Beebe v. Wonderful Pistachios etc.

Filed 6/6/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
DALE BEEBE,
F083502
Plaintiff and Appellant,
(Super. Ct. No. BCV-17-102664)
v.
WONDERFUL PISTACHIOS & ALMONDS OPINION
LLC et al.,
Defendants and Respondents;
INSURANCE COMPANY OF THE WEST,
Intervener and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Hacker Law Group and Jeffrey A. Hacker, for Plaintiff and Appellant.
Roll Law Group, Courtney E. Vaudreuil, Matthew Moran, Rhonda Steffen, for
Defendants and Respondents.
-ooOoo-
Plaintiff Dale Beebe worked as an electrical foreman for Braaten Electric, Inc.
Braaten Electric, Inc. was hired as a subcontractor by defendant Potential Design, Inc.
and its owner, defendant James Tjerrild, to work on electrical installations for two
successive silo construction projects, at a nut facility in Firebaugh that was owned and
operated by defendant Wonderful Pistachios and Almonds, LLC. Potential Design, Inc.
was the general contractor for both construction projects.
The nut facility was plagued by flocks of migrating swallows that roosted, over
several years, under the roof of an open, barn-like structure (the pole barn), and created
sizable accumulations of bird feces. Sometime after Beebe’s work at the nut facility was
finished, he was diagnosed with a fungal infection, histoplasmosis, which had spread to
his brain, resulting in certain permanent impairments. Histoplasmosis is caused by
inhalation of airborne spores of a fungus called histoplasma capsulatum or H.
capsulatum. Histoplasma capsulatum thrives in soils that are heavily enriched with bird
feces.
Beebe eventually sued the defendants in tort, alleging their conduct with respect to
the bird infestation and accumulation of bird feces at the nut facility was a substantial
factor in causing his histoplasmosis. The defendants filed a motion for summary
judgment and, subsequently, objected to the declarations of Beebe’s infectious diseases
expert and his standard of care expert, that were submitted in support of his opposition to
the motion for summary judgment. The trial court excluded the declarations of Beebe’s
experts and granted the defendants’ motion for summary judgment.
Beebe appealed. He challenges the trial court’s rulings excluding his experts’
declarations and granting summary judgment in favor of the defendants. We conclude
the trial court erred in excluding the declarations submitted by Beebe’s experts and,
further, that summary judgment is not warranted here. We reverse the judgment and
remand for further proceedings.
2.
PROCEDURAL BACKGROUND
Wonderful Pistachios and Almonds, LLC, owns and operates a pistachio
processing facility in Firebaugh (Firebaugh Facility). The Firebaugh Facility underwent
construction work beginning in 2011, when nut storage silos and associated electrical
installations were added to the property. Wonderful Pistachios and Almonds, LLC, hired
Potential Design, Inc. as the general contractor for the construction projects; James
Tjerrild was the owner of Potential Design, Inc. Potential Design, Inc. subcontracted to
Braaten Electric, Inc. (Braaten or Braaten Electric), the electrical work for the
construction projects at the Firebaugh Facility.
Dale Beebe was an employee of Braaten and was assigned to oversee, as an
electrical automation foreman, the electrical work associated with the construction
projects at the Firebaugh Facility. Beebe worked as an electrical foreman at the
Firebaugh Facility for two separate, extended periods of time: January 13, 2012 to
December 20, 2012 (phase one), and September 12, 2013 to September 26, 2014 (phase
two). Collectively, Beebe worked at the Firebaugh Facility for almost two years between
2012 and 2014. During the periods Beebe worked at the Firebaugh Facility, he lived
onsite, in his recreational vehicle (RV).
Beebe filed the complaint initiating this matter in the Kern County Superior Court
on November 14, 2017. On June 8, 2018, Beebe filed a first amended complaint
(complaint or operative complaint). Wonderful Pistachios and Almonds, LLC, Potential
Design, Inc., and James Tjerrild (owner of Potential Design, Inc.), were the defendants.
All defendants (collectively, Wonderful) were represented by the same counsel in the
trial court (and on appeal).
Beebe’s operative complaint alleged: “Over a period of time, and while Plaintiff
was working at Defendant’s Facility, a toxic substance or toxic substances (believed to
have been bird feces) was allowed to accumulate at Defendant’s Facility.” The complaint
added: “In or about September 2014, while Plaintiff was at Defendant’s Facility,
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Defendants, and each of them, engaged in removal, remediation and/or clean-up of the
toxic substance(s) including, but not limited to, performing hydro-blasting. Plaintiff is
informed and believes and based thereon alleges that Defendants’ actions caused spores
of the toxic substance(s) to become airborne within the Defendant’s Facility, exposing
Plaintiff to the toxic substance(s).”
The complaint alleged: “The toxic substance(s) were allowed to accumulate and
become airborne by Defendants’ actions and/or omissions herein. The substance(s)
contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is
informed and believes and based thereon alleges that when inhaled, said substance(s)
caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The
complaint further noted: “On or about November 24, 2015, Plaintiff reported to the
hospital due to symptoms including, but not limited to, weakness and numbness in his
extremities. Plaintiff was admitted to the hospital and imaging scans were performed.
Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such
that Plaintiff required surgical intervention. The lesions were biopsied in or about
February 2016. Plaintiff was then diagnosed with Histoplasmosis.”
The complaint asserted five causes of action against all defendants: negligence,
negligence per se, premises liability, strict liability (based on ultrahazardous activity), and
nuisance. The complaint sought various categories of damages.
On April 21, 2021, Wonderful filed a motion for summary judgment/summary
adjudication as to the operative complaint, along with supporting declarations from,
among others, two retained experts (Dr. Chadi Hage and Ben Kollmeyer). Among other
contentions, Wonderful argued, with respect to all the causes of action, that Beebe had
not established Wonderful’s “conduct proximately caused his alleged injuries.” Beebe
opposed Wonderful’s motion for summary judgment, adducing supporting declarations
from two retained experts (Dr. Rasha Kuran and Dr. Diane Trainor), among other
evidence. The trial court heard argument on the motion for summary judgment on July 7,
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2021, and on August 6, 2021, issued its final ruling. The court granted Wonderful’s
objections to the declarations of Beebe’s experts and found there was no “triable issue of
fact on the issue of causation.” The court granted summary judgment in favor of
Wonderful (on Beebe’s complaint). This appeal followed.
FACTUAL BACKGROUND
I. Declaration Evidence Adduced by the Parties
Declaration of Conan Dunlap
Conan Dunlap became the general manager of the Firebaugh Facility in 2012.
Dunlap was deposed during the discovery phase of this matter (see below); Dunlap also
provided a declaration in support of Wonderful’s motion for summary judgment. Dunlap
noted in his declaration: “At the time construction of the storage silos [at the Firebaugh
Facility] began, there was an existing structure consisting of posts on a cement
foundation with a metal roof and no walls, referred to as the ‘pole barn.’ Before
construction began, the pole barn had provided shelter for migrating birds who would
build their nests under its roof each spring. Beneath the nests, there was an accumulation
of droppings. This accumulation was removed in early 2012. In 2013 and 2014, some
birds returned to the pole barn in the spring and, thus, there were some droppings on the
concrete. However, these droppings [were] periodically removed by Defendants.”
Dunlap declared, with respect to the number of workers at the Firebaugh Facility:
“Between January 2012 and December 2012, WP&A [Wonderful Pistachios & Almonds,
LLC.] employed approximately twelve workers at the Firebaugh Plant. WP&A
employed approximately forty-five workers at its Firebaugh Plant during the September
2013 to September 2014 time period.”
Declaration of Ben Kollmeyer and Attached Exhibits
Ben Kollmeyer, a certified industrial hygienist, also provided a declaration in
support of Wonderful’s motion for summary judgment. Kollmeyer declared:
“Histoplasmosis is an illness caused by the naturally occurring soil fungus Histoplasma
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capsulatum (herein referred to as Histoplasma).… Histoplasmosis is not a reportable
disease in California and is generally not recognized as endemic to California. Bird and
bat droppings can act as a nutrient source for the growth of Histoplasma already present
in soil. Whereas bats can be infected with and secrete the fungus, birds themselves do
not appear to be infected by the fungus but may transport its spores from one place to
another on wings, feet or beaks.” Kollmeyer noted: “Individuals who become ill [with
Histoplasmosis] are typically exposed by inhaling airborne spores of Histoplasma. The
illness does not spread from person to person.” Kollmeyer added: “Despite the attention
given to outbreaks, most cases of histoplasmosis occur sporadically (i.e., not associated
with other cases).”
Kollmeyer observed: “Since Histoplasma is not known to be present in all soil
and droppings, and it is readily mobile in air when disturbed, the specific location or
source of an individual’s exposure cannot be determined absent scientific data (e.g.,
testing data, associated cases) supporting the existence, or likely existence, of the fungus
in the soil or droppings at issue at the time of exposure.” Kollmeyer further observed: “I
have not seen sampling data indicating the presence of Histoplasma in soil or droppings
at the Firebaugh site at the time Plaintiff was present or evidence indicating the existence
of other cases of histoplasmosis associated with the Firebaugh site at [the] time Plaintiff
was present.” Kollmeyer noted that during the period after Beebe last worked at the
Firebaugh Facility (September 26, 2014) and the time he was hospitalized for brain
lesions from histoplasmosis (November 25, 2015), he had worked at “approximately 40
different project sites” in “13 different counties in California.” Kollmeyer declared that,
in light of the above facts, “the origin of the Histoplasma spore(s) that caused Plaintiff’s
histoplasmosis cannot be determined.”
Kollmeyer, for purposes of his declaration, relied on “numerous research articles
and documents concerning histoplasmosis,” including a 2004 article entitled
“Histoplasmosis: Protecting Workers at Risk,” that was issued by the United States
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Centers for Disease Control and Prevention (CDC). (Cal. Centers for Disease Control &
Prevention, Histoplasmosis: Protecting Workers at Risk (Dec. 2004) p. 1 (CDC article).)
This article was attached as an exhibit to Kollmeyer’s declaration. The CDC article
provides, in part: “Histoplasmosis primarily affects a person’s lungs, and its symptoms
vary greatly. The vast majority of infected people are asymptomatic (have no apparent ill
effects), or they experience symptoms so mild they do not seek medical attention and may
not even realize that their illness was histoplasmosis.” (Ibid., italics added.) The article
states: “Histoplasmosis can appear as a mild, flu-like respiratory illness and has a
combination of symptoms, including malaise (a general ill feeling), fever, chest pain, dry
or nonproductive cough, headache, loss of appetite, shortness of breath, joint and muscle
pains, chills, and hoarseness.” (Ibid.)
The CDC article further notes: “Chronic lung disease due to histoplasmosis
resembles tuberculosis and can worsen over months or years. Special antifungal
medications are needed to arrest the disease.” (Cal. Centers for Disease Control &
Prevention, Histoplasmosis: Protecting Workers at Risk, supra, at p. 1.) The article
adds: “The most severe and rarest form of this disease is disseminated histoplasmosis,
which involves spreading of the fungus to other organs outside the lungs. Disseminated
histoplasmosis is fatal if untreated, but death can also occur in some patients even when
medical treatment is received.” (Ibid., fns. omitted.) The article states: “After an
exposure, how ill a person becomes varies greatly and most likely depends on the number
of spores inhaled and a person’s age and susceptibility to the disease. The number of
inhaled spores needed to cause disease is unknown.… [L]onger durations of exposure
and exposure to higher concentrations of airborne contaminated material increase a
person’s risk of developing histoplasmosis.” (Ibid., fns. omitted.) The article notes: “A
person who has had histoplasmosis can experience reinfection after reexposure to H.
capsulatum.” (Ibid.)
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The CDC article states: “The [H. capsulatum] fungus seems to grow best in soils
having a high nitrogen content, especially those enriched with bird manure or bat
droppings. The organism can be carried on the wings, feet, and beaks of birds and infect
soil under roosting sites or manure accumulations inside or outside buildings. [For
example,] [a]ctive and inactive roosts of blackbirds … have been found heavily
contaminated by H. capsulatum. Therefore, the soil in a stand of trees where blackbirds
have roosted for 3 or more years should be suspected of being contaminated by the
fungus. Habitats of pigeons and bats, and poultry houses with dirt floors have also been
found contaminated by H. capsulatum.” (Cal. Centers for Disease Control & Prevention,
Histoplasmosis: Protecting Workers at Risk, supra, at p. 1, fns. omitted.)
The CDC article notes: “If a colony of bats or a flock of birds is allowed to live in
a building or a stand of trees, their manure will accumulate and create a health risk for
anyone who enters the roosting area and disturbs the material. [¶ ] Areas known or
suspected of being contaminated by H. capsulatum, such as bird roosts, attics, or even
entire buildings that contain accumulations of bat or bird manure, should be posted with
signs warning of the health risk.… In some situations, a fence may need to be built
around a property or locks put on attic doors to prevent unsuspecting or unprotected
individuals from entering.” (Cal. Centers for Disease Control & Prevention,
Histoplasmosis: Protecting Workers at Risk, supra, at p. 7.)
The CDC article explains: “The best way to prevent exposure to H. capsulatum
spores is to avoid situations where material that might be contaminated can become
aerosolized and subsequently inhaled. A brief inhalation exposure to highly
contaminated dust may be all that is needed to cause infection and subsequent
development of histoplasmosis. Therefore, work practices and dust control measures that
eliminate or reduce dust generation during the removal of bat or bird manure from a
building will also reduce risks of infection and subsequent development of disease.”
(Cal. Centers for Disease Control & Prevention, Histoplasmosis: Protecting Workers at
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Risk, supra, at p. 7.) The article adds: “For example, instead of shoveling or sweeping
dry, dusty material, carefully wetting it with a water spray can reduce the amount of dust
aerosolized during an activity. Adding a surfactant or wetting agent to the water might
reduce further the amount of aerosolized dust. Once the material is wetted, it can be
collected in double, heavy-duty plastic bags, a 55-gallon drum, or some other secure
container for immediate disposal. An alternative method is use of an industrial vacuum
cleaner with a high-efficiency filter to ‘bag’ contaminated material.” (Ibid., fns. omitted.)
Declaration of Dr. Chadi Hage
Dr. Chadi Hage provided a declaration in support of Wonderful’s motion for
summary judgment. Dr. Hage is an associate professor of clinical medicine at Indiana
University School of Medicine. Dr. Hage is “board-certified in infectious diseases,
pulmonary medicine and critical care medicine.” Dr. Hage declared: “I am currently
treating 5-7 patients diagnosed with histoplasmosis.… I treat on average 10 patients per
year who have contracted histoplasmosis. Regarding my histoplasmosis patients, I am
responsible for diagnosis, treatment and follow-up care which can last several months.”
Dr. Hage noted: “Any activity that disturbs material contaminated with H. capsulatum
can cause the spores to float into the air and potentially infect people,” as in activities
such as construction and the “disturbance of [a] large accumulation of bat or bird
droppings (including the droppings from chickens, pigeons, blackbirds and other birds)
which are contaminated with H. capsulatum.” Dr. Hage added that histoplasmosis is
“rare in California.”
Dr. Hage addressed the issue necessitating his expert declaration: “It is my
understanding [that] bird droppings were present on [WP&A’s] Firebaugh property at
several locations between 2012-2014. It is also my understanding that Plaintiff alleges he
inhaled H. capsulatum fungi spores as a result of the bird droppings being removed,
remediated and/or cleaned-up at the Firebaugh plant.” Dr. Hage noted: “It is my opinion
to a reasonable degree of medical probability that Plaintiff did not get infected with H.
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capsulatum at the Firebaugh plant. My opinion is based on the following factors: (1) the
passage of time between Plaintiff working at the Firebaugh plant and the onset of his
symptoms nearly 14 months later, (2) the absence of any other workers at the Firebaugh
plant being diagnosed with histoplasmosis (i.e., a ‘hot spot,’ which is generally defined as
a high rate of infection, 50% or more, after exposure); and (3) Plaintiff’s diagnosis with
progressive disseminated histoplasmosis rather than acute histoplasmosis.” Dr. Hage
observed the typical incubation period of histoplasmosis is relatively short, for example
“3 to 17 days.” He added it was his “opinion to a reasonable degree of medical
probability that Plaintiff’s exposure to H. capsulatum took place in the 4-6 weeks prior to
the onset of his symptoms in November 2015.” He further added: “A diagnosis of
disseminated histoplasmosis requires a significant exposure to H. capsulatum much
closer in time than fourteen months (Mr. Beebe’s last time working at Firebaugh) to the
onset of his symptoms.”
Dr. Hage observed: “It is my understanding that no tests of any kind were
conducted on the soil or bird droppings present at the Firebaugh plant during the time
period that Plaintiff worked there. Thus, there is no way to confirm H. capsulatum was
ever in the soil or bird droppings at the Firebaugh plant during the time period Plaintiff
was there.… Whether positive or negative, non-contemporaneous testing results are
irrelevant to whether Mr. Beebe acquired the histoplasmosis while working at the
Firebaugh plant given the time lapse between alleged exposure and testing.” (Italics
added.) Dr. Hage noted that Beebe had worked on many job sites in 13 California
counties in the period between the completion of his work at the Firebaugh facility and
his hospitalization for histoplasmosis, and had traveled internationally, snorkeled, gone
boating, and golfed as well. Dr. Hage postulated that Beebe could potentially have
contracted histoplasmosis through those activities.
10.
Declaration of Dale Beebe
Beebe, 58, submitted a declaration in support of his opposition to Wonderful’s
motion for summary judgment. Beebe had been a “heavy smoker” since the age of 16.
Beebe declared: “I did not come in contact with nor was I exposed to bird feces in any of
the jobs or locations that I worked at after I completed my work at Defendant’s Firebaugh
facility at the end of September, 2014. I don’t even remember any birds or bird nests
being present.” Beebe noted: “I did not come in contact with nor was I exposed to bird
feces at any time between September, 2014 and November 25, 2015 when I was rushed
to the hospital.” Beebe further noted: “As I look back and now that I have become a
little more knowledgeable about the disease I have, I realize that I had symptoms of
Histoplasmosis while I still worked at Firebaugh, particularly in the four months or so
before I stopped working there in September, 2014. I had flu like symptoms. I had a
cold. I felt run-down. I had headaches. I was in a funk and tired all the time. I was
forgetful. I experienced weight loss. I had a cough … I experienced these same
symptoms at other times when I worked at Firebaugh. However, I thought nothing of
them. I did not see a doctor and the symptoms went away after a few days. I
experienced these symptoms from time to time after I left Firebaugh, but they would also
disappear after a few days and I did not seek medical care.”
Declaration of Dr. Rasha Kuran
Dr. Rasha Kuran, an expert in infectious diseases as well as Beebe’s treating
physician, submitted a declaration in support of Beebe’s opposition to Wonderful’s
motion for summary judgment. Dr. Kuran is “an assistant professor of Health Sciences at
UCLA, David Geffen School of Medicine,” and Associate Medical Director of the Valley
Fever Institute at Kern Medical Center. Dr. Kuran relied on her “education, background,
training, and experience” in formulating and reaching her opinions and conclusions; in
addition, she reviewed and relied upon “various articles concerning histoplasmosis,”
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including a 1958 article by Manos, Ferebee, and Kerschbaum and two articles, from 1980
and 1981 respectively, by Goodwin, et al.1
Dr. Kuran declared: “Since I moved to Kern County, I have seen 2 histoplasma
brain abscesses, 3 chronic progressive histoplasmosis cases, and at least two acute
progressive severe histoplasmosis [cases].” Dr. Kuran added: “Histoplasmosis is under-
diagnosed in California. The only accurate way to measure true prevalence is by
performing skin testing of random people to detect whether they had been infected with it
at one point in their life. This was only done once by Manos et al. ([M]anos 1956).”
Dr. Kuran observed, based on the 1956 Manos article, that “histoplasmosis is endemic to
the San Joaquin Valley,” such that in “the area at and surrounding Firebaugh,” “up to
60% of residents” could “have some form of histoplasma infection.” Dr. Kuran
reproduced a map from the Manos article in her declaration, that showed the San Joaquin
Valley had a relatively high incidence of H. capsulatum/histoplasmosis.
Dr. Kuran confirmed that when Beebe was hospitalized, his MRI scan showed two
brain lesions and that a “culture” of his brain tissue subsequently tested positive for
histoplasma capsulatum. She stated, “[h]is brain lesions, while sterilized with multiple
long-term medications, left permanent damage leading to difficulty with ambulation,
coordination, memory, and cognition, among other things.” She added: “Infections can
spread outside the lungs and into other body organs, termed Progressive Histoplasmosis.”
Dr. Kuran observed: “Upon questioning, Mr. Beebe reported having had significant
exposure to bird droppings while at a job in Firebaugh. He especially recalled a ‘pole
barn’ covered and caked with layers and layers of bird droppings that, when swept
created dust which, along with the bird fecal matter, he and his co-workers inhaled.”
1 Manos et al., Geographic Variation in the Prevalence of Histoplasmin Sensitivity
(1956) [in an evident typographical error, Dr. Kuran initially noted the Manos article was
published in 1958]; Goodwin et al., Disseminated Histoplasmosis Clinical and Pathologic
Correlations (1980); Goodwin et al., Histoplasmosis in Normal Hosts (1981).
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Dr. Kuran noted: “The majority of histoplasmosis infections occur without
symptoms, >90%. Those who do get symptoms most commonly manifest with acute
pulmonary disease within 7-21 days, but this is not always the case.… Some patients
would not necessarily experience chest symptoms initially and go on to develop
disseminated infection.” As for her patients who were diagnosed with histoplasmosis,
Dr. Kuran pointed out that “most have suffered lengthy periods of time being
undiagnosed, just like Mr. Beebe.” Dr. Kuran expressly “disagree[d] with Dr. Hage that
Mr. Beebe’s symptoms had to demonstrate within 7-21 days of exposure and … Dr.
Hage’s comments [that] non-reported symptoms means that Mr. Beebe did not contract
histoplasmosis when he worked at the Firebaugh facility.” Among other things,
Dr. Kuran cited the 1981 Goodwin article (it appears Dr. Kuran meant to refer to the
1980 Goodwin article) as clarifying that disseminated histoplasmosis infection has three
variations: acute progressive (infantile); subacute progressive disseminated; and chronic
progressive disseminated. Dr. Kuran stated, relying in part on the article: “Mr. Beebe’s
case falls into the subacute progressive disseminated category, which … typically
manifests within 2-24 months of infection.”
Dr. Kuran opined: “Based on my education, Mr. Beebe’s history, testing,
examination, treatment, intimate knowledge of his case, and general infectious disease
experience, it is my medical opinion to a reasonable medical certainty that Mr. Beebe
acquired histoplasmosis during his exposure to the bird feces while at WP&A’s facility in
Firebaugh, California.” Dr. Kuran also explained that “[c]asual exposure to fresh bird
droppings or droppings on the sidewalk is not sufficient to cause histoplasmosis.”
Rather, “[e]xposure that leads to infection” is “usually attained by inhaling disturbed soil
that had bird and/or bat droppings for a long time allowing the fungus to grow in that
soil.”
Activities that are “more likely to cause a person to contract histoplasmosis,”
include sweeping of bird droppings, cleaning a chicken roost or coop, or exploring caves
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with exposed bat droppings. While Beebe had worked at the Firebaugh facility “on an
almost continuous basis for close to two years” (where bird feces were regularly swept
off or blown off the concrete floor of the pole barn and into the surrounding dirt (see
below)), there was no evidence he participated, at any time, in activities like cleaning
chicken coops or exploring bat-infested caves. Based on those facts, Dr. Kuran further
opined, “to a reasonable medical certainty,” that Beebe’s histoplasmosis infection did not
arise from his travel, recreational, and post-Firebaugh work activities.
Dr. Kuran concluded: “It is my medical opinion to a reasonable medical certainty
that Mr. Beebe’s disseminated histoplasmosis was caused by his exposure to bird feces at
the Plant at Firebaugh when he worked there in 2013 and 2014. From a medical
perspective, it is irrelevant to me that the soil was not tested for the spores. There is
overwhelming evidence from my review of materials that Mr. Beebe’s exposure to the
bird feces and soil at the Plant was the cause of his disseminated histoplasmosis.”
Declaration of Diane Trainor, PhD.
Diane Trainor, Ph.D. in Occupational Safety and Health from N.Y.U., is an
occupational safety and health expert. Trainor provided a declaration in support of
Beebe’s opposition to Wonderful’s motion for summary judgment. Trainor stated she
was “familiar with the standard of care for how to handle and remove bird feces between
2012-2014 in California.” Trainor observed: “The accepted industry standards required
that no dry sweeping or clean-up occur[,] as this method of feces clean-up aerosolizes the
fecal matter into the breathing zone of workers.” (Italics added.) Industry standards also
“require double bagging of bird feces and proper disposal,” with plastic bags used for this
purpose.
Trainor stated “[t]he pathogen hazards contained in bird fecal matter and the
increased risk of exposure created a dangerous condition” at the Firebaugh Facility. She
stated: “WP&A did not follow standards established for the proper removal of bird feces,
by scraping and dry sweeping the feces, therefore creating a dangerous condition to
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which Beebe was exposed.” Trainor noted that under the standard of care, WP&A should
have investigated the health risks posed by bird feces and consulted with a professional,
such as an occupational safety and health specialist or an industrial hygienist, and
“hire[d] professionals to remove the bird feces according to standard industry practices.”
Trainor further noted that “Defendants should have, at a minimum, tested the soil and
bird feces.”
Trainor stated: “The risk associated with exposure to bird feces is well-
documented and WP&A had a responsibility to provide a clean, work environment from
the hazard of Histoplasmosis.” Trainor concluded: “The exposure to bird feces and the
subsequent development of Histoplasmosis was foreseeable. WP&A[’s] failure to
mitigate the foreseeable hazard of bird feces was a cause of exposure and injury to Dale
Beebe.”
II. Deposition Testimony Adduced by the Parties
Deposition Testimony of Conan Dunlap
As indicated above, Conan Dunlap was the general manager of the Firebaugh
Facility for WP&A. Dunlap testified at deposition that the presence of roosting birds was
an ongoing problem at the Firebaugh Facility during the timeframe relevant to Beebe’s
complaint. Dunlap testified: “We knew that there were birds nesting in the pole barn, so
we had discussions on how to discourage them from being there.” At the beginning of
the construction work, Dunlap asked James Tjerrild of Potential Design, Inc. to “clean up
the bird nests at the pole barn” and Tjerrild did so; but the birds came back.
The birds were there when Braaten Electric was working at the Firebaugh Facility
in 2012; the electrical work was being done in the pole barn area and the silo area.
WP&A “tried a number of different strategies” to reduce the number of nesting birds.
Dunlap testified: “We set up electronic bird calls that made predator bird noises to try to
scare them. We knocked down incomplete nests to not allow them to complete their
nests. Eventually, we hired a falconer to come out and dissuade the birds. We also
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approved netting to try to physically keep the birds from nesting.” In addition, WP&A
deployed a fake owl or fake hawk to scare off the birds; WP&A also tried using
“propane-powered canons” to make a noise to scare the birds away.
However, the birds were back when Braaten Electric returned to perform phase
two of the electric work. Dunlap was asked whether the earlier problems continued to
persist in 2013, in phase two of the construction; Dunlap answered in the affirmative.
Starting in 2013, WP&A brought in a company called Air Strike Bird Control to deal
with the bird problem. During both phases of the construction work, WP&A would
“periodically” sweep the bird droppings in the pole barn with a broom. Dry sweeping
was the “primary method” used to move the bird feces off the concrete. The bird
droppings were “just swept off the concrete” and “into the dirt”; the droppings were not
bagged up or otherwise removed or discarded. Dunlap stated: “I don’t know what
happens to them on the dirt. Material changes.” Dunlap was asked whether bird
droppings covered equipment at the Firebaugh Facility; Dunlap answered: “I don’t recall
specifically, but generally I’m sure there was bird droppings on catwalks and things.”
Dunlap could not provide an estimate for the number of birds present in the pole barn in
2014. Dunlap was asked whether the bird feces accumulation was an ongoing problem in
2015; Dunlap answered: “I don’t recall. I don’t think [so]. I think they were gone by
2015.”
WP&A did not consult with experts regarding the best way to clean up and
dispose of bird feces to minimize the risk of aerosolization of bird feces and their
subsequent inhalation. WP&A did not use an industrial vacuum cleaner to remove the
bird feces; nor did WP&A utilize disinfectants. WP&A did not conduct any testing or
evaluation with regard to the bird feces contamination. WP&A did not post signs
regarding potential health hazards related to bird feces.
16.
Deposition Testimony of James William Tjerrild
James William Tjerrild was the owner of Potential Design, Inc. that subcontracted
with Braaten for electrical installation work in two phases at the Firebaugh Facility.
During both phases, Beebe worked fulltime at the Firebaugh Facility and lived in his RV
on site, near the pole barn.
There were birds at the Firebaugh Facility and “the majority of the birds were in
the pole barn”; they would nest in the pole barn until they flew away to the northeast.
The birds were swallows; there were also sparrows, blackbirds, and crows. Conan
Dunlap hired Potential Design, Inc. to “remove the bird nests from underneath the pole
barn,” in either “late 2011 or early 2012.” Tjerrild testified: “[W]e used a man lift and a
pressure washer and a shovel and a crew of two and we cleaned all of the swallow nests
off the bottom of the pole barn.” Tjerrild was asked: “And what did you do with the
waste that came from that?” Tjerrild answered: “It all landed on the ground of the floor
of the pole barn and Wonderful employees handled that.” Tjerrild was asked: “So what
were you using the pressure washer and the shovel for?” He responded: “So the
swallows make a mud little nest [sic] that’s adhered to the bottom of the metal panels that
make up the roof of the pole barn. And the pressure washer, you just wand the pressure
washer at the swallow nests and it softens them up. And after you wand them, it
dampens them. And once you get them just a little bit wet, then you take a square shovel,
turn it upside down and run it across the roof, and the swallow nests fall off.” Tjerrild
was asked: “So it’s your testimony that [Potential Design, Inc.] knocked everything
down, but then didn’t clean it up; correct?” Tjerrild replied: “Correct. That was the
scope of our work.” Tjerrild was not asked to remove the bird droppings and feces and
nor did he.
Deposition Testimony of Danny Dovell
Danny Dovell testified at deposition that he had worked for Braaten Electric for 17
years. He worked as an electrician hand and an electrician during phase one and phase
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two, respectively, of the construction at the Firebaugh Facility. Dovell shared an onsite
trailer with another Braaten employee. “There was a lot of birds there.” “There was a lot
of pigeons and a lot of swallows. They would be flying over your head all the time.”
Bird feces were also present; “[t]hey were everywhere.” Asked to describe the feces,
Dovell said: “Bad. Real bad. Whenever you got the trailers … where they had all their
superintendents’ trailers and stuff like that over there. They were covered with [bird
feces].” The birds were all over Braaten’s equipment. Dovell said: “Some of the boxes
we do we run all our wire into, up on top, the catwalk, the birds made nests in there and
our exhaust fans, they would get inside of there and make nests inside of those. One side
has a screen and the other side didn’t. They were able to get inside of them.”
Dovell was asked: “Do you remember whether or not you would eat in the
presence of the birds?” Dovell answered: “Yes. They had a couple barbecues there.
One was underneath the shed I was telling you about where the birds were.” Beebe
would attend the barbecues.
Deposition Testimony of Robert Simons
Robert Simons was a Braaten employee who worked with Beebe at the Firebaugh
Facility for five to seven months. The Braaten employees would be on site 24 hours a
day, living in RVs, and eating at barbecues set up next to the RVs. There were birds at
the Facility, “[f]rom pigeons to [r]avens, crows, an[d] like little swallow birds.” Simons
noted: “[T]hey were just everywhere[,] we were always shooing birds away.” “They
were a pretty big problem.” “[T]hey would be on top of the switch gears and panel
outside.” Simons explained: “[T]here was just bird, I guess, fecal, feces everywhere.…
[T]hey can [get] pretty thick, [on] some of the switch gears [the bird poop] would be an
inch or two high.” Simons said: “Almost like bird poop snow, I guess I would say, it
was.” The Braaten employees would have to “wipe[] things out of the way with [their]
gloves on so [they could] access things,” and sometimes they would have to sweep an
18.
area just to be able to work there. WP&A brought in a falcon to “try to get rid of birds,”
but “[i]t didn’t have much effect.”
Simons noticed changes in Beebe towards the end of Simons’s time on the project.
Simons said: “[Beebe] seemed to be a little slower towards the end of when I left … the
project. He’d have to process things more.” Simons had to help Beebe get routine things
done, like ordering materials. Beebe became “[f]orgetful and unsteady on his feet a little
bit.” Simons noted: “I think he was taking like NyQuil, just different things. I thought
[he] might like have an ear infection since his equilibrium was feeling kind of funny,
things like that. Like he might have had a cold.”
Deposition Testimony of Rene Castaneda
Rene Castaneda used to work for WP&A, at the Firebaugh Facility. Castaneda
was questioned about phase one of the construction at the Firebaugh Facility. Castaneda
saw birds in the silo area and in the pole barn “[e]very day during the spring and
summer.” Similarly, Castaneda saw bird nests everyday in the silo area and the pole
barn, during the spring and summer. Castaneda also saw bird poop in the silo area and
pole barn every day, during the spring and summer. In the silo area, the bird poop was
“on the ground or the sides of the silos.” In the pole barn, the bird poop was “[o]n the
sides of the poles and the ground.” Castaneda was part of a crew that would knock down
the birds’ nests “[o]n a daily basis.” Castaneda testified: “We’d get on a man lift with a
pole, with the – like a spatula-type tool at the end, and we’d just raise ourselves up and
scrape the – scrape the nests off.” The nests would fall to the ground.
Deposition Testimony of Francisco Cipriano Gamino
Francisco Cipriano Gamino, an employee of WP&A, worked at the Firebaugh
Facility. Gamino was part of a crew of six or seven workers that would remove bird
nests from the pole barn. The workers “would go up on the boom lift and try to wash [the
nests] down with the hose.” Gamino testified: “So we did the bird nest a couple times.
And then we would do the floor. Mostly we would, like I said, clean the floor with all the
19.
air, with the leaf blowers. That’s what we would mostly do. But I do remember us
washing – trying to scare the birds away with the hose.” Gamino said cleaning the floor
with the leaf blowers “was a daily thing.” Gamino was asked: “Was the area in which
you used the leaf blowers the same area where you would be cleaning the floor after you
knocked down the bird nest?” Gamino responded “Yes.”
Deposition Testimony of Dale Beebe
Dale Beebe testified at deposition that he worked as an electrical automation
foreman since he joined Braaten Electric in 2004. Beebe worked and lived at the
Firebaugh Facility during phases one and two of the construction there (he would
generally go home to Bakersfield on weekends). Beebe would work under the pole barn.
There were birds nesting in the pole barn—mud-nesting birds and crows. Beebe was
asked: “Now, the birds that do the mud nests, how many of those did you see?” Beebe
answered: “There were a lot. You want me to give you an estimate? Hundreds.”
During both phases of the work, the Braaten employees would talk among themselves
“about how many birds there were and how nasty it was”; they would be upset about the
“nasty working conditions.” Beebe noted the birds “were there the whole time [he] was
there”; he also saw the crows “all the time.” There were bird droppings on Beebe’s RV.
The same number of birds were there when Beebe returned for phase two of the work, in
September 2013.
Deposition Testimony of Dr. Chadi Hage, Wonderful’s Medical Expert
Dr. Chadi Hage testified at deposition that histoplasmosis primarily affects a
person’s lungs, but its symptoms vary greatly. The vast majority of affected people are
asymptomatic and have no apparent ill effects. Histoplasmosis can have a combination
of symptoms, including a general ill feeling, fever, chest pain, dry or nonproductive
cough, loss of appetite, shortness of breath, joint and muscle pain, chills and hoarse
voice. A person who has been a heavy smoker would be more susceptible to severe
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symptoms and disseminated disease, just like an immunocompromised person would be.
Beebe had disseminated disease, specifically “histoplasmosis of the brain.”
H. capsulatum grows best in soils with a high nitrogen content, especially those
enriched with bird manure or bat droppings. In geographic areas where H. capsulatum is
relatively common, if birds had roosted in a particular location for three or more years,
that area would likely be contaminated with the fungus.2 Dr. Hage testified, “California
is not part of the endemic map for histoplasmosis.”
In an area with H. capsulatum, “there is a correlation between the amount of
spores that are aerosolized and the likelihood of developing histoplasmosis as well as the
severity of the illness.” The number of spores that have to be inhaled to cause the disease
in a human being is unknown. Dr. Hage explained the typical course of the disease:
“What happens, the natural history, the way we understand it is that a person is infected
with Histoplasma. It goes to the lung. The lung tries to contain it and it struggles with it.
And then it disseminates from there to the rest of the body in everybody. [¶ ] But then
the immune system takes about two weeks to develop enough defenses against it to
contain it. And this is how it’s contained in healthy individuals.” However, the duration
and timing of the disease varies depending on a person’s immune system, along with
other factors.
Deposition Testimony of Ben Kollmeyer
Ben Kollmeyer testified that histoplasmosis does occur in California and there
have been cases in the Central Valley. The fungus that causes histoplasmosis, H.
capsulatum, can be found in bird droppings or bird fecal matter. The fungus can also be
transported from one place to another by birds, on their wings, feet, or beaks.
2 Dr. Hage was asked: “Do you agree with the proposition that if birds have been
roosting in the location for three or more years, that the area where the birds have roosted
should be suspected of being contaminated with the fungus?” Dr. Hage answered: “Only
in the right geographic area. So this would be correct in Indiana. But it would not be
correct in Saudi Arabia.”
21.
DISCUSSION
I. Summary Judgment Not Warranted with Respect to Issue of Causation
A. Summary Judgment: Standard of Review
Any party may move for summary judgment in an action if it is contended that the
action has no merit. (Code Civ. Proc., § 437c, subd. (a).)
“Summary judgment is granted when there is no triable issue as to any material
fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) This court reviews de novo the trial court’s decision to grant summary
judgment and we are not bound by the trial court’s stated reasons or rationales.
[Citation.] [¶] In reviewing a motion for summary judgment, we accept as undisputed
fact only those portions of the moving party’s evidence that are uncontradicted by the
opposing party. In other words, the facts alleged in the evidence of the party opposing
summary judgment and the reasonable inferences that can be drawn therefrom are
accepted as true.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1001.)
We consider “ ‘all the evidence set forth in the moving and opposition papers
except that to which objections were made and sustained.’ ” (State Dept. of Health
Services v. Superior Court (2003) 31 Cal.4th 1026, 1035, citation and quotation marks
omitted.) “ ‘We liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that party.’ ”
(Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1249-1250.)
“[F]rom commencement to conclusion, the 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. That is because of the general principle that a
party who seeks a court’s action in his favor bears the burden of persuasion thereon. (See
Evid. Code, § 500.) 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
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opposing the motion in accordance with the applicable standard of proof…. [A] plaintiff
[moving for summary judgment] bears the burden of persuasion that ‘each element of’
the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’
thereto. (Code Civ. Proc., § 437c, subd. (o)(1).) A defendant [moving for summary
judgment] bears the burden of persuasion that ‘one or more elements of’ the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.
(Id., § 437c, subd. (o)(2).)” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850,
fns. omitted.)
B. Applicable Legal Framework: Causation
“ ‘ “Causation” is an essential element of a tort action. Defendants are not liable
unless their conduct … was a “legal cause” of plaintiff’s injury.’ ” (Whiteley v. Philip
Morris, Inc. (2004) 117 Cal.App.4th 635, 696 (Whiteley).) Here, the complaint raises
five tort causes of action, all of which encompass an element of causation with respect to
the injury alleged (histoplasmosis). (See, e.g., Ladd v. County of San Mateo (1996) 12
Cal.4th 913, 917-918 [negligence]; David v. Hernandez (2014) 226 Cal.App.4th 578, 584
[negligence per se]; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998
[premises liability]; Garman v. Magic Chef, Inc. (1981) 117 Cal.App.3d 634, 638 [strict
liability]; Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 806
[nuisance].)
The “substantial factor” test for causation is appropriate in all tort actions. (See
Haning, et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2022) ¶ 2:2398
(Cal. Practice Guide: Personal Injury); see Whiteley, supra, 117 Cal.App.4th at p. 696
[“A tort is a legal cause of injury only when it is a substantial factor in producing the
injury.”].) “ ‘ “The substantial factor standard is a relatively broad one, requiring only
that the contribution of the individual cause be more than negligible or theoretical.” ’ ”
(Whiteley, supra, at p. 699.) Thus, a force which plays only an “ ‘ “infinitesimal” ’ ” or
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“ ‘ “theoretical” ’ ” part in bringing about the injury is not a substantial factor, but a
“ ‘ “very minor force that does cause harm is a substantial factor. ” ’ ” (Ibid.)
Further, “[c]ausation is a question of reasonable probability; ‘legal cause’ need
not be proved with certainty, but mere possibility is insufficient to establish a prima facie
case. Thus, the issue is whether it is more likely than not that plaintiff’s injury was a
result of defendant’s act or omission.” (Cal. Practice Guide: Personal Injury, supra,
¶ 2:2405; Whiteley, supra, 117 Cal.App.4th at p. 699 [“ ‘Reasonable medical probability’
requires more than showing a mere possibility that defendant’s conduct was a ‘substantial
factor’ in causing the injury.”].)
“Similarly, where defendants were responsible for toxic waste that admittedly
could increase a person’s risk of contracting various maladies, plaintiffs must establish, to
a reasonable medical probability, their illnesses were caused by the toxic exposure. [For
example,] [t]he fact the [toxic substance] increased the possibility of sickness in the
overall population does not suffice to provide a causal link with plaintiffs’ illnesses.”
(Cal. Practice Guide: Personal Injury, supra, ¶ 2:2420 and ¶ 2.370 [“Expert testimony is
… required on the issue of causation if the matter is so beyond lay experience that it can
be explained only through experts.”]; see Cottle v. Superior Court (1992) 3 Cal.App.4th
1367, 1384 [“ ‘The law is well settled that in a personal injury action causation must be
proven within a reasonable medical probability based upon competent expert
testimony.’ ”]; Whiteley, supra, 117 Cal.App.4th at p. 701 [“Increased risk alone is not
actionable. In toxic tort cases generally, ‘plaintiffs must establish, to a reasonable
medical probability, their illnesses were caused by the toxic exposure.’ ”].)
The trial court based its summary judgment ruling on Miranda v. Bomel
Construction Co., Inc. (2010) 187 Cal.App.4th 1326 (Miranda). Miranda addressed the
question whether a Valley Fever fungal infection experienced by the plaintiff in that case,
was attributable to a construction dirt mound on property adjacent to the plaintiff’s
workplace. Miranda expressly distinguished, on the facts, another seminal causation
24.
case, Sarti v. Salt Creek (2008) 167 Cal.App.4th 1187 (Sarti). Sarti addressed the
question whether a bacterial infection experienced by the plaintiff in that case was
attributable to a restaurant meal the plaintiff had previously eaten. We conclude the
present case is more analogous to Sarti than to Miranda. The trial court erred in granting
summary judgment under Miranda. Accordingly, we reverse the judgment and remand
for further proceedings.
C. Miranda and Sarti
As mentioned, the trial court relied on Miranda for purposes of granting summary
judgment in this case. However, Miranda is, in fact, distinguishable from the present
matter. To show why this is the case, we will take a close look at both Miranda and
Sarti.
In Miranda, the defendants, a construction company and an excavation company,
excavated approximately 1,600 cubic yards of dirt from an area in Southern California,
and deposited it in a vacant lot 10-15 feet from a locksmith shop at which Rudy Miranda
worked. (Miranda, supra, 187 Cal.App.4th at p. 1328.) Three months later, Rudy
Miranda began exhibiting symptoms of Valley Fever, the existence of which was
confirmed by a pathology report. (Id. at p. 1329) Rudy Miranda underwent surgery to
remove a portion of one lung. (Ibid.) Rudy Miranda and his wife, Donna Miranda
(referred to collectively and in the singular as Miranda) brought an action with claims for
negligence and loss of consortium against the construction and excavation companies.
(Ibid.) Miranda alleged the defendants dumped a huge dirt pile in the vacant lot and then
failed to water, cover, or otherwise control for dust in that dirt pile, and this breach of
duty resulted in Miranda’s injury. (Ibid.)
The defendants filed motions for summary judgment. They adduced an expert
declaration from an industrial hygienist to the effect Valley Fever (coccidioidomycosis)
was caused by inhalation of airborne spores of the Cocci fungus that was endemic to a
large portion of California. (Miranda, supra, 187 Cal.App.4th at pp. 1329-1330.) The
25.
expert declaration adduced by the defendants emphasized that not only was the Cocci
fungus endemic in many parts of the state, including Southern California, but the Cocci
fungus, specifically, had been known in a particular instance, to have been carried by
strong winds for hundreds of kilometers over a large part of the state. (Id. at pp. 1329-
1330.) In addition, various everyday activities such as “agricultural work, land
development and construction, mining, dusty recreational activities, vehicles on unpaved
roads, home gardening, and landscaping,” rendered Cocci spores airborne. (Id. at p.
1329.) The defendants’ expert further declared: “ ‘Since a Valley Fever infection is
almost always the direct result of inhalation of airborne spores of the Cocci fungus, the
exact source (home, recreation, work, travel, etc.) of the exposure cannot be determined
absent scientific data, e.g., soils tests, confirming the existence of the Cocci fungus in the
soil at issue at the time of exposure.’ ”3 (Id. at p. 1330.) Counsel for one of the
defendants submitted a declaration stating Miranda had the opportunity, in connection
with his workers’ compensation case, to test the soil in the dirt pile within a year of the
time the dirt pile was deposited at the vacant lot. (Id. at p. 1333.)
Miranda submitted an opposition to the summary judgment motions, with
supporting declarations from, among others, two physician experts, each of whom
concluded there was a reasonable medical probability that Miranda contracted Valley
Fever from a spore originating from the dirt pile. (Miranda, supra, 187 Cal.App.4th at
pp. 1331-1332.) The defendants contended, however, that because Miranda did not have
evidence, based on soil tests, that showed the dirt pile adjacent to the locksmith shop
actually contained the Cocci fungus, the opinions of his physician experts were
speculative, and Miranda could not “prove causation as a matter of law.” (Id. at pp.
1329, 1337.) The trial court agreed with the defendants, excluded the declarations of
Miranda’s experts, determined there was no triable issue of fact with respect to causation,
3 The industrial hygienist who submitted this expert declaration in Miranda was
none other than Ben Kollmeyer, who submitted a similar declaration in the instant case.
26.
and granted summary judgment in favor of the defendants. (Id. at p. 1334.) The trial
court observed that holding the defendants liable for Miranda’s injures “would be like
holding a gardener liable for allergies caused by pollen.” (Id. at p. 1334.)
The appellate court (Miranda) affirmed the judgment, on grounds, inter alia, that
there was no triable issue of fact with respect to causation. (Miranda, supra, 187
Cal.App.4th at p. 1336.) Miranda observed the defendants “met their burden of proving
that it was only a possibility, not a reasonable medical probability, Miranda contracted
Valley Fever by inhaling an airborne Cocci spore that originated from the soil [in the dirt
pile at issue].” (Id. at p. 1336, citing Jones v. Ortho Pharmaceutical Corp. (1985) 163
Cal.App.3d 396, 402-403 [“A possible cause only becomes ‘probable’ when, in the
absence of other reasonable causal explanations, it becomes more likely than not that the
injury was the result of its action.”].) Miranda further observed that absent scientific data
proving the soil in the dirt pile contained Cocci fungus, the evidence did not show, by a
reasonable medical probability, that the spore that caused Miranda’s Valley Fever
specifically originated from the dirt pile. (Miranda, supra, at pp. 1336-1337.)
As for the opinions of Miranda’s physician experts, the Miranda court noted that
“[n]either expert offered an opinion on whether there was a way to medically or
scientifically determine the origins of the infecting spore” or “accounted for the
undisputed facts showing there were other reasonable and likely sources of the fungus
spore causing Miranda’s injury.” (Miranda, supra, 187 Cal.App.4th at p. 1337.)
Miranda pointed out that Miranda’s physician experts did not dispute that the Cocci
fungus grows all over California and that Cocci spores become airborne through a variety
of activities. (Ibid.) Miranda concluded that, in light of this undisputed evidence, “the
fact [that] Miranda was infected, standing by itself, [did] not create a reasonable
inference [that] the dust from [the dirt pile], as opposed to another location, was the
source of the disease.” (Ibid.) Miranda’s physician experts were simply indulging in “
‘the logical fallacy of “post hoc, ergo propter hoc” (after the fact, therefore because of the
27.
fact).’ ” (Id. at p. 1339.) Simply put, the Miranda court concluded that Miranda could
have inhaled the Cocci spore anywhere in Southern California, and without more to
definitively connect his infection to the dirt pile adjacent to his locksmith shop, the
defendants could not be held liable. (Id. at p. 1337.)
In reaching its conclusion, Miranda distinguished another seminal California case
on causation, Sarti, supra, 167 Cal.App.4th 1187, in which a woman (Sarti) who suffered
a foodborne illness (she was tested positive for campylobacter bacteria) sued a restaurant
(Salt Creek Grille) where she had previously eaten a raw tuna appetizer and raw
vegetables. Sarti’s bacterial illness escalated into a variant of Guillain-Barré syndrome (a
disease that damages peripheral nerves). (Id. at p. 1191.) The case went to trial and a
jury found in Sarti’s favor, but the trial court granted the restaurant’s motion for
judgment notwithstanding the verdict on grounds there had not been an adequate showing
as to causation. (Id. at p. 1192.) The Sarti court reversed.
The Sarti court highlighted the connection between Sarti’s bacterial illness and
unsanitary conditions at the defendant restaurant. “Campylobacter is not found in raw
tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is
common.” (Sarti, supra, 167 Cal.App.4th at p. 1191.) An investigation by the county
health department identified four practices that could have led to cross-contamination of
the raw tuna with raw chicken: wipe-down rags were not regularly sanitized; there was
insufficient sanitizer in the dishwasher; chicken tongs were sometimes used to handle
other food; and raw vegetables were not stored separately from raw meat. (Ibid.)
There was plenty of evidence in favor of the restaurant. Sarti went to the
restaurant with a friend; the friend shared the raw tuna appetizer but did not get sick. The
Salt Creek Grille took great pains to separate its raw tuna from its raw chicken. And Sarti
worked as a supermarket checker the day she became ill, and could theoretically have
picked up campylobacter from a leaking bag of raw chicken she might have scanned at
the supermarket. (Sarti, supra, 167 Cal.App.4th at pp. 1191-1192.) However, Sarti
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presented expert testimony that made a link between the unsanitary conditions at the
restaurant and her campylobacter poisoning; the link was cross-contamination from raw
chicken. Sarti had eaten raw tuna and raw vegetables at the restaurant. The use of
unsanitized wipe-down rags at the restaurant, the fact that raw vegetables and raw meat
were stored together, and the lack of proper sterilization in the dishwasher, all could have
resulted in cross-contamination of Sarti’s food with raw chicken that had campylobacter
present. (Id. at p. 1207.)
Sarti concluded the circumstantial evidence presented by the plaintiff to connect
her illness to eating raw tuna and raw vegetables at the restaurant, was sufficient to
permit the jury to reasonably infer the food she ate at the restaurant was contaminated
with campylobacter and was the cause of her bacterial illness. (Sarti, supra, 167
Cal.App.4th at p. 1207.) Sarti rejected the restaurant’s assertion “Sarti was required, as a
matter of law, to exclude all ‘possibilities’ other than the meal she had at the restaurant.”
(Id. at p. 1210.) Rather, Sarti clarified that “California law on causation is ‘substantial
factor’ ” and ‘ “a plaintiff need not ‘exclude every other conclusion” ’ than the
defendant’s negligence.” (Id. at p. 1210, citing Daugherty v. Lee (1946) 74 Cal.App.2d
132, 136 [“ ‘It is not necessary in the trial of civil cases that the circumstances shall
establish the negligence of the defendant as the proximate cause of injury with such
absolute certainty as to exclude every other conclusion.’ ”].) Further, to the extent there
was a possibility of alternative causes for Sarti’s illness, Sarti emphasized that the word
“ ‘possibility’ ” “must necessarily connote something more than bare conceivability or
plausibility, otherwise it would swallow up the universe.” (Sarti, supra, 167 Cal.App.4th
at p. 1210 [it is “ludicrous” to suggest that attenuated, alternative explanations for Sarti’s
illness, “must, as a matter of law, defeat [her] food poisoning claim”].)
Returning to Miranda, Miranda noted Sarti confirmed that “[r]easonable
inferences drawn from substantial evidence are indeed available to show causation.”
(Miranda, supra, 187 Cal.App.4th at p. 1340.) The Sarti plaintiff submitted “strong
29.
circumstantial evidence she ate food at a specific restaurant with documented unsanitary
conditions” that could permit cross-contamination with raw chicken, a food in which
campylobacter is commonly found. (Miranda, supra, at p. 1342.) Although chicken is
available everywhere and chicken at the restaurant was not tested for campylobacter, the
jury could “make the reasonable inference there was a causal link between a specific
restaurant’s unsanitary conditions and [Sarti’s] food poisoning.” (Ibid.) The Miranda
court then distinguished Miranda from Sarti: “In contrast [to Sarti], Miranda submitted
evidence the soil, and sometimes the air, in Southern California is known to contain the
pathogen causing his disease. This is evidence from which the jury could link dust
inhalation in Southern California and his Valley Fever. However, there was no
circumstantial evidence from which the jury could reasonably infer [the dirt pile adjacent
to Miranda’s locksmith shop], as opposed to any other specific dirt pile, was the source of
the Cocci fungal spore that infected Miranda.” (Ibid., italics added.)
D. Analysis
Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility
was on a migratory route for flocks of swallows that had been nesting at the Facility for
years, particularly in the pole barn. Hundreds of swallows would nest there for long
periods every year, including the entire time Beebe worked at the Facility. There can be
no doubt that the presence of the birds was significant and problematic, given that
WP&A personnel made various attempts (some ill-advised) in the relevant time period, to
prevent the birds from roosting in the pole barn and other areas of the Facility.
The evidence also showed that the accumulation of bird feces was an extreme
problem at the Facility, with some spots having layers of feces an inch or two thick. The
accumulations interfered, at times, with the work the Braaten electricians were
performing at the site (Beebe himself had to personally remove bird droppings at times).
Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor
of the pole barn, the feces were simply deposited on the surrounding soil and not
30.
removed from the site. Beebe testified he was not exposed to concentrated accumulations
of bird feces anywhere other than the Firebaugh Facility.
While Dr. Chadi Hage, Wonderful’s medical expert, attested that histoplasmosis
was rare in California, Beebe’s infectious diseases expert and treating physician,
Dr. Rasha Kuran, who practices in California, disagreed with Dr. Hage’s contention as
far as the San Joaquin Valley is concerned, based on her experience here. Dr. Kuran also
reproduced in her declaration, a map from an academic article, that showed the San
Joaquin Valley had a relatively high incidence of H. capsulatum/histoplasmosis.
Dr. Kuran noted that people were more likely to contract histoplasmosis during activities
in bird habitats or through exposure to concentrated accumulations of bird feces,
especially in environments where bird feces were aerosolized. More specifically, it was
typically through activities like sweeping droppings, cleaning a chicken coop or roost, or
exploring bat caves with exposed droppings that people contracted histoplasmosis.
Furthermore, Dr. Hage testified at deposition that in areas where H. capsulatum is
relatively common, if birds had roosted in a particular location for three or more years,
that area would likely be contaminated with the fungus. The bird infestation at the pole
barn predated the construction projects that began in 2012 and there is no question that
swallows had been roosting in the pole barn for several years by the time Beebe wrapped
up his work at the Firebaugh Facility. Dr. Kuran explained that “[c]asual exposure to
fresh bird droppings or droppings on the sidewalk is not sufficient to cause
histoplasmosis”; rather, “[e]xposure that leads to infection” is “usually attained by
inhaling disturbed soil that had bird and/or bat droppings for a long time allowing the
fungus to grow in that soil.”
Ample evidence was also adduced to show that WP&A handled the bird feces in
ways that are not recommended from a safety standpoint. WP&A would regularly dry
sweep the bird feces off the concrete floor of the pole barn onto the surrounding dirt,
where the bird feces reasonably would become concentrated over time and mix with the
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soil, as would happen in a chicken coop or bat cave. WP&A also apparently used leaf
blowers to clean the floor of the pole barn, that was replete with bird feces by all
accounts. In addition, on numerous occasions, the swallow mud nests that lined the
ceiling of the pole barn would be scraped off with shovels and left to fall to the concrete
floor. It appears the resulting mud and fecal debris (a combination that fosters the growth
of H. capsulatum) would either be left there or swept into the surrounding dirt. These
methods of handling bird feces would serve to foster proliferation of H. capsulatum and
maximize the aerosolization of the feces and mud/soil, as well as the risk of inhalation of
any infected feces or infected mud/soil. The construction work occurring at the
Firebaugh Facility during the relevant timeframe would also reasonably tend to spur the
aerosolization of feces, soil, and dust at the Firebaugh Facility.
Significantly, Beebe lived in an RV near the pole barn during his work at the
Firebaugh Facility; even meals were taken in the vicinity of the pole barn on a regular
basis. Beebe testified he had begun to feel ill by the end of phase two of the electrical
work he performed at the Firebaugh Facility. Robert Simons corroborated Beebe’s
testimony on this point. Dr. Kuran noted Beebe, like many of her patients, “suffered [a]
lengthy period[] of time being undiagnosed.” She stated that “[s]ome patients would not
necessarily experience chest symptoms initially and go on to develop disseminated
infection.” She also said: “Mr. Beebe’s case falls into the subacute progressive
disseminated category, which … typically manifests within 2-24 months of infection.” In
light of Dr. Kuran’s declaration, the timing of Beebe’s histoplasmosis diagnosis is
consistent with him having acquired it at the Firebaugh Facility.
Conan Dunlap stated in his declaration that WP&A had 12 employees in 2012 and
45 employees in 2014. Not only was the employee pool small, but most people who
contract histoplasmosis are asymptomatic, do not seek medical care, and are never
diagnosed with the disease. Accordingly, it is not surprising that other workers at the
Firebaugh Facility were not diagnosed with histoplasmosis.
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The present case is far removed, analytically, from Miranda, where “there was no
circumstantial evidence from which the jury could reasonably infer [the dirt pile adjacent
to Miranda’s locksmith shop], as opposed to any other specific dirt pile, was the source of
the Cocci fungal spore that infected Miranda.” (Miranda, supra, 187 Cal.App.4th at p.
1342.) The instant case is more analogous, analytically, to Sarti, where circumstantial
evidence was sufficient to establish a reasonable inference that the food the plaintiff ate at
the Salt Creek Grille restaurant had led to her bacterial infection, given unsanitary
conditions there that would have permitted cross-contamination from any raw chicken
infected with campylobacter. Just as raw chicken connected Sarti’s illness with the
restaurant, bird-manure enriched soil connected Beebe’s illness to the Firebaugh Facility.
Just as raw chicken is commonly infected with campylobacter, bird-manure enriched
soils in areas with a relatively high incidence of histoplasmosis are commonly infected
with H. capsulatum. Dr. Kuran stated in her declaration that the San Joaquin Valley,
including Firebaugh, has a relatively high incidence of histoplasmosis; she adduced a
map from an academic article to substantiate her point.
Just as the unsanitary conditions at the restaurant in Sarti would reasonably permit
cross-contamination from infected raw chicken to occur, dry sweeping and blowing
infected bird feces and/or infected mud/soil at the Firebaugh Facility would reasonably
permit aerosolization and inhalation of H. capsulatum spores by people at that site. Here,
it is undisputed that Beebe lived and worked onsite at the Firebaugh Facility (by the pole
barn) for extended periods, in the area where the aerosolized dust was present. Beebe
also testified he was not exposed to concentrated accumulations of bird fecal matter
elsewhere.
We conclude Beebe has raised a triable issue of material fact as to whether there is
a reasonable medical probability that Wonderful’s conduct with respect to the birds and
bird feces at the Firebaugh Facility was a substantial factor in causing Beebe’s illness.
(See Cal. Practice Guide: Personal Injury, supra, ¶ 2:2405 [“the issue is whether it is
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more likely than not that plaintiff’s injury was a result of defendant’s act or omission”].)
As we noted above, “ ‘[i]t is not necessary in the trial of civil cases that the circumstances
shall establish the negligence of the defendant as the proximate cause of injury with such
absolute certainty as to exclude every other conclusion.’ ” (Daugherty v. Lee, supra, 74
Cal.App.2d at p. 136.) Summary judgment is not warranted here.
E. Trial Court’s Ruling and Exclusion of Beebe’s Experts
The trial court ruled, in granting summary judgment in favor of Wonderful, in
part:
“Defendant argues that absent any scientific data proving the bird
droppings were the source of the fungal spores, summary judgment is
warranted, as there is no reasonable medical probability the air contained
spores of H. capsulatum following Defendants’ removal of the droppings.
For the sake of argument, unless Plaintiff can demonstrate he has limited
his movement to the Firebaugh plant since the conclusion of his work there,
Plaintiff’s causation contention is implausible. Even so, without scientific
data evidencing the presence of H. capsulatum, Plaintiff cannot
demonstrate causation.… Plaintiff fails to demonstrate there is a triable
issue of material fact. The Court finds Dr. Rasha Kuran’s declaration
speculative and lacking in credibility. [¶]….[¶] The Court … sustains
[Defendants’] objections to the Declarations of Train[o]r [and Kuran].”
Beebe challenges the trial court’s exclusion of the declarations of Drs. Kuran and
Trainor. We review the trial court’s rulings on evidentiary objections for abuse of
discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) As reflected in
its ruling, the trial court adopted the reasoning of Miranda, supra, 187 Cal.App.4th 1326,
and on that basis excluded the declarations of Drs. Kuran and Trainor as speculative. As
discussed above, Miranda is inapposite. There is no basis for excluding the declarations
of Drs. Kuran and Trainor as speculative. (See, e.g., Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 773 [court’s discretion “must be
exercised within the confines of the applicable legal principles”; it is not unlimited,
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especially when “its exercise implicates a party’s ability to present its case”].) We
conclude the trial court erred in excluding the declarations of Drs. Kuran and Trainor.4
DISPOSITION
The judgment is reversed. Beebe is awarded his costs on appeal.
SMITH, J.
WE CONCUR:
DETJEN, Acting P. J.
FRANSON, J.
4 It is not necessary for us to address Beebe’s remaining contentions.
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