecting the train for hand brakes
and watching the train as it drove, “keeping an eye on the train for . . . brake shoes
burning up .” Although changing brake shoes was not a regular part of his job,
Thoms stated in his deposition that he was “continuously” in the vicinity when
brake shoes were being replaced.4 He described it as a “dirty job,” but he was not
sure if the brake shoes were made of cloth or asbestos.
Concerning refrigerator cars, he stated that he frequently observed
refrigeration insulation being ripped out of refrigerator cars, which caused the air
to become “dusty and dirty.” Regarding insulated pipes, Thoms stated that from
1966 to 1967, he often stayed at the Harvey House, a boarding house for train
crews, in order to avoid a long commute home. According to Thoms, there were
steam pipes covered in insulation in the basement where he slept. Trains
frequently rode past, causing the building to shake vigorously and dust to be
shaken from the pipes and the ceiling onto him.
In support of its motion for summary judgment, BNSF filed declarations
from James Shea (an industrial hygienist who worked for BNSF from 1988 to
2001), David Malter (an industrial hygienist who worked for ATSF from 1980 to
1987), and Larry Liukonen (an industrial hygienist).5 BNSF also submitted
4
Thoms stated that he occasionally replaced the brake shoe when the train was “out
on the road,” but he gave no indication as to how often that occurred. In response to
questioning, he described it as “many, many times,” but there was no further specificity
regarding his possible dates of exposure to brake shoe repair.
5
At oral argument, plaintiffs’ counsel cited Liukonen’s declaration to argue that
BNSF conceded that Thoms was exposed to asbestos in his work as a brakeman.
However, the cited statement does not support plaintiffs’ contention. Liukonen stated
7
declarations of Karen McKee and David Clark, two BNSF employees who stated
that, although they were named by plaintiffs as witnesses, they had no personal
knowledge regarding Thoms’ alleged exposure to asbestos. In addition to its own
declarations, BNSF submitted excerpts of plaintiffs’ responses to general and
special interrogatories, plaintiffs’ case report, excerpts of Thoms’ deposition, and
Thoms’ work history sheet, which was incorporated by reference in plaintiffs’
responses to general interrogatories.
The excerpts of Thoms’ deposition submitted by BNSF showed, in pertinent
part, that, although Thoms changed brake shoes numerous times during his
employment, he was not sure if the brake shoes were cloth or asbestos. He also
stated that he never complained to BNSF about dust or not receiving a respirator,
and that BNSF was “good about providing you with safety equipment” because
safety “was one of their main concerns.” Thoms further acknowledged that he had
no personal knowledge whether he was actually exposed to asbestos while working
for BNSF. He stated that he became aware of the possibility when BNSF “started
putting up the warning signs that [he] was around asbestos.”
Plaintiffs contend that BNSF cannot rely on Thoms’ lack of personal
knowledge regarding asbestos exposure to satisfy its initial burden. They cite
Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433 (Weber), which held that
the defendant employer, John Crane, Inc., did not make “a prima facie case that
that “Railroad brake shoes were manufactured with some chrysotile asbestos in the wear
stock, primarily in the 1970s. The potential release of asbestos from these types of shoes
has been studied extensively and it has been shown that they do not create a significant
exposure to asbestos. That is true even while the asbestos-containing shoes are being
changed. Thus, changing the brake shoes as described by Mr. Thoms at his deposition
would not create any exposure to asbestos.” (Fns. omitted.) Liukonen’s statement is not
a concession that Thoms was exposed to asbestos in his work as a brakeman.
8
plaintiffs would be unable to establish that [the employee] had been exposed to a
John Crane product, by submitting evidence that Weber had no recall of the name
John Crane, Inc., and could not associate any product with that name.” (Id. at p.
1439.) The court explained that the employee’s inability “to recall whether he
worked around a John Crane product over 40 years ago suggests only that plaintiffs
will not be able to prove their case with [his] deposition testimony.” (Ibid.)
However in the present case, unlike Weber, BNSF did not rely solely on the
plaintiff’s testimony to assert there was no triable issue of fact. BNSF also relied
on plaintiffs’ responses to general and specific interrogatories, plaintiffs’ case
report, and Thoms’ work history sheet. Thus, unlike the defendant in Weber,
BNSF conducted discovery “designed to ascertain what evidence plaintiffs had
beyond the statements of [Thoms] himself.” (Weber, supra, 143 Cal.App.4th at p.
1436.)
This case therefore is analogous to Andrews v. Foster Wheeler LLC (2006)
138 Cal.App.4th 96 (Andrews), which Weber distinguished. In Andrews, as here,
the defendant “propounded a series of special interrogatories which called for all
facts regarding [the employee’s] exposure to asbestos.” (Id. at p. 104.)
BNSF’s special interrogatory No. 1 asked, in specific detail, for all facts
supporting plaintiffs’ contention that BNSF was liable under FELA. Plaintiffs’
response merely repeated the allegation in the complaint that throughout Thoms’
employment, he “was required to work with and around asbestos-containing
products in [BNSF’s] various railroad shops and facilities, including the shops and
facilities, in and around the State of California.” They also repeated the allegation
that Thoms “was engaged in the course of his employment at [BNSF’s] facilities in
and around California as a switchman and brakeman, and in other various roles and
capacities where he was required and caused to work with and in the vicinity of
9
toxic substances including asbestos and asbestos-containing products and materials
which caused him to suffer severe and permanent injury to his person.”
Plaintiffs’ interrogatory response is not sufficient to raise an issue whether
Thoms was exposed to asbestos. It asserts mere conclusions, without specific facts
to show, or from which one might infer, that Thoms was actually exposed to
asbestos in any aspect of his employment with BNSF. (See Andrews, supra, 138
Cal.App.4th at p. 104 [plaintiff’s special interrogatory answer “contains little more
than general allegations against [the defendant] and does not state specific facts
showing that [the plaintiff] was actually exposed to asbestos-containing material
from [the defendant’s] products.”].)
In response to special interrogatory No. 3, asking plaintiffs to identify all
documents supporting their claim, plaintiffs cited their responses to the general
interrogatories, including Thoms’ work history sheet and plaintiffs’ case report, the
complaint, and Thoms’ deposition. These documents, however, do not contain
facts sufficient to support plaintiffs’ claim.
Thoms’ work history sheet showed that, in his employment with BNSF,
Thoms worked “around,” but not “with,” refrigeration, insulation, and brakes that
“may have” contained asbestos. There were no details regarding any
manufacturers or specific products that exposed Thoms to asbestos. By contrast,
Thoms’ work history sheet detailing Thoms’ alleged exposure to asbestos during
his Navy service specified the manufacturers of the boilers, pumps, steam traps,
valves, and gaskets that may have contained asbestos. Similarly, Thoms’ work
history sheets regarding construction work from 1960 to 1966 and as a laborer in
1963 specified the manufacturers of materials with which Thoms worked that may
have contained asbestos. The lack of specificity in plaintiffs’ work history sheet
regarding asbestos exposure while working for BNSF strongly suggests that
10
plaintiffs did not possess and could not reasonably obtain needed evidence to prove
that critical element of their cause of action.
Similarly, the complaint, cited by plaintiffs as a document supporting their
claim, contains only the following general allegations, repeated verbatim in
plaintiffs’ response to the special interrogatory: Thoms “was required to work
with and around asbestos-containing products in [BNSF’s] various railroad shops
and facilities,” and he “was engaged in the course of his employment at [BNSF’s]
facilities in and around California as a switchman and brakeman, and in other
various roles and capacities where he was required and caused to work with and in
the vicinity of toxic substances including asbestos and asbestos-containing
products and materials.”
Thoms’ deposition also contains only general statements, describing the air
becoming “dusty and dirty” when Thoms watched insulation being removed from
refrigeration cars, and dust being shaken from the pipes and ceiling in the
basement of the Harvey House. Such statements “assume[], without any
evidentiary support, that the dust and debris [to which Thoms was exposed]
contained asbestos.” (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1230
(Casey).)
BNSF’s “discovery was ‘sufficiently comprehensive, and plaintiffs’
responses so devoid of facts, as to lead to the inference that plaintiffs could not
prove causation upon a stringent review of the direct, circumstantial and inferential
evidence contained in their interrogatory answers and deposition testimony.’
[Citation.]” (Casey, supra, 206 Cal.App.4th at p. 1231.) Thus, BNSF successfully
shifted the burden to plaintiffs to show a triable issue of material fact as to his
exposure to asbestos during his employment with BNSF. (Whitmire, supra, 184
Cal.App.4th at p. 1084.)
11
III. Plaintiffs Failed to Raise a Triable Issue of Material Fact
In opposition to the summary judgment motion, plaintiffs introduced a
declaration from Phillip Templin, an industrial hygienist with numerous years of
experience in occupational safety and health and asbestos-related issues. Plaintiffs
also submitted excerpts of Thoms’ deposition, a copy of their complaint, and an
exhibit setting forth their product identification witnesses.
A. Templin’s Declaration Does Not Create an Issue of Material Fact
Templin reviewed literature regarding mesothelioma among railroad
workers and Thoms’ deposition testimony.6 According to Templin, prior to the
mid-1970s and during the time Thoms worked for BNSF, railroad car brakes
contained asbestos. In support of his conclusion, Templin attached letters written
by three brake manufacturers and deposition testimony of an industrial hygienist
for CSX Transportation in a different case, stating that manufacturers began
removing asbestos from railroad brake shoes in the 1970s. Templin opined that
Thoms’ repair work on the brakes and the repair work done in his presence
exposed Thoms to asbestos levels “far in excess of ambient concentrations.”
6
Specifically, Templin relied on the following: (1) an article from 1986, “A
Population-based Case-Control Study of Mesothelioma Deaths among U.S. Railroad
Workers”; (2) a paper, “Mesotheliomas among Railroad Workers in the United States”;
(3) three letters dated November 1985 from railroad brake shoe manufacturers to
Seaboard System Railroad, Inc.; (4) 2009 deposition testimony of Mark Badders,
manager of public safety and health programs for CSX Transportation, in a Tennessee
lawsuit against CSX Transportation, Inc.; (5) proceedings of the 1935 meeting of the
Association of American Railroads, Medical and Surgical Section; and (6) a report of a
1932 meeting of the National Safety Council .
12
Templin further stated that the insulation from the refrigerator cars to which
Thoms was exposed contained asbestos and that Thoms was exposed to respirable
asbestos in the Harvey House due to the steam pipe insulation being disturbed by
passing trains. He concluded that Thoms’ presence during work on the
refrigeration insulation and railroad car brakes, as well as the dust released from
the insulation at the Harvey House exposed Thoms to respirable asbestos fibers in
amounts that increased his risk of developing an asbestos-related illness.
The fatal flaw in Templin’s declaration is that it fails to provide any
evidence to show that the brakes to which Thoms was exposed, or the insulation in
refrigerator cars or on the pipes at the Harvey House, actually contained asbestos.
Templin’s statement that railway car brakes contained asbestos prior to the late
1970s is far too general to create an issue of material fact. There was no specific
evidence regarding the manufacturers of the brakes to which Thoms was exposed,
the dates of Thoms’ alleged exposure, or how changing of brake shoes resulted in
the creation of asbestos dust. Although Templin relied on letters from three
specific brake manufacturers, there was no evidence that any of these
manufacturers made the brakes on which Thoms worked. Moreover, although one
of the letters, from Abex Corporation, acknowledged that brake shoes prior to 1976
contained lead and asbestos, the letters from the other two manufacturers simply
stated that their brake shoes are asbestos-free at the time of the letters, November
1985. The letter from Railroad Friction Products Corporation specifically stated
that, prior to August 1980, their products “may or may not have contained asbestos
depending on the product and the specific date in question.” Thus, the letters on
which Templin relied actually show the paucity of plaintiffs’ evidence of exposure
to asbestos from brakes.
13
Templin stated that “[a]sbestos insulation was used as an insulator in railway
refrigerator car insulation, and workers present during repairs of insulated cars
were at risk of significant asbestos exposure.” However, the two articles on which
he relied, “A Population-based Case-Control Study of Mesothelioma Deaths
among U.S. Railroad Workers” from 1986 and “Mesotheliomas among Railroad
Workers in the United States,” do not provide sufficient foundation to raise a
triable issue as to whether Thoms was exposed to asbestos while watching
refrigerator car repair. The first article stated the following regarding insulated
railroad cars: “The carmen (car repairers) had potential asbestos exposure during
repair of insulated cars.” The article later stated that the primary use of asbestos in
the railroad industry was in the area of steam engine repair, but “[o]ther sources of
potential asbestos exposure included . . . refrigerator car insulation.” Moreover,
the first article studied railroad workers who held jobs prior to 1959, stating that
“[s]team engines were replaced by diesels in the 1950’s, and exposures to asbestos
markedly decreased during that decade.” The second article focused on insulation
wrapped around the boilers of steam locomotives and does not address refrigerator
car insulation. The two articles thus do not purport to show that the refrigerator car
insulation and the “dusty and dirty” air to which Thoms was exposed contained
asbestos. Nor did Templin provide any facts regarding the manufacturer of the
insulation to which Thoms was exposed.
Templin’s statement regarding the Harvey House is similarly general and
nonspecific, with no facts to establish that the insulation covering the steam pipes
contained asbestos. He did not state that all or most residential pipe insulation in
1966 and 1967 was made of asbestos. Templin described the basement, quoting
Thoms’ testimony that the basement “had steam lines that ran through the room
and were ‘. . . insulated to keep from rubbing against them and getting burned
14
because you had hot steam.’ [Citation.] The steam lines passed through the
ceiling of the basement and were approximately three inches wide. [Citation.] In
addition, Mr. Thoms described the conditions of the Harvey House as ‘real dusty in
that whole building . . . all the time. . . .’ [Citation.] Mr. Thoms testified trains
passing by the Harvey House would cause ‘continuous rattling and shaking’ and
this would ‘shake the dust off the ceilings and the pipes.’ [Citation.]” Templin
subsequently gave his opinion, which consisted in full of the following statement:
“It is my further opinion, to a reasonable degree of scientific certainty appropriate
to the field of industrial hygiene, and based on my review of the above materials
[detailed in fn. 6, supra], my education, training and personal experience, that Mr.
Thoms was exposed to significant amounts of respirable asbestos while boarding
for three to four days a week in 1966 in the basement of the Harvey House, from
steam-pipe insulating materials that were disturbed by the ‘continuous rattling and
shaking’ of the pipes caused by the passing trains.”
Templin’s statement cites no evidence that the insulation contained asbestos,
or evidence regarding the content of the dust that fell from the ceiling and pipes, or
the amount of dust that was shaken loose. (See Casey, supra, 206 Cal.App.4th at
p. 1230 [plaintiff’s answer to special interrogatory “assumes, without any
evidentiary support, that the dust and debris allegedly disturbed by [defendant’s]
workers contained asbestos”].) The only bases for his opinion are his education
and training and the two general articles regarding mesothelioma among railroad
workers. He gives no basis to support his opinion that the dust in the air of the
Harvey House basement contained asbestos.
Plaintiffs’ reliance at oral argument on Ganoe v. Metalclad Insulation Corp.
(2014) 227 Cal.App.4th 1577 (Ganoe), is unavailing. In Ganoe, the defendant
manufacturer, Metalclad Insulation Corporation, moved for summary judgment,
15
relying on the plaintiffs’ factually devoid discovery responses, a statement by the
decedent’s coworker that he had never heard of Metalclad, and a statement by
Metalclad that it had never performed work at or supplied materials to the
decedent’s workplace, a Goodyear Tire & Rubber Company plant. However,
approximately two years into the litigation, Metalclad submitted evidence that it
had, in fact, performed insulation work at the Goodyear plant. In response, the
plaintiffs amended their discovery responses, “citing to specific facts linking
Metalclad to the decedent’s exposure to asbestos.” (Id. at p. 1579.) On appeal, the
court reversed the trial court’s grant of summary judgment in favor of Metalclad.
(Ibid.)
Plaintiffs here rely on a footnote in Ganoe, in which the court rejected the
trial court’s conclusion that the Ganoe plaintiffs’ expert witness opinion was too
speculative to create a triable issue of fact. (Ganoe, supra, 227 Cal.App.4th at p.
1586, fn. 4.) Ganoe is distinguishable.
First, the defendant in Ganoe based its summary judgment motion on the
plaintiffs’ alleged inability to show exposure to asbestos products tied to Metalclad
– thus, they relied on the coworker’s statement that he had never heard of
Metalclad and Metalclad’s own statement that it had never performed work at the
Goodyear plant. The question, therefore, was focused not on whether there was
asbestos where the decedent worked, but on whether the asbestos products were
supplied or installed by Metalclad. By contrast, here, BNSF argued that plaintiffs
were unable to produce evidence to establish “‘some threshold exposure’” to
asbestos at all during his tenure at BNSF. (Izell, supra, 231 Cal.App.4th at p. 968.)
The expert opinion in Ganoe and, in particular, the bases for that opinion,
are quite different from Templin’s declaration and the grounds he set forth for his
opinion. In Ganoe, the plaintiff’s expert witness “provided evidence that he had
16
been qualified as an expert witness in over 100 asbestos-related injury cases over
the past 16 years, he had worked as a ‘pipe coverer, insulator and asbestos worker’
for 25 years, [and] he had been certified and trained about safety issues related to
asbestos.” (Ganoe, supra, 227 Cal.App.4th at p. 1586, fn. 4.) In addition, he
reviewed the testimony of the decedent and the decedent’s coworker and
Metalclad’s record of performing work at the Goodyear plant. This evidence
showed that in 1974, new machines installed in an area at the Goodyear plant
where the decedent worked required installation of insulated piping and removal of
old insulation, which released asbestos-containing dust. The plaintiffs also
submitted evidence that Metalclad performed insulation work on piping in 1974 at
the Goodyear plant. The decedent described his presence during the work and
described insulation “that ‘looked like dirty chalk.’” (Id. at p. 1580.)
Thus, the plaintiffs in Ganoe presented specific evidence regarding the
decedent’s exposure to asbestos due to a specific event tied to the defendant – the
1974 installation of the machinery, the piping and the insulation, with a description
of the insulation. (See Ganoe, supra, 227 Cal.App.4th at p. 1580.) In contrast to
Ganoe, Templin’s opinion was based in part on Thoms’ testimony that insulated
steam lines ran through the ceiling of the basement of the Harvey House and it was
“real dusty . . . all the time.” However, plaintiffs produced no evidence that the
dust to which Thoms was exposed contained asbestos. (See Casey, supra, 206
Cal.App.4th at p. 1233 [“Notably absent is any factual support for the proposition
that the challenged jobsites contained asbestos during the relevant time period.”].)
“Without knowledge of certain foundational facts, an expert’s opinion is ‘simply
too tenuous to create a triable issue’ regarding causation. [Citation.]” (Id. at p.
1234.)
17
“The mere ‘possibility’ of exposure does not create a triable issue of fact.
[Citation.] ‘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.] Notably,
‘[p]laintiffs cannot manufacture a triable issue of fact through use of an expert
opinion with self-serving conclusions devoid of any basis, explanation or
reasoning.’ [Citation.] ‘[A]n 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.’ [Citation.]” (Andrews, supra, 138 Cal.App.4th at p.
108; see also McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1106
[“An expert’s speculations do not rise to the status of contradictory evidence, and a
court is not bound by expert opinion that is speculative or conjectural.
[Citations.]”].) Templin’s declaration does not establish a triable issue of material
fact as to whether Thoms was actually exposed to asbestos.
B. Thoms’ Deposition, The Complaint, and The Product Identification
Witnesses List Do Not Create an Issue of Material Fact
As discussed above, Thoms’ deposition and plaintiffs’ complaint contain
only general allegations, with no specific facts to create an issue of material fact
regarding whether he was actually exposed to asbestos.7
7
The excerpts of Thoms’ deposition submitted by plaintiffs did not differ
significantly from those submitted by BNSF. The excerpts submitted by plaintiffs
contain more details about Thoms and the situations in which he observed the repair of
refrigeration units and brake shoes. Plaintiffs also included Thoms’ testimony that trains
frequently drove by on the track in front of the Harvey House, causing the building to
shake vigorously and causing dust to be shaken off the ceiling and the pipes onto the
people in the basement. However, there were no more details in the excerpts submitted
18
The only product identified in plaintiffs’ product identification witness list
regarding their claim against BNSF is Thermo King insulated refrigeration units.
However, plaintiffs dismissed Thermo King from the action prior to the summary
judgment proceeding, and they submitted no other facts regarding Thermo King
refrigeration units. In addition, the only witnesses named in this list are Clark and
McKee. As noted above, Clark and McKee both stated in declarations that they
had no personal knowledge regarding Thoms’ alleged exposure to asbestos.
Plaintiffs’ evidence is too “‘lacking in probative value’” to raise a triable
issue that Thoms was actually exposed to asbestos during his employment with
BNSF. (Whitmire, supra, 184 Cal.App.4th at p. 1084.) “Although a party may
rely on reasonable inferences drawn from direct and circumstantial evidence to
satisfy its burden on summary judgment, we do not draw inferences from thin air.
[Citations.] Likewise, a mere possibility that [Thoms] was exposed to [asbestos] is
not enough to create a triable issue of fact. [Citations.]” (Collin, supra, 228
Cal.App.4th at p. 592.) Not only have plaintiffs failed to identify any specific
products Thoms worked around, they have presented no evidence that any of the
products that Thoms worked around contained asbestos. This case therefore is
unlike Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, which plaintiffs
rely upon. In Hernandez, the plaintiff identified the specific product and
manufacturer and described his work with the product. (See id. at pp. 664-665,
673-674.)
by plaintiffs to establish that the refrigeration insulation, brake shoes, or dust in the
basement of the Harvey House contained asbestos.
19
The trial court properly granted summary judgment in favor of BNSF.8
DISPOSITION
The judgment is affirmed. BNSF shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P.J.
We concur:
MANELLA, J.
COLLINS, J.
8
In light of our conclusion that plaintiffs failed to raise a triable issue of Thoms’
exposure to asbestos, we do not reach BNSF’s arguments regarding the issues of
negligence and preemption of plaintiffs’ FELA claim.
20