Jurisdiction: Court of Appeal of California, Second Appellate District, Division Six
Plaintiff Easterling brought this claim based on his diagnosis of lung cancer, which he attributes to asbestos exposure during his work as an installer for Western Electric from 1962 to 1984.
Easterling, and his wife, sued various contractors and manufacturers that Easterling claimed he worked with or around during his career. Henkels moved for summary judgment on the grounds that they were a contractor, and there was no evidence that they supplied or manufactured any of the asbestos containing materials. The court granted summary judgment for Henkels, finding that the Easterlings failed to show any evidence of a triable issue of material fact that Henkels exposed Easterling to asbestos.
To establish “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 . . . that exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it contribut[ed] to the plaintiff’s or decedent’s risk of developing cancer.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982-983, fn. omitted.) “Mere presence at a site where asbestos was present is insufficient to establish legally sufficient asbestos exposure.” (Shiffer v. CBSCorp. (2015) 240 Cal.App.4th 246, 252.)
Plaintiff contends Henkels made an insufficient showing to shift the burden of proof on summary judgment regarding exposure to Henkels’s alleged asbestos-containing products. The court disagreed stating that speculation that the plaintiff may have been exposed to asbestos provided by the defendant is insufficient. (Johnson v. ArvinMeritor, Inc. (2017) 9 Cal.App.5th 234, 245.) Instead, ” ‘[t]he 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.’ ” (Ibid.) Summary judgment was proper based on “discovery responses . . . devoid of material facts showing that [Easterling] had been exposed” to a Henkels product. (Id. at p. 106.)
Easterling was also questioned about Henkels at his deposition. His testimony was unclear whether Henkels exposed him to asbestos-containing materials. Once Henkels presented Easterling’s [*18] factually devoid discovery responses, the burden shifted to the Easterlings “to establish a triable issue of fact regarding causation.” (Andrews, supra, 138 Cal.App.4th at p. 107.)
Since the testimony from Easterling was generic, as were the discovery responses, there was no evidence to show Henkels exposed Easterling to asbestos. Therefore, summary judgment was affirmed.
Read the full decision here.
