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Appellate Court Affirms Summary Judgment Decision of Two Asbestos Defendants and Reverses Decision as to Two Others

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A recent published decision by the California Court of Appeal, Third Appellate District (Sacramento) affirmed summary judgment in favor of two asbestos defendants based on plaintiffs' factually insufficient discovery responses and deposition testimony. However, the Court reversed summary judgment in favor of two other defendants on the ground that they failed to satisfy their initial burden showing that plaintiff could not prove exposure to one of their asbestos-containing products.

In Verna Lee Colin v. CalPortland Company, et al. (July 1, 2014, C063875) ___ Cal.App.4th ___, plaintiff Loren A. Collin and his wife, Verna Lee Collin, sued 22 entities alleging Loren developed peritoneal mesothelioma as a result of occupational exposure to asbestos during his work in various construction trades from 1955 through 1957 and 1959 through the 1990's. Four defendants, CalPortland Company, Inc. ("CalPortland"), Kaiser Gypsum Company, Inc. ("Kaiser Gypsum"), J-M Manufacturing Company, Inc. ("J-M Manufacturing"), and Formosa Plastics Corporation ("Formosa") successfully moved for summary judgment in the lower court on various grounds. All defendants' motions for summary judgment argued that plaintiffs' could not prove that Loren was exposed to any one of their asbestos-containing products. On appeal, the Court reversed the lower court's rulings as to two defendants, CalPortland and Kaiser Gypsum, and reversed the judgments of J-M Manufacturing and Formosa.

In regards to CalPortland, the appellate court stated that plaintiffs could not establish through deposition testimony or discovery responses that plaintiff was exposed to CalPortland's sole product in the case. Loren testified that he did not recall seeing the brand name of CalPortland's product and that he never saw the bag of the product at any jobsite. He further testified that the first he had heard of the product was at his deposition in this case. Additionally, Loren testified that he did not have any information that he was ever on a job where anybody was using the product nor did he have any witnesses or documents that could assist him in determining whether the product was on a particular job.

The appellate court held that although "a party may rely on reasonable inferences drawn from direct and circumstantial evidence to satisfy its burden on summary judgment," a mere possibility that Loren was exposed to CalPortland's product is not enough to create a triable issue of fact. Accordingly, summary judgment for CalPortland was proper.

Similar to its decision in favor of CalPortland, the appellate court also found summary judgment proper for Kaiser Gypsum. The appellate court stated that plaintiffs did not and could obtain evidence to prove their contentions that Loren was exposed to Kaiser Gypsum's joint compound for approximately 21 years (from 1959 to 1979) given Loren's inability to recall the exact dates when he saw the joint compound at the jobsite and whether it contained asbestos. Accordingly, summary judgment for Kaiser Gypsum was proper.

While the appellate court affirmed the decision of the lower court granting summary judgment in favor of CalPortland and Kaiser Gypsum, the appellate court reversed the decision granting J-M Manufacturing and Formosa's summary judgment motions. J-M Manufacturing and Formosa, the alter ego of J-M Manufacturing, argued that since Loren did not testify about any encounters with their product, asbestos cement pipe, after 1979 then J-M Manufacturing is not liable for such claims prior to its formation in 1983.

Plaintiffs argued that Loren testified that he worked in the vicinity of others who work with "Transite," a trade name for Johns-Manville, who J-M Manufacturing purchased the assets of, asbestos cement pipe in the 1960's, 1970's, and early 1980's. Plaintiffs also presented evidence to show that J-M Manufacturing sold Transite prior to 1983. J-M Manufacturing and Formosa contended that the testimony regarding "Transite" was vague, but the court indicated that since the objection was not raised at the time of the deposition it was forfeited.

J-M Manufacturing also referred to Loren's deposition testimony in which he testified that he was last exposed to asbestos cement pipe sold by J-M Manufacturing in 1979. However, the court would not consider that evidence since it was not in the record. Seeing as that J-M Manufacturing and Formosa did not meet their burden, the appellate court reversed the decision of the lower court which granted the motion for summary judgment.

J-M Manufacturing and Formosa also moved for summary adjudication on the basis that they did not have a duty to warn Loren of the dangers associated with their products because he was a sophisticated user of cement pipe. The appellate court stated that J-M Manufacturing and Formosa are not entitled to summary adjudication because there is no evidence to show that Loren had specialized knowledge or training with regard to J-M Manufacturing and Formosa's product. Defendants failed present expert testimony that Loren should have known of the risks or dangers associated with the product because of his experience. Accordingly, summary adjudication in favor of defendants was not warranted.

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