California’s First District Court of Appeal (“COA”) ended 2017 by making it harder for asbestos defendants to prevail in a motion for summary judgment. Last month, in Turley v. Familian Corp., the Court ruled “a plaintiff has no obligation to prove asbestos exposure from a specific product on a specific date or time.” It is sufficient to establish “that defendant’s product was definitely at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it” during his employment. In other words, circumstantial evidence of a product’s mere presence is sufficient to defeat a motion for summary judgment (“MSJ”).
In Turley, Defendant Familian moved for summary judgment on the basis that the plaintiffs could not show exposure to asbestos in a Familian-brand product. The plaintiffs’ opposition to the MSJ included a declaration from a third-party witness, Paul Scott, who had not been deposed, but who testified that the defendant-supplied asbestos-containing gaskets were frequently used at sites supervised by the plaintiff, and that the plaintiff was commonly present when the work of replacing the asbestos-containing valves was being done. The trial court ruled that this evidence was too speculative and granted summary judgment.
Reversing the trial court’s decision, the COA found Scott’s testimony had adequate foundation and was not speculative. “For example, Scott testified that when he was ordering gaskets, he knew they were asbestos-containing based on PG&E’s codes and other vendor numbers … [and] that the PG&E codes were necessarily based on content, because certain applications required asbestos-containing gaskets.”
This evidence was held sufficient to defeat summary judgment, even without evidence of “exposure from a specific product on a specific date or time.” The COA relied upon Lineaweaver v. Plant Insulation Co., which reversed a nonsuit where there was no direct evidence that the plaintiff was exposed to the defendant’s product, but found the circumstantial evidence was sufficient to support a reasonable inference of exposure.
Additionally, the Court relied onWebb v. Special Elec. Co., Inc. (2016) 63 Cal.4th 167, which reversed a defense judgment notwithstanding the verdict, on the grounds that the plaintiff had introduced evidence that he was exposed to dust from containing trace amounts of crocidolite at the same time that a defendant was supplying crocidolite asbestos to a manufacturer of asbestos-containing products. The Webb court found that, “[w]hile evidence of the link could be stronger, it is nonetheless sufficient for the jury to have found that the defendant’s asbestos was s substantial factor in causing [the plaintiff’s] mesothelioma.”
The Turley decision is in line with a string of recent California decisions appearing to expand liability by tempering the summary judgment standard.